United States v. Schaefer

FILED
United States Court of Appeals
Tenth Circuit

PUBLISH
September 5, 2007
Elisabeth A. Shumaker
UNITED STATES CO URT O F APPEALS Clerk of Court

FO R TH E TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff - Appellee,

v. No. 06-3080

W ILLIAM SCHAEFER,

Defendant - Appellant.

Appeal from the United States District Court
for the District of K ansas
(D.C. No. 04-CR-20156-JW L)

Howard A. Pincus, Assistant Federal Public Defender (Raymond P. M oore,
Federal Public Defender, with him on the briefs), Denver, Colorado, for
Defendant-Appellant.

Kim I. M artin, Assistant United States Attorney (Eric F. M elgren, United States
Attorney, with her on the brief), Kansas City, Kansas, for Plaintiff-Appellee.

Before T YM KOV IC H, EBEL, and HO LM ES, Circuit Judges.

HO LM ES, Circuit Judge.

In this criminal appeal, Defendant-Appellant W illiam Schaefer challenges

the government’s evidence as insufficient to support his convictions under 18

U.S.C. §§ 2252(a)(2) and (a)(4)(B), for receipt and possession of images
involving the sexual exploitation of minors. In particular, M r. Schaefer contends

the government failed to offer evidence to show that any single visual image he

received or possessed traveled across state lines. M r. Schaefer seeks a reversal

and acquittal on both counts.

Exercising jurisdiction under 28 U.S.C. § 1291, we hold that the

government failed to offer sufficient evidence to establish the requisite

jurisdictional nexus of a movement across state lines (i.e., a movement in

interstate commerce). Specifically, we conclude that the government’s evidence

concerning M r. Schaefer’s use of the Internet, standing alone, was not sufficient

to establish that the child-pornography images at issue moved across state lines.

Accordingly, we REVERSE M r. Schaefer’s convictions and REM AND to the

district court for entry of a judgment of acquittal.

I. BACKGROUND

The government charged M r. Schaefer in the District of Kansas with one

count of receiving child pornography, in violation of 18 U.S.C. § 2252(a)(2), and

one count of possession of child pornography, in violation of 18 U.S.C. §

2252(a)(4)(B). 1 These charges stem from a lead the Kansas City Office of

1
The statute reads in relevant part:

(a) A ny person who – . . .

(2) knowingly receives, or distributes, any visual depiction that has
been mailed, or has been shipped or transported in interstate or
(continued...)

-2-
Immigration and Customs Enforcement (ICE) received from the ICE national

headquarters. According to the information, M r. Schaefer used his computer and

his credit cards to subscribe to websites containing images of child pornography.

These sites provide paying members electronic access to pornographic images.

Following the tip from ICE, authorities executed a search warrant at M r.

Schaefer’s home. Agents seized a desktop computer, CD-Rom disks (“CDs”), and

various documents. Forensic testing on the computer revealed that M r. Schaefer

purchased at least five subscriptions to child pornography websites. The testing

1
(...continued)
foreign commerce, or which contains materials which have been
mailed or so shipped or transported, by any means including by
computer, or knowingly reproduces any visual depiction for
distribution in interstate or foreign commerce or through the mails, if
----
(A) the producing of such visual depiction involves the use of
a minor engaging in sexually explicit conduct; and

(B) such visual depiction is of such conduct; . . .

(4) either –

(B) know ingly possesses 1 or more books, magazines,
periodicals, films, video tapes, or other matter w hich contain
any visual depiction that has been mailed, or has been shipped
or transported in interstate or foreign comm erce, or which was
produced using materials which have been mailed or so
shipped or transported, by any means including by computer, if
–
(i) the producing of such visual depiction involves the
use of a minor engaging in sexually explicit conduct;
and
(ii) such visual depiction is of such conduct . . . .

-3-
also revealed images of child pornography in the computer’s “unallocated

clusters” 2 and on the temporary “Internet cache files.” 3 The parties stipulated that

one CD confiscated contained eight images of child pornography and the second

contained three pornographic images. Authorities interviewed M r. Schaefer after

the search of his home, and he admitted to seeking out images of child

pornography on the Internet.

The district court held a bench trial, after M r. Schaefer waived his right to a

jury trial. Other than M r. Schaefer’s home state of Kansas, the evidence at trial

referenced only three states – New Jersey, Florida, and W ashington. 4 However,

none of these geographical references concerned the receipt of the images, the

CDs possessed, or the actual images found on the C Ds and the computer. In

addition, an investigating agent testified that he had no evidence M r. Schaefer

downloaded images via computer and placed them on the CDs found in his home.

No evidence at trial explained where M r. Schaefer obtained the visual depictions

2
“Unallocated clusters” are hidden files on the computer hard drive
usually not accessible to a user. See R. vol. I, Doc. 39, District Court
M emorandum and Order, at 3 n.1 (Sept. 12, 2006).
3
An “Internet cache” is a file that retains information about recently
visited websites allowing the site to be loaded faster in the future. See R. vol. I,
Doc. 39, supra, at 3 n.2.
4
A website M r. Schaefer visited used a third party billing company
based in New Jersey and that company used a Florida-based company to
coordinate its billing business. See R. vol. II, Exhibit 1. M icrosoft,
headquartered in W ashington State, issued M r. Schaefer’s email address. Id. at 5.

-4-
found on the CDs or who placed the images on the CDs. M oreover, no evidence

indicated where the websites M r. Schaefer accessed were based, where the

websites’ servers were located, or where M r. Schaefer’s Internet provider’s server

was housed.

Focusing primarily on the knowledge component of §§ 2252(a)(2) and

(a)(4)(B), however, the district court found M r. Schaefer guilty on both counts.

Specifically, with respect to the two counts, the district court found the evidence

established beyond a reasonable doubt that M r. Schaefer both knowingly

“possessed” and “received” images of child pornography. The court did not fully

elaborate in its ruling as to how the government satisfied the jurisdictional prong

of §§ 2252(a)(2) and (a)(4)(B) – that the “visual depiction had been mailed,

shipped, and transported in interstate or foreign comm erce by computer or other

means.” See R. vol. I., Doc. 39, District Court M emorandum and Order, at 5-6, 8-

10 (Sept. 12, 2006). Important to this appeal, the district court based the

possession conviction solely on M r. Schaefer’s possession of the pornographic

images on the two CDs, and not on his possession of the images found on the

Internet cache files or in the unallocated clusters. 5

5
The district court did not convict M r. Schaefer for the images found
in the Internet cache files or the unallocated clusters on his computer because the
government offered no evidence showing M r. Schaefer knew the computer
contained the images, thus no evidence showed he exhibited control over the
images. See R. vol. I, Doc 39, supra, at 6. Additionally, the court reasoned that,
even if M r. Schaefer could be said to have “possessed” the images found on the
(continued...)

-5-
 The district court sentenced M r. Schaefer to 70 months’ imprisonment on

count 1, to run concurrently with a 70-month sentence for count 2. The court also

issued concurrent terms of three years’ supervised release. M r. Schaefer filed this

timely appeal.

II. D ISC USSIO N

M r. Schaefer maintains that we must reverse his conviction for possession

and receipt of child pornography because the government produced insufficient

evidence on the interstate nexus requirement of §§ 2252(a)(2) (receipt) and

(a)(4)(B) (possession). According to M r. Schaefer, the complete absence of proof

at trial that the images he possessed and received traveled across state lines

requires an acquittal, as the jurisdictional nexus is an essential element of the

statute.

Ordinarily, we construe a challenge to the sufficiency of the evidence as a

question of law reviewed de novo. United States v. Chavis, 461 F.3d 1201, 1207

(10th Cir. 2006), cert. denied, 127 S. Ct. 2062 (2007). W e view the evidence in

the light most favorable to the government, United States v. Triana, 477 F.3d

1189, 1194 (10th Cir. 2007), cert. denied, 127 S. Ct. 2928 (2007), “affirming the

5
(...continued)
unallocated clusters at one time, he could not be convicted for this, because the
government did not establish that his putative possession occurred during the time
period charged in the indictment. Id.; see also United States v. Tucker, 305 F.3d
1193, 1204 (10th Cir. 2002) (explaining the proof necessary to establish knowing
possession).

-6-
district court unless no [reasonable] jury, when presented with the evidence

introduced at trial together with the reasonable inferences therefrom, could find

the defendant guilty beyond a reasonable doubt.” United States v. Kimler, 335

F.3d 1132, 1140 (10th Cir. 2003) (alteration added) (citing United States v.

Campos, 221 F.3d 1143, 1151 (10th Cir. 2000)). In this case, however, M r.

Schaefer failed to raise an objection, so our review is for plain error. See United

States v. Lawrence, 405 F.3d 888, 900 n.7 (10th Cir. 2005), cert. denied, 546 U.S.

955 (2005). W e recently reiterated that a “forfeited claim of insufficient evidence

must be reviewed under the plain-error standard.” 6 United States v. Goode, 483

F.3d 676, 681 n.1 (10th Cir. 2007) (emphasis added).

A . Sufficiency of the Evidence

M r. Schaefer does not challenge the district court’s finding on either count

with respect to the “knowing” elements. Our review concerns only whether the

evidence at trial sufficiently satisfied the jurisdictional nexus necessary to support

a conviction under §§ 2252(a)(2) and (a)(4)(B). Because the sections contain

coterminous jurisdictional requirements, we focus initially on the common

conduct required to secure a conviction under both the receipt and possession

6
The plain-error test requires the defendant dem onstrate: (1) an error;
(2) that is plain and obvious under established law; and (3) affects the defendant’s
substantial rights. See Goode, 483 F.3d at 681 (referencing the factors set forth in
United States v. Olano, 507 U .S. 725, 732 (1993)). If a defendant meets these
conditions, a court may correct the error “if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” See id. (internal quotation
marks omitted).

-7-
counts.

1. Jurisdictional Nexus

Each section’s jurisdictional provision requires the government to establish

that in committing the offense a visual image “has been mailed, or has been

shipped or transported in interstate or foreign comm erce . . . by any means

including by computer.” See 18 U.S.C. §§ 2252(a)(2) and (a)(4)(B).

Ultimately, the decision to uphold or overturn M r. Schaefer’s convictions

turns on whether an Internet transmission, standing alone, satisfies the interstate

commerce requirement of the statute. 7 M r. Schaefer asserts that § 2252(a)’s

jurisdictional provisions requires movement across state lines, and it is not

enough to assume that an Internet communication necessarily traveled across state

lines in interstate commerce. W e agree.

7
W e note that the government attempts to support the possession and
receipt convictions by relying on precedent addressing Congress’s authority to
regulate purely intrastate activities, including child pornography. See, e.g.,
United States v. Jeronimo-Bautista, 425 F.3d 1266, 1269 (10th Cir. 2005), cert.
denied, 547 U.S. 1069 (2006); see also Gonzales v. Raich, 545 U.S. 1, 17 (2005)
(regulating intrastate production and possession of illegal drug). However, M r.
Schaefer does not challenge Congress’s broad Commerce Clause powers or the
constitutionality of the statute. Indeed, he accepts that Congress has the broad
power to regulate purely intrastate activity, but this concession does not bear on
our review of the sufficiency of the evidence for the jurisdictional requirement
under §§ 2252(a)(2) and (a)(4)(B). M r. Schaefer frames his challenge as
“decidedly more modest,” claiming that the government failed to prove an
element of the crime, which in turn “renders his conviction infirm.” See Aplt.
Opening Br. at 22. Thus, Jeronimo-Bautista and Raich are inapposite as to M r.
Schaefer’s conviction.

-8-
 W e hold that the government did not present sufficient evidence to support

the jurisdictional nexus of the § 2252(a) provisions at issue. They require a

movement between states. The government did not present evidence of such

movement; instead, the government only showed that M r. Schaefer used the

Internet. W e recognize in many, if not most, situations the use of the Internet

will involve the movement of communications or materials between states. 8 But

this fact does not suspend the need for evidence of this interstate movement. The

government offered insufficient proof of interstate movement in this case.

a. Statutory Analysis

In reaching this conclusion, “we begin . . . with the language of the

statute.” United States v. Wilson, 182 F.3d 737, 740 (10th Cir. 1999) (internal

quotation marks omitted) (quoting Bailey v. United States, 516 U.S. 137, 144

(1995)). The plain language of §§ 2252(a)(2) and (a)(4)(B) speaks of movement

8
W e reach this conclusion understanding the likely interstate and
international architecture and operation of the world wide web. See, e.g., Reno v.
ACLU, 521 U.S. 844, 849 (1997) (“The Internet is an international network of
interconnected computers.”). But we cannot assume this intuitive fact (i.e., a
movement via the Internet of child-pornography images between states) on the
record before us. Nor has the government asked us to take judicial notice of this
fact under Federal Rule of Evidence 201. As to judicial notice, we recently
declined to use the doctrine in a case involving computer technology. See United
States v. Andrus, 483 F.3d 711, 721-722 (10th Cir. 2007). A judicially noticed
fact is “one not subject to reasonable dispute in that it is either (1) generally
known . . . or (2) capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b).
Although judicial notice may be taken sua sponte, Fed. R. Evid. 201(c), it would
be particularly inappropriate for the court to make broad assumptions about the
Internet absent notice to and comment by the parties. Andrus, 483 F.3d at 721.

-9-
“in comm erce,” and “giving the words used their ordinary meaning” this signifies

a movement between states. United States v. Hunt, 456 F.3d 1255, 1264-65 (10th

Cir. 2006) (internal quotation marks and citations omitted) (quoting M oskal v.

United States, 498 U.S. 103, 108 (1990)).

W e do not read § 2252(a) as contemplating that the mere connection to the

Internet would provide the interstate movement required by the statute. After

establishing a computer or Internet connection as the method of transport, the

government must still prove that the Internet transmission also moved the images

across state lines. For example, by comparison, we cannot find any precedent

supporting the notion that showing a defendant “shipped” a proscribed image,

without more, satisfies the statutory requirement. The government must couple

such evidence with proof the defendant shipped the image across state lines (i.e.,

in interstate commerce). See, e.g., United States v. Schatt, No. 99-6317, 2000 W L

358460, * 2 (10th Cir. 2000) (unpublished) (finding the interstate nexus satisfied

when videotapes shipped from Louisiana to Oklahoma).

It is apparent that Congress elected not to reach all conduct it could have

regulated under § 2252(a). Congress’s use of the “in commerce” language, as

opposed to phrasing such as “affecting commerce” or a “facility of interstate

comm erce,” signals its decision to limit federal jurisdiction and require actual

movement between states to satisfy the interstate nexus. Compare Russell v.

United States, 471 U.S. 858, 859 (1985) (noting term “affecting interstate or

- 10 -
foreign commerce” conveys Congress’s intent to exert full Commerce Clause

power), with C ircuit C ity Stores, Inc. v. Adams, 532 U.S. 105, 115-16 (2001)

(noting “in commerce” language limits Congress’s reach).

The language of 18 U.S.C. § 1343 (the wire fraud statute), which uses “in

commerce” language very similar to that found in § 2252(a), supports this view.

Section 1343’s “in commerce” terminology has been repeatedly held to require

that communications actually cross state lines to support a conviction. See United

States v. Cardall, 885 F.2d 656, 675-76 (10th Cir. 1989) (discussing how “fraud-

tainted funds” traveled in interstate commerce as required by the wire fraud

statute); accord United States v. Davila, 592 F.2d 1261, 1263-64 (5th Cir. 1979)

(discussing the type of interstate activity required under w ire fraud statute);

Center Cadillac, Inc. v. Bank Leumi Trust Co. of N.Y., 808 F. Supp. 213, 227

(S.D.N.Y. 1992) (noting the w ire fraud statute requires the communication cross

state lines), aff’d, 99 F.3d 401 (2d Cir. 1995) (unpublished opinion).

W e therefore proceed under the view that Congress made a purposeful

decision not to exercise its full Commerce Clause power in § 2252(a). See

generally Scarborough v. United States, 431 U.S. 563, 571 (1977) (“As we have

previously observed, Congress is aware of the distinction between legislation

limited to activities ‘in commerce’ and an assertion of its full Commerce Clause

power so as to cover all activity substantially affecting interstate commerce.”)

(certain internal quotation marks omitted) (quoting United States v. Am. Bldg.

- 11 -
M aint. Indus., 422 U.S. 271, 280 (1975)). Under this framework, the plain terms

of § 2252(a) convey that Congress intended to punish only those who moved

images or “materials” across state lines (i.e., in interstate commerce). See, e.g.,

18 U.S.C. § 2252(a)(2).

In 1988, Congress amended § 2252(a) to add the phrase “including by

computer.” W e do not construe this amendment as indicating that Congress

intended for use of a computer, without more, to satisfy the statute’s jurisdictional

requirements. Congress simply wanted to be “doubly sure” we recognized that

the statute contemplates more than traditional methods of sending and receiving

images. Cf. United States v. Alpers, 338 U.S. 680, 684 (1950) (noting in context

of obscenity statute that Congress inserted additional language to make clear the

law reached what, at the time, was a growing motion picture industry). The

phrase “including by computer” specifies a method of interstate movement; the

government must still establish that any computer-related movement crossed state

lines. Accordingly, on these facts, the government was required to prove that any

Internet transmissions containing child pornography that moved to or from M r.

Schaefer’s computer crossed state lines. The government failed to do so.

b. Case Law

The government maintains that the evidence at trial met the jurisdictional

element, asserting that evidence showing that the visual images “came from the

[I]nternet suggests an origin outside [of Kansas].” Aple. Br. at 9. However, we

- 12 -
discern no support in our case law for the proposition that under § 2252(a) the

government need not prove the movement of the proscribed items across state

lines. See, e.g., Kimler, 335 F.3d at 1135 (establishing that images traveled from

M r. Kimler’s home computer in Kansas to his internet company’s server in

M issouri and then on to email company’s server in California); Wilson, 182 F.3d

at 744 & n.4 (discussing bulletin board server located in California and M r.

W ilson’s computer located in Colorado, so data “traveled in interstate commerce .

. . via telephone line”); United States v. Simpson, 152 F.3d 1241, 1245 (10th Cir.

1998) (offering evidence that M r. Simpson downloaded visual images via the

Internet from a website in Boston onto his computer in Oklahoma). Cf. United

States v. Kammersell, 196 F.3d 1137, 1138- 39 (10th Cir. 1999) (finding

jurisdictional element of 18 U.S.C. § 875(c) satisfied when AOL instant message

traveled from sender in Utah to AOL server in Virginia and back to recipient in

Utah).

The case law in our circuit that the government relies upon does not

advance its cause. See U nited States v. Bass, 411 F.3d 1198, 1202 (10th Cir.

2005), cert. denied, 546 U.S. 1125 (2006); Kimler, 335 F.3d at 1139, 1140 n.8.

The holdings in Kimler and Bass are predicated on challenges distinct from the

jurisdictional challenge presented here, and neither holding reaches as far as the

- 13 -
government asserts. 9

In Kimler, M r. Kimler did not contest the government’s evidence that every

transmission from and to his computer “necessarily” traveled in interstate

comm erce via telephone lines or that he received images sent via the Internet

“across state lines.” Kimler, 335 F.3d at 1138. M oreover, in Kimler, sufficient

evidence existed to demonstrate that the proscribed images actually crossed state

lines by virtue of the Internet. Id. (showing images traveled from “Hotmail”

server in California through M issouri to M r. Kimler’s home in Kansas). As for

9
In addition, the government’s reliance on our unpublished opinion in
United States v. Wollet, No. 03-5113, 2006 W L 137404 (10th Cir. Jan. 19, 2006)
is misplaced. M r. Schaefer has attached to his Reply Brief portions of the
appellate filings in the Wollet case, which we are permitted to notice. See, e.g.,
United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007). In Wollet, the
government introduced evidence tending to establish that any comm unications
that M r. W ollet received or transmitted via the Internet moved across state lines.
In particular, the government presented documentary and testimonial evidence
establishing that M r. W ollet used America Online (AOL) as his Internet provider
for a computer that was located in Oklahoma and, significantly, it sponsored
testimony of an AOL representative who averred that AOL routes all
transmissions through the company’s servers in Virginia. See Aplt. Reply Br.,
Attachment 2 at 6, 13 & Attachment 3 at 10-11. And, further, the government’s
evidence consisting in part of M r. W ollet’s admissions and his son’s
incriminating testimony confirmed that M r. W ollet used that AOL Internet
connection to download child pornography. Wollet, 2006 W L 137404 at *3. It
was in this specific factual context – where any Internet transmissions perforce
moved across state lines – that we treated evidence of the downloading of images
from the Internet as sufficient to establish the interstate-commerce jurisdictional
component of § 2252(a). In this regard, we stated: “The jury could rationally
have concluded W ollet downloaded the images from the Internet to the diskettes
and thus, the images (the graphic files) traveled in interstate commerce.” Id. In
contrast, the government’s evidence here did not establish a necessary movement
of M r. Schaefer’s Internet communications across state lines. Accordingly, proof
of M r. Schaefer’s use of the Internet, standing alone, will not suffice.

- 14 -
Bass, our holding did not turn on the evidence concerning the jurisdictional

component of the statute, which we review here. Instead, Bass involved the

statute’s “knowing possession” element. See Bass, 411 F.3d at 1201-02.

In answ ering the question whether a defendant’s use of the Internet,

without more, is sufficient proof of § 2252(a)’s jurisdictional nexus, we have not

been able to draw upon a wealth of authority from other courts of appeals. Some

circuits, however, have addressed the question or related ones. W e recognize

that, at least upon cursory inspection, this limited universe of circuit authority

appears to uniformly reflect the view that Internet use is sufficient proof. See

United States v. M acEwan, 445 F.3d 237, 244 (3d Cir. 2006), cert. denied, 127 S.

Ct. 208 (2006) (adopting a mode of analysis, under 18 U.S.C. § 2252A, that

directly equates Internet use with interstate commerce); United States v. Carroll,

105 F.3d 740, 742 (1st Cir. 1997) (stating that transmission of photographs via

the Internet is “tantamount to” moving them through interstate commerce for

purposes of 18 U.S.C. § 2251(a)). Cf. United States v. Runyan, 290 F.3d 223, 242

(5th Cir. 2002) (assuming without discussion that use of the Internet may be

equated with a movement in interstate commerce and, as to prosecution under

related child-pornography statute, 18 U.S.C. § 2252A, holding that “the

Government must make a specific connection between the images introduced at

trial and the Internet to provide the requisite jurisdictional nexus”).

How ever, the true picture is more complicated. For example, the First

- 15 -
Circuit’s decision in Carroll actually offers little support for the proposition that

Internet use, standing alone, is sufficient to establish the jurisdictional element of

§ 2252. Carroll is fact-dependent and distinguishable. The government

prosecuted M r. Carroll under another child pornography statute, 18 U.S.C. §

2251(a), which prohibits inter alia (a) persuading a minor to engage in sexually-

explicit conduct, (b) for the purpose of producing a visual depiction of that

conduct, and (c) with the knowledge or reason to know that the depiction will be

transported in interstate commerce. See Carroll, 105 F.3d at 741-42; 18 U.S.C. §

2251(a). The government introduced evidence pertinent to the jurisdictional

requirements of that statute – specifically, evidence that M r. Carroll had the intent

to move the images across state lines. Id. at 742. It showed that M r. Carroll

planned to travel to M assachusetts with the pornographic photographs that he had

taken in New Hampshire of the minor victim; once in M assachusetts, his objective

was to disseminate the photographs via the Internet by means of his computer.

M r. Carroll reportedly planned to use the photographs to start an Internet dating

service. Id. at 743.

In this factual context, the court observed that “[t]ransmission of

photographs by means of the Internet is tantamount to moving photographs across

state lines and thus constitutes transportation in interstate commerce.” Carroll,

105 F.3d at 742. Giving the quoted language its most reasonable interpretation,

the court was simply acknowledging that, given M r. Carroll’s willingness to move

- 16 -
the photographs across state lines, his use of an instrumentality that was

unquestionably capable of accomplishing this task – the Internet – was

“tantamount” to a movement across state lines. Significantly, the Carroll court

never questioned that there in fact had to be an intention to move the photographs

“across state lines” – as opposed to simply an intention to place them on the

Internet. Accordingly, Carroll does not lend much support to the view that proof

of Internet use, alone, is sufficient to establish the jurisdictional element of §

2252(a).

Standing more directly for this proposition, however, is the Third Circuit’s

decision in M acEwan, with which we must respectfully disagree. The M acEwan

approach runs counter to the plain terms of § 2252(a). There, the court held that,

given the interstate character of the Internet, a connection to a website server or

request for an image from a server via the Internet invariably involves data

moving in interstate commerce. Id. Thus, it concluded that in order to establish

the jurisdictional element of 18 U.S.C. § 2252A(a)(2)(B) – a child-pornography

statute with jurisdictional language identical in material respects to that of §

2252(a) – the government need only prove that the defendant used the Internet in

relation to the offense. Id. at 244.

The M acEwan court, however, overlooked the limiting jurisdictional

language that Congress employed, i.e., the “in commerce” language. In effect, it

recast the jurisdictional requirement of the child-pornography statute into one that

- 17 -
could be satisfied by use of an “interstate facility,” and determined that the

Internet w as such a facility. Id. at 245 (referring to the Internet as “an

instrumentality and channel of interstate commerce”). Consequently, it did not

insist on proof that the particular child-pornography images crossed state lines,

only proof that the defendant “downloaded those images from the Internet.” Id.

However, the term “interstate facility” (or similar terms) is noticeably

absent from § 2252(a), as well as the statute directly at issue in M acEwan, §

2252A(a)(2)(B). Cf. 18 U.S.C. § 1958(a) (criminalizing the use of “any facility

of interstate or foreign commerce” in the commission of a murder-for-hire). A s

noted, Congress could have used language in § 2252(a) that would have effected a

more expansive exercise of its Commerce Clause powers than accomplished by

the “in commerce” language; yet, it elected not to do so.

In sum, our review concludes that under the plain terms of § 2252(a), and

our precedent, there is no “Internet exception” to the statute’s jurisdictional

requirements. Simply stated, we decline to assume that Internet use automatically

equates with a movement across state lines. W ith respect to such interstate

movement, the government must introduce sufficient evidence to satisfy its

burden of proof.

2. Evidentiary Sufficiency: Receipt and Possession Convictions

Keeping in mind our holding that proof of use of the Internet, standing

alone, does not satisfy the jurisdictional requirements of §§ 2252(a)(2) and

- 18 -
(a)(4)(B), we now separately analyze the sufficiency of the government’s

evidence concerning M r. Schaefer’s receipt and possession convictions. These

convictions cannot stand because the government failed to present sufficient

evidence concerning the movement of the child-pornography images across state

lines. 10

a. Receipt Conviction

As to the receipt count, we agree with M r. Schaefer that the government

needed to prove the visual images he received on his computer via the Internet

moved across state lines. Because the government provided no relevant evidence

to meet this essential element, the conviction cannot stand.

M ore specifically, unlike Kimler, Wilson, Simpson, or Kammersell, the

government offered no evidence here on: (1) the server locations of the websites

that M r. Schaefer searched; or (2) the server location of M r. Schaefer’s Internet

service provider. Nor did the government travel down any of the myriad other

conceivable paths of proof to establish the movement of the pornographic images

across state lines. Accordingly, we must conclude that insufficient evidence

exists to support M r. Schaefer’s conviction under 18 U.S.C. § 2252(a)(2).

10
The government does not attempt to base an argument in support of
M r. Schaefer’s convictions on the movement in interstate commerce of any
“materials” used to produce the pornographic images. Nor did it advance this
theory of prosecution at trial. Accordingly, we need not directly address the
“materials” component of the statute in analyzing the sufficiency of the
jurisdictional evidence to support M r. Schaefer’s convictions.

- 19 -
 b. Possession C onviction

Similarly, the government’s proof is insufficient regarding the possession

count. The government points to several facts to support its position: first, the

evidence that M r. Schaefer visited Internet sites that sold child pornography, and

dow nloaded child pornography to his computer; second, the evidence that the CDs

found in his possession were technically capable of accepting downloaded

materials (i.e., they were “rewritable”); and third, the CDs, among other things,

contained foreign-language movie clips of child pornography that were embedded

with Internet website addresses, and an image of a young girl, who presumably

had her image on the Internet because she was familiar to law enforcement from

other child pornography investigations.

The government maintains that this evidence was sufficient to establish the

interstate commerce element because it permitted a reasonable fact-finder to

determine that the images of child pornography on the CDs were obtained from

the Internet. For the reasons discussed above, however, the government’s

arguments are based upon a faulty legal premise: it was not enough for the

government to prove that the child-pornography images on the CDs were obtained

from the Internet. The government needed to prove that the images on the CDs

moved between states. Even if we analyze the government’s arguments under the

correct legal framew ork, the government’s proof was virtually non-existent on

this point.

- 20 -
 In this connection, our Wilson decision is instructive. See Wilson, 182 F.3d

at 744. M r. W ilson was prosecuted under § 2252(a)(4)(B). A government agent

testified at trial that some of the child-pornography images found on computer

disks in M r. W ilson’s possession originated from a German magazine. W e

concluded that this testimony, standing alone, was insufficient to satisfy the

statute’s jurisdictional nexus. Id. W e reasoned that the government must prove

that the specific images ended up on the disks through a movement in interstate

comm erce. In this regard, we stated:

[The government agent] offered no explanation . . . as to how
those particular images found their way to the diskettes in
defendant’s possession. Nor did the prosecution otherwise
attempt to outline the possible methods by which defendant
could have obtained the files through interstate commerce
(e.g., obtaining copies of the German magazines and scanning
the images into his computer; downloading copies of the
images from an out-of-state computer via the Internet . . .
etc.).

Id. (emphasis added).

Likewise, even if we assume arguendo that the images appearing in the

foreign-language movie clips and the image of the young girl originated outside

of the State of Kansas (like the images from the German magazine in Wilson), the

government offered no proof that the particular images on the CDs in question

moved across state lines. In particular, the government offered no proof that M r.

Schaefer accessed the images through an interstate Internet connection and either

downloaded them directly to the CDs or downloaded them to his computer and

- 21 -
later transferred them to the CDs. 11

Accordingly, we must conclude that the government’s jurisdictional proof

regarding the possession count was insufficient to support M r. Schaefer’s

conviction.

B. Plain Error Standard

W e have concluded that the jurisdictional language of §§ 2252(a)(2) and

(a)(4)(B) unambiguously requires the movement across state lines of the

statutorily-proscribed items. Thus, the district court comm itted clear and obvious

error in finding M r. Schaefer guilty without evidence of such movement. See

United States v. Ahidley, 486 F.3d 1184, 1193 (10th Cir. 2007) (“focusing on the

unambiguous language of the statute” in holding under plain-error review that

“[d]espite the presence of contrary authority in other circuits” the district court’s

error in discerning the restitution statute’s requirements was “error of an obvious

nature”). In Goode, we affirmed that it will be the extraordinarily rare case where

error that is predicated upon the insufficiency of the evidence will not adversely

affect a defendant’s substantial rights and seriously affect the fairness, integrity,

or public reputation of judicial proceedings. See Goode, 483 F.3d at 681 n.1

(discussing “the noncontroversial proposition that a conviction in the absence of

11
Indeed, the government offered no solid proof linking M r. Schaefer’s
use of the Internet – whether involving an interstate connection or not – to the
pornographic images on the CDs. For example, the government made no effort to
show that the specific images stored on M r. Schaefer’s computer also appeared on
the CDs.

- 22 -
sufficient evidence of guilt is plainly an error, clearly prejudiced the defendant,

and almost always creates manifest injustice”). This is not such a rare case. 12

Consequently, we notice the jurisdictional errors in M r. Schaefer’s two child

pornography convictions and conclude that those convictions cannot stand.

III. C ON CLU SIO N

For the reasons noted above, we conclude that the government presented

insufficient proof to establish the jurisdictional basis for M r. Schaefer’s

convictions under 18 U.S.C. §§ 2252(a)(2) and (a)(4)(B). In particular, we hold

that the government’s evidence concerning M r. Schaefer’s use of the Internet,

standing alone, was insufficient to satisfy the jurisdictional requirements of these

statutes. Under plain-error review, we notice the resulting errors. Accordingly,

we REV ER SE the district court’s criminal judgment and REM AND to the

district court for the entry of an order of acquittal.

12
Among other things, in Goode, there actually was evidence in the
record to establish jurisdiction with regard to the charged offense. 483 F.3d at
682. In the child-pornography area, our relevant cases (including those relied
upon by the government) also reflect that there was record evidence to establish
the requisite jurisdictional nexus. See, e.g., Kimler, 335 F.3d at 1135; Wilson,
182 F.3d at 744 & n.4; see also, supra, note 9 (discussing Wollet). In contrast,
the government offered no proof here concerning the path the child-pornography
images took before appearing on the two CDs (in particular, no proof that they
moved between states).

- 23 -
06-3080, United States v. Schaefer

T YM K O VIC H, J., concurring.

I concur in the opinion but write separately to make two points. The first is

about the Internet. The development and growth of the Internet over the past

fifteen years complicates the statutory analysis in this case. W e all know now

that virtually every transmission over the Internet (especially web site access)

crosses state boundaries, and quite often international borders. See, e.g., T.

Bonnett, Is ISP-Bound Traffic Local or Interstate?, 53 Fed. Comm. L.J. 239, 264-

68 (M arch 2001). In this case, I have no doubt the images traveled across state

and national borders.

Having said that, the statute of conviction, 18 U.S.C. § 2252(a)(2) and

(a)(4), requires evidence of such a transmission. The government asserts that the

record contained such evidence, but, as the opinion demonstrates, it did not. Nor

has the government asked us to take judicial notice of the ubiquitous interstate

nature of the Internet. Given the architecture of the Internet, it is vanishingly

remote that an image did not cross state lines. Another case may well be a

candidate for judicial notice of this issue.

M y second point is about the evidence in this case. Typically, the evidence

of the interstate element is readily presented by the prosecution, or can be gleaned

from the record. M ost Internet cases, for example, include testimony regarding

the location of the servers accessed by defendant, or some other evidence that
reveals the interstate character of the particular transmissions at issue. See, e.g.,

United States v. Wollet, 164 F. App’x 672 (10th Cir. 2006) (interstate movement

of images could be inferred because Oklahoma resident used AOL as his Internet

service provider and all AOL servers are located outside the state). This is not

such a case. And for that reason, I must reluctantly conclude that the evidentiary

failure constitutes plain error under our case law.

-2-