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United States v. Smith,
No. 03-13639 (11th Cir., March 18, 2005) (Published): Winner!!! Child porn case reversed on Commerce Clause grounds even when not raised below--circuit finds plain error(!) Smith took photos of teen girl and kept them. Government tried to establish Commerce Clause jurisdiction through testimony of a VP for Eckerd's Drugs that some of the photos were printed on Kodak paper that Eckerd's received from Rocheser, NY, and processed by equipment that it received from California. The circuit held this was too tenuous to invoke federal jurisdiction and applied the holding of United States v. Maxwell, 386 F.3d 1042 (11th Cir. 2004) (purely intrastate possession of child porn does not implicate Commerce Clause).
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United States v. Brown,
No. 03-8071 (10th Cir., March 28, 2005) (Unpublished): No relief for Brown, but good discussion of federal standards of "bad acts" evidence and jurisdiction in cases where Defendant uses the internet to entice a minor (the undercover cop) to engage in sexual activity. Here, both cop and Defendant were in Cheyenne, Wyoming, but messages were routed through California. Circuit held this was enough to establish federal jurisdiction. Contrast this holding with the Eleventh Circuit's decision in the Smith case presented last week (no federal jurisdiction where Defendant takes photo of minor and equipment used to process it is from different states).
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United States v. Riccardi,
No. 03-3132 (10th Cir., April 19, 2005) (Published): Possession of child porn case where Riccardi makes several arguments attacking the search warrant of his home and computer, jurisdiction under the Commerce Clause, the sufficiency of the evidence, and sentencing proceeding under Booker--all to no avail. The Circuit recognized Sixth Amendment error at sentencing under Booker but held that it was harmless because Riccardi was sentenced to a ton of time and there was no indication in the record that the District Court would re-sentence with less severity if the case was remanded.
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United States v. Hamilton,
No. 04-4091 (10th Cir., June 28, 2005) (Published): Transportation of child pornography in interstate commerce affirmed over several challenges. Interesting discussion of internet "newsgroups" and how the police found out Hamilton posted the offending images to one of the newsgroups.
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United States v. Bass,
No. 04-6049 (10th Cir., June 29, 2005) (Published): Possession of Child Pornography conviction affirmed but remanded in light of Booker. Also, interesting concurrence/dissent by Judge Kelly on the issue of sufficiency of the evidence and the distinction between viewing child porn on a computer and actually knowingly possessing it. It is a computer case arising out of Enid.
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United States v. Jeronimo-Bautista,
No. 04-4137 (10th Cir., October 11, 2005) (Published): Ugly appeal by the Government of an Order by the District Court dismissing an Indictment based upon a lack of jurisdiction when Jeronimo and two others drugged and sexually assaulted a minor in Utah; then these master criminals took the camera to a one-hour photo shop to have the film developed. Surprise! The lab people saw images of what appeared to be adult males sexually assaulting a minor and reported it. Jeronimo is a Mexican citizen residing in Utah, the victim was born in Utah and was not transported across state lines, and there was no evidence that Jeronimo transmitted the photos in any way across state lines. So, the District Court dismissed and the Government appealed. The Circuit reversed, citing the Supreme Court's recent decision in the Raich case which upheld regulation of purely intra-state production of marijuana. Take note folks, any in-roads made by Lopez have been eroded in the area of child porn.
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United States v. Sims,
No. 03-2151 (10th Cir., November 9, 2005) (Published): Lengthy opinion in an internet chat room sting case where Sims was convicted of traveling in interstate commerce to engage in sex acts with a minor, attempted enticement of a minor, and transporting child porn. Interesting search issues raised by Sims, particularly one not addressed by the Circuit but it noted that the District Court suppressed a search of Sims's office computer when police initiated a search of it but it was actually performed by an office tech remotely through the server. There is also a lengthy discussion on a consent to search issue. Also, the cops served the search warrant a day after the date specified in the warrant, but this was held to be error not subject to suppression. Finally, the Circuit discusses the government's burden of proving that the images were in fact real children rather than computer-generated images. The Circuit gives lip service to the government's burden of proof, stating that the government has the burden, but it basically does not have to do anything other than present the images themselves. This looks like a cert. issue, but for now I think if you have such a case you must get an expert to attack the images as possibly being fakes.
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United States v. Grimmett,
No. 05-3030 (10th Cir., March 10, 2006) (Published): Search and Seizure case where police executed a search warrant for Grimmett's home and computer and found child porn. Affirmed. Fairly straightforward search-and-seizure analysis upholding the sufficiency of the warrant. Also, this is another case where the child porn was made locally and not distributed via the internet or in the mails, i.e., purely intra-state production. The Circuit held that the Commerce Clause does in fact reach this far to prohibit such acts in light of the recent Supreme Court case allowing such an analysis (Gonzalez v. Raich, 125 S.Ct. 2195 (2005)). NOTE: The Circuit also decided an unpublished case with the same issues and employed a similar analysis, see United States v. Croxford, No. 04-4158 (10th Cir., March 7, 2006)).
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United States v. Macewan,
No. 05-1421 (3rd Cir., April 5, 2006): Child porn case presenting the question whether the use of the Internet satisfies the interstate commerce element of the federal law prohibiting the receipt of child pornography. HELD: it does.
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United States v. Williams,
No. 04-15128 (11th Cir., April 6, 2006): Child porn case in which the panel finds a federal statute prohibiting "promotion" of child pornography unconstitutional on its face (18 U.S.C. 2252A(a)(3)(B)).
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United States v. Branson,
, No. 06-3038 (10th Cir., August 29, 2006) (Published): Child Porn: Possession of Child Pornography sentence (51 months) upheld on a "reasonableness" challenge that argued the "reasonableness" calculus must take into account the disparity between the federal sentence and a state sentence for comparable conduct. The panel held that the Guidelines are concerned with correcting disparities among federal sentences, not between state and federal sentences for similar conduct.
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Anthony Logan Merrick v. State,
No. F-2005-569 (Okl.Cr., October 19, 2006) (unpublished): Child Porn; Double Jeopardy/21 O.S. 11: Merrick was convicted in Oklahoma County at a bench trial (Hon. Susan P. Caswell) of beau-coup counts ranging from Sexual Abuse of a Child, Sexual Exploitation of a Child, First Degree Rape by Instrumentation, and Indecent or Lewd Acts---a whopping 51 counts in all for which he received essentially two consecutive life sentences. Merrick gets some relief by arguing that a "single cache" of pornography can support only one count of possession of child pornography under 21 O.S. 1021.2 and 1024.1. In this case, the State introduced evidence of a videotape that contained several images and a CD-ROM that contained several images. The State apparently printed out thirteen images from these sources and charged them as discrete counts. The Court held this was impermissible under the statute because a digital/magnetic storage device is a distinct item.
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United States v. Kuchinski,
No. 05-30607 (9th Cir., November 27, 2006): Child Porn: Kuchinski was convicted of possession of child porn. He challenged the government's use at sentencing of all the pornographic images found on his computer. He admitted to downloading 110 images; but over 17,000 were found in the "cache files" of his computer. The court noted that when a person visits a web site, the web browser will automatically download that page into the temporary internet files as a time-saving measure if the site is visited again. In this case, there was no evidence that Kuchinski was a sophisticated computer user who could have accessed directly the cache files or that he in fact did so. Thus, it was improper to use the images in the cache against him at sentencing without any other evidence that he exercised dominion and control over them.
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United States v. Knellinger,
No. 3:06cr126 (E.D. Va., January 25, 2007): Child Porn: In this federal child porn case, the Adam Walsh Child Protection and Safety Act requires that the child pornography remain in the custody of the United States or the Court, so long as the defendant has "ample opportunity for inspection, viewing, and examination" of the evidence at a Government facility. Knellinger requested a mirror image copy of his hard drive and the government refused. The Court held that Knellinger was entitled to a mirror image copy for use by his experts because of the testimony that it would not be practical for the experts to move all their equipment to a government facility.
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United States v. Buchanan,
No. 04-41354 (5th Cir., April 19, 2007): Child Porn: Multiple counts of Receiving Child Pornography Transported in Interstate Commerce by Computer are vacated and remanded with instructions to reinstate only one conviction on the basis that the counts were multiplicitous because the Government failed to allege or prove that Buchanan engaged in more than one transaction in violation of 18 U.S.C. 2252.
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Barton v. State,_ S.E.2d_, 2007 WL 1775565 (Ga. App., June 21, 2007): Child Porn: Barton was convicted of possessing images of child pornography when his wife provided authorities with his laptop computer. The images were found on the hard drive, but in the temporary internet file folders which, the evidence showed, is a storage place to which the computer saves files without any affirmative action of the user. HELD: the mere existence of pornographic images in the cache files of an individual's computer is insufficient to constitute knowing possession of those materials absent proof that the individual either 1) took some affirmative act to save or download those images to his computer; or 2) had knowledge that the computer automatically saved those files. Convictions REVERSED. NOTE: this is a good case that cites other cases on this topic.
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United States v. Geiner,
No. 06-8055 (10th Cir., August 20, 2007) (Published): Child Porn: Geiner was charged with Attempted Interstate Transportation of Child Pornography and Possession of Child Pornography. He entered blind pleas and objected to an enhancement that accused him of distribution for something of value (although not for pecuniary gain). The Government's theory was that Geiner used "bearshare" (a peer-to-peer file sharing program) as a priority trader which allowed him to access the files from others at a faster rate. The faster access rate was the thing of value. Geiner was sentenced to the bottom of the Guidelines range. HELD: The enhancement applied to Geiner.
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United States v. Schaefer,
No. 06-3080 (10th Cir., September 5, 2007) (Published): Child Porn; Sufficiency of the Evidence: Schaefer subscribed to various web sites to supply him with child porn. Following a tip, officers executed a warrant of his home and found the images on a CD. Schaefer admitted to seeking out images of child porn on the Internet. He waived jury trial and was tried by the court. HELD: REVERSED because the Government failed to produce sufficient evidence that Schaefer possessed and received images that traveled across state lines(!) and on plain error review, to boot. The Court noted that the jurisdictional nexus requires a movement between states. The Court held: "The government did not present evidence of such movement; instead, the government only showed that Mr. Schaefer used the Internet."
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State v. Zidel,
No. 2006-549 (N.H., January 18, 2008): Child Porn: Zidel worked as a photographer at a camp for children fifteen years of age and younger. His job was take photographs to be used to make an end-of-the-year summer video yearbook for the children. He gave three CDs to the camp director for this purpose. Unfortunately, one of the CDs contained images "depicting heads and necks of minor females superimposed upon naked adult female bodies, with the naked bodies engaging in various sexual acts." The camp director notified the police and Zidel was convicted of possession of child pornography. HELD: Simple possession of these morphed images is protected by the First Amendment under Ashcroft and the convictions are reversed.
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United States v. Perrine
No. 06-3336 (10th Cir., March 11, 2008) (Published): Child Porn: In this child porn case, the panel AFFIRMED over Perrine's motion to suppress and his claim that dismissal was warranted based upon outrageous government conduct. This is a "chat room" case and describes in pretty good detail how police track down the identities and addresses of the folks engaged in the chat. Concerning the suppression issue, the panel rejected Perrine's challenges to the way in which his IP address and physical address were acquired under state law and also under the Fourth Amendment. The panel stated, "Every federal court to address this issue has held that subscriber information provided to an internet provider is not protected by the Fourth Amendment's privacy expectation." As to Perrine's claim of outrageous Government conduct, his claim goes like this: he was on probation for yet another child porn charge, the police seized his computer and were supposed to "clean" all the images of child porn from it and return in to him. However, he claims that when the police returned his computer, they had failed to "clean" it and it still contained all the child porn. He argued that this was like the Government giving heroin back to an addict. Do I really need to tell what the panel thought of this argument?
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United States v. Williams,
No. 06-694 (U.S., May 19, 2008): 1. Child Porn; 2. Statutory Construction: Statute that prohibited pandering and solicitation of child pornography was neither overbroad nor impermissibly vague.
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United States v. Brown,
No. 07-8065 (10th Cir., June 23, 2008) (Published): Child Porn: In this Possession of Child Porn case, the Government used a prior conviction under the Uniform Code of Military Justice to enhance the sentence. HELD: Under the plain language of 18 U.S.C. sec. 2252A(b)(2), a conviction under the UCMJ is not a predicate that can be used to enhance.
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United States v. Huckins,
No. 07-3220 (10th Cir., June 25, 2008) (Published): 1. Child Porn; 2. Federal Sentencing Guidelines; Reasonableness: Huckins plead guilty to one count of Possession of Child Porn and was sentenced to 18 months, even though the Guidelines range was 78 to 97 months. In this appeal by the Government, the panel AFFIRMED under the abuse of discretion standard.
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United States v. Schene,
No. 07-6177 (10th Cir., September 29, 2008) (Published): Child Porn: Possession of child porn case AFFIRMED over claims of: 1) sufficiency of the evidence that the images were produced using materials in interstate commerce; 2) sufficiency of the evidence that Schene committed the crime; 3) abuse of discretion regarding evidence of gender and homosexuality; and 4) abuse of discretion in admitting images of child pornography and related exhibits.
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