U.S. v. Schaefer

• Citation: 501 F.3d 1197
• Decision Date: 05 September 2007
• Docket Number: No. 06-3080.,06-3080.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William SCHAEFER, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

501 F.3d 1197

UNITED STATES of America, Plaintiff-Appellee, v. William SCHAEFER, Defendant-Appellant.

No. 06-3080.

United States Court of Appeals, Tenth Circuit.

September 5, 2007.

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

Kim I. Martin, Assistant United States Attorney (Eric F. Melgren, United States Attorney, with her on the brief), Kansas City, KS, for Plaintiff-Appellee.

Before TYMKOVICH, EBEL, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

In this criminal appeal, Defendant-Appellant William 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, Mr. Schaefer contends the government failed to offer evidence to show that any single visual image he received or possessed traveled across state lines. Mr. 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 Mr. 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 Mr. Schaefer's convictions and REMAND to the district court for entry of a judgment of acquittal.

I. BACKGROUND

The government charged Mr. 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 Immigration and Customs Enforcement (ICE) received from the ICE national headquarters. According to the information, Mr. 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 Mr. Schaefer's home. Agents seized a desktop computer, CD-Rom disks ("CDs"), and various documents. Forensic testing on the computer revealed that Mr. Schaefer purchased at least five subscriptions to child pornography websites. The testing 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 Mr. 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 Mr. Schaefer waived his right to a jury trial. Other than Mr. Schaefer's home state of Kansas, the evidence at trial referenced only three states — New Jersey, Florida, and Washington.⁴ However, none of these geographical references concerned the receipt of the images, the CDs possessed, or the actual images found on the CDs and the computer. In addition, an investigating agent testified that he had no evidence Mr. Schaefer downloaded images via computer and placed them on the CDs found in his home. No evidence at trial explained where Mr. Schaefer obtained the visual depictions found on the CDs or who placed the images on the CDs. Moreover, no evidence indicated where the websites Mr. Schaefer accessed were based, where the websites' servers were located, or where Mr. 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 Mr. Schaefer guilty on both counts. Specifically, with respect to the two counts, the district court found the evidence established beyond a reasonable doubt that Mr. 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 commerce by computer or other means." See R. vol. I., Doc. 39, District Court Memorandum and Order, at 5-6, 8-10 (Sept. 12, 2006). Important to this appeal, the district court based the possession conviction solely on Mr. 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

The district court sentenced Mr. 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. Mr. Schaefer filed this timely appeal.

II. DISCUSSION

Mr. 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 Mr. 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, ___ U.S. ___, 127 S.Ct. 2062, 167 L.Ed.2d 769 (2007). We 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, ___ U.S. ___, 127 S.Ct. 2928, 168 L.Ed.2d 257 (2007), "affirming the 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, Mr. 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, 126 S.Ct. 468, 163 L.Ed.2d 355 (2005). We 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

Mr. 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 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 commerce . . . 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 Mr. Schaefer's convictions turns on whether an Internet transmission, standing alone, satisfies the interstate commerce requirement of the statute.⁷ Mr. 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. We agree.

We 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 Mr. Schaefer used the Internet. We 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, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995)). The plain language of §§ 2252(a)(2) and (a)(4)(B) speaks of movement "in commerce," 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 Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990)).

We 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...