## Facts

- A detective investigated after a 13-year-old received a note containing “Paul”’s email address and phone number; the number was traced to Paul V. Burdulis, a registered sex offender.
- Posing as the boy (“Tye”), the detective exchanged emails with Burdulis over four days in May 2009.
- Burdulis solicited “naughty pics,” sent an explicit photo of himself, offered to send pornography, and suggested meeting in person.
- Police obtained a warrant to search Burdulis’s home for evidence of Massachusetts crimes: enticement of a child under sixteen and dissemination of matter harmful to minors.
- Executing the warrant, officers seized digital devices, including a thumb drive containing child pornography.
- Burdulis was federally charged with possession of child pornography under 18 U.S.C. § 2252(a)(4)(B).
- To prove the statute’s jurisdictional element, the government relied only on the thumb drive’s inscription: “Made in China.”
- The district court denied suppression, admitted the inscription over a hearsay objection, construed “produced” to include copying files onto the drive, and Burdulis was convicted.

## Issues

1. Whether “produced” in 18 U.S.C. § 2252(a)(4)(B) includes copying child pornography onto a thumb drive, so that using a foreign-made drive satisfies the statute’s commerce element.
2. Whether the “Made in China” inscription was inadmissible hearsay when used to prove the drive’s foreign origin.
3. Whether applying § 2252(a)(4)(B) to possession of files copied onto a foreign-made thumb drive exceeds Congress’s Commerce Clause power.
4. Whether the search warrant lacked probable cause or was impermissibly broad as to computers and electronic storage media.

## Decision

- The First Circuit affirmed the conviction.
- Copying child pornography onto a thumb drive constitutes “producing” it for purposes of § 2252(a)(4)(B).
- Evidence that the thumb drive was foreign-made (via the “Made in China” inscription) was sufficient to satisfy the statute’s requirement that the pornography was “produced using materials” transported in interstate or foreign commerce.
- The district court did not err in admitting the “Made in China” inscription over a hearsay objection.
- The statute, as applied, did not exceed Congress’s Commerce Clause authority.
- The warrant was supported by probable cause and was not unconstitutionally overbroad in authorizing searches and seizures of electronic devices for evidence related to the suspected offenses.

## Legal Principles

- Under 18 U.S.C. § 2252(a)(4)(B), “produced” is not limited to the original creation of an image; it includes copying child pornography onto a digital storage device, creating a new fixation in that medium.
- The jurisdictional element requiring production “using materials” shipped or transported in interstate or foreign commerce is satisfied when the storage medium used for copying has moved in interstate or foreign commerce.
- Commercial origin markings on products may be admitted to prove place of manufacture where the marking bears sufficient guarantees of trustworthiness and there is no concrete reason to doubt its accuracy.
- A search warrant for a residence and electronic devices is supported by probable cause when communications reasonably indicate solicitation of sexual images from a minor, transmission of explicit material, and offers to provide pornography, supporting an inference that evidence will be found on digital media.
- A warrant authorizing searches of computers and electronic storage for pornographic materials is not overbroad when limited by the suspected crimes and the expected location of digital evidence.

## Conclusion

The First Circuit held that copying child pornography onto a thumb drive constitutes “production” under § 2252(a)(4)(B), that a “Made in China” marking can support the statute’s interstate/foreign commerce element and be admitted over a hearsay challenge, that the statute is constitutional as applied under the Commerce Clause, and that the warrant-based search and seizure of Burdulis’s electronic devices satisfied the Fourth Amendment.


United States v. Burdulis, 753 F.3d 255 (1st Cir. 2014)