United States v. Kroeker: Tenth Circuit Confirms Internet Use Alone Does Not Prove “In Interstate Commerce” for § 2252A(a)(5)(B) Possession and Sanctions Jury Use of Dost Factors

Introduction

United States v. Kroeker, No. 24-3060 (10th Cir. July 8, 2025), presented the Court of Appeals with two classic but recurrent issues in federal child-pornography prosecutions:

whether a jury instruction on “lascivious exhibition” was legally sound in a receipt prosecution under 18 U.S.C. § 2252A(a)(2); and
whether the evidence was sufficient to support a possession conviction under § 2252A(a)(5)(B) when the indictment alleged the material had been “mailed, shipped and transported in interstate and foreign commerce,” yet the Government proved only that the defendant acquired files through the Internet.

Defendant-appellant Daniel Kroeker was charged with:

Count 1 – Receipt of child pornography (“in and affecting interstate and foreign commerce”); and
Count 2 – Possession of child pornography (“in interstate and foreign commerce”).

After a jury conviction on both counts, Kroeker appealed, attacking the receipt-count jury instructions and the sufficiency of the evidence on the possession count. Exercising jurisdiction under 28 U.S.C. § 1291, the Tenth Circuit affirmed the receipt conviction but reversed the possession conviction, entering an acquittal on Count 2.

Summary of the Judgment

Receipt (Count 1) – AFFIRMED. The panel held that the district court’s lascivious-exhibition instruction—containing the Dost factors, a definition referencing “indecent exposure,” and a comment that jurors may consider whether the visual depictions would appeal to persons who are sexually attracted to children—accurately stated the law and did not violate the First Amendment.
Possession (Count 2) – REVERSED. Because the indictment required proof that the images were “in interstate commerce,” the Government had to show actual interstate movement of the visual content, not merely that the files were stored on a computer connected to the Internet (a “facility” of interstate commerce). No such proof was offered; reliance on Internet usage alone is foreclosed by circuit precedent (Schaefer, Kieffer). The conviction therefore could not stand.

Detailed Analysis

1. Precedents Cited and Their Influence

a. Child-Pornography Substantive Standards

United States v. Wolf, 890 F.2d 241 (10th Cir. 1989) – First Tenth Circuit decision adopting the six Dost factors (from the C.D. Cal. district court decision in United States v. Dost, 636 F. Supp. 832 (1986)) as helpful but non-exclusive aids in determining lasciviousness.
United States v. Wells, 843 F.3d 1251 (10th Cir. 2016) – Re-affirmed Wolf; emphasized that no single factor is dispositive and the ultimate question is the overall content of the depiction.
United States v. Isabella, 918 F.3d 816 (10th Cir. 2019) – Confirmed that “mere nudity” is not automatically lascivious.
United States v. Knox, 32 F.3d 733 (3d Cir. 1994) – Quoted approvingly for the ordinary meaning of “lascivious exhibition.”

b. Interstate-Commerce Element

United States v. Schaefer, 501 F.3d 1197 (10th Cir. 2007) – Reversed conviction where Government proved only Internet use, holding that evidence must show movement across state lines when indictment alleges “in interstate commerce.”
United States v. Sturm, 672 F.3d 891 (10th Cir. 2012) – Limited Schaefer by allowing proof that visual content, not necessarily the specific file, traveled interstate, but did not disturb Schaefer’s rule that Internet use alone is insufficient.
United States v. Kieffer, 681 F.3d 1143 (10th Cir. 2012) – Clarified that a single individual’s Internet use “standing alone” cannot establish interstate movement.
United States v. Miller, 891 F.3d 1220 (10th Cir. 2018) & United States v. Farr, 536 F.3d 1174 (10th Cir. 2008) – Underline that indictment language becomes an “essential and delimiting” part of the charge, binding the prosecution’s proof.

By applying these authorities, the panel:

validated the district court’s use of Dost factors (Wolf, Wells, Knox);
recognized the continued vitality of Schaefer and Kieffer on the Internet-commerce question, despite post-2008 statutory amendments and Sturm’s partial limitation; and
invoked Miller to hold the Government to the exact language it chose (“in” rather than “in and affecting”).

2. The Court’s Legal Reasoning

a. Jury-Instruction Challenge (Receipt Count)

Definition of “lascivious exhibition.” Including “indecent exposure, usually to incite lust” was not error because Black’s Law Dictionary has long treated “indecent” as synonymous with “lascivious,” and the instruction expressly cautioned the jury that not every exposure is lascivious.
Use of the Dost factors. Defendant’s proposal to confine the factors to production cases was rejected. The panel reiterated that Wolf and subsequent cases approve jury consideration of the factors in any § 2252A prosecution. Importantly, the district court emphasized jurors were not bound by the factors and must look at “overall content.”
Reference to viewers’ possible sexual interest. The comment that jurors “may consider whether the visual depictions would appeal to persons who are sexually attracted to children” essentially restated the sixth Dost factor. Placed in context, it did not create an over-broad, audience-driven test.
Inclusion of statutory language covering virtual or morphed images (§ 2256(8)(B)–(C)). While those sub-paragraphs were not charged, their verbatim inclusion was not misleading. The only image offered for the receipt count was an admittedly real photograph of a six-year-old; thus the surplus language could not have confused the jury.

b. Sufficiency of the Evidence (Possession Count)

The prosecution’s proof boiled down to: (1) the files resided on Kroeker’s laptop; (2) he obtained them via the Internet; (3) several were marked with “.com” watermarks indicative of commercial websites; and (4) Tumblr’s “legal process” is located in New York.

The court held this was inadequate because:

Stating that the Internet is a “facility of interstate commerce” does not itself prove the image crossed state lines.
The jury would have had to stack speculative inferences (someone outside Kansas uploaded the images; the images thereafter traveled interstate before being saved locally)—prohibited under the reasonable-doubt standard (Smith, 2025).
The Government drafted the indictment without the disjunctive “affecting interstate commerce” phrase. Therefore Schaefer/Kieffer required proof of interstate movement, which was missing.

3. Impact of the Decision

a. Prosecutorial Drafting and Charging Decisions

After Kroeker, U.S. Attorneys in the Tenth Circuit will likely:

include both “in and affecting interstate or foreign commerce” language in § 2252A(a)(5)(B) indictments, or
plead that the material was “transported using any means or facility of interstate or foreign commerce,” to avoid the stricter Schaefer standard and preserve the broader “affecting commerce” theory.

Failure to do so now exposes possession counts to sufficiency attacks where there is no direct proof of interstate travel of the visual content.

b. Evidentiary Strategy

Prosecutors must be prepared to introduce:

forensic data showing the IP address or URL of origin in another state or country;
server logs, subpoenas to cloud-storage or website hosts documenting interstate routing; or
expert testimony tracing hash values of the images to out-of-state uploads.

Merely establishing that a defendant used the Internet or possessed files on a computer is no longer enough (where “in interstate commerce” is alleged).

c. Jury Instruction Practice

Dost factors remain an approved instructional aid in both receipt and production contexts, though courts must clarify their non-exhaustive nature.
Trial courts can safely reference audience appeal (pedophilic interest) as one permissible consideration, as long as they embed it within a holistic, multi-factor framework.

d. Broader Doctrinal Significance

Kroeker reinforces a subtle but important Commerce Clause distinction: “using a facility of interstate commerce” ≠ “transported in interstate commerce.” The ruling also exemplifies how circuit precedent (Schaefer, Kieffer) can survive statutory amendments when later cases (Sturm) address different facets of the same issue. Finally, it continues the trend of careful constitutional gate-keeping in child-pornography cases—balancing aggressive enforcement with precise statutory construction and First Amendment limits.

4. Complex Concepts Simplified

Lascivious Exhibition – A depiction that deliberately focuses on a child’s genitals or pubic area in a way intended to arouse sexual desire. Not all nudity qualifies; context, pose, focus, setting, and viewer appeal matter.
The Dost Factors – Six non-binding questions (focus, setting, unnatural pose, degree of clothing, sexual coyness, intended viewer reaction) used by courts and juries to evaluate lasciviousness.
“In” vs. “Affecting” Interstate Commerce – “In” requires evidence the item itself moved across state lines. “Affecting” is broader; the Government need only show a nexus or use of an interstate facility (e.g., the Internet) that impacts commerce.
Visual Content vs. Particular File – After Sturm, the Government need not prove the specific digital copy traveled interstate, only that the underlying image or video was so transported at some point.

Conclusion

In United States v. Kroeker, the Tenth Circuit delivers two significant holdings:

The classic Dost framework—and related audience-appeal considerations—may be incorporated into jury instructions for receipt cases, provided jurors are reminded that the factors are non-exclusive and that “mere nudity” is insufficient.
When the Government elects to charge possession by alleging that the imagery was “in interstate commerce,” it must present specific evidence that the visual content crossed state lines; proof of Internet acquisition alone will not satisfy § 2252A(a)(5)(B).

These rulings sharpen both prosecutorial and defense playbooks in the child-pornography arena, underscore the continuing vitality of Schaefer/Kieffer limitations, and model meticulous statutory interpretation in sensitive criminal contexts. Going forward, federal prosecutors in the Tenth Circuit will need to fortify interstate-commerce proofs or adjust indictment language, while defense counsel will scrutinize charging decisions and evidence with renewed precision.