Proof that Internet was used to download child pornography does not automatically establish that pornographic images moved across state lines

JURISDICTION/SUFFICIENCY OF EVIDENCE United States v. Schaefer, No. 06-3080, ___ F.3d ___ (10th Cir. Sep. 5, 2007)(Kansas). Appeal of convictions for receiving child pornography and possession of child pornography in violation of 18 U.S.C. § 2252(a)(2) and18 U.S.C. § 2252(a)(4)(B). HELD: In prosecution for possession or receipt of child pornography that has been mailed, shipped, or transported in interstate commerce by computer, it cannot be assumed Internet transmission of pornographic images necessarily involved communication across state lines in interstate commerce. Criminal statute’s interstate commerce requirement is jurisdictional and must be proved as element of offense. We hold that the government did not present sufficient evidence to support the jurisdictional nexus of the § 252(a) provisions at issue. They require a movement between states. The government did not present evidence of such movement; instead, the government only showed that Mr. Schaefer used the Internet. We recognize in many, if not most, situations the use of the Internet will involve the movement of communications or materials between states. But this fact does not suspend the need for evidence of this interstate movement. The government offered insufficient proof of interstate movement in this case. We reach this conclusion understanding the likely interstate and international architecture and operation of the world wide web. See, e.g., Reno v. ACLU, 521 U.S. 844, 849 (1997) (“The Internet is an international network of interconnected computers.”). But we cannot assume this intuitive fact (i.e., a movement via the Internet of child-pornography images between states) on the record before us. Nor has the government asked us to take judicial notice of this fact under Federal Rule of Evidence 201. As to judicial notice, we recently declined to use the doctrine in a case involving computer technology. See United States v. Andrus, 483 F.3d 711, 721-722 (10th Cir. 2007). A judicially noticed fact is “one not subject to reasonable dispute in that it is either (1) generally known . . . or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Although judicial notice may be taken sua sponte, Fed. R. Evid. 201(c), it would be particularly inappropriate for the court to make broad assumptions about the Internet absent notice to and comment by the parties. Andrus, 483 F.3d at 721. Read the opinion here.