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1st Circuit Court of Appeals

U.S. v. Bach, No. 09-2603 (1st Cir. 8-5-2010) [Unpublished] -- Defendant entered a conditional plea of guilty to one count of possession of child pornography and filed an appeal challenging various District Court rulings. Specifically, defendant argued that the search of his computer was invalid for three reasons: 1) the search was involuntary; 2) the search began before he gave consent; and 3) the search went beyond the scope of his permission. The Court of Appeals reviewed the District Court's factual findings and affirmed in all respects.

2d Circuit Court of Appeals

Southern New England Telephone Company v. Global Naps, Inc., No. 08-4518-cv (2nd Cir. 8-25-2010) -- During discovery, plaintiff introduced computer forensics evidence showing that a former employee and contractor of the defendant had used software called Window Washer to destroy thousands of relevant electronic files. The District Court also found that the former employee (and defendants) lied about the availability of relevant documents. Based on those findings, the Court entered a default judgment on behalf of plaintiffs. Defendants appealed, arguing that the entry of default judgment was an "overbroad" remedy. The Court of Appeals disagreed, concluding that the District Court "did not commit any legal errors and its decision to impose default on all defendants was not an abuse of discretion."

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.

3rd Circuit Court of Appeals

U.S. v. Barefoot, No. 09-2454 (3rd Cir. 8-5-2010) [Unpublished] -- Defendant filed conditional plea of guilty to possession and receipt of child pornography. The charges arose after apartment handyman used defendant's computer without permissionto download music and discovered child pornography. Handyman reported child pornography to police, who conducted a warrantless preview of computer before obtaining search warrant. Defendant appealed District Court's denial of motion to suppress evidence seized in the search, arguing that police used the search to confirm the tip, and would not have searched otherwise. The Appeals Court held that District Court reasonably found that police had independent grounds for believing the credibility of the informant, and affirmed the denial of the motion.

4th Circuit Court of Appeals

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. Talley, Nos. 09-4734, 09-4873 (4th Cir. 8-9-2010) [Unpublished] -- Defendant was charged with two counts of possessing child pornography. He entered a conditional plea of guilty and filed an appeal, challenging the District Court's denial of his motion to suppress the electronic evidence in the case. Defendant argued that his initial detention and arrest at a public library was unconstitutional, on the grounds that the police officers (for various reasons) did not have reasonable suspicion to detain nor probable cause to arrest him and search his belongings. After reviewing all of the facts surrounding the detention and arrest, the Court of Appeals upheld the District Court's ruling.

U.S. v. Lively, No. 08-5159 (4th Cir. 8-4-2010) [Unpublished] -- Defendant purchased a video containing child pornography from an undercover Web site. A subsequent search of his computer revealed over 1,300 images of child pornography. Defendant pled guilty to a single count of distribution of child pornography, and was sentenced to one day in prison and a lifetime of supervised release. The government appealed, arguing that the District Court had no authority to depart downward from the Sentencing Guidelines absent a motion by government under 18 U.S.C. §3553(e) [documenting substantial assistance by the defendant]. The Court of Appeals agreed that absent such a motion, no downward departure could be made. However, it vacated the sentence and remanded the case to the District Court to determine if the government was required to make a §3553(e) motion under the terms of the plea agreement.

6th Circuit Court of Appeals

U.S. v. Walls, No. 08-4488 (6th Cir. 8-10-2010) [Unpublished] -- Defendant pled guilty to possession, production, receipt, and distribution of child pornography, and as part of a plea agreement, substantially waived his right to appeal. A computer forensics analysis revealed that defendant had in his possession over 30,000 images and 100 videos of child pornography, that defendant had spent nearly two years sharing images and videos with over 100 other individuals, and that defendant had produced and distributed child pornography he had produced. Notwithstanding the terms of the plea agreement, defendant appealed, arguing that the District Court unreasonably denied his request for a downward variance and that the imposition of a lifetime of supervised release was unjust. The Court of Appeals dismissed the appeal, holding that defendant had knowingly waived his rights of appeal.

8th Circuit Court of Appeals

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. Buesing, No. 09-3469 (8th Cir. 8-12-2010) -- Defendant pled guilty to one count of possessing and one count of distributing child pornography following an investigation of LimeWire file sharing from an IP address traced to defendant. The Sentencing Guidelines recommended a sentence of between 210 and 262 months; the District Court chose to sentence defendant to two concurrent 120-month sentences. Defendant appealed, arguing that the sentence was unreasonable. The Court of Appeals held that there was ample justification for the sentence, including "the size, scope, and nature of [defendant's] child pornography collection," and affirmed the sentence.

D. Delaware

U.S. v. Clark, Crim. A. No. 09-33 GMS (Del. 8-30-2010) -- Defendant was charged and convicted on nine counts of production or attempted production of child pornography, stemming from cell phone videos he secretly made of his girlfriend's 14-year-old daughter showering in the morning. Defendant filed a motion to set aside the verdict and for a new trial, arguing that

D. Iowa [N.D.]

U.S. v. Stark, No. 09-CR-2032-LRR (N.D.Iowa 8-9-2010) -- Defendant pled guilty to two counts of possession of child pornography. At sentencing, defendant asked the District Court to merge the counts, arguing that the initial indictment was duplicitous. The District Court refused to do so, noting that possession of child pornography on different devices and/or media can support separate counts of possession.

D. Minnesota

U.S. v. Luoma, 07-CR-254 (JMR/JSM), 10-CV-1354 (JMR) (Minn. 8-25-2010) -- Petitioner filed motion to set aside his sentence pursuant to 28 U.S.C. § 2255. In January 2008, petitioner pled guilty to possession of child pornography and was sentenced to 46 months in prison and lifetime of supervised release. In his 2255 motion, petitioner argues among other things that his attorney provided ineffective assistance of counsel by failing to investigate relevant information. Specifically, petitioner claimed that his attorney failed to investigate whether he had reported child pornography to authorities at Yahoo!, and that his attorney did not give him a chance to testify about errors in the examination of his hard drive. The District Court found that there was no evidence that petitioner was prejudiced in either instance, nor that it would have made a difference in his trial. More importantly, petitioner waived all non-jurisdictional defects by effectively pleading guilty. The motion was denied.

Teichberg v. Smith, Civil No. 09-456 (Minn. 8-17-2010) -- Plaintiff was detained on suspicion of trespassing shortly before start of Republican National Committee convention in Minneapolis. After questioning and a warrant check, plaintiff was allowed to leave, but police retained his backback, which contained cameras and a computer. After an application for a search warrant was denied, plaintiff's possessions were returned to him, roughly 14 hours after they were seized. Plaintiff filed a civil suit against the officers for violation of various constitutional rights and state law claims, and the officers moved for summary judgment. After reviewing the facts and discussing applicable law, the District Court concluded that the initial stop, the inspection of the back, and the retention of plaintiff's possessions were all reasonable under the circumstances and no legal violations occurred. The motion for summary judgment was granted.

D. Pennsylvania [M.D.]

U.S. v. Scott, CRIMINAL NO. 1:09-CR-072-01 (M.D.Pa. 8-2-2010) -- Defendant in theft case moved to suppress evidence seized by police during warrantless search of apartment in which goods were stashed, and from warrantless search of seized cell phones and computers. District Court ruled defendant had no expectation of privacy in either the apartment or in the stolen goods, and so had no basis for challenging the search. The motion was denied.

D. Nebraska

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 setnence 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.

Doe v. State, Nos. 8:09CV456, 4:09CV3266, 4:10CV3004, 4:10CV3005 (Neb. 8-16-2010) -- Nebraska adopted a Sex Offender Registration Act (eff. 1/1/2010) that among other things, mandates that all convicted sex offenders consent to lifetime searches of their computers and ongoing monitoring of their Internet activity, even in the absence of any evidence of further criminal activity. Refusal to give consent is a felony. Various individuals challenged the law as unconstitutional, arguing that it violates both the Fourth Amendment and the ex post facto prohibition in Article I, § 10 of the Constitution. The District Court granted summary judgment on Fourth Amendment grounds for all individuals "not on probation, parole or court-monitored supervision" as of January 1, 2010, saying that the mandated consent to search and ongoing monitoring strips those individuals "of their right to be secure in their homes, `papers,' and personal effects." The Court then ordered a trial to determine the constitutionality of those provisions with respect to persons who are on probation, parole, or court-monitored supervision, as well as the potential impact of the law on persons associated with them (spouses, children, etc.).

D. North Carolina [M.D.]

Andrews v. U.S., 1:09CV960, 1:07CR232-1 (M.D.N.C. 8-16-2010) -- Defendant pled guilty to one count of "attempted taking of indecent liberties with a child by using a facility of interstate commerce" and one count of possession of child pornography, and was sentenced to 165 months in prison. Defendant filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of counsel (most notably that defendant's attorney predicted a much lower sentence under the guidelines than was actually the case). The District Court's chief inquiry was whether defendant would have gone to trial even if the attorney's calculation had been accurate, and concluded that he would not have done so. In particular, the Court noted that the computer evidence collected against defendant, including chats by undercover agent posing as 12-year-old girl and 60 videos of child pornography, would likely have led to a higher sentence than defendant received. The motion was denied.

D. North Dakota

U.S. v. Solsbury, Case No. 4:09-cr-062 (N.D. 8-4-2010) -- Defendant pled guilty to receipt of child pornography, including images from a series with a known victim, "Vicky." Government filed motion for $312,953.60 in restitution from defendant under the Violent Crime Control and Law Enforcement Act of 1994, and the Violence Against Women Act of 1994. While acknowledging the never-ending harm to the victim through the continued distribution of child pornography photos of her, the District Court objected to the fact that no effort was made to apportion the victim's damages to defendant's possession of five images of her. The Court concluded that without a showing of proximate cause between defendant's actions and the victim's harm, an order of restitution is improper. "The decision to award restitution in these types of cases," the Court said, "should be, and needs to be, based on some semblance of reason, common sense, and fairness rather than speculation."

D. Tennessee [E.D.]

Bevil v. U.S., No. 2:06-CR-52, No. 2:07-CV-224 (E.D.Tenn. 8-16-2010) -- Petitioner filed a motion under 28 USC § 2255 for post-conviction relief. In early 2006, the National Center for Missing and Exploited Children received reports of child pornography uploads to a Yahoo photos Web page. An administrative subpoena was issued and petitioner was identified as the owner of the Web page. Pursuant to a federal search warrant, petitioner's computer was searched and multiple images of child pornography were located. He pled guilty to one count of possession of child pornography and was sentenced to 327 months. Petitioner listed several grounds for post-conviction relief, most having to do with ineffective assistance of counsel. The motion was denied.

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Contact me to schedule a session for your office Here are some of the cases and news reports I've been following over the past month: Computer Forensic Case Digests I've added a new feature to my ComputerForensicsDigest.com Web site: a monthly digest of court decisions involving peer-to-peer software and computer forensics. The majority of these are criminal cases, but I have included some civil cases where the discussion of peer-to-peer software or computer technology seems particularly useful. Follow the link to read the full July 2010 case digest; some highlights are set out below. U.S. v. Ciesiolka, No. 09-2787 (7th Cir. 7-26-2010) -- Defendant was convicted of knowingly attempting to persuade, induce, entice and coerce a minor to engage in sexual activity under 18 U.S.C. § 2422(b). On appeal, he argued that the District Court committed reversable error. Specifically, he claimed that the use of an "ostrich" instruction relieved the government of its duty to prove beyond a reasonable doubt that defendant believed the alleged minor was under 18. He also challenged the District Court's decision to allow the introduction of other IM chats and images of child pornography seized from his computer, arguing that it was introduced to show his propensity to commit the alleged crime, and that even if admitted for a legitimate purpose, it did not meet the requirements of Fed.R.Evid. 403. The Court of Appeals affirmed both of defendant's arguments, and vacated the judgment. U.S. v. Warren, No. CR 09-2059 BB (N.M. 7-23-2010) -- Defendant in child pornography possession case moved to suppress evidence seized from his computer on the grounds that the underlying affidavit was flawed and failed to establish probable cause. The District Court denied the motion, finding that the affidavit was sufficiently detailed and particular to merit the issuance of a search warrant. The Court did criticize the affidavit for its mistaken reference to a prior conviction of an individual with the same name as the defendant, but held that the mistake did not invalidate the search warrant. It did not show reckless disregard for the truth, nor was it critical to the issuance of the warrant; there was ample evidence regarding defendant's prior identification in ICE investigations, as well as recent efforts to access a fake child pornography Web site created by the FBI. U.S. v. Nelson, CR. 09-40130-01-KES (S.D. 7-12-2010) -- Defendant was charged with one count of possession of child pornography. Prior to trial, defendant move to suppress evidence seized during a search of his residence, and for a Franks hearing on the validity of the warrant, arguing that the Task Commander for the SD Internet Crimes Against Children Task Force had falsified evidence. The court conducted an extensive inquiry into the investigation, including detailed discussion of IP and MAC addresses, and concluded that the Task Commander's affidavit did not establish probable cause for the issuance of a warrant. The motion to suppress and for a Franks hearing was granted. P2P and CF In the News 2010-07-19 [FL] -- Former U.S. Army sergeant sentenced over 15 years for transporting child pornography 2010-07-28 [SC] -- Myrtle Beach man sentenced on child pornography charges 2010-07-23 [NY] -- Man had 184 child porn vids on computer 2010-07-22 [MI] -- Boy Scout Leader in Mich. Faces Child Porn Charges 2010-07-21 [PA] -- Retired police capt. among 3 charged in child porn bust 2010-07-20 [FL] -- Pensacola man sentenced to 360 months for child porn 2010-07-19 [CA] -- San Jose police arrest 11 for possession of child porn 2010-07-18 [CA] -- Keyes man sentenced to 11 years for child pornography 2010-07-16 [TX] -- Los Fresnos man jailed in child porn case 2010-07-14 [CT] -- Tolland Resident Arrested on Federal Child Pornography Charge 2010-07-12 [IA] -- Child Porn Prosecutions Delayed by Backlog of Cases 2010-07-09 [OH] -- 200,000 Images of Child Pornography 2010-07-09 [MA] -- 48-year-old man charged with possessing child porn 2010-07-09 [MI] -- Boy Scout camp director arrested for child pornography 2010-07-08 [PA] -- 7 nabbed on child porn charges [including 2 male and 1 female teen] 2010-07-07 [FL] -- Plea deal in child porn case allows Jupiter man to avoid prison 2010-07-04 [TX] -- Haddox gets federal prison time for child porn 2010-07-01 [SC] -- Charleston man charged with distributing child porn 2010-07-01 [TX] -- Huge Child Porn Bust: Houston Pilot Arrested P2P and CF Technology 2010-07-05 -- Privacy and the Thumb Drive 2010-06-30 -- Shadow Analyser speeds digital analysis of recovery files For More Computer Forensic Headlines, Click Here. Bottom Line? Law Enforcement Is Searching P2P Networks in Real Time ... Your Soon-to-Be Clients Are Using P2P ... It's Important to Understand How P2P Technology Works Frederick S. Lane Author Attorney Expert Witness Lecturer To Schedule a Seminar for Your Defenders Or CJA Panel Attorneys, Please Call 802-318-4604 or fill out my Contact Form. Upcoming Lectures: September 9, 2010 "There's No Such Thing As Safe Sext" Arizona School Boards Association Annual Law Conference 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 December 10, 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 Defending Peer-to-Peer Crimes is a publication of Mathom Enterprises and Frederick S. Lane, an author, attorney, educational consultant, expert witness, and lecturer who has appeared on "The Daily Show with Jon Stewart," CNN, NBC, ABC, CBS, the BBC, and MSNBC. He currently serves as chairman of the Burlington (VT) School Board. His fifth book, "American Privacy: The Four-Hundred-Year History of Our Most Contested Right," is now available from Beacon Press or the retailer of your choice. Visit http://bit.ly/37DI3D for additional information. Contact information: 802-318-4604 | fslane3@gmail.com | www.FrederickLane.com | www.ComputerForensicsDigest.com If you do not wish to receive further emails, Please Click Here Copyright © 2010 Mathom Enterprises, LLC. All rights reserved. My mailing address is: 12 Catherine Street, Burlington, VT 05401 Please feel free to forward this e-mail to anyone you think might be interested.

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3rd Circuit Court of Appeals

Bimbo Bakeries USA v. Botticella, No. 10-1510 (3rd Cir. 7-27-2010) -- Defendant in a trade secrets case filed an interlocutory appeal challenging the District Court's injunction barring him from working for a competitor of plaintiff. After a lengthy discussion, the Court of Appeals upheld the District Court's injunction. Among other things, the Court of Appeals noted that a computer forensics examination of defendant's company laptop showed credible evidence of misuse of or theft of plaintiff's confidential business information.

U.S. v. King, No. 09-3195 (3rd Cir. 7-27-2010) [Unpublished] -- Defendant, a medical doctor, was convicted on multiple counts of fraud. He appealed, alleging ineffective assistance of counsel. He claimed that when the FBI came to his office to seize his computers, they tricked his wife into signing consent forms allowing the FBI to image his computers. Given his wife's testimony to that effect at trial, defendant argued that his counsel should have but did not raise a Fourth Amendment challenge to the search and seizure. The Court of Appeals declined to address defendant's claim, arguing that it was not appropriate for a direct appeal, and that it should be considered as part of a subsequent habeas corpus motion so that a factual record could be developed.

U.S. v. Morris, No. 09-2862 (3rd Cir. 7-19-2010) [Unpublished] -- Defendant pled guilty to possession of child pornography, following an investigation of peer-to-peer file sharing of known child pornography files. A forensic examination of defendant's computer revealed nearly 5,000 images of child pornography. During sentencing, the District Court imposed a post-incarceration requirement (as specified in the Sentencing Guidelines) that defendant comply with the requirements of the Sexual Offender Registration and Notification Act. Defendant argued that imposition of the condition violates U.S. v. Booker, 543 U.S. 220 (2005), which held that the Guidelines are advisory only. But the Court of Appeals noted that the Guidelines requirement stems from a specific statutory requirement, and thus imposition of the SONRA condition does not violate Booker.

U.S. v. Reed, No. 09-4677 (3rd Cir. 7-2-2010) [Unpublished] -- Defendant, a USPS employee, plead guilty to one count of using his work computer to download child pornography. At sentencing, he sought a significant downward departure based on history of child abuse and alleged low likelihood of recidivism. The district court rejected his argument and sentenced defendant to 57 months. The 3rd Circuit found no error and upheld the sentence.

4th Circuit Court of Appeals

U.S. v. Scott, 09-4728 (4th Cir. 7-6-2010) [Unpublished] -- Defendant challenged denial of his motion to suppress child pornography images found on his computer, arguing that computer repair technician opened the file in the presence of an investigator and was therefore a government agent. The district court disagreed, finding that since the investigator did not instruct technician to open the file, no agency relationship existed. Court of Appeals affirmed.

6th Circuit Court of Appeals

U.S. v. Sneed, No. 09-3215 (6th Cir. 7-19-2010) [Unpublished] -- Defendant in armed robbery case challenged probable cause for issuance of a search warrant, arguing that there was no nexus between bank robbery and his Cadillac. During discussion of nexus standard, Court discussed U.S. v. Lapsins, 570 F.3d 758 (6th Cir. 2009), which discussed nexus between child pornography images and home computer sufficient to support a search warrant.

U.S. v. Hough, No. 08-6113 (6th Cir. 7-13-2010) [Unpublished] -- Defendant was charged with attempting to receive and knowing possession of child pornography. Prior to trial, the government announced that under Fed. R. Evid. 404 and 414, it intended to introduce evidence of prior incidents of sexual abuse and molestation of children. After a hearing, the district court ruled that the incidents could only be introduced in rebuttal if the defendant made the information relevant, and the government appealed. The Court of Appeals concluded that although the evidence might be relevant, the district court reasonably concluded that the government did not have a strong need for the evidence and that its introduction would unfairly prejudice defendant.

U.S. v. Phillips, Nos. 08-6099, 08-6271 (6th Cir. 7-12-2010) [Unpublished] -- Defendant was convicted of receiving and possessing child pornography. At sentencing, the district court rejected a five-level enhancement for distribution, stating that the government had not met its burden of proof. The court also overruled defendant's objection to enhancement of his sentence for sadomasochistic content as double-counting, and rejected defendant's request for a downward departure due to depression. Both sides appealed. The appeals court held that the evidence regarding possible distribution of child pornography by defendant was equivocal and that the district court's ruling was not clearly erroneous. The court also ruled (like every other circuit) that defendant's "double-counting" argument was without merit. Finally, the court noted that no downward departure for reduced mental capacity (i.e., depression) is available when the conviction involves "Sexual Abuse and Other Exploitation of Children."

7th Circuit Court of Appeals

U.S. v. Ciesiolka, No. 09-2787 (7th Cir. 7-26-2010) -- Defendant was convicted of knowingly attempting to persuade, induce, entice and coerce a minor to engage in sexual activity under 18 U.S.C. § 2422(b). On appeal, he argued that the District Court's committed reversable error. Specifically, he claimed that the use of an "ostrich" instruction relieved the government of its duty to prove beyond a reasonable doubt that defendant believed the alleged minor was under 18. He also challenged the District Court's decision to allow the introduction of other IM chats and images of child pornography seized from his computer, arguing that it was introduced to show his propensity to commit the alleged crime, and that even if admitted for a legitimate purpose, it did not meet the requirements of Fed.R.Evid. 403. The Court of Appeals affirmed both of defendant's arguments, and vacated the judgment.

U.S. v. Nance, 09-3786 (7th Cir. 7-12-2010) -- Defendant pleaded guilty to receiving child pornography, and was sentenced to 180 months in prison. On appeal, defendant objected (among other things) to the district court's determination that possession of one additional child pornography image (obtained through peer-to-peer software, but not included in the indictment) was "relevant conduct" for the purposes of sentencing. After a detailed analysis of the Sentencing Guidelines and relevant precedents from around the country, the Court of Appeals affirmed the District Court's sentence. U.S. v. Rogers, 09-3364 (7th Cir. 7-9-2010) -- Defendant was convicted for possessing over 2,200 images and 70 videos of child pornography. He appealed, arguing that the calculation of his 78-month sentence was flawed. He made three claims: 1) reliance on a sentencing guideline promulgated directly by Congress in the PROTECT Act is unconstitutional; 2) enhancement for sadistic or masochistic conduct amounts to double jeapordy, since the conduct is already taken into account in the base offense level for possession of child pornography; and 3) the district court improperly considered evidence not in the record when calculating his sentence. The Appeals Court rejected the first argument on its merits, noting that Congress has ample authority to establish penalties, and held that defendant had waived the remaining two arguments (but would not have prevailed even if he had not).

U.S. v. Faulds, 09-3245 (7th Cir. 7-8-2010) -- Defendant was convicted on one count of distribution of child pornography and one count of possession, resulting in consecutive sentences of 240 and 120 months. Defendant appealed, alleging that the possession charge was subsumed in the distribution charge, and that his conviction on the two counts amounted to double jeapordy. Defendant's assertion of the claim was untimely, so Appeals Court looked to see if there was plain error in separate convictions. There was no plain error; while courts have held that distribution of a tangible object (guns, drugs) necessarily implies possession, the same is not true of child pornography. The electronic nature of child pornography makes it possible to distribute the content and at the same time, still possess it. Since the crime of possession can occur subsequent to the distribution, separate facts can support to distinct convictions.

8th Circuit Court of Appeals

U.S. v. Finley, No. 09-3159 (8th Cir. 7-16-2010) -- Defendant pled guilty to receipt, possession, and distribution child pornography. On appeal, he challenged the District Court's refusal to suppress evidence seized pursuant to a search warrant on the grounds that the warrant allegedly contained false information. Specifically, defendant argued that the investigating ICAC task force member actually downloaded contraband from defendant's IP address two days after the period for which information was requested from defendant's ISP. Defendant argued that the officer seeking the search warrant should have known that the investigator's information was false. A magistrate granted defendant a Franks hearing to give him an opportunity to demonstrate deliberate or reckless falsity on the part of the investigator and officer, and concluded that he failed to do so. The District Court agreed, and noted that even if the magistrate was incorrect, the officer applying for the search warrant could invoke the good faith exception of U.S. v. Leon, 468 U.S. 897 (1984). The Court of Appeals upheld the factual determination and did not reach the Leon discussion, although it suggested that a finding of a Franks violation would in fact preclude application of Leon.

9th Circuit Court of Appeals

U.S. v. Kuba, No. 09-10367 (9th Cir. 7-8-2010) [Unpublished] -- Defendant appealed district court's denial of motion to suppress evidence seized from home computer, arguing a lack of probable cause and staleness. Appeals Court found that there was sufficient evidence to support probable cause -- subscription to "a certain website," the likehood of downloads, and the ability of law enforcement to retrieve deleted images. Court also held that passage of 12 months between subscription and search warrant was not ipso facto grounds for a finding of staleness. In particular, Court noted that there was a "fair probability" that contraband images had not been deleted, and "that evidence of the images could still be obtained from the computer."

10th Circuit Court of Appeals

Mink v. Knox, No. 08-1250 (10th Cir. 7-19-2010) -- Defendant, a Colorado district attorney, approved a search warrant of plaintiff's home and computers as part of investigation into alleged criminal libel by plaintiff against a University of Northern Colorado professor. Plaintiff filed a Section 1983 lawsuit against defendant and others, and the District Court ruled that defendant enjoyed qualified immunity. Plaintiff appealed. Reviewing the facts of the case de novo, the Court of Appeals concluded that no reasonable prosecutor could have concluded that plaintiff's statements constituted criminal libel of the UNC professor. Moreover, the Court of Appeals held that the search warrant lacked particularity and amounted to a "general exploratory rummaging" of plaintiff's electronic life. The Court reiterated its rule that computer search warrants must "affirmatively limit" any search to evidence relating to a specific crime. The District Court's ruling was reversed and the case remanded for further proceedings.

11th Circuit Court of Appeals

U.S. v. Irey, No. 08-10997 (11th Cir. 7-29-2010) -- Defendant pled guilty to a one-count indictment alleging violation of 18 U.S.C. § 2251(c), which prohibits use of a minor in sexually explicit conduct outside of the United States, for the purpose of creating visual depictions of such conduct and transporting said depictions to the U.S. by any means. The District Court sentenced defendant to 17.5 years in prison, out of a maximum sentence of 30 years. The government appealed, arguing that the sentence was too lenient, and that the District Court erroneously relied on an obviously false psychological report. After recounting in detail the gravity of the defendant's offenses (including the molestation and abuse of at least 50 young girls), the Court of Appeals agreed. It vacated the sentence and remanded with instructions that defendant be sentenced pursuant to the guidelines, which in this case specified a minimum and a maximum sentence of 30 years.

U.S. v. Tome, No. 09-16486 (11th Cir. 7-27-2010) -- Defendant pled guilty to 13 violations of his supervised release and was sentenced to serve 24 months in prison. The District Court also imposed another year of supervised release with numerous conditions, including an order to stay off the Internet. Tome appealed, arguing that the sentence was too long and the Internet ban was overly broad. The Court of Appeals ruled that the District Court did not abuse its discretion in either instance.

Kapardelis v. Danzig, No. 09-15422 (11th Cir. 7-19-2010) [Unpublished] -- Plaintiff was charged with traveling to Russia to have sex with a minor, and a search warrant was obtained for his computer. A computer forensics examination of the computer revealed images of child pornography, including material produced by Plaintiff. The sex tourism charges were eventually dropped, but plaintiff was convicted for production and possession of child pornography, and sentenced to 35 years. Plaintiff subsequently filed a Bivens action against the government agents who initially investigated him in Russia. The District Court dismissed the case, saying it was barred by Heck v. Humphrey, 512 U.S. 477 (1994), in which the Supreme Court ruled that a civil case against the government is barred if it would call into question a valid criminal conviction. The Court of Appeals affirmed.

U.S. v. Brunette, No. 09-13161 (11th Cir. 7-19-2010) [Unpublished] -- Defendent challenged imposition of a sentence of 78 months for possession of child pornography, arguing that his request for a downward variance should have been granted. Defendant's conviction stemmed from an Immigration and Customs Enforcement investigation into a subscription-based child pornography Web site, which revealed that defendant had made at least five monthly payments. A subsequent search of his computer turned up over 1,000 child pornography images. The Court of Appeals ruled that the District Court's sentence followed procedural guidelines and was not substantively unreasonable.

D.C. Circuit Court of Appeals

U.S. v. Burroughs, No. 08-3085 (D.C. Cir. 7-16-2010) -- Defendant pled guilty to sexual abuse of a minor and was sentenced to prison with a period of supervised release following his incarceration. Among other things, the district court ordered defendant to submit to Probation Office monitoring of his computer and to pay for the necessary software, and to keep a log of his non-work-related Internet activity. Noting that a computer played no role in the offense and that no contraband was discovered on defendant's computer, the Court of Appeals concluded that the district court's restrictions were not relevant to the statutory elements of the crime and impacted defendant's substantial rights. Concluding that the imposition of the restrictions was plainly erroneous, the Court of Appeals remanded that aspect of the sentence to the District Court for reconsideration.

D. California [E.D.]

Inman v. Clark, No. CIV S-08-2217-CMK-P, (E.D.Cal. 7-2-2010) -- Petitioner filed writ of habeas corpus, alleging ineffective assistance of counsel. Among other things, petitioner alleged that his trial attorney failed to investigate petitoner's claims that images of child pornography and various hardcore teen and child sex URLs were on his computer as part of research for a proposed article for NBC's Dateline program. The District Court rejected that claim, noting that trial counsel asked police forensic examiners to search for any emails or other electronic evidence of communication to or from Dateline. None was found.

D. California [N.D.]

U.S. v. Tosti, No. C 09-00973-1 JSW (N.D.Cal. 7-12-2010) -- Defendant brought computer to CompUSA for repair. Technician discovered child pornography and contacted local police. A warrant was issued for defendant's home and he was indicted for possession of child pornography based on items found during the search. Defendant filed a motion for production of documents from the FBI seeking "any and all records" relating to the FBI's contact with CompUSA and its employees throughout the United States for a period of approximately two years. The Government moved to quash the subpoena and the district court agreed, saying that defendant's motion had failed to satisfy the factors enunicated by the Supreme Court in U.S. v. Nixon, 418 U.S. 683 (1974). In particularly, the court said, the defendant failed to show that the requested documents would be relevant and on its face, the subpoena was overly broad.

D. Conn.

U.S. v. Perlitz, Criminal No. 3:09cr207 (JBA) (Conn. 7-14-2010) -- Defendant was charged with traveling in interstate commerce, i.e. Haiti, for the purposes of having sex with individuals under that age of 18. Defendant challenged the indictment, arguing inter alia that it failed to allege sufficient contact with Connecticut to support venue there. After a detailed analysis of defendant's activities in Haiti, including use of pornography on a laptop computer to help groom victims, the district court concluded that defendant's actions in Connecticut were all preparatory to the crime, but not elements of the crime itself. Defendant's motion to dismiss was granted.

D. Florida [M.D.]

Borden v. U.S., Case No. 6:09-cv-481-Orl-31DAB (M.D.Fla. 7-15-2010) -- Petitioner, a tax preparer, was convicted on 27 counts of assisting individuals in filing false tax returns. Petitioner moved for post-conviction relief on the grounds that she received ineffective assistance of counsel. Specifically, petitioner argued that her attorney failed to challenge the admission seized from her computers, on the grounds that the search warrant did not include a protocol for limiting investigator access to non-relevant information. The district court noted that the Eleventh Circuit does not have a requirement for such a protocol and that in any event, there was no evidence that agents went beyond the scope of the warrant during their search. Although that argument was rejected, the district court did order a hearing on whether petitioner received ineffective assistance of counsel with respect to a plea deal offered by the government.

D. Illinois [N.D.]

Hale v. United States, No. 1:08 CV 94 (N.D.Ill. 7-22-2010) -- Defendant was convicted of one count of solicitation to commit a crime of violence -- U.S. District Court Judge Joan Lefkow -- and three counts of obstruction of justice. He was sentenced to 480 months in prison, and his conviction was affirmed on appeal. He subsequently filed a § 2255 motion, alleging that his conviction was unconstitutional or otherwise illegal. Among other things, Hale argued that his Sixth Amendment rights were violated due to the ineffective assistance of counsel. Specifically, he argued that his counsel failed to file a motion to suppress the seizure of computers on the grounds that the warrant was invalid. On that issue, the District Court concluded that there was ample nexus between the criminal allegations and the electronic equipment seized to support the issuance of the search warrant. Since defendant could not introduce facts to show a motion to suppress would have been successful, the failure to introduce such a motion was not ineffective assistance of counsel.

D. Indiana [S.D.]

CDW LLC v. NETech Corporation, 1:10-cv-530-SEB-DML (S.D.Ind. 7-7-2010) -- Computer forensics used to demonstrate that former CDW employees copied confidential business information and trade secrets from CDW and transferred them to NETech.

D. Iowa [N.D.]

U.S. v. Heggebo, No. CR10-0016 (N.D.Iowa 7-7-2010) -- A detailed discussion by U.S. Magistrate of the probable cause required to examine a video camera and cell phone. Police received information from a confidential informant about a home-made child pornography video on defendant's video camera; separately, an individual turned in a lost cell phone containing a video of "an older man [identified as defendant] videotaping a naked, prepubescent minor girl in the shower." Search warrants were granted for both devices, and defendant moved to suppress images and videos of child pornography recovered from both devices. Magistrate found that under the relatively generous 8th Circuit standard, there was adequate probable cause for the issuance of each warrant, and that even if not, the Leon good faith exception applies in both cases. He recommended denial of defendant's motion to suppress.

D. Mass.

Sony BMG Music Entertainment v. Tenenbaum, Civil Action No. 07cv11446-NG (Mass. 7-9-2010) -- Defendant challenged as excessive a $675,000 jury award for infringement of thirty copyrighted works using Kazaa peer-to-peer software. In a lengthy and thoughtful opinion, the district court concluded that the award violated defendant's Fifth Amendment due process rights and reduced the award to $67,500.

D. Missouri [E.D.]

Norris v. United States, Case No. 4:10CV00247 SNLJ (E.D.Mo. 7-8-2010) -- Petitioner filed Section 2255 motion to set aside his conviction for possession of child pornography. Among other things, he argued that counsel failed to investigate "whether petitioner was responsible for knowingly placing child pornography images on his computer." The court noted that when petitioner plead guilty, he expressed satisfaction with the work of his attorneys and admitted that there was a factual base for the guilty plea. The court found petitioner's claim of ineffective assistance to be without any merit.

D. Nevada

U.S. v. Garcia, Case No. 2:07-cr-00235-LDG-PAL (Nev. 7-9-2010) -- Defendant convicted on one count of enticement and attempted enticement of a 13-year-old female (actually an undercover investigator). Defendant challenged his conviction, arguing that he was denied his Sixth Amendment rights to put cross-examine witnesses and put on a defense. The court rejected the arguments, noting among other things that defense counsel questioned the investigator about the lack of child pornography on defendant's computer, and argued the same point to the jury.

D. New Hampshire

Wentworth-Douglas Hospital v. Young & Novis Prof. Assoc., Civil No. 10-cv-120-SM, Opinion No. 2010 DNH 128 (N.H. 7-28-2010) -- Plaintiff alleges that various doctors, after being informed of the non-renewal of their contract for pathology services, downloaded confidential information from plaintiff's network and then installed DriveScrubber 3 software that caused considerable loss of data on multiple hard drives on plaintiff's network. Defendants moved to dismiss, arguing that the plaintiff had failed to state a claim upon which relief could be granted. The District Court determined that the complaint was sufficient well-plead to support the various counts at this stage of the proceedings, and denied defendants' motion.

D. New Mexico

U.S. v. Warren, No. 09-CR-2059 BB (N.M. 7-29-2010) -- Defendant in child pornography possession case moved for a bill of particulars from the government. The District Court denied the motion, saying that defendant had received ample information about the nature of the allegations, including a detailed computer forensics report.

U.S. v. Warren, No. CR 09-2059 BB (N.M. 7-23-2010) -- Defendant in child pornography possession case moved to suppress evidence seized from his computer on the grounds that the underlying affidavit was flawed and failed to establish probable cause. The District Court denied the motion, finding that the affidavit was sufficiently detailed and particular to merit the issuance of a search warrant. The Court did criticize the affidavit for its mistaken reference to a prior conviction of an individual with the same name as the defendant, but held that the mistake did not invalidate the search warrant. It did not show reckless disregard for the truth, nor was it critical to the issuance of the warrant; there was ample evidence regarding defendant's prior identification in ICE investigations, as well as recent efforts to access a fake child pornography Web site created by the FBI.

D. New York [E.D.]

Amerisource Corporation v. RX USA International, Inc., 02-CV-2514 (JMA) (E.D.N.Y. 7-6-2010) -- Civil case in which computer forensics was used to demonstrate that various key e-mails had been forged.

D. New York [W.D.]

U.S. v. Howe, 09-CR-6076L (W.D.N.Y. 7-1-2010) -- Following detention on March 20, 2009, as a danger to the community, defendant moved for his release. District Court continued the detention, noting defendant's prior convictions for sexual abuse of minors, statements he made during his arrest indicating an on-going interest in sexual contact with minors, and images of child pornography recovered from his computers.

D. Oklahoma [N.D.]

U.S. v. Avezov, Case No. 10-CR-0085-CVE (N.D.Okla. 7-29-2010) -- Defendants moved to suppress evidence, including several cellphones and computers, seized from their rental car. Defendants argued that the traffic stop was continued beyond its initial purpose without their consent and without reasonable suspicion that a crime had been committed. The District Court agreed that there were reasonable grounds for suspicion about the possibility of criminal activity, but concluded that the length of time between the initial stop and the eventual arrest on drug possession was long enough -- 70 minutes -- that the stop effectively became an arrest. However, prior to the arrival of a canine unit to sniff the car, the state trooper did not have probable cause for an arrest, and thus the detention was unlawful. The District Court ruled that all of the evidence seized during the unlawful search must be suppressed.

D. Oregon

U.S. v. Eggleston, No. 08-169-HA (Or. 7-19-2010) -- Defendant was charged with traveling across interstate lines to have sex with a minor, transporting child pornography in interstate commerce, and possession of child pornography. Defendant moved to suppress all statements and evidence seized during his arrest, arguing that the search of his motel room by Immigration and Customs Enforcement officers was unauthorized and illegal. The District Court agreed that ICE's entry into the motel room was unlawful, but asked the parties to submit additional briefing on how much evidence should be suppressed as a result of the illegal search.

D. Pennsylvnia [M.D.]

U.S. v. Davies, Criminal Action No. 3:08-CR-00253 (M.D.Pa. 7-29-2010) -- Defendant was charged inter alia with possession of child pornography. Defendant filed a motion to suppress the CD containing the allegedly contraband image, arguing that the search warrant was issued without probable cause and was overly broad. The District Court held that defendant's own online chats with law enforcement agents made it reasonably likely that he either possessed or was attempting to produce child pornography, which was sufficient to provide probable cause for the search warrant. Similarly, the District Court concluded that the categories of items listed in the search warrant, while broad, still satisfied the particularity requirements of the Fourth Amendment. The motion to suppress was denied.

D. South Dakota

U.S. v. Nelson, CR. 09-40130-01-KES (S.D. 7-12-2010) -- Defendant was charged with one count of possession of child pornography. Prior to trial, defendant move to suppress evidence seized during a search of his residence, and for a Franks hearing on the validity of the warrant, arguing that the Task Commander for the SD Internet Crimes Against Children Task Force had falsified evidence. The court conducted an extensive inquiry into the investigation, including detailed discussion of IP and MAC addresses, and concluded that the Task Commander's affidavit did not establish probable cause for the issuance of a warrant. The motion to suppress and for a Franks hearing was granted.

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11th Circuit Court of Appeals

U.S. v. Rothenberg, No. 08-17106 (11th Cir. 6-29-2010) -- Defendant pled guilty to sexual exploitation of a minor and possession of a trial, and was sentenced to 300 months in prison plus a term of supervised release for life. Defendant appealed the sentence, and in particular, the District Court's finding of a pattern of prohibited sexual conduct. The Court of Appeals noted that the trial court's finding was based on two Internet chat printouts found in defendant's apartment in which he appeared to coach others on how to sexually assault underage boys. Defendant argued that absent some overt step, the chats themselves cannot be considered part of a pattern of conduct.

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