Opinion
MO-00-CR-107.
April, 2001.
ORDER DENYING DEFENDANT'S POST-VERDICT MOTION FOR JUDGMENT OF ACQUITTAL
Before the Court is the Defendant's Post-Verdict Motion for Judgment of Acquittal, filed with the Court on February 14, 2001. A Supplement to Defendant's Post-Verdict Motion for Judgment of Acquittal was filed on February 20, 2001. Both the Motion and the Supplement apply only to Count Three of the Superseding Indictment. The government did not file a written response to either of these submissions. Therefore, after due consideration of the Defendant's filings, the Court is of the opinion that the Post-Verdict Motion for Judgment of Acquittal should be DENIED.
DISCUSSION
The Defendant was convicted by a jury on November 8, 2000 of knowingly receiving and knowingly possessing child pornography in violation of 18 U.S.C. § 2252A(a)(2) (2000) and 18 U.S.C. § 2252A(a)(5)(B) (2000), respectively (Count Three of the Superseding Indictment). An element of each of the § 2252A convictions is the requirement that the child pornography has been mailed, shipped, or transported in interstate/foreign commerce by any means, including by computer. In the case of § 2252A(a)(5)(B), the interstate commerce element can alternatively be satisfied by showing that the child pornography was produced using materials that have been mailed, shipped, or transported in interstate/foreign commerce.
Because the jury found the Defendant guilty of both knowingly receiving and knowingly possessing child pornography, the issue raised by the Defendant's Post-Verdict Motion for Judgment of Acquittal is one of sufficiency of the evidence. The Defendant contends that the government did not prove beyond a reasonable doubt the interstate commerce element of the § 2252A child pornography crimes. Sufficiency of the evidence is reviewed de novo, but with the condition that the evidence must be viewed in the light most favorable to the jury's verdict. See Aguillard v. McGowen, 207 F.3d 226, 228 (5th Cir. 2000); United States v. Williams, 132 F.3d 1055, 1059 (5th Cir. 1998). Thus, the evidence need not "exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt." United States v. Richards, 204 F.3d 177, 206 (5th Cir. 2000).
On November 27, 2000, the Fifth Circuit decided United States v. Henriques, 234 F.3d 263 (5th Cir. 2000), in which it reversed a defendant's conviction for possession of child pornography under a prior version of § 2252A(a)(5)(B) because the interstate commerce element was not satisfied. Under that prior version of the statute, the government had to prove that the defendant had three or more images of child pornography that had traveled in interstate commerce or that were produced using materials that had been mailed, shipped, or transported in interstate commerce. See id. at 264 n. 2. The government called a witness who testified that she saw the defendant viewing one of the images on the Internet. Id. at 267. A second image was linked to interstate commerce/the Internet through a website address embedded on the image itself. Id. For the rest of the images, however, the government did not prove an independent connection to the Internet. Id. As such, the Fifth Circuit held, the government had not satisfied the interstate commerce element for at least three of the images. Id. at 267-68.
At the outset, it is important to note that this case falls under the amended version of § 2252A because the Defendant's unlawful actions allegedly took place in 2000, after the statute was amended in 1998. In the amended version, the 3 images minimum is no longer an element of the crime; rather, it is now an affirmative defense to the charge of knowingly possessing child pornography. See 18 U.S.C. § 2252A(d) (2000). The Defendant did not allege the defense in this case. Even if he had, though, the government would only be required to show that "an image" (singular) of child pornography had been mailed, shipped, or transported in interstate commerce, or was produced using materials that had been mailed, shipped, or transported in interstate commerce. See 18 U.S.C. § 2252A(a)(5)(B) (2000); cf. 18 U.S.C. § 2252A(a)(2) (2000) ("any child pornography," or "any material that contains child pornography").
In this case, Mr. Eric Seay testified for the government that many images of child pornography were found on the Defendant's computer's hard drive in a specific location designated as "downloaded files" or "Internet access files." He also explained that once an image is downloaded from the Internet using an Internet Service Provider such as America Online (AOL), it is stored in a portion of a computer's hard drive allocated for downloaded files. This testimony establishes that, in addition to the Defendant merely having Internet access and there being child pornography on his computer's hard drive, at least one image of child pornography was actually downloaded from the Internet. See Henriques, 234 F.3d at 266 (clarifying that proof of defendant's accessing of Internet and presence of pornographic material on defendant's computer did not establish required jurisdictional nexus between images and interstate commerce). Indeed, the situation here is analogous to that in Henriques, where a pornographic image was independently connected to the Internet because of a website address embedded on the image itself. Id. at 267.
Finally, the Fifth Circuit in Henriques did not address the question whether downloading an image from the Internet actually constitutes "interstate commerce." Id. at 267 n. 10. In this case, Detective Sheldon Johnson of the Midland Police Department testified for the government that the Defendant used AOL and that AOL's server is located in Virginia. Therefore, although the Fifth Circuit has not directly addressed the issue, the Court finds that there was at least some semblance of interstate commerce involved when the Defendant downloaded one or more images of child pornography from the Internet.
CONCLUSION
For the reasons stated above, the Court is of the opinion that the Defendant's Post-Verdict Motion for Judgment of Acquittal should be DENIED. Accordingly,
It is hereby ORDERED that the Defendant's Post-Verdict Motion for Judgment of Acquittal is DENIED.