Case Information
*2 KAYATTA, Circuit Judge
. Paul Burdulis was convicted of possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) after the police found such pornography on a thumb drive (a kind of data storage device) in his home. To show that the pornography was "produced using materials which have been . . . shipped or transported" in interstate commerce, as required by the statute, the prosecution relied solely on an inscription on the thumb drive stating, "Made in China." We agree with the district court that copying pornography onto a thumb drive is "produc[ing]" pornography under the statute, and we reject Burdulis's challenge to the admission of the drive's inscription. We also reject Burdulis's claim that our interpretation of the law puts it beyond Congress's authority to regulate interstate commerce. After discussing these issues, along with Burdulis's objections to the warrant used to search the thumb drive, we affirm his conviction in all respects.
I. Background
Burdulis became the subject of investigation by local police in Massachusetts when a note with his first name, email address, and telephone number was given to a thirteen-year-old boy at a golf course. After learning of the boy's receipt of the note, and determining that the owner of the phone number, Burdulis, was a registered sex offender, a detective created an email address to *3 communicate with Burdulis posing as "Tye," the boy who received the note.
Burdulis sent approximately thirty emails to Tye during a span of four days in May 2009. In the emails, Burdulis asked for "naughty pics" of Tye, and sent Tye a naked picture of himself, with his penis exposed. Burdulis also offered to send Tye "pornos" and "internet pics."
In his emails, Burdulis suggested several times that he and Tye should meet in person, making the following statements (among others):
• “maybe sometime you would join me in a bubble bath?”;
• “if we get together again maybe I could give you a present :)”;
• "wish I could hug you too . . . wish we could get together but guess you got school in the morning";
• "Is there a way to see each other for real today?";
• “It would be neat if we could work it out that you come over sometime”; and, • “I have the camera on my phone for now, but that’s all I have unless you come over and I use my webcam.”
After several days of emailing, the local police sought and received a warrant to search Burdulis's home. [1] In seeking the warrant, the police claimed that the emails established probable cause to believe that Burdulis had committed two crimes under state law: enticement of a child under sixteen, Mass. Gen. Laws ch. 265, § 26C, and dissemination of matter harmful to minors, Mass. Gen. Laws ch. 272, § 28. The warrant granted authorization to seize all digital devices in Burdulis's home, and to search them for any information linking Burdulis to the emails and for any "information regarding the creation and maintaining [of] pornographic material.”
The police took several digital devices from Burdulis's home, including a thumb drive. When an officer viewed a gallery of images on the thumb drive, he saw several images of child pornography. Burdulis does not dispute on appeal that the thumb *5 drive contained child pornography or that it belonged to him.
Burdulis was prosecuted in federal court for possession of child pornography, found guilty by a jury, and sentenced to 108 months in prison. Before trial, the district court denied Burdulis's motion to suppress the evidence found in his home, ruling that the warrant was supported by probable cause. [2] The district court also rejected Burdulis's claim that the government's proof failed to satisfy the jurisdictional element of the child pornography statute, and that the statute, as applied to him, exceeded Congress's authority under the commerce clause. Burdulis appeals these rulings.
II. The Constitutionality of the Search Warrant
Burdulis first argues that the warrant to search both his
home and the devices inside it violated the Fourth Amendment
because the government did not have probable cause to believe that
he had committed any crime and because the warrant was too broad.
In assessing the district court's denial of Burdulis's motion to
suppress, we review the court's legal conclusions de novo while
reviewing factual findings for clear error.
[3]
United States v.
Wilder,
*6 Burdulis's emails certainly supplied probable cause to believe that he had cоmmitted the state crime of enticement of a child under sixteen. As relevant here, a person commits the crime by "coax[ing] or invit[ing]" another person, believing that person to be under the age of sixteen, to enter a "dwelling . . . with the intent that he or another person will violate" specified laws, including the prohibition against unnatural and lascivious acts with a child under 16 and the prohibition on indecent assault and battery on a child under 14. Mass. Gen. Laws ch. 265, §§ 26C, 13B, ch 272, § 35A. In сontext, the emails we have described above could self-evidently be viewed as constituting enticement.
Similarly, the police had probable cause to believe that
Burdulis committed the state crime of dissemination of matter
harmful to minors when he sent Tye a naked picture showing his
partially erect penis. Massachusetts law defines matter "harmful
to minors" to include material that "(1) describes or represents
nudity, sexual conduct or sexual excitement, so as to appeal
predominantly to the prurient interest of minors; (2) is patently
contrary to prevailing standards of adults in the county where the
offense was committed as to material suitable for such minors; and
(3) lacks serious literary, artistic, political or scientific value
for minors." Mass. Gen. Laws ch. 272, § 31. The statute prohibits
purposeful dissemination of material that the distributor knows is
harmful to minors to someone the distributor believes to be a
*7
minor. Mass. Gen. Laws ch. 272, § 28. The Massachusetts Supreme
Judicial Court has held that an image displaying a man's genitals,
even if not obscene, could be found by a jury to be matter harmful
to minors depending on the surrounding circumstances. See
Commonwealth v. Kereakoglow,
(2013) (explaining that the police havе probable cause for a search where "the facts available to [them] would warrant a person of reasonable caution in the belief that . . . evidence of a crime is present" (internal quotation marks omitted)).
Burdulis also argues that, even if the police had
probable cause for a limited search of his home, the warrant swept
too broadly in allowing the police to look for “[a]ny computer data
file containing information regarding the creation and maintaining
[of] pornographic material." To prevent "exploratory rummaging in
a person's belongings," Coolidge v. New Hampshire,
In assessing whether the police had probable cause to
search for pornography, we acknowledge that, in a different
context, we have cautioned that courts should generally not approve
a warrant to search for child pornography based solely on a police
officer's assertion that images he has seen but has not shown to
the magistrate constitute such pornography. See United States v.
Brunette,
III. The Jurisdictional Element
Burdulis next raises a series of arguments related to the
jurisdictional element of the statute under which he was convicted.
The term "jurisdictional element" rеfers to a statutory provision
that limits (or, more commonly, justifies) the reach of a federal
statute by linking the offense to conduct that involves "at least
some explicit connection with or effect on interstate commerce."
United States v. Morales-de Jesús,
has been mailed, or has been shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer.
18 U.S.C. § 2252(a)(4)(B).
In attempting to show that the jurisdictional element was satisfied in this case, the government offered evidence that Burdulis's thumb drive, which contained child pornogrаphy, was made in China. Based on this evidence, the government argued that the pornographic images were "produced using materials"--namely, the thumb drive--"shipped or transported . . . in . . . interstate or foreign commerce." We discuss below Burdulis's objection to the admissibility of the government's evidence, but we start by assessing his arguments regarding the meaning of the jurisdictional *11 element and its effect on the statute's constitutionality. On these purely legal issues, which Burdulis raised bеlow, we review the district court's decision de novo.
Burdulis contends that the word "produced" in the statute refers only to the initial creation of the pornography. For example, according to Burdulis, the materials used in producing a pornographic video would include the camera used in capturing the video, but not a hard drive later used to download the video from the internet, nor a disk onto which the video was copied. Burdulis's primary suppоrt for his argument is a dictionary entry defining "produce" as "bring into existence," among other definitions. But this definition does not prove Burdulis's point, because to create a copy from an original is to bring something into existence: the copy. For instance, someone who photocopies a newspaper article has brought into existence a new copy of the article.
The statute itself embraces this notion of production. It defines "producing" to include "publishing" and "manufacturing." 18 U.S.C. § 2256(3). In ordinary usage, both words encompass the creation of new copies from an original. For example, a publishing house is involved in the publication of a book when it prints copies of the book for sale, regardless of whether it participated in writing and editing the book or even in creating the first bound copy. We also note that in describing production, the statute *12 specifically mentions сomputers, which are often (and perhaps primarily) used to view and store copies of previously created digital files.
Five of the six circuits that have addressed the issue
have applied this understanding of production to find that the
jurisdictional element is satisfied when someone copies a file onto
a digital medium such as a thumb drive.
[6]
When a person loads an
image onto a thumb drive from the internet or another source, that
person hаs created a new copy of the image in the digital memory of
the thumb drive. As the Ninth Circuit put it, "[w]hen the file
containing the image is copied onto a disk, the original is left
intact and a new copy of the image is created, so the process
'produces' an image." United States v. Guagliardo,
*13
Burdulis nevertheless maintains that applying the statute
in this way would make it unconstitutional. He says that absent a
stronger link to interstate commerce, his conduct sat outside
Congress's power to regulate. Yet, we have already rejected a
nearly identical challenge to a conviction based on the intrastate
possession of a photo taken with a camera manufactured out of
state. See United States v. Robinson,
*14
IV. The Admissibility of the Inscription
Finally, Burdulis argues that the district court erred by
admitting as evidence the inscription on his thumb drive, "Made in
China," over his hearsay objection. Without the inscription,
Burdulis points out, the government would have had no evidence that
the thumb drive traveled in interstate commerce and therefore no
evidence that the jurisdictional element was satisfied. When
presented with a preserved evidentiary objection, we review the
district court's decision for abuse of discretion, reversing if we
are "lеft with a definite and firm conviction that the court made
a clear error of judgment." United States v. Trenkler,
Like the district court, wе accept for purposes of analysis Burdulis's claim that the inscription was hearsay, a statement made outside of court used to prove the truth of the matter asserted. [8] Fed. R. Evid. 801(c). While the federal rules *15 of evidence generally prohibit hearsay, they include several exceptions to that rule, including a "residual exception." Fed. R. Evid. 807. That exception allows the admission of hearsay if “the statement has equivalent circumstantial guarantees of trustworthiness [to heаrsay statements falling under a specified hearsay exception]"; "it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts"; and, "admitting it will best serve the purposes of these rules and the interests of justice,” along with a fourth requirement not at issue here. Fed. R. Evid. 807(a).
Burdulis objected below only on the first prong, arguing
that the inscription lacked sufficient indicia of rеliability. He
now presses that claim on appeal, along with several new arguments
that he did not present in the district court. On the reliability
issue, we detect no abuse of discretion in the conclusion that the
inscription had "circumstantial guarantees of trustworthiness" as
required by the rule. The district court rightly considered the
fact that inscriptions indicating foreign origin are regulated, see
19 U.S.C. § 1304, and federal law prohibits false or misleading
designations of origin, see 15 U.S.C. § 1125(a). Moreover, under
the federal rules of evidence trade inscriptions are self-
authenticating, Fed. R. Evid. 902(7), meaning they "require no
Burdulis also contends for the first time on appeal that the government failed to give adequate notice before trial as required by Rule 807(b). That paragraph requires notice of "intent to offer the statement and its particulars, including the declarant's name and address," in order to ensure that the opposing party has "a fair opportunity to meet it." Fed. R. Evid. 807(b). Here, the government notified the district court and the defendant before trial that it sought to establish an interstate nexus by "introduc[ing] into evidence the thumb drive containing images and *17 videos of child pornography . . . [which] bears a manufacturer's label that . . . reads, 'Made in China.'"
Burdulis faults the notice for failing to inform him that the government would use Rule 807 as а basis for admission, but the rule does not require such procedural information to be part of the notice. Burdulis also complains that the government never provided "contact information for anyone who could be questioned regarding the veracity of the imprint." We agree with Burdulis that the government fell short under the rule by failing to provide notice to Burdulis that the drive bore the name and mark of SanDisk, a company that manufactures digital devices. Thе government also should have provided an address for SanDisk.
Nevertheless, Burdulis has failed to show that the
admission of the evidence affected his substantial rights and
impaired the integrity of the judicial process, as required by our
plain error standard. Mardirosian,
V. Conclusion For the reasons stated above, we affirm Burdulis's conviction.
So ordered.
Notes
[1] The police received two subsequent warrants in this case, but the government relies only on the first warrant, issued on May 12, 2009, to justify its searches on this appeal.
[2] The court initially granted Burdulis's motion in part but later amended its order to reject the motion entirely.
[3] The government contends that Burdulis forfeited parts of his Fourth Amendment argument below. Because we find that Burdulis's challenges fail on their merits, we need not decide whether they were forfeited.
[4] In these respects, and in its availability fоr direct review by the factfinder, the photo was quite unlike the Playboy magazine at issue in Commonwealth v. Militello, 66 Mass. App. Ct. 325, 332-33 (2006) (holding that oral description of photos, which "left a good deal to the imagination," could not support a jury finding that the magazine was matter harmful to minors). Militello , in any event, is a lower state court decision pre-dating Kereakoglow .
[5] Not surprisingly, we reject Burdulis's argument that the police could not reasonably believe thаt he was referring to pornography when he used the word "pornos."
[6] See United States v. Dickson, 632 F.3d 186, 189-90 (5th
Cir. 2011); United States v. Caley,
[7] See, e.g., United States v. Bowers,
[8] Three circuits have found that similar inscriptions are not
statements falling within the hearsay rule. See United States v.
Koch ,