United States of America v. Lonny J. Andrews

*The Honorab le Ann Aldrich, United States District Judge for the
No rthern D istrict of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0292P (6th Cir.)
File Name: 04a0292p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LONNY J. ANDREWS,
Defendant-Appellant.
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No. 03-5088
Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
No. 02-00105—Karl S. Forester, Chief District Judge.
Submitted: March 10, 2004
Decided and Filed: September 2, 2004
Before: BOGGS, Chief Judge; DAUGHTREY, Circuit
Judge; ALDRICH, District Judge.*
_________________
COUNSEL
ON BRIEF: Richard R. Melville, PRATT & MELVILLE,
Lexington, Kentucky, for Appellant. Charles P. Wisdom, Jr.,
2 United States v. Andrews No. 03-5088
Mark A. Wohlander, John Patrick Grant, ASSISTANT
UNITED STATES ATTORNEYS, Lexington, Kentucky, for
Appellee.
_________________
OPINION
_________________
MARTHA CRAIG DAUGHTREY, Circuit Judge. The
defendant, Lonny Andrews, was convicted on 27 counts of a
28-count indictment that charged him with the production,
receipt, and possession of child pornography, in violation of
18 U.S.C. §§2251(b), 2252(a)(2), and 2252(a)(4)(B)
respectively. Under count 28, he was ordered to forfeit items
and equipment utilized in committing those offenses. On
appeal, he challenges only his convictions on the first two
counts, contending that §2251(b) is unconstitutional as
applied to him because the government failed to establish a
sufficient nexus between his alleged activities and interstate
or foreign commerce, thereby depriving the district court of
jurisdiction to try the case. He also argues that the district
court erred in permitting the introduction of certain
photographs. We find no basis on which to overturn the
jury’s verdict and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The record in this case establishes that defendant Andrews
lived in a four-bedroom trailer in Nicholasville, Kentucky,
with his wife, his seven-year-old step-daughter, and the
couple’s two-year-old daughter. In May 2002, his two nieces,
aged 12 and 16, came to Andrews’s home from Alabama to
spend the summer. Apparently, the 16-year-old left the house
with the defendant’s wife at various times, leaving Andrews
in the house with the other children. On one occasion, he
took advantage of their absence to show the seven-year-old
and the 12-year-old a “video of naked people” engaged in
sexual relations. After the two children watched the video,

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No. 03-5088 United States v. Andrews 3
Andrews told them that he wanted them to do similar things
with him and forced his step-daughter to perform oral sex on
him. At another time, Andrews showed the girls a picture of
a “naked teenager” from his computer’s “picture gallery,”
telling them that he had received the picture from a friend.
Andrews had purchased a small “pen camera” at Wal-Mart
that he could use to produce photographs on his computer
screen. Andrews taught his niece and step-daughter how to
use the pen camera and, on two occasions, he told them to
take pictures of each other’s “privates” while they were
naked. The first time, Andrews watched his niece take
pictures of his step-daughter. After the girls took the pictures
of each other, Andrews loaded the pictures into his
computer’s “picture gallery.” These pictures could also be
uploaded onto the Internet, although there was no evidence
presented at trial that Andrews actually did so. Andrews
frightened the two children into silence by threatening that “if
[they] ever told on him that he – that he would go to jail and
it would be all [their] fault and that he would beat [them].”
Nevertheless, the younger of the two nieces apparently
confided in her older sister, who then told Andrews’s wife,
Stacy, that the 12-year-old had something to tell her. From
her ensuing conversation with the 12-year-old, Stacy
Andrews learned that her husband was making the two
children take sexually explicit photos of each other with the
pen camera. She contacted the local sheriff’s office and filed
a petition for an emergency protective order on behalf of the
children. The order was granted and, as a result of its
directive, Lonny Andrews was removed from the residence.
After the defendant’s departure, the sheriff searched the
trailer with Stacy’s consent and seized various items,
including the defendant’s computer, some compact disks,
hard disk drives, and the pen camera – all of which had been
manufactured or acquired from out-of-state or abroad. During
the search, a detective examined Andrews’s computer there
on the premises, opened some electronic files, and found
4 United States v. Andrews No. 03-5088
“visual depictions,” each of which was described in the
indictment as involving “a minor female engaged in the
lascivious exhibition of her genitals or pubic area.” The hard
drive on Andrews’s computer also contained 107 photographs
of his niece and his step-daughter, mostly of the girls’ genitals
and buttocks, that Andrews had directed the girls to take of
each other using his pen camera.
The detective found the pen camera attached to Andrews’s
computer. Nearby, he also found a compact disk containing
over 200 pornographic images of unidentified prepubescent
girls, defined as under the age of 12. Research verified that
these images were available on the Internet and could be
downloaded onto a disk using the disk “burner” found among
the defendant’s computer equipment. They appeared to have
been downloaded from the Internet in December 1999 and
January 2000. Once, in the fall of 2000, almost two years
before the events at issue here took place, Stacy Andrews was
using the computer and happened upon an image of a young,
nude child. According to her testimony at trial, she told her
husband to remove the image from the computer or she would
“throw the computer out in the front yard.”
Lonny Andrews testified at trial, denying that he had
enticed his niece or his step-daughter to use his pen camera to
take the pornographic photos. He also denied uploading their
pictures onto the computer or the internet, or downloading the
pornographic images of prepubescent girls onto the compact
disk . Because the file on the compact disk was labeled
“Jimmy,” he argued that a friend of his named Jim must have
downloaded the images while he was staying at the Andrews
house. The jury nevertheless convicted the defendant on all
27 counts of the indictment, presumably finding that his
testimony was not credible, and the district court imposed
consecutive sentences totaling 405 years, pursuant to
sentencing guidelines mandated by Congress as part of the
Sex Crimes Against Children Prevention Act, and enhanced
by a finding that Andrews had obstructed justice by testifying
falsely at trial. The defendant now appeals only his

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No. 03-5088 United States v. Andrews 5
convictions for the production of child pornography in
violation of 18 U.S.C. § 2251(b), as set out in counts one and
two of the indictment.
DISCUSSION
At the time of Andrews’s trial, § 2251(b) provided as
follows:
Any parent, legal guardian, or person having custody or
control of a minor who knowingly permits such minor to
engage in, or to assist any other person to engage in,
sexually explicit conduct for the purpose of producing
any visual depiction of such conduct shall be punished as
provided under subsection (d) of this section, if such
parent, legal guardian, or person knows or has reason to
know that such visual depiction will be transported in
interstate or foreign commerce or mailed, if that visual
depiction was produced using materials that have
been mailed, shipped, or transported in interstate or
foreign commerce by any means, including by
computer, or if such visual depiction has actually been
transported in interstate or foreign commerce or mailed
(emphasis added).
Federal jurisdiction over the offenses charged in counts one
and two was based on the fact that Andrews purchased his
computer from New Jersey and that the pen camera was made
in China. Andrews does not argue that § 2251(b) is facially
unconstitutional, instead contending that it is unconstitutional
under the Commerce Clause as applied to him because his
activities did not substantially relate to interstate commerce.
Questions of federal jurisdiction are reviewed de novo by this
court. See United States v. Brown, 276 F.3d 211, 214 (6th
Cir. 2002), cert. denied, 535 U.S. 1079 (2002).
Andrews relies almost exclusively on our opinion in United
States v. Corp, 236 F.3d 325 (6th Cir. 2001), to support his
argument that § 2251(b) is unconstitutional as applied to the
6 United States v. Andrews No. 03-5088
facts of this case. Corp was a 23-year-old defendant who was
prosecuted under 18 U.S.C. §2252(a)(4)(B) for possessing
child pornography, consisting of photographs of his 17-year-
old girlfriend and his 26-year-old wife engaged in consensual
sexual activity. Id. at 326. Section 2252(a)(4)(B) provides
that an offender will be punished if he or she
. . . knowingly possesses 1 or more books, magazines,
periodicals, films, video tapes, or other matter which
contain any visual depiction that has been mailed, or has
been shipped or transported in interstate or foreign
commerce, or which was produced using materials which
have been mailed or so shipped or transported, by any
means including by computer, if--
(i) the producing of such visual depiction involves
the use of a minor engaging in sexually explicit
conduct; and
(ii) such visual depiction is of such conduct[.]
Federal jurisdiction in Corp was alleged to arise from the
fact that the photographic paper on which the pornography
was produced had been manufactured out-of-state,
specifically in Germany. Corp, 236 F.3d at 326. Corp argued
that the statue was unconstitutional on its face and as applied
in his case because it exceeded Congress’s Commerce Clause
powers. Id. at 327. In reviewing this claim, the Corp court
applied the framework developed by the Supreme Court in
United States v. Lopez, 514 U.S. 549 (1995) (striking down
the Gun-Free School Zones Act because Congress exceeded
its power under the Commerce Clause), and in United States
v. Morrison, 529 U.S. 598 (2000) (striking down the civil
remedy provision of the Violence Against Women Act as
unconstitutional under the Commerce Clause), to hold that
§2252(a)(4)(B) was facially constitutional. See Corp, 236
F.3d at 331-332. On the other hand, the court also held that
because the defendant’s activity was not substantially related
to interstate commerce, the statute was unconstitutional as

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No. 03-5088 United States v. Andrews 7
applied to the facts in his case. But in doing so, the court
emphasized that those facts were unique and that Corp’s
conduct was not the type of activity that Congress had
intended to prohibit:
Under the undisputed circumstances here, Corp was not
involved, nor intended to be involved, in the distribution
or sharing with others of the pictures in question.
Sauntman [the seventeen-year-old] was not an "exploited
child" nor a victim in any real and practical sense in this
case. In the other cases that have addressed this issue, the
courts were faced with the much more threatening
situation where an adult was taking advantage of a much
younger child or using the imagery for abusive or
semi-commercial purposes . . . .
Corp was not alleged to be a pedophile nor was he
alleged to have been illegally sexually involved with
minors other than Sauntman, who was merely months
away from reaching majority. Clearly, Corp was not the
typical offender feared by Congress that would become
addicted to pornography and perpetuate the industry via
interstate connections. Under these circumstances, the
government has failed to make a showing that Corp's sort
of activity would substantially affect interstate
commerce.
Corp, 236 F.3d at 332-33.
Moreover, the Corp opinion contains a suggestion that in
future cases, courts should undertake the following
examination in order to ensure that the jurisdictional reach of
the statute is properly circumscribed:
Was the activity in this case related to explicit and
graphic pictures of children engaged in sexual activity,
particularly children about fourteen years of age or
under, for commercial or exploitive purposes? Were
there multiple children so pictured? Were the children
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1As the Second Circuit noted in Un ited States v. Holston, 343 F.3d
83, 88-90 (2nd C ir. 2003), Congress has made legislative findings
documenting that “there is an extensive co mmercial m arket in child
pornography and that much of the m aterial that feeds this m arket is
‘homegrown,’ that is, produced by amateur photographers . . . . Because
much of the child pornography that concerned Congress is homegrown,
untraceable, and enters the national market surreptitiously , we conclude
that Congress, in an attempt to halt interstate trafficking, can prohibit local
production that feeds the national market and stim ulates demand, as this
production sub stantially affects interstate comm erce.”
otherwise sexually abused? Was there a record that
defendant repeatedly engaged in such conduct or other
sexually abusive conduct with children? Did defendant
move from place to place, or state to state, and repeatedly
engage in production of such pictures of children? These
questions are relevant to a determination on a
case-by-case basis about whether the activity involved in
a certain case had a substantial effect on commerce.
Id. at 333.
Although not all the Corp questions are pertinent here, an
inquiry along the lines it suggests produces a stark distinction
between the facts in Corp and the facts in this case. Andrews
was clearly involved in exactly the type of child-exploitive
and abusive behavior that Congress sought to prohibit in
§ 2251(b), using computer equipment that had been shipped
in interstate commerce. Andrews first forced two children
aged 12 and under to watch sexually explicit photographs that
presumably had been transmitted over interstate lines. He
then compelled them to engage in and to photograph similar
sexually explicit behavior, undoubtedly for the purpose of
transmitting those photographs in the same manner.1 The
children were vulnerable not only because of their age but
also because they were under his care and control at the time,
and their cooperation was clearly the result of coercion and
outright threats to their safety. In addition, Andrews was in
possession of several hundred pornographic photographs

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No. 03-5088 United States v. Andrews 9
2Although the defendant did not object to the introduction of Exhibit
4, he later moved for a judgment of acquittal based on the fact that “[t]he
dates of downloading of some of the PenCam pictures on July the 11th
and July 14th were after the defendant had been vacated from the
residence, and the testimony was that he hadn’t been back.” The co urt
denied the motion.
depicting unidentified children who appeared to be under the
age of 12. As early as two years before his arrest on these
charges, his wife had seen the pornographic image of a child
on his computer.
Given the scope of the evidence in the record, we have no
doubt that the government established a sufficient nexus
between the activity described in the first two counts of the
indictment and interstate commerce to establish jurisdiction
in this case. We therefore find no merit to the defendant’s
argument that § 2251(b) was unconstitutional as applied to
that activity.
Nor do we find reversible error in connection with the
admission into evidence of Exhibit 4, which consisted of the
sexually explicit photos of Andrews’s seven-year-old step-
daughter and his 12-year-old niece. Because Andrews did not
object to the introduction of the photos at trial, we review the
admission of the photos only for plain error.2 See United
States v. Cowart, 90 F.3d 154, 157 (6th Cir. 1996); FED. R.
EVID. 103(d) (“Nothing in this rule precludes taking notice of
plain errors affecting substantial rights although they were not
brought to the attention of the court.”). He complains that the
detective who seized his computer tampered with the photos,
based on the fact that the dates on some of the photographs
had been altered when the files were examined at his home.
However, there is no other evidence to suggest tampering, and
the detective’s testimony that he had not altered the
photographs could have been discredited on cross-
examination but was not. The jury clearly found credible the
detective’s testimony that no alteration had occurred. Without
a timely objection and the production of some evidence to
10 United States v. Andrews No. 03-5088
suggest that the photographs were unreliable, the district court
cannot be charged with committing error in failing to
intervene sua sponte to prevent their introduction into
evidence, or in declining to order a new trial on the same
basis.
CONCLUSION
For the reasons set out above, we AFFIRM the judgment of
the district court in all respects.

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