On Appeal from the District Court of the Virgin Islands (Division of St. Thomas and St. John) No. 04-cr-00087 Chief Judge: Honorable Raymond L. Finch.
The opinion of the court was delivered by: Roth, Circuit Judge
Submitted under Third Circuit LAR 34.1(a) on May 12, 2006
BEFORE: FISHER, COWEN and ROTH*fn1, Circuit Judges.
On February 17, 2004, Edwardo Rosario Polanco*fn2 entered St. Thomas, USVI, while en route to the Dominican Republic from the Netherlands Antilles. United States Immigration and Customs Enforcement found Polanco to be in possession of three compact discs and a computer hard drive containing child pornography and arrested Polanco. Polanco was charged with knowingly transporting in interstate and foreign commerce visual depictions of minors engaging in sexually explicit conduct in violation of 18 U.S.C. §§ 2252(a)(1)(B)*fn3 and 2252A(a)(1).*fn4
Polanco filed a motion to dismiss for lack of jurisdiction. The District Court of the Virgin Islands denied the motion. Polanco then entered into a plea agreement that reserved his right to challenge jurisdiction on appeal. Polanco was sentenced to five years imprisonment, five years supervised release, and a $300 special assessment.
The District Court of the Virgin Islands had jurisdiction under 18 U.S.C. § 3231 and 48 U.S.C. § 1612. We have appellate jurisdiction under 28 U.S.C. § 1291, and undertake a plenary review of the District Court's interpretation of a provision of law. Gibbs v. Cross, 160 F.3d 962, 964 (3d Cir. 1998).
Polanco argues that his activities do not fall within the ambit of §§ 2252(a)(1)(B) and 2252A(a)(1) because these statutory provisions do not apply to the Virgin Islands. He bases this claim on the comparative phrasing of different sections of the Child Pornography Prevention Act of 1996, 18 U.S.C. § 2251 et seq. Specifically, Polanco claims that, when Congress wanted provisions of the Act to apply to territories such as the Virgin Islands, it used specific language to so indicate. For example, various provisions of the Act apply to: "interstate or foreign commerce, or in any Territory or Possession of the United States," 18 U.S.C. § 2251(a); "interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States," 18 U.S.C. § 2422(b); or "interstate or foreign commerce, or in any commonwealth, territory or possession of the United States," 18 U.S.C. § 2423(a).
The specific inclusion of territorial jurisdiction in these provisions contrasts with §§ 2252 and 2252A, which apply to only "interstate or foreign commerce." The inference, Polanco urges, is that "Possession or Territory" was deliberatively excluded from §§ 2252 and 2252A by Congress because it did not intend these sections to cover anything other than commerce between the states or foreign commerce.
Polanco's argument must be rejected for two reasons. First, even under Polanco's reading, he is subject to §§ 2252 and 2252A because he was engaged in foreign commerce. Polanco was traveling on a commercial flight from the Netherlands Antilles to the Dominican Republic via the Virgin Islands. On this basis alone, §§ 2252 and 2252A apply to Polanco. The Child Pornography Prevention Act makes very clear that the United States may not be used as a conduit for transporting child pornography between foreign nations.
Second, the term "interstate commerce" in §§ 2252 and 2252A also includes all United States territorial possessions. 18 U.S.C. § 10 defines "interstate commerce" to include commerce between territories and possessions, as well as States:
The term "interstate commerce", as used in this title, includes commerce between one State, Territory, Possession, or the District of Columbia and another State, ...