Rarely has conduct at a hockey game exposed such an interesting constitutional feature of federal criminal law.
Randy Johnson was taking photographs at a hockey game in Des Moines, Iowa. He was a professional photographer. His assistant, Dawn, was helping by removing memory cards from Mr. Johnson’s cameras and transferring the photographs on those memory cards onto his laptop.
While she was downloading and organizing his photographs, she noticed a folder labeled “girls”. They appeared to be photographs of girls – not women referred to in a mildly sexist way. Without going into details, photographs of such a nature as those are illegal to possess.
Dawn took the laptop to a police officer at the hockey game. The police officer took Mr. Johnson to the police station.
He was indicted for receiving child pornography and possessing child pornography. He went to trial and was convicted on both counts. The sentencing judge imposed a sentence of 120 months on the possession count and 136 months on the receipt count. The sentences were to run concurrent.
Mr. Johnson appealed his sentence on two grounds. First, that the evidence wasn’t sufficient for a conviction on the receipt count. Second, if it was, double jeopardy bars a prosecution for both. (astute readers will recall seeing this issue before).
In United States v. Johnson, the Eighth Circuit reversed Mr. Johnson’s conviction – why the conviction was reversed exposes an interesting constitutional trick at the core of many criminal statutes.
To find someone guilty of receipt of child pornography, you need to prove, basically, that the person received child pornography using something that crossed a state line. More specifically, the government has to prove that the person received child pornography
using any means or facility of interstate or foreign commerce or that has been mailed, or has been shipped or transported in or affecting interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or through the mails
This is normally called the “jurisdictional element” – it’s an element of the crime, and the only reason it’s there is to make sure that Congress has the power to make the law.
Congress cannot make any law that it wants – rather it needs to make sure that every law it makes is made through the exercise of some power delegated by the constitution.
The most popular clause for Congress to use to justify it’s power to make law is the Commerce Clause. This is the justification offered for Congress’s power to enact the health care reform law, slowly making it’s way to the Supreme Court. Justice Thomas has distinguished himself by wanting to roll back the breadth of the Commerce Clause. That Clause is kind of a big deal.
In federal criminal cases, the jurisdictional element, and the Commerce Clause in general, is very rarely a deal.
In Mr. Johnson’s case, two errors combined, and, as a result, the government did not prove that Mr. Johnson’s receipt of child pornography affected interstate commerce.
First, the government charged that the images were downloaded from the internet in the indictment. Downloading from the internet, a means of interstate commerce, counts. Yet, at trial, the government’s own expert testified that he wasn’t sure if the pictures came from the internet – there are a lot of ways to transfer files and he could have gotten them from a CD or DVD from someone else.
Second, the trial court gave the wrong instruction to the jury about the jurisdictional element. The judge instructed the jury that, to find Mr. Johnson guilty, they would have to find that
“[t]he material[s] containing the [illicit] visual depictions were produced using materials that had been mailed, shipped, or transported by computer in interstate or foreign commerce.”
As the court of appeals explained, the Eighth Circuit has previously held that if the government shows that the computer used to download the contraband crossed state lines before the child pornography was downloaded, that’s enough to meet this element.
And, of course, it’s easy as rhubarb pie to show that a computer in Iowa crossed state lines – they don’t make computers in Iowa.
Yet, because the government failed to introduce evidence that met the jurisdictional element, Mr. Johnson’s conviction cannot stand.