U.S. v. Ganoe

• Decision Date: 15 August 2008
• Docket Number: No. 07-50195.,07-50195.
• Citation: 538 F.3d 1117
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tyrone Alan GANOE, Defendant-Appellant.

538 F.3d 1117

UNITED STATES of America, Plaintiff-Appellee, v. Tyrone Alan GANOE, Defendant-Appellant.

No. 07-50195.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 14, 2008.

Filed August 15, 2008.

Karen L. Landau, Oakland, CA, for the defendant-appellant.

Thomas P. O'Brien, Christine C. Ewell, and Mark C. Krause, United States Attorney's Office, Los Angeles, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; Dale S. Fischer, District Judge, Presiding, D.C. No. CR-06-00019-DSF-1.

Before: BARRY G. SILVERMAN, JOHNNIE B. RAWLINSON, and MILAN D. SMITH, JR., Circuit Judges.

SILVERMAN, Circuit Judge:

In this appeal from convictions for receipt and possession of child pornography, we hold today that the district court acted within its discretion in allowing the jury to briefly view a carefully limited number of images that were the subjects of the charged offenses. Ganoe's offer to stipulate that anyone viewing the images would have known that they met the legal definition of child pornography did not render the evidence impermissible, because he refused to also stipulate that the titles of the computer files alone were enough to import knowledge of what they were. We also affirm the denial of Ganoe's motion to suppress evidence obtained by a federal agent using peer-to-peer software. Ganoe installed and used file-sharing software on his computer; he knew or should have known that the folder into which he downloaded files was accessible to others on the peer-to-peer network. We hold that Ganoe lacked an objectively reasonable expectation of privacy in those files. Lastly, we find no error or abuse of discretion in the district court's calculation of Ganoe's sentence.

I. FACTUAL AND PROCEDURAL BACKGROUND

The investigation

On January 5, 2004, Immigration and Customs Enforcement Special Agent Ken Rochford was using LimeWire to locate people using file-sharing programs to trade child pornography. LimeWire is a file-sharing program that can be downloaded from the internet free of charge; it allows users to search for and share with one another various types of files, including movies and pictures, on the computers of other persons with LimeWire. Once a user downloads the program onto his computer, the user can click on an icon that connects his computer to others on the network. Users can input search terms and receive a list of responsive files available on other computers connected to the network.

Upon observing a file entitled "Baby J Compilation," Rochford downloaded and viewed the movie, confirming that it depicted an adult having sexual intercourse with a very young girl. (The computer forensics expert testified that "BabyJ" is a common term in the world of child pornography, referring to "a specific victim of child exploitation" depicted in a series of pictures and movies.) Rochford used LimeWire's "Browse Host" feature to view all of the files being shared by a particular "Host," thereby discovering four additional file titles that suggested similar content. Rochford downloaded and viewed these files, observing that they too contained footage of children engaged in sexually explicit conduct. Rochford determined that the downloads originated from a computer with a particular IP address, and that the IP address was assigned to Tyrone Ganoe, located at a specified residence in Norwalk, CA.

Agents obtained a search warrant for that address, which was executed on March 9, 2004. Tyrone Ganoe arrived at the residence while the agents were engaged in the search. He spoke with Agent Margaret Condon, who advised him that he was not under arrest but that she would like to ask him a few questions. Ganoe agreed, confirming that he lived at the house with his mother Josephine and his sister Yvette. Condon asked Ganoe if he knew why the agents were there, and he said that he did; he explained that he had been using LimeWire to download music and had inadvertently downloaded child pornography. He stated that the "bad stuff" could be found in the "z" folder on the iMac. Upon examination, the "z" folder was found to contain 72 image and movie files suspected to be child pornography.

The day after the search of Ganoe's residence, Agent Condon called Ganoe on his cell phone to inform him that he could retrieve some of the items taken during the search. Ganoe volunteered that he was seeking counseling for his "problem." Agent Condon asked him what he meant, and he stated that he was referring to his habit of viewing child pornography.

The indictment

The first superseding indictment charged Ganoe with three counts of knowingly receiving child pornography and one count of knowingly possessing child pornography, all in violation of 18 U.S.C. § 2252A. The first count alleged that Ganoe had received a digital image entitled "babyj Cock in Her.mpg." on or about November 22, 2003. The second count alleged that Ganoe had received a digital image entitled "BabyJ-ButtHump.mpg" on or about December 5, 2003. The third count alleged that Ganoe had received a digital image entitled "BabyJ-Teddy.mpg" on or about January 21, 2004. The fourth count listed 65 different image titles and alleged that Ganoe had possessed at least one on or about March 9, 2004.

Pre-trial motions

Prior to trial, Ganoe moved to exclude the images at issue on the grounds that they were inflammatory and unduly prejudicial, offering to stipulate that "the images seized on the computer at the Ganoe family home are child pornography within the meaning of the statute," and that any reasonable person viewing the images would have known that they were child pornography. The government sought more, asking the defense to stipulate that Ganoe himself "had knowledge that they were, in fact, illegal." Defense counsel refused and the court directed the attorneys to "attempt to agree on a stipulation that might make the introduction of such images unnecessary. Alternatively, counsel should attempt to agree to a representative selection of still photographs and short portions of video clips to be introduced into evidence after the Government presents evidence sufficient for the jury to conclude that defendant saw the images."

At a subsequent hearing on the motion to exclude the images, the district court reviewed the selection of images proposed by the prosecution for viewing by the jury. Defense counsel reiterated that the images were highly inflammatory and argued further that the sequence was very repetitive; defense counsel again asserted that the proffered stipulation "makes the whole issue moot." The district court directed the government to select ten images to show to the jury. The district court also directed the government to investigate whether technology was available to distort the faces of the children depicted in the images. On January 5, 2007, the parties stipulated that the images specified in the indictment were transported in interstate commerce and depicted actual minors engaging in sexually explicit conduct. Despite defense counsel's earlier proffer, this stipulation did not include the provision that any reasonable person would have known that the images were child pornography.

In its written order the district court elaborated on its reasoning. Noting that the government was obligated to prove that Ganoe knew the downloaded images were child pornography and that Ganoe would not so stipulate, the district court reasoned that "the images must be produced so that the jury can determine whether a reasonable person would know of the nature of the images."

The next day, immediately prior to the beginning of trial, defense counsel made another attempt to have the images excluded, offering to stipulate further that "[a]nyone who sees those images for one second knows that they are child pornography."

The following day the government offered to accept a stipulation that anyone who read the file titles would have known they were downloading child pornography. The defense refused, rejecting the proposition that merely selecting a file for download on the basis of a title was sufficient to constitute knowledge in the absence of a showing that the images were actually viewed. The district court ruled that "although the images obviously are prejudicial, in the context of this case, they are extremely probative. They have been limited. We have inquired of the jury concerning their ability to view those images. We have an instruction that I will give them that the Government proposed, and I am going to allow the images to be shown."

Also prior to trial, the defense moved to suppress the evidence obtained from Ganoe's computer during the execution of the search warrant on the grounds that Rochford's initial search was illegal. The district court denied the motion, reasoning that Ganoe did not have a reasonable expectation of privacy in a computer on to which he had loaded the file-sharing program. Rejecting Ganoe's claim that he wasn't "computer-savvy" enough to have used the disabling feature, the district court concluded that "[h]e knew or should have known that the software might allow others to access his computer."

Ganoe also sought to exclude evidence of the firearms seized at the Ganoe family, including evidence that some of the weapons were not legal to possess. The district court ruled that the evidence was not inextricably intertwined with the charged conduct, and that the admissibility of the evidence would depend on the evidence introduced by Ganoe; the district court instructed that the government was not to introduce the firearm evidence without seeking permission.

The prosecution's case-in-chief

At trial Agent Rochford testified about his experience in investigating child pornography offenses and explained how he had downloaded files containing child pornography from an IP address later determined to be associated with Ganoe's computer. Agent Condon...