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U.S. Constitution
See other U.S. Constitution Articles

Title: Judge Torruella calls on courts to “reevaluate” Commerce Clause decisions
Source: [None]
URL Source: [None]
Published: Feb 17, 2015
Author: Jonathan Adler
Post Date: 2015-02-17 16:15:05 by tpaine
Keywords: None
Views: 11190
Comments: 36

Judge Torruella calls on courts to “reevaluate” Commerce Clause decisions

The constitutional power to regulate “commerce . . . among the several states” continues to serve as a broad catch-all basis for federal authority over intrastate activity. Federal statutes routinely assert federal jurisdiction over run-of-the-mill crimes based upon any connection to interstate commerce, no matter how tenuous. Courts, for their part, have been extremely permissive, allowing federal prosecution on the barest showing of a connection to commerce.

Not all judges are happy with these developments, nor do all judges believe the courts’ permissive approach is consistent with recent Supreme Court decisions, including NFIB v. Sebelius. One such judge is Judge Juan Toruella of the U.S. Court of Appeals for the First Circuit. In United States v. Joubert, involving a federal sex crime prosecution, Judge Toruella wrote a separate concurring opinion expressing reservations about the scope of the federal commerce power as it is currently understood and applied in federal court.

Here is what Judge Toruella wrote:

I join the court’s opinion in full but write separately to note my disagreement with the state of our Commerce Clause jurisprudence.

It seems counterintuitive that interstate commerce is affected when Joubert purchases a VHS videotape in New Hampshire, records on the VHS videotape in New Hampshire, and neither sells nor attempts to sell the VHS videotape outside of New Hampshire. Indeed, the only argument in support of a connection to interstate commerce is that, in aggregate, this type of behavior has an effect on interstate commerce. This borders on the farcical, as the evidence suggests that the content of the videotape was made exclusively for Joubert’s own personal use. Any commonsense understanding of “interstate commerce” excludes the conduct at issue here.

Yet, as the court correctly notes, and Joubert himself concedes, this court and most (if not all) of the other circuits have found this connection perfectly acceptable, and thus constitutional. . . . This “link” to interstate commerce, which is tenuous at best, also effectively gives the federal government unlimited jurisdiction, since there is very little in today’s society that, when aggregated, would have no impact on interstate commerce. We have put aside common sense in order to federalize conduct which we believe needs to be punished.

Let there be no doubt: I am in full agreement that the behavior Joubert was convicted of must be punished, and punished harshly. This punishment, however, should be meted out by the state under its plenary police power, and not by the federal government with its limited jurisdictional reach. [FN: This is not a situation where if the federal government did not have jurisdiction, the crime would go unpunished. The investigation began with police in York, Maine, and it continued as a joint state/federal task force. I have little doubt that had the FBI not been involved and had not brought these federal charges, state prosecutors would have brought charges.] . . .

Recent Supreme Court cases suggest a push in this direction. See, e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2591 (2012) (“Although the [Commerce] Clause gives Congress authority to legislate . . . , it does not license the exercise of any great substantive and independent power[s] beyond those specifically enumerated. Instead, the Clause is merely a declaration . . . that the means of carrying into execution those [powers] otherwise granted are included in the grant.” (second and third alterations in the original) (internal citations and quotation marks omitted)); . . . Given this trend of narrowing the reach of the Commerce Clause, I believe this court should reevaluate its precedents and lead the return to a more faithful reading of the term “interstate commerce.”

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Begin Trace Mode for Comment # 32.

#1. To: tpaine, nolu chan, Vicomte13 (#0)

In United States v. Joubert, involving a federal sex crime prosecution, Judge Toruella wrote a separate concurring opinion expressing reservations about the scope of the federal commerce power as it is currently understood and applied in federal court.

The Founders never conceived of any kind of federal criminal justice system that could punish pervs. The realm of criminal justice was dominated by the States, almost exclusively.

In addition, commerce is not smuggling or trade in banned goods. Commerce is properly conceived as legal trade operations, not the operations of criminal elements and perverts. For this reason, the tobacco and alcohol industries are commerce because they are established in law and regulation but the new marijuana industry is not commerce as it remains illegal under federal law and all but a few states.

Tooconservative  posted on  2015-02-18   5:25:29 ET  Reply   Untrace   Trace   Private Reply  


#5. To: TooConservative, tpaine, Vicomte13 (#1)

The Founders never conceived of any kind of federal criminal justice system that could punish pervs. The realm of criminal justice was dominated by the States, almost exclusively.

Correct. Originally, Federal criminal jurisdiction extended over treason. Crimes occurring in States were under State jurisdiction. That said, the expanded government is not going away.

nolu chan  posted on  2015-02-18   19:57:04 ET  Reply   Untrace   Trace   Private Reply  


#6. To: nolu chan, misterwhite, y'all (#5)

Originally, Federal criminal jurisdiction extended over treason. Crimes occurring in States were under State jurisdiction.

According to court documents, he did transport the VHS tape across state lines. Meaning the federal authorities had the authority to get involved.-- misterwhite

As you see, misterwhite differs.. Perhaps you can get him to explain his reasoning.

He's too chickenshit to debate me anymore..

tpaine  posted on  2015-02-18   20:15:22 ET  Reply   Untrace   Trace   Private Reply  


#7. To: tpaine, misterwhite (#6)

[misterwhite] According to court documents, he did transport the VHS tape across state lines. Meaning the federal authorities had the authority to get involved.-- misterwhite

[tpaine] As you see, misterwhite differs. Perhaps you can get him to explain his reasoning.

In order to reply, the actual statute is necessary, along with making the Opinion of the Court available.

media.ca1.uscourts.gov/pdf.opinions/14-1259P-01A.pdf

The complete Opinion of the Court and the Concurring Opinion of Judge Torruella are at the link.

The law in question is here.

SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN - 18 U.S.C. § 2252 (2012)

§2252. Certain activities relating to material involving the sexual exploitation of minors

(a) Any person who—

(1) knowingly transports or ships using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means including by computer or mails, any visual depiction, if—

(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and

(B) such visual depiction is of such conduct;

[snip]

I saw no indication of how he transported or shipped by means or facility of interstate commerce. The video was made in one state and discovered much later in another state. How it made the trip is up to conjecture. Where is the proof beyond a reasonable doubt that it was by means or facility of interstate commerce? Carrying a VHS tape across state lines, in itself, is not a crime and does not invoke federal jurisdiction. This case appears to contain a good deal of bootstrapping.

The law itself is unconstitutional if interstate or foreign commerce is not a required element of the crime.

You may want to review it. I find the defense of the search warrant probable cause to be strained (at 7-12), and it looked more like reasonable suspicion. The admission of uncharged child molestation evidence appears questionable (at 12-16).

At 11, a farcical claim regarding what was described as the described evidence justifying the search warrant:

The affidavit's only photographing allegations are of photographing at athletic events, at the beach, or similar settings. This argument misses the mark completely. To start with, this argument is not a challenge to the nexus with the location, but rather a challenge to the specification of an object of the search.

Even allowed as such, the argument fails because photographs of any type of any of the suspected victims would provide evidence of the crimes specified. Even otherwise innocuous pictures of Joubert and his accusers would be relevant (albeit insufficient) evidence for building a case that the alleged abuse actually occurred because such pictures would preclude the possibility that Joubert never knew nor was in contact with the accusers. See Fed. R. Evid. 401 ("Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in

-11-

determining the action."). It therefore does not matter that the affidavit contained no allegations of child pornography.

If photographs at the beach are "relevant [] evidence for building a case that the alleged abuse actually occurred," would a Mt. Everest of such pictures provide sufficient evidence? Would showing beyond a doubt that Joubert knew his accusers prove the charges? This is like a wish sandwich.

If the "affidavit contained no allegations of child pornography," what crime were they investigating, and what evidence of that crime were they searching for?

I am afraid I can't really help you get a response from misterwhite. A few months ago, misterwhite took exception to my dissent to his claims here. All the people, including misterwhite enjoy the right of freedom of association, or non-association.

nolu chan  posted on  2015-02-18   23:55:19 ET  Reply   Untrace   Trace   Private Reply  


#8. To: nolu chan (#7)

"The video was made in one state and discovered much later in another state. How it made the trip is up to conjecture."

True. And it's up to a jury to determine if he was one one who transported it across state lines. But the feds had probable cause to charge him.

You seems to think that a jury must find him guilty of interstate transportation first before the feds can even charge him. Ummm. That's not how it works.

"I find the defense of the search warrant probable cause to be strained (at 7-12), and it looked more like reasonable suspicion.

If the jury agrees with you, any evidence obtained by that warrant will be thrown out.

"A few months ago, misterwhite took exception to my dissent to his claims here."

And this is how you respond -- by whining about it in another thread? Next time, address my statement point by point and try to refute it ... if you can. Don't cry about it 3 months later.

misterwhite  posted on  2015-02-19   10:01:18 ET  Reply   Untrace   Trace   Private Reply  


#9. To: misterwhite (#8)

True. And it's up to a jury to determine if he was one one who transported it across state lines. But the feds had probable cause to charge him.

You seems to think that a jury must find him guilty of interstate transportation first before the feds can even charge him. Ummm. That's not how it works.

That is incorrect.

The Court must find an alleged act of interstate or foreign commerce to find that the Court has jurisdiction to hear the case. No alleged act of interstate commerce equals no subject matter jurisdiction. It is a legal question that is not considered by the jury at all.

The text of the statute makes clear that an act of interstate or foreign commerce is an integral part of the offense. It is a crucial element to establish Federal jurisdiction. The Court must find sufficient facts alleged which, if true, would prove each element of the offense.

All matters of law are decided by the Court. Jurisdiction must be pleaded in every case, and it is decided before a jury is ever selected.

nolu chan  posted on  2015-02-19   13:05:53 ET  Reply   Untrace   Trace   Private Reply  


#10. To: nolu chan (#9)

"The text of the statute makes clear that an act of interstate or foreign commerce is an integral part of the offense. It is a crucial element to establish Federal jurisdiction. The Court must find sufficient facts alleged which, if true, would prove each element of the offense."

Well, according to you, "The video was made in one state and discovered much later in another state."

Isn't that sufficient probable cause to get the feds involved?

misterwhite  posted on  2015-02-19   13:24:34 ET  Reply   Untrace   Trace   Private Reply  


#11. To: misterwhite (#10)

Well, according to you, "The video was made in one state and discovered much later in another state."

Isn't that sufficient probable cause to get the feds involved?

Usually that probable cause thingee is needed before the search and seizure to obtain the warrant.

Do you claim that they can they can perform a general search for whatever, find a video as evidence, and use said evidence not described in the affidavit, of a crime not described in the affidavit, to provide the probable cause for the completed search?

nolu chan  posted on  2015-02-21   19:52:15 ET  Reply   Untrace   Trace   Private Reply  


#13. To: nolu chan (#11)

"Usually that probable cause thingee is needed before ..."

Usually? So even you admit sometimes it's not needed before.

Well, this is one of those times I guess.

misterwhite  posted on  2015-02-22   9:17:23 ET  Reply   Untrace   Trace   Private Reply  


#14. To: misterwhite (#13)

Usually? So even you admit sometimes it's not needed before.

Well, this is one of those times I guess.

I can play that game. Are you admitting they were granted a warrant without demonstrating probable cause? It was just one of those times?

nolu chan  posted on  2015-02-22   12:45:57 ET  Reply   Untrace   Trace   Private Reply  


#18. To: nolu chan (#14)

"Are you admitting they were granted a warrant without demonstrating probable cause?"

Not I. You were the one who said "usually".

See my post #17. Now explain to me why you think the police were looking for something else and "found" the VHS tape.

misterwhite  posted on  2015-02-22   13:48:00 ET  Reply   Untrace   Trace   Private Reply  


#21. To: misterwhite (#18)

[nolu chan #12] Usually that probable cause thingee is needed before the search and seizure to obtain the warrant.

[mister white #13] Usually? So even you admit sometimes it's not needed before.

[nolu chan #14] Are you admitting they were granted a warrant without demonstrating probable cause?"

[misterwhite #18] Not I. You were the one who said "usually".

Usually, a warrant is needed. Not with exigent circumstances. That does not apply in this case. They needed to demonstrate probable cause. Or they needed the justice system to invoke the scumbag exception.

[misterwhite #18] See my post #17. Now explain to me why you think the police were looking for something else and "found" the VHS tape.

The police were not looking for anything in particular. It was a fishing expedition. There was no probable cause that a VHS tape was there, or had ever been there. There was nothing but speculation that any evidence searched for ever existed. No one witness gave information that they had ever seen child pornograpic images or saw such matter being made. As close as it came was the alleged seeing of an adult magazine like Playboy.

The property inventory lists 45 boxes of stuff. They took clothing, birth certificates, hockey pucks, tax documents, baseballs, financial records, and the list goes on. You tell me the probable cause to search for a VHS tape of unknown existence, content or location.

nolu chan  posted on  2015-02-24   3:26:26 ET  Reply   Untrace   Trace   Private Reply  


#22. To: nolu chan (#21)

We were discussing the nexus to interstate commerce. I said there was sufficient probable cause to get the feds involved. Now you're shifting the probable cause argument to the search warrant itself?

Law enforcement officials learned that Joubert often photographed and videotaped his young charges. His 36-year-old non-biological son reported that Joubert lived at Joubert's parents' home. The search warrant of his parents' home specifically listed "VCR/VHS tapes".

We went over this already. I'm done repeating myself.

misterwhite  posted on  2015-02-24   9:15:53 ET  Reply   Untrace   Trace   Private Reply  


#26. To: misterwhite (#22)

Law enforcement officials learned that Joubert often ... videotaped his young charges.

Nothithstanding your vivid imagination,

The affidavit contains not one statement provided by a person claiming to have witnessed Joubert take a video recording of anyone under any circumstances.

The affidavit contains not one statement provided a person claiming to have witnessed Joubert in possession of a video recording of anyone or anything.

If you know of such a statement, quote it.

His 36-year-old non-biological son reported that Joubert lived at Joubert's parents' home.

Quote the imaginary statement with that claim. SJ made no statement that Robert Joubert lived there.

Det. Ford stated that allegedly, "SJ told me that Robert Joubert is generally sleeping on the couch at 144 Fairmont Ave Manchester, NH." Notably, SJ did not live there and this cannot be of SJ's own, personal knowledge. Hearsay or conjecture at best, from a convicted forger. Additionally, generally crashing on the couch someplace does not establish that place as a residence then, or more importantly, at the time the search warrant was requested. The affidavit notes no effort to verify the conjecture or hearsay of the convicted forger SJ. The Court claimed, "at least one other fact related in the affidavit established Joubert's presence at the Fairmont Avenue property, namely, that the recorded conversation between SJ and Joubert took place there." Presence at a particular time cannot establish residence in a parent's home. If "presence" afforded probable cause to search, it would afford probable cause to search every place Robert Joubert had been present.

The search warrant of his parents' home specifically listed "VCR/VHS tapes".

It also specifically listed only one specific crime, one not mentioned in the affidavit.

nolu chan  posted on  2015-02-25   18:03:00 ET  Reply   Untrace   Trace   Private Reply  


#32. To: nolu chan (#26)

"SJ told me that Robert Joubert is generally sleeping on the couch at 144 Fairmont Ave Manchester, NH." Notably, SJ did not live there ..."

"SJ went on to explain that he recently (within approximately a week) assisted Robert Joubert in moving from an apartment in Lee, NH to 144 Fairmont Ave Manchester, NH. The residence at 144 Fairmont Ave is the owned and occupied by Robert Joubert's parents, Real and Simone Joubert."

He moved from an apartment to his parents' house. But you're telling me he didn't "live" there because he slept on a couch?

He moved there. His computer was there. That's sufficient probable cause to search the place.

misterwhite  posted on  2015-02-26   10:39:10 ET  Reply   Untrace   Trace   Private Reply  


Replies to Comment # 32.

#35. To: misterwhite (#32)

[mw #32] He moved there. His computer was there. That's sufficient probable cause to search the place.

Neither the computer tower nor its components were at the residence. Three weeks before the warrant was sought and granted, SJ had already taken (stolen) the computer tower with hard drive and other components and delivered the fruits of his crime to the police, and these were supposedly in police custody pending a search warrant. Of course, SJ's actions were allegedly independent and at no direction of any law enforcement agency. Cough.

As the computer tower with hard drive and other components were known to be located in custody at the police department, such could not be searched for at the residence.

Residence at a location is not probable cause to search said location. There must have been a crime, and there must be probable cause to believe specified evidence of the crime exists and can be found at the specified location.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

He moved his stuff there. SJ was incapable of asserting, of his own knowledge, that Joubert resided there. The police showed no attempt to verify SJ's conjecture, such as asking the owners.

Det. Ford stated that allegedly, "SJ told me that Robert Joubert is generally sleeping on the couch at 144 Fairmont Ave Manchester, NH."

Unless SJ was tucking Joubert in at night, this is conjecture. SJ was not there to witness whether Joubert slept on the couch. The claim that Joubert "generally" slept on the couch infers that sometimes he slept elsewhere.

The Court claimed, "at least one other fact related in the affidavit established Joubert's presence at the Fairmont Avenue property, namely, that the recorded conversation between SJ and Joubert took place there."

The existence of this statement by the Court indicates that the Court saw reason to give added support to the SJ conjecture. It is a grope to claim presence establishes residence.

nolu chan  posted on  2015-02-26 22:56:31 ET  Reply   Untrace   Trace   Private Reply  


End Trace Mode for Comment # 32.

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