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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U.S. v. Bach, No. 09-2603 (1st Cir. 8-5-2010) [Unpublished] -- Defendant entered a conditional plea of guilty to one count of possession of child pornography and filed an appeal challenging various District Court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 permission to 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 the government failed to show that the videos depicted the girl engaged in "sexually explicit conduct." The District Court noted that under 18 U.S.C. § 2256(2)(A)(v), the definition of "sexually explicit conduct" includes in part "the lascivious exhibition of the genitals and pubic area." The Court then applied a six-part test set forth in United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986) [and subsequently adopted by the 3rd Circuit] to determine if the videos constituted "lascivious exhibition." Noting in particular the waist-high focus of the camera and the hidden nature of the recordings, the Court concluded that the jury could reasonably have found that the images were intended to be lascivious. The Court also referenced testimony from a forensics expert who examined the defendant's Internet history and discovered numerous sites featuring teen and young girls. The motion was denied.

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 backpack, 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. 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 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.

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. 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. 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.