Lead Opinion
In this criminal appeal, Terry Brian Dobbs brings a sufficiency-of-the-evidence challenge to his conviction for knowingly receiving and attempting to receive child pornography in violation of 18 U.S.C. § 2252(a)(2). Mr. Dobbs contends that there was insufficient evidence to prove: (1) that he knowingly received or attempted to receive either of the two pornographic images submitted to the jury; and (2) that these two particular images traveled in interstate or foreign commerce, as required by our precedent in United States v. Schaefer,
Exercising jurisdiction under 28 U.S.C. § 1291, we agree that the government did not offer sufficient evidence to prove that Mr. Dobbs knowingly received the images found on his hard drive. Consequently, because we have no need to opine on the merits of Mr. Dobbs’s Schaefer argument, we refrain from doing so. We REVERSE
I. Background
In April 2006, United States Postal Inspectors in Oklahoma seized Mr. Dobbs’s computer pursuant to a search warrant issued in an unrelated fraud investigation. A search of the computer revealed multiple images suspected to be child pornography, leading the investigators to obtain a second search warrant. The computer’s hard drive was eventually sent to a Department of Justice computer forensic specialist in Washington, D.C. Upon further inspection of Mr. Dobbs’s hard drive, the forensic specialist discovered over 150 images of child pornography in the hard drive’s temporary Internet files folder, or “cache.”
Mr. Dobbs was subsequently indicted for receipt, attempted receipt, and possession of visual depictions of minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2) and (a)(4)(B). Prior to trial, the government dismissed the charge of possession in violation of § 2252(a)(4)(B), leaving the single charge that Mr. Dobbs “knowingly received and attempted to receive one or more visual depictions [of minors engaged in sexually explicit conduct], including but not limited to ... ‘14[2].jpg’ [and] ‘b003[l].jpg.’” R., Vol. I, at 109 (Second Superseding Indictment, filed July 11, 2008).
At trial, the government’s case relied principally on the testimony of the forensic specialist, who explained in detail the results of his investigation of Mr. Dobbs’s hard drive. His analysis indicated both that Mr. Dobbs had typed in multiple search terms reflecting the pursuit of child pornography,
The forensic specialist also testified that the charged photographs recovered from Mr. Dobbs’s hard drive were found exclusively in the computer’s cache. As he explained it, when a person visits a website, the web browser automatically downloads the images of the web page to the computer’s cache. The cache is populated with these images regardless of whether they are displayed on the computer’s monitor. In other words, a user does not necessarily have to see an image for it to be captured by the computer’s automatic-caching function. Although the forensic specialist noted that a computer user can manipulate some images that appear on a
During the trial, the district court initially admitted seventeen images found in Mr. Dobbs’s cache. That number was winnowed down to two when the government failed to provide adequate evidence that fifteen of the images had traveled in interstate commerce. The two remaining images — “b003[l].jpg,” which was captured by the caching function on Mr. Dobbs’s computer on March 15, 2006, at 9:29:56 p.m., and “14[2].jpg,” which was captured shortly thereafter at 9:31:17 p.m. — were banner images, comprised of multiple, smaller images, measuring 3.25 inches by .5 inch.
In constructing its case against Mr. Dobbs, the government created a time line of activity aimed at establishing a pattern indicative of the hunt for child pornography. Specifically, the forensic specialist testified that a pattern existed wherein the arrival of suspect images on Mr. Dobbs’s computer was immediately preceded by searches using terms typically affiliated with child pornography. However, while such a pattern may have existed for the images ultimately excluded from the jury’s consideration, the forensic specialist admitted that there was no evidence of a temporally proximate search indicating the pursuit of child pornography with respect to the two images submitted to the jury. Nor was he able to present evidence that Mr. Dobbs visited a website typically associated with child pornography immediately preceding the arrival of the two images in his computer’s cache.
At the close of the government’s case, and again at the close of all the evidence, Mr. Dobbs moved for a judgment of acquittal, arguing that insufficient evidence was presented to prove both the jurisdictional element under Schaefer and that he “knowingly” possessed the images found on his hard drive. The district court denied Mr. Dobbs’s motions, based in part on its prior ruling limiting the images submitted to the jury. Mr. Dobbs was subsequently found guilty of knowingly receiving and attempting to receive child pornography. The district court sentenced him to 132 months’ imprisonment and nine years of supervised release. This timely appeal followed.
II. Discussion
On appeal, Mr. Dobbs argues that we must reverse his conviction because the government offered insufficient evidence to prove that his receipt of child pornography was “knowing,” and thus punishable under § 2252(a)(2). More specifically, he claims that the lack of evidence suggesting that he knew of his computer’s automatic-caching process forecloses a finding of knowing receipt of the two images submitted to the jury, which were found in the cache. He suggests that “a man who doesn’t know he has certain images inside his computer [cannot] be said to have knowingly accepted those images ... [or] to have knowingly exercised control over them.” Aplt. Reply Br. at 5.
The government, in contrast, contends that Mr. Dobbs’s conviction is supportable
Mr. Dobbs also claims that the government failed to prove the jurisdictional element of the crime, as described in Schaefer — namely, that the particular images presented to the jury crossed state lines. See
A. Standard of Review
We review a challenge to the sufficiency of the evidence de novo. United States v. Vigil,
B. Knowing Receipt
Mr. Dobbs was charged with and convicted of knowing receipt and attempted receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2). That statute provides for the punishment of any person who
knowingly receives ... any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, ... if—
(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct....
18 U.S.C. § 2252(a)(2) (2006).
Although “knowingly receives” is not defined in the statute, “in interpreting the term, we are guided by its ordinary, everyday meaning.” United States v. Tucker,
In addition, the district court instructed the jury that the term “knowingly” means “that an act was done, or visual depictions were received, voluntarily and intentionally, and not because of mistake or accident.” R., Vol. I, at 340. We believe that this definition is consistent with the ordinary and everyday meaning of the word as well, and the parties do not argue to the contrary. See United States v. Fabiano,
There is little doubt that Mr. Dobbs — or at least his computer — “received” child pornography. Indeed, Mr. Dobbs does not contest that the government found images of child pornography on his computer. However, mere receipt of child pornography is not what is proscribed by § 2252(a)(2); rather, it is the knowing receipt of this illegal content that is punishable under the statute. See 18 U.S.C. § 2252(a)(2).
Mr. Dobbs challenges the sufficiency of the government’s evidence establishing that he knowingly received the two images that were sent to the jury. A careful review of the record reveals that the government presented no evidence that Mr. Dobbs had accessed the files stored in his computer’s cache, including the two images at issue. And, more tellingly, there was no evidence that he even knew about his computer’s automatic-caching function. Moreover, as to the two images at issue, there was no evidence presented to the jury that Mr. Dobbs even saw them, much less had the ability to exercise control over them by, for example, clicking on them or enlarging them. As such, although there is no question that a rational jury could have found that Mr. Dobbs “received” the two images, we conclude that it could not have found that Mr. Dobbs did so knowingly.
In resisting such a conclusion, the government relies upon “proof that Dobbs knowingly and methodically sought out child pornography,” Aplee. Br. at 19, and posits that the “[fjiles found in Dobbs’s [cache] provided circumstantial evidence that he had received images of child pornography, by downloading the websites on which they appeared,” id. at 16. However, we are not persuaded. The proof that the government relies upon in establishing Mr. Dobbs’s intent to seek out child pornography — viz., the pattern of child-pornography-related searches immediately preceding the creation of illegal images in the cache — does not apply to the two images submitted to the jury. The government’s own forensic specialist admitted that there is no evidence of suggestive searches immediately prior to the creation of those two images in the cache, nor is there any indication that Mr. Dobbs visited suspect websites prior to their arrival in his cache. The pattern of search-and-creation, therefore, is based solely upon evidence related to the fifteen excluded images, and consequently is irrelevant to the question of whether Mr. Dobbs knowingly received the two images that were properly before the jury.
This proof deficiency is underscored by our decision in United States v. Bass,
Despite the defendant’s professed lack of knowledge, we nevertheless affirmed his conviction on appeal. We did so based in large part on evidence that the defendant used software specifically aimed at eliminating the digital residue of his illicit activities, including “History Kill” and “Window Washer.” Id. at 1202.
In contrast to Bass, the government presented absolutely no evidence here from which a reasonable jury could infer that Mr. Dobbs knew of his computer’s automatic-caching function, much less that he had accessed his cache. Consequently, we conclude that the presence of the child pornography files in the cache of Mr. Dobbs’s computer does not alone demonstrate — circumstantially or otherwise — his knowing receipt of those files. For us to conclude otherwise would “turn[ ] abysmal ignorance into knowledge and a less than valetudinarian grasp into dominion and control.” United States v. Kuchinski,
Generally, in regard to the cached images, the government failed to present any proof that Mr. Dobbs knew that the images were automatically being downloaded to his computer’s cache — viz., that he even knew that the images were there. Therefore, the government perforce faded to prove that Mr. Dobbs had the ability to control those images. As for any child pornography that may have appeared on Mr. Dobbs’s computer monitor, the government’s argument likewise breaks down when we specifically focus on the two images at issue.
The government presented no evidence that Mr. Dobbs actually saw the two images on his monitor, such that he would have had the ability to exercise control over them. As noted, the pattern of child-pornography-related searches immediately preceding the creation of illegal images in the cache does not apply to the two images submitted to the jury. In particular, the government’s forensic specialist acknowledged that there was no evidence of suggestive searches immediately prior to the creation of those two images in the cache. Nor, according to the specialist, was there evidence of Mr. Dobbs visiting child pornography websites prior to the arrival of the two images in his cache. In sum, the lack of a search-and-creation pattern as it relates to the two images before the jury, when combined with the absence of any evidence establishing that Mr. Dobbs ever saw the images, forfends any view that knowing receipt could have been found by a rational jury. In other words, the government needed to present sufficient evidence in the first instance that Mr. Dobbs knew that the two images were present on his monitor before it could convict him of knowingly receiving them under its theory that receipt could be established in “a pure receipt case,” Aplee. Br. at 29, by Mr. Dobbs’s ability to control the images as they appeared on his monitor. It presented no such evidence here.
The government also highlights that Mr. Dobbs was charged with attempted receipt. Therefore, it reasons that we should not conclude that “the lack of direct evidence that Dobbs viewed the two images” is “fatal to his conviction,” because there was “substantial evidence establishing Dobbs’s intent to receive child pornography, and that he acted to commit that offense” to permit us to “affirm his conviction on the attempt charge.” Aplee. Br. at 32. In particular, as to the “substantial step” requirement of an attempt offense, the government contends that “the combination of those [Internet] searches [involving keywords suggesting child pornography] with Dobbs’s subsequent visits to websites consistent with child pornography was precisely the type of act that would ordinarily result in the receipt of child pornography.” Id. at 34.
Here, the only aspects of the charged offense that went to the jury involved two images — “b003[l].jpg,” which was captured by the caching function on Mr. Dobbs’s computer on March 15, 2006, at 9:29:56 p.m., and “14[2].jpg,” which was captured shortly thereafter at 9:31:17 p.m. Thus, the government’s evidence needed to be sufficient to establish the attempt offense with respect to those two images. Indeed, in oral argument, the government’s counsel candidly acknowledged that, were the court to stray in its attempt analysis from a focus on the two images to the other images that the district court did not permit the jury to consider, it would “create problems.” Oral Argument at 21:09.
In order to be guilty of attempt, a defendant must be shown to have intended to carry out the proscribed conduct — viz., knowing receipt of child pornography. See, e.g., Cornelio-Pena,
Significantly, an essential element of an attempt offense is a “substantial step.” See, e.g., United States v. Munro,
In some instances, “[d]efining conduct which constitutes a ‘substantial step’ toward commission of the crime has proved to be a thorny task.” Savaiano,
III. Conclusion
For the reasons discussed above, we conclude that the government provided insufficient proof to establish the knowledge required for conviction under 18 U.S.C. § 2252(a)(2). Accordingly, we REVERSE the district court’s judgment and remand with instructions to VACATE the conviction and sentence.
Notes
. The record refers to this folder interchangeably as “temporary internet files folder” and "cache.” For consistency and clarity, we refer to it as the cache.
. For computers running Microsoft Windows, the Windows registry stores information about the search terms that a user types into Internet search engines. The Windows registry revealed that some of the search terms on Mr. Dobbs's computer included the following: "very young sex,” "erotic preteen," "youngest porn,” "pedo pics,” and "preteen Lolita.” R., Vol. III, at 452-56 (Trial Tr„ dated Oct. 29, 2008).
. Like the Windows Registry and search terms, a computer's "index.dat” file records the websites visited by the computer user. The forensic specialist was able to match up websites listed in the "index.dat” file of Mr. Dobbs's computer with several websites that were consistent with child pornography. See R., Vol. III, at 376-77.
. Officers from the Palm Beach County Sheriff's Office and the Suffolk County Police Department testified that these two banners contained images that were created in Florida and New York.
. Section 2252 has undergone significant amendment since Mr. Dobbs was charged, including a revision that criminalizes knowingly accessing sexually explicit images with the intent to view them. See Effective Child Pornography Prosecution Act of 2007, Pub.L. No. 110-358, 122 Stat. 4001, 4002-4003. In this appeal, however, we review the sufficiency of the evidence for Mr. Dobbs’s conviction under the law as it existed at the time of the charged offense, not as it stands today.
. The defendant admitted that he used "History Kill” and "Window Washer" to delete child pornography because "he didn’t want his mother to see those images.” Bass,
. The Ninth Circuit’s decision in Kuchinski also underscores the proof deficiency here. In Kuchinski, the court was called on to determine whether images found in the defendant’s cache could be used to enhance his sentence for knowingly receiving and possessing child pornography in violation of 18 U.S.C. § 2252A(a)(2) and (a)(5)(B). Although 110 images of child pornography had been found in the defendant’s download folders and deleted files folder (recycle bin), more than 1100 illegal images were found in his
The defendant appealed, claiming that there was insufficient evidence to establish that he knowingly possessed the cached files. The Ninth Circuit, in reviewing the record, agreed that "there was no evidence that Kuchinski was [a] sophisticated [computer user], that he tried to get access to the cache files, or that he even knew of the existence of the cache files.” Id. at 862. Relying on its earlier decision in United States v. Romm,
. Although we need not (and do not) definitively opine on the matter, even assuming that different proof standards attend prosecutions for possession and receipt of child pornography, the government’s contention that the standards for the former (i.e., possession) are more stringent than for the latter (i.e., receipt) is open to serious question. Some courts have taken the view that knowing possession — even if fleeting — is an essential predicate for knowing receipt. See United States v. Davenport,
Dissenting Opinion
dissenting:
I respectfully dissent. In my view, the evidence presented by the government at trial was sufficient to allow the jury to find that Dobbs knowingly received or attempted to receive the two images at issue (“14[2].jpg” and “b003 [l].jpg”), and that the two images were transported in interstate commerce. Thus, I would affirm Dobbs’ conviction and resulting sentence.
I. Standard of Review
Although the majority correctly recites the basic standard of review that applies to Dobbs’ sufficiency-of-evidence challenges, that standard bears repeating: “In reviewing sufficiency challenges, we ask whether, viewing the evidence in the light most favorable to the government as the prevailing party, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Hutchinson,
II. Sufficiency of evidence— knowing receipt
Dobbs first contends that the evidence presented at trial was insufficient to allow the jury to reasonably find that he “knowingly” received or attempted to receive the two images at issue. In addressing this contention, I begin first with the statute of conviction, then proceed to address the evidence presented by the government at trial, and conclude by addressing the two specific arguments raised by Dobbs on appeal. Finally, following the discussion of Dobbs’ arguments, I shall outline what I see as the flaws in the majority opinion.
knowingly receives ... any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, if—
(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct;
shall be punished as provided in subsection (b) of this section.
18 U.S.C. 2252(a)(2) (2006).
The statute does not define the terms “knowingly” or “receives,” “but in interpreting the[se] term[s], we are guided by [their] ordinary, everyday meaning.” See United States v. Tucker,
The government based its proof of Dobbs’ knowing receipt on the testimony of Jonathon Bridbord, a computer forensic specialist employed by the United States Department of Justice’s Child Exploitation and Obscenity section. Bridbord testified that his investigative task was to create and examine a “forensic bit-stream image,” or exact copy, of the contents of the hard drive of Dobbs’ computer in order to determine if any “child exploitation offenses” existed on the hard drive. ROA, Vol. 3 at 127-28. Before discussing his specific findings, Bridbord described for the jury, in general terms, what would have occurred each time Dobbs accessed the internet with his computer. According to Bridbord, when a computer user such as Dobbs utilizes Microsoft Windows Internet Explorer (the browser) to access a particular web site, the browser in turn directs the computer to contact the web site’s server (a dedicated computer holding the web site’s content). The server then transmits, and the user’s computer receives, the data and images associated with a particular page of the web site. In addition to displaying the images on the user’s computer monitor, the browser also creates a copy of each image on the page and deposits it into what is referred to as the temporary internet files folder (or cache). In other words, absent the presence of unusual circumstances, such as the occurrence of a pop-up or the existence of malicious software, an image cannot be simultaneously displayed on the computer monitor and copied into the cache without the user accessing a web site on which the image is contained. A computer utilizing a Windows-based operating system (such as Dobbs’ computer, which utilized the Windows XP Professional operating system) also creates an entry in what is referred to
According to Bridbord, Dobbs first began using his Windows-based computer on November 15, 2005. Id. at 255. Bridbord testified that he determined, based upon his review of the files on Dobbs’ computer, that Dobbs began performing Google searches for images of child pornography on December 15, 2005. Id. at 290. On that date, Bridbord testified, Dobbs used the search terms “ls-island,” “ww2.1s-island.net,” “www.ls-island.net,” “ls-magazine,” “ww2.1s-magazine/net,” and “ww2.1smagazine.net.” Id. at 211. According to Bridbord, the term “Is” is an abbreviation commonly understood in the law enforcement community as an abbreviation for “Lolita Studios,” and is associated with images of child pornography. Id. Bridbord testified that Dobbs continued to conduct searches for child pornography in late December 2005 (using the search phrase “very young sex”), February 2006 (using the search terms “young blowjob video,” “ls-island.info,” “lolita top,” and “lolita new”), early to mid-March 2006 (approximately March 5 through March 12) (using the search terms “pedo,” “erotic preteen,” “erotic pre-teen,” “pretty teen sex,” “youngest porn,” “young models,” “pre teen sex,” “priteen sex,” “priteen newsgroups,” “top preteen models,” “lolita models,” “pretene models,” “pedo,” and “pedo pics”), and early April 2006 (using the search terms “youngest cock sucker -gay,” “pedo sex,” “lolita blowjobs,” “youngest cock sucker,” “preteen models,” “young cock sucker,” “young blowjob bbs,” “preteen lolita,” “preteen newsgroups,” “lola,” “nymphet,” and “nymphet pics”). Id. at 291-93. In employing these search terms, Dobbs often advanced his browser numerous times in order to view additional search results (for example, Dobbs advanced his browser approximately thirty-six times when employing the term “preteen lolita”). ROA, Gov’t Exh. 1.4 at 32.
Bridbord also provided information about specific web sites visited by Dobbs. One of the exhibits prepared by Bridbord and admitted at trial, Government Exhibit 1.6, listed the web sites visited by Dobbs between November 15, 2005, the date Dobbs first began using his computer, and the time the computer was seized by law enforcement officials in April 2006. Those entries, based upon the index.dat file of Dobbs’ computer, indicated that Dobbs began visiting web sites that were potentially related to child pornography in late December 2005. ROA, Gov’t Exh. 1.6 at 1-2. Similar web site visits occurred in February 2006, id. at 3-5 (indicating a number of such web sites visited on February 10, 2006), March 2006, id. at 6, 9-10, 16-19, and April 2006, id. at 21-26, 28-29, 33-42. Notably, those visits were not always associated with Dobbs’ Google searches for child pornography images. In other words, the index.dat file entries indicated that, on some occasions, Dobbs directly visited potential child pornography web sites without first employing a search engine or any child pornography-related search terms.
Bridbord proceeded to describe for the jury seventeen images of child pornography he found in the cache of Dobbs’ computer
I readily conclude that Bridbord’s testimony and related exhibits were sufficient to allow the jury to find that Dobbs knowingly received the two images.
Dobbs raises two specific concerns, neither of which give me pause. First, Dobbs correctly notes that the government offered no direct proof that either of the two images actually appeared on his computer monitor. I am not persuaded, however, that such direct proof, which would be nearly impossible for the government to muster given the obviously secretive nature of the charged crime and the limitations of computer forensic science, was essential or, for that matter, required in order to support a conviction under 18 U.S.C. § 2252(a)(2). Given Dobbs’s pattern, both before and after the receipt of the two images at issue, of methodically searching for images of child pornography and visiting web sites with an association to child pornography, I conclude the jury could have reasonably inferred that Dobbs was similarly methodical in actually viewing any web sites that he accessed that might have contained such images.
The second concern raised by Dobbs is that the government offered no evidence from which the jury could infer that he knew about his computer’s cache or the caching process. Although this is true, I am not persuaded that such proof was required in order for the jury to convict Dobbs of knowing receipt of the images. As I see it, the government’s evidence established that Dobbs’s intent was to seek out and view images of child pornography. And this activity, which according to Bridbord afforded Dobbs temporary dominion and control over the images, was sufficient to establish his knowing receipt of the images. See Romm,
Having disposed of Dobbs’ arguments, it is necessary to outline what I view as
The majority also wrongly concludes that evidence of Dobbs’ frequent “pattern of [employing] child-pornography-related searches immediately preceding the creation of illegal images in the cache” of his computer “is irrelevant to the question of whether [he] knowingly received the two images that were properly before the jury.” Maj. Op. at 1204. Dobbs’ pattern of searching for and/or directly visiting child pornography web sites, which occurred both before and after the two images at issue were received on Dobbs’ computer, as well as his receipt of other images of child pornography, was highly relevant for purposes of proving both absence of mistake and knowledge. See Fed. R.Evid. 404(b) (“Evidence of other crimes, wrongs, or acts ... may ... be admissible for ... purposes [of proving] ... knowledge ... or absence of mistake or accident”).
Relatedly, the majority errs in suggesting that Dobbs’ lack of knowledge of the automatic-caching process was fatal to his prosecution. The focus of Dobbs’ internet activity was obviously to find and view images of child pornography, not to create copies of those images in his computer’s cache. In turn, the knowing receipt issue hinged on whether Dobbs intentionally sought out and viewed the two images at issue. The fact that copies of the two images were found in his cache (along with other images of child pornography) was merely proof of that activity. In other words, Dobbs’ awareness of the cache or the automatic-caching process was unnecessary to his conviction.
Similarly, the majority wrongly asserts that, because the government presented no proof Dobbs was aware of the cache or the automatic-caching process, it “perforce failed to prove that [he] had the ability to control those images.” Maj. Op. at 1207. As Bridbord explained, however, images displayed on a computer user’s monitor can be manipulated, and thus controlled, by the user (for example by copying those images into a personal folder). ROA, Vol. 3 at 305, 354. Consequently, Dobbs’ crime was complete at the moment he viewed the images on his monitor because, at that moment, he necessarily had the ability to control the images, regardless of whether or not he exercised control. See Romm,
Finally, the majority errs in concluding that the government’s evidence was insufficient to establish, for purposes of the attempt charge, that “Dobbs took a substantial step toward the knowing receipt of the two images at issue.” Maj. Op. at 1208. As with its analysis of the receipt charge, the majority wrongly refuses to acknowledge that it was entirely permissible for the jury to infer that Dobbs directly visited, with the intent of finding and viewing images of child pornography, web sites containing the two images at issue. More specifically, the jury could have based such a finding on the entirety of Dobbs’ internet activity, Bridbord’s expla
In sum, I conclude the evidence presented by the government at trial was sufficient to establish that Dobbs knowingly received, as well as attempted to receive, the two images at issue.
III. Sufficiency of evidence — travel in interstate commerce
Dobbs also contends that the evidence presented at trial was insufficient to establish the jurisdictional element for knowing receipt of child pornography under § 2252(a)(2), i.e., that the two images at issue traveled in interstate or foreign commerce. Indeed, Dobbs argues that we are bound by our prior decision in United States v. Wilson,
It is important to note that Wilson involved a different charge than the one at issue in the present case. In Wilson, the defendant was indicted for possessing three or more matters (one computer hard drive and ten computer diskettes) containing visual depictions of child pornography “which were produced using materials that had been mailed, shipped, or transmitted in interstate or foreign commerce in violation of 18 U.S.C. § 2252(a)(4)(B).” Id. at 740. At trial, a government witness testified that some of the images on the defendant’s computer diskettes originated in German magazines. Id. at 744. We concluded that “the fact that some of the images possessed by defendant originated at some point in German magazines does not demonstrate, without more, that the German magazines were actually ‘materials’ used to produce the images possessed by defendant.” Id. at 744 n. 5.
But the instant case is distinguishable from Wilson because the government in this case, unlike in Wilson, did not seek to prove that the materials used to produce the images traveled in interstate commerce. Rather, the government in this case sought to prove that the visual depictions had traveled in interstate commerce, relying on the statutory language that prohibits knowing receipt of “any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce .... ” § 2252(a)(2). This is a different jurisdictional prong than that relied on in Wilson.
Although Dobbs contends that the differences in statutory language are meaningless, I disagree. There is a significant difference between the materials used to produce visual depictions and the visual depictions themselves. They are independent jurisdictional prongs, either one of which the government must prove. See Wilson,
[E]ven if we assume arguendo that the images appearing in the foreign language movie clips and the image of the young girl originated outside of the State of Kansas (like the images from the German magazine in Wilson), the government offered no proof that the particular images on the CDs in question moved across state lines.
Id. at 1206.
I conclude that Dobbs’s reliance on Schaefer is misplaced. There was no evidence in Schaefer supporting where the images at issue there originated. Rather, the government’s only evidence was that the defendant had (a) used the internet, and (b) possessed CDs that contained images of child pornography. Id. at 1198. We declined to assume “that Internet use automatically equates with a movement across state lines.” Id. at 1205. Specifically, we held “that the government’s evidence concerning [the defendant’s] use of the Internet, standing alone, was insufficient to satisfy the jurisdictional requirements of these statutes.” Id. at 1207. Notably, we were not presented with a case where the government provided any other evidence of a jurisdictional nexus, such as evidence of the origin of an image. Moreover, we have since recognized that “Schaefer is limited to its facts — the government’s say so was not enough to prove that the Internet operates in interstate commerce, no matter how obvious.” United States v. Vigil,
I thus address head-on whether evidence of the out-of-state origin of a photograph, as was presented by the government in this case regarding the two images at issue, is sufficient evidence to meet the jurisdictional requirement of § 2252(a)(2). Dobbs argues that evidence of the origin is insufficient for two reasons. First, the government did not prove an interstate internet connection. And second, even if the government proved where the original photograph was taken, this does not prove that the “particular” images found in Dobbs’s cache traveled in interstate commerce. See Aplt. Br. at 47.
I turn first to Dobbs’s argument that Schaefer requires the government to prove an interstate internet connection. As I have explained, Dobbs’s reliance on Schaefer is misplaced. In that case, we recognized that the government needed to prove that the images in question had moved between states, and proof of an internet connection, by itself was insufficient. See Schaefer,
I next address Dobbs’s argument that the government can prove only where the original photographs were taken, not where the “particular” images found on his computer came from. To answer this question, I must decide whether the statute distinguishes between original images and copies of those images when regulating visual depictions that have traveled in interstate commerce.
I begin with the statutory language, giving the words their ordinary or natural meaning. Wilson,
Dobbs’s suggestion that the statute covers only “particular” images but not copies would render the statutory language “by any means including by computer” meaningless. But, federal courts “cannot construe a statute in a way that renders words or phrases meaningless, redundant, or superfluous.” United States v. Power Eng’g Co.,
I am thus left to decide whether the evidence presented at trial was sufficient to prove that the two images submitted to the jury traveled in interstate commerce, “by any means including by computer.” Taking the evidence in the light most favorable to the government, I have little trouble concluding that a reasonable jury could find that an image originally created in New York or Florida necessarily had to have traveled in interstate or foreign commerce before arriving on a computer in Oklahoma. See United States v. Schene,
I note that this conclusion is supported by our prior unpublished decision in United States v. Swenson,
In sum, I conclude that because a reasonable jury could find that the two images at issue traveled in interstate commerce at some point before arriving on Dobbs’s computer, there was sufficient evidence to support the jurisdictional element.
I would affirm Dobbs’ conviction and sentence.
. According to Bridbord, it is not unusual for pedophiles to discover child pornography web sites through avenues other than search engines. ROA, Vol. 3 at 368.
. Bridbord testified that Dobbs’ browser was set to retain only a certain amount of data in the cache, thus resulting in the automatic deletion of older files. ROA, Vol. 3 at 368.
. The district court ruled, at the conclusion of the government's evidence, that the government failed to present sufficient evidence to allow the jury to find an interstate nexus for the other fifteen images. That ruling has not been challenged in this appeal.
. Dobbs effectively concedes on appeal, as he did at trial, that he “received" the two images at issue. More specifically, Dobbs concedes: "1) that at various times he used his web browser to search for images of child pornography; (2) that he visited websites known to contain child pornography, and that some of these visits followed closely on the heels of his searches for child pornography; and 3) that images depicting child pornography were discovered on his computer.” Aplt. Br. at 22.
. I acknowledge that if a defendant accidentally views a pornographic image, "as through the occurrence of a ‘pop-up,’ " that image will be copied into the computer’s
. The district court properly instructed the jury that it could base its findings upon either direct or circumstantial evidence, and could draw reasonable inferences from the evidence. ROA, Vol. I, Part 2 at 329.
. Even if I were to conclude the evidence presented at trial was insufficient to allow the jury to reasonably find that Dobbs actually viewed the two images on his computer monitor, I readily conclude that the evidence was more than sufficient to establish that Dobbs attempted to receive the two images at issue. More specifically, this evidence would have permitted the jury to reasonably find that (a) Dobbs intended to locate and receive images of child pornography, and (b) took a substantial step towards commission of that crime by intentionally accessing the web pages on which the two images at issue were contained. See generally United States v. Ramirez,
. Much, if not all, of the evidence of Dobbs’ computer activity was inextricably intertwined with evidence of the charged offense, and thus would not have been subject to Rule 404(b) analysis. See generally United States v. Parker,
. Although the majority takes the government to task for not presenting any evidence "establishing that Mr. Dobbs ever saw the images,” Maj. Op. at 1207, the majority fails to