Defendant, appearing pro se, plead guilty to possession of child pornography in violation of 18 U.S.C. §2252(a)(4), and was sentenced to 240 months imprisonment. On appeal, he claimed, inter alia, the prosecution failed to show a jurisdictional nexus between his conduct and interstate or foreign commerce.
There is nothing terribly unique about this case, the case was affirmed, but it warrants discussion as a reminder that we are obligated to prove the jurisdictional hook in these cases and we should not take for granted the nexus is as obvious as we know it to be.
Attack on jurisdictional nexus: Under this statute, the government had the option to prove any of the following: visual depiction that 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…”
In his plea agreement, Appellant admitted that he knew the child pornography images had been produced outside the state of Missouri. He knowingly possessed those images on his cell phone, but “forgot to erase them.” Finally, that his flip cell phone was manufactured outside the state of Missouri.
As a matter of law, courts have held that telephones are instrumentalities of interstate commerce regardless of whether it is used for interstate or intrastate purposes. U.S. v. R.J.S. Jr., 366 F.3d 960,961 (8th Cir.). Additionally, cell phones meet the definition of a “computer,” whether or not it uses the internet. U.S. v. Kramer, 631 F.3d 900 (8th Cir.).
In short, the jurisdictional nexus was satisfied when Appellant knowingly possessed images of child pornography that were produced outside the state on his cell phone. His cell phone is an item that (a) is deemed to be an instrumentality of interstate commerce, (b) is deemed to be a computer by law, and (c) was manufactured outside the state.