Fifth Circuit shows forensic acumen in CP case; defendant preserves important question for appeal

In United States v. Pelland, __ F.3d __ (5th Cir. 2012), the Fifth Circuit held that circumstantial evidence could be used to prove the interstate commerce requirement of the federal CP statute. The case is noteworthy for two reasons: (1) the court, in holding as it did, discussed the forensic details accurately and succinctly (which often does note happen) and (2) the defendant preserved an interesting statutory interpretation problem which the court punted on for good reason.

This case is relatively run of the mill in terms of facts - the defendant was caught with child pornography on a computer and a zip drive, and convicted. On appeal, he asserted that the government had failed to produce sufficient evidence to sustain the conviction because they had not proven, for each file, that the interstate commerce requirement was met.

In a thoughtful and technologically accurate opinion, the court held that circumstantial evidence of internet use, coupled with file creation dates, and the defendant's own admissions, were sufficient to sustain the conviction. In the court's holding, which I encourage you to read, it deals with IRC chat rooms, file creation dates with respect to downloading and copying, and a few other technical issues. Their analysis was spot on, and an encouraging sign that the courts are becoming better equipped to handle these issues. Here is a small excerpt:

Pelland's child pornography files—both charged and uncharged—had creation dates ranging from May 2008 to March 31, 2009. As Cummings testified, a creation date can be the date a file was downloaded from the Internet or the date it was transferred from another device. Pelland contends that the creation dates reflect the dates on which he transferred pre-existing files onto the thumb drive and desktop, not the dates on which they were originally downloaded. The jury could have reasonably concluded, however, that Pelland would not have transferred the files in a piecemeal fashion on many separate dates, and that Internet downloading on separate dates was more plausible.

If, as Pelland urges, creation dates reflected the dates that pre-existing files were transferred (and not download dates), none of the files on the thumb drive or desktop could have had creation dates earlier than November 2008—the date Poisson gave these devices to Pelland, and thus the earliest date he could have transferred files onto them. Because some of the uncharged files have creation dates going back to May 2008, however, the jury could have reasonably inferred that the creation dates reflected download dates, not file transfer dates. 

The defendant also argued that for one particular count the court was relying on an erroneous decision in United States v. Dickinson, 632 F.3d 186 (5th Cir. 2011) which allows the commerce clause requirement to be met by "producing" child pornography on a device that was involved in interstate commerce. The error, the defendant asserts, is that the Fifth Circuit held in Dickinson that copying files from one device to another is "producing" child pornography, and that is clearly erroneous. The court, because the evidence tying the defendant to the internet was sufficient to sustain all counts, punted on the issue.

The statute in question is 18 U.S.C. § 2252A(a)(5)(B), which states in pertinent part:

Any person who . . . knowingly possesses, or knowingly accesses with intent to view, any . . . material that contains an image of child pornography . . . that was produced using materials that have been mailed, or shipped or transported in or affecting interstate or foreign commerce by any means . . . .

The Fourth, Seventh, Ninth, and Tenth circuits have also held that a defendant copying files from one media to another has "produced" child pornography. The language in question from Dickinson is as follows:

Dickson's arguments are as unpersuasive to us as similar arguments were to the Fourth, Seventh, Ninth, and Tenth Circuits. First, "producing" is broadly defined as "producing, directing, manufacturing, issuing, publishing, or advertising." 18 U.S.C. § 2256(3). Congress could have left "producing" undefined, thereby giving it its ordinary meaning. But by defining "producing" using the term itself plus other closely related terms, Congress intended the statute to cover a wider range of conduct than merely initial production. Excluding copying from our interpretation of "producing" would be too restrictive a reading.

The defendant in Pelland argued that Dickson was wrongly decided, arguing that the statutory definition of "producing" was construed too broad and that copying was never meant to be within the statute's reach. The Fifth Circuit denied to address the issue:

Pelland's argument respecting the definition of "produced" is moot because, as we have discussed, the trial evidence was sufficient to prove the government's primary interstate commerce theory. . . . In any event, because Dickson has not been overruled or superseded by a decision of the Supreme Court or this court sitting en banc, we cannot overturn it. . . . Pelland recognizes that we must follow Dickson, and raises this argument only to preserve it for further review.

It is my hope that the defendant requests an en banc review, or if such review is denied, appeals to the Supreme Court. I have a hard time pulling "copying" from "producing." More fundamentally, I think it is tenuous to rest federal jurisdiction on copying to a device that came from interstate commerce - the previous activity of the device seems to be irrelevant for the current activities. In cases where the internet is used as the jurisdictional hook, at least data is contemporaneously being transferred between interstate elements (be it CP related or not). I think this is overstepping by Congress, compounded by judicial expansion of a statute beyond its plain meaning. Stay tuned.

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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.

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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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1st Circuit handles issues of required knowledge and jurisdiction in CP case

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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