Computer forensics is an increasingly common factor in reported decisions. Currently, the federal courts are averaging between 50 and 60 decisions per month that reference some aspect of computer forensics. Set out below are some of the highlights from my August 2010 case digest; the growing list of monthly case digests can be viewed by clicking on the heading below.
If you or your office are interested in CLE-certified training in this complex and rapidly-developing area, or if you need assistance with computer forensics issues in an on-going case, please contact me.
Computer Forensics Case Digests
U.S. v. Dorvee, No. 09-0648-cr (2nd Cir. 8-04-2010) -- Defendant pled guilty to one count of distributing child pornography and was sentenced to 240 months (the statutory maximum). He appealed, alleging that his sentence was both procedurally and substantively unfair. The Court of Appeals agreed with defendant that the District Court had miscalculated the sentencing range in the Guidelines, setting it at 262 to 327 months. Although the District apparently acknowledged that 240 months was the maximum sentence under the relevant statute, the Court of Appeals ruled that the District Court's misconception unfairly colored its consideration of possible deviation downward. The Appeals Court also found that the District Court had made substantive errors in the sentencing of defendant, and called into question the rationality of § 2G2.2 of the Guidelines. District Courts are reminded, the 2d Circuit said "that they are dealing with an eccentric Guideline of highly unusual provenance which, unless carefully applied, can easily generate unreasonable results." Defendant's sentence was vacated and remanded to the District Court for resentencing.
U.S. v. Brunner, No. 09-4987 (4th Cir. 8-27-2010) [Unpublished] -- Defendant pled guilty to transporting and possessing child pornography, and was sentenced to 151 months in jail. Defendant appealed, arguing that the District Court abused its discretion by applying a two-level enhancement for defendant's use of a peer-to-peer software program. The Court of Appeals noted that several circuits -- the 7th, 8th, 11th, and the 4th -- have all held that when a defendant knowingly uses a peer-to-peer software program, a distribution enhancement is warranted.
U.S. v. Durham, No. 09-2951 (8th Cir. 8-26-2010) -- Defendant pled guilty to one count of knowingly receiving child pornography transported through interstate commerce, and was sentenced to 151 months imprisonment. He appealed his sentence, arguing that the District Court improperly applied a two-level enhancement and imposed unreasonable conditions for his subsequent supervised release. Defendant came to the attention of law enforcement when his IP address was identified as offering files associated with child pornography through LimeWire. No files were actually downloaded from defendant's computer. During a subsequent search of defendant's computer, no child pornography files were found, nor was there any evidence that any child pornography files had actually been uploaded. At sentencing, the District Court applied a two-level enhancement for intent to distribute based on defendant's use of the LimeWire program, despite a lack of evidence that defendant knew that others could access files he downloaded through LimeWire. The Court of Appeals conducted a thorough review of its cases regarding distribution enhancements in peer-to-peer cases and noted that use of a peer-to-peer program like LimeWire can certainly support a distribution enhancement. However, in this case, the Court of Appeals noted that the defendant did not install the software and that the government did not present evidence that defendant was a sophisticated user of the program. By a 2-1 vote, the Court vacated the use of the enhancement and remanded the case for resentencing. By a separate 2-1 vote, the Court affirmed the District Court's order that defendant obtain approval from his probation office before accessing the Internet; however, all three judges agreed that the District Court's written order, which required prior approval for any "device with internet capabilities," was unnecessarily broad and should be rewritten.
U.S. v. Campbell, No. 4:09CR3023 (Neb. 8-26-2010) -- Defendant was charged with one count of possession of child pornography and one count of receipt after videos and images of child pornography were found on his computer during an investigation originating from Europol. Pursuant to an agreement with the government, defendant pled guilty to the possession charge and agreed to various pre-sentence evaluations, including a polygraph test and psychological evaluation. Following those evaluations, defendant moved for a sentence of probation, which would represent a significant variance from the Guidelines sentence range of 41-51 months. In a lengthy and detailed opinion, the District Court explained that it was tentatively agreeing to defendant's request for probation (albeit with significant conditions). The Court's reasoning was based on a number of factors, including defendant's lack of criminal history, close family ties, successful passing of polygraph test, positive psychological evaluation, and perhaps most importantly, the relatively benign nature of the images themselves (no images of children under 12 and no images of minors engaged in sexual activity). The Court's opening sentence: "Sometimes, judges should actually look at the child pornography that forms the basis for a conviction before fashioning an appropriate sentence." The Court recognized the significance of its proposed deviation from the Guidelines and reserved final judgment for the sentencing hearing, but noted that various Circuits have upheld sentences of probation in similar circumstance.
Computer Forensics In the News
My Web site ComputerForensicsDigest.com contains links to a large number of news articles about computer forensics cases and technology. Click on the heading above to view the most recent entries in my database.
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Frederick S. Lane
Author, Attorney, Lecturer,
Computer Forensics Expert
For Assistance with Computer Forensics Issues In a Pending Case or To Schedule a CLE for Your Office Or Bar Association,
Please Call 802-318-4604
or fill out my Contact Form.
Upcoming Lectures:
September 24, 2010
"Computer Forensics 101"
Chittenden County Public Defenders, Burlington, VT
October 13, 2010
"Bill of Rights 101"
ACLU of Vermont, Castleton State College, Castleton, VT
October 29, 2010
"Can You See Me Now? The Growing Problem of Sexting in the Public Schools"
Vermont School Boards Association, Fairley, VT
November 1, 2010
"CyberTraps for the Elderly"
New York Law School, New York, NY
November 16 & 17, 2010
"LimeWire Made Me Do It"
Federal Public Defenders of Nevada, Las Vegas & Reno, NV
November 18, 2010
"LimeWire Made Me Do It"
Federal Defender of California [S.D.], Los Angeles, CA
December 8, 2010
"LimeWire Made Me Do It -- And Other Digital Excuses"
Alabama Federal Defenders Program [M.D.], Montgomery, AL
February 11, 2011
"Jurisprudishness: Law and Visual Culture in the United States, 1842-1973"
College Art Association Annual Meeting, New York, NY
February 17, 2011
"The History of Privacy in America"
The Warren White Lecture, Drury University, Springfield, MO
March 3, 2011
"There's No Such Thing As Safe Sext"
Boston College, Newton, MA
April, 2011
"There's No Such Thing As Safe Sext"
National School Boards Assoc. Annual Conference, San Francisco, CA
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