Thursday, May 07, 2009

Intertubes = Interstate Commerce

United States v. Barlow, No. 08-60556 (5th Cir. May 6, 2009) (Wiener, Dennis, Clement)

Barlow was convicted of "(1) attempting to persuade or entice a person he believed to be a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b), and (2) sending obscene material to a person he believed to be younger than 16 years old in violation of 18 U.S.C. § 1470." On appeal, he argued, among other things,

that the government failed to establish the requisite interstate nexus to support either charge. The testimony of a single FBI agent, with no apparent firsthand knowledge, that Yahoo! had no servers in Mississippi was inadequate to establish that the emails and pictures traveled in interstate commerce, according to Barlow’s argument.

Barlow misunderstands the statutes. Neither § 2422(b) nor § 1470 requires proof of travel across state lines. Section 2422(b) requires the use of “any facility or means of interstate or foreign commerce.” Section 1470 requires the same with the added specific that the obscene material be “transfer[red]” using that “facility or means.” In 2009, it is beyond debate that the Internet and email are facilities or means of interstate commerce. And, it is undisputed that Barlow conducted his entire affair with Rebecca online — that is, using the Internet — and sent her obscene material by email. The interstate nexus requirements of the statutes were satisfied irrespective of the agent’s testimony.

(emphasis added). Bear in mind that the court was reviewing for plain error, although it doesn't sound like the result would have been any different if Barlow had raised the argument below.

Another eyebrow-raising aspect of the case:
In August 2006, Barlow, then 39 years old and living in Lumberton, Mississippi, spied an online picture and profile of a teenage Mississippi girl named Rebecca and emailed her, introducing himself and asking how old she was. Rebecca responded that she was 14 years old, though in reality, she was a middle-aged, married paralegal from Dixie, Mississippi, named Ginny English (“English”). English freelanced for law enforcement by posing online as an underage girl to attract potential sex offenders.

Barlow was arrested when he showed up for an in-person meeting he arranged with "Rebecca" after about a year of e-correspondence (which included sexually explicit conversation and photos).



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