Wednesday, October 01, 2014

Child Pornography, Videos and "Hackers"

After Lawson Hardrick, Jr. was “found guilty after a jury trial of two counts of knowingly receiving visual depictions of minors engaged in sexually explicit conduct in violation of 18 U.S. Code § 2252(a)(2),” he appealed.  U.S. v. Hardrick, 2014 WL 4358467 (U.S. Court of Appeals for the 9th Circuit 2014).  
He made two arguments on appeal:  (i) that the trial judge erred in admitting “evidence that he possessed other child pornography videos for which he was not charged” and (ii) that the evidence presented at trial was not sufficient to prove beyond a reasonable doubt that “he knowingly received the two child pornography videos for which he was charged.”  U.S. v. Hardrick supra.
The Court of Appeals began its opinion by explaining how the case arose:
In March 2010, the Department of Homeland Security identified two Internet Protocol (IP) addresses located at Hardrick's home that were making child pornography available for download. Agents seized the two computers associated with the IP addresses from Hardrick's home office. A forensic examination found several child pornography videos on each computer.

While the search warrant was being executed at Hardrick's home, Hardrick admitted to using the file-sharing program LimeWire to download pornography, but he denied having downloaded child pornography. Hardrick said that sometimes he downloaded files with innocuous names only to open the file and find pornography. Once, he downloaded a file titled `Play Ball,’ which turned out to be a video of high school kids, `all over 18, probably,’ having sex in the bleachers of a stadium. Hardrick admitted he had also seen child pornography, a video titled `Father Does,’ or something similar, involving a four-year-old. Questioned whether there was any child pornography on his home-office computers at the moment, Hardrick responded, `There could be anything on anything. But no, I wouldn't swear to it.’ . . .
U.S. v. Hardrick supra.
It also explained that, as to the first issue Hardrick raised on appeal, the
district court [judge] denied Hardrick's motion in limine to exclude evidence of the other, uncharged child pornography videos found on his home-office computers from the government's case-in-chief. The district court agreed with the government that the evidence was admissible under Federal Rule of Evidence 404(b) because it tended to prove that Hardrick knowingly received the child pornography videos and disprove that he had mistakenly or accidentally downloaded the files.

The district court concluded that the evidence would not be overly prejudicial under Federal Rule of Evidence 403 because the government agreed that it would only elicit `brief commentary by the case agent that [the charged videos] were not the only images’ found on Hardrick's computers and would not show the uncharged videos to the jury.
U.S. v. Hardrick supra.
During the lunch recess at Hardrick’s “one-day jury trial”, which came before the
government introduced the 404(b) evidence, the district court told Hardrick's counsel that `if during the trial there comes a point on 404(b) that you want a limiting instruction, please let me know and then I would give that.’

The government admitted into evidence a document entitled `Questionable Videos,’ which listed the hard drive location and file name of the nine videos found on Hardrick's first computer. Each of the nine videos had a sexually explicit title clearly signaling that the video contained child pornography. Seven of these nine videos were uncharged videos. The government also admitted into evidence a document titled `Questionable Movies,’ which listed the six videos with explicit titles referring to minors found on Hardrick's second computer. Five of these videos were also on the Questionable Videos list, including one of the two charged videos.

The government elicited testimony from a case agent that all of the videos on the Questionable Videos list contained child pornography. The government played the two charged videos for the jury but did not play the uncharged videos. Hardrick's counsel did not ask the district court to give a contemporaneous limiting instruction during the presentation of the 404(b) evidence.
U.S. v. Hardrick supra.
The court also explained that the forensic examiner who examined the two
home-office computers testified that one of the child pornography videos found on both computers was saved in a different folder on each computer, which he had never seen a computer virus, Trojan horse, or e-mail pop-up do. Similarly, the forensic examiner testified that, had the video been downloaded by accident, it would not have been saved to different folders on two computers.

The forensic examiner further testified that the `thumbcache’ on one of Hardrick's computers showed that one of the videos from the Questionable Videos list had been opened and viewed. The government also admitted a list of the `most recently used’ (MRU) files from one of the computers, which showed the most recently opened files on the computer. Hardrick's MRU files included many videos with titles suggesting that they contained child pornography.
U.S. v. Hardrick supra.
Finally, after all the evidence was presented and before the case went to the jury, the
the district court [judge] gave a slightly modified version of Ninth Circuit Model Criminal Jury Instruction 4.3. The court instructed the jury:

`You have heard evidence that the Defendant committed other acts not charged here. You may consider this evidence -- this is what I call a `limiting instruction.’ You may consider this evidence only for its bearing, if any, on the question of the Defendant's intent, knowledge, identity, absence of mistake, absence of accident and for no other purpose. You may not consider this evidence of guilt of the crime for which the Defendant is now on trial.’
U.S. v. Hardrick supra.  The jury convicted Hardrick on both counts and the judge later sentenced him to “120 months in prison”.  U.S. v. Hardrick supra. 
The Court of Appeals began its analysis with Hardrick’s arguments that the district court judge “abused [her] discretion” in balancing “the probative value of the uncharged-video evidence against the danger of unfair prejudice to him,” and “by giving an insufficient limiting instruction on the 404(b) evidence and by  failing to give another limiting instruction sua sponte when the 404(b) evidence was admitted into evidence.” U.S. v. Hardrick supra.  It explained, initially, that evidence of a defendant’s prior
wrong, or other act is inadmissible to prove the defendant's bad character or propensity to commit the charged offenses. U.S. v. Vo, 413 F.3d 1010 (U.S. Court of Appeals for the 9th Circuit 2005). However, evidence of a prior act is admissible for nonpropensity purposes, `such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.’ Federal Rule of Evidence 404(b). . . . The proponent of the 404(b) evidence must show the evidence `(1) proves a material element of the offense for which the defendant is now charged, (2) if admitted to prove intent, is similar to the offense charged, (3) is based on sufficient evidence, and (4) is not too remote in time.’ U.S. v. Ramirez–Robles, 386 F.3d 1234 (U.S. Court of Appeals for the 9th Circuit 2004).

Rule 404(b) evidence offered to prove knowledge `need not be similar to the charged act as long as the prior act . . . would tend to make the existence of the defendant's knowledge more probable than it would be without the evidence.’ U.S. v. Fuchs, 218 F.3d 957 (U.S. Court of Appeals for the 9th Circuit 2000). . . . If the four-part test is satisfied, the evidence is admissible unless `its probative value is substantially outweighed by a danger of ... unfair prejudice.’ Federal Rule of Evidence 403; U.S. v.. Blitz, 151 F.3d 1002 (U.S. Court of Appeals for the 9th Circuit 1998). . . .  
U.S. v. Hardrick supra. 
The Court of Appeals, though, found that the district court judge’s determination that
the probative value of the 404(b) evidence outweighed the danger of unfair prejudice to Hardrick was not an abuse of discretion. The uncharged videos were probative of Hardrick's knowledge and relevant to his defenses either that he downloaded the videos accidentally while downloading legal pornography or other files on LimeWire, or that a hacker had downloaded the videos to his computer. See, e.g., U.S. v. Schene, 543 F.3d 627 (U.S. Court of Appeals for the 10th Circuit 2008) (affirming admission of uncharged child pornography images for the purpose of proving defendant's intent and knowledge). . . .

In addition, the district court limited the videos' prejudicial effect by permitting the case agent to provide only `brief commentary’ on the location and file names of the other videos and not permitting the government to show the videos to the jury. See, e.g., U.S. v. Ganoe, 538 F.3d 1117 (U.S. Court of Appeals for the 9th Circuit 2008) (affirming admission of child pornography videos where district court limited the government to playing only a few seconds of several video clips). . . .
U.S. v. Hardrick supra. 
Hardrick also argued that the limiting instruction the judge gave was insufficient to
limit the prejudice to him and that the district court should have given a contemporaneous limiting instruction sua sponte is unpersuasive. Hardrick requested -- and the district court gave -- Ninth Circuit Model Criminal Jury Instruction 4.3, which instructs the jury that it has heard evidence of the defendant's other acts and that it may consider that evidence only for limited purposes.

Although Hardrick did not request it, the district court tailored the instruction to list the limited purposes for which the jury could consider the uncharged videos -- intent, knowledge, identity, absence of mistake, and absence of accident -- and Hardrick did not object. Hardrick has not demonstrated how the district court committed reversible error by giving the appropriate, legally correct model instruction [he] proposed. . . .
U.S. v. Hardrick supra.  The Court of Appeals therefore held that the district court judge “properly exercised” her discretion in admitting “evidence of the uncharged child pornography videos found on Hardrick’s computers.”  U.S. v. Hardrick supra. 
The Court of Appeals then took up Hardrick’s second argument -- that the evidence at trial did not prove beyond a reasonable doubt that “he knowingly received the two child pornography videos for which he was charged.” U.S. v. Hardrick supra.  The Court of Appeals began its analysis of this argument by explaining that
[w]e review de novo the sufficiency of the evidence underlying a conviction. U.S. v. Schales, 546 F.3d 965 (U.S. Court of Appeals for the 9th Circuit 2008). We must affirm the conviction `unless, viewing the evidence in the light most favorable to sustaining the verdict, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ U.S. v. Budziak, 697 F.3d 1105 (U.S. Court of Appeals for the 9th Circuit 2012).

We hold that the evidence at trial was sufficient to prove that Hardrick knowingly received the two child pornography videos even though there was no direct evidence that he had downloaded or watched the files.
U.S. v. Hardrick supra. 
The Court of Appeals then explained why it reached that conclusion:
First, the government produced evidence that Hardrick had dominion and control over the two computers on which the child pornography videos were found. The computers were located in Hardrick's home office. Hardrick admitted that his son and daughter living in his home used their own computers, not the computers in Hardrick's office. The government produced evidence that the `Lawson L. Hardrick’ Windows account was the account generally in use on both computers. And all of the e-mail addresses associated with that Windows account were Hardrick's.

Second, the number, timing, and location of the child pornography videos on the computers were inconsistent with Hardrick's defenses that he had accidentally downloaded the child pornography videos or that a hacker had downloaded child pornography videos to his computer without Hardrick's knowledge. The number of videos on the two computers suggested that the two charged videos had not been downloaded accidentally. There were nine videos on Hardrick's first computer with file names clearly indicating that the file contained child pornography. There were six videos on Hardrick's second computer with similar file names. The videos had been downloaded on different days and at different times, making it unlikely that their presence on his computers was the result of a hacker or computer virus. And one of the child pornography videos was saved on both computers in different locations. The forensic examiner testified that he had never seen a computer virus, Trojan horse, or e-mail pop up save the same file in different places on two computers.
U.S. v. Hardrick supra.  As noted above, the court found this evidence was sufficient to sustain Hardrick’s convictions.  U.S. v. Hardrick supra. 
The press release you can find here provides a little more information on Hardrick’s crime and his sentencing.  And the news story you can find here provides a little more information about the charges against him.


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