DocketNumber： 19-4118
Judges： Briscoe, Holloway, Baldock, Kelly, Lucero, Murphy, Hartz, O'Brien, Tymkovich, Gorsuch, Holmes, Matheson
Filed Date： 2/24/2012
Status： Precedential
Modified Date： 10/19/2024
I. Introduction
Appellant Christopher Adam Dayton was convicted of distributing and possessing child pornography, in violation of 18 U.S.C. § 2252(a)(2) and (a)(4)(B). Appellant Kenneth Dean Sturm was convicted of receiving and possessing child pornography, in violation ' of 18 U.S.C. § 2252A(a)(2)(B) and (a)(5)(B). Both Defendants argue the Government cannot prove the interstate commerce element of the crimes charged unless it presents evidence the specific digital images they possessed, received, and/or distributed traveled in interstate or foreign commerce. We conclude to the contrary: the Government may satisfy the jurisdictional element of each of the statutes at issue if it presents evidence that the substantive content of the images has, at some point, traveled in interstate or foreign commerce.
II. Factual Background
A. Appellant Dayton
The criminal charges against Dayton stemmed from an investigation initiated by FBI Special Agent Joseph Cecchini. By conducting a keyword search on Lime-Wire, a peer-to-peer file sharing program, and entering a search term commonly associated with child pornography, Cecchini located files containing the term on the computer of a LimeWire user who had been assigned the IP address 68.12.237.195. Cecchini downloaded four complete or partial video files from the 323 files available on the shared folder of this LimeWire user.
Cecchini subpoenaed Cox Communications, the Internet service provider that had assigned the 68.12.237.195 IP address to one of its subscribers. In response to the subpoena, Cox provided the subscriber’s personal information and investigators obtained a search warrant for a physical address in Tulsa, Oklahoma. When offi
During the search of Dayton’s home, officers seized computer hard drives and 169 compact disks. Based on the content of the seized materials, Dayton was charged in a two-count indictment with violating 18 U.S.C. § 2252(a)(2) and § 2252(a)(4)(B). Specifically, the indictment charged Dayton
did knowingly distribute and attempt to distribute visual depictions of minors engaging in sexually explicit conduct, as that term is defined in Title 18, United States Code, Section 2256(2)(A)(i-v), to wit: video files, including but not limited to a filed named [ ].mpg, each of which video files had been shipped and transported in interstate or foreign commerce, the producing of each of which video files involved the use of minors engaging in sexually explicit conduct, and each of which video files were of such conduct, in violation of Title 18, United States Code, Section 2252(a)(2).
and
knowingly possessed and attempted to possess visual depictions of minors engaging in sexually explicit conduct, as that term is defined in Title 18, United States Code, Section 2256(2)(A)(i-v), to wit: video files and graphic image files, including but not limited to a file named [].mpg, each of which files had been transported in interstate or foreign commerce by computer, the producing of each of which files involved the use of minors engaging in sexually explicit conduct, and each of which files were of such sexually explicit conduct, in violation of Title 18, United States Code, Section 2252(a)(4)(B).
Before trial, Dayton moved to dismiss the indictment for failure to establish the interstate nexus element of the statute. Specifically, he argued Cox Communications’s server was located wholly within the state of Oklahoma and all the visual depictions of children engaging in sexually explicit conduct he acquired or distributed using his account with Cox were routed only through that server. The district court took Dayton’s motion under advisement until the close of the Government’s trial evidence.
At trial, the prosecution played the four video files Cecchini downloaded from Dayton’s LimeWire shared folder while Cecchini described to the jury the acts of child sexual abuse portrayed in the videos. A Tulsa pediatrician opined that the children in images found on Dayton’s computer were minors and testified a child in one of the videos was much younger than twelve and “could easily be under eight.” Relevant to the question of the interstate movement of the visual depictions possessed by Dayton, Cecchini testified he had seen all four videos before and FBI investigators had previously downloaded them from foreign countries and from “every state but two.” Cecchini also testified the child in one of the videos is from Richland, Washington. On cross-examination, Cecchini reiterated he used Lime-
The Government also presented the testimony of Christopher Trifiletti, an FBI Special Agent who specializes in the identification of victims of internet crimes against children. Agent Trifiletti testified he had traveled to Paraguay as part of an investigation into the identity of minor children whose images had been posted to Internet news groups in the United States. The individual who photographed the children and originally posted them on the Internet for profit was identified as a Paraguayan named Milton Xischatti Michel. While in Paraguay, Trifiletti interviewed victims and their parents, ultimately confirming the identity of fifteen Paraguayan children. Paraguayan national identity cards or birth certificates established the ages of the children as between nine and thirteen years. Agent Trifiletti specifically identified the children in three of the images seized from Dayton’s home as three children he met and interviewed while he was in Paraguay. He also confirmed that the photographs were taken in Paraguay and none of the children in the images have ever left Paraguay. Trifiletti further testified that one child was ten years old at the time her photograph was taken and the other two children were twelve.
At the close of the Government’s case, Dayton renewed his motion to dismiss the indictment, arguing the Government failed to produce sufficient evidence to satisfy the interstate commerce element of 18 U.S.C. § 2252(a)(2) and (a)(4)(B). Relying on dicta in United States v. Schaefer, 501 F.3d 1197, 1206 (10th Cir.2007), Dayton argued the Government’s evidence did not establish exactly how the digital files came into his possession and failed to establish that the digital files Agent Cecchini downloaded from his LimeWire shared folder traveled in interstate commerce when they moved from his computer in Oklahoma to the FBI computer which was also in Oklahoma. The district court denied Dayton’s motion as to seven images, concluding the Government met its burden by presenting evidence the images were created outside the state of Oklahoma and, thus, at some point traveled in interstate commerce.
The jury found Dayton guilty on both counts charged in the indictment. The district court sentenced him to a sixty-three month term of incarceration. Dayton appealed his convictions, arguing the Government failed to meet its burden of proving the jurisdictional element of the charged offenses. A divided panel of this court agreed with Dayton, concluding the Government was required, but failed, to present evidence that the particular images seized during the search of Dayton’s home crossed state lines when they moved from Dayton’s LimeWire shared folder to Agent Cecchini’s computer or when they were downloaded by Dayton and saved to
B. Appellant Sturm
The charges against Appellant Sturm arose from an investigation initiated by United States Immigration and Customs Enforcement (ICE). An ICE investigator gained access to an Internet website containing images of child pornography by purchasing a twenty-day subscription for $79.99. After the investigator received an email from a Hotmail account which confirmed his subscription and contained links to the website, he obtained authorization to intercept communications from this Hot-mail account. One of those communications permitted the investigator to view the order information for a subscriber who had chosen the login name, Searcherl960, and the password, deanos. This subscriber gave the email address dean30502@aol. com, the first name Kenneth, and the last name Sturm. He also provided his street address and credit card information. After reviewing information obtained from America Online (AOL), an ICE investigator confirmed the subscriber using the AOL account associated with the email address dean30502@aol.com was Appellant Sturm.
On August 10, 2006, agents executed a search warrant for Sturm’s residence in Colorado. No computers were located during the course of that search but agents later determined that two computers from Sturm’s residence were in the possession of the Rocky Mountain Regional Forensic Laboratory. Sturm had surrendered them to his probation officer on May 5th, 2006,
Sturm was charged with violating 18 U.S.C. § 2252A(a)(5)(B) by “knowingly and unlawfully possessing] material that contained an image of child pornography, as defined in Title 18, United States Code, Section 2256(8)(A), that had been mailed, shipped and transported in interstate and foreign commerce by any means, including by computer.” The indictment referenced Sturm’s hard drive model and serial number and specifically identified three images contained thereon as “digital images of child pornography.” In a second count, Sturm was charged with violating 18 U.S.C. § 2252A(a)(2)(B) by “knowingly and unlawfully receiving] material that contained one or more images of child pornography, as defined in Title 18, United States Code, Section 2256(8)(A), that had been mailed, shipped and transported in interstate and foreign commerce by any means, including by computer.”
The parties proffered two different jury instructions on the interstate commerce element. At the final jury instruction conference, the district court agreed to give the instruction proposed by the Government with the addition of a sentence requested by Sturm. With that addition, the jury was instructed as follows on the jurisdictional element:
The phrase “transported in interstate commerce” means that the visual depiction, at any time, traveled or moved between any place in a state and any place outside of that state, or from any place in one country and any place outside of that country. Thus, any time an object moves or travels across state lines or moves or travels from one State to another State, or from one country to another country, it has traveled in interstate commerce.
Although the Government must prove beyond a reasonable doubt that visual depictions were transported in interstate or foreign commerce, it is not necessary for the Government to establish that the defendant knew that state lines were actually being crossed or that the image traveled in interstate or foreign commerce.
To prove that a specific image has been transported in interstate or foreign commerce, it is not enough for the Government to prove only that the image was viewed from the Internet.
The jury found Sturm guilty of both offenses charged in the indictment. The district court sentenced him to concurrent terms of 120 months’ imprisonment on Count One and 180 months’ imprisonment on Count Two. He was also sentenced to a twenty-year term of supervised release. After sentencing, Sturm filed this direct appeal challenging, among other things, the jury instruction on the interstate commerce element.
III. Discussion
A. Standard of Review
We review de novo Dayton’s challenge to the sufficiency of the evidence. United States v. Cooper, 654 F.3d
B. Visual Depiction
Dayton was convicted of distributing visual depictions of minors engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2), and possessing visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B). At the time Dayton was charged, the Government was required to prove the visual depictions had been mailed, shipped, or transported in interstate or foreign commerce. 18 U.S.C. § 2252(a)(2), (a)(4)(B) (2006). Sturm was convicted of receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B), and possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). At the time Sturm was charged, the term child pornography was defined, in relevant part, as “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where — (A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct.” 18 U.S.C. § 2256(8) (2006).
The challenges raised by both Dayton and Sturm implicate the Government’s burden of proving the interstate commerce element of the crimes charged. Dayton argues each copy of an image depicting minors engaged in sexually explicit conduct is a separate and distinct visual depiction and the Government presented insufficient evidence that the specific digital files he was convicted of possessing and distributing traveled in interstate or foreign commerce. Sturm similarly argues the Government was required to prove the specific digital files he was convicted of receiving and possessing traveled in interstate or foreign commerce and the instruction given by the district court permitted the jury to convict him without so finding. The Government counters that it can meet its burden by proving that the substance of such digital files — the particular portrayal of a minor engaging in sexually explicit conduct — traveled in interstate or foreign commerce in some form at some point in time. The parties, thus, disagree over whether a specific digital transmission or specific physical object, or merely the substantive content of that transmission or object, must cross state lines. Because child pornography is defined by reference to the definition of visual depiction, the resolution of Sturm’s challenge to the jury instruction, like Dayton’s challenge to the sufficiency of the evidence, hinges on the
As amended by the Child Pornography Prevention Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009, 3009-26 to -28 (Sept. 30, 1996), visual depiction was defined in the relevant version of the statute to include “data stored on computer disk or by electronic means which is capable of conversion into a visual image” as well as “undeveloped film and videotape.” 18 U.S.C. § 2256(5) (2006). Because the definition is non-exhaustive and could be construed in a way that is consistent with either of the two positions advanced here, we must look to other provisions of the statutes to discern its meaning. We first look to the statutes Dayton and Sturm were charged with violating.
Defendant Dayton was convicted of violating 18 U.S.C. § 2252(a)(2) which makes it a crime to, inter alia, knowingly distribute or receive any visual depiction when “the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and such visual depiction is of such conduct.” (emphasis added). Under the approach advocated by Defendants, this provision of § 2252(a)(2) would not extend to conduct involving the receipt or distribution of any image other than the original image. Even though the substantive content of a copy would be identical to that of the original, under Defendants’ interpretation of the term visual depiction, distribution of the copy would not be covered by the statute because only the production of the original involved “the use of a minor engaging in sexually explicit conduct.” This is contrary to the express language of § 2252 which also criminalizes the knowing reproduction of “any visual depiction for distribution in interstate or foreign commerce” if the “producing of such visual depiction in
It should also be remembered that in reproducing [child pornography] thousands of copies can be made from a single negative. As a result, the cost[s] of producing child pornography are minimal but the profits are often enormous .... [A] cheap home movie camera can be used to produce a film that will sell thousands of copies for $75 to $200 each.
S.Rep. No. 95-438, at 4 (1977), reprinted in, 1978 U.S.C.C.A.N. 40, 44. Thus, it is clear Congress intended to criminalize the receipt and distribution of copies, prosecution of which would be foreclosed under Defendant’s reading of the term visual depiction. Thus, Defendants’ position is not consistent with the plain language of § 2252 or congressional intent.
Defendant Sturm was convicted of violating 18 U.S.C. § 2252A(a)(2) which criminalizes, in part, the knowing distribution or receipt of child pornography, defined to include visual depictions of sexually explicit conduct, the production of which, “involves the use of a minor engaging in sexually explicit conduct.” 18 U.S.C. § 2256(8)(A) (2006). As we have already concluded, supra, under Defendants’ interpretation of the term visual depiction this provision effectively criminalizes only the distribution or receipt of the original image. Section 2256(8), however, also defines child pornography to include digital or computer-generated images “that [are], or [are] indistinguishable from, that of a minor engaging in sexually explicit conduct” and images created to “appear that an identifiable minor is engaging in sexually explicit conduct.” Id. § 2256(8)(B), (C). Even under Defendants’ illogically narrow interpretation of the term visual depiction, § 2256(8)(B) and (C)
Under the doctrine of in pari materia, however, this court should not consider § 2256(8)(B) and (C) in isolation from § 2256(8)(A). We must, instead, construe the term visual depiction in a way that gives full effect to all the subparts of the statute. Likewise, § 2252 and § 2252A should also be construed in pari materia because both statutory provisions criminalize similar conduct. The term visual de
Under the Government’s interpretation of the term visual depiction, § 2252, § 2252A, and § 2256(8) are wholly logical and criminalize all the conduct Congress clearly intended to criminalize. The same is not true under the Defendants’ interpretation. Thus, we construe the term visual depiction to mean the substantive content of an image depicting a minor engaging in sexually explicit conduct.
Our conclusion is bolstered by the consequence that some statutory provisions lose their commonsense meaning under Defendants’ approach. For example, the crimes enumerated in § 2252(a) focus on visual depictions involving a minor engaging in sexually explicit conduct if the “visual depiction is of such conduct.” 18 U.S.C. § 2252(a)(1)(B), (2)(B), (3)(B)(ii), (4)(B)(ii) (emphasis added). Only the substance of an image can be “of such conduct.” Likewise, 18 U.S.C. § 2252A(a)(3), which criminalizes, inter alia, the distribution of “materials” that contain “an obscene visual depiction of a minor engaging in sexually explicit conduct,” makes little sense unless the term visual depiction means the substantive content of the image. The flaw in Defendants’ position is further illuminated by examining similar language in 18 U.S.C. § 2252(a)(4)(B). Dayton was convicted of violating this statute, which criminalizes the possession of “1 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 2252(a)(4)(B) (emphasis added). If, as Defendants argue, the term visual depiction means the specific iteration of the image rather than its substance, the use of the phrase “matter which contain any visual depiction” in § 2252(a)(4)(B) is unnecessary and redundant because Defendants’ definition effectively rewrites the statute to say, “matter which contains any matter.”
Section 2252(a)(4)(B) also clearly states it is the visual depiction, not the particular form of the visual depiction, that must travel in interstate or foreign commerce. Defendants attempt to rewrite the statute to criminalize the possession of any matter containing a visual depiction if that matter has been mailed, shipped, or transported in interstate commerce. But that is not what the statute says. It expressly crimi
Defendants argue our interpretation of the statute is misadvised because it would effectively eliminate the affirmative defense contained in 18 U.S.C. § 2252(c).”
(1) possessed less than three matters containing any visual depiction proscribed by [18 U.S.C. § 2252(a)(4)]; and
(2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any visual depiction or copy thereof—
(A) took reasonable steps to destroy each such visual depiction; or
(B) reported the matter to a law enforcement agency and afforded that agency access to each such visual depiction.
18 U.S.C. § 2252(c). Defendants argue this defense would not be available to “low-level possessors” because they do not have access to the original and all copies of the visual depiction and, thus, would be unable to destroy them or provide law enforcement with access to them as required by the statute. Defendants’ argument, however, is an overstatement because the statute only requires a defendant to take “reasonable steps” to destroy the visual depictions. Further, the term visual depiction is modified by the word “such,” which is a reference to the visual depictions possessed by the defendant. Thus, a defendant would qualify for the affirmative defense if he reasonably attempts to destroy the one or two visual depictions he is alleged to possess. Our interpretation of the statute, therefore, is consistent with the affirmative defense.
IV. Conclusion
After examining the statute as a whole with reference to the legislative history, we conclude the term visual depiction means the substantive content of an image depicting a minor engaging in sexually explicit conduct rather than the specific medium or transmission used to view, store, receive, or distribute that content. A visual depiction is created once — when the child sexual abuse is captured on some type of media; it is not created anew each time that substantive content is transferred to a different storage device or transmitted over the Internet. All copies of the same substantive content are the same visual depiction. Thus, a visual depiction can be contained both in the particular tangible or digital media possessed, received, or distributed by a defendant and also in any other form or copy of the image, including the original. Further, under the plain language of the statute, the Government is only required to prove that the visual depiction “has been” mailed, shipped, or transported in interstate or foreign commerce at any point in time. 18 U.S.C. § 2252(a)(2)(B), (a)(4)(B); 18 U.S.C. § 2252A(a)(2)(B), (a)(5)(B). Any prior decisions of this court inconsistent with this holding are hereby overruled.
One way the Government can meet its burden of proving the jurisdictional element is by introducing evidence from which a reasonable jury could conclude the substance of an image of child pornography was made in a state and/or country
. Agent Cecchini testified that the FBI runs a specially engineered version of LimeWire that permits investigators to download a file from just one identifiable IP address instead of downloading portions of the complete file from many different shared folders.
. Dayton told investigators he had used Lime-Wire to download the files he saved to his shared folder and had burned some of the files onto compact disks.
. The monitoring of Sturm's computers by the probation officer stemmed from Sturm’s 2003 Ohio conviction for pandering sexually oriented matter involving a minor.
. Sturm did not challenge the sufficiency of the evidence the Government presented to show the jurisdictional element. He stipulated that the images underlying both counts involved minor children and depicted acts that took place outside the state of Colorado.
. Our analysis is limited to the version of the statute in effect at the time of the Defendants' conduct. Sturm’s crimes were committed between January 1, 2005, and May 5, 2006; Dayton’s crimes were committed on March 30, 2007. We focus on the version of the statutes in effect between April 30, 2003, and October 8, 2008, including amendments made in 2006 by the Adam Walsh Child Protection and Safety Act (“AWCPSA”). See Pub. L. No. 109-248, 120 Stat. 587, 614, 648-649 (July 27, 2006). The changes set out in the AWCPSA do not affect the issue raised by Sturm that is currently before this court.
. The parties were ordered to file supplemental briefs addressing the following question: Whether the jurisdictional element of 18 U.S.C. §§ 2252 and 2252A requires proof that the particular image of child pornography that is the identified object of the defendant's statutorily proscribed possession, receipt, or distribution traveled in interstate or foreign commerce, or whether it is sufficient to establish the jurisdictional element to show that the original or some other iteration of that image traveled in interstate or foreign commerce at some point prior to the defendant's alleged commission of the charged crime? In other words, does the term "visual depiction," as employed in 18 U.S.C. §§ 2252 and 2252A, refer specifically to the particular image possessed, received, or distributed by the defendant, or does it instead refer to the substance of an image of child pornography and thereby encompass not only the particular image possessed, received, or distributed by the defendant, but also any prior generations of that image, including the original? United States v. Sturm, -Fed.Appx.-, -, Nos. 09-1386, -5022, 2011 WL 6261657, al *1 (10th Cir. April 4, 2011) (en banc). It is immaterial for purposes of our statutory analysis that the indictment charged Dayton with possessing "files” that "had been shipped and transported in interstate or foreign commerce as opposed to "visual depictions” that had been so transported. Under well-settled principles, the indictment clearly gave Dayton fair notice of the charges against him and he does not argue otherwise. United States v. Gama-Bastidas, 222 F.3d 779, 785 (10th Cir.2000) (“An indictment is sufficient if it sets forth the elements of the offense charged, puts the defendant on fair notice of the charges against which he must defend, and enables the defendant to assert a double jeopardy defense.” (quotation omitted)). The use of the term "files” in the indictment neither narrows the scope of the statute Dayton was charged with violating nor informs the statutory question currently before this court.
. These two provisions are supported by congressional findings underpinning the PROTECT Act. Pub. L. No. 108-21, 117 Stat. 650, 676-78 (April 30, 2003). Congress found “[t]here is no evidence that the future development of easy and inexpensive means of computer generating realistic images of children would stop or even reduce the sexual abuse of real children or the practice of visually recording that abuse.” 117 Stat. 650, 678. Congress expressed its concern that the failure to criminalize the possession of computer-generated child pornography would "threaten! 1 to render child pornography laws that protect real children unenforceable.” Id.
. There is an identical affirmative defense available to defendants charged with violating 18 U.S.C. § 2252A(a)(2), (5). 18 U.S.C. § 2252A(d).