Case o' The Week: Ninth Dulls Jx Hook, No Mens Rea for Child Porn Interstate Commerce - Sheldon
Hon. Judge Richard Clifton |
Another ding further dulls the point of the jurisdictional hook, in
a decision on the interstate commerce element for the receipt of child porn. United States v. Sheldon, 2013 WL
5273101 (9th Cir. Sept. 19, 2013) decision available here.
Players: Decision by Judge Clifton, joined by Judges Hawkins and
McKeown. Hard-fought appeal by Montana AFPD David Ness.
Facts: Sheldon lived with members of his
family in Montana. Id. at *1. He was
told to move out after he inappropriately touched a minor child. Id. “Shortly thereafter, the minor child’s
video recorder was found to contain several videos of children naked,
showering,” and other sexually-related conduct. Id. He was charged with sexual exploitation of a child, and
knowingly receiving child pornography. Id.
At trial, two female minor children testified that Sheldon showed them
pornography on the internet and asked them to video themselves without
clothing. Id. The defendant was
convicted and sentenced to 480 months. Id.
Issue(s): Sheldon’s “primary argument . . .
is that under 18 U.S.C. § 2251(a), the Government was required to prove that he
knew the materials used to produce the child pornography had traveled in interstate
commerce.” Id.
Held: “We agree with
the other circuit courts that have previously considered this issue. Both the
Fifth and Eleventh Circuits have held that § 2251(a) does not require knowledge
as to the interstate nature of the crime. . . . We conclude that this
interpretation of the statute is correct. To satisfy the jurisdictional element
of § 2251(a) in this case, then, the Government was only required to prove
beyond a reasonable doubt that the child pornography was produced with
materials that had traveled in interstate commerce. The Government elicited
testimony at trial that the recorder used to produce the videos in Montana was
manufactured in China. This evidence was sufficient to satisfy the jurisdictional
element of § 2251(a) under the correct interpretation of the statute.”
Id. at *2-*3.
Of Note: The tough task of defending child
porn cases got even tougher this week, with this decision in Sheldon and with a decision on
electronic searches, United States v. Schesso, 2013 WL 5227071 (9th Cir. Sept. 18, 2013). In Schesso, Judge McKeown explores the intersection between the Ninth’s
decisions in Comprehensive Drug Testing (en
banc) (“CDT III”) and Cotterman (en banc). Recall that in CDT III Chief Judge Kozinski urged excellent
Fourth Amendment search protocols, but those protocols were, sadly, only
advisory. In Schesso, Judge McKeown
finds the failure to comply with the CDT
III protocols aren’t fatal to the search that revealed child porn. Id. at *8. While a disappointing outcome,
Schesso is a well-written opinion
that grapples with the new frontier of electronic searches – it is worth a
close read.
How to
Use: Like the interstate commerce element
in Section 922(g)(1) cases (felon in possession), or the FDIC insurance
requirement in bank robbery trials, 18 U.S.C. § 2113(a), the jurisdictional “hook”
in child porn prosecutions has been methodically dulled by years of appellate
decisions. See, e.g., United States v.
McCalla, 545 F.3d 750, 756 (9th Cir. 2008) (rejecting Commerce Clause
challenge to intrastate production of child pornography even where there is no
evidence that it was created for commercial purposes). Even a dull hook,
however, can sometimes land a fish. It is easy for an AUSA to overlook proof of
an obvious element – and the failure to prove a jurisdictional element is fatal
to the conviction. See United States v. James, 987 F.2d 648,
651 (9th Cir. 1993) (reversing bank robbery conviction from the ND Cal when the
government forgot to introduce a stipulation of FDIC insurance, and observing “The
defense has no obligation to remind the government of its obligation to prove
each element of a crime.”)
For
Further Reading: A new American Bar Association resolution opposes plea or
sentencing agreements that waive a defendant’s post-conviction claims of IAC,
prosecutorial misconduct or destruction of evidence. See resolution description here.
This follows recent Florida Bar Ethical Opinion 12-1, which finds an unwaivable
conflict of interest when defense counsel advises a client about these plea
waivers. See Ethical opinion here.
The A.B.A. has written to AG Holder urging that these waivers be removed from
agreements.
See ABA Letter here.
Time for a close look at these broad waiver provisions in the “stock” ND Cal
plea agreements.
Image
of the Honorable Richard Clifton from https://www.law.hawaii.edu/sites/www.law.hawaii.edu/files/people/17376/Clifton_Richard.jpg
Hook image from http://killzoneauthors.blogspot.com/2012/04/hook-your-book.html#.Uj8EIj_Yhhk
Steven
Kalar, Federal Public Defender ND Cal. Website at www.ndcalfpd.org
.
Labels: Child Pornography, Clifton, Computers, Forensic Searches, Fourth Amendment, Interstate Commerce, Jurisdiction, McKeown, Plea Agreements, Waivers
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