United States v. Cameron

Decision Date14 November 2012
Docket NumberNo. 11–1275.,11–1275.
PartiesUNITED STATES of America, Appellee, v. James M. CAMERON, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

OPINION TEXT STARTS HERE

Peter Charles Horstmann, with whom Partridge, Ankner & Horstmann, was on brief for appellant.

Anthony Vitarelli, Assistant United States Attorney, Criminal Division, Appellate Section, with whom Lanny A. Breuer, Assistant Attorney General, John D. Buretta, Acting Deputy Assistant Attorney General, Thomas E. Delahanty II, United States Attorney, and Margaret D. McGaughey, Assistant United States Attorney, was on brief for appellee.

Before TORRUELLA, HOWARD, and THOMPSON, Circuit Judges.

TORRUELLA, Circuit Judge.

Following a bench trial in the U.S. District Court for the District of Maine, DefendantAppellant James M. Cameron (Cameron) was convicted of thirteen counts for crimes involving child pornography. Cameron now appeals, challenging various rulings by the district court before and after the trial. The challenged rulings include: (1) the denial of a motion to dismiss the indictment for insufficiency and for improper venue, United States v. Cameron ( Cameron I ), 662 F.Supp.2d 177 (D.Me.2009); (2) the denial of a motion to suppress evidence allegedly seized in violation of the Fourth Amendment, United States v. Cameron ( Cameron II ), 729 F.Supp.2d 418 (D.Me.2010); (3) the denial of a motion in limine to exclude certain evidence on Confrontation Clause grounds, United States v. Cameron ( Cameron III ), 733 F.Supp.2d 182 (D.Me.2010); and (4) the calculation of the number of child pornography images attributable to Cameron for sentencing purposes.

This case presents complex questions of first impression in this Circuit regarding the admissibility of evidence in the wake of the Supreme Court's recent Confrontation Clause jurisprudence. After careful review, we conclude that the admission of certain evidence violated Cameron's Confrontation Clause rights. We further conclude that the admission of this evidence was harmless as to some counts of conviction (Counts Six, Seven, Nine, Ten, Twelve, Thirteen, and Fifteen), but not as to others (Counts One, Three, Four, Five, Eleven, and Fourteen). We thus reverse Cameron's convictions on certain counts and remand for re-sentencing, or a new trial if the government wishes to so proceed.

I. Background

A. Business and Regulatory Background

Before delving into the particular facts of Cameron's case, we recite some background facts regarding the technologies, business practices, and regulations at issue here.

During 2006 and 2007, Yahoo!, Inc. (“Yahoo!”) offered a service (which has since been discontinued) called “Yahoo! Photo” that allowed users to upload photographs to the Internet. Users could then share photographs with other Yahoo! Photo users. Each Yahoo! Photo album was linked to a particular Yahoo! “user” or “account.” In turn, each “account” was designated by a “Login Name” (sometimes referred to as a “username” or “screen name”), such as “lilhottee00000,” one of the screen names at issue in this case. A Yahoo! user might use multiple other Yahoo! services in addition to Yahoo! Photo, such as email.

Whenever a person created a Yahoo! account, Yahoo! recorded certain information, some of which was captured automatically and some of which was entered by the person who created the account. One piece of information that was automatically collected was the “Registration IP Address,” which was the Internet Protocol (“IP”) address from which the account was created.1 Yahoo! also automatically recordedthe date and time at which the account was created. Yahoo! recorded this information in an “Account Management Tool,” which it maintained for the life of a Yahoo! account. Further, whenever a user logged into a Yahoo! account, Yahoo! automatically recorded the date and time of the login as well as the IP address from which the login occurred. Yahoo! stored this information in a “Login Tracker.” The record indicates that, during the relevant time period, Yahoo! kept login records in its Login Tracker for sixty days.

During the same time period, Google, Inc. (“Google”) provided a service (also since discontinued) called “Google Hello.” Google Hello allowed users to sign in with a username and then chat and trade photos with other users over the Internet. Google automatically maintained records indicating the times at which a user logged into and out of Google Hello, as well as the IP address from which the user accessed the service (“Google Hello Connection Logs”).

At the relevant time, businesses such as Google and Yahoo! had (and still have to this day) a duty to report any apparent violation of federal child pornography laws to the National Center for Missing and Exploited Children (“NCMEC”). See42 U.S.C. § 13032(b)(1) (1998) (creating a reporting duty for any entity “engaged in providing an electronic communication service or a remote computing service to the public, through a facility or means of interstate or foreign commerce”) (current version at 18 U.S.C. § 2258A(a)(1) (2012)). NCMEC is a non-profit organization that receives an annual grant from Congress to perform various functions related to preventing the exploitation of children. See42 U.S.C. § 5773(b) (2012). Among these functions is the operation of a “cyber tipline to provide ... electronic service providers an effective means of reporting” child pornography and other Internet-related crimes targeting children. Id. § 5773(b)(1)(P). NCMEC's “cyber tipline” is called the “CyberTipline.” Once NCMEC receives a report of a possible child pornography crime via the CyberTipline, it determines “the appropriate international, Federal, State or local law enforcement agency for investigation” and forwards the report to that agency. Id.

B. Yahoo! Reports to NCMEC

On March 15, 2007, Yahoo! received an anonymous report that child pornography images were contained in a Yahoo! Photo account belonging to a user with the username “lilhottyohh.” The record does not indicate that Yahoo! knew, or ever attempted to find out, who made the anonymous report. In response to the anonymous tip, Yahoo! personnel searched the “lilhottyohh” account and discovered images that they believed to be child pornography. It is not known which Yahoo! employee conducted the search.

Yahoo! had an established process for dealing with reports of child pornography. If Yahoo! learned of child pornography in an account, an employee in Yahoo!'s Customer Care Department temporarily removed the content from public view and reviewed it. If he or she determined that the account contained child pornography, Yahoo! deactivated the account and notified the Legal Department. Meanwhile, the Customer Care Department created an archive of all the images associated with the account, including the date and time each image was uploaded and the IP addressfrom which it was uploaded. If the Legal Department agreed that any images were child pornography, it then sent an electronic report to NCMEC via the CyberTipline. Each report (“Yahoo! CP Report” or “CP Report”) listed a “Suspect Screen Name,” a “Suspect Email Address,” a “Suspect URL,” 2 and a “Suspect IP Address.” The “Suspect IP Address” was the IP address that Yahoo! “associated” with the user; it is not clear from the record whether this IP address was the “Registration IP Address” stored in the Account Management Tool, or if it was some other IP address. One could argue, as the government seemed to do at trial, that it is the IP address from which the last image was uploaded onto the account, as in some CP Reports the “Suspect IP Address” is different from the “Registration IP Address” contained in the Account Management Tool for the same account. The “Suspect Email Address” was the Yahoo! email address of the Yahoo! user the CP Report pertained to, and the “Suspect URL” was the Internet location where the user's photos could be found.

Each CP Report also included a table listing the child pornography images being sent with the report. Yahoo! attached to each report the suspected child pornography images. For each child pornography image, Yahoo! listed the date and time at which the image was uploaded and the IP address from which it was uploaded (“Image Upload Data”). In addition, Yahoo attached data from the Account Management Tool and Login Tracker to each CP Report. Whenever Yahoo! sent a CP Report to NCMEC, Yahoo! automatically stored a receipt. The receipt included a unique number assigned to the report by NCMEC and a record of what Yahoo! reported to NCMEC, including the attachments to the CP Report.

In this case, Yahoo! sent a CP Report of the child pornography in the “lilhottyohh” account to NCMEC. Subsequently, Yahoo! sent additional CP Reports to NCMEC of child pornography found in the accounts of the users “lilhottee0000” and “harddude0000.” All three CP Reports listed the same “Suspect IP Address”: 76.179.26.185.

C. ICAC Seizes Cameron's Computers

On August 3, 2007, NCMEC sent a report (“CyberTipline Report”) of child pornography found in the “lilhottee00000” Yahoo! account to the Maine State Police Internet Crimes Against Children (“ICAC”) unit. NCMEC later sent another CyberTipline Report to ICAC, this time regarding child pornography found in the Yahoo! Photo account of user “harddude0000.” Both CyberTipline Reports listed the same IP Address, 76.179.26.185, in the “Suspect Information” section. Each report also noted that [t]he IP included in this report is the most recent file or image upload IP available,” and then listed the date and time of the most recent upload.3

ICAC detective Laurie Northrup (“Northrup”) determined that the IP address 76.179.26.185 was part of a pool of IP addresses that Time Warner, an Internet Service Provider (“ISP”), distributed to its Internet access customers. Through a subpoena to Time Warner, Northrup determined that the IP address 76.179.26.185 had been...

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