U.S. v. Dobbs
| Decision Date | 05 January 2011 |
| Docket Number | No. 09-5025,09-5025 |
| Citation | 629 F.3d 1199 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Terry Brian DOBBS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
John T. Carlson, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with him on the briefs), Denver, CO, for Defendant-Appellant.
Barak Cohen, Attorney, Criminal Division, United States Department of Justice, Washington, D.C. (Thomas Scott Woodward, Acting United States Attorney, and Leena Alam, Assistant United States Attorney, Tulsa, OK, on the brief), for Plaintiff-Appellee.
Before BRISCOE, Chief Judge, HOLLOWAY and HOLMES, Circuit Judges.
In this criminal appeal, Terry Brian Dobbs brings a sufficiency-of-the-evidence challenge to his conviction for knowingly receiving and attempting to receive child pornography in violation of 18 U.S.C. § 2252(a)(2). Mr. Dobbs contends that there was insufficient evidence to prove: (1) that he knowingly received or attempted to receive either of the two pornographic images submitted to the jury; and (2) that these two particular images traveled in interstate or foreign commerce, as required by our precedent in United States v. Schaefer, 501 F.3d 1197 (10th Cir.2007).
Exercising jurisdiction under 28 U.S.C. § 1291, we agree that the government did not offer sufficient evidence to prove that Mr. Dobbs knowingly received the images found on his hard drive. Consequently, because we have no need to opine on the merits of Mr. Dobbs's Schaefer argument, we refrain from doing so. We REVERSEand remand to the district court to VACATE Mr. Dobbs's conviction and sentence.
In April 2006, United States Postal Inspectors in Oklahoma seized Mr. Dobbs's computer pursuant to a search warrant issued in an unrelated fraud investigation. A search of the computer revealed multiple images suspected to be child pornography, leading the investigators to obtain a second search warrant. The computer's hard drive was eventually sent to a Department of Justice computer forensic specialist in Washington, D.C. Upon further inspection of Mr. Dobbs's hard drive, the forensic specialist discovered over 150 images of child pornography in the hard drive's temporary Internet files folder, or "cache." 1
Mr. Dobbs was subsequently indicted for receipt, attempted receipt, and possession of visual depictions of minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2) and (a)(4)(B). Prior to trial, the government dismissed the charge of possession in violation of § 2252(a)(4)(B), leaving the single charge that Mr. Dobbs "knowingly received and attempted to receive one or more visual depictions [of minors engaged in sexually explicit conduct], including but not limited to ... '14[2].jpg' [and] 'b003[1].jpg.' " R., Vol. I, at 109 (Second Superseding Indictment, filed July 11, 2008).
At trial, the government's case relied principally on the testimony of the forensic specialist, who explained in detail the results of his investigation of Mr. Dobbs's hard drive. His analysis indicated both that Mr. Dobbs had typed in multiple search terms reflecting the pursuit of child pornography, 2 and that Mr. Dobbs had visited websites consistent with such pornography.3 Additionally, the forensic specialist reconstructed some of the pages that resulted from Mr. Dobbs's search activity, noting that after some of the search terms were entered, the user advanced the web browser to get additional results, sometimes up to thirty-six times. He concluded that the computer activity suggested someone who was "methodically seeking out child pornography." R., Vol. III, at 464.
The forensic specialist also testified that the charged photographs recovered from Mr. Dobbs's hard drive were found exclusively in the computer's cache. As he explained it, when a person visits a website, the web browser automatically downloads the images of the web page to the computer's cache. The cache is populated with these images regardless of whether they are displayed on the computer's monitor. In other words, a user does not necessarily have to see an image for it to be captured by the computer's automatic-caching function. Although the forensic specialist noted that a computer user can manipulate some images that appear on acomputer's screen, he acknowledged that there was no evidence that Mr. Dobbs actually viewed the charged images, much less clicked on, enlarged, or otherwise exercised actual control over any of them. Furthermore, while the forensic specialist explained that a user may manipulate and control an image stored in the computer's cache, he repeatedly admitted that there was no evidence that Mr. Dobbs had accessed his computer's cache, or that he even knew it existed.
During the trial, the district court initially admitted seventeen images found in Mr. Dobbs's cache. That number was winnowed down to two when the government failed to provide adequate evidence that fifteen of the images had traveled in interstate commerce. The two remaining images—"b003[1].jpg," which was captured by the caching function on Mr. Dobbs's computer on March 15, 2006, at 9:29:56 p.m., and "14[2].jpg," which was captured shortly thereafter at 9:31:17 p.m.—were banner images, comprised of multiple, smaller images, measuring 3.25 inches by .5 inch.4
In constructing its case against Mr. Dobbs, the government created a time line of activity aimed at establishing a pattern indicative of the hunt for child pornography. Specifically, the forensic specialist testified that a pattern existed wherein the arrival of suspect images on Mr. Dobbs's computer was immediately preceded by searches using terms typically affiliated with child pornography. However, while such a pattern may have existed for the images ultimately excluded from the jury's consideration, the forensic specialist admitted that there was no evidence of a temporally proximate search indicating the pursuit of child pornography with respect to the two images submitted to the jury. Nor was he able to present evidence that Mr. Dobbs visited a website typically associated with child pornography immediately preceding the arrival of the two images in his computer's cache.
At the close of the government's case, and again at the close of all the evidence, Mr. Dobbs moved for a judgment of acquittal, arguing that insufficient evidence was presented to prove both the jurisdictional element under Schaefer and that he "knowingly" possessed the images found on his hard drive. The district court denied Mr. Dobbs's motions, based in part on its prior ruling limiting the images submitted to the jury. Mr. Dobbs was subsequently found guilty of knowingly receiving and attempting to receive child pornography. The district court sentenced him to 132 months' imprisonment and nine years of supervised release. This timely appeal followed.
On appeal, Mr. Dobbs argues that we must reverse his conviction because the government offered insufficient evidence to prove that his receipt of child pornography was "knowing," and thus punishable under § 2252(a)(2). More specifically, he claims that the lack of evidence suggesting that he knew of his computer's automatic-caching process forecloses a finding of knowing receipt of the two images submitted to the jury, which were found in the cache. He suggests that "a man who doesn't know he has certain images inside his computer [cannot] be said to have knowingly accepted those images ... [or] to have knowingly exercised control over them." Aplt. Reply Br. at 5.
The government, in contrast, contends that Mr. Dobbs's conviction is supportablebased in part on evidence that he "engaged in a pattern of methodically seeking out child pornography, by conducting image searches for terms ... [associated with child pornography] and downloading websites consistent with child pornography." Aplee. Br. at 15-16. This, "combined with the ability [of Mr. Dobbs] to control those images, was sufficient to prove that he received child pornography." Id. at 16. In sum, the government argues that "because Dobbs knowingly sought out and accessed the images, and had the ability to control them when they appeared, the statutory definition of receipt was met." Id. at 21.
Mr. Dobbs also claims that the government failed to prove the jurisdictional element of the crime, as described in Schaefer—namely, that the particular images presented to the jury crossed state lines. See 501 F.3d at 1202. Because we find Mr. Dobbs's first argument dispositive, we do not address this second issue.
We review a challenge to the sufficiency of the evidence de novo. United States v. Vigil, 523 F.3d 1258, 1262 (10th Cir.2008). "Evidence is sufficient to support a conviction if, viewing the evidence in the light most favorable to the government, a reasonable jury could have found the defendant guilty beyond a reasonable doubt." United States v. LaVallee, 439 F.3d 670, 697 (10th Cir.2006) (quoting United States v. Hien Van Tieu, 279 F.3d 917, 921 (10th Cir.2002)) (internal quotation marks omitted). "We will reverse a conviction 'only if no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Willis, 476 F.3d 1121, 1124 (10th Cir.2007) (quoting United States v. Gurule, 461 F.3d 1238, 1243 (10th Cir.2006)).
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