Eighth Circuit Rejects Appeal Challenging Interstate Commerce Aspect of CP Conviction – U.S. v. Johnson

June 4, 2013 by David S. Seltzer

Federal child pornography penalties are generally considered more severe than those of the states. Unfortunately for defendants, nearly every child pornography crime is a federal case because the vast majority of child pornography crimes involve the Internet, which puts them into interstate commerce. (This is also why the U.S. Sentencing Commission has recommended striking the sentence enhancement for using a computer to commit a child pornography crime.) And even when the Internet is not involved, using computer equipment can still bring the case into interstate commerce, because the vast majority of it is manufactured overseas. That fact was fatal to the appellant’s case in United States v. Johnson, a decision from the Eighth U.S. Circuit Court of Appeals.

Delmarcus Johnson had consensual sex with his 17-year-old girlfriend at a motel in Minneapolis. The girlfriend was above the age of consent in Minnesota, so the sex was legal. But because Johnson also videotaped the sex, he was indicted for possession of child pornography. Representing himself but with standby counsel, he initially pleaded guilty to the one count. In his plea agreement, he agreed that the image was stored on materials shipped in interstate commerce. At the ensuing hearing, Johnson agreed with the prosecutor that the camera was produced outside Minnesota. He later moved to withdraw his plea, arguing, among other things, that there was nothing in the record showing that the video was produced using materials that moved in interstate commerce. This motion was denied and he was sentenced to three years in prison.

On appeal, Johnson renewed his argument that the record didn’t show production using materials that had moved in interstate commerce, meaning that the district court violated the Federal Rules of Criminal Procedure and abused its discretion by denying his motion to withdraw. He noted that he had agreed only that the video was “stored” in interstate commerce, not “produced,” as the statute required. But the Eighth Circuit disagreed, finding that Johnson’s statements at the plea hearing support a finding that he produced the video on the camera. For example, Johnson agreed that he had videotaped the sex, and that the camera he used to do it had been manufactured outside Minnesota. For this reason, the appeals court concluded that no FRCP error occurred, and that there was no abuse of discretion in the district court’s refusal to let him withdraw his plea.

Though the Eighth may be right that there was no reason to let Johnson withdraw his guilty plea, the fact that this case was prosecuted in the first place disappoints me as a cyber crime defense attorney. The federal child pornography possession statute was written to protect children and younger teens from predators. This was not the situation described by the court’s opinion; the sexual encounter was consensual and even lawful. It’s only because he took a video that Johnson is currently in prison. To make matters worse, Johnson will be a convicted felon after his release from prison and probably required to register as a sex offender under SORNA, which will substantially limit his future opportunities. With the stakes so very high, I strongly recommend that people in his position hire an experienced attorney.

Led by former cyber crime prosecutor David Seltzer, Seltzer Law, P.A., represents clients across the United States who are facing serious criminal charges related to the Internet and technology. Call us 24 hours a day and seven days a week for a free consultation, at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

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