Conviction for Possession of Child Porn Reversed for Insufficient Evidence of Interstate Commerce
United States v. Schaefer, No. 06-3080 (10th Cir. Sept. 5, 2007)
An excellent defense win. The 10th reverses and remands for entry of a judgment of acquittal for insufficient evidence of the requisite “movement in interstate commerce,” in a case in which D was convicted of receipt and possession of child pornography, in violation of Sec. 2252(a)(2) and (4)(B). The government failed to present any evidence of where a CD with pornographic images was made or received from, where the porn websites he accessed were based, where the websites’ servers were located, or where his internet provider’s server was housed. Probably a prosecutorial error not to be repeated.
The 10th agrees that it is not enough to assume that an Internet communication necessarily traveled across state lines–an Internet transmission, standing alone, does not satisfy the essential jurisdictional interstate commerce element of the statute. The 10th, through J. Holmes, recognizes that superficially it appears that the 10th is breaking with other circuits that hold that Internet use alone satisfies the jurisdictional element, but states that “the true picture is more complicated.” Nice.
The court also invokes its decision in Wilson, 182 F.3d 737 that the jurisdictional nexus cannot be proved by merely showing that the image on the seized porn is of persons who are not from the state where D possessed the porn–that the images originated out of state. The government must prove that the images on the CD in question moved across state lines. Read also for discussion of Commerce Clause in other statutes.
Ominous Tymkovitch concurrence that may be dead wrong: that the court possibly can “take judicial notice of the ubiquitous intestate nature of the Internet.” Sounds like a rebuttable presumption on an element of the crime–I thought that was forbidden.
An excellent defense win. The 10th reverses and remands for entry of a judgment of acquittal for insufficient evidence of the requisite “movement in interstate commerce,” in a case in which D was convicted of receipt and possession of child pornography, in violation of Sec. 2252(a)(2) and (4)(B). The government failed to present any evidence of where a CD with pornographic images was made or received from, where the porn websites he accessed were based, where the websites’ servers were located, or where his internet provider’s server was housed. Probably a prosecutorial error not to be repeated.
The 10th agrees that it is not enough to assume that an Internet communication necessarily traveled across state lines–an Internet transmission, standing alone, does not satisfy the essential jurisdictional interstate commerce element of the statute. The 10th, through J. Holmes, recognizes that superficially it appears that the 10th is breaking with other circuits that hold that Internet use alone satisfies the jurisdictional element, but states that “the true picture is more complicated.” Nice.
The court also invokes its decision in Wilson, 182 F.3d 737 that the jurisdictional nexus cannot be proved by merely showing that the image on the seized porn is of persons who are not from the state where D possessed the porn–that the images originated out of state. The government must prove that the images on the CD in question moved across state lines. Read also for discussion of Commerce Clause in other statutes.
Ominous Tymkovitch concurrence that may be dead wrong: that the court possibly can “take judicial notice of the ubiquitous intestate nature of the Internet.” Sounds like a rebuttable presumption on an element of the crime–I thought that was forbidden.
posted by Anonymous at 1:51 PM
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