                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  _____________

                                 No. 01-1354WA
                                 _____________

United States of America,               *
                                        *
             Appellee,                  *
                                        * On Appeal from the United
      v.                                * States District Court
                                        * for the Western District
                                        * of Arkansas.
Roy Adrin Hoggard, II,                  *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: June 12, 2001
                                 Filed: June 22, 2001
                                  ___________

Before MORRIS SHEPPARD ARNOLD and RICHARD S. ARNOLD, Circuit
      Judges, and TUNHEIM,1 District Judge.
                              ___________

RICHARD S. ARNOLD, Circuit Judge.


      Roy Adrin Hoggard has been convicted by a jury on eight counts of permitting
minor children to engage in sexually explicit conduct for the purpose of producing a
visual depiction, in violation of 18 U.S.C. § 2251(b) and 18 U.S.C. § 2. The District



      1
      The Hon. John R. Tunheim, United States District Judge for the District of
Minnesota, sitting by designation.
Court2 sentenced Mr. Hoggard to thirty years in prison (360 months), with supervised
release to follow for three years. Mr. Hoggard appeals, urging two points.


      First, the District Court denied the defendant's motion to suppress evidence
obtained during a search of his car. It is undisputed that the car was lawfully stopped
for speeding. The officer who made the stop asked the defendant if he could look in
the car. The defendant said that he could, and asked if the officer would like to start
with the trunk. The defendant then opened the trunk. A small safe was seen inside.
The officer asked if he could look inside the safe, and the defendant said yes. The
defendant himself then opened the safe and lifted up the lid. At that point, he said,
"wait a minute," "there's some pictures of my wife inside the safe." In reply, the officer
said, "I'm not looking for any pictures, I'm just looking for contraband." The defendant
then said, "Okay," and the officer opened the safe and examined its contents. Among
them were photographs depicting children in sexually explicit poses, including a
woman, who turned out to be Mr. Hoggard's wife, engaging in various sex acts with
two small children, who were the Hoggards' children. On the basis of these and other
photographs, the defendant was convicted of the violation described above.


      Was the search of the safe lawful? We think the answer is yes. The defendant
gave his consent, but he claims he did not do so knowingly and voluntarily. The officer
misled the defendant, it is argued, by assuring him that pictures were not among the
items to be searched for. We disagree with this argument. At the time, no doubt, the
officer had in mind guns or drugs, not photographs. But, when photographs that could
informally, at least, be described as "contraband" were discovered, we do not think that
the officer was bound to ignore them. The defendant well knew what was inside the
safe. He knew what he was doing when he gave his consent, and no coercion was


      2
        The Hon. Robert T. Dawson, United States District Judge for the Western
District of Arkansas.

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involved. Perhaps the defendant did believe that he would be safe from any censure
on account of the photographs, but this erroneous belief, even if based upon an
arguable interpretation of the officer's words, is not, in our view, a sufficient reason to
render the defendant's consent either involuntary or unknowing.


      An argument is also presented with respect to the constitutionality of the federal
statute under which defendant was convicted. The statute, as amended in 1998,
provides in pertinent part:


                    Any parent or . . . person having custody or control of
             a minor who knowingly permits such minor to engage in . .
             . sexually explicit conduct for the purpose of producing any
             visual depiction of such conduct shall be punished as
             provided under subsection (d) of this section . . . if that
             visual depiction was produced using materials that have
             been . . . transported in interstate . . . commerce . . ..


18 U.S.C. § 2251(b). The statute contains an explicit jurisdictional nexus. It is not
simply permitting minor children to engage in sexually explicit conduct for the purpose
of producing a visual depiction that is prohibited. The government must also show that
the picture was produced using materials (here, film and a camera) that had been
transported in interstate commerce. It is undisputed that the defendant took the pictures
in question.

       This jurisdictional nexus is sufficient to place the statute beyond constitutional
attack, and this Court has so held in a very similar case, United States v. Bausch, 140
F.3d 739 (8th Cir. 1998), cert. denied, 525 U.S. 1072 (1999), involving 18 U.S.C.
§ 2252A(a)(4)(B), which makes it a crime knowingly to possess with the intent to sell
any child pornography that was produced using materials that had been shipped in
interstate commerce. The defendant cites United States v. Morrison, 529 U.S. 598

                                           -3-
(2000), and United States v. Lopez, 514 U.S. 549 (1995), in both of which cases the
Supreme Court invalidated statutes as falling outside the authority conferred upon
Congress by the Commerce Clause. In neither of those cases, however, did the statute
involved contain an express jurisdictional element, requiring the government to prove,
in each case, a concrete connection with interstate commerce. This panel is bound by
the reasoning of Bausch, and we therefore must reject the defendant's Commerce
Clause challenge.

      For these reasons, the judgment of the District Court is affirmed.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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