In United States v. Salva-Morales, 660 F.3d 72 (2011), released today by the First Circuit, the court analyzed two important issues: (1) whether a defendant must have actual knowledge of child pornography and (2) how to prove interstate or foreign commerce. A total of 176 images of child pornography were found on the defendant's two computers.
Salva-Morales did not testify, but several witnesses claimed he was not the sole user of the computer. A fornesics examine testified that "one hard drive indicated that twenty-two different users had saved files to it and that it was impossible to tell conclusively from the forensic data on the drives who had saved the pornographic files." The government, however, presented evidence to show that he was often alone in his business when the files were accessed. The court acknowledged that the evidence in this case was not as strong as is typically, but the case was nonetheless sufficient.
The question that the court struggled with was jurisdiction. According to statute, "The matter containing the visual depiction described above has either to have been (1) “mailed, or ... shipped or transported in interstate or foreign commerce,” or (2) “produced using materials which have been mailed or so shipped or transported, by any means including by computer....” 18 U.S.C. § 2252(a)(4). There was no great evidence to prove the files were transmitted through the Internet, though Kazaa was installed in the computer. The court noted "that the defendant need not know of the nexus so long as it exists."
The interesting argument in the case came from the government's backup argument on jurisdiction. Because the hard drives containing the images were both manufactured in Singapore, they suggested that copying images to them or from one to the other satisfied the transportation in foreign commerce requirement. The court acknowledged this argument, but refused to rule on it because the jurisdictional issue had already been decided.
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