United States v. Burdulis
2014 U.S. App. LEXIS 9624
| 1st Cir. | 2014Background
- Local police posing as a 13-year-old (via email) exchanged multiple sexually explicit messages with Paul Burdulis, who solicited "naughty pics," sent a naked photo of himself, and asked to meet the minor.
- Police obtained a warrant to search Burdulis's home and seize digital devices for evidence linking him to the emails and for "information regarding the creation and maintaining [of] pornographic material."
- Officers seized several devices, including a thumb drive; previewing its image gallery revealed child pornography. Burdulis did not dispute ownership or that the drive contained illegal images.
- Federal prosecutors charged Burdulis with possession of child pornography under 18 U.S.C. § 2252(a)(4)(B). To prove the statute’s interstate-commerce jurisdictional element, the government introduced the drive’s inscription, "Made in China."
- Burdulis moved to suppress the search, challenged the sufficiency of the interstate nexus, and objected to admission of the "Made in China" inscription as hearsay; the district court denied relief and he was convicted and sentenced to 108 months.
Issues
| Issue | Burdulis's Argument | Government's Argument | Held |
|---|---|---|---|
| Validity/scope of search warrant (Fourth Amendment) | Warrant lacked probable cause and was overly broad to allow searching all digital devices. | Emails to the undercover minor and the sent nude image supplied probable cause; intent to send porn electronically justified device searches. | Warrant was supported by probable cause and appropriately scoped; suppression denied. |
| Meaning of "produced using materials ... shipped or transported" (jurisdictional element of §2252) | "Produced" should mean initial creation only; copying onto a thumb drive doesn’t satisfy the statute. | Copying creates a new copy; thumb drive is a material used to produce a new copy, satisfying the statutory language. | "Produced" encompasses creating copies onto digital media; copying to the thumb drive satisfies the jurisdictional element. |
| Commerce Clause challenge | Applying §2252 to possession of files copied onto a device made abroad exceeds Congress’s commerce power. | Digital copying fuels an interstate market for child pornography; Congress may regulate because such activity substantially affects interstate commerce. | Commerce Clause challenge rejected; regulation is within Congress’s authority. |
| Admissibility of "Made in China" inscription (hearsay / Rule 807) | Inscription is hearsay and unreliable; government failed to give adequate Rule 807(b) notice and manufacturer details. | Inscriptions are self-authenticating and bear indicia of trustworthiness; notice given was adequate in substance. | Admission under Rule 807 not an abuse of discretion; any Rule 807(b) notice defect was not plain error given lack of prejudice. |
Key Cases Cited
- United States v. Guagliardo, 278 F.3d 868 (9th Cir. 2002) (copying a file to a disk "produces" a new image for §2252 purposes)
- United States v. Brunette, 256 F.3d 14 (1st Cir. 2001) (warrant affidavits relying on an officer’s unviewed opinion about images require more detail)
- United States v. Robinson, 137 F.3d 652 (1st Cir. 1998) (upholding interstate-nexus reasoning where a device manufactured out-of-state implicated federal jurisdiction)
- Paroline v. United States, 134 S. Ct. 1710 (2014) (discussing the role of digital proliferation in the interstate child‑pornography market)
- Gonzales v. Raich, 545 U.S. 1 (2005) (Congress may regulate intrastate conduct that substantially affects interstate commerce)