United States v. Haymond
| Decision Date | 06 March 2012 |
| Docket Number | No. 10–5079.,10–5079. |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Andre Ralph HAYMOND, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
OPINION TEXT STARTS HERE
William D. Lunn of Tulsa, OK, for Defendant–Appellant.
Matthew P. Cyran, Assistant United States Attorney (Thomas Scott Woodward, United States Attorney, with him on the brief), Tulsa, OK, for Plaintiff–Appellee.
Before TYMKOVICH, SEYMOUR and ANDERSON, Circuit Judges.
Andre Haymond was convicted of one count of possession or attempted possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). He appeals various aspects of his conviction. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
On October 1, 2007, FBI Special Agent Rich Whisman conducted an undercover online investigation searching for individuals involved with child pornography. He did so using LimeWire, a peer-to-peer file sharing program that allows users to trade computer files over the Internet.1 When a user launches LimeWire and inputs a search term, the program seeks to match the term in the names of files that other users have designated for sharing. LimeWire then returns a list of available files containing that term, which the user may select and download.
Agent Whisman launched LimeWire and typed in “8yo,” an acronym for “8 year old” which is associated with child pornography. His search returned a list of files on LimeWire containing “8yo” in the filename, along with the location of users sharing those files. One of the users sharing responsive files was located in Tulsa, Oklahoma. Using LimeWire's “browse host” function, Agent Whisman reviewed the filenames of all of the files available to download from that user. He observed about seventy files, most of which had filenames suggesting child pornography. He downloaded sixty-two files, each of which he viewed and believed contained child pornography.
The user's internet protocol (“IP”) address was subsequently traced to a residential address in Tulsa, Oklahoma, where Mr. Haymond lived with his mother.2 At the time, Mr. Haymond was eighteen years old, studying computer programing and video game and web design at a nearby community college.
Based largely on results of his LimeWire investigation, Agent Whisman sought a warrant to search Mr. Haymond's residence. He applied for and obtained that warrant on January 16, 2008. It authorized agents and officers to seize and search Mr. Haymond's computer, other digital media, computer passwords, computer security devices, and other items for evidence of child pornography.
Agent Whisman and other FBI agents executed the search warrant on January 23, 2008. They were accompanied by Scott Gibson, an officer with the Tulsa Police Department, and Buddy Carter, an FBI forensic investigator, whose role was to locate and examine the computers and other digital media. Mr. Carter went to Mr. Haymond's bedroom, where he found a computer. They seized the computer's hard drive, along with other items, and took it to the FBI laboratory for forensic examination.
During the January 23 search, Mr. Haymond consented to an interview. Agent Whisman conducted the interview, during which Mr. Haymond made written and oral admissions about his involvement with online child pornography.
Mr. Haymond was subsequently indicted for knowing possession and attempted possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). The government based its case at trial on seven images found during the post-seizure forensic search of Mr. Haymond's computer.3
Before trial, Mr. Haymond filed a motion to suppress evidence and statements obtained during the search of his home, and the related forensic search of his computer, on the ground that the underlying search warrant was issued without probable cause. The district court denied the motion after holding a hearing.
At trial, Agent Whisman testified about Mr. Haymond's admissions during and after the January 23 interview.4 He said that Mr. Haymond admitted he was addicted to child pornography and had been accessing it since 2006 using peer-to-peer file sharing programs.5 In particular, Mr. Haymond admitted to searching for child pornography and downloading it from such programs, most recently from LimeWire. Although Mr. Haymond initially recounted instances in which he had downloaded child pornography inadvertently when trying to download music from LimeWire, he also admitted to doing so purposefully, providing Agent Whisman with examples of search terms he used specifically to obtain child pornography.6
Agent Whisman further testified that Mr. Haymond admitted to a pattern of searching for, downloading, and then deleting child pornography from his computer. Mr. Haymond explained that, “to remove the temptation,” every time after he would download and view child pornography he would delete the images or “wipe” them by reformatting his hard drive and reinstalling the operating system. Rec., vol. III at 315. Agent Whisman testified that Mr. Haymond told him this process happened frequently and that he had most recently downloaded and deleted child pornography the day before, on January 22.7
Consistent with his oral admissions, Mr. Haymond also wrote out and signed a statement during the January 23 interview indicating he had been downloading child pornography once or twice every month or two, and that after downloading the files, he would clean the registry, reformat his computer's hard drive, and reinstall his Windows operating system.
Agent Whisman also testified that before the agents left Mr. Haymond's home, Mr. Haymond admitted the seized computer was his and that he “was responsible for any child pornography found on his computer.” Id. at 367. Later that afternoon, Mr. Haymond phoned Agent Whisman and asked what type of forensic software the FBI would use to analyze his computer, a question Agent Whisman declined to answer. Before hanging up, Mr. Haymond said he “knew that [the] computer examiner would find stuff on his hard drive and that he had not wiped it, as he said, the day before.” Id. at 319–20.
Mr. Carter, the FBI forensic investigator, testified he examined Mr. Haymond's computer using Forensic Toolkit (“FTK”), a specialized software program. FTK recovered a total of 60,000 graphics and video files from the computer's hard drive, including its unallocated space.8 Using FTK, Mr. Carter compiled the files into a viewable format. After viewing all of the files, he and Agent Whisman found about seventy files they believed contained child pornography.9 Among those seventy or so files were the seven images that formed the basis of Mr. Haymond's conviction. Mr. Carter also testified the hard drive on which the charged images were found had been manufactured in Korea. The hard drive and the charged images were admitted and published to the jury. Forensic analysis indicated the charged images somehow had been deleted and lacked metadata.10 It revealed little else. In particular, there was no forensic evidence to show the origin of the images or how they had been deleted—that is, whether by the user or by the computer's automated processes with no prompting at all from the user.
Two other government witnesses testified about the charged images. After holding a Daubert hearing 11 and over Mr. Haymond's objection, the district court permitted Dr. Sarah Passmore, a board-certified pediatrician, to testify as an expert pursuant to Federal Rule of Evidence 702. She testified that, in her expert opinion, the images depicted boys under the age of eighteen.
Dr. Passmore's testimony was corroborated by Immigration and Customs Enforcement Special Agent Mike Jackson. Agent Jackson viewed the seven charged images and recognized the two boys in the photos. He testified that the seven charged images are part of a larger series of photographs identified by the National Center for Missing and Exploited Children as the “Brad and Bry” series. Agent Jackson participated in an investigation into the original production of this series of images. The 2004 investigation revealed that the original photographs were taken sometime in or around 2000 in Spring Hill, Florida. During the investigation, Agent Jackson identified and met with the two boys depicted in the images. He also met the boys' mother. He testified that he had viewed the boys' original birth certificates and driver's licenses. The boys were between twelve and fourteen years old when the photos were taken.12
In addition to the charged images, the government introduced evidence from Agent Whisman's undercover LimeWire investigation. This evidence included the list of LimeWire files Agent Whisman found on Mr. Haymond's computer in October 2007, along with the child pornographic content of three of those files. 13 The district court admitted this evidence pursuant to Federal Rule of Evidence 404(b).
At the close of the government's case and again at the close of trial, Mr. Haymond moved for judgment of acquittal on grounds of insufficient evidence. See Fed.R.Crim.P. 29. The district court denied both motions. The jury returned a verdict of guilty. The district court sentenced Mr. Haymond to thirty-eight months in prison and ten years of supervised release.
On appeal, Mr. Haymond contends the evidence at trial was insufficient to support his conviction. He also argues the district court erred in denying his motion to suppress and by permitting Dr. Passmore to testify as an expert.
We first consider Mr. Haymond's contention that the evidence was insufficient to support his conviction. We review sufficiency of the evidence claims de novo. United States v. Ramos–Arenas, 596 F.3d 783, 786 (10th Cir.2010). In doing so, “[w]e review the evidence and its reasonable inferences in the light most favorable to the government, to determine whether a reasonable jury could find the defendant guilty beyond a reasonable...
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