Petition for Writ of Certiorari — Ronald Miltier, Petitioner v. United States

NO. _____________

In The

Supreme Court of the United States

-------------------------♦-------------------------

RONALD MILTIER,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

-------------------------♦------------------------ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

-------------------------♦-------------------------

PETITION FOR WRIT OF CERTIORARI

-------------------------♦-------------------------

James R. Theuer

JAMES R. THEUER, PLLC

555 East Main Street, Suite 1212

Norfolk, Virginia 23510

(757) 446-8047

jim@theuerlaw.com

Counsel for Petitioner

Dated: June 4, 2018

THE LEX GROUPDC i 1050 Connecticut Avenue, N.W. i Suite 500, #5190 i Washington, D.C. 20036

(202) 955-0001 i (800) 856-4419 i www.thelexgroup.com

i

QUESTIONS PRESENTED

1.

Whether the interstate nexus requirement necessary under 18 U.S.C.

§ 2252A(a)(2) is satisfied if the visual depiction of child pornography never moved in

interstate or foreign commerce.

2.

Whether the Fourth Circuit relied on information nowhere in the record

when it affirmed the District Court’s denial of Petitioner’s motion for judgment of

acquittal.

ii

PARTIES TO THE PROCEEDING

The parties to this proceeding are Petitioner Ronald Miltier and the United

States of America.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................................................................... i

PARTIES TO THE PROCEEDING .............................................................................. ii

TABLE OF AUTHORITIES .......................................................................................... v

INTRODUCTION .......................................................................................................... 1

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 2

CONSTITUTIONAL AND STATUTORY PROVISIONS AND

OTHER TEXTS INVOLVED ......................................................................................... 2

STATEMENT OF THE CASE ....................................................................................... 2

REASONS FOR GRANTING THE WRIT .................................................................. 10

I.

The Fourth Circuit Erroneously Decided An Important Question

Of Federal Law On The Interstate Nexus Required For A

Conviction Under Title 18, Section 2252A(a)(2) That Has Not

Been Decided, But Should Be Corrected, By This Court ...................... 10

II.

The Fourth Circuit Erroneously Relied On Prosecutorial

Questions, Not Record Evidence, In Affirming The Denial Of

Petitioner’s Rule 29 Motion In A Departure From Accepted

Judicial Proceedings As To Call For The Exercise Of The Court’s

Supervisory Power.................................................................................. 15

CONCLUSION............................................................................................................. 17

APPENDIX

Published Opinion of the

United States Court of Appeals

For the Fourth Circuit

entered February 7, 2018 ....................................................................... 1a

iv

Judgment of the

The United States Court of Appeals

For the Fourth Circuit

entered February 7, 2018 ..................................................................... 25a

Judgment in a Criminal Case,

With Attached Opinion,

entered October 25, 2016 ..................................................................... 26a

Opinion and Order of

The Honorable Robert G. Doumar

Re: Denying Defendant’s Motion for Acquittal and Motion for New Trial

entered September 6, 2016 .................................................................. 40a

Order of

The United States Court of Appeals

For the Fourth Circuit

Re: Denying Petition for Rehearing en banc

entered March 6, 2018 ......................................................................... 57a

18 U.S.C. § 2251 .............................................................................................. 58a

18 U.S.C. § 2252A ........................................................................................... 67a

Public Law 110-358 110th Congress

dated October 8, 2008........................................................................... 72a

Defendant’s Proposed Jury Instruction no. 28

filed July 5, 2016 .................................................................................. 76a

Trial Court’s Jury Instruction No. 28

given July 14, 2016 ............................................................................... 78a

v

TABLE OF AUTHORITIES

Page(s)

CASES

United States v. Gibert,

677 F.3d 613 (4th Cir. 2012) .............................................................................. 13

United States v. Lopez,

514 U.S. 549 (1995) ........................................................................................... 12

STATUTES

7 U.S.C. § 2156(g)(1) .................................................................................................... 14

18 U.S.C. § 2251(a) ...................................................................................................... 11

18 U.S.C. § 2251(b) ...................................................................................................... 11

18 U.S.C. § 2252A .................................................................................................... 2, 10

18 U.S.C. § 2252A(a)(2) ........................................................................................passim

18 U.S.C. § 2252A(a)(5) ....................................................................................... 2, 3, 11

28 U.S.C. § 1254(1) ........................................................................................................ 2

OTHER AUTHORITY

Effective Child Pornography Prosecution Act of 2007 § 103(b),

Pub. L. No. 110-358, 122 Stat. 4001............................................................................ 13

INTRODUCTION

The Fourth Circuit affirmed the convictions of Mr. Miltier on two counts of

receipt of child pornography based on the prior movement of a computer not

containing the child pornography in contravention of the interstate nexus Congress

established for these counts of conviction. The Fourth Circuit likewise affirmed

convictions of Mr. Miltier through a misapprehension of the record evidence,

confusing prosecutor questions as evidence and relying on “facts” that were not facts

at all, but rather statements that were squarely contradicted by the evidence at trial.

The Fourth Circuit’s unwarranted departure from the jurisdictional nexus mandated

by Congress and its reliance on grounds contradicted by the record require the Court’s

intervention.

OPINIONS BELOW

The opinion of the United States District Court denying Petitioner’s Rule 29

motion for judgment of acquittal is reprinted at App.1 40a but is not otherwise

published. The district court’s judgment is reprinted at App. 26a. The Fourth

Circuit’s published decision affirming the judgment (per Floyd, J., joined by

Niemeyer, J., with King, J., concurring in part and concurring in the judgment) is

published at 882 F.3d 81 (4th Cir. 2018) and reprinted at App. 1a. The Fourth

Circuit’s denial of the petition for rehearing en banc is reprinted at App. 57a. Other

1 Citations to the Appendix for this Petition for Certiorari will be noted “App” and citations to the Joint

Appendix contained in the record in the Fourth Circuit will be noted “J.A.”

2

pertinent documents are contained in the Joint Appendix in the record of the United

States Court of Appeals for the Fourth Circuit.

JURISDICTION

The Fourth Circuit rendered its decision on February 7, 2018, and denied

rehearing en banc on March 6, 2018. Petitioners invoke this Court’s jurisdiction

under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS AND

OTHER TEXTS INVOLVED

Title 18, Section 2252A of the United States Code, reprinted at App. 67a,

provides, in pertinent part:

(a) Any person who –

[. . . .]

(2) knowingly receives or distributes –

(A) any child pornography that has been

mailed, or using any means or facility of interstate or

foreign commerce shipped or transported in or affecting

interstate or foreign commerce by any means, including by

computer;

[. . . .]

shall be punished as provided in subsection (b).

STATEMENT OF THE CASE

Mr. Miltier was indicted on November 18, 2015, with seven counts of receipt of

child pornography in violation of 18 U.S.C. § 2252A(a)(2) and one count of possession

of child pornography in violation of 18 U.S.C. § 2252A(a)(5). Docket Sheet, J.A. at 4.

3

The Court dismissed the indictment following the filing of a superseding indictment

on March 24, 2016. Id. at 5. The superseding indictment charged Mr. Miltier with

seven counts of receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2)

and one count of possession of child pornography in violation of 18 U.S.C. 2252A(a)(5),

but the images upon which the charges were based were different images than those

on which the original indictment had been based. Compare Indictment, docket entry

no. 1, with Superseding Indictment, J.A. at 14-19. Each of Counts One through Seven

alleged that Mr. Miltier had received the file at issue through the internet.

Superseding Indictment, J.A. at 14-19. Mr. Miltier filed proposed jury instructions

with the trial court prior to trial. Def. Prop. Jury Inst., J.A. at 20.

At trial, the Government introduced evidence that agents executed a search

warrant at Mr. Miltier’s residence on May 7, 2014. Moughan Test., Tr. of July 12,

2016, J.A. at 40. When the agents arrived, Mr. Miltier was home alone working on

the roof of the house. Id. During the execution of the search warrant, Special Agent

Moughan of the FBI interviewed Mr. Miltier and asked him what computers were in

the house. Id. at 42. Mr. Miltier told Special Agent Moughan “how many computers

he thought were in the house and where they were located.” Id. Mr. Miltier “initially

[] told me of a desktop in his bedroom and a laptop in his bedroom.” Id. at 43. Mr.

Miltier “also mentioned that his granddaughter had a laptop.” Id. During the search,

the agents found two laptops, in plain view, with the desktop in the bedroom. Id. at

45. Mr. Miltier told Special Agent Moughan the second laptop in the bedroom, an

Acer laptop, “was a laptop that his family used and he used [] when he was in Japan

4

for work.” Id. at 43. Mr. Miltier was in Japan for work in February through May,

2013. Id. at 50. The agents also seized an iPad, Mr. Miltier’s smartphone, a PNY

thumbdrive, and various other media. Id. at 49, 98

Reuben Jones, a FBI contractor, conducted forensic examinations of the

electronic devices and media seized pursuant to the warrant. R. Jones Test., Tr. of

July 12, 2016, J.A. at 61. The desktop computer, two laptops other than the Acer

laptop, Mr. Miltier’s smartphone, and various media contained nothing of evidentiary

value. Id. at 89, 95-98.

The Acer laptop contained one photograph and eleven video files Reuben Jones

considered to be child pornography and software for the Ares file-sharing program.

Id. at 94. Ares is a peer-to-peer file sharing program. Id. at 91. The eleven files were

located in the My Shared folder within the recycle bin of the Acer laptop. Id. at 91;

Govt Exhs 37-46, J.A. at 624-33. The Ares software designated the My Shared folder

as the default folder for the Ares program. R. Jones Test., Tr. of July 12, 2016, J.A.

at 91; R. Jones Test., Tr. of July 13, 2016, J.A. at 114.

When the Ares program is installed, “it does things automatically” without

user input. R. Jones Test., Tr. of July 12, 2016, J.A. at 91. One thing Ares does

automatically is to download files previously selected whenever the computer is on

and connected to the internet. R. Jones Test., Tr. of July 13, 2016, J.A. at 113. The

forensic software identified the eleven files as having been created, accessed, and

written on either March 28 or April 28, 2014. Govt Exhs 37-46, J.A. at 624-33. Mr.

Miltier’s work records showed him as being on leave those two days. Def. Exh. 1, J.A.

5

at 397, 399. But the Government offered no evidence on when the files had been

requested through Ares, and Reuben Jones testified that Ares could later download

files automatically if not completed during the initial sessions. R. Jones Test., Tr. of

July 13, 2016, J.A. at 115, 148.

Forensic software reports identified file names associated with child

pornography that had been downloaded or shared on the Ares network. Govt Exhs

24, 25, 26, J.A. at 412-54. Other reports identified internet browser searches, Govt

Exh. 27, J.A. at 455-558, visits to internet sites (urls) associated with pornography,

Govt Exh. 28, J.A. at 559-61, and visits to internet chat rooms associated with

pornography, Govt Exh. 29, J.A. at 562-85, conducted at various specific times with

the Acer laptop. Reuben Jones confirmed that browser searches, visits to sites, and

visits to chat rooms were only possible through active use of the Acer laptop, i.e., by

a user using the keyboard to input the information. E.g., R. Jones Test, Tr. of July

13, 2016, J.A. at 201-28. Mr. Jones had also identified 489 archived file names (but

not files themselves) that had names he associated with child pornography. R. Jones

Test, Tr. of July 12, 2016, J.A. at 94-95; R. Jones Test, Tr. of July 13, 2016, J.A. at

187-89. All of those file names had been created, written, and last accessed on

February 13, 2014, between approximately 10:16 and 10:27 A.M. Id. at 189. A PNY

thumb drive seized pursuant to the search warrant contained files names associated

with child pornography written to the thumb drive the morning of March 6, 2014.

Govt Exh. 34, J.A. at 590-623.

6

The Government presented no evidence concerning the presence of malware on

the Acer laptop or the ability or otherwise of a remote user to control the computer to

download files for subsequent sharing through the Ares network. Reuben Jones

testified that he had no information on where the Acer laptop had been at any time

that files were downloaded or shared or search queries made. R. Jones Test., Tr. of

July 13, 2016, J.A. at 229. Jones offered no testimony as to who had used the laptop

when any files were requested through Ares.

The system clock for the Acer laptop was accurate to one minute, meaning the

digital time stamps on files and in logs were accurate but for being one minute off of

Eastern time. R. Jones Test., Tr. of July 12, 2016, J.A. at 101. The file “created” date

for a file indicates the date and time the file is first written to the computer drive or

media. R. Jones Test., Tr. of July 13, 2016, J.A. at 121. If a file were not completely

written to the drive or media at one time, but was interrupted because of a powering

off, then the date and time the file was completely written would be recorded as the

“last written” date. Id. at 121-22. The “access” date is the last date the computer’s

operating system interacted with the file, e.g., running a virus program against the

file or opening the file. Id. at 122.

The Government’s evidence established that the file upon which Count One

was predicated, the gfgvgvffcfccrdyu (6).mpg file, had not been downloaded through

Ares or off the internet. Govt Exh. 24, J.A. at 412-24. Moreover, the Government’s

evidence established that the file upon which Count Five was predicated, the

7

$ru5evvp.mpg file, was neither downloaded through Ares or off the internet, id., nor

present among the Ares shared files, Govt Exh. 26, J.A. at 427-54.

At the close of the Government’s case, Mr. Miltier moved for judgment of

acquittal as to Counts 1 and 5 on the grounds there was no evidence the files at issue

for those counts had been received through the internet. Tr. of July 13, 2016, J.A. at

262. The trial court denied the motion. Tr. of July 14, 2016, J.A. at 277. Mr. Miltier

then presented evidence from his co-worker Jenkins Jones, wife Lori Miltier, and

Special Agent Desy before resting.

Jenkins Jones, a co-worker of Mr. Miltier, testified that Mr. Miltier worked in

the Controlled Industrial Area (CIA) of Norfolk Naval Shipyard, a high security area

in which computers were prohibited. Jenkins Jones Test, Tr. of July 14, 2016, J.A.

at 282. Mr. Miltier could bring his cell phone into the CIA if it did not have a camera.

Id. at 287. Mr. Jones and Mr. Miltier worked together on first shift during the Fall

of 2013 through Spring of 2014, in the same shop and in each others’ sight. Id. at

280-81, 284. First shift hours during that period were from 0720 to 1600 Monday

through Friday. Id. at 281. Workers such as Mr. Jones and Mr. Miltier had to park

in a parking lot outside the CIA and walk to the gate that allowed access to the fenced

CIA, a fifteen- to twenty-minute walk. Id. at 282. During the workday, Mr. Miltier

received a forty-minute break for lunch, from 1120 to 1200. Id. at 283. He always

brought his lunch with him and ate in the CIA. Id. He also received two 15-minute

breaks, one in the morning and one in the afternoon. Id. at 286-87. Mr. Jones and

8

Petitioner had to sign in and out with a supervisor, and Mr. Jones never saw Mr.

Miltier ever sign in late or sign out early. Id. at 288-89.

The PNY thumbdrive contained file names that were all last written on the

morning of March 6, 2014. Govt Exh. 34, J.A. at 590-623. For that entire morning,

Mr. Miltier was in the company of his wife, daughter, and stepdaughter. L. Miltier

Test., Tr. of July 14, 2016, J.A. 297-300; Def. Exhs 2 and 3, J.A. at 400, 401.

Special Agent Desy identified Mr. Miltier’s work records. Def. Exh. 1, J.A. at

388-99.2 The work records established that Mr. Miltier was at work during illicit

computer activity the Government highlighted in its evidence. Compare, e.g., Def.

Exh. 1, J.A. at 393-94 (Feb. 2, 2014) with Govt Exh. 28, J.A. at 560 (2/3/2014 14:59);

Def. Exh. 1, J.A. at 394 (Feb. 11, 2014) with Govt Exh. 24, J.A. at 420 (2/11/2014

14:53, :55, :56, :57), Govt Exh. 27, J.A. at 529 (2/11/2014 14:45), 533 (2/11/2014 14:17,

:35); Def. Exh. 1, J.A. 394 (Feb. 13, 2014) with Govt Exh. 27, J.A. at 526 (2/13/2014

12:54), Govt Exh. 28, J.A. at 560 (2/13/2014 10:57), Govt Exh. 29, J.A. at 576

(2/13/2014 12:59, 10:57); Def. Exh. 1, J.A. at 396 with Govt Exh. 24, J.A. at 414

(3/12/2014 14:24 through 15:38), Govt Exh. 27, J.A. at 496-97 (3/12/2014 11:12), Govt

Exh. 28, J.A. at 559 (3/12/2014 11:13 through 11:14), Govt Exh. 29, J.A. at 567-68

(3/12/2014 11:12, :14); Def. Exh. 1, J.A. at 397 (Mar. 25, 2014) with Govt Exh. 27, J.A.

at 495 (3/25/2014 15:04), Govt Exh. 29, J.A. at 565 (3/25/2014 15:05). Furthermore,

the work records establish that during days Mr. Miltier was on leave there was no

The codes used in the work records are contained in the parties’ Trial Stipulation, Govt Exh. 49,

J.A. at 636.

2

9

illicit computer activity. Compare, e.g., Def. Exh. 1, J.A. at 393, 398, 399 (Jan. 22,

2014, Apr. 7, 2014, Apr. 8, 2014, Apr. 18, 2014, May 2, 2014) with Govt Exhs 27, 28,

29, J.A. at 455-587.

After the conclusion of the evidence, the trial court conducted a charge

conference on jury instructions. The trial court overruled Mr. Miltier’s objections to

the court’s instructions on the elements of the offense for Counts One through Seven

as they pertained to the interstate nexus necessary to convict under 18 U.S.C.

§ 2252A(a)(2). Charge Conf., Tr. of July 14, 2016, J.A. at 338-43, 350, 386. The trial

court also overruled Mr. Miltier’s objection to the charge as an unlawful variance from

the indictment. Id. at 338. The jury returned a verdict of guilty on all counts of the

Superseding Indictment. Verdict Form, J.A. at 697.

On July 28, 2016, Mr. Miltier moved for judgment of acquittal on all counts

based on insufficient evidence, in the alternative for judgment of acquittal on Counts

One and Five based on insufficient evidence, and in the alternative for a new trial

based on erroneous jury instructions. Docket Report, J.A. at 8. The trial court denied

the motions by opinion and order dated September 6, 2016. Op. & Order, App. 40a.

On October 25, 2016, the trial court sentenced Mr. Miltier to imprisonment for a term

of 120 months on each of Counts One through Eight, each term to run concurrently

to the others, and supervised release for life on each count. Judgment, App. 26a.

On appeal, the Fourth Circuit affirmed the convictions in all respects. United

States v. Miltier, 882 F.3d 81 (4th Cir. 2018), App. 1a.

10

REASONS FOR GRANTING THE WRIT

I.

The Fourth Circuit Erroneously Decided An Important Question Of

Federal Law On The Interstate Nexus Required For A Conviction

Under Title 18, Section 2252A(a)(2) That Has Not Been Decided, But

Should Be Corrected, By This Court

The Fourth Circuit concluded that a digital file that had not moved in

interstate commerce satisfied the interstate nexus required by the statute if that file

was later saved on a computer that had previously moved in interstate commerce.

Miltier asserts that the district court should have

instructed the jury that they were required to find that the

files themselves were shipped or transported in interstate

commerce to satisfy the interstate nexus requirement of §

2252A(a)(2)(A). We disagree, and hold that the interstate

nexus requirement for receipt of child pornography in

violation of § 2252A(a)(2)(A) can be satisfied based on the

movement of a computer in interstate commerce and,

consequently, the district court did not err in so instructing

the jury.

United States v. Miltier, 882 F.3d 81, 88-89 (4th Cir. 2018), slip op. p. 10, App. 10a

(footnote, excerpting trial court’s Jury Instruction no. 28, reprinted at App. 79a,

omitted). That is legally unsound and criminalizes conduct Congress chose not to

reach. Under the plain language of Title 18, Section 2252A(a)(2), the digital file that

is the “child pornography” must have been either mailed or shipped or transported in

interstate commerce. This mailing, shipment, or transportation could have been by

computer, but the file itself must have so travelled in interstate commerce.

This construction of Section 2252A(a)(2) is validated by comparing it to the

jurisdictional language in other subsections of Section 2252A and other sections of

Chapter 110 of Title 18. Section 2252A(a)(5) requires that the child pornography

11

possessed have been “mailed, or using any means or facility of interstate or foreign

commerce shipped or transported in or affecting interstate or foreign commerce by

any means, including by computer, or that was produced using materials that have

been mailed, or shipped or transported in or affecting interstate or foreign commerce

by any means, including by computer.”

Id. (emphasis added). The emphasized

language from Section 2252A(a)(5) is the jurisdictional nexus the Fourth Circuit

inferred in Section 2252A(a)(2) despites its conspicuous absence from the text.

Other sections in Chapter 110 share the expanded jurisdictional nexus of

Section 2252A(a)(5) that is absent from Section 2252A(a)(2). Title 18, Section 2251(a)

expressly extends to a “visual depiction [that] was produced or transmitted using

materials that have been mailed, shipped, or transported in or affecting interstate or

foreign commerce by any means, including by computer . . . .” Id. Similarly, Title 18,

Section 2251(b) extends to a “visual depiction [that] was produced or transmitted

using materials that have been mailed, shipped, or transported in or affecting

interstate or foreign commerce by any means, including by computer . . . .” Id. As

with Section 2252A(a)(5), the jurisdictional language in Sections 2251(a) and (b)

would be superfluous if “shipped or transported in or affecting interstate or foreign

commerce by any means” in Section 2252A(a)(2) had the meaning the Fourth Circuit

read into it.

It is clear from the language in other sections of Chapter 110 that Congress

chose not to include the expanded jurisdictional nexus present in Sections 2251(a)

and (b) and 2252A(a)(5) in Section 2252A(a)(2). The question in this petition is not

12

whether Congress could have expanded the jurisdictional nexus to criminalize

receiving a digital file on a computer that had moved in interstate commerce, but

whether it did. The subordinate clause in Section 2252A(a)(2) of “or using any means

or facility of interstate or foreign commerce shipped or transported in or affecting

interstate or foreign commerce by any means” is unitary. This unitary subordinate

clause incorporates the second jurisdictional prong in United States v. Lopez, 514

U.S. 549, 558 (1995), “the instrumentalities of interstate commerce, or persons or

things in interstate commerce,” i.e., Section 2252A(a)(2)’s “using any means or facility

of interstate or foreign commerce” addresses the instrumentalities of interstate

commerce while Section 2252A(a)(2)’s “shipped or transported in or affecting

interstate or foreign commerce by any means” addresses the persons or things in

interstate commerce.

Congress simply elected not to include other, wider,

applications of its Commerce Clause power.

The Fourth Circuit’s error stems from its faulty construction of Section

2252A(a)(2) that misinterprets both the language and grammar of the section. The

phrase “affecting interstate or foreign commerce” is not an independent clause, as the

Fourth Circuit erroneously concluded. Miltier, 882 F.3d at 91, slip op. p. 14, App. 14a

(stating “The term “affecting interstate . . . commerce” is a term of art

. . . .”). Rather, it is part of the unitary clause “or using any means or facility of

interstate or foreign commerce shipped or transported in or affecting interstate or

foreign commerce by any means[.]” That phrase requires that the child pornography,

here the digital file, have been shipped or transported in any way affecting interstate

13

commerce. But its plain reading does not include that the child pornography be

simply affecting interstate commerce.

The legislative history relied upon by the Fourth Circuit undermines its

conclusion. The 2007 amendments that added the phrase “in or affecting interstate”

did so by deleting the phrase “in interstate.” Effective Child Pornography Prosecution

Act of 2007 § 103(b), Pub. L. No. 110-358, 122 Stat. 4001, 4003, reprinted at App. 72a.

The amendment focused on the shipment and transportation of the child

pornography, not the effect of the child pornography itself on interstate commerce.

Section 2252A(a)(2) does not criminalize the receipt of child pornography that is in or

affecting interstate commerce except to the extent it has been so shipped or

transported.

For the Fourth Circuit’s construction to be plausible, the section must be

rewritten. The phrase “that was received using materials that have been mailed, or

shipped or transported in or affecting interstate of foreign commerce by any means,

including by computer” would have to be added, yet that language is absent.

Alternatively, the section would have to be rewritten to read: “any child pornography

affecting interstate or foreign commerce, or that has been mailed, or using any means

or

facility

of

interstate

or

foreign

commerce

shipped

or

transported

in or affecting interstate or foreign commerce by any means, including by computer.”

Yet the Fourth Circuit’s conclusion is predicated on just such absent language.

United States v. Gibert, 677 F.3d 613 (4th Cir. 2012), relied upon by the Fourth

Circuit, Miltier, 882 F.3d at 92, slip op. p. 17, App. 17a, addressed a statute,

14

7 U.S.C. § 2156(g)(1), that focused on the criminal conduct’s effect on interstate or

foreign commerce. But Section 2252A(a)(2) does not do the same, as it focuses on the

interstate movement of the child pornography itself, not the interstate effect of the

child pornography.

Jury instruction number 28 given by the trial court, reprinted at App. 79a,

erroneously included this erroneous jurisdictional basis for a conviction under 18

U.S.C. § 2252A(a)(2). As a result of this instruction, the jury could have erroneously

concluded that the source of origin of the Acer laptop or its hard drive was sufficient

to satisfy the interstate commerce element of Counts One through Seven. In other

words, the jury could have failed to find that the images at issue in these counts

themselves were mailed or shipped or transported in or affecting interstate

commerce, including by computer. By contrast, Petitioner’s proposed jury instruction

no. 28, reprinted at App. 77a, refused by the trial court, Charge Conf., Tr. of July 14,

2016, J.A. at 338-43, 350, 386, properly focused the jury on the required interstate

nexus required under the statute and the charging document.

The Fourth Circuit’s unwarranted expansion of the jurisdictional scope of

Section 2252A(a)(2) should not be left uncorrected, and the Court should grant

certiorari on this question.

15

II.

The Fourth Circuit Erroneously Relied On Prosecutorial Questions,

Not Record Evidence, In Affirming The Denial Of Petitioner’s Rule 29

Motion In A Departure From Accepted Judicial Proceedings As To

Call For The Exercise Of The Court’s Supervisory Power

Petitioner moved for judgment of acquittal on all counts and, in the alternative,

on counts one and five. On the motion for judgment of acquittal on all counts, the

Fourth Circuit concluded that the government had presented “evidence that, taken

together, would allow a reasonable juror to find Petitioner knowingly received and

possessed child pornography.” Miltier, 882 F.3d at 86, slip op. p. 8, App. 8a. But the

Fourth Circuit relied upon a number of statements in reaching that conclusion that

are not supported by the record.

The Fourth Circuit concluded that “Miltier self-reported his work hours . . .” in

rejecting Petitioner’s argument that he was at work when illicit activity occurred.

That is nowhere in the record. In fact, the undisputed evidence in the record, from

Jenkins Jones, Petitioner’s co-worker, was that Petitioner had to sign in with a

supervisor at muster. There was no evidence whatsoever that Petitioner self-reported

his hours. The government desperately tried to elicit such evidence but failed:

Q. You self-report your own hours?

A. We have to sign in with our supervisor in a -- muster is

what we call it. He has to sign it.

[. . . .]

Q. But the employees like you, you're responsible for,

again, self-reporting your hours, you don't punch a clock; is

that right?

A. No, we don't punch a clock. We have to sign in and out

with our supervisor.

Jenkins Jones Test, Tr. of July 14, 2016, J.A. at 288-89. As the jury was instructed,

the question is not evidence. Signing in and out with a supervisor is not self-reporting

16

work hours. Since the computer had to be on and linked to the internet for the file to

download, the time stamps are evidence of active use of the computer even though

the download would occur in the background without knowledge of the user. Yet

Petitioner was at work, without access to the computer, according to the

uncontroverted evidence in the record. As a result, the Fourth Circuit’s conclusion

otherwise is unsupported by the record.

The Fourth Circuit also relied on Petitioner’s access to the laptop while in

Japan the previous year, Miltier, 882 F.3d at 87, slip op p. 6, App. 6a, yet the record

establishes that no child pornography was downloaded while Petitioner was in Japan

and the laptop was never password protected. Petitioner did not admit “knowing

about the Ares peer file sharing program that was used to download the illicit files,”

id., slip op. p. 7, App. 7a: The government’s witness testified that Petitioner said only

that “He thought he had heard of [the Ares program], but he was unable to describe

in what aspect he may have known about it.” Moughan Test., Tr. of July 12, 2016,

J.A. at 50. That is a far cry from the Fourth Circuit’s characterization upon which it

relied in affirming the trial court.

The Fourth Circuit acknowledged that the time stamps “indicate when a file

finished downloading, not when the search was initiated . . .”, Miltier, 882 F.3d at 87,

slip op. p. 6, App. 6a, yet then concluded that “searches related to roof repair were

conducted at approximately 9:06 PM, and on the same day, from approximately 8:39

PM to 9:17 PM, seven files that appear to be child pornography finished downloading

17

from Ares,” id., slip op. p. 7, App. 7a, was significant evidence. The conclusion does

not follow. There was no evidence when any Ares searches were conducted.

The Fourth Circuit likewise ignored record evidence on the motion for

judgment of acquittal on counts one and five. The Fourth Circuit concluded that there

was sufficient “evidence for a rational juror to conclude the files underlying Counts

One and Five were downloaded from the internet . . . .” Id. at 88, slip op. p. 7, App.

7a. It did so by relying on the testimony of the forensic examiner. Yet the forensic

examiner unequivocally testified that the files underlying counts one and five were

not downloaded from the internet. R. Jones Test., Tr. of July 13, 2016, J.A. at 19192.

The Fourth Circuit based its decision affirming the trial court on grounds not

present in or contradicted by the record. That is a departure from the accepted and

usual course of judicial proceedings and calls for the Court to exercise its supervisory

powers.

CONCLUSION

Based on the foregoing argument, Petitioner respectfully requests that the

Court grant his petition for a writ of certiorari.

Respectfully submitted this the 4th day of June, 2018.

James R. Theuer

JAMES R. THEUER, PLLC

555 East Main Street, Suite 1212

Norfolk, Virginia 23510

(757) 446-8047

jim@theuerlaw.com