659 F.3d 527 (6th Cir. 2011), 08-6465, United States v. Richards

Docket Nº:08-6465, 08-6503.
Citation:659 F.3d 527
Opinion Judge:GRIFFIN, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Timothy Ryan RICHARDS, Defendant-Appellant/Cross-Appellee.
Attorney:Kimberly S. Hodde, Hodde & Associates, Nashville, Tennessee, for Appellant. John-Alex Romano, United States Department of Justice, Washington, D.C., for Appellee. Kimberly S. Hodde, Hodde & Associates, Nashville, Tennessee, for Appellant. John-Alex Romano, United States Department of Justice, Was...
Judge Panel:Before: SILER, MOORE, and GRIFFIN, Circuit Judges. GRIFFIN, J., delivered the opinion of the court, in which SILER, J., joined. MOORE, J. (pp. 552-60), delivered a separate opinion concurring in the judgment only. KAREN NELSON MOORE, Circuit Judge, concurring in the judgment only.
Case Date:October 24, 2011
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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659 F.3d 527 (6th Cir. 2011)

UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant,

v.

Timothy Ryan RICHARDS, Defendant-Appellant/Cross-Appellee.

Nos. 08-6465, 08-6503.

United States Court of Appeals, Sixth Circuit.

October 24, 2011

Argued: Jan. 21, 2011.

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ARGUED:

Kimberly S. Hodde, Hodde & Associates, Nashville, Tennessee, for Appellant.

John-Alex Romano, United States Department of Justice, Washington, D.C., for Appellee.

ON BRIEF:

Kimberly S. Hodde, Hodde & Associates, Nashville, Tennessee, for Appellant.

John-Alex Romano, United States Department of Justice, Washington, D.C., S. Carran Daughtrey, Assistant United States Attorney, Nashville, Tennessee, for Appellee.

Before: SILER, MOORE, and GRIFFIN, Circuit Judges.

GRIFFIN, J., delivered the opinion of the court, in which SILER, J., joined. MOORE, J. (pp. 552-60), delivered a separate opinion concurring in the judgment only.

OPINION

GRIFFIN, Circuit Judge.

Defendant Timothy Ryan Richards appeals his convictions by a jury on eleven child-pornography related offenses, in violation of 18 U.S.C. §§ 2251(a) and (d)(1)(A); 18 U.S.C. §§ 2252A(a)(1), (a)(5)(B), and (b)(1); and 18 U.S.C. § 2257(f)(4). The government cross-appeals as substantively unreasonable Richards' below-Guidelines sentence of sixteen years of imprisonment, to be followed by eight years of supervised release. For the reasons that follow, we affirm Richards' convictions and sentence.

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I.

The government's investigation of defendant Richards began in July 2005, when a nineteen-year-old " adult performer" named Justin Berry contacted the Federal Bureau of Investigation (" FBI" ), offering to provide information about the commercial production, advertising, sale, and distribution of child pornography videos. Berry gave this information under a limited grant of use immunity for his statements, which led to the arrest and prosecution of Richards and two other individuals, Gregory Mitchel and Aaron Brown.

The ensuing FBI investigation revealed that Richards was engaged in the production and distribution of child pornography. Despite his youth,1 Richards was a sophisticated pornography entrepreneur, operating at least a dozen websites that contained sexually explicit conduct involving adults and minors, pornographic images of boys under eighteen, and advertisements for or links to other child pornography sites.2 Some of these websites, such as CaseyandDew.tv, did not show visual pornography but did contain video discussions about sexual activity. In addition, Richards managed and operated other pornography-related websites, including billing sites.3 He profited handsomely from these websites, using advertising techniques such as sending out e-mail solicitations, setting up discounts for customers who visited multiple websites, offering standard and premium membership plans, using an on-line credit card processing company for membership payments, and, to dissuade customers from unsubscribing, requiring the customers to watch a fifteen-minute video before being permitted to terminate their memberships. 4

To manage the large amount of computer data, Richards kept several computers in his home in Nashville, Tennessee, and utilized multiple servers in California that contained approximately one terabyte (a thousand gigabytes) of information. Server log records indicated that shortly after assuming control of the JustinsFriends.com website in July 2005, Richards logged into the server that controlled the website from the internet protocol address tied to his home in Nashville, Tennessee, and uploaded child pornography to the JustinsFriends.net site.

Richards, who used the online alias " Casey Masterson," appeared in many videos in which he engaged in sexually explicit conduct with a then-minor child named Patrick Lombardi, a/k/a " Kyle." Richards befriended and began dating Lombardi in May of 2000, when Richards was almost nineteen and Lombardi was fourteen years old. Their relationship continued for four years. During this time period, Richards produced and made available on the internet recorded images of Lombardi engaged in sexually explicit conduct when Lombardi

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was fifteen years old. Richards produced a digital file and a videotape— " Casey@ 16" — of himself and Lombardi engaging in sexual acts. Richards also took sexually explicit photos of Lombardi and engaged in repeated sexual contact with him when they traveled to Australia in 2002 and Iceland in 2003.

Shortly before Lombardi's eighteenth birthday, Richards and Lombardi planned a new website— CaseyandKylesCondo.com— on which they intended to show homosexual pornography with links to photos, journals, and videos. Richards registered the internet domain for this website in his own name, created the content, advertised for it, and made it part of his affiliate marketing program. According to Lombardi, Richards purposefully waited until Lombardi turned eighteen to launch the website, which included pornography of Lombardi when he was a minor. The CaseyandKylesCondo.com website was hosted on a server in Los Angeles operated by BlackSun Technologies (the " BlackSun server" ). After their relationship ended, Lombardi signed a release that allowed Richards to keep the depictions of him, and thereafter Richards alone controlled the website and its contents. In January 2005, Richards registered the CaseysCondo.com domain name, and that site eventually replaced CaseyandKylesCondo.com. The CaseysCondo.com site included the explicit photographs of Lombardi in Australia.

Another website, JustinsFriends.com, was a homosexual pornographic website featuring Justin Berry and other male models. The website was originally run by Berry and Gregory Mitchel, but Berry sought out Richards' assistance in running the website. Richards agreed to help in exchange for a percentage of the profits, and he eventually took over JustinsFriends.com in July 2005 in the wake of a falling out between Berry and Mitchel. Richards transferred the website to the BlackSun server and changed the site's internet domain to JustinsFriends.net, which was registered in his name. Like his other websites, Richards offered access to the sexually explicit content for a fee. The contents of JustinsFriends.net included a version of the Iceland video of Lombardi and Richards and depicted the sexual activity of another minor, " Taylor." Federal agents saw the latter video playing in the free section of JustinsFriends.net in July 2005, during their investigation.

On September 12, 2005, agents executed a search warrant for the BlackSun server in Los Angeles, which had been identified as the host for JustinsFriends.com and JustinsFriends.net. On the same date, agents also executed a search warrant for a server in the San Francisco area (the " Hurricane Electric server" ), which had hosted JustinsFriends.com and was associated with Aaron Brown. Ten days later, on the basis of information provided by Berry and Mitchel, Richards was arrested at his Nashville home. Agents then executed search warrants for the Nashville residence and a second residence to which Richards was moving. The seized items included eight computers, cameras, videotapes (including the " Casey@16" video), and documents. The subsequent search of the BlackSun server revealed that the JustinsFriends websites were stored in one of two hard drives on the server, along with several of Richards' websites containing pornography and child pornography.

In October 2005, the government returned a single count indictment charging Richards with the distribution of child pornography. Other charges were added and, ultimately, in September 2006, a twenty-seven count third superseding indictment was issued, charging Richards with various

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child-pornography offenses: four counts of distribution (via the internet), in violation of 18 U.S.C. § 2252A(a)(1); seven counts of advertising, in violation of 18 U.S.C. § 2251(d)(1)(A); four counts of production, in violation of 18 U.S.C. § 2251(a)(1); four counts of possession, in violation of 18 U.S.C. § 2252A(a)(5)(B); two counts of conspiring to advertise, contrary to 18 U.S.C. § 2251(e); one count of conspiring to distribute, contrary to 18 U.S.C. § 2252(A)(b)(1); four counts of record-keeping violations under 18 U.S.C. § 2257(f)(4); and one count of transferring obscene material to a minor, in violation of 18 U.S.C. § 1470.

Pertinent to the present appeal, the district court denied Richards' pretrial motions to suppress the fruits of the searches and seizures of the computer servers; to compel compliance with the court's order requiring the government to identify images to be used in its case-in-chief; and to dismiss counts in the indictment as multiplicitous.

The trial commenced on October 10, 2006. At trial, the defense did not dispute the fact that Richards operated the various websites. The defense challenged the government's assertion that the pornography on the websites actually depicted minors and that Richards knew of their status as minors. Lombardi testified as a prosecution witness that he was a minor when the videos were made; Richards testified on his own behalf that Lombardi and the other alleged minors, Taylor and Tory, were eighteen years of age when the images and videos were recorded.

Six of the twenty-seven counts were dismissed and not submitted to the jury. On October 26, the jury convicted Richards on eleven counts— three transportation counts, three advertising counts, two record-keeping counts, one conspiracy to transport count, one production count, and one possession count. The jury...

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