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United States v. Densberger

December 15, 2006


The opinion of the court was delivered by: James F. McClure, Jr. United States District Judge



On September 1, 2006, the government filed a one-count information charging Mark Densberger with sexual exploitation of his three sons, in violation of 18 U.S.C. § 2251(b). Contemporaneously with the filing of the information, Densberger agreed to enter a conditional guilty plea under Federal Rule of Criminal Procedure 11(a)(2), maintaining his right to challenge the statute's constitutionality.

On October 3, 2006, Densberger waived indictment and entered a conditional guilty plea. The same day Densberger filed a motion to dismiss, arguing that 18 U.S.C. § 2251 is an invalid exercise of congressional power under the Commerce Clause, both facially and as applied in this case. On November 1, 2006, Densberger filed his brief in support of this motion. Opposing and reply briefs have been filed. Now, for the following reasons, we will deny Densberger's motion.


The facts of this case are relatively simple and not in dispute. In May of 2004, defendant was charged with the rape of one of his three adopted sons. At that same time, a search warrant was executed on defendant's home in Milton, Pennsylvania. The result of the search was the seizure of several videotapes that depicted defendant and his three adopted sons in sexually explicit contact. Thereafter, he was charged in Pennsylvania state court with one count of possession of child pornography and three counts of incest, in addition to the original rape charge. On November 16, 2004, defendant entered a plea of no contest to the three counts of incest. On August 9, 2005, defendant was sentenced to three to nine years. The remaining counts were nolle prossed.

At some point during the state proceedings the federal government joined in the investigation. On September 1, 2006, the United States filed a plea agreement and a one-count information charging defendant with sexual exploitation of children, in violation of 18 U.S.C. § 2251(b).


The United States Constitution delegates to Congress the power "[t]o regulate Commerce . . . among the several States." Art. I, § 8, cl. 3. Now, it is necessary to review the relevant Supreme Court and Third Circuit cases which have interpreted this clause.

I. Supreme Court Cases

In Wickard v. Filburn, 317 U.S. 111 (1942), the Supreme Court upheld the application of the Agricultural Adjustment Act of 1938, which regulated the production and consumption of wheat. The Court found that Congress could regulate a farmer who grew more wheat than his allotted quota, even though the excess wheat was grown solely for his own personal consumption. Id. at 128-29. The Court reasoned that a farmer growing wheat for personal use is commerce, because if he had not grown it for himself, he would have had to purchase it in commerce. Id. at 128-29. Furthermore, despite the fact that the amount this particular farmer grew had a trivial effect on interstate commerce, when this instance is aggregated with other farmers similarly situated, a substantial economic effect on interstate commerce is created. Id. at 127-28.

In United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court struck down the Gun Free School Zones Act, which made it a federal crime for an individual to knowingly possess a firearm within a school zone. In doing so, the Court explained that Congress has the authority to regulate three categories of activity: 1) use of channels of interstate commerce; 2) instrumentalities of interstate commerce; and 3) activities that substantially affect interstate commerce. Id. at 558-59. In striking down the statute, the Court reasoned that unlike the homegrown wheat in Wickard, gun possession was not an economic activity. Id. at 561. Furthermore, the Court rejected the argument that guns in school zones damage the educational environment, which in turn damages productivity, finding this connection to interstate commerce far too attenuated. Id.

Similarly, in United States v. Morrison, 529 U.S. 598 (2000), the Supreme Court struck down a provision in the Violence Against Women Act which created a civil remedy against a person who commits a crime of violence motivated by gender. In doing so, the Court noted four questions that should be raised when deciding Congress' power under the Commerce Clause: 1) Is the prohibited activity commercial or economic in nature?; 2) Is there an express jurisdictional element involving interstate activity which might limit the statute's reach?; 3) Did Congress make findings about the effects of the prohibited conduct on interstate commerce?; and 4) Is the link between the prohibited activity and the effect on interstate commerce attenuated? Id. at 1750-51. First, the court noted that gender- motivated violence was not economic and that the statute contained no jurisdictional element. Id. at 1751. Yet, unlike the statute in Lopez, this statute contained congressional findings regarding the impact of gender-motivated violence on interstate commerce. Id. at 1752. However, the Court nevertheless struck down the statute, determining that the fact that Congress has found that an activity affects interstate commerce "does not necessarily make it so" and again found this connection too attenuated. Id.

Finally, in Gonzales v. Raich, 545 U.S. 1 (2005), the Court upheld the application of the Controlled Substances Act to the intrastate cultivation and use of homegrown marijuana for medicinal purposes. The Court found that marijuana, unlike the gun possession in Lopez and the gender-motivated violence in Morrison, is a popular part of commerce. Id. at 25-26. Furthermore, the Court reiterated that it need not determine whether the regulated activity substantially affects interstate commerce, but only whether Congress had a rational basis for so concluding. Id. at 22. The Court went on to state that prohibiting intrastate possession of an article of commerce is a rational and commonly used means of regulating commerce of that product. Id. at 26. Then, it applied Wickard to ...

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