U.S. v. Carani

• Decision Date: 06 July 2007
• Docket Number: No. 06-2007.,06-2007.
• Citation: 492 F.3d 867
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fabio CARANI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

492 F.3d 867

UNITED STATES of America, Plaintiff-Appellee, v. Fabio CARANI, Defendant-Appellant.

No. 06-2007.

United States Court of Appeals, Seventh Circuit.

Argued April 9, 2007.

Decided July 6, 2007.

Kruti Trivedi (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Erik R. Guenther (argued), Hurley, Burish & Stanton, Madison, WI, for Defendant-Appellant.

Before EASTERBROOK, Chief Judge, and KANNE and WILLIAMS, Circuit Judges.

KANNE, Circuit Judge.

Fabio Carani was charged with one count of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), and two counts of knowingly receiving child pornography in the form of certain computer files in violation of 18 U.S.C. § 2252A(a)(2)(A). A jury found Carani guilty of possession, but returned a verdict of not guilty as to one of the receipt counts, and was unable to reach a unanimous decision as to the other receipt count. The district court sentenced Carani to seventy-two months' imprisonment. Carani appeals both his conviction and sentence. Finding no error, we affirm.

I. BACKGROUND

Carani is an Italian immigrant who moved to the United States in 1972. He, along with his wife Natza, owned a computer. On this computer, Carani used a program called Kazaa Lite ("Kazaa").

Kazaa is a peer-to-peer file sharing program through which users may download files (music, videos, text, etc.) from the computers of other Kazaa users. Users search for files using search terms as they would in a web browser. Kazaa returns a list of available files that fit the users' search criteria. Users may gain more information about the files by hovering over the file name with the computer cursor. These files are located on the computers of other Kazaa users, not on the Internet at large. The purpose of Kazaa is to allow its users to share such files with each other. When files are completely downloaded or shared through Kazaa, a record of that activity is logged on the user's computer in a database located in what we will call the ".db folder."

Files that are downloaded using Kazaa are placed, by default, in the user's "My Shared Folder." If a user does not wish to allow other users to access his files, he may change his Kazaa settings so that he may download files from others' computers, but they may not download files from his computer. In order to encourage users to share their files, Kazaa employs a participation level system. Participation levels range from 0 to 1,000, and increase with the number of files the user shares. When multiple users attempt to download the same file, they are placed in a queue. Users with higher participation levels are given priority over those with lower participation levels. Thus, a user who shares his files with others will be able to more quickly and easily download the files that he wants from other Kazaa users.

In February 2005, agents in the Cyber Crimes Unit of the Department of Homeland Security, Immigration and Customs Enforcement ("ICE"), obtained a warrant to search Carani's residence. During the search, Senior Special Agent Jason Varda found Carani's computer. It was powered on, connected to the Internet, and running Kazaa at the time. Through Kazaa, Carani's computer was actively downloading files from other Kazaa users, and allowing other Kazaa users to download files on Carani's computer. Agent Varda photographed the screen, which showed that another user was attempting to download a file by the name "incest porn, a little girl has sex with an adult guy." The lower right of the computer screen indicated: "Connected as default user at Kazaa, sharing 214 files."

After photographing the computer screen, Agent Varda disconnected the computer from its power supply. He removed the hard drive and connected it to a write-blocking device to ensure that no data entered the hard drive. Agent Varda then used a software program called En-Case to preview all of the files on the hard drive, including those that had been deleted. The preview revealed a number of suspected child pornography videos.

Agents interviewed Natza during the search. Natza indicated that she and Carani had watched videos of child pornography—sometimes in their entirety—on their computer and then deleted them. Meanwhile, Carani agreed to accompany agents to the Highland Park police department. At the station, he was advised of his constitutional rights orally and in writing, and he agreed to be interviewed. Initially, Carani told the agents that he had come across child pornography while searching for adult pornography and had seen it about ten times. He said that when this happened, he would watch the video and then delete it, and that he had never saved any child pornography on his computer. Later, Carani said that he had seen "tons" of child pornography, and that he may have had one video saved.

The agents took a break from the interview to consult with the United States Attorney's Office. When they returned, Carani admitted that he had not been entirely forthcoming with them. Carani said that he used terms such as "pedo" and "r@ygold" to search Kazaa specifically for child pornography. Agents testified at trial that both of these terms are related to child pornography. Carani also told the agents that the saved video that he had mentioned before the break was titled "Segundo." Carani further indicated that he was particularly interested in videos involving family incest. He stated that he was no longer aroused by adult pornography, and had last viewed child pornography between two weeks and one month prior to the interview. He told the agents that he had never intentionally distributed child pornography, but that he may have done so inadvertently through the Kazaa program as he did not understand what the "My Shared Folder" did.

Carani then prepared the following written statement:

I have viewed child pornography in the past and then deleted it. I have only one saved right now in the saved section, which is "My Kazaa Lite." As far as computers are concerned I am a beginner at best. I did not distribute any of these videos on purpose, and I have no explanation as to how these videos were shared, but I never shared anything. I don[']t even know how to do so. The only explanation is that, as I viewed them and deleted them, they were automatically shared without my knowing of it. Some of these videos I stumbled upon by accident downloading other videos, and through [curiosity] I looked up some child pornography and again deleted it when I saw it. but the more I saw the more I felt that it was wrong to do so. My intentions were never to hurt anybody and forgive my ignorance but I did not know that this was against the law via the way it was done (through Kazaa Lite). I feel extremely bad about what happened, but I can say that I learned a lot through this experience.

Carani's hard drive was sent to Agent Skinner, an ICE forensic analyst with the Cyber Crimes Center in Fairfax, Virginia. Agent Skinner made further use of the EnCase software to analyze the contents of Carani's hard drive. Agent Skinner testified that he initially found two child pornography files in Carani's temporary Internet folders, both "BabyJ Sunshine" files, which he determined had been accessed through a web browser. Agent Skinner used EnCase to search for "BabyJ" references. His search turned up a number of such references, including references to the Kazaa My Shared Folder, and the term "pedophilia." Agent Skinner then constructed a search using a variety of terms associated with child pornography: pedophilia, young Lolita, kiddie, preteen, kindersex, pedo, BabyJ, Baby J, pedo video, illegal pedophilia, r@ygold, underage, incest, Lolita, kiddie porn, real kiddie, kinder, and child lover. This search of the hard drive returned a large number of separate and distinct hits, including 3,050 hits for "kiddie," 2,011 hits for "preteen," 3,603 hits for "pedo," 1,799 hits for "r@ygold," and 3,720 hits for "Lolita." Agent Skinner concluded that Carani was actively seeking out child pornography, as a home computer would not otherwise contain so many references to terms associated with child pornography. Agent Skinner also located numerous files in both the My Shared Folder and the .db folder whose names were suggestive of child pornography. Agent Skinner testified that when a user downloads a file from Kazaa, he is able to view the file name, and when he hovers over the file name, he can see a file description and keywords. Additionally, the Kazaa screen contains a display which notifies the user that another person is downloading a file from his computer, and indicates which file.

Agent Skinner also testified regarding Carani's Kazaa participation level. Carani's participation level was 771, out of a possible 1,000. Agent Skinner determined that Carani's high participation level was the result of a "hack"—an unauthorized technique which caused Carani's computer to download files from itself, and artificially boost his participation level. Use of the hack required action on the part of the computer user, and there was evidence that the hack had been used extensively. Agent Skinner further testified that Carani's computer and Kazaa program functioned properly.

Carani called Scott Ellis, a computer business consultant, to testify as an expert on his behalf. Ellis testified that Carani was not a sophisticated computer user, and did not know how to use his My Shared Folder on Kazaa. He also testified that a virus, worm, remotely located pedophile, or software glitches could have caused the references to child pornography found on the computer. Ellis described Kazaa as "a piece of rogue software" that "can behave in an uncontrolled fashion." R. 131, p. 464.

Natza and Carani both testified at trial. Each denied making statements to agents that they had watched child pornography, and explained that they only saw child pornography when they mistakenly came...