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                                                                         [PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-14773
                          ________________________

                   D.C. Docket No. 6:13-cr-00032-RBD-TBS-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

LOUIS RUGGIERO,

                                                             Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                  (June 30, 2015)

Before ED CARNES, Chief Judge, COX and GILMAN, ∗ Circuit Judges.

ED CARNES, Chief Judge:

   ∗
     Honorable Ronald Lee Gilman, United States Circuit Judge for the Sixth Circuit,
sitting by designation.
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      Louis Ruggiero pleaded guilty to producing child pornography, in violation

of 18 U.S.C. § 2251(a). As a condition of that plea, he reserved the right to appeal

the district court’s denial of his motion to dismiss the indictment. On appeal, he

contends that § 2251(a), both facially and as applied, is unconstitutional under the

Fifth and Sixth Amendments because it does not require the government to prove

that a defendant knew that his victim was a minor. Ruggiero’s minor premise (the

statute does not require proof that the defendant knew the victim was underage) is

correct, but his major premise (it is constitutionally required to do so) and his

conclusion (therefore it is unconstitutional) are not.

                                  I.    Background

      Ruggiero was 31 years old when he sent 15-year-old K.M. a Facebook

“friend request.” After chatting online for a few weeks, Ruggiero convinced K.M.

to meet him. They met near K.M.’s home, and he drove her to his house, where he

had sex with her for the first time. Over the next few months, Ruggiero persuaded

K.M. to participate in more sexual conduct, including performing oral sex on him

and posing nude on his bed. He used his cell phone camera to take pictures of

K.M. in these and other sexually explicit positions.

      A few months later, responding to an online advertisement, Ruggiero

solicited sex with what he believed to be a 13-year-old girl and her stepfather. It


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turned out that the girl did not exist and her “stepfather” was an undercover officer.

After Ruggiero was arrested, law enforcement agents found the pornographic

photos of 15-year-old K.M. saved on his computer.

       Ruggiero was indicted on three counts of enticing a minor to engage in

sexually explicit conduct in order to produce child pornography, in violation of 18

U.S.C. § 2251(a), one count of attempting to entice a minor to engage in sexual

activity, in violation of 18 U.S.C. § 2422(b), and one count of possession of child

pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). Ruggiero filed a motion

to dismiss the indictment. He argued, among other things, that 18 U.S.C.

§ 2251(a) violates the Fifth and Sixth Amendments because knowledge of the

victim’s age is neither an element of the offense nor available as an affirmative

defense. 1 If knowledge of age were an element or an affirmative defense,

Ruggiero asserted, he would go to trial and introduce evidence that he came to

know K.M. through an adults-only website and she had told him that she was 18

years old or older. The district court ruled that § 2251(a) is constitutional and

denied Ruggiero’s motion to dismiss the indictment.

       Ruggiero eventually pleaded guilty to one count of sexual exploitation of a

minor, in violation of 18 U.S.C. § 2251(a), and one count of attempting to entice a


   1
     That motion also challenged, on similar grounds, the constitutionality of 18 U.S.C.
§ 2422(b). The district court ruled that § 2242(b) is constitutional. As part of his plea
agreement, Ruggiero waived the right to appeal that ruling.
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minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). As a

condition to his guilty plea on the first offense, he reserved the right to appeal the

court’s denial of his motion to dismiss as it pertained to the constitutionality of

§ 2251(a). This is that appeal.

                                   II.   Discussion

      Ruggiero contends that we should reverse his conviction because § 2251(a)

is unconstitutional both on its face and as applied to him in this case. He argues,

among other things, that § 2251(a) violates the Fifth Amendment’s Due Process

Clause “because it eliminates the element of mens rea from a criminal offense

which is not a public welfare offense and which carries a severe penalty,” and

violates the Sixth Amendment’s jury trial guarantee because “it deprives an

accused of the right to have a jury determine the single fact that makes otherwise

legal conduct illegal.” We review de novo challenges to a statute’s

constitutionality, applying a strong presumption of validity. United States v.

Lebowitz, 676 F.3d 1000, 1012 (11th Cir. 2012).

      Section § 2251(a) is the “production” section of a broad regulatory scheme

that prohibits the production, receipt, distribution, and possession of child

pornography. See 18 U.S.C. §§ 2251, 2252, 2252A. It provides in relevant part:

      Any person who employs, uses, persuades, induces, entices, or
      coerces any minor to engage in . . . any sexually explicit conduct for
      the purpose of producing any visual depiction of such conduct . . .
      shall be punished as provided under subsection (e) . . . if that visual
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       depiction was produced or transmitted using materials that have been
       mailed, shipped, or transported in or affecting interstate or foreign
       commerce by any means.

18 U.S.C. § 2251(a).2 On its face and as applied in this case, § 2251(a) requires

only that a defendant arrange for a minor to engage in sexually explicit conduct for

the purpose of creating a visual depiction, and that there be some nexus to

interstate or foreign commerce. 3

       Knowledge of the victim’s age is neither an element of § 2251(a) nor an

affirmative defense to a prosecution for it. United States v. Deverso, 518 F.3d

1250, 1257–58 (11th Cir. 2008); see also United States v. X-Citement Video, Inc.,

513 U.S. 64, 76 n.5 (1994) (stating, in dicta, that “producers may be convicted

under § 2251(a) without proof they had knowledge of age,” and citing a Senate

Conference Committee Report explaining that the deletion of the word

“knowingly” from § 2251 reflected an intent to eliminate knowledge of age as an

element of the crime). The question is whether the absence of a knowledge-of-age

requirement in § 2251(a) violates the Fifth or Sixth Amendment. 4


   2
      The statute sets the age of majority at 18 years old and provides that “[a]ny
individual who violates . . . this section shall be fined . . . and imprisoned not less than 15
years nor more than 30 years.” 18 U.S.C. §§ 2251(e), 2256(1).
   3
     The cell phone Ruggiero used to take photos of K.M. was manufactured in China,
and Ruggiero does not appear to question the foreign commerce nexus. See infra note 8.
   4
     Most constitutional challenges to § 2251(a) have been brought under the First
Amendment, with the argument being that the unavailability of a mistake-of-age defense
renders the statute overbroad and chills protected speech. Those challenges have been
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      Most of Ruggiero’s arguments are styled as facial challenges to the

constitutionality of § 2251(a). We will address those first before turning to his

arguments that § 2251(a) is unconstitutional as applied to him.

                                A.    Facial Challenge

      None of the arguments that Ruggiero makes in support of his contention that

§ 2251(a) is facially unconstitutional can pass the “no set of circumstances” test for

facial challenges. “A facial challenge, as distinguished from an as-applied

challenge, seeks to invalidate a statute or regulation itself.” United States v.

Frandsen, 212 F.3d 1231, 1235 (11th Cir. 2000). It is “the most difficult challenge

to mount successfully” because it requires a defendant to show “that no set of

circumstances exists under which the [law] would be valid.” United States v.

Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100 (1987); see also Frandsen, 212




almost uniformly rejected by courts, including by this Court in Deverso, 518 F.3d at
1258. See United States v. Fletcher, 634 F.3d 395, 404 (7th Cir. 2011); United States v.
Humphrey, 608 F.3d 955, 962 (6th Cir. 2010); United States v. Malloy, 568 F.3d 166,
176 (4th Cir. 2009); United States v. Wilson, 565 F.3d 1059, 1069 (8th Cir. 2009); but
see United States v. U.S. Dist. Court, Cent. Dist. Ca., 858 F.2d 534, 540–42 (9th Cir.
1988) (engrafting a mistake of age defense on § 2251(a) after finding that the statute
would otherwise violate the First Amendment). Only two of our sister circuits have
faced, as we do here, a challenge to § 2251(a) based on the Fifth Amendment’s Due
Process Clause. See United States v. McCloud, 590 F.3d 560, 566–68 (8th Cir. 2009)
(holding that district courts disallowance of a reasonable mistake-of-age defense to
§ 2251(a) charge did not violate the defendant’s due process rights); Malloy, 568 F.3d at
176–77 (same). We have not been able to find any published court of appeals decision
addressing a Sixth Amendment challenge to § 2251(a)’s failure to require knowledge of
the defendant’s age.
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F.3d at 1235 (stating that “no set of circumstances” is the general rule for

evaluating facial challenges in this circuit).

      To succeed on his facial challenge, Ruggiero must convince us that

§ 2251(a) would be unconstitutional even where a producer of child pornography

indisputably knew that his victim was a minor — say, for instance, in a case where

the victim had repeatedly told the defendant that he was fifteen years old, see

United States v. Lebowitz, 676 F.3d 1000, 1006–07 (11th Cir. 2012), or where the

victim was the defendant’s thirteen-year-old stepdaughter, see United States v.

Culver, 598 F.3d 740, 744–45 (11th Cir. 2010), or his eleven-year-old cousin, see

United States v. Kapordelis, 569 F.3d 1291, 1299 (11th Cir. 2009), or his

coworker’s five-year-old son and two-year-old daughter, see United States v.

Grzybowicz, 747 F.3d 1296, 1301 (11th Cir. 2014). Because we cannot be

convinced that application of § 2251(a) would be unconstitutional in those

circumstances, the facial challenge fails.

                             B.     As-Applied Challenge

      We turn now to Ruggiero’s claim that § 2251(a) is unconstitutional as

applied to him. It is settled that § 2251(a) does not require proof that the defendant

knew the victim was a minor. Deverso, 518 F.3d at 1257. Ruggiero concedes that;

indeed, it is a premise of his challenge to the provision. At the same time, he leans

heavily on dicta from United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S.


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Ct. 464 (1994), which is a statutory interpretation decision. The issue in that case

was whether 18 U.S.C. § 2252 — the distribution counterpart to § 2251(a)’s

production prohibition — required proof that the distributor defendant knew that

the performer was a minor. 5 Id. at 66, 115 S. Ct. at 466. The Ninth Circuit Court

of Appeals had held that § 2252 did not require that knowledge and, as a result, it

violated the First Amendment. Id. at 67, 115 S. Ct. at 466–67. The Supreme Court

reversed, but avoided the constitutional question by holding that § 2252 actually

does require proof that the defendant knew the performer was a minor. Id. at 78,

115 S. Ct. at 472.

       In reaching that holding, the X-Citement Video Court made two

observations, both in dicta, that Ruggiero thinks support his claim that § 2251(a) is

unconstitutional. First, the Court observed that “§ 2252 is not a public welfare

offense” but instead is “more akin to the common-law offenses against the state,

the person, property, or public morals, that presume a scienter requirement in the

absence of express contrary intent.” 6 Id. at 71–72, 115 S. Ct. at 468–69 (citation

   5
     Section 2252 prohibits “knowingly” transporting, shipping, receiving, distributing,
or reproducing child pornography. See 18 U.S.C. § 2252.
   6
      Morissette v. United States, 342 U.S. 246, 72 S. Ct. 240 (1952), is the Supreme
Court’s seminal treatment of the public welfare offense doctrine. The Morissette Court
identified two categories of statutory criminal offenses: (1) those steeped in the common
law; and (2) public welfare offenses, which seek social betterment by “heighten[ing] the
duties of those in control of particular industries, trades, properties or activities that affect
public health, safety or welfare,” regardless of the actor’s intent. Id. at 250–56, 72 S. Ct.
at 243–46.
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omitted) (quotation marks omitted). Second, the Court noted that several of its

First Amendment decisions “suggest that a statute completely bereft of a scienter

requirement as to the age of the performers would raise serious constitutional

doubts,” and “[i]t is therefore incumbent [on the Court] to read [§ 2252] to

eliminate those doubts so long as such a reading is not plainly contrary to the intent

of Congress.” Id. at 78, 115 S. Ct. at 472.

       In his unsuccessful attempt to paint constitutional law on a canvas of

statutory construction, Ruggiero argues that § 2251(a), like § 2252, is not a public

welfare offense, and therefore it is unconstitutional for Congress to dispense with a

knowledge-of-age element. Even assuming that premise is correct — that

§ 2251(a) is not a public welfare offense — the conclusion is not. The public-

welfare-offense doctrine has nothing to say about Congress’s authority to enact

strict liability schemes; it is, instead, a tool of statutory interpretation to be used

when the language of the statute is unclear about what mental state, if any, is an

element of the crime. See generally Morissette v. United States, 342 U.S. 246, 72

S. Ct. 240 (1952) (explaining the origins and utility of the public-welfare-offense

doctrine). That is all it is.

       Although a criminal statute originating in common law is generally

construed to include “the ancient requirement of a culpable state of mind,” id. at

250, 72 S. Ct. at 243, the common law recognizes several exceptions to that rule of


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construction. The relevant one is an exception for “sex offenses, such as rape, in

which the victim’s actual age was determinative despite defendant’s reasonable

belief that the girl had reached age of consent.” Id. at 251 n.8, 72 S. Ct. at 244 n.8.

Against that common law backdrop, Congress has enjoyed nearly unfettered

discretion to exclude knowledge from the definition of statutory crimes in

“recognition that young children need special protection against sexual

exploitation.” United States v. Daniels, 685 F.3d 1237, 1248 n. 13 (11th Cir.

2012); see also id. at 1248–49 (“Although there is a general presumption that a

knowing mens rea applies to every element in a statute, cases concerned with the

protection of minors are within a special context, where that presumption is

rebutted.”).

      Nor does the “serious constitutional doubts” dictum from X-Citement Video

support Ruggiero’s position that the absence of a knowledge-of-age requirement in

§ 2251(a) is unconstitutional. The Supreme Court effectively foreclosed that

extrapolation by distinguishing between the distribution prohibited by § 2252 and

the production prohibited by § 2251(a). The Court pointed out that when Congress

amended those two statutes, “the new bill retained the adverb ‘knowingly’ in

§ 2252 while simultaneously deleting the word ‘knowingly’ from § 2251(a).” X-

Citement Video, 513 U.S. at 76, 115 S. Ct. at 472. As the Court explained:

      The difference in congressional intent with respect to § 2251 versus
      § 2252 reflects the reality that producers are more conveniently able
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      to ascertain the age of performers. It thus makes sense to impose the
      risk of error on producers.

Id. at 76 n.5, 115 S. Ct. at 471 n.5. In light of that sharply drawn distinction

between producers (who confront their victims personally) and distributors (who

do not), Ruggiero cannot persuade us that the X-Citement Video Court meant to

imply “serious constitutional doubts” about § 2251(a). See Fletcher, 634 F.3d at

403 (“[T]he production of child pornography may be analogized to those sex

offenses, like statutory rape, that have traditionally been exempted from the

common law presumption of mens rea.”); Gilmour v. Rogerson, 117 F.3d 368, 372

(8th Cir. 1997) (“Unlike most distributors, the sexually exploitive producer deals

directly with the child victim, like the statutory rapist who has traditionally been

denied a mistake-of-age defense.”).

      Ruggiero restates essentially the same argument in different ways, none of

which is convincing. He states, for example, that the application of § 2251(a)

violated his due process rights because the only “morally blameworthy” aspect of

his conduct was K.M.’s age and he thought she was an adult. Setting aside

Ruggiero’s take on morality, the Due Process Clause has rarely concerned itself

with limiting Congress’s “wide latitude . . . to declare an offense and to exclude

elements of knowledge and diligence from its definition.” Lambert v. California,

355 U.S. 225, 228, 78 S. Ct. 240, 242 (1957); see also United States v. Balint, 258

U.S. 250, 252, 42 S. Ct. 301, 302 (1922) (“[The] object[ion] that punishment of a
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person for an act in violation of law when ignorant of the facts making it so, is an

absence of due process of law. . . . [has been] considered and overruled.”).

      The Supreme Court did invalidate a criminal statute under the Due Process

Clause in the Lambert case for failure to require knowledge that the conduct was

prohibited by law. See 355 U.S. at 229–30, 78 S. Ct. at 243–44. That case

involved a city ordinance that imposed a registration requirement on convicted

persons and did not permit evidence that the accused had no knowledge of the

requirement. Id. at 226, 78 S. Ct. 242. The Court emphasized that the “mere

failure to register” was “wholly passive” and “unlike the commission of acts, or the

failure to act under circumstances that should alert the doer to the consequences of

his deed.” Id. at 228, 78 S. Ct. at 243. It was for that reason the statute violated

the defendant’s due process rights. Id. at 228–30, 78 S. Ct. at 242–44.

      The registration statute at issue in Lambert is easily distinguished from the

child pornography production statute at issue in this case. Taking photos of a 15-

year-old girl in sexually explicit positions is “the commission of an act,” and the

failure to verify her age is “the failure to act under circumstances that should alert

the doer to the consequences of his deed.” This case is a far cry from a case, like

Lambert, where “a person, wholly passive and unaware of any wrongdoing, is

brought to the bar of justice for condemnation in a criminal case.” Id. at 228, 78

S. Ct. at 243.


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       Ruggiero was convicted of the kind of exploitive conduct that Congress can

regulate without requiring the government to prove that a defendant knew that his

victim was underage. See United States v. Mozie, 752 F.3d 1271, 1282 (11th Cir.

2014) (stating that, in the context of statutory sex crimes, “federal courts uniformly

have rejected claims that the Constitution requires the government to prove that a

defendant knew that the victim was underage, or that such a defendant has a

constitutional right to the defense that he made a reasonable mistake as to the

victim’s age”) (alteration omitted) (quotation marks omitted). “[T]he use of

children as subjects of pornographic materials is harmful to the physiological,

emotional, and mental health of the child” and the prevention of it “constitutes a

government objective of surpassing importance.” New York v. Ferber, 458 U.S.

747, 757–58, 102 S. Ct. 3348, 3355 (1982). As the Eighth Circuit has explained in

discussing the absence of an affirmative mistake-of-age defense for charges of

producing child pornography:

      [N]ot only is the [government’s] interest in banning the sexual
      exploitation of children very strong, but the mistake-of-age defense is
      directly contrary to that interest. . . . [T]he defense will typically be
      proved by evidence that the minor was a willing, perhaps deceitful
      participant in producing pornographic films and photos. The
      [government] may legitimately protect children from self-destructive
      decisions reflecting the youthful poor judgment that makes them, in
      the eyes of the law, beneath the age of consent. One can argue that
      sexually sophisticated [adolescents] do not need or even do not
      deserve such protection, but that is a legislative question.



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Gilmour, 117 F.3d at 372 (quotation marks omitted). 7

       Ruggiero also argues that because the photos of K.M. were not taken for

any commercial purpose, § 2251(a) cannot be constitutionally applied to him. 8

Though the argument is stated in due process terms, the real questions seem to be

whether Congress intended § 2251(a) to reach non-commercial producers of child

pornography like Ruggiero (a statutory interpretation question) and, if so, whether

it can constitutionally do so (a Commerce Clause question). The answers are yes

and yes.

       Ruggiero selectively cites bits and pieces of legislative history in an effort to

show that Congress intended for § 2251(a) to curtail only commercial child

pornography. About that, two things. First, the statutory language plainly does not

limit § 2251(a) to commercial conduct. And where statutory language is plain,

there is no room on the interpretation field for legislative history. United States v.

   7
      Gilmour rejected a First Amendment challenge to an Iowa state child pornography
statute that is nearly identical to § 2251(a). 117 F.3d at 372.
   8
      The only item that had traveled in interstate or foreign commerce in this case was
the China-manufactured cell phone he used to take the images, but Ruggiero does not
appear to contend that § 2251(a) is unconstitutional as applied to him for lack of a
sufficient nexus to foreign commerce. If he does, we reject that contention. See Gonzalez
v. Raich, 545 U.S. 1, 9, 17, 125 S. Ct. 2195, 2201, 2205 (2005) (holding that Congress
may regulate purely local intrastate activities if they are part of an “economic ‘class of
activities’ that have a substantial effect on interstate commerce”); see also United States
v. Forrest, 429 F.3d 73, 76–79 (4th Cir. 2005) (applying the Raich rationale to uphold a
defendant’s convictions for production and possession of child pornography that itself
had never crossed state lines, but that was produced using cameras that were
manufactured outside the state); United States v. Jeronimo-Bautista, 425 F.3d 1266, 1273
(10th Cir. 2005) (same).
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Gonzales, 520 U.S. 1, 6, 117 S. Ct. 1032, 1035 (1997) (“Given [a] straightforward

statutory command, there is no reason to resort to legislative history.”); CBS Inc. v.

PrimeTime 24 Joint Venture, 245 F.3d 1217, 1224 (11th Cir. 2001) (“Our

decisions . . . mandate[e] that ambiguity in statutory language be shown before a

court delves into legislative history.”); Harris v. Garner, 216 F.3d 970, 972 (11th

Cir. 2000) (en banc) (“We begin our construction of [a statute] where courts should

always begin the process of legislative interpretation, and where they often should

end it as well, which is with the words of the statutory provision.”); United States

v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998) (en banc) (“Where the language

Congress chose to express its intent is clear and unambiguous, that is as far as we

go to ascertain its intent because we must presume that Congress said what it

meant and meant what it said.”).

      Even if the statutory language were not plain, the legislative history of

§ 2251(a) actually proves the opposite of Ruggiero’s position. As originally

enacted, § 2251(a) provided that a defendant could be convicted only if he

produced child pornography “for pecuniary profit.” The Protection of Children

Against Sexual Exploitation Act of 1977, Pub. L. No. 95–225, § 2(a), 92 Stat. 7

(1978) (enacting 18 U.S.C. § 2253(3), later redesignated as 18 U.S.C. § 2255(3),

which defined “producing” as “producing, directing, manufacturing, issuing,

publishing, or advertising, for pecuniary profit”) (emphasis added). In 1984,


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however, Congress amended the provision to delete the phrase “for pecuniary

profit.” Child Protection Act of 1984, § 5(a)(5), Pub. L. No. 98-292, 98 Stat. 204

(1984). The House Report that accompanied the amendment explained that

“[s]ince the harm to the child exists whether or not those who initiate or carry out

the schemes are motivated by profit, the Subcommittee found a need to expand the

coverage of the Act by deleting the commercial purpose requirement.” H.R. Rep.

No. 98-536, at 2–3 (1983), reprinted in 1984 U.S.C.C.A.N. 492, 493–94.

      And it is clear that Congress can regulate the interstate or foreign

transportation of goods, including child pornography, regardless of whether there

was a commercial purpose for it. Cf. United States v. 12,200–Ft. Reels of Super

8MM. Film, 413 U.S. 123, 125, 93 S. Ct. 2665, 2667 (1973) (holding that

Congress can constitutionally prohibit the importation of obscene material from

abroad, even if it is imported for personal use rather than for commercial

distribution); Cleveland v. United States, 329 U.S. 14, 18, 67 S. Ct. 13, 15 (1946)

(upholding the Mann Act convictions of Mormon men who had arranged for

women to travel to Utah to join them in polygamous marriages, on the grounds that

the Mann Act, “while primarily aimed at the use of interstate commerce for the

purposes of commercialized sex, is not restricted to that end”). Our sister circuits




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have been of one voice in rejecting Commerce Clause challenges to § 2251(a),9

and we join the chorus.

       As a fallback argument, Ruggiero asserts that even if the government is not

required to prove he knew the victim’s age, the Constitution affords him the right

to introduce evidence that he made a reasonable mistake regarding her age. That

fallback argument fails. Because knowledge of age is not an element of the crime,

evidence of a lack of knowledge is irrelevant. And there is no right to introduce

irrelevant evidence. Instead, “it is axiomatic that a defendant’s right to present a

full defense does not entitle him to place before the jury irrelevant or otherwise

inadmissible evidence.” United States v. Anderson, 872 F.2d 1508, 1519 (11th

Cir. 1989); see also McCloud, 590 F.3d at 566 (rejecting defendant’s contention

that it violated due process not to recognize an affirmative defense of lack of

knowledge of age and holding that mistake-of-age evidence is irrelevant). The



   9
     See, e.g., United States v. Malloy, 568 F.3d 166, 179–81 (4th Cir. 2009) (rejecting
an as-applied challenge to § 2251(a) based on the argument that Congress cannot regulate
the production of child pornography that has a “‘null effect’ on the ‘national market for
child pornography’”); United States v. Morales-De Jesús, 372 F.3d 6, 14–17 (1st Cir.
2004) (rejecting both a facial and as-applied challenge to § 2251(a) based on the
argument that Congress cannot regulate intrastate child pornography created exclusively
for personal use); United States v. Sirois, 87 F.3d 34, 40 (2d Cir. 1996) (rejecting the
argument that § 2251(a) is constitutionally suspect unless a “commercial purpose”
requirement is engrafted onto it); see also United States v. McCalla, 545 F.3d 750, 755
(9th Cir. 2008) (“Given Congress’s broad interest in preventing sexual exploitation of
children, it is eminently rational that Congress would seek to regulate intrastate
production of pornography even where there is no evidence that it was created for
commercial purposes.”).
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Fifth Amendment does not require courts to entertain a mistake-of-age-defense

under § 2251(a).

      Neither does the Sixth Amendment. The guarantee of a trial by jury

requires, in relevant part, that a guilty verdict rest upon the “determination that the

defendant is guilty of every element of the crime with which he is charged, beyond

a reasonable doubt.” United States v. Gaudin, 515 U.S. 506, 510, 115 S. Ct. 2310,

2313 (1995). It does not require that the jury be allowed to hear evidence that is

not relevant to any element of the crime or an affirmative defense.

       In a final Hail Mary, Ruggiero contends that § 2251(a) is unconstitutionally

vague. A statute is void for vagueness under the Fifth Amendment’s Due Process

Clause if it “fails to provide a person of ordinary intelligence fair notice of what is

prohibited, or is so standardless that it authorizes or encourages seriously

discriminatory enforcement.” United States v. Williams, 553 U.S. 285, 304, 128

S. Ct. 1830, 1845 (2008). We have no doubt that a person of ordinary intelligence

would know, upon reading § 2251(a), that it prohibits persuading a 15-year-old to

engage in sexually explicit conduct for the purpose of photographing her with a

cell phone camera that has traveled in foreign commerce. And we have no reason

to think that § 2251(a) authorizes or encourages seriously discriminatory

enforcement. Ruggiero’s vagueness challenge, like his other challenges to

§ 2251(a), flutters feebly and falls to the ground.


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    Case: 13-14773   Date Filed: 06/30/2015   Page: 19 of 19


AFFIRMED.




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