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.