The opinion of the court was delivered by: Honorable Richard J. Arcara Chief Judge United States District Court
On January 31, 2006, a criminal complaint was filed against the defendant, Charles E. Hawkins, Jr., alleging that he violated 18 U.S.C. § 2423(b) when he traveled in interstate commerce for the purpose of engaging in sexual conduct with a person under 18 years of age. Specifically, the complaint alleged that on or about October 13, 2004, federal authorities learned that the defendant was communicating via internet and telephone with a 13-year old girl. Upon the child's consent, federal authorities assumed her online identity and received numerous internet messages from the defendant. In one online conversation on October 15th, the defendant advised the minor that he was planning to travel to the Buffalo area to meet her. He indicated that he planned to reserve a motel room near the Walden Galleria Mall in Cheektowaga, New York, where he and the minor could spend the night and "love each other." Arrangements were made for the defendant to meet the minor in a Burger King Restaurant in Cheektowaga, New York, on October 16th. While en route from Montana to the intended meeting place, the defendant sent the minor several messages using a mobile device capable of sending text messages. The defendant arrived at the intended meeting place on the date specified, at which point he was arrested by authorities. Further investigation revealed that the defendant had reserved a motel room in his name at a local "Microtel."
On September 28, 2005, the defendant appeared before this Court, waived indictment, and indicated his intent to plead guilty to a one-count Information charging him with traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with a person under 18 years of age, in violation of 18 U.S.C. § 2423(b). The defendant executed a written plea agreement, pursuant to which he admitted that on or about October 15th and 16th of 2004, he traveled from Montana to New York, crossing several state lines, for the purpose of engaging in a "sexual act"*fn1 with a 13-year old girl. The defendant expressed his desire to enter a conditional plea under Fed. R. Evid. 11(a)(2), pursuant to which he reserved his right to move for dismissal of the Information on the ground that the statute at issue is "unconstitutional under the Commerce Clause of the United States Constitution." See Plea Agreement, Dkt. No. 20, at ¶ 23. The plea agreement was signed and filed, but the Court deferred engaging in the Rule 11 plea colloquy pending resolution of the motion to dismiss.
On December 13, 2005, the defendant filed a motion to dismiss the Information. On January 18, 2006, the government filed a response, and on January 24, 2006 the defendant filed a reply. Oral argument was heard on February 1, 2006. For the reasons stated, the motion is denied.
The defendant seeks dismissal of the Information on the ground that 18 U.S.C. § 2423(b) is unconstitutional. Section 2423(b) provides: A person who travels in interstate commerce or travels into the United States, or a United States citizen or an alien admitted for permanent residence in the United States who travels in foreign commerce, for the purpose of engaging in any illicit sexual conduct*fn2 with another person shall be fined under this title or imprisoned not more than 30 years, or both.
Section 2423 was enacted pursuant to Congressional authority under the Commerce Clause of the United States Constitution, which expressly grants Congress the authority "[t]o regulate Commerce with foreign Nations, and among the several States and with the Indian Tribes." U.S. Const. Art. I, § 8, cl. 3. The defendant argues that Congress exceeded its authority under the Commerce Clause when it enacted § 2423(b).
The Supreme Court recently had occasion to discuss the scope of Congress' authority under the Commerce Clause. In United States v. Lopez, 514 U.S. 549 (1995), the Court identified three broad categories of activity that Congress has authority to regulate under its commerce power:
First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce.
Lopez, 514 U.S. at 558-59 (citations omitted). In Lopez, the Supreme Court held that the Gun-Free School Zones Act, 18 U.S.C. § 922(g)(q)(1)(A), which made it a crime to knowingly possess a firearm in a school zone, exceeded Congress' authority under the Commerce Clause because possession of a gun was not economic activity that substantially affected interstate commerce. The Lopez decision concerned only the third category of commerce authority, i.e. the authority to regulate activities that "affect" or "substantially affect" interstate commerce. Id. at 559. The Court identified four factors that were pertinent to the issue of whether an activity "affects" or "substantially affects" interstate commerce. Upon consideration of those factors, the Court concluded that because possession of a gun was in no sense "economic" activity, and the statute lacked any jurisdictional element that would ensure through a case-by-case inquiry that the activity had the requisite nexus with interstate commerce, Congress' exceeded its commerce power when it enacted the statute.
In United States v. Morrison, 529 U.S. 598 (2000), the Court again addressed the scope of Congressional authority under the Commerce Clause. In that case, the Court held that Congress exceeded its authority when it enacted a civil remedy provision to the Violence Against Women Act, which provided a federal civil remedy for victims of gender-motivated violence. As with Lopez, the statute at issue in Morrison was enacted pursuant to Congress' authority under the third category of commerce powers. Morrison, 529 U.S. at 609-10. The Court found that because the activity in question (gender-motivated violence) was not economic in nature and because the statute contained no jurisdictional element to ensure that the activity was sufficiently tied to interstate commerce, the activity did not substantially affect interstate commerce. Id. at 613-14.
Citing Lopez and Morrison, the defendant argues that § 2423(b) is unconstitutional because there is no requirement that the activity at issue "affect the channels of interstate commerce." See Dkt. 32, Def. Reply Br., at 3. Defendant's argument confuses two distinct categories of Congress' commerce power: the power to regulate the use of the channels of interstate commerce (first category), and the power to regulate activities that "affect" or "substantially affect" interstate commerce (third category). At issue in Lopez and Morrison was Congress' authority to regulate purely intrastate activities that nonetheless affect interstate commerce. In contrast, the statute at issue in this case, 18 U.S.C. § 2423(b), was enacted solely pursuant to Congress' authority to regulate "'the use of the interstate transportation routes through which persons and goods move.'" See Morrison, 529 U.S. at 613, n. 5 (quoting United States v. Lankford, 196 F.3d 563, 571-72 (5th Cir. 1999)). Congressional authority to regulate the use of the channels of interstate commerce is plenary, see United States v. Page, 167 F.3d 325, 334-35 (6th Cir. 1999), cert. denied, 528 U.S. 1003, and the Supreme Court has long held that travel across state lines is a form of interstate commerce regardless of whether any commercial activity is involved. See Camps Newfound/ Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 573 (1997) ("[T]he transportation of persons across state lines . . . has long been recognized as a form of 'commerce'"); Heart of ...