Wednesday, October 02, 2013

Duplicate Images, Different File Names and Multiplicity

As the Department of Justice’s U.S. Attorney’s Manual notes, multiplicity is “the charging of a single offense in several counts” of an indictment or other charging instrument.  For more on that, check out this prior post.

After a jury convicted him of thee counts of possession of child pornography in violation of 720 Illinois Compiled Statutes 5/11-20.1 and the trial judge sentenced him “to five years' imprisonment for each conviction, to run concurrently”, Bryan Sedelsky appealed. People v. Sedelsky, 2013 WL 5370287 (Illinois Appellate Court 2013). He argued “that one of his convictions should be vacated because two counts were based on possession of an identical image stored in the same digital medium.”  People v. Sedelsky, supra.  

The opinion notes that on June 30, 2010, the State of Illinois charged Sedelsky with three counts of child pornography:

Count I related to possession of a computer image entitled `yngbigirl1_o_50465483.jpg.’ Count II related to possession of a computer image entitled `yngbigirl1_0_50577108.jpg.’ Count III related to possession of a computer image entitled `yngbigirl1_0_50577109.jpg.’

People v. Sedelsky, supra.  

Sedelsky’s trial began on June 27, 2011. People v. Sedelsky, supra.  At the trial,

Blake DeWelde, a Round Lake Beach police officer, testified that on June 7, 2010, he arrived at [Sedelsky’s] apartment with other investigators to execute a search warrant. [Sedelsky] admitted he had accounts with a website known as Mbuzzy. [He] also turned over two cell phones that were admitted into evidence.

Two T–Mobile phone bills for [his] cell phone number were also retrieved and admitted into evidence. The bills show [Sedelsky’s] cell phone number but do not provide any details regarding uploaded images. [His] notebook, which contained information regarding his Mbuzzy accounts and numerous website addresses, was retrieved and admitted into evidence.

People v. Sedelsky, supra.  

Another witness was Ryan Nobrega, “vice president of products for Send Me, Inc., the parent company of Mbuzzy”. People v. Sedelsky, supra.  He testified that Mbuzzy is a

social network similar to Myspace or Facebook. The site allows users to create account profiles, upload photographs, and chat with other users. The site works heavily with mobile-phone users. Mbuzzy maintained records of user profiles as part of its ordinary course of business.

Nobrega identified Mbuzzy user profile information for the user names `yngbigirl1, cuteguy2010, and iluvynggirls.’ In December 2009, Nobrega had an employee named Wei Liu. Liu handled all content moderation issues and supported the help desk. In December 2009, Liu made a report to the National Center for Missing and Exploited Children (NCMEC) with Nobrega's knowledge and assistance.

Nobrega identified People's Exhibit Nos. 13, 14, and 15 as images reported to NCMEC. People's Exhibit No. 13 was an image with the file name `yngbigirl1_0_50465483.jpg’; People's Exhibit No. 14 was an image with the file name `yngbigirl1_0_50577108.jpg’; and People's Exhibit No. 15 was an image with the file name `yngbigirl1_0_50577109.jpg.’ Exhibit Nos. 13 and 14 contained the same image.

People v. Sedelsky, supra.  

The opinion also explains that the images were

stored on Mbuzzy's main server in California for username `yngbigirl1.’ Nobrega testified that [Sedelsky’s] T–Mobile phone number was connected to the Mbuzzy `yngbigirl1’ account that uploaded these images. Nobrega explained that an Mbuzzy customer could upload images from a computer, in which case an IP address would be seen. A person could also use a cell phone, in which case the image would be sent to Mbuzzy's computer as an e-mail with an attachment. Mbuzzy's computer would then pull the e-mail, process it, and attach the image to the user's account.

Using People's Exhibit No. 11, Nobrega identified that 25 media uploads were done from [Sedelsky’s] phone on December 16, 2009, within a 4–minute time span. People's Exhibit No. 4 showed 25 thumbnail images taken from yngbigirl 1's Mbuzzy account; 4 images were identical to Exhibit Nos. 13 and 14; 3 images were identical to Exhibit No. 15. People's Exhibit No. 4 was not published, because [Sedelsky] was not charged with possessing the other photos.

Exhibit No. 11 does not depict or otherwise identify what image was being sent to Mbuzzy; it merely states `media-upload’ and specifies that the upload address was [Sedelsky’s] cell phone number Nobrega was not asked whether these images were visible to any other Mbuzzy user; he merely testified that the images were stored in [Sedelsky’s] account.

People v. Sedelsky, supra.  

Michael Bruns, an investigator with the Illinois Attorney General's office, testified that in

early January 2010 he received a case from NCMEC involving [Sedelsky’s] Mbuzzy account. Bruns went to [his] home on June 7, 2010, and spoke to [Sedelsky] and his aunt, Jody, who also lived in the residence. He informed [Sedelsky] he was there, with other investigators, to execute a search warrant. [Sedelsky] signed a Miranda waiver form and agreed to speak to Bruns. [Sedelsky] admitted he had a T–Mobile cell phone number and used his cell phone to access the Internet, download pornography, download ringtones, play games, and send and receive text messages. [He] admitted he had three accounts with Mbuzzy: cuteguy2010, yngbigirl1, and iluvynggirls.

[Sedelsky] admitted he would search the Internet using search terms such as `lolita, jailbait, YO 15, YO 16’ to look for suspect images. Bruns had a copy of the image contained in People's Exhibit Nos. 13 and 14 and copies of multiple images that NCMEC had sent to him. These images were labeled People's Exhibit Nos. 3 and 4. Bruns showed these images to [Sedelsky], who signed and dated the images. [He] admitted he found these images on the Internet through his phone and uploaded them to his `yngbigirl 1’ Mbuzzy account. Bruns identified People's Exhibit Nos. 13, 14, and 15 as images found among the thumbnail images in Exhibit Nos. 3 and 4.

Bruns testified that [Sedelsky] told him Mbuzzy was an online storage space where he could store images because his phone did not have enough memory. [He] said he had deleted his Mbuzzy account and that it had been deleted for about six months, meaning he deleted the account in December 2009. He told Bruns he deleted it because the images he uploaded were `too young.’

People v. Sedelsky, supra.  

On appeal, Sedelsky argued, as noted above, that

one of his convictions must be vacated because the same image cannot sustain two convictions where that image was stored in the same digital medium, albeit under different file names. In support of his contention, [he] argues that two of the three images were identical and no images were recovered from his cell phone, but rather all three were recovered from his Mbuzzy account. 

People v. Sedelsky, supra.  

The Court of Appeals explained that “this case requires a review of the child pornography statute to determine whether separate offenses may be charged for simultaneous possession of multiple copies of the same image,” which meant it reviewed the conviction de novo, i.e., without deferring to the trial judge’s rulings.  People v. Sedelsky, supra.  It also noted that in construing a statute, it was required to “ascertain and give effect to the intent of the legislature”. People v. Sedelsky, supra. “The most reliable indicator of the legislative intent of a statute is its language, which, if plain and unambiguous, must be read without exception, limitation, or condition.”  People v. Sedelsky, supra.  The court also noted that “[c]riminal statutes must be strictly construed in the defendant's favor.”  People v. Sedelsky, supra.  

The court noted that 720 Illinois Compiled Statutes 5/11-20.1(a)(6) says someone commits the crime of possessing child pornography if he/she

with knowledge of the nature or content thereof, possesses any film, videotape, photograph or other similar visual reproduction or depiction by computer of any child . . . whom the person knows or reasonably should know to be under the age of 18 . . . engaged in any activity described in subparagraphs (i) through (vii) of paragraph (1) of this subsection.

People v. Sedelsky, supra.  

As to how this provision should be construed, the court explained that in People v. Carter, 821 N.E.2d 233 (Illinois Supreme Court 2004), the court parsed the “allowable unit of prosecution” under a different statute, which made it “unlawful to possess `any firearm or any firearm ammunition.’”  People v. Sedelsky, supra.  The Carter court said

`any’ could mean either the singular or the plural, and when a criminal statute is capable of two or more constructions, it must adopt the construction that favors the accused. People v. Carter, supra. The court stated that `[w]hether the legislature intended for the simultaneous possession of weapons and ammunition to be the same offense or separate offenses requires us to determine the statute's “allowable unit of prosecution.” People v. Carter, supra.

Because the term `any’ in the statute failed to define it, the court held that the defendant's multiple convictions of simultaneously possessing two firearms and ammunition clips could not stand.  People v. Carter, supra.

People v. Sedelsky, supra.  

The Court of Appeals found that, based on the analysis in People v. Carter and other Illinois cases, Sedelsky’s “convictions may not stand under the one-act, one-crime rule when the statute is unclear whether a duplicate digital image stored in the same medium constitutes a separate offense.”  People v. Sedelsky, supra.  It explained that

once the legislature has defined the offense by its prescription of the `allowable unit of prosecution,’ it is this unit that governs whether a particular course of conduct involves one or more distinct `offenses’ under the statute. . . . Section 11–20.1(a)(6) of the [Illinois] Code provides that the relevant `allowable unit of prosecution’ is possession of `any . . . depiction by computer’ of a pornographic image of a child. 720 Illinois Compiled Statutes 5/11–20.1(a)(6). . . .

The statute defines a `depiction by computer as a “computer program or data that, after being processed by a computer either alone or in conjunction with one or more computer programs, results in a visual depiction on a computer monitor, screen, or display.”’ 720 Illinois Compiled Statutes  5/11–20.1(f)(5). The statute further defines `computer program’ and `data’ by referring to section 16D–2 of the Code (720 Illinois Compiled Statutes 5/16D–2(b), (c)).  720 Illinois Compiled Statutes 5/11–20.1(f)(6).

People v. Sedelsky, supra.  

An Illinois statute defines “data” as

representation of information, knowledge, facts, concepts or instructions, including program documentation, which is prepared in a formalized manner and is stored or processed in or transmitted by a computer. Data shall be considered property and may be in any form including but not limited to printouts, magnetic or optical storage media, punch cards or data stored internally in the memory of the computer.

720 Illinois Compiled Statutes 5/16D–2(c).

The statutes do not define “any”, but the People v. Carter court found that the word

had `categorical meanings of “any one of a kind,” “any kind,” or “any number.”’ People v. Carter, supra. Thus, `any’ could mean either the singular or the plural, and where a criminal statute is capable of more than one construction, the court must adopt the construction that favors the accused. . . .

The court concluded that the word `any’ in the statute was ambiguous as to whether the legislature intended for the simultaneous possession of weapons and ammunition to be the same offense or separate offenses. . . . Thus, it construed the statute in favor of the defendant and held that only one conviction of unlawful possession of weapons could be entered for [his] simultaneous possession of two firearms and firearm ammunition. 

People v. Sedelsky, supra.  

The court noted that

[l]ikewise, in this case, the term `any’ does not indicate whether the simultaneous possession of a duplicate `depiction by computer’ could constitute a separate offense. Thus, we must construe the statute in [Sedelsky’s] favor and hold that, on the limited facts present in this case, only one conviction of possessing child pornography can be entered for [his] possession of the same digital image stored in the same digital medium.

People v. Sedelsky, supra.  

It also noted that the holding in the Carter case “is ambiguous as to whether a defendant may be charged separately with possessing a duplicate image in the same medium.” People v. Sedelsky, supra.  And it pointed out that the facts in this case demonstrated

only that the image was saved twice to the same medium and at nearly the same point in time. We disagree with the State's assertion that [Sedelsky] separately uploaded the image from his cell phone. It is not clear from the facts whether the image was uploaded more than once, from more than one website, or from more than one source. The facts lead only to the inference that the image was saved twice, as the Mbuzzy records show only that 25 `media-upload’ files were sent from [his] phone to his Mbuzzy account within a 4–minute timespan.

The State did not present any evidence that [Sedelsky] uploaded the image from his phone on separate occasions. It is not clear whether [he] affirmatively uploaded the image twice and saved it twice, or merely saved the image twice. The State also did not present evidence that the image was saved anywhere other than in [his] Mbuzzy account.

People v. Sedelsky, supra.  

In its final comments, the court reiterates that “because the child pornography statute is unclear as to whether the same image stored in the same digital medium can constitute a separate offense, we must adopt a construction that favors [Sedelsky].”  People v. Sedelsky, supra. It therefore reversed his “conviction of count III and vacate the corresponding sentence.”  People v. Sedelsky, supra.  

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