Faiz Al–Khayyal was charged with with “49 counts
of sexual exploitation of children in violation of [Georgia Code] §16–12–100(b)(8)], based upon allegations that he possessed and controlled child
pornography in the form of digital files on his laptop computer.” State v. Al-Khayyal, 2013 WL 3037725
(Georgia Court of Appeals 2013).
He moved to dismiss the charges for lack of venue and the
Superior Court of Clayton County granted the motion. State v. Al-Khayyal, supra.
The prosecution appealed the decision pursuant to Georgia Code § 5-7-1(a). State v. Al-Khayyal, supra.
As Wikipedia explains, “venue” refers to the “location where
a case is heard.” As Wikipedia also notes, Article III § 2 of the U.S.
Constitution addresses venue, stating that the “Trial of All Crimes . . . shall
be held in the State” where the crimes were committed. We will come back to venue, but first, the
facts:
In 2009, while Al–Khayyal, a professor
at the Georgia Institute of Technology, was abroad teaching in China, he became
the target of an investigation into child pornography. When he returned to the
United States on August 5, 2009, bringing his laptop computer, immigration
control officers detained him in the Atlanta airport (in Clayton County) and
seized that computer.
A forensic computer specialist for the
Georgia Bureau of Investigation conducted a forensic examination of the
computer, using specialized forensic software, and discovered 29 digital files
that contained sexually explicit images of young girls. The files had been
placed in the computer's trash folder, which had then been emptied, so the files
were permanently deleted or `double-deleted’ and inaccessible to the user. A subsequent examination of the
computer yielded 20 additional files that had been `deleted’ but remained saved
in the trash folder.
Those files were in a compressed `.rar’
format, and the images contained in the files could be viewed only with an
`uncompressing’ or `unzipping’ program that at that time was not loaded on the
computer. A different unzipping program, however, was loaded on the computer,
and [its] history files showed that the software had been used, though not on
the files at issue in this case.
In addition, the computer specialist
testified that the software required to access the .rar files is readily
available to the public and can be used without special training. When the
computer specialist used the required software to `rebuild’ the .rar files in
the trash folder, she found that the files also contained sexually explicit
images of young girls.
State v. Al-Khayyal,
supra.
In his motion to dismiss, Al-Khayyal argued that although he
“possessed the computer in Clayton County,” he “deleted the digital files
before he entered the county and could no longer access” them and there was,
therefore, no evidence that he committed the offenses as alleged in the
indictment.” State v. Al-Khayyal, supra. The trial judge granted the
motion because he found there was no evidence that Al-Khayyal “was in knowing
possession and control of the images in Clayton County.” State v. Al-Khayyal, supra.
On appeal, the prosecution argued that the evidence proved
that Al-Khayyal possessed
his computer in Clayton County . . .when
the . . . .rar files were present on [its] hard drive. . . . [T]he State
contends the evidence establishes that, although the subject files were then
assigned to Al–Khayyal's computer's trash folder, he could have accessed the
files and viewed the contraband images after downloading software that was
readily available to the public.
Further, the State contends that the
evidence supports an inference that Al–Khayyal knew the files were on his
computer and he could later access them. Because questions concerning
Al–Khayyal's knowledge and intent are for the jury to decide, the State
contends that . . . the trial court erred in . . . granting his motion to
dismiss the indictment.
State v. Al-Khayyal,
supra.
Al-Khayyal argued, in response, that the trial judge’s ruling was correct because
while he was in Clayton County, he
lacked the ability to access the illegal images stored on his computer. He
contends that contraband that is in the form of electronic data `can only be
thrown away in one way -- [by] rendering it inaccessible on the computer’ on
which the data is stored.
He contends that, before entering
Clayton County, he had done `everything he could to discard the [illegal] images
and terminate his possession’ and the steps he had taken before he returned to
the United States did, in fact, render the subject files `totally
inaccessible.’ Based on this, he contends that the trial court correctly
determined that, as a matter of law, he was not in knowing possession or
control of the contraband in that venue.
State v. Al-Khayyal,
supra.
The Court of Appeals began its analysis of the arguments by
explaining that
`[u]nder Georgia law, a person who
knowingly has direct physical control over a thing at a given time is in actual
possession of it. A person who, though not in actual possession, knowingly has
both the power and the intention at a given time to exercise dominion or
control over a thing is then in constructive possession of it. In any criminal
prosecution for possession, therefore, the State must prove that the defendant
was aware he possessed the contraband at issue. . . . Barton v. State, 286
Ga. App. 49, 648 S.E.2d (Georgia Court
of Appeals 2007).
`Both knowledge and possession may be
proved, like any other fact, by circumstantial evidence.’ . . . Hunt v.
State, 303 Ga. App. 855, 695 S.E.2d 53 (Georgia Court of Appeals 2010).
Further, `[a]s long as there is slight evidence of access, power, and intention
to exercise control or dominion over an instrumentality, the question of fact
regarding constructive possession remains within the domain of the trier of fact.’ . . . Hunt v. State, supra.
State v. Al-Khayyal,
supra. For more on actual possession versus constructive possession, check out this prior post.
The Court of Appeals then turned to child pornography,
noting that the “common thread in child pornography laws” is “the visual
depiction of minors engaged in sexually explicit conduct.” State
v. Al-Khayyal, supra.
[C]hild pornography presents special issues
in contemporary times because technology allows images to be ephemerally
generated from data stored in a variety of media. Georgia law . . . has evolved to reflect
the impact of technology. Some offenses are narrowly drawn to prohibit
specified conduct involving a `visual medium’ or `visual or printed matter’ which depicts a minor or a portion of a minor's
body engaged in any sexually explicit conduct. The offense at issue in this
case, on the other hand, is more broadly drawn to prohibit possession or
control of `any material’ which depicts such an image. [Georgia Code] §
16–12–100(b)(8).
Georgia's appellate courts have upheld
convictions under this subsection in cases based on the defendant's possession
of a videotape, a compact
disc, a DVD, or a USB flash drive that contained prohibited
content. Thus, in these storage media cases, evidence that a defendant possessed
data capable of generating images of
a minor engaged in sexually explicit conduct authorized the jury to find that
the defendant possessed prohibited `material’ even though actually viewing the
prohibited images would require the use of a machine or electronic device (a
videocassette player, a computer equipped with particular software, etc.).
State v. Al-Khayyal,
supra (emphasis in the original).
The court also noted that “it is undisputed that Al–Khayyal
physically possessed a computer that served as the storage medium for data
files capable of generating visual depictions of minors engaged in sexually
explicit conduct.” State v. Al-Khayyal, supra.
It also noted that
[d]espite his undisputed physical
possession of the computer in Clayton County, Al–Khayyal contends the State
cannot prove that he possessed the contraband at issue in that venue because,
while he was in the county, he lacked the ability to access the illegal images
stored on his computer. He relies in part on evidence that the software
required to view the prohibited visual depictions was not loaded on his
computer at the same time.
We find no support in Georgia law, however,
for the proposition that possession of prohibited material under [Georgia
Code] § 16–12–100(b)(8) exists only in conjunction with the defendant's
present ability to view illegal visual depictions, especially given the
evidence that the needed software was readily available to the public.
State v. Al-Khayyal,
supra.
The court then took up Al-Khayyal’s final argument -- that “the
evidence precludes the requisite finding that he possessed the contraband at
issue knowingly, that is, that he was aware that the files
containing the illegal images were stored in his computer's memory.” State v. Al-Khayyal, supra (emphasis in the original). It
noted that there
was no evidence presented at the
hearing on Al–Khayyal's . . . and motion to dismiss that the type of files at
issue in this case, .rar files, could have been saved to his hard drive
automatically and without his knowledge. Rather, the evidence authorizes an inference that
the .rar files originally came to be saved to Al–Khayyal's computer deliberately.
Further, the evidence, including
evidence that he actively manipulated the .rar files by deleting them,
authorizes an inference that he was aware the files were saved to his hard
drive. Evidence that Al–Khayyal had double-deleted other files authorizes an
inference that he knew that deleting a file moves it to the trash folder and
that, without further action, a deleted file remains stored there. By
extension, this evidence also authorizes an inference that he knew that the
.rar files at issue in this case were in the trash folder and still accessible.
Evidence that he had used other
unzipping software authorizes an inference that he knew about the kind of
software needed to access and manipulate compressed files. In addition, all of
this evidence must be viewed in light of Al–Khayyal's educational background
and professional expertise.
State v. Al-Khayyal,
supra.
The Court of Appeals then found that
[t]aking these permissible inferences
together, we conclude the evidence does not establish as a matter of law that,
while Al–Khayyal possessed his computer in Clayton County, he had no knowledge
of the presence of the .rar files in his computer's trash folder. Under the
facts presented, the question of whether [his] efforts to abandon the illegal files
were successful remains a question of fact for the jury and cannot be
determined as a matter of law at this pretrial stage.
Bearing in mind that knowledge and
possession may be proved by circumstantial evidence and that slight evidence of
access, power, and intention to exercise control or dominion over contraband is
sufficient to create a jury issue, the record does not support a finding that
it will be impossible for the State to prove that Al–Khayyal committed the
offenses in Clayton County, as alleged in the indictment.
State v. Al-Khayyal,
supra.
The Court of Appeals therefore held that the trial judge
erred in granting Al-Khayyal’s motion to dismiss and therefore reversed that
ruling and remanded the case for further proceedings. State
v. Al-Khayyal, supra.
You can, if you are interested, read more about the facts in
the case and see a photo of Al-Khayyal in the news story you can find here.
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