After James Paul Lowe was convicted, in a U.S. District Court in Tennessee, of “knowingly receiving, distributing and possessing child
pornography in violation of 18 U.S. Code § 2252(a)”, he appealed. U.S. v. Lowe, 795 F.3d 519 (U.S. Court of Appeals for the 6th Circuit 2015). On appeal, he
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
by explaining how, and why, the prosecution 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.
U.S. v. Lowe, supra.
The opinion continues, explaining that 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.
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. 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. . . .
U.S. v. Lowe, supra.
The evidence presented at trial apparently showed that
[m]ost 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.
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.
U.S. v. Lowe, supra.
McFall also told the jury 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.
The opinion concludes its summary of the trial by explaining
that 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.’
(R. 77, Day 3 Trial Tr. at 222–23.)
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. Lowe timely appealed.
U.S. v. Lowe, supra.
The Court of Appeals then outlined the standards it applies
in reviewing convictions:
We review 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 Jackson
v. 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 United States 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 of Appeals went on to explain 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.
The court proceeded to elaborate on what it said above,
pointing out that, “importantly”,
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).
In 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 Fed.Appx. 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. . . . 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.
U.S. v. Lowe, supra.
The Court of Appeals then began outlining its conclusions based
on the principles, and cases, outlined above:
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. Lowe, supra.
It then held that
[i]n 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.
The Court of Appeals therefore reversed James Lowe’s
conviction and remanded the case “for further proceedings consistent with this
opinion.” U.S. v. Lowe, supra.
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