Sunday, September 22, 2013

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.

Hook image from

Steven Kalar, Federal Public Defender ND Cal. Website at


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