Wednesday, July 31, 2013

Child Pornography, the Laptop and the Shower

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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