U.S. v. Lewis
| Decision Date | 02 February 2009 |
| Docket Number | No. 07-1462.,07-1462. |
| Citation | 554 F.3d 208 |
| Parties | UNITED STATES of America, Appellee, v. Andrew LEWIS, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Christopher Goddu, for appellant.
Kelly Begg Lawrence, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief for appellee.
Before BOUDIN, WALLACE* and HOWARD, Circuit Judges.
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.
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 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 to much of this information. We refer to the fact-finding of other courts for the rest.
"The Internet is an international network of interconnected computers." Reno v. ACLU, 521 U.S. 844, 849, 117 S.Ct. 2329, 138 L.Ed.2d 874 (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 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 resent 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 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).
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, 125 S.Ct. 2764, 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. 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.
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.
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 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.
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 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...
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