Whoops: Prosecutor Forgets That Pesky Interstate Element of a Federal Crime
Wednesday, September 5th by Robert LoblawU.S. v. Schaefer, 06-3080 (10th Cir., Sept. 5, 2007)
Defendant William Schaefer subscribed to various websites that deal in child pornography, and a raid on his home turned up several CD-Roms with illegal images. He was charged with receiving and possessing child pornography, and it should have been an open and shut case. Indeed, after a bench trial, he was convicted based on his possession of the CDs.
On appeal, Schaefer argued that the government had not presented any evidence that the images downloaded to his CDs had traveled across state lines. In response, the government argued that of course the images traveled across state lines: after all, this is the internet we are talking about.
But the Tenth Circuit refuses to accept this element on faith. The Court explains that the only evidence of interstate activity was that Schaefer, a Kansas resident, had a Hotmail account with Washington-based Microsoft, and he paid for his porn using a third party billing company based in New Jersey, which in turn coordinated its business through a Florida company. But the prosecution failed to introduce any evidence about the virtual itinerary of the images in question, such as the server locations of the websites that Schaefer visited or the server location of Schaefer’s ISP. Even though there were any number of ways the prosecution could have established that the images traveled across state lines, the prosecutor simply dropped the ball. So Schaefer’s conviction has to be reversed.
Judge Tymkovich concurs to suggest that the Court could take judicial notice of the “ubiquitous interstate nature of the Internet.” Here, however, the government did not ask for judicial notice.
September 11th, 2007 at 11:58 am
A ridiculous result. Granted, the meaning of “interstate commerce” has always been a bit amorphous, and the Rehnquist-era court did little to bring clarity to the matter. But, judicial notice is appropriate, and I have no doubt that it is the law in the 10th Circuit (as it is generally the law anywhere) that, on appeal, the decision of the district court can be upheld on any basis, whether or not that basis was actually contested below.
Given all of that, the AUSA did drop the ball. The typical witnesses in kiddie porn prosecutions (Postal inspectors, for reasons that become obvious when you think about it) are often so familiar with the images in question that they can tell you the “actress’” name, the year the photo was taken, etc. The AUSA could merely have asked whether the picture was taken within the borders of the great state of Kansas, and the answer would have resolved the debate. A good reminder to spend some time with the jury instructions before beginning trial, and build your presentation in order to ensure that each element is proven up.