U.S. v. Flyer
| Decision Date | 08 February 2011 |
| Docket Number | No. 08–10580.,08–10580. |
| Citation | 633 F.3d 911 |
| Parties | UNITED STATES of America, Plaintiff–Appellee,v.Andrew Edward FLYER, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Nina Wilder; Weinberg & Wilder; San Francisco, CA, for the appellant.Dennis K. Burke, United States Attorney, District of Arizona; Christina M. Cabanillas, Appellate Chief for United States Attorney; and Celeste Benita Corlett, Assistant United States Attorney, Tucson, AZ, for the appellee.Appeal from the United States District Court for the District of Arizona, Frank R. Zapata, District Judge, Presiding. D.C. No. 4:05–CR–01049–FRZ–GEE.Before: ANDREW J. KLEINFELD, A. WALLACE TASHIMA, and SIDNEY R. THOMAS, Circuit Judges.
Andrew Flyer appeals his conviction in federal district court under 18 U.S.C. § 2252 (2004) for two counts of attempted transportation and shipping of child pornography (Counts One and Two); one count of possession of child pornography on the unallocated space of a Gateway computer hard drive (Count Three); and one count of possession of child pornography on CDs (Count Four). Flyer contends that the evidence was insufficient to establish the jurisdictional and intent elements of his convictions on Counts One and Two and the possession element of his conviction on Count Three.1 We agree and reverse in part.
A. Preliminary Investigation and Execution of Search Warrant
On March 9, 2004, FBI Special Agent Robin Andrews, acting undercover from Tucson, Arizona, allegedly initiated a session on LimeWire, a peer-to-peer file sharing program. LimeWire and similar programs connect network participants directly and allow them to download files from one another. See Metro–Goldwyn–Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 919–20, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005). To download a file, a LimeWire user opens the application and inputs a search term. LimeWire then displays a list of files that match the search terms and that are available for download from other LimeWire users. When a user downloads a file using the LimeWire network, he or she causes a digital copy of a file on another user's computer to be transferred to his or her own computer. See Arista Records LLC v. Lime Group LLC, 715 F.Supp.2d 481, 494 (S.D.N.Y.2010).
Andrews launched LimeWire and typed in the search term “PTHC,” an apparent acronym for “pre-teen hardcore,” a term associated with child pornography. She identified a file titled “O–KIDDY–PTHC BW025.jpeg” and selected a host computer that appeared to have the file available for download. Andrews then clicked “browse host,” a LimeWire feature that allows users to view all the files available for download from a host computer's “share” folder. The host computer Andrews had selected listed 261 files available for download, including around twenty files with titles associated with child pornography. Andrews downloaded “O–KIDDY–PTHC BW025.jpeg” from the host computer. She tried to download a second file from the same host, but was unsuccessful.
On March 10, 2004, Andrews allegedly again used LimeWire to search the term “PTHC” and determined that the same host computer had sixty files available for download with titles associated with child pornography. Andrews downloaded one file containing such a title, and tried, but was again unable, to download a second file from the host computer.
Andrews identified the Tucson, Arizona, residential address associated with the host computer by contacting an internet access provider in Arizona. Flyer lived at the Tucson address, along with his father, mother, and sister.
After securing a warrant, agents executed a search of the property on April 13, 2004. They seized from Flyer's bedroom a Gateway computer, loose media (CDs, floppy disks, and DVDs), and an Apple laptop. They also seized a thumb drive and a family computer that did not contain any child pornography.
Agents interviewed Flyer, who admitted, according to Andrews's testimony, that he used the Gateway computer and Apple laptop in his bedroom, that he had downloaded, saved, and shared child pornography through LimeWire, and that he knew it was illegal to possess child pornography. Flyer also admitted to having saved a minimal amount of child pornography onto his shared folder on LimeWire and around one hundred child pornography files on a computer.
B. Forensic Examination of Electronic Devices1. The Apple Laptop
FBI Special Agent Steven Gumtow examined Flyer's Apple laptop. He determined that LimeWire had been installed on the laptop and that the setup required the laptop user to manually activate LimeWire each time the laptop was turned on. When a user runs LimeWire, all files on the user's computer located in folders designated as “shared” folders are made available for upload to other LimeWire users. Gumtow testified that the settings on Flyer's laptop were customized to cap the maximum number of uploads at one file at a time by up to twenty individuals. Defense computer forensics expert Tami Loehrs, on the other hand, testified that the upload bandwidth setting on the laptop was set to zero, which allows only a small amount of data to be leaked out.
The directories set up for sharing on the laptop through LimeWire included the directory “Z” and its folder “R@Y,” two directories where Flyer had admitted to saving child pornography. In a subfolder of “R@Y,” Gumtow discovered files identical to those that Andrews claimed to have downloaded.
Before Gumtow performed his analysis, the Apple laptop had been in the custody of FBI Special Agent Robert J. Meshinsky. While attempting to image the laptop's hard drive, Meshinsky mistakenly allowed his own computer's operating system to mount on the laptop and access the files stored there. He later testified that he noticed the problem approximately one hour after he had booted up the laptop. He stopped the process, researched another method to use, and successfully copied the hard drive. In his report, Meshinsky made no mention of the improper mounting of the target hard drive. He stated that “[a]pproved procedures and protocols were used as tested and verified by the FBI,” a statement which he later admitted to be false.
Defense expert Loehrs independently examined the Apple laptop and discovered that 6,100 files listed last access dates of November 3, 2005, when Meshinsky examined the machine, and that an additional 63,000 files—including the two files allegedly downloaded by Andrews on March 9 and 10, 2004—listed last access dates of March 18, 2005, between 2:05 p.m. and 3:53 p.m. Both dates post-dated seizure of the laptop from Flyer's residence. No information could be recovered regarding any previous access dates for the two files. Meshinsky reviewed Loehrs's findings and agreed with them.
2. The Gateway Computer
FBI Special Agent Christopher Pahl examined the hard drive from the Gateway computer. After duplicating the hard drive to preserve the evidence, Pahl searched the duplicate drive using the term “r@ygold,” which is associated with child pornography. The search produced numerous positive hits all over the drive, but the only images believed to be child pornography and later listed in the indictment were found in “unallocated space.”
3. The Loose Storage Media.
FBI Analyst Tammy Lepisto examined the CDs, DVDs, and floppy disks seized from Flyer's bedroom. Lepisto determined that twenty-six CDs contained images believed to be child pornography. One file Lepisto located on Flyer's CDs was titled “r@ygold style ST 06122.jpeg.” That file, among others, was later listed under Count Four of the indictment.
C. Indictment
A superceding indictment filed in January 2006 charged Flyer with two counts of attempted transportation and shipping of child pornography—specifically, the images allegedly downloaded by Andrews on March 9 and 10, 2004—in violation of 18 U.S.C. § 2252(a)(1) and (b)(1) (Counts One and Two); possession of child pornography on the Gateway computer on or about April 13, 2004, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2) (Count Three); and possession of child pornography on CDs, in violation of § 2252(a)(4)(B) and (b)(2) (Count Four).2 The jury returned guilty verdicts on all four counts, and the district court sentenced Flyer to concurrent terms of 60 months imprisonment.
Flyer contends that the district court erred when it denied his motion to dismiss Counts One and Two on due process grounds and to suppress evidence pursuant to United States v. Loud Hawk, 628 F.2d 1139, 1152 (9th Cir.1979) (en banc) (Kennedy, J., concurring), overruled on other grounds by United States v. W.R. Grace, 526 F.3d 499, 505–06 (9th Cir.2008) (en banc), based on the FBI's mishandling of his Apple laptop.
We review de novo a due process claim involving the government's failure to preserve potentially exculpatory evidence. United States v. Cooper, 983 F.2d 928, 931 (9th Cir.1993). We review factual findings, such as the absence of bad faith, for clear error. United States v. Hernandez, 109 F.3d 1450, 1454 (9th Cir.1997); United States v. Booker, 952 F.2d 247, 249 (9th Cir.1991).
The government's failure to preserve potentially exculpatory evidence rises to the level of a due process violation if a defendant can show that the government acted in bad faith. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). Bad faith requires more than mere negligence or recklessness. Id. If the government destroys evidence under circumstances that do not violate a defendant's constitutional rights, the court may still impose sanctions including suppression of secondary evidence. Loud Hawk, 628 F.2d at 1152 (Kennedy, J., concurring). In so doing, the court must balance “the quality of the Government's conduct and the degree of prejudice to the accused.” Id. “The Government bears the burden of...
To continue reading
Request your trial
-
Scott v. Sherman
... ... McIVER: My client does not hold an identification card, your Honor. THE COURT: All right. All right. Mr. Waugh, Mr. McIver, that brings us to basically the end here. It sounds to me, based on what I've heard as far as the offer of proof, as well as the argument of the parties, that the ... Flyer , 633 F.3d 911 (9th Cir. 2011). (ECF No. 4 at 38-39.) The narrow question of law presented in Tecklenburg was whether the defendant could be ... ...
-
United States v. Moreland
... ... United States v. Flyer, 633 F.3d 911, 918 (9th Cir.2011) (citing United States v. Wright, 625 F.3d 583, 595 (9th Cir.2010)). However, the defendant did not raise the ... ...
-
United States v. Lopez
... ... Lopez attempted to entice a minor to engage in sexual penetration, as is required to violate the Guam statute." In other words, Lopez asks us to interpret Section 2422(b) as requiring the Government to charge a predicate offense and to prove Guam would have had jurisdiction to prosecute him ... Flyer , 633 F.3d 911, 917 (9th Cir. 2011) (citation omitted). 37 "We say theoretically because, while plain-error review appears more stringent in ... ...
-
In re Search Warrant
... ... no greater power to issue ex ante instructions as part of the constitutional mandate, and the Defender General argues to the contrary urging us to ground our decision on the Vermont Constitution, this case is fundamentally about the reach of the Fourth Amendment. The judicial officer relied ... See, e.g., United States v. Flyer, 633 F.3d 911, 918 (9th Cir.2011) (explaining how government can retrieve deleted information from unallocated space on computer); Burgess, 576 ... ...