"Interstate Commerce" Includes U.S. Territories

In United States v. Polanco, (No. 06-1328, June 12, 2006), defendant was traveling on a commercial airline from the Dominican Republic to the Netherlands Antilles, and stopped en route in the Virgin Islands. U.S. Customs found him in possession of CD's and hard drive containing child pornography. He was charged under the Child Pornography Prevention Act of 1996, which encompasses various provisions aimed at interstate and foreign activities. Many of its provisions specifically apply to U.S. territories. However, the statutes charged, 18 U.S.C. sections 2252(a)(1)B) and 2252A(a)(1), apply by their terms only to "interstate or foreign commerce."

The defendant appealed the district court's denial of his motion to dismiss for lack of jurisdiction, but the Third Circuit affirmed. The court rejected the defense argument that by this language, which was narrower than specific language in related provisions, Congress intended not to reach U.S. territories. The court relied on the general definition section (18 U.S.C. s 10), defining interstate commerce to include territories. Recognizing that "inclusio unius est exclusio alterius" is a "key canon of our interpretive arsenal," the court declined to apply that canon "when it produces a patently absurd result," namely the creation of safe havens for child pornography.