United States Court of Appeals
For the First Circuit
No. 07-1462
UNITED STATES OF AMERICA,
Appellee,
v.
ANDREW LEWIS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Boudin, Wallace* and Howard,
Circuit Judges.
Christopher Goddu for appellant.
Kelly Begg Lawrence, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief for
appellee.
February 2, 2009
*
Of the Ninth Circuit, sitting by designation.
HOWARD, Circuit Judge. A jury convicted Andrew Lewis of
one count of receipt of child pornography in violation of 18 U.S.C.
§ 2252(a)(2), in connection with ten videos found on his home
computer. Lewis now argues that the evidence was insufficient to
convict him, pointing in particular to the "interstate commerce"
element of the crime and claiming that the government presented no
evidence to satisfy this element. Ultimately, two of our prior
cases, United States v. Carroll, 105 F.3d 740 (1st Cir. 1997) and
United States v. Hilton, 257 F.3d 50 (1st Cir. 2001), lead us to
reject Lewis' argument. Accordingly, we affirm.
I. Facts
Andrew Lewis came to the attention of federal law
enforcement in connection with some "inappropriate" images
discovered on a computer on the grounds of the Salem Maritime
National Historic Site, where Lewis worked as a United States Park
Ranger.1 He was later indicted for receipt of child pornography in
connection with other videos he admitted downloading to his
computer at home.
Forensic analysis of Lewis's home computer revealed that
the videos had likely been downloaded using Lewis's Comcast
Internet connection and a peer-to-peer file-sharing application
1
These images and the computers at the National Historic Site
form no part of the basis for the indictment, and they were not
introduced or referred to at trial. We mention them merely to
explain the genesis of the investigation that yielded the videos.
-2-
called LimeWire. The government presented expert testimony about
Lewis's computer and the software; the expert witness conceded on
cross-examination that it is possible a given file transfer made
using LimeWire might have been conducted entirely within the
borders of one state.
The government sought, and Lewis objected to, a jury
instruction that stated, "If you find that the video images were
transmitted or received over the Internet, that is sufficient to
find that the images moved or traveled in interstate or foreign
commerce." The district court agreed with the government and gave
a substantially similar instruction: "An image has been shipped or
transported in interstate commerce if it has been transmitted over
the Internet." Lewis objected both before and after the
instruction was given.
The jury asked one question of the district court during
its deliberations: "If a file is transported exclusively within a
single state on the Internet, is that considered interstate
commerce?" After consultation, and over further objection by
Lewis, the district court answered the question in the affirmative.
A little more than one hour later, the jury returned its guilty
verdict.
A. Background
To place the issue in context, we present some background
about the Internet and LimeWire. The government's expert testified
-3-
to much of this information. We refer to the fact-finding of other
courts for the rest.
1. The Internet
"The Internet is an international network of
interconnected computers." Reno v. ACLU, 521 U.S. 844, 849 (1997).
Internet communication relies on TCP/IP,2 "a set of standard
operating and transmission protocols that structure the Internet's
operation." In re Doubleclick Privacy Litigation, 154 F. Supp. 2d
497, 501 (S.D.N.Y. 2001). Any message or file to be transmitted is
broken into smaller pieces, called packets. "Each packet contains
the Internet Protocol ('IP') address of the destination . . . , a
small portion of data from the original document, and an indication
of the data's place in the original document." Id. The packets
are routed along the web-like network of interconnected computers.
"Not all packets from the same transmission necessarily follow the
same path." Sightsound.com, Inc., 185 F. Supp. 2d at 461. Along
the way, computers called routers determine the shortest-in-time
route for each packet from source to destination. Each packet
therefore takes a stepping-stone path through the network of
connected computers, subject to re-routing along the way if there
2
TCP/IP stands for "Transmission Control Protocol / Internet
Protocol." Resonate, Inc. v. Alteon Websystems, Inc., 338 F.3d
1360, 1362 n.1 (Fed. Cir. 2003). Transmission Control Protocol
governs the disassembly of a file into packets as well as the re-
assembly of packets into a file; Internet Protocol governs the
routing of those packets from the source computer to their
destination. Sightsound.com, Inc. v. N2K, Inc., 185 F. Supp. 2d
445, 461 (W.D. Pa. 2002).
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is congestion, an outage, or any other error in any part of the
path.
At the destination computer, the packets are re-assembled
according to instructions they contain into the original file or
message. If any packets are missing, the destination computer may
request they be re-sent from the source computer. Doubleclick
Privacy Litigation, 154 F. Supp. 2d at 502. All of this can now
occur fast enough to enable a viewer to watch live video from the
other side of the planet. "Dynamic routing," as the process is
known, makes the Internet extraordinarily robust, because the path
between two computers is able to adapt to changing conditions on
the network and thereby avoid areas of outage, congestion or other
problems. Dynamic routing, however, also obscures the exact path
a piece of data would likely take, or have taken, from one computer
to another. For the purposes of determining whether a transmission
has taken place across state lines, this difficulty is compounded
because transmission along any single "segment" of wire or fiber-
optic cable is so fast that the actual distance of the packet's
journey is much less important in computing the total travel time
than are network congestion, the number of "hops" the packet takes
and other factors. Simply put, it is impossible to say with any
certainty that a given packet will take the shortest route in
distance; the routers search for the shortest route in time.
Further compounding this problem, the network itself was not
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established with state boundaries in mind, nor does it even
recognize them. "The Internet is wholly insensitive to geographic
distinctions." Am. Libraries Ass'n v. Pataki, 969 F. Supp. 160,
170 (S.D.N.Y. 1997).
2. LimeWire
LimeWire is a peer-to-peer file sharing application that
connects users who wish to share data files with one another.3
Although the Supreme Court has defined "peer-to-peer" networks as
those in which "users' computers communicate directly with each
other, not through central servers," Grokster, 545 U.S. at 919-20,
in this context such a description may be misleading. While a
central server is not needed to coordinate file transfers made
through LimeWire, the transfer is still subject to the dynamic
routing associated with the underlying TCP/IP protocol. This means
that the so-called "direct connection" is still mediated by
whatever stops each of the packets might make on its journey from
source to destination.
LimeWire and the Gnutella network are indifferent to the
nature of the data -- images or text or music or video or software.
3
LimeWire is also the name sometimes used for the collection of
computers running the application LimeWire and for the central Web
site where the LimeWire application can be downloaded for free. It
is also sometimes used to describe the protocol by which that
network operates, although the protocol is properly known as the
"Gnutella" network. This network is the one used by the Streamcast
software at issue in MGM Studios v. Grokster, Ltd., 545 U.S. 913,
921 (2005). We use "LimeWire" to refer to the software
application.
-6-
They are equally indifferent to the legal status of the data --
public-domain or copyrighted or contraband.
LimeWire combines two functions: the ability to search
for and download files from other users, and the ability to make
files on one's own computer available to other users. A brief
sketch of the mechanics of these functions will frame the evidence
presented at Lewis's trial.
a. Sharing One's Own Files
When it is first installed, LimeWire creates a folder
named "Shared" on the user's computer. By default, any file placed
in that "Shared" folder is available to anyone else on the Internet
who uses the LimeWire application. Also by default, any file a
user downloads through LimeWire is automatically placed in that
"Shared" folder and is therefore offered by that user for further
downloads by other users. These default behaviors can be changed
by the user: a user could turn off sharing altogether, designate
another folder with a different name to serve as the "Shared"
folder, manually remove files from the "Shared" folder (or whatever
folder had been designated) and prevent them from being shared on
an individual basis.
b. Searching For and Downloading the Files of Others
To download files from other users, a user launches
LimeWire and inputs a search term or terms. The application then
seeks matches for those terms in the file names and descriptions of
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all files designated for sharing on all computers then running the
LimeWire application (or any other application using the Gnutella
network). The application displays a list of file names that match
the search terms, and the user can select one or more of those to
begin downloading the files.
II. Discussion
We note at the outset that Lewis's appeal is from the
denial of his Rule 29 motion for judgment of acquittal. To succeed
in this claim he must establish that no reasonable jury could have
convicted him of the charged crime based on the evidence presented.
United States v. Wilder, 526 F.3d 1, 8 (1st Cir. 2008). He trains
his sights only on the interstate commerce element of the statute,
however, conceding for the purposes of this appeal that the other
elements were met.
Lewis was convicted of one count of receiving child
pornography in violation of 18 U.S.C. § 2252(a)(2).4 It is
4
That provision reads:
§ 2252. Certain activities relating to
material involving the sexual exploitation of
minors
(a) Any person who--
. . . .
(2) knowingly receives, or distributes any
visual depiction that has been mailed, or has
been shipped or transported in interstate or
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 by any means including by
-8-
undisputed that Lewis knowingly possessed video files of child
pornography, and that he procured those files using his computer,
the Internet and LimeWire. The sole question is whether the
government met its burden to prove that the videos had been
"shipped or transported in interstate or foreign commerce."5
The government introduced evidence, and Lewis did not
contest, that he downloaded the images using the Internet. Lewis,
however, contends that § 2252(a)(2) requires the actual shipment or
communications of the images across state lines. And, he
continues, the mere fact that he used the Internet is insufficient
to prove the images crossed state lines.
The government first challenges Lewis's operating
assumption -- that § 2252(a)(2) requires actual shipment or
communication of the images across state lines. The government
makes two distinct arguments. First, it argues that no actual
crossing of a state or national border is necessary -- the statute
should be read, the government says, to require only transmission
computer or through the mails, if--
(A) t h e 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 . . . .
shall be punished as provided in subsection
(b) of this section.
18 U.S.C. § 2252(a)(2).
5
No evidence was presented and no argument was made concerning
the "materials containing" prong of the statute, and we do not
consider it further.
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or shipment in the "stream" or "flow" of commerce. Second, the
government argues that even if the statute incorporates a general
requirement of actual interstate movement, transmission or shipment
by computer should be considered differently than other kinds of
shipment or transmission. In that medium, the government argues,
the jurisdictional requirement of the statute should be relaxed.
We find neither argument convincing.
In making its first argument -- that the statute does not
require proof of actual shipment or communication across a border
-- the government contends that Congress intended to reach purely
intrastate transmission of child pornography that used a channel or
instrumentality of interstate commerce. But this is not what the
statute says. "Congress uses different modifiers to the word
'commerce' in the design and enactment of its statutes." Circuit
City Stores v. Adams, 532 U.S. 105, 115 (2001). "[T]he 'word
"involving," like "affecting," signals an intent to exercise
Congress' commerce power to the full.' Unlike those phrases,
however, the general words 'in commerce' and the specific phrase
'engaged in commerce' are understood to have a more limited reach."
Id. (quoting Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265,
277 (1995)).
Perhaps just as important, the government's argument here
would prove too much. Previous cases treated the parallel
jurisdictional requirements of § 2252(a) as requiring some actual
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movement across state lines.6 See United States v. Robinson, 137
F.3d 652, 653 (1st Cir. 1998) (upholding conviction under §
2252(a)(4) and mentioning specifically that "the fifty photographs
were all taken using a Kodak instant camera and Kodak instant film,
both of which were manufactured by the Eastman Kodak Company
outside of Massachusetts"); see also United States v. Smith, 459
F.3d 1276, 1282 (11th Cir. 2006) (relying on proof that materials
had actually crossed state lines to satisfy jurisdictional
element). Similarly, this court has held that intent to ship child
pornography across state lines is not required for a conviction
under § 2251, which contains the same language. Barber v. United
States, 1993 U.S. App. LEXIS 21198, at *4-*5 (1st Cir. Aug. 23,
1993) (unpublished opinion) (per curiam). That case concerned a
6
The relevant language in § 2252(a)(4)(B) criminalizes the
possession of "[one] 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, or which was produced using
materials which have been mailed or so shipped or transported, by
any means including by computer" provided the depiction is of
sexually explicit conduct by a minor and the depiction was created
involving the use of a minor engaging in sexually explicit conduct.
Thus, § 2252(a)(4)(B) allows the jurisdictional element to be
satisfied in two ways: either the depiction has been "mailed, or
has been shipped or transported in interstate or foreign commerce"
or else it has been "produced using materials which have been
mailed or so shipped or transported." Id. The same jurisdictional
language appears in § 2252A(a)(3),(5) and (6). The syntax of these
two requirements compels us to read them as meaning the same thing
by "shipped or transported." Section 2252(a)(2), under which
Lewis was convicted, does not include this second "produced using
materials" prong, but interpretation of "shipped or transported in
interstate commerce" in that prong sheds light on its meaning in
the first.
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defendant who admitted mailing undeveloped film to an address in
Massachusetts for developing, but he denied intending or knowing
that the film would thence be forwarded to Virginia. We held that
actual interstate transportation, without intent, satisfied the
statute. This holding would have been unnecessary, indeed
nonsensical, if no crossing of state lines need have been shown at
all -- the defendant admitted mailing the images intrastate and
having done so intentionally. Id. "Shipped or transported in
interstate commerce" here must require interstate movement.
The interstate commerce requirement at issue here is like
that of many other criminal statutes. See, e.g., 18 U.S.C. § 1343
("Whoever . . . transmits or causes to be transmitted by means of
wire, radio, or television communication in interstate or foreign
commerce [the relevant materials shall be guilty of a crime].");
Id. § 2314 (subjecting to criminal liability "[w]hoever transports,
transmits, or transfers in interstate or foreign commerce" the
items subject to the statute). These provisions, too, have long
been held to require actual crossing of a state or national border.
See, e.g., United States v. Potter, 463 F.3d 9, 16 (1st Cir. 2006)
(relying on "interstate faxes" to satisfy one element of § 1343);
United States v. Cassiere, 4 F.3d 1006, 1011 (1st Cir. 1993)
(elements of § 1343 include "the use of interstate wire
communications"); Efron v. Embassy Suites (P.R.), Inc., 47 F. Supp.
2d 200, 205 (D.P.R. 1999) (dismissing wire fraud charges because
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"none of these facsimile transmissions [were] alleged to have
traveled on interstate phone lines, a necessary component of the
actus reus needed for indictment under the wire fraud statute");
First Circuit Pattern Jury Instructions, § 4.20 (actual interstate
movement required for § 2314). The government, then, cannot excise
completely the requirement that the child pornography cross a state
or national border. To hold otherwise would do violence to the
plain language of the statute and fly in the face of practice,
including that of the government itself, with regard to this and a
host of similarly worded statutes.
The government's second argument attempts to create a
distinction between items that are "shipped or transported" using
a computer, and those that are "shipped or transported" using other
means. While we concede that it is possible Congress meant to make
purely intrastate transmission by computer of these materials into
a federal crime, by the plain language of the statute, it did not
do so. We are therefore constrained from altering the statute
based on our assumptions about what Congress wanted.
Congress added the words "by any means including by
computer" to the statute in 1988. Nov. 18, 1988, P.L. 100-690,
Title VII, Subtitle N, Ch 1, § 7511(b), 102 Stat. 4485. The clause
does evince a particular concern with computer transmission of
child pornography, but its placement -- modifying "has been shipped
or transported . . . in interstate commerce" cannot indicate that
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special rules apply to computer shipment or transmission. The
plain language of the statute indicates that we are to treat
shipment or transmission by computer the same way we would shipment
or transmission by any other means. While the government's
argument may be sensitive to Congress's actual desires in altering
the statute, we must be bound by what Congress wrote, not what it
wanted. We "must presume that a legislature says in a statute what
it means and means in a statute what it says there. When the words
of a statute are unambiguous, then, this first canon is also the
last: judicial inquiry is complete." Conn. Nat'l Bank v. Germain,
503 U.S. 249, 253-54 (1992) (internal quotation marks and citations
omitted).
Having concluded that § 2252(a)(2) does require that the
government prove actual interstate transmission or shipment of the
images, we turn to the government's next argument -- that it proved
interstate transmission occurred in this case because the
prosecution introduced evidence that Lewis used the Internet.7 In
support of this argument the government cites two of our prior
cases, Carroll and Hilton. After close review of the holdings in
7
We do not consider the question of whether Congress has
sufficient power under the Commerce Clause to regulate the
intrastate transmission of child pornography. We have upheld the
statute at issue under the Commerce Clause, and the parties here do
not dispute that result. United States v. Morales-De Jesus, 372
F.3d 6, 17 (1st Cir. 2004); see also Gonzales v. Raich, 545 U.S. 1,
9 (2005) (upholding Congress's power to regulate intrastate,
noncommercial activity that in the aggregate affects interstate
commerce that Congress has determined to proscribe).
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these cases, we agree with the government that Lewis' sufficiency
claim must fail.
In Carroll, 105 F.3d 740, we addressed whether there was
sufficient evidence to convict the defendant of violating 18 U.S.C.
§ 2251(a) which criminalizes the production of child pornography,
"if such person knows or has reason to know that such visual
depiction will be transported in interstate or foreign commerce by
any means, including by computer." We cited three different ways
the government had satisfied the interstate transmission element of
the statute. One of them was by presenting evidence that the
defendant planned to use the photographs he took as illustrations
for a "dating service" site on the Internet. We wrote,
"[t]ransmission of photographs by means of the Internet is
tantamount to moving photographs across state lines and thus
constitutes transportation in interstate commerce." Id. at 742
(citation omitted).
The second case the government cites is United States v.
Hilton, 257 F.3d 50 (1st Cir. 2001). That case concerned whether
there was sufficient evidence to convict the defendant of
possessing child pornography in violation of 18 U.S.C. §
2252A(a)(5)(B). In addressing the defendant's argument that the
government failed to prove beyond a reasonable doubt that the
images he possessed traveled in interstate commerce, we cited
Carroll and held that "[u]nder the case law, proof of transmission
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of pornography over the Internet or over telephone lines satisfies
the interstate commerce element of the offense." Id. at 54.
In light of these two cases, we conclude that the
government proved the images traveled interstate when it introduced
evidence that Lewis received images that were transmitted over the
Internet.
We are not alone in holding that the government may
satisfy the interstate commerce element by proving that child
pornography images were transmitted over the Internet. Two other
circuits, citing Carroll, have reached the same conclusion. In
United States v. Runyan, 290 F.3d 223, 239 (5th Cir. 2002), the
Fifth Circuit, quoting Carroll, held that proof of use of the
Internet was sufficient to find the interstate commerce element of
§ 2251(a) satisfied. Runyan, 290 F.3d at 239. And the Third
Circuit similarly quoted Carroll as supporting its holding that §
2252(a)(2)'s interstate commerce element was satisfied by the
defendant's use of the Internet. United States v. MacEwan, 445
F.3d 237, 244 (3d Cir. 2006) ("because of the very interstate
nature of the Internet, once a user submits a connection request to
a website server or an image is transmitted from the website server
back to the user the data has traveled in interstate commerce").8
8
See also United States v. White, 2 Fed. App'x. 295, 298 (4th
Cir. 2001) (unpublished opinion) (quoting Carroll in its holding
that use of the Internet is transportation in interstate commerce);
United States v. Smith, 47 M.J. 588, 592 (N-M. Ct. Crim. App. 1997)
("[W]e hold that the transmission of information in 'cyberspace'
would constitute a transportation in interstate commerce.")
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Lewis makes a fair attempt at distinguishing both Carroll
and Hilton from this case. With respect to Carroll, he makes three
arguments. First, he notes that our holding in Carroll that
"[t]ransmission of photographs by means of the Internet . . .
constitutes transportation in interstate commerce" was supported
with citations to two other cases -- United States v. Thomas, 74
F.3d 701, 706-07 (6th Cir. 1996) and United States v. Maxwell, 42
M.J. 568, 580 (U.S.A.F.C.A. 1995). Our holding then, he argues,
must be interpreted through the lens of those cases, and neither of
them stands for the broad proposition we attributed to them.
Nevertheless, even if we were to accept Lewis' argument that we
were overly generous in our reading of Thomas and Maxwell, that
does not change the binding conclusion we reached in Carroll.
Next, Lewis contends that, unlike the defendant in Carroll, he
objected to the interstate commerce element at trial. Although
this may be true, we fail to see how this factual distinction
undermines the applicability of Carroll in any respect. As it is
in this case, in Carroll our attention was squarely trained on
whether the government introduced evidence sufficient to satisfy
the statute's interstate commerce element. Finally, Lewis argues
that, unlike in this case, in Carroll there was other, "substantial
evidence" of interstate movement. True, we identified other
grounds for our holding in Carroll. For example, we noted that the
(relying also on Carroll).
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defendant told an individual that he intended to take film across
state lines. Carroll, 105 F.3d at 742. Nevertheless, that
alternative grounds existed for our holding fails to detract from
our express conclusion that the use of the internet in that case
was enough, standing alone, to satisfy the jurisdictional element.
See id.
Lewis's attack on the Hilton decision is even less
convincing. He essentially attacks that case for not reading
Carroll as he does. As developed above, Lewis' interpretation of
Carroll is overly narrow. Although we could accept Lewis'
invitation to construe the Carroll and Hilton decisions as he does,
to do so would be disingenuous.
For the sake of completeness, we should note that
Congress recently amended the child pornography statutes, including
the one before us, to expand the jurisdictional coverage. It did
so by replacing all instances of "in interstate" with "in or
affecting interstate" commerce. Effective Child Pornography
Prosecution Act of 2007, Pub. L. No. 110-358, § 103. The
legislative history indicates that Congress was unhappy with
circuit court decisions narrowly construing the prior statute and
wanted to put issues like ours to rest. See 153 Cong. Rec. H13591-
92 (daily ed. Nov. 13, 2007) (statement of Rep. Conyers); id. at
H13592 (statement of Rep. Goodlatte). Despite these recent
developments, this case is governed by the statute as written at
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the time of Lewis's conduct, and our interpretation rests only on
the law as it stood at that time.
III. Conclusion
For the reasons stated above, the judgment below is
affirmed.
AFFIRMED.
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