Virginia Lawyers Weekly VA Lawyers Weekly
Proving interstate commerce shouldn’t be all that difficult for federal prosecutors in the wake of a decision earlier this month from the 4th U.S. Circuit Court of Appeals.
The court in United States v. Ronald Miltier held that the fact that a defendant’s computer was made overseas was enough to establish the interstate nexus requirement for the receipt of child pornography.
A federal jury convicted Miltier, 56, of Portsmouth, of seven counts of receipt of child porn and one count of possession of child porn. After being sentenced to 70 years in prison, Miltier argued on appeal that prosecutors had failed to prove that he’d received the files in question through interstate commerce.
Miltier also argued that the judge should not have instructed jurors that the movement of a computer in interstate commerce could satisfy the interstate nexus requirement for receiving child porn. Instead, he asserted that the judge should have told jurors that the illicit files had to have been shipped or transported in interstate commerce.
But 4th Circuit Judge Henry Floyd disagreed. He determined in the Feb. 7 decision that prosecutors are required only to show the “movement of a computer in interstate commerce.” Floyd also wrote that Congress had “used language [in the law] to indicate its intent to maximize its authority to criminalize child pornography.
“Therefore, we conclude that the statute’s plain language, in criminalizing the receipt of all child pornography that has any connection to interstate commerce, unambiguously allows the interstate nexus to be satisfied based on the movement of a computer,” he added.
The court concluded that prosecutors satisfied that requirement by having an expert testify during Miltier’s trial that the computer containing images of child porn was manufactured in China and its hard drive was built in Thailand.
Attempts to speak a representative for the U.S. Attorney’s Office and with Miltier’s appellate attorney, James Theuer of Norfolk, were unsuccessful.
Charleston criminal defense lawyer Andy Savage, who reviewed the decision at Lawyers Weekly’s request, described the 4th Circuit’s decision as an overreach.
“If this was taken to its literal end, every crime in America would be in federal jurisdiction,” he said. “Suppose I have a [client] charged with auto break-in and he bought the screwdriver at Home Depot or Lowes and the screwdriver was made in Japan.”
“The practical extension of this case results in many, many impractical outcomes,” he added.
