U.S. v. Bass

• Citation: 411 F.3d 1198
• Decision Date: 29 June 2005
• Docket Number: No. 04-6049.,04-6049.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brian BASS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

411 F.3d 1198

UNITED STATES of America, Plaintiff-Appellee, v. Brian BASS, Defendant-Appellant.

No. 04-6049.

United States Court of Appeals, Tenth Circuit.

June 29, 2005.

Rozia McKinney-Foster, Assistant United States Attorney (Robert G. McCampbell United States Attorney, on the brief), Oklahoma City, OK, for Plaintiff-Appellee.

Paul Antonio Lacy, Assistant Federal Public Defender, Oklahoma City, OK, for Defendant-Appellant.

Before KELLY, BRISCOE, and TYMKOVICH, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant Brian Bass was convicted of five counts of knowing possession of child pornography, 18 U.S.C. § 2252A(a)(5)(B), and sentenced to 37 months imprisonment and three years of supervised release. On appeal, he contends (1) there was insufficient evidence to support the convictions, (2) the indictment was deficient, and (3) he is entitled to resentencing in light of the Supreme Court's decision in United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We exercise jurisdiction under 28 U.S.C. § 1291, affirm Bass' convictions, but remand with directions to vacate his sentences and to resentence.

I.

Bass lived with his mother, Charlene Partovi, in Enid, Oklahoma. She owned a computer, which they both shared. In July 2002, the FBI learned that Bass was a member of an e-group entitled "Candyman,"¹ and that based on this membership, he was likely to be in possession of child pornography. Tr. 46. Two agents went to Bass' residence to speak with him, but he was not home. Four days later, the agents and a detective from the Enid Police Department returned and Bass and Partovi both consented to interviews.

Bass admitted to viewing child pornography on the internet and stated that at some point in the past the computer had a virus that saved such images. An officer asked "if he had ever purposely saved or downloaded or copied any of those images," and Bass stated he had not. Tr. 48. Partovi stated that she had once inadvertently seen a pornographic image on the computer, and that Bass had removed the image at her request. She also gave written consent for the agents to take the computer and conduct a forensic search.

The Enid Police Department conducted the computer forensic search using two programs, "ENCASE" and "SNAGIT." ENCASE recovered over 2000 images of child pornography, and SNAGIT recovered 39 images in the computer's unallocated space, which the program changed from jpeg files (as they existed in Partovi's computer) to .bmp or bitmap files. However, the origin of the images could not be identified — that is, whether the images had been intentionally or automatically saved to the computer from the internet. A file referencing "Candyman" and discussing how to remove information from a computer was also found in the unallocated space; however, again the source was undiscoverable. "Yahoo" and "Tropica" account names were found; the latter account was used to view child pornography websites. Software entitled "Window Washer" and "History Kill" was found, as well as evidence that Swanksoft.com (a site marketing History Kill) had been accessed in between the first two FBI visits to Bass' house.

Bass was interviewed a second time after the computer search. Upon hearing the search findings, he admitted that he had a "morbid curiosity" with child pornography and that he was intentionally viewing such material. Tr. 54. He also admitted he used Window Washer and History Kill to make sure his mother would not see the images he was viewing. However, he stated that he did not know (1) how to download images from the internet or (2) that the computer was automatically saving the images he viewed. In fact, Special Agent McLemore testified when Bass turned over the computer he stated "[h]e wasn't worried, because he knew he had never saved any photographs to his hard drive...." Tr. 62.

Counts three and five of the indictment identified jpeg files and counts one, two, and four were images recovered by SNAGIT and were identified as .bmp files. Bass moved for judgment of acquittal on each count arguing there was insufficient evidence to find knowing possession and that the indictment was defective because it identified file types that did not exist in the computer but rather were created by the SNAGIT software.² The district court denied the motion. Bass' renewed motion at the close of the defense evidence was also denied.

II. Sufficiency of the Evidence

At issue here is whether there was sufficient evidence presented to the jury to support Bass' conviction of five counts of knowing possession of child pornography in violation of 18 U.S.C. § 2252(a)(5)(B).³ Specifically, we must determine whether there was sufficient evidence presented for the jury to conclude beyond a reasonable doubt that Bass knowingly possessed the pornographic images which were found on the computer hard drive. With regard to the definition of possession, in United States v. Tucker, 305 F.3d 1193, 1204, (10th Cir.2002), this court stated:

The statute does not define possession, but in interpreting the term, we are guided by its ordinary, everyday meaning. [Citation omitted.] Possession is defined as "the holding or having something (material or immaterial) as one's own, or in one's control." Oxford English Dictionary (2d ed.1989); see also United States v. Simpson, 94 F.3d 1373, 1380 (10th Cir.1996) (defining "knowing possession" in drug context as encompassing situations in which an individual "knowingly hold[s] the power and ability to exercise dominion and control" over the narcotics.

"We review sufficiency of the evidence claims de novo, asking only whether, taking the evidence — both direct and circumstantial, together with reasonable inferences to be drawn therefrom — in the light most favorable to the government, a reasonable jury could find [Defendant] guilty beyond a reasonable doubt." United States v. Allen, 235 F.3d 482, 492 (10th Cir.2000) (internal quotations omitted). "We do not question the jury's credibility determinations or its conclusions about the weight of the evidence." Id.

Bass contends this case presents the second question left unanswered by this court in Tucker — whether an individual can be found guilty of knowing possession of child pornography under § 2252A(a)(5)(B) for viewing such images over the Internet while ignorant of the fact that the images are automatically stored on the computer. In Tucker, the defendant conceded he "knew that when he visited a Web page, the images on the Web page would be sent to his browser cache file and thus saved on his hard drive"; whereas Bass contends he did not know images were being automatically saved. Tucker, 305 F.3d at 1204. However, the jury here reasonably could have inferred that Bass knew child pornography was automatically saved to his mother's computer based on evidence that Bass attempted to remove the images. There is ample evidence that Bass used two software programs, "History Kill" and "Window Washer," in an attempt to remove child pornography from the computer. Bass admitted he had used both "History-Kill" and "Window Washer" to delete child pornography because "he didn't want his mother to see those images...." ROA, Vol. II at 54. Both programs were installed on the computer when it was searched. Therefore, this case does not differ significantly from Tucker. In both cases, there was sufficient evidence of knowing possession of child pornography.

Sufficiency of the Indictment

Bass argues counts one, two, and four of his indictment were deficient because they identified images as .bmp files rather than jpeg files, as they existed in his computer.⁴ We review indictment sufficiency on "practical rather than technical considerations." United States v. Dashney, 117 F.3d 1197, 1205 (10th Cir.1997). "An indictment is sufficient if it sets forth the elements of the offense charged, puts the defendant on fair notice of the charges against which he must defend, and enables the defendant to assert a double jeopardy defense." Id.

The images identified in Bass' indictment indisputably came from his computer. The only change that occurred was the file type identification, which was caused by the forensic examiner's software. Otherwise, the numerical identification was identical to what existed in Bass' computer, and each count included a description of the image involved. Thus, under a practical analysis, the indictment was sufficient to put Bass on notice of the charges against him.

Sentencing-Booker

Although Bass was convicted of knowingly possessing child pornography, the PSR recommended that he be sentenced pursuant to U.S.S.G. § 2G2.2, which governs offenses involving trafficking in child pornography.⁵ ROA, Vol. 5, at 6. Section 2G2.2 establishes a base offense level of 17 for such trafficking offenses (as opposed to a base offense level of 15 imposed under § 2G2.4 for simple possession offenses). The PSR further recommended two upward adjustments to the base offense level: (1) two levels because the material involved prepubescent minors or minors under the age of twelve years; and (2) two levels because a computer was used for transmission of the material. Bass did not object to the factual allegations in the PSR and the district court adopted them as its own findings. See Fed.R.Crim.P. 32(i)(3)(A) ("At sentencing, the court ... may accept any undisputed portion of the presentence report as a finding of fact...."). As a result, Bass' adjusted offense level was 21 with a sentencing range of 37-46 months (as compared to an offense level of 17 and a sentencing range of 24-30 months that would have resulted solely from the jury's findings). The district court sentenced Bass to 37 months of imprisonment on each of the five counts, with the sentences to be served concurrently. In doing so, the district court acknowledged that friends and family members of Bass had written letters asking for leniency, but noted that, "[u]nder our form of...