Sunday, November 07, 2010

Case o' The Week: The Ninth Gets it Wright -- Federal Jurisdiction in Child Pornography Cases

Does a statute that makes it a federal crime to transport child pornography across state lines, require that the images actually cross state lines?

Um, yes
. United States v. Wright, 2010 WL 4345670 (9th Cir. Nov. 4, 2010), decision available here.

: Important victory for D. Az. AFPDs Heather Williams and Brian Rademacher. Decision by Judge Milan Smith, concurrence by Judge Hug.

Facts: An FBI agent got onto a mIRC (Internet Relay Chat) and directly hooked into a a computer server later traced to Wright’s address. Id. at *1. The agent downloaded child porn, and Wright was charged with the “advertisement, transportation, and possession of child pornography.” Id. at 2. Because the FBI agent’s computer (in Arizona) linked directly to Wright’s computer (in Arizona), (albeit over the internet) the images did not move across state lines. Id. at *3.

Wright beat seven counts at trial. Id. (!?! - a remarkable victory - seven acquittals in a child porn trial!). One of the counts of conviction was transportation of child porn under 18 USC § 2252A (as it existed in 2003). Id.

Issue(s): “Whether section 2252A(a)(1)’s ‘in interstate . . . commerce’ language requires the government to prove that the images themselves traveled across state lines appears to be a question of first impression in this circuit. Wright’s principal argument is that the statute does so require.” Id. at *3 (emphasis added).

Held: “[O]ur precedent indicates that criminal statutes punishing the transmission of the relevant material ‘in interstate or foreign commerce’ require the material itself to cross state lines. Yet here, as the government concedes, none of the images Wright transported to Andrew’s computer left the state of Arizona. Indeed, none traveled outside the city of Tuscon.” Id. at *6. “[W]e hold that an interstate predicate act - here, Wright’s connection to the IRC network - does not provide a sufficient basis for federal jurisdiction under section 2252A(a)(1).” Id. at *9.

Of Note: Judge Milan Smith pens a terrific analysis of the legislative history of the federal child porn statute, and the jurisdictional requirements of the precise language used. The case is a huge win and should be required reading for anyone mulling a challenge to the “jurisdictional hook” of any statute. Note, however, that this is not a broad invalidation of the federal child porn statutes – Wright presents some pretty unique facts. The agent in Wright accessed the images using “mIRC:”a very specific file-sharing client that “linked” the two machines. That is a very different system than, for example, downloading images off of a web page, or e-mailing porn. Both of these methods would have almost certainly created a jurisdictional hook under the Wright analysis.

How to Use: AFPDs Williams & Rademacher are formidable defense duo, and this lengthy opinion wades through their many additional challenges – with some good language and results. On the jurisdictional front, Judge Smith rejects the government’s argument that any use of the internet is always enough provide the jurisdictional hook for a charge. Id. at *11. Along the way he also scolds the government that the mere use of a computer is also insufficient: “Whether the defendant transported child pornography by mail, by sea, or by computer, the government must still prove it crossed state lines.” Id. at *8.

Moreover, while the defense didn’t win on this argument, Judge Smith provides a very sympathetic and quotable discussion of the defense right to introduce FRE 404(b) evidence – even against absent witnesses. Id. at *20.

Finally, Wright will be the go-to case to reverse those tight-lipped D.J.’s who summarily deny defense motions with contested evidentiary issues, with no factual findings. Id. at *13. Silence may be golden, but it’ll earn a district court a quick remand when it means that the Ninth can’t conduct a meaningful review. Id. at *12-*13.

For Further Reading: The biggest practical impact of Wright is a disappointing discussion at the end of the opinion on the financial and time limitations on computer forensic review. Id. at *24-*25. Anyone undertaking defense computer forensic review – or paying for it – should read this section, and should worry about the costs that it will generate. The defense, it appears, was sandbagged on the eve of the Wright trial, and didn’t get a needed continuance to counter a new forensic theory. Id. Their complaint fell on deaf ears on appeal. How do we avoid this situation in future cases? Empty CJA coffers, pay for scorched-earth forensic analysis, and salt the appellate record when money and time is unfairly restricted. For an interesting article worrying about electronic evidence in criminal cases, see Daniel B. Garrie, & Daniel K. Gelb, E-Discovery in Criminal Cases: A Need for Specific Rules, available here.

Image of mIRC logo from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at



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