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

United States Court of Appeals
For the First Circuit
No. 12-1639
UNITED STATES OF AMERICA,
Appellee,
v.
BRIAN K. ROGERS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lynch, Chief Judge,
Stahl and Thompson, Circuit Judges.
Robert C. Andrews for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief,
for appellee.
April 30, 2013
STAHL, Circuit Judge. Brian Rogers was convicted by a
jury in the District of Maine of possessing child pornography in
violation of 18 U.S.C. § 2252A(a)(5)(B). Rogers now appeals his
conviction, arguing that the government did not prove that he
knowingly possessed the child pornography that was found on a
laptop he sold to a pawn shop. Rogers also challenges the district
court's award of $3,150 in restitution to a victim depicted in the
pornography; he asserts that the government failed to establish a
causal connection between his conduct and any harm to the victim.
After careful consideration, we affirm both the conviction and the
restitution award.
I. Facts & Background
The following facts are drawn from the trial record and,
in light of Rogers's challenge to the sufficiency of the evidence
supporting his conviction, are presented in the light most
favorable to the jury verdict. United States v. Valerio, 676 F.3d
237, 240-41 (1st Cir. 2012).
On July 15, 2008, Rogers's then-wife, Heather Rogers,
sold a laptop computer to Coastal Trading and Pawn in Brunswick,
Maine. Later that day, she returned with Rogers himself, who sold
a second laptop to the store. In keeping with Coastal Trading's
usual practice, the clerk asked for, and received, the passwords to
both laptops, to allow the store's staff to access the computers
and restore them to their factory settings.
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The next day, Coastal Trading's computer technician began
the process of preparing the second laptop for resale. He turned
it on and entered the password that Rogers had provided. In an
effort to find the program that would restore the laptop to its
factory settings, he looked in the Windows recycle bin. There, he
discovered a video file captioned "My 15-Year Old Sister." This
discovery prompted him to search the laptop for other videos; he
found "quite a few" more. He viewed portions of a few videos and
saw "[y]oung children involved in sexual acts." He immediately
notified the store manager, who called the Brunswick police.
A few days later, Brunswick Detective William Moir
collected the laptop and the associated sales paperwork from
Coastal Trading and took them to the police station. Until Moir
came to collect it, the laptop remained in the store's back room,
and no one accessed it. Moir, who had specialized electronic
forensics training, removed the laptop's hard drive and attached it
to a "write blocker," which allowed him to view the drive's
contents without altering them. After finding some files with
names "indicative of child pornography," he took the drive to the
Maine State Police Computer Crimes Unit for further analysis.
There, he worked with an analyst to copy and review the contents of
the drive. They found both videos and still images of children
engaged in sex acts.
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Detective Moir soon returned to Coastal Trading and
seized the laptop that Heather Rogers had sold to the store on her
first visit. Nothing of significance was found on that first
computer. Moir then obtained a search warrant for Rogers's home,
which he and other law enforcement officers executed on July 31.
Heather Rogers was there when they arrived; Brian Rogers returned
home during the search. When the officers came upon a desktop
computer and a case containing compact discs, they seized both.
The hard drive of the second laptop -- the one on which
the store employees initially found child pornography -- was
subsequently subjected to a more comprehensive forensic inspection.
Chris Hull, an analyst with the Computer Crimes Unit, used forensic
software to examine the hard drive's contents. He found two user
accounts on the drive: an account called "Mingan" (also designated
"Admin") and a default "guest" account. He also found six child
pornography videos in a "shared" folder associated with the
"Mingan" user account, and still images depicting child pornography
in the "Temporary Internet Files" and "lost files" folders. The
shared folder was created by LimeWire, a peer-to-peer file-sharing
program that Hull found in the recycle bin. The Temporary Internet
Files folder, as Hull testified at trial, stores files from
frequently visited websites that otherwise would have to be loaded
remotely, with the goal of speeding up the user's web browsing
experience.
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Hull also examined the "index.dat" file, which records
the computer user's activity, whether it be visiting websites or
opening files on the computer itself. The index file reflected
numerous visits to websites like "nymphets-first-time-sex.com"
(which was also bookmarked in the laptop's default web browser,
along with "Natural Lolitas" and "innocent-girl.com."). And Hull
found "cookies" (widely used data packets that allow websites to
recognize returning users1) from various websites, including "son-
porno-schoolgirls," a Yahoo user account called "Brian87_2006," and
the social networking site Myspace (which appeared to be associated
with the same login information as the Yahoo account). Indeed,
Detective Moir found a Myspace page for a user called "Mingan"; one
of the account's three Myspace "friends" was Heather Rogers, Brian
Rogers's wife. As it happens, Hull determined that the password
for the user account "Mingan" on the laptop was "Heather," and the
password hint associated with that account was "My baby."
Additionally, Hull found ten "infections," i.e., malware
programs, on the laptop. To determine whether they might be
responsible for the presence of child pornography, he installed the
same infections on a test machine that replicated the conditions on
the laptop and let them run for a week. No child pornography
appeared on the test machine.
1
See In re Pharmatrak, Inc., 329 F.3d 9, 14 (1st Cir.
2003) (describing cookies).
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Hull examined the desktop computer seized from Rogers's
home as well. Using the same forensic tools he used on the laptop,
he uncovered child pornography images. These files were located in
unallocated space, indicating that the files had been deleted by a
user but not yet overwritten with new data. He also found two user
accounts on the desktop: "Bunny" and "NEXCOM," the latter of which
was also captioned "Mingan." Associated with the latter account
were internet bookmarks for websites like "LolitasBBS-freeware" and
"nasty-virgins.org."
On October 22, 2008, a grand jury indicted Rogers on one
count of possessing child pornography in violation of 18 U.S.C.
§§ 2252A(a)(5)(B), 2256(8)(A).2 After rulings by both the district
court and this court related to the suppression of certain
statements Rogers made during the search of his house, see United
States v. Rogers, 659 F.3d 74 (1st Cir. 2011), the case went to
trial. The jury, after hearing testimony about all the events
related above, found Rogers guilty. The district court sentenced
Rogers to sixty months' imprisonment and eight years' supervised
release. As discussed in more detail below, the district court
2
Rogers was charged with possessing the child pornography
found on the laptop, but not the images found on the desktop. At
trial, he objected to testimony regarding the desktop computer on
the ground that it was other-bad-acts evidence under Federal Rule
of Evidence 404(b). The district judge allowed the testimony on
the ground that it went to intent, knowledge, or absence of
mistake, see Fed. R. Evid. 404(b)(2), and gave a cautionary
instruction to the jury. Rogers has not renewed his evidentiary
argument on appeal.
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also ordered Rogers to pay $3,150 in restitution to "Vicky," a
woman who was depicted in some of the child pornography materials
found on the laptop.
II. Analysis
A. Sufficiency of the Evidence
A sufficiency-of-the-evidence challenge to a jury's
guilty verdict will not succeed unless no rational jury could have
concluded that the government proved all of the essential elements
of the offense beyond a reasonable doubt. United States v. Green,
698 F.3d 48, 56 (1st Cir. 2012). As noted above, we evaluate the
facts and draw all reasonable inferences in favor of the verdict.
Id. We do not weigh evidence or assess credibility. United States
v. Tavares, 705 F.3d 4, 18 (1st Cir. 2013).
18 U.S.C. § 2252A(a)(5)(B) creates criminal penalties for
any person who "knowingly possesses, or knowingly accesses with
intent to view, any . . . computer disk, or any other material that
contains an image of child pornography" that was produced or
transported in interstate commerce, including via computer. Here,
it is undisputed that the images found on the laptop constituted
child pornography and that the interstate commerce element was
satisfied. Rogers's challenge focuses instead on the question of
knowing possession. To satisfy the statute's knowing-possession
requirement, the government must show that Rogers possessed, and
knew he possessed, child pornography. See United States v.
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X-Citement Video, Inc., 513 U.S. 64, 78 (1994); United States v.
Hilton, 167 F.3d 61, 75 (1st Cir. 1999), disapproved of on other
grounds by Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002).
To begin with, there can be no serious dispute that the
child pornography found on the laptop was downloaded knowingly and
deliberately. The web browser's cookies and indexed history
indicated that someone had used the browser to make numerous visits
to websites related to, or with names indicative of, child
pornography, including "nymphets-first-time-sex.com," "Natural
Lolitas," and "innocent-girl.com." See United States v. Pruitt,
638 F.3d 763, 767 (11th Cir. 2011) (conviction was supported by "a
record of visits to websites with a child-pornography connection");
accord United States v. Ramos, 685 F.3d 120, 132 (2d Cir. 2012);
United States v. Kain, 589 F.3d 945, 949 (8th Cir. 2009). Further,
the discovery of child pornography in the Temporary Internet Files
folder suggests that those images were downloaded when a user
visited websites hosting them. Cf. Kain, 589 F.3d at 948. And, as
the government observes, the fact that a user bookmarked some of
these websites supports the conclusion that they were visited
deliberately. Cf. United States v. Kornhauser, No. 12-135-CR L,
2013 WL 1197751, at *2 (2d Cir. Mar. 26, 2013) (summary
affirmance); United States v. McNealy, 625 F.3d 858, 870 (5th Cir.
2010).
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To be sure, we must be cognizant of "the prevalence and
sophistication of some computer viruses and hackers that can prey
upon innocent computer users" by placing child pornography on their
machines, but "the specter of spam, viruses, and hackers must not
prevent the conviction of the truly guilty." Pruitt, 638 F.3d at
766-67. Here, Hull's forensic analysis of the computer, which
included running the malware "infections" discovered on the laptop
on a test machine for over a week, all but ruled out the
possibility that the images had been downloaded by a virus without
the user's knowledge. And child pornography (along with a similar
pattern of web browsing) was found on the desktop computer seized
from Rogers's home, further diminishing the possibility that the
presence of the images and videos on the laptop was inadvertent.
Lastly, some of the files were found in the laptop's recycle bin,
suggesting that someone deliberately attempted to delete them (and
thus knew they had been downloaded). See Ramos, 685 F.3d at 132;
United States v. Bass, 411 F.3d 1198, 1202 (10th Cir. 2005). On
this record, there is no real possibility that this case involved
unknowing possession. Cf. Note, Child Pornography, the Internet,
and the Challenge of Updating Statutory Terms, 122 Harv. L. Rev.
2206, 2211-14 (2009) (describing ways that a person could
unintentionally possess or receive child pornography).3
3
There was also no testimony realistically suggesting that
the images could have been downloaded or installed after Rogers
sold the laptop to Coastal Trading. The pawn shop's employees and
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The only remaining question is whether the government
proved that the person who knowingly possessed the images and
videos was Rogers himself. We think it did. The user account
"Mingan," which was the only user-created account on the laptop,
was strongly associated with Rogers, and child pornography videos
were found in the shared folder associated with that user account.
The password hint for the "Mingan" account was "My baby" and the
password itself was Rogers's wife's name (Heather). Rogers himself
provided this password to Coastal Trading when he sold the laptop,
and has not pointed to evidence suggesting that anyone else knew
it. Further, Detective Moir discovered a Myspace profile named
"Mingan," one of whose Myspace friends was Heather Rogers. The
Myspace profile appeared to share login information with a Yahoo
account that the laptop had been used to access: Brian87_2006.
Brian, of course, is Rogers's name, and he was born in 1987. See
United States v. Boll, 635 F.3d 340, 341 (8th Cir. 2011) (the fact
that a computer was registered to "Terry," the defendant's first
name, supported the conclusion that he knowingly possessed child
pornography found on it); United States v. Koch, 625 F.3d 470, 478
(8th Cir. 2010) (conviction was supported by the fact that "user
all the law enforcement personnel who handled the laptop testified
that the computer was not altered in any way after Rogers left it
at the store. Further, the laptop's operating system indicated
that the child pornography files had been created well before
Rogers sold the computer to Coastal Trading (although, as Rogers
points out, such information is not impervious to manipulation).
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names on both the computer and flash drive [on which child
pornography were found] were variations on [the defendant's] first
name"). The web browser's cookies showed access to the same Yahoo
account, along with visits to the disturbingly named websites
discussed above. The web browser also included a bookmark for the
U.S. Navy's website; Rogers was a member of the Navy at the time of
his arrest.4
In light of all this evidence, and the reasonable
inferences that can be drawn from it, we think the jury's decision
to convict was wholly rational. The evidence amply established
that Rogers possessed and used the laptop, and supported the
reasonable inference that he was the one who searched for and
knowingly downloaded the child pornography. Rogers's suggestions
that someone else somehow downloaded or placed the images and
videos on the laptop are simply not supported by any evidence
adduced at trial. Hull's testimony all but extinguished the
possibility that a virus put the images and videos there, and there
4
Less forceful is the government's suggestion that Rogers
must have been the laptop's user because it contained computer
games with "pugilistic" names like "Dungeons and Dragons" and
"World of Warcraft," which the government says are not "games that
might appeal to a female," i.e., Heather Rogers. As best we can
tell, this argument is simply based on outmoded assumptions about
what sort of entertainment appeals to women. See Nick Breckon,
Nielsen Estimates 400,000+ Female World of Warcraft Players in US,
Shack News (Apr. 8, 2009 2:27 p.m.), http://www.shacknews.com/
article/58076/nielsen-estimates-400000-female-world (last visited
Apr. 25, 2013) (reporting that a Nielsen Company survey found
428,621 female World of Warcraft players in the United States).
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was no suggestion that a third party could have done it after
Rogers sold the laptop. Nor was there any testimony that, before
the computer's sale, anyone other than Brian and Heather Rogers had
access to it (assuming that she even knew the password, which is
certainly possible but is not established by any evidence in the
record). Thus constrained, Rogers is forced to posit that his now-
ex-wife was responsible for the child pornography found on the
laptop, but that assertion finds essentially no support in the
record, and the jury was entitled to dismiss it. Consequently, we
reject Rogers's challenge to the sufficiency of the evidence
supporting his conviction. Cf. United States v. Salva-Morales, 660
F.3d 72, 75 (1st Cir. 2011) (per curiam).
B. Restitution
The district court ordered Rogers to pay $3,150 in
restitution to "Vicky," a woman whose abuse at the hands of her
father at age ten or eleven was depicted in two minutes of video
found on the laptop. The order was made pursuant to 18 U.S.C.
§ 2259, which prescribes a mandatory restitution scheme for victims
of certain crimes, including the possession, transportation, or
distribution of child pornography. The statute calls for
restitution of "the full amount of the victim's losses," including
medical services; therapy or rehabilitation; transportation,
housing, or child care costs; lost income; attorneys' fees and
costs; and "any other losses suffered by the victim as a proximate
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result of the offense." Id. § 2259(b)(1), (3). The "victim" is
"the individual harmed as a result of a commission of a crime."
Id. § 2259(c).
We first considered restitution to a child pornography
victim under § 2259 in United States v. Kearney, 672 F.3d 81 (1st
Cir. 2012), cert. dismissed, 133 S. Ct. 1521 (2013), which also
involved restitution to Vicky.5 In Kearney, we identified three
issues related to the restitution inquiry: (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. Id. at 93. We held that Vicky was
plainly a victim of Kearney's crime because she was harmed by the
continuing possession and dissemination of child pornography
containing her image, which he perpetuated. Id. at 94. As to
causation, we joined a number of other circuits in applying a
proximate causation standard (although the circuits' applications
of that standard have varied), and found "that the proximate cause
requirement was satisfied here, because Kearney's actions resulted
in identifiable losses as outlined in the expert reports and
Vicky's victim impact statements." Id. at 99-100. Finally, we
upheld the district court's award of $3,800 as reasonable. We
5
Unfortunately, video of Vicky's abuse has been widely
disseminated online, leading to numerous child pornography cases in
which material depicting her has played a role.
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found no error in the district court's decision to base the
restitution award on amounts that Vicky had received in other
cases, and we noted that "the restitution award was small, both in
absolute terms and as a proportion of the total amount of the
restitution request," id. at 101, which came to $226,546.10, id. at
86.
Having sketched the terrain, we turn to the restitution
award in this case. "We review orders of restitution for abuse of
discretion, reviewing legal questions de novo and subsidiary
findings of fact for clear error." Id. at 91. Here, our analysis
is straightforward. As Rogers's counsel acknowledged at oral
argument, Vicky's restitution request in this case was supported by
precisely the same set of materials that she submitted in Kearney:
"affidavits and a letter provided by Vicky's attorney, with
attached documentation." Id. at 85. Here, as in Kearney, those
materials amply established "that Vicky has suffered immensely
. . . from the continued dissemination and viewing of" material
depicting her abuse. Id. Given that the underlying crimes in the
two cases are similar, that the materials supporting the
restitution requests are identical, and that there is no evidence
that Vicky has been made whole, we see no basis to reach a result
here that differs from the one we reached in Kearney. Certainly,
Rogers cannot show that the district court abused its discretion by
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ordering him to pay slightly less than Kearney had to pay on such
a similar record.
Indeed, rather than asserting that this case is
materially different from Kearney,6 Rogers devotes much of his
energy to arguing that we should have adopted a stricter causation-
of-harm standard like that employed by some other courts. E.g.,
United States v. McGarity, 669 F.3d 1218, 1269-70 (11th Cir.),
cert. denied, 133 S. Ct. 374 (2012). But Kearney remains binding
on us. United States v. Troy, 618 F.3d 27, 35 (1st Cir. 2010); see
also United States v. Chiaradio, 684 F.3d 265, 284 (1st Cir. 2012)
(applying Kearney). We acknowledge that Kearney left unanswered
some questions about how the restitution analysis works; for
example, the district court and the attorneys in this case wrestled
conscientiously with the question of how to settle on a precise
amount to award the victim. Future cases may call for further
refinement of the causation and reasonableness inquiries. But this
case, which Rogers has not seriously attempted to distinguish from
Kearney, does not. Consequently, we affirm the district court's
award of $3,150 in restitution.
III. Conclusion
For the foregoing reasons, we affirm Rogers's conviction
and the district court's restitution award.
6
For example, Rogers does not attempt to distinguish the
notice of his offense that Vicky's attorney received in this case
from the notice given in Kearney. See 672 F.3d at 85 & n.4, 100.
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