Courts and law professors are fond of reminding us that the power of the federal government is limited. To those of us who practice criminal law in federal court, however, the limits of federal power can seem elusive. Jurisdictional elements are often quite easy for the government to prove in the ordinary course of business because only a rare criminal is capable of avoiding travel, telephones, the internet, or products made abroad. As such, many defense lawyers opt to focus on the other elements of the crime charged.
Riley Lively’s lawyer did not. He mounted a defense to challenge to the interstate nexus element of 18 U.S.C. § 2251(a) and clarified what exactly the government must prove to secure a conviction in federal court.
18 U.S.C. § 2251(a) prohibits sexually exploiting a minor “for the purpose of producing any visual depiction of” that sexual exploitation (2) if “that visual depiction was produced or transmitted using materials that have” a nexus to interstate or foreign commerce. Lively traveled from California to Michigan to meet up with a man he “met” in an online chatroom. One of these chatroom friends cared for a nine-year-old boy. Once in Michigan, Lively performed oral sex on the boy while his chatroom friend took four photos using a digital camera. The camera had a memory card that stored these four photos. At some point, these four images were copied from the camera’s memory card to a hard drive, which everyone agreed (by stipulation) was manufactured in Thailand. To sum up, there were two sets of images depicting the abuse: four on the camera’s memory card, and four that had been copied onto the Thai-made hard drive.
At the close of the government’s case, Lively argued he could not be convicted because there was no evidence to support the federal government’s exercise of jurisdiction. The evidence showed only that Lively intended to produce the original images, but nothing suggested he intended to produce the copies. And the government had proven only the origin of the hard drive used to create the copies, not the origin of the camera and memory card used to create the originals. The government rested its case on the Thai-made hard drive, which everyone agreed was made outside the United States and Michigan. In other words, the government and the district court believed Lively committed a federal crime if he intended to produce the original images, and someone, somewhere, sometime reproduced those images using materials with an interstate nexus. Prosecutors did not mention or discuss the origin of the camera or memory card used to make the original images. The district court adopted the government’s interpretation, and Lively was convicted.
The Sixth Circuit disagreed with the government’s broad interpretation of the statute. But first, it clarified whether copying images from one drive to another constitutes “producing” child pornography for purposes of 18 U.S.C. § 2251(a). Relying on the “broad and non-technical” meaning of “producing,” the Sixth joined other circuits and held that copying and/or digitally storing those images are manners of production.
Then the court got to the heart of the matter: Could the government prevail if the Thai-made hard drive was the only material with an interstate nexus? The answer was “no.” Instead, the government must prove Lively sexually exploited the minor for the purpose of producing a visual depiction of the abuse, and “that same visual depiction” he intended to be created was “produced using materials that have an interstate commerce nexus.” In other words, the government had to prove the camera or its memory card had a connection to interstate commerce.
So, did Lively’s victory in this hard-fought battle result in an acquittal? No, Lively lost the war. The Sixth Circuit scoured the record (and even called the court clerk) to determine the origin of the camera’s memory card. That memory card bore a trade inscription that doomed Lively’s appeal: “Made in China.” Because the jurors had seen and held the Chinese-made memory card, there was enough evidence in the record to uphold the conviction.
Lively serves as a reminder that no element is a freebie. If the materials used to produce images were made in the U.S.A. or of unknown origin, prosecutors must work a bit harder to prove the case belongs in federal court and defendants must be subject to harsh federal penalties.