                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  June 25, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,
                                                       No. 07-8097
          Plaintiff-Appellee,
                                               (D.C. No. 2:07-CR-34-ABJ-1)
                                                         (D. Wyo.)
 v.

 BRETT SWENSON,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before HENRY, Chief Judge, McWILLIAMS, Senior Circuit Judge, and
GORSUCH, Circuit Judge.


      Brett Swenson appeals his convictions for receipt, possession, and

attempted distribution of child pornography. The government concedes error with

respect to the receipt conviction and we reverse on that count. With respect to the

remaining possession and attempted distribution convictions, we affirm.




      *
         After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
order and judgment is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      At trial, the government contended that Mr. Swenson used a peer-to-peer

networking application, “Limewire,” to receive, possess, and distribute child

pornography. Once installed on a computer, Limewire allows a user to search for,

download, and share various types of files over the Internet with other users of

the Limewire application. With the program, a user can input search terms, such

as the name of a file or subject matter, and receive in response a list of matching

files being shared by computers connected to the Limewire network. The user

may then select for download a desired file from the list and connect to the

computer sharing the file to obtain it. The user can also share files with others by

placing files in a computer folder designated for sharing, although this sharing

feature is elective and may be disabled. See generally United States v. Shaffer,

472 F.3d 1219, 1221-22 (10th Cir. 2007) (describing operation of peer-to-peer

networking applications).

      The evidence produced at trial showed that, in September 2006, Special

Agent Flint Waters, a member of the Wyoming State Criminal Investigation

Division, located a computer in Casper, Wyoming offering child pornography

files for download via Limewire. In total, the computer made available for

download 608 files, 16 of which were known images of child pornography and

several others of which bore names consistent with child pornography. Agent

Waters personally downloaded six child pornography files from the Casper




                                         -2-
computer. In the process of the download, Agent Waters was able to capture the

computer’s IP address.

         With the help of a public website, Agent Waters determined that the IP

address was owned by Qwest Communications. He then asked Nicole Balliett,

Senior Special Agent with Immigration and Customs Enforcement, to serve a

summons on Qwest asking the company to release subscriber information related

to the IP address. In response to that summons, Qwest reported that the IP

address was associated with Mr. Swenson and his residence in Casper. FBI

Special Agent Todd Scott then obtained a search warrant authorizing a search of

Mr. Swenson’s home.

         Agents executing the warrant found a computer in the office area of Mr.

Swenson’s house that was then in the process of downloading three files from

Limewire. The download was in response to the search terms “sweet krissy” and

“lsh,” and each of the files contained child pornography. Agents seized the

computer, and a forensic examination later unearthed over 2,000 images of child

pornography stored on the hard drive, including 1,988 still images and 80 video

clips.

         At the conclusion of trial, the jury was charged with rendering verdicts on

three counts: (1) attempted distribution of child pornography (18 U.S.C.

§ 2252A(a)(2)); (2) receipt of child pornography (18 U.S.C. § 2252A(a)(2)); and

(3) possession of child pornography (18 U.S.C. § 2252A(a)(5)(B)). The jury

                                           -3-
found Mr. Swenson guilty of all three counts. Mr. Swenson challenges each of

these convictions on appeal before us.

      We begin with count two, the receipt charge, because there the parties

agree. The indictment charged Mr. Swenson with unlawful receipt of a single

digital image. Because this case was tried under a predecessor version of 18

U.S.C. § 2252A, the government was obliged to prove that this particular image

had been mailed, shipped, or transported “in interstate commerce or foreign

commerce.” But the only evidence or argument the government offered at trial to

satisfy this requirement rested on the assumption that, because the particular

image in question had been downloaded from the Internet, it must have traveled

across state lines. Appellee Br. at 22. Likely as this assumption may be given

the global reach of the Internet, the government concedes it is insufficient to

sustain Mr. Swenson’s conviction under United States v. Schaefer, 501 F.3d 1197

(10th Cir. 2007). Handed down shortly after the trial in this case, Schaefer

expressly held that, under the version of 18 U.S.C. § 2252A applicable to this

case, “it is not enough to assume that an Internet communication necessarily

traveled across state lines in interstate commerce.” Id. at 1200-01. Notably,

other circuits sanction the very assumption Schaefer rejected and Congress

responded to Schaefer by amending § 2252A to make clear that such an

assumption will be tenable in future cases. See 18 U.S.C. § 2252A (October 8,

2008); David M. Frommell, Note: Pedophiles, Politics, and the Balance of Power:

                                         -4-
The Fallout From United States v. Schaefer and the Erosion of State Authority, 86

Denv. U. L. Rev. 1155 (2009). Still, the government concedes, as it must, that

this case is governed by the pre-amendment statute and the Schaefer decision and,

accordingly, that “the Defendant is entitled to a judgment of acquittal on this

count.” Appellee Br. at 22.

      Count one, attempted distribution, is another story. The indictment on this

count, unlike on count two, was not restricted to a single digital image, and thus

the government was free to prove that any image of child pornography its agent

had downloaded from Mr. Swenson’s computer in September 2006 traveled in

interstate or foreign commerce. See 18 U.S.C. § 2252A(a)(2). Even so, Mr.

Swenson argues that the government’s proof on the interstate commerce element

was insufficient. Because he failed to raise this challenge before the district

court, our review is for plain error only. Schaefer, 501 F.3d at 1199-1200. To

win relief under this standard, Mr. Swenson must show (1) an error, (2) that is

plain, (3) that affects his substantial rights, and (4) that seriously affects the

fairness, integrity, or public reputation of judicial proceedings. United States v.

Poole, 545 F.3d 916, 919 n.2 (10th Cir. 2008). We see no error in Mr. Swenson’s

conviction on this count, much less one meeting this high threshold.

      Unlike how it proceeded under the receipt charge, on the attempted

distribution charge the government did not rely on the assumption that a file

downloaded from the Internet must have traveled interstate. Instead, on this

                                          -5-
count, the government provided testimony from one of its agents that at least one

image Mr. Swenson made publicly available for file sharing bore the words

“Photo by Carl,” and was “consistent with the Carl series that’s being distributed

out of South America” that the agent was familiar with from other child

pornography investigations. Vol. IV, at 137-38. A reasonable jury could (even if

it need not) conclude from this evidence that, for the image to wend its way from

South America to Wyoming, it had traveled in interstate or foreign commerce –

such that, in Section 2252A(a)(2)’s then-operative terms, Mr. Swenson had

attempted to distribute “child pornography that has been mailed, or shipped or

transported in interstate or foreign commerce by any means, including by

computer.” See, e.g., United States v. Clawson, 831 F.2d 909, 913 (9th Cir. 1987)

(fact that firearm had been manufactured in Germany was sufficient to prove that

it had moved in interstate commerce); United States v. Gann, 732 F.2d 714, 724

(9th Cir. 1984) (same). This case, then, is the “typical[]” case where “the

evidence of the interstate element . . . can be gleaned from the record” evidence,

and not a case where the government relies exclusively on an assumption that

materials downloaded from the Internet traveled in interstate commerce.

Schaefer, 501 F.3d at 1208 (Tymkovich, J., concurring) (explaining that Schaefer

itself was “not such a [typical] case”).

      Besides his sufficiency challenge, Mr. Swenson also challenges the district

court’s jury instructions on count one. This challenge, too, centers on the then-

                                           -6-
operative interstate commerce element of 18 U.S.C. § 2252A(a)(2), with Mr.

Swenson complaining that the district court’s instructions left the jury free to

make the Internet-download-equals-interstate-commerce assumption rejected by

Schaefer. The problem for Mr. Swenson is that he proffered the very instructions

of which he now complains. And a party generally may not secure reversal on the

basis of error he or she invited. See United States v. Deberry, 430 F.3d 1294,

1302 (10th Cir. 2005) (“[T]he invited-error doctrine precludes a party from

arguing that the district court erred in adopting a proposition that the party had

urged the district court to adopt.”); United States v. Visinaiz, 428 F.3d 1300,

1310-11 (10th Cir. 2005) (stating that because defense counsel had proffered the

allegedly erroneous instruction, “a challenge thereto is precluded as invited

error”). Neither are we directed to any possibly applicable exception to this rule.

For example, while Mr. Swenson proffered his instructions before Schaefer was

handed down, this is not a case where it would have been futile for Mr. Swenson

to make the argument he now presses before us: the argument adopted in Mr.

Schaefer’s case was equally available to Mr. Swenson in this circuit at the time of

his trial.

       We come finally to count three, the possession charge. Here again Mr.

Swenson’s appeal can be for plain error only, and here again no such error exists.

Under the version of 18 U.S.C. § 2252A(a)(5)(B) in force at the time of Mr.

Swenson’s challenged conduct, indictment, and trial, it was unlawful for a person

                                         -7-
to “knowingly possess[] any . . . material that contains an image of child

pornography that [among other things] was produced using materials that have

been mailed, or shipped or transported in interstate or foreign commerce by any

means, including by computer.” (emphasis added). Mr. Swenson concedes that

his computer’s hard drive had been manufactured in Malaysia and had traveled in

interstate or foreign commerce to reach him. Aplt. Br. at 17. Still, he disputes

that his hard drive “produced” images of child pornography by downloading them

from the Internet and making them available to others via Limewire. We have

previously rejected this argument, however, holding that computerized images are

“produced” by a hard drive when the hard drive is used to copy or download the

images. United States v. Schene, 543 F.3d 627, 638-39 (10th Cir. 2008). We are

of course bound by this decision and its upshot means that in Mr. Swenson’s case

the jury was free to conclude that materials (namely, his hard drive) that had

traveled in interstate or foreign commerce “produced” child pornography images. 1

      Mr. Swenson’s convictions on counts one and three are affirmed. His

conviction on count two is reversed and this matter is remanded for further

      1
         Mr. Swenson also appeals the denial of his motion to suppress, asserting
that under the terms of the Electronic Communications Act, Qwest was not
authorized to release his subscriber information to the government. Aplt. Br. at
23 (citing 18 U.S.C. § 2703(c)(2)). As Mr. Swenson concedes, however, his
argument is (also) foreclosed by our precedent. Subscriber information provided
to an Internet service provider is not protected by the Fourth Amendment’s
privacy expectation. United States v. Perrine, 518 F.3d 1196, 1204 (10th Cir.
2008). Neither do violations of the Electronic Communications Act warrant
exclusion of evidence. Id. at 1202; see also 18 U.S.C. § 2707, § 2708.

                                        -8-
proceedings consistent with this order and judgment.



                                     ENTERED FOR THE COURT



                                     Neil M. Gorsuch
                                     Circuit Judge




                                       -9-
