USA v. Hay

• Decision Date: 24 October 2000
• Docket Number: No. 99-30101,99-30101
• Citation: 231 F.3d 630
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ALEXANDER MONTAGU HAY, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 630

231 F.3d 630 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ALEXANDER MONTAGU HAY, Defendant-Appellant.

No. 99-30101

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted May 3, 2000

Filed October 24, 2000

[Copyrighted Material Omitted] Jonathan S. Solovy, Bell, Flegenheimer & Solovy, Seattle, Washington, for the defendant-appellant.

Floyd G. Short, Assistant United States Attorney, Seattle, Washington, for the plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington. D.C. No. CR-98-00340-BJR

Barbara J. Rothstein, Chief District Judge Presiding

Before: Pamela Ann Rymer and Thomas G. Nelson, Circuit Judges, and James R. Browning, District Judge.^*

RYMER, Circuit Judge:

Alexander Hay appeals his conviction following a jury trial for possession and distribution of child pornography by means of a computer. Hay contends that the search of his entire computer system based on a seven-minute, six-month old transmission of 19 images of child pornography was unreasonable; he faults the district court for allowing the jury to view three exhibits containing child pornography; and he submits that his conviction is invalid under our recent decision in Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999). We disagree, and affirm.

I

Dr. Blair Evans was arrested on November 29, 1996 in Ontario, Canada for trafficking in child pornography. He had more than 20,000 computer graphic images of child pornography and was actively trading and exchanging child pornography with individuals in the United States through the Internet. According to the File Transfer Protocol (FTP)² log in Evans's computer, two days before his arrest he transmitted 19 graphics files (including images depicting an adult male and a prepubescent girl of about five years engaging in sexual conduct) from his computer to a computer with the Internet address of 128.95.25.1. The Internet address 128.95.25.1 -a unique identifier assigned to a specific computer connected to the Internet -was affiliated with the University of Washington.

On February 27, 1997, Ontario police provided this information to the United States Customs Service attache in Canada. On March 11, 1997, the attache forwarded it to the Customs office in Seattle, Washington. Pursuant to a Grand Jury Subpoena issued in the Western District of Washington, the University of Washington informed Customs that the Internet address to which Evans sent the images was assigned to a computer within the University's Steven's Court housing facility. The University further advised Customs that this Internet address was associated with a particular Ethernet interface address (00C0F009C4DE) -a unique identifier for a network card plugged into a computer. This Ethernet interface address was also associated with a second Internet address (128.95.25.203) which the University had assigned to Alexander Hay, an Electrical Engineering major. Both Internet addresses were associated with a network port wired to the Steven's Court apartment occupied by Hay. University records showed that the computer in this apartment was configured sometimes to use the address 128.95.25.1 and other times to use the address 128.95.25.203.

The University also informed Customs agents of Hay's web site, which Customs Special Agent David Galante accessed on April 23, 1997. On it, Hay described extensive contacts with children, including teaching skiing to preschoolers, working as a preschool day camp counselor, babysitting, volunteering as a YMCA swim instructor for preschoolers, working with a four-year old autistic girl, and spending 400 hours as a volunteer in early primary school classrooms.

On May 5, 1997, Customs Special Agent Kristina Laider made an undercover telephone call to Hay at his apartment. The person who answered identified himself as Hay. Laider said she was conducting a computer usage survey and in response to her questions, Hay stated that he owned a computer and kept it in his apartment; that he had an Ethernet card; that he currently used the University of Washington as an Internet Service Provider; and that he was the only user of his computer.

Galante made out a search warrant affidavit which stated that the 19 images sent by Evans were likely to be found in Hay's computer, described how traders and collectors of child pornography interact over the Internet, and explained that forensic experts could recover even deleted files. On May 28, 1997, a United States Magistrate Judge approved Galante's application and issued a warrant to search Hay's apartment and to seize Hay's computer hardware, software, records, instructions or documentation, and depictions of child pornography. Agents executing the warrant on May 29, 1997 at Hay's apartment seized his computer along with seven Zip cartridges labeled "Linux Backup," software, computer disks, and video tapes. One of the two hard drives on Hay's computer contained hundreds of computer graphics files depicting sexually explicit conduct involving minors, including "thumbnails" which enable the viewer to see multiple pictures simultaneously on the same screen, and an FTP log recording about 50 transactions with Evans.

After Hay was indicted for possessing and distributing child pornography, he moved to suppress this evidence for lack of probable cause to search and on the ground of staleness, but the district court denied the motion. The district court also denied Hay's motion to reconsider and to hold an evidentiary hearing in order to challenge the veracity of Galante's affidavit under Franks v. Delaware, 438 U.S. 154 (1978). The jury found Hay guilty of possession, receipt, reproduction and transportation of child pornography, and he has timely appealed.

II

A

Relying on United States v. Lacy, 119 F.3d 742 (9th Cir. 1997), and United States v. Weber, 923 F.2d 1338 (9th Cir. 1990), Hay contends that the government failed to establish probable cause because there was no evidence of a pattern of unlawful activity. Rather, in his view, the warrant affidavit merely reflected that Evans sent to an Internet address, sometimes linked to Hay's multi-user computer, a single transmission containing 19 images out of the 20,000 computerized images of child pornography found in Evans's computer system. Hay contends that the district court's ruling disregards the fact that pornographic materials can be received by "SPAM"³ as well as unintentionally by programs, such as the one Hay wrote, which, according to Hay, would automatically download files in bulk for later viewing. In addition, he notes, persons sending Internet transmissions using FTP can do so anonymously, further vitiating the basis for probable cause in this case.

In Weber, the defendant placed an order for four pictures of child pornography. Anticipating their delivery at his house, customs agents obtained a warrant to search for books, magazines, photographs, films, video tapes and undeveloped films depicting minors engaged in sexually explicit conduct based on an affidavit which stated the agent's belief that those items, as well as the four pictures which would arrive as a result of the controlled delivery, would be there. The boilerplate recited how the agent expected "child molesters," "pedophiles" and "child pornography collectors " to behave, but we found this was inadequate to support the application because there was no evidence in the affidavit indicating that Weber was any of those things. Id. at 1341. In these circumstances, we held that the affidavit was insufficient to establish probable cause that Weber would have anything other than the four pictures at his house.

In Lacy, Customs officials learned that child pornography from a Danish computer bulletin board system called BAMSE was being brought into the United States by computer, and that an individual later identified as the defendant had downloaded six picture files containing computerized visual depictions known as GIFs. Based on a warrant affidavit which stated that Lacy downloaded at least two GIFs depicting minors engaged in sexual activity from BAMSE, a warrant was issued authorizing the search of Lacy's apartment and seizure of computer equipment and records, and documents relating to BAMSE. We held that this sufficed for probable cause to believe that Lacy actually received and possessed computerized visual depictions of child pornography.

Galante's affidavit is quite different from the affidavit we faulted in Weber. It contains a good deal of evidence from which the magistrate judge could conclude that the 19 files transmitted via FTP to Hay's Internet address would be found on Hay's computer system.⁴ Evans's log contained separate entries for each of the 19 file transfers and the transfers occurred at different times over a seven-minute period. The 19 files were not sent to Hay within or attached to an e-mail message; indeed, they did not go to Hay's e-mail address (ahay@dilbert.stc.housing.washington.edu) but to his Internet address (128.95.25.1) via FTP. FTP is a protocol for the direct transfer of files and has nothing to do with e-mail. Evans's files were downloaded directly into the "incoming " directory of Hay's computer. Galante's affidavit also recites information obtained from the University's records indicating that the computer located in Hay's apartment is sometimes configured to use the specific Internet address to which Evans transmitted, and from Hay himself that he is the exclusive user of the computer in his apartment. Further, there was evidence of Hay's extreme interest in young children as reflected in what Hay published on his home page. In light of these facts and the fact that Evans had been identified by Ontario police as an active trader of child pornography to the United States, the magistrate judge was entitled to infer that he and Hay had communicated prior to the 19 file transfers and that the transfers were...