426 F.Supp.3d 822
D. Kan.2019Background
- Yahoo and Google accounts tied to user names were reported to NCMEC for uploading child pornography; account data (verified phone number and IP addresses) traced to Wasson’s phone number and home address.
- Yahoo records showed three emails with child-pornography attachments sent on December 29, 2017; Yahoo and Google reports showed attempted uploads on May 29, 2017; November 27, 2017; and January 6, 2018.
- Search warrant of Wasson’s home recovered his phone, a Lexar thumb drive, and a laptop; the Lexar and laptop contained child-pornography images and chat logs linking Wasson to receipt and transmission of the images.
- Wasson admitted receiving child pornography via Dropbox and Skype and acknowledged his phone number; an image of Wasson appeared in the Google account and on his Facebook page.
- Indictment charged four counts of transportation of child pornography (18 U.S.C. § 2252A(a)(1)) and one count of possession (18 U.S.C. § 2252A(a)(5)(B)); Wasson moved under Rule 29 arguing insufficient evidence of the “transports” element and the interstate-commerce jurisdictional element.
- Jury convicted on all five counts; post-trial Rule 29 motion denied—court concluded uploads/emails satisfied “transport” and that use of internet services satisfied the interstate-commerce requirement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of “transport” in § 2252A(a)(1) | The government: transporting includes moving images off a device to another location (including cloud/online storage) | Wasson: transport requires geographic movement or transfer to a third party, not mere digital movement | Court: “transport” means to carry or convey from one place to another; digital transfer (home computer → internet/cloud/recipient) qualifies as transport; evidence supported transport findings |
| Interstate-commerce jurisdictional element for transportation counts | Government: use of internet-based services (Yahoo, Google, email) is use of a facility/instrumentality of interstate commerce, satisfying the statute | Wasson: Govt failed to show images actually traveled in interstate commerce or how they moved across state lines | Court: Current § 2252A requires use of any means/facility of or affecting interstate commerce; internet is generally an instrumentality of interstate commerce—use of internet services satisfied jurisdictional element; no proof images crossed state lines required |
| Interstate-commerce jurisdictional element for possession count | Government: possession of files downloaded via Skype/Dropbox (internet services) shows files were transported using a facility of interstate commerce | Wasson: Govt did not show the computer/drive or images were shipped or transported in interstate commerce | Court: Wasson’s admissions and files on drive/laptop showing downloads from internet-based services sufficed to prove the interstate-commerce hook for possession |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of evidence)
- United States v. Magallanez, 408 F.3d 672 (10th Cir.) (apply Jackson sufficiency review)
- Sebelius v. Cloer, 569 U.S. 369 (statutory-interpretation starts with ordinary meaning of terms)
- United States v. Schaefer, 501 F.3d 1197 (10th Cir.) (prior decision prompting Congress to amend § 2252A)
- United States v. Swenson, [citation="335 F. App'x 751"] (10th Cir.) (Congress amended § 2252A to address Schaefer)
- United States v. Baum, [citation="542 F. App'x 724"] (10th Cir.) (internet use satisfies § 2252A interstate-commerce requirement)
- United States v. Miltier, 882 F.3d 81 (4th Cir.) (use of the internet in transmission satisfies interstate-commerce element)
- United States v. DeFoggi, 839 F.3d 701 (8th Cir.) (internet is a channel of interstate commerce; downloading via internet meets nexus)
- Utah Lighthouse Ministry v. Foundation for Apologetic Info. & Research, 527 F.3d 1045 (10th Cir.) (recognizing internet as instrumentality of interstate commerce)
- United States v. Brown, 785 F.3d 1337 (9th Cir.) (Congress expanded § 2252A to reach to outer limits of Commerce Clause authority)