United States v. Rogers, 714 F.3d 82 (1st Cir. 2013)

Metadata:

Date of Decision: 30 April 2013.
Vote: 3-0
Author: Stahl, J.
Other Panelists: Lynch, C.J., and Thompson, J.
Ruling Below:
Subsequent Proceedings: Petition for certiorari filed 24 June 2013.

Facts:

Defendant Brian Rogers and his then-wife Heather sold two laptop computers to a pawn shop. During the reformatting process of defendant’s computer, the pawnshop’s computer technician observed videos of young children engaged in sexually explicit acts. The Brunswick, ME police were notified, and a few days later, collected the laptop from the pawnshop.

A forensic examination revealed both images and videos of CP in various locations on the laptop hard drive, including a Limewire “Shared” folder, the Internet cache, and in “lost files” folders. An examination of defendant’s Internet history, cookies, and bookmarks found entries with names suggesting CP. Defendant was indicted by a grand jury of one count of possessing CP in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(A). A jury found him guilty, and he was sentenced to 60 months and 8 years supervised release. Rogers was also ordered to pay restitution of $3,150 to “Vicky,” an identified CP victim.

Issues:

A) Whether the government proved that Rogers “knowingly possessed” the CP images on the laptop sold to the pawn shop; and

B) Whether the government established a causal connection between Rogers’ behavior and the alleged harm to “Vicky.”

Rules:

A) To show “knowing possession,” the government must show that the defendant possessed, and knew that he possessed CP.

B) The 1st Circuit looks at three issues related to restitution: “(1) whether someone is a victim of a child pornography offense; (2) what causation requirement applies to identify the compensable losses suffered by the victim as a result of the offense; and (3) what amount of restitution is reasonable.” See United States v. Kearney, 672 F.3d 81 (1st Cir. 2012), cert. dismissed, 133 S. Ct. 1521, 185 L. Ed. 2d 570 (2013). Along with other circuits, the 1st Circuit has elected to apply a proximate causation standard.

Analysis:

A) The evidence from the Defendant’s Internet history made it clear that the CP on the laptop was downloaded intentionally. The cache contained the names of numerous Web sites suggestive of CP. The fact that the defendant bookmarked some of the sites suggests a “deliberate” interest.

The court rejected defendant’s claim that malware was responsible for the CP on the laptop, noting that a forensic test of the viruses found on defendant’s laptop did not result in any CP being downloaded onto a law enforcement computer. CP was found on a desktop computer as well, making it less likely that the contraband on the laptop was obtained accidentally. And finally, the court noted that some of the contraband images on the laptop were located in the Recycle Bin, indicating that defendant tried to delete them (and thus was aware that they had been downloaded).

The court then considered whether the government had proved that the defendant was the person who downloaded the content. It concluded that the government had successfully linked the user account on the laptop to defendant; among other things, defendant provided the password for the account to the pawn shop technician, and used the same ID on other Web sites. There was no evidence to support defendant’s claim that his ex-wife was responsible for downloading the CP. Based on the evidence presented, it was reasonable for the jury to conclude that defendant was the one who downloaded the CP.

B) A District Court’s ruling on restitution is reviewed for abuse of discretion, with legal issues being considered de novo and findings of fact for clear error. The materials submitted by Vickey “amply established ‘that Vicky has suffered immensely . . . from the continued dissemination and viewing of’ material depicting her abuse,” quoting United States v. Kearney, 672 F.3d 81 (1st Cir. 2012), cert. dismissed, 133 S. Ct. 1521, 185 L. Ed. 2d 570 (2013).

In light of the fact that the underlying crime and restitution materials of this case are essential identical to Kearney, it was not an abuse of discretion for the District Court to order restitution of $3,150, an amount slightly less than the Kearney court assessed.

Holding:

The defendant’s conviction and the restitution order are affirmed.