After
James Paul Lowe was convicted in the U.S. District Court for the Eastern District of Tennessee of “knowingly receiving, distributing, and possessing
child pornography in violation of 18 U.S. Code § 2252(a)”, he
appealed. U.S. v. Lowe, 2015 WL 4529516 (U.S. Court of Appeals for the 6th Circuit 2015). In his appeal, Lowe
“concede[d] that a laptop computer found in his
home contained hundreds of image and video files depicting child pornography
but maintains that no rational juror could find beyond a reasonable doubt that
he knew about those files or placed them there.” U.S. v.
Lowe, supra.
The Court of Appeals began its
analysis of Lowe’s argument on appeal by explaining how the conviction arose:
Between March and August 2011, a
user downloaded child pornography to a laptop found in the home James Lowe
shared with his wife, Stacy Lowe. The Lowes lived at 2204 Robin Street in
Athens, Tennessee. Michael Lowe, a minor relative described by one witness as
James Lowe's `adopted child,’ lived with James and Stacy at some point during
2011 but moved out before agents searched the home in August.
Four government witnesses
testified at Lowe's trial. Bradley County Sheriff's Office Detective J.P.
Allman recounted learning in early 2011 that someone was using a particular
Internet Protocol (IP) address to share child pornography. On May 23, he
searched for that IP address and discovered a computer sharing files with names
consistent with child pornography over a peer-to-peer network. He downloaded
one video and two still images of child pornography from the computer's shared
folder.
Detective Allman subpoenaed AT
& T for information about the account associated with the IP address. AT
& T's records listed James Lowe as the account holder, 2204 Robin Street as
the billing address, and Lowe. Stacy @yahoo.com as the email address associated
with the account. Detective Allman conducted surveillance and determined that,
as of August 2011, James and Stacy Lowe were the sole residents of 2204 Robin
Street.
Detective Allman and other
officers executed a search warrant on August 8. Stacy was home during the
search but James was not. Law enforcement officers seized three computers: a
Dell Inspiron laptop with the username `Stacy’ found in the bedroom, an HP Pavilion
laptop with the username `Jamie’ found in the office, and a desktop that was
also located in the office. Detective Allman testified that his role during the
search was `speaking with Ms. Lowe.’ . . . He later told the jury that he
learned that the laptop found in the office belonged to James Lowe. Agents also
found a form on the desk in the office that listed James's name, social
security number, date of birth, and the email address jamedog111@excite.com.
FBI Special Agent Stephen McFall
told the jury that he examined the three hard drives and discovered that only
the HP Pavilion laptop contained child pornography. Agent McFall found 639
image files and 176 video files depicting child pornography on the device.
U.S. v. Lowe, supra.
The court also noted that
[a] user named the
HP Pavilion laptop `Jamie–PC’ and created a single user account, `Jamie.’ The
laptop's settings did not require users to enter a password to access the
`Jamie’ account or any of the laptop's files and programs. And while the Lowes
password-protected their residence's wireless-internet account, the laptop
automatically connected to the internet through a stored wireless password.
The laptop's
desktop screen included the following shortcuts, icons, and files: the
computer's recycling bin, an internet browser, iTunes, Shareaza (a peer-to-peer
file-sharing program), a media player, a folder labeled Microsoft Office
Programs, a PDF file labeled `2011—Auhto . . .,’ four Microsoft Excel
spreadsheets labeled `Copy of Service Aut . . .,’ an MP3 music file, and what
appeared to be a computer game. [At Lowe’s trial,] Agent McFall told the jury
that the spreadsheets `looked like they were authorization agreements for
business.’ . . .
U.S. v. Lowe, supra.
The
opinion goes on to explain that Agent McFall
testified at length about the Shareaza peer-to-peer
file-sharing program used to download child pornography to the HP Pavilion
laptop. Someone installed the
program on February 24, 2011. Because no one overrode the program's default
username setting, the Shareaza account adopted the laptop's username, `Jamie.’ But
someone altered the default for the program's chat-feature username and instead
entered `JA.’
Shareaza was not password-protected, and it automatically
started running in the background whenever someone switched the computer on.
But users had to open the program to search for files and initiate downloads.
The Shareaza home screen—which any user would see upon opening
the program—showed that someone searched for terms consistent with child
pornography such as `young mama’ and `PTHC’ (which stands for `pre-teen hard
core’), and non-pornographic terms such as `Oceans 11,’ `Ellie Goulding,’ and
`Tron.’ The list of downloads on the home screen included files named `PTHC
Pedoland Frifam Heidi,’ `11 yo sleeping kid,’ and `new girl img–0063–r10.’
Files were stored in an `incomplete’ folder within Shareaza
until they finished downloading, at which point they would appear in the
laptop's `downloads’ folder. Agent McFall testified that files could `take a
very long time to download’ and that downloading time depended on factors such
as the internet connection's speed. . . .
Most of the laptop's images and videos depicting child
pornography were stored in Shareaza libraries. Agent McFall also found evidence
of images, some of which had been deleted, elsewhere on the laptop's hard
drive. For instance, the recycling bin contained a video titled `Lolita PTHC
2011 3yo Ariel part 1.’ Agent McFall found references to the three files
Detective Allman downloaded on May 23 through a text-string search, but someone
deleted the actual files before agents seized the computer. He never specified
whether the `downloads’ folder contained child-pornography files.
U.S. v. Lowe, supra.
The Court
of Appeals continued summarizing the evidence in the case, explaining that
Agent McFall admitted that he could not pinpoint when someone
searched for or initiated downloads of child pornography. But forensic analysis
revealed the date and time on which partial or completed downloads appeared on
the laptop's hard drive. Microsoft Windows registry data revealed that a user
opened files depicting child pornography as recently as August 4.
Agent McFall also testified about the laptop's internet-usage
history as recorded through `cookies.’ On numerous occasions between March and
August, downloads completed within minutes of someone accessing a web-based
email service or one of several retail, banking, appliance-repair, and travel
websites. Agent McFall identified one date—March 10—on which a user appeared to
log in to Yahoo!'s email service. When the government's attorney asked if he
recalled `what the log-in was,’ he replied, `For the Yahoo mail, I don't remember
exactly. I think Jamie or jame dog was part of the, part of the e-mail
address.’ . . . In general, however, Agent McFall attributed no special
significance to the laptop's browsing history.
Agent McFall also told jurors that a user opened an `East
Tennessee Appliance Services’ invoice listing 2204 Robin Street as the business
address about forty minutes before a child-pornography video finished
downloading on March 3. No witness testified about what James and Stacy Lowe
did for a living or whether the other two computers also contained business
documents.
U.S. v. Lowe, supra.
After the
prosecution had finished presenting the evidence in its case, Lowe moved
for a judgment of acquittal at the close of the government's
case and rested without putting on his own evidence. The court denied his
motion but expressed some misgivings about the government's proof:
`I have to say, in this case, it has been particularly
difficult, even though it's my job to do so, to discern where that line
[between speculation and reasonable inference] is and where what might be a
reasonable inference that can be drawn from the record evidence becomes nothing
more than an invitation for the jury to speculate as to what the evidence may
be or what it may show.’
. . . . After the jury found Lowe guilty on all three counts,
the district court denied his post-trial motion for a judgment of acquittal. It
sentenced Lowe to 150 months' imprisonment, varying significantly below the
guidelines range of 210 to 240 months.
U.S. v. Lowe, supra.
The Court of Appeals began its analysis of Lowe’s arguments
on appeal by explaining that it reviews
de novo the district court's judgment denying Lowe's motion for
acquittal. U.S. v. Blanchard, 618 F.3d 562 (U.S. Court of
Appeals for the 6th Circuit 2010). In considering Lowe's sufficiency-of-the-evidence
challenge, we `view[ ] the evidence in the light most favorable to the
prosecution’ and must affirm if `any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.’ U.S.
v. Washington,715 F.3d 975 (U.S. Court of Appeals for the 6th Circuit 2013) (quoting Jacksonv. Virginia, 443 U.S. 307 (1979)). . . .
`Circumstantial evidence alone is
sufficient to sustain a conviction and such evidence need not remove every
reasonable hypothesis except that of guilt.’ U.S. v. Algee, 599
F.3d 506 (U.S. Court of Appeals for the 6th Circuit 2010) (quoting U.S.
v. Kelley, 461 F.3d 817 (U.S. Court of Appeals for the 6th Circuit 2006))
. . . ; see also U.S. v. Garcia, 758 F.3d 714 (U.S. Court of
Appeals for the 6th Circuit 2014) (affirming a firearm-possession
conviction where `circumstantial evidence and a chain of inferences’ would
permit a jury to conclude that the defendant actually possessed the weapon). `A
convicted defendant bears ‘a very heavy burden’ to show that the government's
evidence was insufficient.’ U.S. v. Tragas, 727 F.3d 610 (U.S.
Court of Appeals for the 6th Circuit 2013) (quoting U.S. v.
Kernell, 667 F.3d 746 (U.S. Court of Appeals for the 6th Circuit 2012)).
U.S. v. Lowe, supra (emphasis in the
original).
The court then began its analysis of
Lowe’s arguments, noting that
[n]otwithstanding
Lowe's heavy burden, we agree with his argument that no rational juror could
find him guilty beyond a reasonable doubt based on the evidence presented at
trial. A juror could reasonably infer that James owned and occasionally used
the laptop from (1) the device's sole username, `Jamie,’ a common diminutive of
James; (2) Detective Allman's testimony that the laptop `belonged to’ James;
and (3) Agent McFall's testimony about the March 10 visits to the Yahoo! email
log-in page. But, without improperly stacking inferences, no juror could infer
from such limited evidence of ownership and use that James knowingly
downloaded, possessed, and distributed the child pornography found on the
laptop.
James shared his home
with two other people, both of whom could access the HP Pavilion laptop's
`Jamie’ account and Shareaza file-sharing program without entering passwords.
We need not decide if Detective Allman's testimony that Michael Lowe moved out
in `early 2011’ and Agent McFall's testimony that someone at 2204 Robin Street
used the laptop to view images as late as August 4 permitted the jury to
conclude that someone other than Michael placed images on the computer. Even if
a juror reasonably could rule out Michael's responsibility for at least some of
the images, the remaining evidence provided no basis to determine whether James
or Stacy (or both) knowingly possessed child pornography. Compare U.S.
v. Moreland, 665 F.3d 137 (U.S. Court of Appeals for the 5th Circuit 2011) (reversing
conviction in light of evidence that three people used the defendant's user
account and the absence of evidence specifically linking the defendant to the images), with U.S. v. Koch, 625 F.3d 470 (U.S. Court of Appeals for the 8th Circuit 2010) (sustaining conviction where the defendant
lived alone and the username of the computer seized from his bedroom matched
his first name).
U.S. v. Lowe, supra.
It went on to point out that,
[i]mportantly, the
government presented no evidence from which a juror could infer that Stacy did
not use the laptop over the five-month period. First, although a juror
reasonably could infer that Stacy used the `Stacy’ laptop from evidence that
she was home alone during the search and that agents found that laptop powered
on, the juror could not draw the additional inference that Stacy did not use
the `Jamie’ laptop.
Second, no juror reasonably
could conclude that James and not Stacy used the HP Pavilion laptop to save
business records, open an invoice listing 2204 Robin Street as the return
address, and access banking, retail, travel, and appliance-repair websites on
dates when partial or complete child-pornography files appeared on the hard
drive. The government presented no evidence of what James and Stacy did for a
living, whether they worked inside or outside of the home, their interests and
hobbies, or where they banked. Further, Agent McFall attributed no special
significance to the pattern of internet activity during the period in question.
Although a juror might infer from visits to appliance-repair and banking
websites that an adult primarily used the computer, she could only speculate about
whether the adult was James or Stacy Lowe.
See U.S. v. Moreland, supra (reversing
conviction where a forensic expert admitted that the computer's internet-usage
patterns did not show who visited the websites in question).
U.S. v. Lowe, supra (emphasis in the
original).
The Court of Appeals then pointed out
that,
[i]n sum, the evidence presented here
fell well short of what we have found sufficient to convict in other cases
involving multiple possible users of a single device. In U.S. v. Oufnac, 449
F. App'x 472 (U.S. Court of Appeals for the 6th Circuit 2011), for instance,
`ample other evidence’ linked the defendant to images found on a shared
device. U.S. v. Oufnac, supra. Although the computer in question
had three user accounts, pornographic images appeared only in Oufnac's personal
`My Documents’ folder within his password-protected account. U.S. v. Oufnac,
supra. Oufnac's former girlfriend testified about finding child pornography
on his computer on several previous occasions. When she confronted him, he said
the images were `none of her business’ but admitted that they aroused him, and,
on one occasion, he agreed to destroy a compact disc on which she found `files
and files and files and files’ of child pornography. U.S. v. Oufnac,
supra. Oufnac also admitted to law enforcement that he recently viewed
child pornography, although he later claimed that the images were `fake.’ U.S.
v. Oufnac, supra.
Similarly, in U.S. v. Mellies, 329
F. App'x 592 (U.S. Court of Appeals for the 6th Circuit 2009), we sustained a
defendant's conviction for possessing child pornography found on a laptop and
compact discs in his home office, notwithstanding evidence that his wife and
stepson occasionally used the laptop. U.S. v. Mellies, supra. The
images were primarily stored in password-protected files and folders. U.S.
v. Mellies, supra. Mellies was `associated with’ all but two of the
hundreds of documents and thousands of emails stored on the laptop, and he was
the only member of the household whose fingerprints appeared on compact discs
containing child pornography. U.S. v. Mellies, supra. Further, a
detective testified that Mellies told arresting officers: `I'm not a part of
some sort of a ring’ and `[T]his is something that doesn't have anything to do
with anybody else at all.’ U.S. v. Mellies, supra.
Of course, Oufnac and Mellies do
not establish a minimum threshold for proving knowing possession of child
pornography with circumstantial evidence. They do, however, identify the types
of evidence on which a jury reasonably may rely to convict an individual of
possessing child pornography found on a shared device. The jury heard no
such evidence in Lowe's case, despite the fact that the non-password-protected
laptop containing pornographic images was found in a common area of a home
shared by three individuals.
U.S. v. Lowe, supra.
The Court of Appeals then outlined its conclusions and
holding in this case:
Along with the lack of proof concerning
who downloaded the images in the first instance, the evidence did not permit a
juror to conclude that James knew the HP Pavilion laptop contained
child-pornography files and permitted them to remain on the computer. Most of
the images and videos depicting child pornography were stored in Shareaza libraries.
Without more information about James's computer use, no juror reasonably could
infer that he opened Shareaza during the five-month period in question.
Further, the evidence did not suggest that someone using the laptop for
innocent purposes would know about ongoing child-pornography downloads if he or
she did not open Shareaza.
With respect to images stored outside
of Shareaza, the evidence showed that, at most, images and videos temporarily
appeared in the computer's `downloads’ folder and recycling bin. Although a
juror might be able to infer that a defendant knows about pornography stored in
her personal files, especially if the files contain recently opened or created
documents, he could not draw the same conclusion about pornography that
automatically appears in the “downloads” folder or that a user moved to the
recycling bin. U.S. v. Oufnac, supra (explaining that
a reasonable juror could conclude that a defendant either saved ninety-six images
and videos to his personal `My Documents’ folder within his password-protected
account or `at least knew of and permitted their continued existence’), with U.S.
v. Moreland, supra (noting
the lack of a `circumstantial indicium that established that [the defendant]
knew of the images or had the ability to access them’ when images were found
primarily in the hard drive's `unallocated slack spaces’).
In sum, no juror could conclude beyond
a reasonable doubt from the evidence presented at trial that James Lowe
knowingly received, possessed, and distributed the images and videos depicting
child pornography found on the HP Pavilion laptop seized from his home.
U.S. v. Lowe, supra.
It therefore reversed Lowe’s conviction and remanded the
case “for further proceedings consistent with this opinion.” U.S. v. Lowe, supra.
You can, if you are interested, read more about the facts and outcome in this case in the news story you can find here.
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