Opinion
Case No. 2:02-CR-00302 PGC.
July 2, 2004
ORDER DENYING MOTION TO DISMISS
This child pornography prosecution is before the court on defendant Brent Lee Croxford's motion to dismiss. Croxford advances three arguments why the statutes charged in the indictment are facially unconstitutional and one argument why they are unconstitutional as applied. None of these arguments are persuasive, so the court DENIES the motion to dismiss.
I. BACKGROUND
On November 21, 2001 a case worker, Lori Thomassen, from the Division of Family Services called detective Craig Ellertson of the South Jordan Police Department. Thomassen advised Ellertson that a young girl, whom the court will refer to as "C.C.," had disclosed that her adoptive father, defendant Croxford, was taking photographs of her. At the time, C.C. was approximately eight or nine years old. Shortly after this telephone conversation, Ellertson, along with Thomassen and another officer, went to the Croxford residence to investigate the matter. Mr. and Mrs. Croxford allowed Ellertson and Thomassen to interview C.C. alone.
See Tr. of Hr'g on Mot. to Suppress, Aug. 8 and 9, 2002 at 8.
See id. at 12.
See id. at 9-11.
During the interview, C.C. told Ellertson and Thomassen that Croxford was taking nude photos of her with a digital camera. C.C. described the sexually explicit poses and the things that Croxford asked her to do in the photographs. C.C. also explained that she thought that he was putting them on the Internet and that he had taken similar photos of another young girl who had previously been a foster child in the Croxford home.
See id. at 12-13.
See id. at 13-14.
After Ellertson and Thomassen had interviewed C.C., Ellertson requested that Croxford accompany him to the police station for questioning. During an interview with Ellertson, Croxford explained that he had taken "bathtub" photographs of C.C. Croxford also confirmed that he owned a Sony digital camera, was an Internet provider for certain customers, and that he repaired and worked on computers in his home. At the conclusion of the interview, in response to questions about taking sexually explicit pictures of C.C., Croxford did not deny that he had taken such pictures, and stated "I meant to delete all of those" and "You should take me out and shoot me."
Id. at 20.
Id. at 20-21.
Ellertson then obtained a search warrant for Croxford's home. During the execution of the search warrant, officers discovered several computer diskettes in a file cabinet that contained sexually explicit pictures of C.C. They also examined Croxford's computer equipment and discovered that Croxford had downloaded thousands of pornographic images, including child pornography. Neither the computer equipment, the computer diskettes, nor the Sony digital camera were manufactured within the State of Utah.
See id. at 26.
See Gov't's Mem. in Opp. to Def.'s Mot. to Dismiss (#47-1), 4.
On May 16, 2002, Croxford was indicted by a federal grand jury and charged with violating two child pornography statutes. Count I charged him with violating 18 U.S.C. § 2251(a) in that he
did employ, use, persuade, induce, entice, and coerce a minor, C.C., to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, which visual depiction was produced using materials that have been mailed, shipped and transported in interstate and foreign commerce.
Indictment of May 16, 2002 (#1-1) at 1.
The indictment also charged him with violating 18 U.S.C. § 2252A(a)(5)(B). Count II alleged that he "did knowingly possess materials, containing one or more images of child pornography, that were produced using materials that had been mailed, shipped, or transported in interstate and foreign commerce."
Id. at 2.
Subsequently, Croxford moved to dismiss the indictment for lack of jurisdiction. He claims that the underlying statutes are unconstitutional. 18 U.S.C. § 2251(a) prohibits the manufacture of child pornography:
Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in . . . any sexually explicit conduct for the purpose of producing any visual depiction of such conduct, shall be punished . . . [a] if such person knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce or mailed, [b] 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 [c] if such visual depiction has actually been transported in interstate or foreign commerce or mailed.18 U.S.C. § 2252A(a)(5)(B) prohibits the mere possession of child pornography:
Any person who knowingly possesses any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography [a] that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, or [b] that was produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer.
In support of his argument that these statutes are unconstitutional, Croxford offers four grounds: (1) the statutes exceed Congress's authority under the Commerce clause; (2) they are unconstitutional as applied to this prosecution; (3) they violate Equal Protection; and (4) they are unconstitutionally vague. Each argument will be addressed in turn.
II. CONSTITUTIONALITY UNDER THE COMMERCE CLAUSE
Croxford's first challenge to the underlying statutes is that they exceed Congress's authority under the Commerce Clause. The basis for this claim is a well-known trilogy of Supreme Court cases that have modified Congress's Commerce Clause authority over the past decade: United States v. Lopez, United States v. Morrison, and Jones v. United States. Although the Tenth Circuit has not yet considered the constitutionality of the statutes at issue here in light of this trilogy, other circuits have. Six circuits (the First, Second, Third, Fourth, Fifth, and Eighth) have upheld such statutes. No court of which this court is aware has struck down the statutes as facially unconstitutional, although two circuits (the Sixth and Ninth) and even another case in this district, have dismissed cases on "as applied" challenges. Having reviewed these authorities, the court is compelled to conclude that neither § 2251(a) nor 2252A(a)(5)(B) exceeds Congress's legislative authority under the Commerce Clause. Lopez made clear that Congress's authority under the Commere Clause extends to three types of activities:
514 U.S. 549 (1995).
529 U.S. 598 (2000).
529 U.S. 848 (2000).
See United States v. Morales-de Jesus, 2004 U.S. App. LEXIS 11325 (1st Cir. June 9, 2004).
See United States v. Holston, 343 F.3d 83 (2nd Cir. 2003).
See United States v. Galo, 239 F.3d 572 (3rd Cir. 2001); United States v. Rodia, 194 F.3d 465 (3rd Cir. 1999), cert. denied, 529 U.S. 1131 (2000).
See United States v. Buculei, 262 F.3d 322 (4th Cir. 2001), cert. denied, 535 U.S. 963 (2002).
See United States v. Kallestad, 236 F.3d 225 (5th Cir. 2000).
See United States v. Hampton, 260 F.3d 832 (8th Cir. 2001), cert. denied, 535 U.S. 1058 (2002).
See United States v. Corp, 236 F.3d 325 (6th Cir. 2001).
See United States v. McCoy, 323 F.3d 1114 (9th Cir. 2003).
United States v. Jeronimo-Bautista, 2004 U.S. Dist. LEXIS 10472 (May 19, 2004).
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, i.e., those activities that substantially affect interstate commerce.
Lopez, 514 U.S. at 558-59 (internal citations omitted).
Although the court is not aware of any court that has addressed the constitutional question under the second category, Croxford argues that the statutes at issue here can only be sustained under the second category. Accordingly, the court will consider whether § 2251(a) and § 2252A(a)(5)(B) are valid under either the second or the third categories.
A. Things in Interstate Commerce
Croxford argues that since the statutes at issue seek to regulate the "movement of the materials `in interstate or foreign commerce,' the breadth of the second category is implicated in this jurisdictional challenge." While the court agrees that the statutes at issue here fit in the second category, it disagrees that the "thing in commerce" that Congress is trying to regulate are the materials that move in commerce. Rather, the "thing in commerce" that Congress has regulated with these laws is child pornography. The court concludes that such regulation is constitutional.
Under category two, Congress has authority to regulate "things in interstate commerce." In United States v. Haney, the Tenth Circuit upheld a federal statute that prohibited the mere possession (intrastate) of a machinegun, concluding that was a "thing in interstate commerce." The Haney court relied on an earlier decision, United States v. Wilks, that had concluded that machineguns are "by their nature are `a commodity . . . transferred across state lines for profit by business entities.'" The Wilks court continued, "The interstate flow of machineguns `not only has a substantial effect on interstate commerce; it is interstate commerce.' [The underlying statute] regulates this `extensive, intricate, and definitively national market for machineguns' by prohibiting the . . . possession of machineguns. . . . As such, [it] represents Congressional regulation of an item bound up with interstate attributes."
Id. at 558.
264 F.3d 1161 (10th Cir. 2001), cert. denied, 536 U.S. 907 (2002).
Id. at 1168.
58 F.3d 1518 (10th Cir. 1995).
Id. at 1521.
Id.
In light of Haney, this court now concludes that, like machineguns, child pornography is a "thing in commerce" that is subject to Congressional regulation under the second Lopez category. As will be discussed more fully below, child pornography is the object of a thriving national black market. Like machineguns, child pornography is "subject to a substantial, illegal, interstate traffic which is difficult for the states to stop." Inasmuch as the Tenth Circuit has validated a statute that forbade the mere, intrastate possession of a machinegun under the second Lopez category, this court can only conclude that the circuit would uphold the regulation of child pornography through a similar prohibition.
Craig M. Bradley, Federalism and the Federal Criminal Law, 55 HASTINGS L.J. 573, 603 (2004) (noting the legal similarities between statutes regulating child pornography and those regulating machineguns).
Admittedly, no circuit court has yet upheld the child pornography laws under the second Lopez category, but perhaps this omission is simply due to the fact that courts frequently, and without explanation, limit their review of the second category to "instrumentalities of commerce," which presumably would exclude child pornography, without discussing whether pornography is a thing in commerce. For these reasons, the court concludes that child pornography is a "thing in commerce" and that the statutes at issue here are valid regulations of child pornography under the second Lopez category.
See, e.g., Morales-de Jesus, 2004 U.S. App. LEXIS 11325, *9 (stating without discussion that § 2251 does not regulate "instrumentalities of interstate commerce); Rodia, 194 F.3d 465 (limiting discussion of category two to "instrumentalities of inter state commerce").
B. Activities That Substantially Affect Interstate Commerce
The more common analysis of the child pornography statutes places them in category three. Lopez, Morrison, and subsequent cases have looked at four factors to determine whether an activity substantially affects interstate commerce:
(1) whether the statute regulates economic or commercial activity; (2) whether the statute contains an `express jurisdictional element' that limits the reach of its provisions; (3) whether Congress made findings regarding the regulated activity's impact on interstate commerce; and (4) whether `the link between [the regulated activity] and a substantial effect on interstate commerce was attenuated."
Morales-De Jesus, 2004 U.S. App. LEXIS 11325.
1. Economic Activity
The first consideration is whether the statutes at issue regulate an economic activity. In contrast with the conduct at issue in Morrison and Lopez, the Supreme Court has already recognized an interstate market for child pornography. Assuming a national child pornography market exists, there can be little disagreement that production of child pornography is economic in nature. "When a person produces for [his] own consumption a product that is traded in an interstate market, his conduct is economic in character."
See Ashcroft v. Free Speech Coalition, 535 U.S. 234, 249 (2002); New York v. Ferber, 458 U.S. 747, 759 (1982); Osborne v. Ohio, 495 U.S. 103, 110 (1990).
See, e.g., Buculei, 262 F.3d at 329.
United States v. Kallestad, 236 F.3d 225, 228 (5th Cir. 2000) (upholding the constitutionality of 18 U.S.C. § 2252(a)(4)(B)).
The tougher question, however, is whether prohibition of mere possession of child pornography regulates an economic activity. The First Circuit has specifically held that it does: "By outlawing the purely intrastate possession of child pornography . . . Congress can curb the nationwide demand for these materials." Furthermore, under existing Supreme Court precedent, a necessary component of regulating an active pornography market is to "dry up" the market by targeting consumers as well as producers.
United States v. Robinson, 137 F.3d 652, 656 (1st Cir. 1998), cited approvingly by Morales-De Jesus, LEXIS 11325 at *26, n. 6.
See Ferber, 458 U.S. at 759; Osborne, 495 U.S. at 110.
Finally, the Tenth Circuit in Haney interpreted Lopez to mean that "a statute would be sustained if it was `an essential part of a larger regulation of an economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.'" The court went on to uphold a statute banning simple possession of a machinegun, finding that "[b]ecause of the ease of moving weapons across state and national lines, Congress has rationally concluded that it cannot rely on the states to control the market in these devices by themselves." Like machineguns, "the production of pornographic materials is a low-profile, clandestine industry" that can only effectively be regulated if the end user is also penalized. Accordingly, the court finds that prohibition of both production and possession regulates an economic activity, namely the interstate market for pornography.
Haney, 264 F.3d at 1168.
Id. 1169.
See Ferber, 458 U.S. at 759.
See Osborne, 495 U.S. at 110.
2. Jurisdictional Hook
The second Lopez/Morrison factor is whether the statutes at issue have a jurisdictional hook. Both statutes at issue here have such a jurisdictional hook, namely that the materials used to create or contain the pornography must have been "produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce." The court agrees with Croxford and numerous circuit courts that have concluded that this jurisdictional hook is inadequate to confer federal jurisdiction over the child pornography. However, the court agrees with the several circuits that have held that the omission of a jurisdictional hook automatically makes a law unconstitutional. As the First Circuit recently explained:
See, e.g., Rodia, 194 F.3d at 471-73.
If the jurisdictional element bore sole responsibility for establishing that the impact of the regulated on interstate commerce is substantial or direct, the language of § 2251(a) likely would not be up to the task. The jurisdictional element focuses on things such as film, cameras, videotapes, and recorders moving in interstate commerce, which are then used to produce child pornography. As a matter of logic, this Commerce Clause premise has the kind of flaw so worrisome to the Supreme Court in Lopez and Morrison — it could justify federalizing a vast array of crimes now prosecuted by the states, solely because the criminal used "materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means." Moreover, the congressional findings about the link between the regulated activity (production of child pornography) and interstate commerce did not claim that the market for child pornography was increasing the demand for film. The focus, instead, was on a different link — the relationship between local production of child pornography and the national market for the child pornography itself." However, the disconnect between the interstate commerce activity described in the jurisdictional element of § 2251(a) and the interstate commerce activity (the national market for child pornography) that prompted Congress to criminalize the production of child pornography is not fatal to the constitutionality of the statute. Indeed, even a complete absence of a jurisdictional element in the text of a statute is not fatal to a statute challenged on Commerce Clause grounds.
Morales-De Jesus, 2004 U.S. App. LEXIS 11325, *20-*22.
Moreover, as the D.C. Circuit has stated in another context, "The absence of such a jurisdictional element simply means that courts must determine independently whether the statute regulates activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce." Thus, under Lopez and Morrison, a jurisdictional hook may invoke federal jurisdiction over an otherwise non-federal issue, but neither its presence nor its absence is ultimately dispositive of jurisdiction.
Rancho Viejo, LLC v. Norton, 323 F.3d 1062, 1068 (D.C. Cir. 2003).
3. Legislative history
The legislative history has been fully developed in other cases, so it is not necessary to cite that history here, other than to state this court's adherence to those other circuits that have concluded that "there is no question that Congress has made explicit findings about the extensive national market in child pornography and the need to diminish that national market by prohibiting . . . child pornography at the local level."
See, e.g., Morales-De Jesus, 2004 U.S. App. LEXIS 11325, *14; Rodia, 194 F.3d at 480-81.
The court also recognizes Croxford's argument that much of the legislative history is outdated, hearkening back to the late 1970s especially in light of studies in the late 1980s that suggested that child pornography had virtually been eliminated. However, Croxford's own argument against the early legislative history undermines his own position. The main authorities for Croxford's position are various reports from the late 1980s that predate the wide-spread internet access and the explosion of child pornography in recent years. Contrary to Croxford's position, the court suspects that the current market for child pornography is even more far reaching and poses an even greater threat to children and society than it did at any time over the last three decades.
See John Quigley, Child Pornography and the Right to Privacy, 43 Fla. L. Rev. 347, 359-60 nn. 118-19 (1991).
4. Attenuation
The final consideration is whether the effect of pornography on interstate commerce is too attenuated to find that pornography substantially affects interstate commerce. With pornography creation, the issue seems clear cut. "[B]y outlawing the purely local production of child pornography, Congress can curb the nationwide supply for these materials." Just as garden-variety wheat impacts the national wheat market, it follows that "home-grown" pornography must also substantially impact the national market for pornography.
Morales-De Jesus, 2004 U.S. App. LEXIS 11325, *28-*29.
See Wickard v. Filburn, 317 U.S. 111 (1942).
Rodia, 194 F.3d at 477.
Regarding simple possession, the Supreme Court has made clear that even prohibition of simple possession affects the national market. In upholding a state statute against a First Amendment challenge, the Court stated:
[T]he distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled. Indeed, there is no serious contention that the [state] legislature was unjustified in believing that it is difficult, if not impossible, to halt the exploitation of children by pursuing only those who produce the photographs and movies. While the production of pornographic materials is a low-profile, clandestine industry, the need to market the resulting products requires a visible apparatus of distribution. The most expeditious if not the only practical method of law enforcement may be to dry up the market for this material.
Ferber, 458 U.S. at 759.
The Court later upheld a state ban on simple possession, stating that this effort to "dry up" the pornography market applied at "all levels in the distribution chain," including the end consumer. The Court stated, "much of the child pornography market has been driven underground; as a result, it is now difficult, if not impossible, to solve the child pornography problem by only attacking production and distribution, . . . [making] it necessary to proscribe the possession of this material."
Osborne, 495 U.S. at 110.
Id. at 110-11.
While these cases protect the states' interest in regulating pornography under their police power, they demonstrate the close connection between a prohibition on possession and interstate commerce. Like the states, Congress has the incentive and the authority to criminalize pornography, although its incentive and authority lie in its power under the Commerce Clause rather than in a federal police power. These cases make clear that one critical way to regulate the growing interstate market is to penalize possession. As the First Circuit has stated, "We believe that such possession, `through repetition elsewhere,' helps to create and sustain a market for sexually explicit materials depicting minors."
Robinson, 137 F.3d at 656.
Accordingly, the court finds that the statutes at issue here do not exceed Congress's authority under the Commerce Clause.
III. CONSTITUTIONALITY AS APPLIED
Even though the statutes are constitutional on their face, Croxford argues that they are unconstitutional as applied to him. Such a challenge has been successful in a couple of circuits and even this district. However, the court is not persuaded that the prosecution before it is unconstitutional.
See, e.g., McCoy, 323 F.3d 1114; Corp, 236 F.3d 325.
See Jeronimo-Bautista, 2004 U.S. Dist. LEXIS 10372.
The Supreme Court in Lopez recognized that when "`a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.'" The First Circuit recently articulated an excellent standard for when pornography prosecutions might be unconstitutional as applied. In United States v. Morales-de Jesus, the court identified two types of "as-applied" challenges. In the first type, the defendant might argue that his conduct does not impact commerce "because the perpetrator does not intend to sell or distribute the visual depiction." The court reasoned that such an argument would fail "because Congress's power to criminalize this conduct pursuant to the Commerce Clause turns on the economic nature of the class of conduct defined in the statute rather than the economic facts (such as sale or distribution) of a single case."
Lopez, 514 U.S. at 558 (quoting Maryland v. Wirtz, 392 U.S. 183, 197 n. 27 (1968)).
Morales-De Jesus, 2004 U.S. App. LEXIS 11325, *33.
Id.
In contrast, other challenges might successfully "focus on facts other than the economic facts of the particular case." The court explained,
Id.
These facts could include the age of the minor, the relationship between the defendant and the minor, the nature of the allegedly sexually explicit conduct, and the nature of the visual depiction of that conduct. In a given prosecution, some of these facts could raise constitutional privacy concerns or concerns that the conduct at issue, although covered by the language of the statute, was not within the sphere of activity identified by Congress as the basis for its exercise of power under the Commerce Clause.
Id.
Essentially, this language suggests that if the facts of a certain case differentiate the alleged pornography from the pornographic market Congress has sought to regulate, an as-applied challenge could prevail.
This analysis helps explain why nude pictures of a drunken mother and daughter or an almost-eighteen-year-old victim who consented might be unconstitutional as applied. Morales-de Jesus, also clarifies an issue that compelled an opposite result in United States v. Jeronimo-Bautista, which was recently issued by this court. In Jeronimo-Bautista, the court struck down a § 2251(a) prosecution under an "as-applied" challenge. There the defendants had taken sexually explicit pictures of an unconscious victim. The court reasoned that since the pictures were taken without any intent to introduce them into the national pornography market, there was no connection to interstate commerce.
McCoy, 323 F.3d 1114.
Corp, 236 F.3d 325.
2004 U.S. Dist. LEXIS 10372 (May 20, 2004).
However persuasive this opinion may be on its facts, it was decided prior to Morales-de Jesus, which clarifies the role of intent in an as-applied challenge. In Morales-de Jesus, the first circuit makes clear that the lack of intent to introduce pornography into the market does not remove it from the sphere of Congressional regulation: "It does not matter that the defendant had no intention of placing that visual depiction in the national market." Pictures are what they are, regardless of whether the manufacturers intended to sell them. Rather, it is "defendants' non-predatory, non-exploitative conduct" in creating pornography that could take their actions "outside the purview of the statute and the Congressional concerns that prompted its passage pursuant to the Commerce Clause."
Morales-De Jesus, 2004 U.S. App. LEXIS 11325, *41.
Id.
Still, regardless of how other cases are distinguished, the court knows of no precedent that would sustain an "as-applied" challenge to the facts of this case. Here we have the intentional exploitation of two children by a man who had custody over them. The victims believed he had distributed the photos to others, and he apparently had the means to do so, inasmuch as he was an internet service provider. To the extent Croxford tries to argue that the photos he took and possessed were not part of the nationwide market Congress was trying to regulate, his argument is undermined by the fact that he had thousands of electronic images on his computer. These images suggest that he actively transacted in this market. Whether the pictures of his daughter were "home-grown" for purely personal consumption or produced for profit, it is clear they were part of the interstate market for pornography. Having found the statute to be a proper exercise of Congress's authority, this court cannot conclude that the prosecution of Brent Lee Croxford is an unconstitutional application thereof.
IV. EQUAL PROTECTION CLAUSE
Having resolved Croxford's arguments under the Commerce Clause, the court now turns to his Equal Protection argument. The crux of this argument is that there is no rational basis for discriminating between pornographers who assemble their own equipment intrastate and those who use equipment that has traveled between states. The government correctly argues, however, that there is a rational basis for the distinction. The basis for the jurisdictional hook was a well-intentioned (albeit unnecessary and even futile) attempt to invoke federal jurisdiction. Accordingly, Equal Protection offers no basis for striking the statute.
V. VAGUENESS
Croxford's final argument is that the statutes are unconstitutionally vague because they do not define what "materials" would bring a defendant within the scope of the law. This argument is without merit.
The Tenth Circuit has stated, "The void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a matter that does not encourage arbitrary and discriminatory enforcement." The court cannot imagine any scenario under these statutes might prohibit that ordinary people would not realize were covered by the statutes.
United States v. Gaudreau, 860 F.2d 357, 359 (10th Cir. 1988).
Croxford suggests prosecutions based on linoleum or lightbulbs in the room where the pictures were taken could be "materials" under the terms of this statute. In fact, the court agrees that linoleum and lightbulbs theoretically could be "materials" under the terms of this statute. However, should a jury convict based on linoleum or lightbulbs that traveled in interstate commerce, the questionable ruling would not be that these items were materials but that they were used in the creation of the pornography. For Croxford's scenarios to have any weight, a jury would first have to be convinced that the lightsource or flooring material in the room were somehow used in the production of the pornography. Indeed, the statute makes it very clear what materials can sustain a conviction: only those that are used to create the pornography. Accordingly, this argument also fails.
VI. CONCLUSION
In short, it is clear that Congress was attempting to restrict a nationwide market in child pornography by restricting both the creation and possession of such filth. Both § 2251(a) and § 2252A(a)(5)(B) are valid exercises of Congress's authority under the Commere Clause, and this prosecution does not invalidate the constitutionality of either. Croxford's Equal Protection and vagueness arguments are both without merit. Accordingly, the motion to dismiss is DENIED.
SO ORDERED.