Friday, January 20, 2012

Eleventh Circuit decides interstate commerce proof debate, disavows Tenth Circuit opinion

The Eleventh Circuit has weighed in on a developing circuit split - specifically whether the prosecution must prove that a defendant's particular copy of an image of child pornography was obtained over the Internet and therefore traveled in interstate commerce. Finding that the "particular images" approach was an inaccurate interpretation of federal law, the court affirmed the judgement because the original images had been created in another state. United States v. Schaff, 454 Fed. Appx. 880 (11th Cir. 2012).

The defendant had attempted to delete all images of child pornography from his computer, but the images were recovered from unallocated space. Other images were obtained in thumbs.db, pagefile.sys, and hyberfil.sys files. There was no evidence presented that showed that the defendant had downloaded the images from the Internet, and therefore, no proof that his particular images had been obtained through interstate commerce.

The First, Third, and Fifth Circuits have held that the defendant's use of the Internet is enough to meet the interstate commerce requirement, and further proof regarding the specific images is unnecessary. The Tenth Circuit, on the other hand, found that evidence must demonstrate that the particular files were transferred through interstate commerce (United States v. Schaefer, 501 F.3d 1197 (10th Cir. 2007)). The "particular files" requirement is distinct from the original files. Therefore, if a neighbor had given the defendant the files on a CD, the requirement would not be met.

The Eleventh Circuit refused to adopt the Shaefer opinion, finding that the defendant's Internet use, coupled with the fact that the images had been produced in a different state, was sufficient for establishing the interstate commerce requirement.

UPDATE: The Tenth Circuit has since reversed its holding on this subject in Schaefer. Click here for more information.

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