Friday, July 06, 2012

FrostWire, Child Pornography and Distribution

After a jury convicted Robert Eugene Glassgow of receiving child pornography in violation of 18 U.S. Code § 2252(a)(2), he appealed.  U.S. v. Glassgow,  __ F.3d __, 2012 WL 2428428 (U.S. Court of Appeals for the 8th Circuit 2012).  (As is explained below, he was also charged with possessing child pornography.) On appeal, he made three arguments: (i) the evidence was not sufficient to support the conviction; (ii) the district court judge abused his discretion in allowing the prosecution to introduce images of child pornography into evidence; and (iii) the judge erred in “imposing certain [sentencing] enhancements.” U.S. v. Glassgow, supra.

This is all the opinion says about how the prosecution came about:

A law enforcement investigation of peer-to-peer file-sharing of child pornography led to the seizure of a computer from Glassgow's residence. Glassgow had built the computer; the hard drive had 88 images of child pornography. Glassgow admitted to investigators that he had actually viewed the child pornography found in his shared folder.

He used coded search terms to retrieve some of the pornography through the peer-to-peer program `FrostWire.’ The child pornography images, after being downloaded, were modified and accessed.

Later, Glassgow tried to delete the child-pornography files from the computer, but they remained in unallocated space on his hard drive. These images were offered for distribution via a peer-to-peer network about 84 times in a six-month period in 2008–2009.

U.S. v. Glassgow, supra.

As noted above, Glassgow’s first argument was that the evidence was not sufficient to support a finding of his guilt.  U.S. v. Glassgow, supra.  The Court of Appeals began its analysis of this argument by noting that the

sufficiency of the evidence is reviewed de novo. . . . All reasonable inferences supporting the jury verdict are accepted. . . . The verdict will be upheld if any interpretation of the evidence could lead a reasonable jury to find guilt beyond a reasonable doubt. . . .

U.S. v. Glassgow, supra. 

In arguing that the evidence was insufficient, Glassgow stressed that

three other people had access to the computer (his then-girlfriend and her two daughters). . . . [H]e asserts his conviction is based on speculation. He contends there was insufficient evidence that he `knowingly’ possessed the images of child pornography found on his computer's hard drive. 

U.S. v. Glassgow, supra. 

The Court of Appeals rather cursorily dismissed this argument, noting that Glassgow “confessed, that the child pornography images were offered for distribution, and that 88 images of child pornography were found in unallocated space on his computer (indicating he tried to delete the images).”   U.S. v. Glassgow, supra.  It therefore held that the “reasonable inferences and interpretation of the evidence support the verdict of knowingly receiving child pornography.”  U.S. v. Glassgow, supra. 

Glassgow’s second argument, as noted above, was that the district court judge erred in admitting certain evidence.  U.S. v. Glassgow, supra.  This is basically what he argued:

Although there were files or images or video on the computer hard drives seized by the government, the court allowed certain images to be created and published to the jury. [Special] Agent [Robert] Larsen has viewed thousands of pornographic images and is very familiar with certain series of videos of several young girls who were abused and video taped. . . .

[T]he government was allowed to construct videos and photographs or to copy them from other sources since there were no useable images on the computer found in Defendant's residence. Agent Meinke testified that the only thing remaining on Defendant's computer were thumbnail images that could not have been expanded into a larger picture that could be viewed. . . .

[Glassgow] should not be convicted based upon the display of images and video that were not on [his] computer. All the computer forensic experts could find were tiny images created by the computer, hidden in areas not accessible, which indicated that some file had been on the computer at some time. The government then found similar photos and videos and presented these as evidence.

In the digital age where a five year old can operate photoshop, we need to enforce a higher standard of admissibility for evidence, especially where the elements of the crime and the length of sentence are integral to the items produced.

[Glassgow] has been sentenced for videos and the only videos associated with the case are those viewed by Agent Larsen from his professional collection. There is no way of determining what the videos represented by the thumbnails on [his] computer actually depicted.

Brief of Appellant, U.S. v. Glasgow, 2011 WL 4735188 (2011).

I wish I could outline the prosecution’s argument on this issue, but its brief isn’t include in Westlaw’s entry on this case.  But I think the Court of Appeals’ holding succinctly captures what the government probably argued, in response:

A government expert . . .verified that the images in exhibits 3 through 17 were the actual enlarged images from Glassgow's computer. To the extent Glassgow is challenging the government's exhibit 1 (a DVD compilation of three video clips from a law enforcement database), the SHA–1 values of these videos matched the SHA–1 values of the files offered for distribution from Glassgow's computer.

According to the expert, there was a 99.9999% probability that exhibit 1 contained the same video clips that Glassgow possessed.

U.S. v. Glassgow, supra. 

That brings us to Glassgow’s third argument:  that the judge erred in imposing certain sentence enhancements.  U.S. v. Glassgow, supra.  As I’ve noted in earlier posts, and as Wikipedia explains in detail, sentencing in the federal system is based on a guideline system, in which the severity and nature of the offense, the defendant’s criminal history and certain other factors are used to calculate a base sentence, which the judge can depart from upward (enhance) or downward (reduce). 

Glassgow was convicted of receiving child pornography but the judge enhanced his sentence for distributing child pornography (as well). U.S. v. Glassgow, supra.  U.S. Sentencing Guideline § 2G2.2(b)(3)(F) allows a judge to enhance a sentence if the offender distributed child pornography. 

Glassgow argued that he should not receive the enhancement because “he did not widely distribute the child pornography, create the images, or make any money by distributing them.”  U.S. v. Glassgow, supra.  And the Court of Appeals noted that an enhancement for distribution should not be automatically imposed based on use of a file-sharing program.”  U.S. v. Glassgow, supra. 

In making this argument, Glassgow relied on this Court of Appeals' decision in U.S. v. Durham, 618 F.3d 921 (8th Cir. 2010) which, as I explained in an earlier post, held that if “a defendant uses a file-sharing program, a fact-finder may reasonably infer he intended to distribute files, unless there is “`concrete evidence of ignorance.’” U.S. v. Glassgow, supra (quoting U.S. v. Durham, supra).

At least according to his brief on appeal, Glasgow

did not argue that he did not have the computer skills to understand how a file sharing program worked. Rather, the evidence clearly indicates that [he] intentionally attempted to avoid distribution. The agents testified that Glassgow created folders to move images into.

By removing the images from the file sharing folder, the images were no longer available for distribution. Other users of the same file sharing software could not access the files. Agent Larsen confirmed this.

Additionally, [Glassgow] deleted all the files from his computer. The reason the jury acquitted him of possession related to his efforts to destroy the images and not make them available for distribution.

Reply Brief of Appellant, U.S. v. Glassgow, 2011 WL 6770291 (2011). 

So, Glassgow argued that his sentence should not have been enhanced for distributing child pornography when he took “affirmative steps” to “avoid distribution”. Reply Brief of Appellant, U.S. v. Glassgow, supra.  The Court of Appeals, though, was not convinced:

Glassgow claims ignorance, contending that he did not intend to distribute the images and was not a sophisticated computer user. Unfortunately, there is no `concrete evidence’ of ignorance.

Glassgow built the computer, and uploaded and downloaded files and programs. He knowingly made files available for distribution. The enhancement for distribution was not imposed merely because Glassgow used a file-sharing program.

U.S. v. Glassgow, supra. 

For these and other reasons, the Court of Appeals affirmed Glassgow’s conviction and his sentence of 188 months’ imprisonment.  U.S. v. Glassgow, supra.  

1 comment:

Anonymous said...

so much for the best evidence rule.