10th Cir. relaxes standard for proving CP sent through interstate commerce

Last month, the Tenth Circuit held en banc that to prove child pornography had been sent through interstate commerce, the prosecution must only show it had happened "at any point in time." United States v. Sturm,   672 F.3d 891 (10th Cir. 2012). This decision reversed Tenth Circuit precedent which held that it must be proven that the defendant received the specific file through interstate commerce. United States v. Schaefer, 501 F.3d 1197 (10th Cir. 2007).

On appeal, a Tenth Circuit panel had found that "the Government was required, but failed, to present evidence that the particular images" crossed state lines when they moved from a defendant's computer to the investigator's computer. Afterward, the court sua sponte granted rehearing en banc.

The full Tenth Circuit held that the term "visual depiction" refers to "the substantive content of an image ... rather than the specific medium or transmission used to view, store, receive, or distribute that content." It "is created once" and not recreated with each transfer or transmission. Thus, once an image has been transmitted through interstate commerce at any point, it satisfies the statute. The court also explained that the government can prove its case by showing that an image "was made in a state and/or country other than the one in which the defendant resides."

Two judges dissented in the case, arguing that "visual depiction" refers to the particular file and that this interpretation alters "the federal-state balance in the prosecution of crimes."

Click here for a discussion of other circuits' approach to this issue.