Federal Prosecution of Intrastate Production of CP Does Not Violate Commerce Clause

US v. Humphrey, No. 15-4182 (10th Cir. 1/18/17, published): The Tenth Circuit affirms its prior precedent holding that 18 U.S.C. 2251(a) (prohibiting production of child pornography) applies to the intrastate production of child pornography. Mr. Humphrey abused his girlfriend's daughter, and documented the abuse on his laptop computer and digital camera. There was no evidence that he transmitted any images or video over the internet or shared them with anyone else. In his plea in federal court, he admitted using a digital camera that had traveled in interstate commerce and transmitting the video to his computer using an SD card that had also traveled in interstate commerce. The Court affirmed its holding in US v. Jeronimo-Bautista, 425 F.3d 1266 (10th Cir. 2005), that applying section 2251(a) in this situation does not violate the Commerce Clause. Chief Justice Roberts' concurrence in National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566 (2012), does not require revisiting Jeronimo-Bautista. NFIB held that Congress could not force individuals to participate in commercial activity. However, the case affirmed that Congress could regulate individuals' intrastate activity that had a substantial affect on interstate commerce, even if only when the activities were aggregated with others' similar activities. Here, Humphrey actively produced child pornography. Thus, regulating his activity did not violate the Commerce Clause.