U.S. v. Maxwell
| Decision Date | 01 October 2004 |
| Docket Number | No. 03-14326.,03-14326. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. James MAXWELL, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Dionja L. Dyer and Mara Allison Guagliardo, Fed. Pub. Defenders, Tampa, FL, for Defendant-Appellant.
Susan Hollis Rothstein-Youakim, Tampa, FL, for Plaintiff-Appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before EDMONDSON, Chief Judge, and TJOFLAT and COX, Circuit Judges.
A jury found James Maxwell guilty of two counts of knowingly possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).1 As a jurisdictional element of the offense, the statute required the Government to prove that the child pornography, or at least the material that produced it, traveled in interstate commerce. At Maxwell's trial, the Government did not establish that the child pornography moved across state lines. Consequently, its case relied on establishing that the images were produced by materials that did.
Maxwell appeals his convictions on four grounds. The first three grounds are insufficient to warrant reversal. The fourth ground is that the application of § 2252A(a)(5)(B) to the facts of his case amounts to an unconstitutional exercise of the Commerce Clause. That ground has merit and requires that we reverse Maxwell's convictions.
Maxwell rented a room in Alberta Wallace's apartment in St. Petersburg, Florida from May until August of 2002. During that time, Maxwell used Wallace's computer to access the Internet, and she had access to Maxwell's mail and computer accounts. Wallace eventually grew suspicious that Maxwell was interested in homosexual Internet activity, some involving children, and she contacted the police about her concerns.
Wallace allowed the Federal Bureau of Investigation to search her apartment. FBI agents copied the contents of Wallace's computer hard drive and seized almost 140 items. Most of these items consisted of computer disks and film taken from Maxwell's room. One item was a zip disk2 containing several hundred images of child pornography.
Subsequent to the search, Wallace found additional disks in a drawer in Maxwell's room, and she turned them over to the FBI. One was a floppy disk containing about fifteen images of child pornography.
In January 2003, a grand jury indicted Maxwell on two counts of possessing child pornography in violation of 18 U.S.C. § 2252A. Count I was predicated on the zip disk described above. Count II was predicated on the floppy disk. (We refer to these two disks collectively as "the charged disks.")
Maxwell was arraigned in February, pled not guilty, and stood trial in May. The Government presented the testimony of Wallace and several law enforcement officials from various agencies.
Wallace testified that she knew Maxwell from church and dated him briefly after her husband passed away. They stopped dating after a short time, in part because Wallace was offended when she learned that Maxwell was living with an unmarried couple that engaged in sexual relations (with one another, not Maxwell). By the time Maxwell moved in to Wallace's apartment, he and Wallace were merely platonic friends and slept in different rooms. No one else had a key to the apartment or stored possessions there. At first, Maxwell accessed the Internet with his own computer, but he began using Wallace's computer, with her permission, after his Internet service was disconnected. In August 2002, Maxwell moved out of the apartment.3 He gave Wallace power of attorney to manage his personal affairs for the time he would be gone. She had access to his bank account and paid bills for Maxwell's various expenses, including moving and cell phone expenses. Maxwell also gave Wallace access to his personal post office box and e-mail accounts. Around the beginning of September, in the course of her stewardship, Wallace says she discovered e-mail messages involving homosexuality and teenagers in Maxwell's accounts. When Wallace questioned him about those messages, he became angry, and the two never spoke to one another prior to Maxwell's trial. In October, Wallace contacted the police about her suspicions that Maxwell accessed (and possibly possessed) child pornography. She allowed the FBI to search Maxwell's former room and observed agents seizing items that Maxwell had moved into that room. Wallace testified that she had two filing cabinets of her own in Maxwell's room, but they only contained materials she used for teaching. She stored no computer disks of her own in Maxwell's room (in the filing cabinet or otherwise) and never used Maxwell's disks. Furthermore, Wallace never gave anyone else (other than the FBI) access to Maxwell's room or computer disks. In addition to the room, Wallace permitted the FBI to examine some of her belongings, including the laptop computer Maxwell used to access the Internet. Wallace testified that she never viewed child pornography on that computer and never let anyone other than Maxwell use it. A few days after the FBI search, Wallace found some additional computer disks that she identified as belonging to Maxwell and forwarded them to the FBI. She never used those disks or allowed others to use them.
The Government introduced into evidence a wide array of physical exhibits, including the charged disks. The zip disk, corresponding to Count I, was admitted as Government Exhibit 5A. Its label, which was published to the jury, contained the following handwritten words: "adult and young," "pre teens," "piss," "shaved," and "pierced." The word "animals" also appeared but had been crossed out. The floppy disk, corresponding to Count II, was admitted as Government Exhibit 7. Although these two disks — along with several others that were not charged in Maxwell's indictment — were admitted as physical exhibits, the court precluded the jury from viewing their contents with this exception: the Government was permitted to offer into evidence as separate exhibits hard copies made of portions of the disks. Some of the hard copies were images of child pornography. The court permitted the Government to admit a total of ten such hard copy images from all of the disks in evidence, and the Government chose to introduce images from the two charged disks only (even though other admitted disks in evidence also contained pornographic images).4
Agent Philippe Dubord of the Hillsborough County Sheriff's Office was assigned to the "Innocent Images Task Force" with the FBI and investigated Maxwell's case. Dubord identified and described the charged disks, along with corresponding exhibits showing information about the files contained on those disks (such as the names of the files, when they were saved on the respective disks, when they were last accessed, and the names of the directories in which they were stored). The names of the folders in which some of the images were saved included "adult," "young," and "pre teen." On cross-examination, Dubord conceded that neither of the charged disks contained files bearing Maxwell's name or picture (although such contents did appear on other disks that were found among Maxwell's possessions).
Other prosecution witnesses identified two of the persons depicted on the charged disks as minor children, one from Florida and the other from Texas. Special Agent Susan Koteen of the Florida Department of Law Enforcement testified that she recognized the physical surroundings shown in the images involving the Florida child. She identified them as the child's home, located in Howie-in-the-Hills, a small town in Lake County, Florida. Detective-Sergeant Katherine Davis of Angleton, Texas identified the Texas child but could not determine where the photographs were taken.
As additional circumstantial evidence that Maxwell knowingly possessed pornographic images, the Government introduced a recording of a phone conversation between Maxwell and his pastor, Linda Sessler.5 The Government played the recording at trial and distributed a transcript of its contents to the jury. Maxwell initiated the phone call on November 10, 2002 (three days before the FBI searched Wallace's apartment) from the Hillsborough County jail, where he was being held on unrelated charges. During the call, Sessler indicated that law enforcement officials planned to search his belongings at Wallace's apartment. Maxwell responded,
Well do me a favor . . . umm, get my floppy disk and all of my zip disks from [Wallace]. `Cause some of it I have recipes and stuff on and, and some of them I had started journals and stuff. And some stuff I have that was long before genesis and stuff. But just get all of that stuff. But I can, some of I can't remember what it is. And some of it I have been wiping out some of the disks. And uhh, just get all of that stuff and put it somewhere.
(Ellipses in original). Sessler asked if the materials to which Maxwell was referring were labeled. He replied,
It was just a big box. It had a bunch of floppy disks. And then there was the zip disks that are about the size of a floppy they're just a little bit bigger. It doesn't have anything to do with uhh, anything that they were talkin' about. But as you had said there's no more problems needed and so that would alleviate that. But I was, I woke up in the middle of the night and last night I was sick, I had a fever and everything. I don't know what was going on. . . . And I said let me ask you about that again. And just ask you to do that. But just all of my floppy disks and my zip disks. Just take them and just put 'em somewhere.
Sessler indicated doubt about this instruction and surmised to Maxwell that law enforcement authorities were "just tryin' to see if they can find anything." Maxwell agreed. He said,
Right, well that's why, that's why . . . that would just solve any problems that might would come up. Like you said, like if th...
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