United States v. Sturm

• Decision Date: 24 February 2012
• Docket Number: Nos. 09–1386,09–5022.,s. 09–1386
• Citation: 672 F.3d 891
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Kenneth Dean STURM, Defendant–Appellant.United States of America, Plaintiff–Appellee, v. Christopher Adam Dayton, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

672 F.3d 891

UNITED STATES of America, Plaintiff–Appellee,

v.Kenneth Dean STURM, Defendant–Appellant.United States of America, Plaintiff–Appellee,

v.Christopher Adam Dayton, Defendant–Appellant.

Nos. 09–1386

09–5022.

United States Court of Appeals, Tenth Circuit.

Feb. 24, 2012.

Kathleen A. Lord, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with her on the briefs), Denver, CO, for Appellant Sturm.

Michael G. McGuire, Attorney at Law, Tulsa, OK, for Appellant Dayton.

Judith A. Smith, Assistant United States Attorney, Denver, CO (John F. Walsh, United States Attorney, District of Colorado, Denver, CO; Thomas Scott Woodward, United States Attorney, Northern District of Oklahoma and Leena Alam, Assistant United States Attorney, Tulsa, OK, with her on the briefs), for Appellee United States of America.

Before BRISCOE, Chief, Judge, HOLLOWAY, BALDOCK, KELLY, LUCERO, MURPHY, HARTZ, O'BRIEN, TYMKOVICH, GORSUCH, HOLMES, and MATHESON, Circuit Judges.

MURPHY, Circuit Judge.

I. Introduction

Appellant Christopher Adam Dayton was convicted of distributing and possessing child pornography, in violation of 18 U.S.C. § 2252(a)(2) and (a)(4)(B). Appellant Kenneth Dean Sturm was convicted of receiving and possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B) and (a)(5)(B). Both Defendants argue the Government cannot prove the interstate commerce element of the crimes charged unless it presents evidence the specific digital images they possessed, received, and/or distributed traveled in interstate or foreign commerce. We conclude to the contrary: the Government may satisfy the jurisdictional element of each of the statutes at issue if it presents evidence that the substantive content of the images has, at some point, traveled in interstate or foreign commerce.

II. Factual BackgroundA. Appellant Dayton

The criminal charges against Dayton stemmed from an investigation initiated by FBI Special Agent Joseph Cecchini. By conducting a keyword search on LimeWire, a peer-to-peer file sharing program, and entering a search term commonly associated with child pornography, Cecchini located files containing the term on the computer of a LimeWire user who had been assigned the IP address 68.12.237.195. Cecchini downloaded four complete or partial video files from the 323 files available on the shared folder of this LimeWire user.¹

Cecchini subpoenaed Cox Communications, the Internet service provider that had assigned the 68.12.237.195 IP address to one of its subscribers. In response to the subpoena, Cox provided the subscriber's personal information and investigators obtained a search warrant for a physical address in Tulsa, Oklahoma. When officers executed the warrant on the morning of April 18, 2007, Dayton answered the door. While other officers conducted the search, Cecchini and a second officer interviewed Dayton inside the residence. Dayton admitted subscribing to the Cox Communications account. He also admitted using LimeWire to download child pornography and maintaining a shared folder visible to other LimeWire users containing, among other things, images and videos of child pornography. During the interview, Dayton wrote out the following statement: “[A]bout 3–4 months ago I started to use limewire and axedentle [sic] saw child porn and started to download it. I hated myself for it and deleted it. But I download[ed] it agen [sic] and I'm sorry. And burned it to 3 cds.”

During the search of Dayton's home, officers seized computer hard drives and 169 compact disks. Based on the content of the seized materials, Dayton was charged in a two-count indictment with violating 18 U.S.C. § 2252(a)(2) and § 2252(a)(4)(B). Specifically, the indictment charged Dayton

did knowingly distribute and attempt to distribute visual depictions of minors engaging in sexually explicit conduct, as that term is defined in Title 18, United States Code, Section 2256(2)(A)(i–v), to wit: video files, including but not limited to a filed named [ ].mpg, each of which video files had been shipped and transported in interstate or foreign commerce, the producing of each of which video files involved the use of minors engaging in sexually explicit conduct, and each of which video files were of such conduct, in violation of Title 18, United States Code, Section 2252(a)(2).

and

knowingly possessed and attempted to possess visual depictions of minors engaging in sexually explicit conduct, as that term is defined in Title 18, United States Code, Section 2256(2)(A)(i–v), to wit: video files and graphic image files, including but not limited to a file named [ ].mpg, each of which files had been transported in interstate or foreign commerce by computer, the producing of each of which files involved the use of minors engaging in sexually explicit conduct, and each of which files were of such sexually explicit conduct, in violation of Title 18, United States Code, Section 2252(a)(4)(B).

Before trial, Dayton moved to dismiss the indictment for failure to establish the interstate nexus element of the statute. Specifically, he argued Cox Communications's server was located wholly within the state of Oklahoma and all the visual depictions of children engaging in sexually explicit conduct he acquired or distributed using his account with Cox were routed only through that server. The district court took Dayton's motion under advisement until the close of the Government's trial evidence.

At trial, the prosecution played the four video files Cecchini downloaded from Dayton's LimeWire shared folder while Cecchini described to the jury the acts of child sexual abuse portrayed in the videos. A Tulsa pediatrician opined that the children in images found on Dayton's computer were minors and testified a child in one of the videos was much younger than twelve and “could easily be under eight.” Relevant to the question of the interstate movement of the visual depictions possessed by Dayton, Cecchini testified he had seen all four videos before and FBI investigators had previously downloaded them from foreign countries and from “every state but two.” Cecchini also testified the child in one of the videos is from Richland, Washington. On cross-examination, Cecchini reiterated he used LimeWire to download the files directly from a shared folder on Dayton's computer.² Cecchini restated that the FBI had downloaded the same files from users with IP addresses in other states but admitted there was no way for him to tell where or how Dayton obtained the specific files discovered on his hard drive and on the compact disks seized from his home because logs or records of that activity do not exist. Cecchini also testified that both his office and Dayton's home are located in the state of Oklahoma. In response to a question from the court at the end of re-cross, Cecchini testified that a LimeWire user like Dayton who makes files on his shared folder available for download by other LimeWire users, cannot limit access to the shared folder based on the geographical location of the other LimeWire users.

The Government also presented the testimony of Christopher Trifiletti, an FBI Special Agent who specializes in the identification of victims of internet crimes against children. Agent Trifiletti testified he had traveled to Paraguay as part of an investigation into the identity of minor children whose images had been posted to Internet news groups in the United States. The individual who photographed the children and originally posted them on the Internet for profit was identified as a Paraguayan named Milton Xischatti Michel. While in Paraguay, Trifiletti interviewed victims and their parents, ultimately confirming the identity of fifteen Paraguayan children. Paraguayan national identity cards or birth certificates established the ages of the children as between nine and thirteen years. Agent Trifiletti specifically identified the children in three of the images seized from Dayton's home as three children he met and interviewed while he was in Paraguay. He also confirmed that the photographs were taken in Paraguay and none of the children in the images have ever left Paraguay. Trifiletti further testified that one child was ten years old at the time her photograph was taken and the other two children were twelve.

At the close of the Government's case, Dayton renewed his motion to dismiss the indictment, arguing the Government failed to produce sufficient evidence to satisfy the interstate commerce element of 18 U.S.C. § 2252(a)(2) and (a)(4)(B). Relying on dicta in United States v. Schaefer, 501 F.3d 1197, 1206 (10th Cir.2007), Dayton argued the Government's evidence did not establish exactly how the digital files came into his possession and failed to establish that the digital files Agent Cecchini downloaded from his LimeWire shared folder traveled in interstate commerce when they moved from his computer in Oklahoma to the FBI computer which was also in Oklahoma. The district court denied Dayton's motion as to seven images, concluding the Government met its burden by presenting evidence the images were created outside the state of Oklahoma and, thus, at some point traveled in interstate commerce.

The jury found Dayton guilty on both counts charged in the indictment. The district court sentenced him to a sixty-three month term of incarceration. Dayton appealed his convictions, arguing the Government failed to meet its burden of proving the jurisdictional element of the charged offenses. A divided panel of this court agreed with Dayton, concluding the Government was required, but failed, to present evidence that the particular images seized during the search of Dayton's home crossed state lines when they moved from Dayton's LimeWire shared folder to Agent Cecchini's computer or when they were downloaded by Dayton and saved to his computer hard drive or a compact disk. United States v. Dayton, 426 Fed.Appx. 582, 598–99 (10th Cir.2011), vacat...