Of the Ninth Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 07-1462

UNITED STATES OF AMERICA,

Appellee,

v.

ANDREW LEWIS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

 Boudin, Wallace and Howard, *

 Circuit Judges.

Christopher Goddu for appellant.

Kelly Begg Lawrence, Assistant United States Attorney, with

whom Michael J. Sullivan, United States Attorney, was on brief for

appellee. 

February 2, 2009
 These images and the computers at the National Historic Site 1

form no part of the basis for the indictment, and they were not

introduced or referred to at trial. We mention them merely to

explain the genesis of the investigation that yielded the videos.

-2-

HOWARD, Circuit Judge. A jury convicted Andrew Lewis of

one count of receipt of child pornography in violation of 18 U.S.C.

§ 2252(a)(2), in connection with ten videos found on his home

computer. Lewis now argues that the evidence was insufficient to

convict him, pointing in particular to the "interstate commerce"

element of the crime and claiming that the government presented no

evidence to satisfy this element. Ultimately, two of our prior

cases, United States v. Carroll, 105 F.3d 740 (1st Cir. 1997) and

United States v. Hilton, 257 F.3d 50 (1st Cir. 2001), lead us to

reject Lewis' argument. Accordingly, we affirm.

I. Facts

Andrew Lewis came to the attention of federal law

enforcement in connection with some "inappropriate" images

discovered on a computer on the grounds of the Salem Maritime

National Historic Site, where Lewis worked as a United States Park

Ranger. He was later indicted for receipt of child pornography in 1

connection with other videos he admitted downloading to his

computer at home.

Forensic analysis of Lewis's home computer revealed that

the videos had likely been downloaded using Lewis's Comcast

Internet connection and a peer-to-peer file-sharing application
-3-

called LimeWire. The government presented expert testimony about

Lewis's computer and the software; the expert witness conceded on

cross-examination that it is possible a given file transfer made

using LimeWire might have been conducted entirely within the

borders of one state.

The government sought, and Lewis objected to, a jury

instruction that stated, "If you find that the video images were

transmitted or received over the Internet, that is sufficient to

find that the images moved or traveled in interstate or foreign

commerce." The district court agreed with the government and gave

a substantially similar instruction: "An image has been shipped or

transported in interstate commerce if it has been transmitted over

the Internet." Lewis objected both before and after the

instruction was given.

The jury asked one question of the district court during

its deliberations: "If a file is transported exclusively within a

single state on the Internet, is that considered interstate

commerce?" After consultation, and over further objection by

Lewis, the district court answered the question in the affirmative.

A little more than one hour later, the jury returned its guilty

verdict. 

A. Background

To place the issue in context, we present some background

about the Internet and LimeWire. The government's expert testified
 TCP/IP stands for "Transmission Control Protocol / Internet 2

Protocol." Resonate, Inc. v. Alteon Websystems, Inc., 338 F.3d

1360, 1362 n.1 (Fed. Cir. 2003). Transmission Control Protocol

governs the disassembly of a file into packets as well as the reassembly of packets into a file; Internet Protocol governs the

routing of those packets from the source computer to their

destination. Sightsound.com, Inc. v. N2K, Inc., 185 F. Supp. 2d

445, 461 (W.D. Pa. 2002).

-4-

to much of this information. We refer to the fact-finding of other

courts for the rest.

1. The Internet

"The Internet is an international network of

interconnected computers." Reno v. ACLU, 521 U.S. 844, 849 (1997).

Internet communication relies on TCP/IP, "a set of standard 2

operating and transmission protocols that structure the Internet's

operation." In re Doubleclick Privacy Litigation, 154 F. Supp. 2d

497, 501 (S.D.N.Y. 2001). Any message or file to be transmitted is

broken into smaller pieces, called packets. "Each packet contains

the Internet Protocol ('IP') address of the destination . . . , a

small portion of data from the original document, and an indication

of the data's place in the original document." Id. The packets

are routed along the web-like network of interconnected computers.

"Not all packets from the same transmission necessarily follow the

same path." Sightsound.com, Inc., 185 F. Supp. 2d at 461. Along

the way, computers called routers determine the shortest-in-time

route for each packet from source to destination. Each packet

therefore takes a stepping-stone path through the network of

connected computers, subject to re-routing along the way if there
-5-

is congestion, an outage, or any other error in any part of the

path.

At the destination computer, the packets are re-assembled

according to instructions they contain into the original file or

message. If any packets are missing, the destination computer may

request they be re-sent from the source computer. Doubleclick

Privacy Litigation, 154 F. Supp. 2d at 502. All of this can now

occur fast enough to enable a viewer to watch live video from the

other side of the planet. "Dynamic routing," as the process is

known, makes the Internet extraordinarily robust, because the path

between two computers is able to adapt to changing conditions on

the network and thereby avoid areas of outage, congestion or other

problems. Dynamic routing, however, also obscures the exact path

a piece of data would likely take, or have taken, from one computer

to another. For the purposes of determining whether a transmission

has taken place across state lines, this difficulty is compounded

because transmission along any single "segment" of wire or fiberoptic cable is so fast that the actual distance of the packet's

journey is much less important in computing the total travel time

than are network congestion, the number of "hops" the packet takes

and other factors. Simply put, it is impossible to say with any

certainty that a given packet will take the shortest route in

distance; the routers search for the shortest route in time.

Further compounding this problem, the network itself was not
 LimeWire is also the name sometimes used for the collection of 3

computers running the application LimeWire and for the central Web

site where the LimeWire application can be downloaded for free. It

is also sometimes used to describe the protocol by which that

network operates, although the protocol is properly known as the

"Gnutella" network. This network is the one used by the Streamcast

software at issue in MGM Studios v. Grokster, Ltd., 545 U.S. 913,

921 (2005). We use "LimeWire" to refer to the software

application. 

-6-

established with state boundaries in mind, nor does it even

recognize them. "The Internet is wholly insensitive to geographic

distinctions." Am. Libraries Ass'n v. Pataki, 969 F. Supp. 160,

170 (S.D.N.Y. 1997).

2. LimeWire

LimeWire is a peer-to-peer file sharing application that

connects users who wish to share data files with one another.3

Although the Supreme Court has defined "peer-to-peer" networks as

those in which "users' computers communicate directly with each

other, not through central servers," Grokster, 545 U.S. at 919-20,

in this context such a description may be misleading. While a

central server is not needed to coordinate file transfers made

through LimeWire, the transfer is still subject to the dynamic

routing associated with the underlying TCP/IP protocol. This means

that the so-called "direct connection" is still mediated by

whatever stops each of the packets might make on its journey from

source to destination. 

LimeWire and the Gnutella network are indifferent to the

nature of the data -- images or text or music or video or software.
-7-

They are equally indifferent to the legal status of the data --

public-domain or copyrighted or contraband. 

LimeWire combines two functions: the ability to search

for and download files from other users, and the ability to make

files on one's own computer available to other users. A brief

sketch of the mechanics of these functions will frame the evidence

presented at Lewis's trial.

a. Sharing One's Own Files

When it is first installed, LimeWire creates a folder

named "Shared" on the user's computer. By default, any file placed

in that "Shared" folder is available to anyone else on the Internet

who uses the LimeWire application. Also by default, any file a

user downloads through LimeWire is automatically placed in that

"Shared" folder and is therefore offered by that user for further

downloads by other users. These default behaviors can be changed

by the user: a user could turn off sharing altogether, designate

another folder with a different name to serve as the "Shared"

folder, manually remove files from the "Shared" folder (or whatever

folder had been designated) and prevent them from being shared on

an individual basis.

b. Searching For and Downloading the Files of Others

To download files from other users, a user launches

LimeWire and inputs a search term or terms. The application then

seeks matches for those terms in the file names and descriptions of
 That provision reads: 4

§ 2252. Certain activities relating to

material involving the sexual exploitation of

minors 

(a) Any person who--

 . . . . 

 (2) knowingly receives, or distributes any

visual depiction that has been mailed, or has

been shipped or transported in 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 in interstate or

foreign commerce by any means including by

-8-

all files designated for sharing on all computers then running the

LimeWire application (or any other application using the Gnutella

network). The application displays a list of file names that match

the search terms, and the user can select one or more of those to

begin downloading the files.

II. Discussion

We note at the outset that Lewis's appeal is from the

denial of his Rule 29 motion for judgment of acquittal. To succeed

in this claim he must establish that no reasonable jury could have

convicted him of the charged crime based on the evidence presented.

United States v. Wilder, 526 F.3d 1, 8 (1st Cir. 2008). He trains

his sights only on the interstate commerce element of the statute,

however, conceding for the purposes of this appeal that the other

elements were met.

Lewis was convicted of one count of receiving child

pornography in violation of 18 U.S.C. § 2252(a)(2). It is 4
computer or through the mails, if--

(A) the producing of such visual

depiction involves the use of a minor engaging

in sexually explicit conduct; and

 (B) such visual depiction is of such

conduct . . . .

shall be punished as provided in subsection

(b) of this section.

18 U.S.C. § 2252(a)(2). 

 No evidence was presented and no argument was made concerning 5

the "materials containing" prong of the statute, and we do not

consider it further. 

-9-

undisputed that Lewis knowingly possessed video files of child

pornography, and that he procured those files using his computer,

the Internet and LimeWire. The sole question is whether the

government met its burden to prove that the videos had been

"shipped or transported in interstate or foreign commerce." 

5

The government introduced evidence, and Lewis did not

contest, that he downloaded the images using the Internet. Lewis,

however, contends that § 2252(a)(2) requires the actual shipment or

communications of the images across state lines. And, he

continues, the mere fact that he used the Internet is insufficient

to prove the images crossed state lines. 

The government first challenges Lewis's operating

assumption -- that § 2252(a)(2) requires actual shipment or

communication of the images across state lines. The government

makes two distinct arguments. First, it argues that no actual

crossing of a state or national border is necessary -- the statute

should be read, the government says, to require only transmission
-10-

or shipment in the "stream" or "flow" of commerce. Second, the

government argues that even if the statute incorporates a general

requirement of actual interstate movement, transmission or shipment

by computer should be considered differently than other kinds of

shipment or transmission. In that medium, the government argues,

the jurisdictional requirement of the statute should be relaxed.

We find neither argument convincing.

In making its first argument -- that the statute does not

require proof of actual shipment or communication across a border

-- the government contends that Congress intended to reach purely

intrastate transmission of child pornography that used a channel or

instrumentality of interstate commerce. But this is not what the

statute says. "Congress uses different modifiers to the word

'commerce' in the design and enactment of its statutes." Circuit

City Stores v. Adams, 532 U.S. 105, 115 (2001). "[T]he 'word

"involving," like "affecting," signals an intent to exercise

Congress' commerce power to the full.' Unlike those phrases,

however, the general words 'in commerce' and the specific phrase

'engaged in commerce' are understood to have a more limited reach."

Id. (quoting Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265,

277 (1995)).

Perhaps just as important, the government's argument here

would prove too much. Previous cases treated the parallel

jurisdictional requirements of § 2252(a) as requiring some actual
The relevant language in § 2252(a)(4)(B) criminalizes the 6

possession of "[one] or more books, magazines, periodicals, films,

video tapes, or other matter which contain any visual depiction

that has been mailed, or has been shipped or transported in

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" provided the depiction is of

sexually explicit conduct by a minor and the depiction was created

involving the use of a minor engaging in sexually explicit conduct.

Thus, § 2252(a)(4)(B) allows the jurisdictional element to be

satisfied in two ways: either the depiction has been "mailed, or

has been shipped or transported in interstate or foreign commerce"

or else it has been "produced using materials which have been

mailed or so shipped or transported." Id. The same jurisdictional

language appears in § 2252A(a)(3),(5) and (6). The syntax of these

two requirements compels us to read them as meaning the same thing

by "shipped or transported." Section 2252(a)(2), under which

Lewis was convicted, does not include this second "produced using

materials" prong, but interpretation of "shipped or transported in

interstate commerce" in that prong sheds light on its meaning in

the first.

-11-

movement across state lines. See United States v. Robinson, 137 6

F.3d 652, 653 (1st Cir. 1998) (upholding conviction under §

2252(a)(4) and mentioning specifically that "the fifty photographs

were all taken using a Kodak instant camera and Kodak instant film,

both of which were manufactured by the Eastman Kodak Company

outside of Massachusetts"); see also United States v. Smith, 459

F.3d 1276, 1282 (11th Cir. 2006) (relying on proof that materials

had actually crossed state lines to satisfy jurisdictional

element). Similarly, this court has held that intent to ship child

pornography across state lines is not required for a conviction

under § 2251, which contains the same language. Barber v. United

States, 1993 U.S. App. LEXIS 21198, at *4-*5 (1st Cir. Aug. 23,

1993) (unpublished opinion) (per curiam). That case concerned a
-12-

defendant who admitted mailing undeveloped film to an address in

Massachusetts for developing, but he denied intending or knowing

that the film would thence be forwarded to Virginia. We held that

actual interstate transportation, without intent, satisfied the

statute. This holding would have been unnecessary, indeed

nonsensical, if no crossing of state lines need have been shown at

all -- the defendant admitted mailing the images intrastate and

having done so intentionally. Id. "Shipped or transported in

interstate commerce" here must require interstate movement.

The interstate commerce requirement at issue here is like

that of many other criminal statutes. See, e.g., 18 U.S.C. § 1343

("Whoever . . . transmits or causes to be transmitted by means of

wire, radio, or television communication in interstate or foreign

commerce [the relevant materials shall be guilty of a crime].");

Id. § 2314 (subjecting to criminal liability "[w]hoever transports,

transmits, or transfers in interstate or foreign commerce" the

items subject to the statute). These provisions, too, have long

been held to require actual crossing of a state or national border.

See, e.g., United States v. Potter, 463 F.3d 9, 16 (1st Cir. 2006)

(relying on "interstate faxes" to satisfy one element of § 1343);

United States v. Cassiere, 4 F.3d 1006, 1011 (1st Cir. 1993)

(elements of § 1343 include "the use of interstate wire

communications"); Efron v. Embassy Suites (P.R.), Inc., 47 F. Supp.

2d 200, 205 (D.P.R. 1999) (dismissing wire fraud charges because
-13-

"none of these facsimile transmissions [were] alleged to have

traveled on interstate phone lines, a necessary component of the

actus reus needed for indictment under the wire fraud statute");

First Circuit Pattern Jury Instructions, § 4.20 (actual interstate

movement required for § 2314). The government, then, cannot excise

completely the requirement that the child pornography cross a state

or national border. To hold otherwise would do violence to the

plain language of the statute and fly in the face of practice,

including that of the government itself, with regard to this and a

host of similarly worded statutes.

The government's second argument attempts to create a

distinction between items that are "shipped or transported" using

a computer, and those that are "shipped or transported" using other

means. While we concede that it is possible Congress meant to make

purely intrastate transmission by computer of these materials into

a federal crime, by the plain language of the statute, it did not

do so. We are therefore constrained from altering the statute

based on our assumptions about what Congress wanted.

Congress added the words "by any means including by

computer" to the statute in 1988. Nov. 18, 1988, P.L. 100-690,

Title VII, Subtitle N, Ch 1, § 7511(b), 102 Stat. 4485. The clause

does evince a particular concern with computer transmission of

child pornography, but its placement -- modifying "has been shipped

or transported . . . in interstate commerce" cannot indicate that
 We do not consider the question of whether Congress has 7

sufficient power under the Commerce Clause to regulate the

intrastate transmission of child pornography. We have upheld the

statute at issue under the Commerce Clause, and the parties here do

not dispute that result. United States v. Morales-De Jesus, 372

F.3d 6, 17 (1st Cir. 2004); see also Gonzales v. Raich, 545 U.S. 1,

9 (2005) (upholding Congress's power to regulate intrastate,

noncommercial activity that in the aggregate affects interstate

commerce that Congress has determined to proscribe).

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special rules apply to computer shipment or transmission. The

plain language of the statute indicates that we are to treat

shipment or transmission by computer the same way we would shipment

or transmission by any other means. While the government's

argument may be sensitive to Congress's actual desires in altering

the statute, we must be bound by what Congress wrote, not what it

wanted. We "must presume that a legislature says in a statute what

it means and means in a statute what it says there. When the words

of a statute are unambiguous, then, this first canon is also the

last: judicial inquiry is complete." Conn. Nat'l Bank v. Germain,

503 U.S. 249, 253-54 (1992) (internal quotation marks and citations

omitted).

Having concluded that § 2252(a)(2) does require that the

government prove actual interstate transmission or shipment of the

images, we turn to the government's next argument -- that it proved

interstate transmission occurred in this case because the

prosecution introduced evidence that Lewis used the Internet. In 7

support of this argument the government cites two of our prior

cases, Carroll and Hilton. After close review of the holdings in
-15-

these cases, we agree with the government that Lewis' sufficiency

claim must fail.

In Carroll, 105 F.3d 740, we addressed whether there was

sufficient evidence to convict the defendant of violating 18 U.S.C.

§ 2251(a) which criminalizes the production of child pornography,

"if such person knows or has reason to know that such visual

depiction will be transported in interstate or foreign commerce by

any means, including by computer." We cited three different ways

the government had satisfied the interstate transmission element of

the statute. One of them was by presenting evidence that the

defendant planned to use the photographs he took as illustrations

for a "dating service" site on the Internet. We wrote,

"[t]ransmission of photographs by means of the Internet is

tantamount to moving photographs across state lines and thus

constitutes transportation in interstate commerce." Id. at 742

(citation omitted).

The second case the government cites is United States v.

Hilton, 257 F.3d 50 (1st Cir. 2001). That case concerned whether

there was sufficient evidence to convict the defendant of

possessing child pornography in violation of 18 U.S.C. §

2252A(a)(5)(B). In addressing the defendant's argument that the

government failed to prove beyond a reasonable doubt that the

images he possessed traveled in interstate commerce, we cited

Carroll and held that "[u]nder the case law, proof of transmission
 See also United States v. White, 2 Fed. App'x. 295, 298 (4th 8

Cir. 2001) (unpublished opinion) (quoting Carroll in its holding

that use of the Internet is transportation in interstate commerce);

United States v. Smith, 47 M.J. 588, 592 (N-M. Ct. Crim. App. 1997)

("[W]e hold that the transmission of information in 'cyberspace'

would constitute a transportation in interstate commerce.")

-16-

of pornography over the Internet or over telephone lines satisfies

the interstate commerce element of the offense." Id. at 54.

In light of these two cases, we conclude that the

government proved the images traveled interstate when it introduced

evidence that Lewis received images that were transmitted over the

Internet.

We are not alone in holding that the government may

satisfy the interstate commerce element by proving that child

pornography images were transmitted over the Internet. Two other

circuits, citing Carroll, have reached the same conclusion. In

United States v. Runyan, 290 F.3d 223, 239 (5th Cir. 2002), the

Fifth Circuit, quoting Carroll, held that proof of use of the

Internet was sufficient to find the interstate commerce element of

§ 2251(a) satisfied. Runyan, 290 F.3d at 239. And the Third

Circuit similarly quoted Carroll as supporting its holding that §

2252(a)(2)'s interstate commerce element was satisfied by the

defendant's use of the Internet. United States v. MacEwan, 445

F.3d 237, 244 (3d Cir. 2006) ("because of the very interstate

nature of the Internet, once a user submits a connection request to

a website server or an image is transmitted from the website server

back to the user the data has traveled in interstate commerce").8
(relying also on Carroll).

-17-

Lewis makes a fair attempt at distinguishing both Carroll

and Hilton from this case. With respect to Carroll, he makes three

arguments. First, he notes that our holding in Carroll that

"[t]ransmission of photographs by means of the Internet . . .

constitutes transportation in interstate commerce" was supported

with citations to two other cases -- United States v. Thomas, 74

F.3d 701, 706-07 (6th Cir. 1996) and United States v. Maxwell, 42

M.J. 568, 580 (U.S.A.F.C.A. 1995). Our holding then, he argues,

must be interpreted through the lens of those cases, and neither of

them stands for the broad proposition we attributed to them.

Nevertheless, even if we were to accept Lewis' argument that we

were overly generous in our reading of Thomas and Maxwell, that

does not change the binding conclusion we reached in Carroll.

Next, Lewis contends that, unlike the defendant in Carroll, he

objected to the interstate commerce element at trial. Although

this may be true, we fail to see how this factual distinction

undermines the applicability of Carroll in any respect. As it is

in this case, in Carroll our attention was squarely trained on

whether the government introduced evidence sufficient to satisfy

the statute's interstate commerce element. Finally, Lewis argues

that, unlike in this case, in Carroll there was other, "substantial

evidence" of interstate movement. True, we identified other

grounds for our holding in Carroll. For example, we noted that the
-18-

defendant told an individual that he intended to take film across

state lines. Carroll, 105 F.3d at 742. Nevertheless, that

alternative grounds existed for our holding fails to detract from

our express conclusion that the use of the internet in that case

was enough, standing alone, to satisfy the jurisdictional element.

See id.

Lewis's attack on the Hilton decision is even less

convincing. He essentially attacks that case for not reading

Carroll as he does. As developed above, Lewis' interpretation of

Carroll is overly narrow. Although we could accept Lewis'

invitation to construe the Carroll and Hilton decisions as he does,

to do so would be disingenuous.

For the sake of completeness, we should note that

Congress recently amended the child pornography statutes, including

the one before us, to expand the jurisdictional coverage. It did

so by replacing all instances of "in interstate" with "in or

affecting interstate" commerce. Effective Child Pornography

Prosecution Act of 2007, Pub. L. No. 110-358, § 103. The

legislative history indicates that Congress was unhappy with

circuit court decisions narrowly construing the prior statute and

wanted to put issues like ours to rest. See 153 Cong. Rec. H13591-

92 (daily ed. Nov. 13, 2007) (statement of Rep. Conyers); id. at

H13592 (statement of Rep. Goodlatte). Despite these recent

developments, this case is governed by the statute as written at
-19-

the time of Lewis's conduct, and our interpretation rests only on

the law as it stood at that time.

III. Conclusion

For the reasons stated above, the judgment below is

affirmed.

AFFIRMED.