Sunday, February 27, 2011

Case o' The Week: "Original" Sin, and Lynn - Interstate Commerce and Digitized Child Porn

Philosophers have wrestled for centuries with the meaning of identity as framed in Theseus's paradox: the riddle of the wooden ship with the replaced planks.

They should have asked the Ninth: it takes only four pages to get to the answer in the recent Lynn decision. United States v. Lynn, 2011 WL 635298 (9th Cir. Feb. 23, 2011), opinion available here.

Players: Decision by Judge Gould, joined by Judges Shroeder and Thomas.

Facts: Lynn was convicted after trail for receiving child porn, and for possession child porn. Id. at *1. The images had been recovered from Lynn’s computer in Fresno, Ca., and had been downloaded via Limewire. Id. Cops from Washington and Georgia testified that two videos were of minor victims from their respective states. Id. at *2. At trial Lynn moved under Rule 29 for a judgment of acquittal, arguing that there was insufficient evidence on the interstate commerce element. Id. The motion was denied; Lynn was sentenced to 210 months. Id.

Issue(s): “According to Lynn, the government’s evidence on the out-of-state production of certain videos was insufficient because it did not bear on whether the actual contraband – which he contends are the digital video files found on Lynn’s laptop – had crossed a state border. He contends that the ‘original’ child pornography videos, first produced in Washington and George, respectively, are not the same visual depiction as the digital video files received on Lynn’s laptop via Limewire.” Id. at *4.

“This part of the case boils down to whether evidence that a video depicting child pornography was originally produced in another state suffices for a rational trier of fact to find that the visual depiction ‘has been mailed, or has been shipped or transported in interstate or foreign commerce.’” Id. at *3 (citing 18 USC § 2252(a)(2), (a)(4)(B)).

Held: We hold that the government met its burden on the interstate commerce element because a rational trier of fact could reasonably conclude that the visual depictions Lynn downloaded from Limewire – the images depicting the sexual exploitation of minors – had previously moved in interstate commerce. The evidence established that two videos in Lynn’s possession were first produced in states other than California. Viewing the evidence in the light most favorable to sustaining the verdict, a rational trier of fact could have found beyond a reasonable doubt that the visual depictions crossed state lines before they were downloaded onto Lynn’s laptop. If child pornography is produced in one state and the visual depictions – the images – end up on a defendant’s computer in another state, regardless of changes of medium, the jurisdictional provisions requiring that visual depictions of child pornography have been shipped, mailed, or transported in interstate or foreign commerce are satisfied. Stated another way, such evidence is sufficient to sustain a jury determination that the interstate commerce element was met.” Id. at *6 (footnotes omitted).

Of Note: Lynn could have been worse. The government argued that “proof of use of the Internet to obtain child pornography, without more, satisfies the interstate commerce element given the inherently interstate nature of the internet.” Id. at *4 (emphasis added). Thankfully, the holding in Lynn is limited to cases where the government proves that the original visual depiction was produced out of state. Id. at *6 & n.10.

Unfortunately, with the MD5 hash-file database maintained by the National Center for Missing & Exploited Children, odds are high that a prosecutor will be able to prove at least one image was created out of state. See generally article here.

How to Use: Lynn reaffirms and expands upon the good Ninth Circuit rule, that it violates double-jeopardy to be convicted of both receipt and possession of “essentially the same evidence.” Id. at *6. If a client is charged with both offenses, turn to Lynn’s helpful discussion of the Blockburger analysis (rejecting the government’s argument that different dates alleged means different offenses). Id. at *7.

For Further Reading: A porn video is taped in Washington; the tape brought to California and digitized in Clovis, then the digital file is uploaded in Fresno via Limewire. Is the uploaded digital file the same “visual depiction” as was on the tape that crossed state lines? In Lynn, Judge Gould concludes “yes:” “visual depiction” is not tied or fixed “to a particular medium.” Id. at *6. In Theseus, Plutarch wasn’t so sure – is a ship whose original wooden planks are completely replaced still the original “ship?” See article here. .

Image of the Ship of Theseus from

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


Labels: , , ,


Post a Comment

<< Home