U.S. v. Hamilton

• Decision Date: 28 June 2005
• Docket Number: No. 04-4091.,04-4091.
• Citation: 413 F.3d 1138
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth HAMILTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

413 F.3d 1138

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth HAMILTON, Defendant-Appellant.

No. 04-4091.

United States Court of Appeals, Tenth Circuit.

June 28, 2005.

COPYRIGHT MATERIAL OMITTED

Randall W. Richards, Ogden, UT, for the defendant-appellant.

Mark K. Vincent, Assistant United States Attorney (Paul M. Warner, United States Attorney, with him on the briefs), District of Utah, Salt Lake City, UT, for the plaintiff-appellee.

Before PORFILIO, BRISCOE, Circuit Judges, and BROWNING, District Judge.^*

BRISCOE, Circuit Judge.

Defendant Kenneth Hamilton was convicted, following a jury trial, of transporting child pornography in interstate commerce in violation of 18 U.S.C. § 2252A(a)(1), and was sentenced to a term of imprisonment of twenty-four months. Hamilton now appeals, arguing (1) the district court erred in admitting into evidence information that accompanied the pornographic images he allegedly "uploaded" to an Internet newsgroup, (2) the district court erred in denying his motion for judgment of acquittal, and (3) the district court erred in failing to give him proper departure credit at sentencing. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I.

On October 1, 2001, Christian Schneider, a member of the German National Police working in Wiesbaden, Germany, was using a police-developed computer program called "Perkeo" to scan the internet for known images of child pornography. ROA, Vol. III, at 14-17. Based on the results produced by the Perkeo program, Schneider found postings of approximately fifty-six images of child pornography on the newsgroup¹ identified as "alt.binaries.pictures.underage.admirers." Id. at 19, 21. Each of the images included a computer-generated "header" containing information regarding when each image was posted to the newsgroup and the "IP address" ("165.121.27.94") of the person who posted the image.² Id. at 19, 21-22. Using a web site called "www.checkdomain.com," Schneider determined the owner of the IP address to be a California-based internet service provider called Earthlink. Schneider concluded his investigation by preparing a report regarding his findings.

On October 5, 2001, the German National Police faxed information regarding the results of Schneider's investigation to the United States Department of Homeland Security, Immigration and Customs Enforcement (DOHSIC). Theodore Schmitz, an agent with the DOHSIC, sent a summons to Earthlink requesting information on the person who had been using the IP address identified on the images found by Schneider. Earthlink, using regularly-maintained logs of its users, determined that defendant Hamilton, a Utah resident and Earthlink subscriber, had been assigned the IP address at issue during the date and time the images found by Schneider were posted to the newsgroup.

The DOHSIC investigation was subsequently assigned to special agent David Pezzutti, who was based in the DOHSIC's Salt Lake City office. On June 18, 2002, Pezzutti met with Hamilton at the Office of Special Investigation (OSI) on Hill Air Force Base (Hamilton resided on the base). Pezzutti initially told Hamilton that he was investigating a case of credit card fraud and asked Hamilton if he would consent to a search of his computer. Hamilton agreed to the search. Accordingly, Pezzutti, Hamilton, and other agents went to Hamilton's house and, using a computer program called "Presearch," conducted a "cursory search" of Hamilton's computer.³ Id. at 100. Although the search revealed images of pornography on Hamilton's computer, it did not produce any images of child pornography.

Following the search of Hamilton's computer, Pezzutti, Hamilton, and the other agents returned to the OSI office. While en route from Hamilton's home to the OSI office, Pezzutti advised Hamilton that he was investigating a lead regarding child pornography that he believed had been posted from Hamilton's computer to the newsgroup. At the OSI office, Hamilton agreed to waive his Miranda rights and speak with Pezzutti. Hamilton admitted that he had first downloaded images of child pornography from the newsgroup and then "return[ed] the favor by uploading them back onto the Web site for others to view." Id. at 102. Hamilton stated: "I knew underage was illegal and now I'm here. I'm sorry. I knew underage was illegal. I was fascinated with it and now I'm here." Id. Hamilton ultimately gave Pezzutti a signed statement that read as follows:

On October 2001, I, Kenneth Hamilton, admit to posting questionable pictures to alt.binaries.underage.admirers.newsgro up, approximately 30 to 50 "DUPLA pictures." I admit to this of my own free will. I do not write this statement under duress nor was I promised anything.

Id. at 104.

On July 17, 2002, Hamilton was indicted on one count of knowingly transporting or shipping in interstate commerce child pornography in violation of 18 U.S.C. § 2252A(a)(1), and one count of knowingly transporting in interstate commerce obscene matters for distribution in violation of 18 U.S.C. § 1465. The government subsequently dismissed the latter count of the indictment (i.e., the § 1465 charge). The case proceeded to trial on December 1, 2003. At the conclusion of all the evidence the jury found Hamilton guilty of the § 2252A(a)(1) charge. Hamilton filed a post-verdict motion for judgment of acquittal. That motion was denied by the district court. On April 1, 2004, the district court sentenced Hamilton to a term of imprisonment of twenty-four months (a sentence at the bottom of the 24-30 month guideline range).

II.

Admission of documents

At trial, the government introduced and the district court admitted copies of approximately forty-four of the images that Hamilton was charged with uploading to the newsgroup. Each of those forty-four images included computer-generated "header" information which listed, in part, the following information regarding the person who posted the images to the newsgroup: screen name, subject of the posting, the date the images were posted, and the person's IP address. Although Hamilton objected to the header information on hearsay grounds, the district court concluded it did not constitute hearsay. Hamilton challenges this ruling on appeal.

Generally speaking, we review a district court's determinations regarding admission of evidence for abuse of discretion. United States v. Jenkins, 313 F.3d 549, 559 (10th Cir.2002). Because, however, hearsay determinations are particularly fact and case specific, our review of those decisions is "especially deferential." United States v. Chavez, 229 F.3d 946, 950 (10th Cir.2000); see United States v. Pulido-Jacobo, 377 F.3d 1124, 1132 (10th Cir. 2004) (same).

"Hearsay is defined as `a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.'" United States v. Jefferson, 925 F.2d 1242, 1252 (10th Cir. 1991) (quoting Fed.R.Evid. 801(c)). "A statement is an `oral or written assertion... of a person, if it is intended by the person as an assertion.'" Id. (quoting Fed.R.Evid. 801(a)). In turn, "[a] `declarant' is a person who makes a statement." Fed.R.Evid. 801(b). "Hearsay evidence cannot be admitted unless it falls under an exception." Jefferson, 925 F.2d at 1252 (citing Fed.R.Evid. 802).

The district court in this case correctly concluded that the header information that accompanied each pornographic image was not hearsay. Of primary importance to this ruling is the uncontroverted fact that the header information was automatically generated by the computer hosting the newsgroup each time Hamilton uploaded a pornographic image to the newsgroup. In other words, the header information was generated instantaneously by the computer without the assistance or input of a person. As concluded by the district court, this uncontroverted fact clearly places the header information outside of Rule 801(c)'s definition of "hearsay." In particular, there was neither a "statement" nor a "declarant" involved here within the meaning of Rule 801.⁴ See United States v. Khorozian, 333 F.3d 498, 506 (3d Cir.2003) (concluding that header information automatically generated by fax machine was not hearsay because "nothing `said' by a machine . . . is hearsay.") (internal quotations omitted); People v. Holowko, 109 Ill.2d 187, 93 Ill.Dec. 344, 486 N.E.2d 877, 878 (1985) (concluding "that the printout of results of computerized telephone tracing equipment is not hearsay evidence" but rather "`a self-generated record of its operations, much like a seismograph [or] ... a flight recorder . . . .'"); see generally John W. Strong, McCormick on Evidence, § 246, at 97 (5th ed. 1999) ("The definition [of hearsay set forth in Rule 801] does not in terms say that everything not included within the definition is not hearsay, but that was the intended effect of the rule, according to the Advisory's Committee's Note.").

Denial of motion for judgment of acquittal

Hamilton contends the district court erred in denying his motion for judgment of acquittal. According to Hamilton, the government failed to prove beyond a reasonable doubt that the two females depicted in the images at issue were under the age of eighteen. We "review[ ] the sufficiency of the evidence to support a conviction or the denial of a defendant's motion for judgment of acquittal de novo." United States v. Williams, 376 F.3d 1048, 1051 (10th Cir.2004). In doing so, we "view the evidence in the light most favorable to the government and determine whether a reasonable jury could have found the defendant guilty of the crime beyond a reasonable doubt." Id.

As noted, Hamilton was charged with and convicted of violating 18 U.S.C. § 2252A(a)(1), which punishes any person who "knowingly mails, or transports or ships in interstate or foreign commerce by any means, including by computer, any child pornography." The term "child pornography," as used in §...