Please ensure Javascript is enabled for purposes of website accessibility
Home / Opinion Digests / Criminal Law / Computer use satisfies interstate commerce nexus

Computer use satisfies interstate commerce nexus

The court of appeals upheld convictions arising from child pornography files that were not proved to be shared interstate, but were proved to be received on a computer that had been moved between states and between countries.

In 2014, FBI agents executed a search warrant at Appellant Ronald Miltier’s home and seized an Acer laptop and a PNY thumb drive, both of which contained child pornography or remnants of child pornography.

Miltier was linked to the Acer computer in various ways: the computer’s only account bore the name of Miltier and his wife, Miltier’s email was the only email loaded on the computer, and Miltier admitted he used the computer for work on a trip to Japan. Additionally, several internet searches on the computer related to Miltier’s federal job, his car, and repairs he was making to his roof. In addition, the PNY thumb drive contained a photo of Miltier.

All of the illicit files on the Acer computer were originally created in a folder titled MY SHARED FILES. This folder was a mandatory folder established by a peer file-sharing program called Ares and was the default destination for all files downloaded from Ares. A forensic examiner confirmed that at least some of the illicit files were downloaded using Ares. The examiner also retrieved some search histories and lists of incomplete downloads, including the download timestamp for many files. Some of these were indicative of child pornography.

Based on ten videos found on the Acer computer, Miltier was charged and convicted of several counts of receipt and possession of child pornography, in violation of 18 U.S.C. § 2252A(a). He appeals his convictions.

Sufficiency of evidence

Contrary to Miltier’s contention, the jury had sufficient evidence linking him to the illicit files to conclude that he knowingly received or possessed them. Although Miltier asserts that he was at work during several download times and didn’t have access to the computer at those times, Miltier’s work hours were self-reported, and the timestamps on which he relies indicate when a file finished downloading, not when the search was initiated.

Moreover, significant evidence links Miltier to the computer on which the files were found. There was evidence in the computer’s search history indicating that Miltier used the computer to conduct internet searches, including for roof repair – which is what Miltier was doing when agents executed the search warrant. That search history also contained items such as “preteen porn,” “pedo,” “young girl,” “child porn,” and “illegal.” Finally, the searches related to roof repair were conducted at approximately 9:06 p.m.; on the same day between 8:39 p.m. to 9:17 p.m., seven files that appeared to be child pornography finished downloading from Ares.

The court therefore holds that the district court did not err in finding there was sufficient evidence for conviction.

Interstate commerce

The district court did not err in failing to instruct the jury that conviction required a finding that the files themselves were shipped or transported in interstate commerce to satisfy the interstate nexus requirement of the statute. This argument raises two questions: (1) whether Congress has the authority to criminalize the intrastate receipt of child pornography based on the movement of a computer in interstate commerce, and, if so, (2) whether § 2252A(a)(2)(A) includes the movement of a computer as a basis for satisfying the interstate nexus requirement.

As to the first question, Congress clearly has such authority. It is well-settled that Congress can regulate purely intrastate activities, as long as a rational basis exists for concluding that a regulated activity sufficiently affects interstate commerce. Congress has made specific findings that the intrastate regulation of child pornography sufficiently affects the interstate child-pornography market. Courts have also uniformly stated that the intrastate receipt, production, and possession of child pornography have a substantial effect on the interstate movement of child pornography. Additionally, courts have held that it is within Congress’s authority to allow an interstate-nexus requirement in related statutes to be satisfied by the movement of a computer in interstate or foreign commerce.

The court therefore holds that Congress has the authority to criminalize the intrastate receipt of child pornography based on the movement of a computer in interstate commerce.

As to the second question, the court disagrees with Miltier’s argument that Congress did not exercise the full extent of its Commerce Clause power in § 2252A(a)(2)(A). There is no indication in the statute that Congress intended to limit its own power. Instead, inclusion of the phrase “in commerce or affecting commerce” indicates that Congress intended to maximize its authority to criminalize child pornography. Therefore, the court concludes that the statute’s plain language unambiguously allows the interstate nexus to be satisfied based on the movement of a computer.

The statute’s legislative history reinforces this plain reading. The “in or affecting interstate” commerce language was added in 2007. Congress’s specific findings associated with the amendment expressed concern with the “explosion in the multi-jurisdictional distribution of child pornography” and the permanent record of child abuse and victimization that the industry causes, and they expressed the need to criminalize activities related to child pornography as a way to eliminate the market altogether.

Reading § 2252A(a)(2)(A) in the context of the other subsections of § 2252A further supports the conclusion that the interstate-nexus requirement can be satisfied based on the movement of a computer. Courts have found that the subsections criminalizing the intrastate production and possession of child pornography allow the interstate-nexus requirement to be satisfied based on the movement of a computer. Therefore, to conclude that the interstate nexus here cannot be satisfied in the same way would require finding that Congress intended to allow for greater prosecution of intrastate production and possession of child pornography than receipt of child pornography. This conclusion would be contrary to the 2007 amendments, the purpose of which was to increase the ability to prosecute against child pornography.

Thus, the court holds that § 2252A(a)(2)(A) criminalizes the knowing receipt of child pornography that had a connection with or effect on interstate or foreign commerce. Here, a computer that traveled in interstate or foreign commerce would satisfy the required “connection with” such commerce.

Constructive amendment

When the district court, through its jury instructions, broadens the bases of conviction beyond those charged in the indictment, a constructive amendment – sometimes called a fatal variance – occurs. A fatal variance changes the elements of the offense charged, such that the defendant is actually convicted of a crime other than that charged in the indictment. By contrast, a mere variance occurs when the facts proven at trial support a finding that the defendant committed the indicted crime, but the circumstances alleged in the indictment that have formed the context of the defendant’s actions differ in some way nonessential to the conclusion that the crime must have been committed.

Here, the jury instruction challenged by Miltier provided that the interstate-commerce element could be satisfied by a computer that traveled in interstate or foreign commerce or if the internet was used in receiving the files. The difference between the indictment stating that files were “received and transported over the internet to Miltier’s computer” and the instruction expressly allowing conviction based on the movement of the computer is a minor discrepancy between the government’s charges and the facts proved at trial. Therefore, the court concludes that the jury instruction was merely a variance from the indictment that did not deprive Miltier of his rights under the Fifth Amendment.

For the foregoing reasons, the judgment of the district court is affirmed.

United States v. Miltier, Case No. 16-4729, Feb. 7, 2018; 4th Cir. (Floyd); EDVA at Norfolk (Doumar). James R. Theuer for Appellant; Joseph Kosky for Appellee. VLW 018-2-021, 24 pp.