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United States v. MacEwan

April 5, 2006


On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 04-cr-00262). District Judge: Honorable Michael M. Baylson.

The opinion of the court was delivered by: Aldisert, Circuit Judge.


Argued March 9, 2006

Before: ROTH and ALDISERT, Circuit Judges, and RODRIGUEZ,*fn1 District Judge.


This appeal primarily requires us to decide if the use of the Internet satisfies the interstate commerce element of the federal law prohibiting the receipt of child pornography, 18 U.S.C. § 2252A(a)(2)(B).*fn2 We hold that it does. The question is presented before this Court on defendant James E. MacEwan's appeal from a judgment of conviction and sentence entered on January 31, 2005, in the United States District Court for the Eastern District of Pennsylvania. MacEwan was convicted on two counts of violating § 2252A(a)(2)(B)*fn3 and, as a repeat offender of the federal anti-child pornography laws, received a 15-year sentence pursuant to the mandatory minimum sentencing provision of 18 U.S.C. § 2252A(b)(1). In addition to determining whether the jurisdictional nexus of § 2252A(a)(2)(B) comports with the Constitution and was satisfied in this case, we must also decide whether the 15-year sentence imposed by the District Court pursuant to the mandatory minimum sentence requirements of 18 U.S.C. § 2252A(b)(1) constitutes: (1) a violation of the Eighth Amendment prohibition on cruel and unusual punishment, (2) a violation of the separation of powers doctrine, or (3) a deprivation of due process under the Fifth Amendment. Jurisdiction was proper in the District Court pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). For the following reasons, we will affirm the judgment and sentence in all respects.


James MacEwan is a 71-year-old repeat offender of the federal laws prohibiting the distribution and receipt of child pornography. In 2001, prior to the present conviction for two counts of receiving child pornography in violation of § 2252A(a)(2)(B), MacEwan had been arrested for and later pled guilty to possessing child pornography in violation of § 2252(a)(1)(B). On January 30, 2003, he was sentenced to five years probation. Under the terms of his probation, MacEwan was prohibited from possessing child pornography, and his probation officer was permitted to make random inspections of his computer.


Within little more than a year, MacEwan was found to have violated the terms of his probation three times, for which an indictment was returned on May 6, 2004. The indictment charged him with three counts of receiving materials containing child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B).

MacEwan was first discovered to have violated the conditions of his probation on July 16, 2003, when his probation officer made an unannounced visit to his home to verify his compliance with the terms of his probation. After inspecting MacEwan's computer, the officer found that MacEwan had been visiting child pornography websites. The officer then had the computer seized. Following further inspection, it was found to contain approximately 1,068 graphic image files of child pornography. This incident formed the basis of Count One of the 2004 indictment.

The second violation was discovered on October 9, 2003, when the probation officer made another unannounced visit to MacEwan's home. After inspecting two other computers, the probation officer found links to child pornography websites. The two computers were then seized and later found to contain approximately 256 graphic image files of child pornography. This incident forms the basis for Count Two.

The third violation occurred on March 10, 2004, when an undercover United States Postal Inspector, posing as a letter carrier, delivered five videotapes containing child pornography to MacEwan's home. MacEwan had previously ordered these tapes from a catalogue sent by the government as part of an investigation into a global child pornography enterprise. MacEwan was selected to receive the catalogue solicitation because, during the course of the investigation, his name had previously been identified on a customer list for a child pornography website. After the videotapes were delivered and in MacEwan's possession, the Postal Inspectors then retrieved the videotapes pursuant to an anticipatory search warrant. This incident forms the basis for Count Three.


On October 28, 2004, MacEwan entered a guilty plea to Count Three, but proceeded to trial on Counts One and Two. Following a bench trial held that same day, he was acquitted of Count One because the government failed to prove that he had received the image files that were the subject of that count within the applicable statute of limitations period. MacEwan was, however, found guilty of Count Two.

At trial, MacEwan had stipulated to the number of images charged in Counts One and Two, that they met the statutory definition of child pornography, and that the files had been knowingly downloaded from the Internet. He argued, however, that the government could not establish that, in compliance with the interstate commerce jurisdictional element of § 2252A(a)(2)(B), there was an interstate transmission of the pornographic images. He contended that, absent proof to the contrary, the images could just as easily have traveled intrastate and that such an activity was beyond the reach of Congress under the Commerce Clause.

To support its argument that the images had traveled in interstate commerce, the government had James Janco, the manager of Comcast's Network Abuse Department, testify. Comcast was MacEwan's Internet service provider from December 2002 to October 14, 2003. Janco chiefly summarized the flow of data over the Internet and the routing of subscribers' website connection requests.

He stated that when a Comcast subscriber accesses the Internet from his home computer and requests a connection with a website, the connection would first originate from the subscriber's computer, pass through the cable modem -- both of which are located in the subscriber's house -- and then be sent to a regional data center. For West Chester, Pennsylvania, where MacEwan resided, Comcast's regional data center was located within Pennsylvania. The regional data center takes the subscriber's request, transfers it through various routers within the regional data center, then sends the request to the Internet backbone, which is a series of leased, commercial and private lines. Janco then stated that those lines take the subscriber's specific request and connect it to the server containing the desired website.

Comcast calls this process of accessing a website "Shortest Path First" ("SPF"). Under SPF, when the signal travels from the regional data center it will be dynamically routed along the lines with the least volume of Internet traffic, rather than those covering the shortest geographical distance. In Janco's words: "[I]f the lines that [the request] would normally go within Pennsylvania are clogged or have a high amount of traffic on it, [the Internet backbone] would dynamically assign [the request] to another line connection and send it out of the shortest path first, what typically would be in the State of Pennsylvania in this case." (Trial Transcript, app. at 50-51.) Janco acknowledged, however, that if the Pennsylvania lines are full or too busy, the connection request could instead be routed through lines outside of Pennsylvania, even if the requested website were located on a server located within Pennsylvania. He stated that it was impossible to scientifically ascertain the exact path "any specific request, at a point in time would have done."*fn4 (Id. at 54.) Ultimately, however, the connection request would end up "wherever the server is physically located where [the subscriber] is trying to go." (Id. at 50-51.) This server could be located in Pennsylvania or anywhere else within the United States.

Before the close of trial, MacEwan made a motion for acquittal pursuant to Rule 29(a) of the Federal Rules of Criminal Procedure. His motion contended that the government failed to prove the interstate commerce jurisdictional element of ยง 2252A(a)(2)(B) because there was no evidence presented at trial showing that the downloaded image files ever traveled outside of the state of Pennsylvania. He also contended that, as for Count One, the government failed to prove beyond ...

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