After a jury convicted Paul Stanley of “three counts related
to child pornography -- for transportation, receipt, and possession of child
pornography, in violation of 18 U.S . Code §§ 2252A(a)(1), (2), (5)(B) -- as
well as one count of obstruction of justice, in violation of 18 U.S. Code § 1512(c)(1)”, he appealed. U.S. v. Stanley, 2013 WL 3770713 (U.S.Court of Appeals for the 4th Circuit 2013).
Stanley made three arguments on appeal: that the U.S. District Court judge who
presided at his trial “erred in admitting expert testimony by the agent who
conducted the forensic examination of Stanley's computer;” that the evidence was not sufficient to support his conviction for the child pornography crimes;
and that the evidence was not sufficient to support his conviction for
obstruction of justice. U.S. v. Stanley,
supra. The Court of Appeals
addressed the arguments in this order.
Stanley’s first argument was that
Agent Crystal Gilmer, a computer
forensic examiner with the Maryland State police, should not have been
permitted to testify as an expert regarding her forensic examination of
Stanley's laptop computer. Stanley asserts that Agent Gilmer possessed insufficient
specialized knowledge or skill in the software programs used to extract data
from Stanley's computer, and failed to offer testimony regarding the
reliability of the forensic tools used in the examination.
U.S. v. Stanley,
supra.
The Court of Appeals noted that it reviews a district court
judge’s decision to admit expert testimony for “abuse of discretion and will
not find an abuse unless a ruling is `arbitrary and irrational.’” U.S. v. Stanley, supra (quoting U.S.
v. Cloud, 680 F.3d 396 (U.S. Court of Appeals for the 4th Circuit 2012). It then explained that Rule 702 of the Federal Rules of Evidence outlines the requirements for admitting expert
testimony:
These are four-fold. First, the
district court must find that `the expert's scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence
or to determine the fact in issue.” Rule 702(a). Second, `the testimony
[must be] based on sufficient facts or data.’ Rule 702(b). Third and 4th, `the testimony [must be] the product
of reliable principles and methods” that “the expert has reliably applied ...
to the facts of the case.’ Rule
702(c)-(d).
As to these latter prongs, the district
court `must have considerable leeway in deciding in a particular case how to go
about determining whether particular expert testimony is reliable.’ Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). The many factors set
forth in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and its progeny are neither exclusive nor dispositive. Rule 702, advisory
committee's note. Furthermore, `the trial court's role as a gatekeeper is not
intended to serve as a replacement for the adversary system,” and consequently,
“the rejection of expert testimony is the exception rather than the rule.’ Rule
702, advisory committee's note.
U.S. v. Stanley,
supra.
The Court of Appeals then applied these standards to the
testimony at issue, noting that
[d]uring
her expert testimony, Agent Gilmer explained the process she used to examine Stanely's
laptop, utilizing multiple forensic tools. These tools included a forensic
software program called EnCase, which she used to make a `mirror’ image of
Stanley's computer in order to examine its contents without risking damage to
the original.
Agent Gilmer's examination revealed
that Stanley had downloaded and installed a peer-to-peer file sharing program
called FrostWire onto his laptop. Agent Gilmer also discovered that the
FrostWire program had been used to search for and download child pornography,
as well as to view, keep, and share child pornography files.
U.S. v. Stanley,
supra.
The court found the district court judge did not abuse his
discretion in admitting Gilmer’s expert testimony, given these facts. U.S. v. Stanley, supra. It noted that as to Rule 702’s first
requirement, “many courts have noted that the process of forensic data
extraction requires specialized knowledge or skill conducive to expert
testimony. See, e.g., U.S. v. Yu, 411 F. App'x 559 (U.S.
Court of Appeals for the 4th Circuit 2010); U.S. v. Ganier, 468
F.3d 920, 926 (U.S. Court of Appeals for the 6th Circuit.2006).” U.S. v. Stanley, supra. The Court of Appeals also found that, as to
the
factual
basis and reliability of the testimony, the district court acted well within
the wide bounds of its discretion. During the lengthy voir dire that included
several rounds of cross-examination, the district court heard considerable
evidence regarding Gilmer's education, training, experience, and knowledge of
the forensic tools and procedures she utilized, as well as detailed
explanations of her use of the forensic software in this particular case.
Gilmer also explained that the forensic
tools she used to examine the contents of Stanley's laptop had been accepted as
reliable procedures by her law enforcement agency. Having heard all of this
evidence and the defense's objections, the district court permitted the
government to proceed with its examination of Agent Gilmer as an expert in `computer
examination and analysis.’
U.S. v. Stanley,
supra. So it rejected Stanley’s
first argument. U.S. v. Stanley, supra.
The court then took up his second argument, that the
evidence presented at trial was not sufficient to support his convictions for
transporting, receiving and possessing child pornography. U.S. v. Stanley, supra. He
apparently argued that “downloading, storing, and sharing images using a
peer-to-peer program on one's computer cannot establish knowing
receipt, possession or transportation of child pornography.” U.S. v. Stanley, supra. The Court of Appeals did not agree, noting,
first, that
[w]e have held that “use of a
peer-to-peer file-sharing program qualifies as distribution” in the context of
a sentencing enhancement for distribution of child pornography. U.S. v.
Layton, 564 F.3d 330 (U.S. Court of Appeals for the 4th Cir.2009). Thus, `[w]hen knowingly using a file-sharing
program that allows others to access child pornography files, a defendant
commits an act related to the transfer of [child pornography].’ Id. . . .
The same rationale applies to
transportation, receipt, and possession of child pornography as defined
by 18 U.S Code § 2252A.
U.S. v. Stanley,
supra.
The court then explained that the evidence at trial
supported the jury’s finding that
Stanley possessed the requisite knowledge of his
actions for each of the child pornography convictions. In affirming the
sufficiency of the evidence to support a defendant's conviction for receipt of
child pornography, we have reasoned that `whether a defendant knew that images
viewed online would be saved to his computer is a close question only where
there is some indication that the images were saved there without his knowledge.’
U.S. v. Johnson, 2013 WL 1767640 (U.S. Court of Appeals for the 4th
Circuit 2013). Here, . . . the government presented ample evidence of Stanley's
intent and awareness of his illegal acts.
According to Gilmer's testimony, 570 files had been
available for sharing at the time Stanley's laptop was seized, all of which
were saved in the folder designated for saving and sharing files, entitled `C:/
Users/Paul/shared.’ . . . Upon opening the FrostWire shared folder, it
prominently displayed the following warning: `You are sharing 570 files. You
can control which files FrostWire shares.’ . . .
The government introduced evidence of common search
terms associated with child pornography, which were included in many of the
file names found on the laptop. t Gilmer also testified that during the ten
days prior to the laptop's seizure, specific images in the FrostWire shared
folder had been accessed 209 times, with 173 of the images containing terms
indicative of child pornography in their titles.
In addition to this abundance of
evidence that Stanley repeatedly sought and viewed child pornography, and was
on notice these files were being shared with others through the FrostWire
program, the jury also heard testimony about [his] attempt to destroy his
laptop by placing it under running water in the shower after officers informed
him that they were investigating his involvement in child pornography
activities. From this evidence, . . . a rational jury could have concluded
beyond a reasonable doubt that Stanley knowingly transported, received, and
possessed child pornography, in violation of the charged provisions of 18
U.S.C. § 2252A.
U.S. v. Stanley,
supra. (We’ll get back to the shower
in a moment.)
It then took up his final argument – that the evidence was
not sufficient to support his conviction for obstruction of justice in
violation of 18 U.S. Code § 1512. U.S. v. Stanley, supra. The Court of
Appeals noted that to “sustain a conviction for obstructing a
federal proceeding, the government was required to prove Stanley
`corruptly . . . alter[ed], destroy[ed], mutilate[d], or conceal[ed] a record,
document, or other object, or attempt[ed] to do so, with the intent to impair
the object's integrity or availability for use in an official proceeding.’” U.S. v. Stanley, supra (18 U.S. Code §
1512(c)(1)).
As to the trial, the court noted that
the prosecution presented evidence that the
Internet Crimes
Against Children Task Force was conducting an online undercover investigation
into individuals using peer-to-peer networks to traffic child pornography. In
the course of this investigation, officers identified an internet protocol
(`IP’) address which they linked to Stanley. When Task Force officers arrived
at [his] residence, they identified themselves and informed Stanley they were
pursuing an investigation into child pornography activities.
Stanley asked if he could go back into
the residence to get dressed, at which point he went into the basement and woke
his roommate, Brian Pease, telling him that `[t]he cops are here for my
computer.’ When Pease got out of bed a few minutes later, he found Stanley's
laptop in the shower under running water, and removed it.
Meanwhile, Stanley
returned to the door and advised the Task Force officers that he no longer had
possession of the laptop because he had given it to a friend when it stopped
working six months earlier. Task Force officers subsequently obtained a search warrant
for Stanley's residence, and recovered the laptop Stanley had placed in the
shower.
U.S. v. Stanley,
supra.
The Court of Appeals then found that, “viewing this evidence
in the light most favorable to the government, we find it more than sufficient to
allow a reasonable juror to determine beyond a reasonable doubt that Stanley
attempted to destroy or conceal his laptop in order to impair its availability
for use in an official proceeding.” U.S. v. Stanley, supra.
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