U.S. v. Kain

• Decision Date: 22 December 2009
• Docket Number: No. 08-3396.,08-3396.
• Citation: 589 F.3d 945
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Andrew Charles KAIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

589 F.3d 945

UNITED STATES of America, Plaintiff-Appellee, v. Andrew Charles KAIN, Defendant-Appellant.

No. 08-3396.

United States Court of Appeals, Eighth Circuit.

Submitted: September 25, 2009.

Filed: December 22, 2009.

Frank K. Carlson, Sarah K. Tupper, Union, MO, for appellant.

Tiffany G. Becker, AUSA, St. Louis, MO, for appellee.

Before LOKEN, Chief Judge, WOLLMAN and SHEPHERD, Circuit Judges.

LOKEN, Chief Judge.

Andrew Charles Kain was convicted after a bench trial of possessing marijuana with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 860(a), and possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The district court¹ sentenced Kain to concurrent 78-month prison sentences on each count. He appeals the child pornography conviction, arguing the government failed to prove essential elements of the charge and the district court erred in admitting testimony that one image depicted a minor child, and raising one sentencing issue. We affirm.

I. Sufficiency of the Evidence

A. The Relevant Statute. In the Child Pornography Prevention Act of 1996, Congress found that "prohibiting the possession and viewing of child pornography" will help "to protect the victims of child pornography and to eliminate the market for the sexual exploitative use of children." Pub.L. No. 104-208, Tit. I, § 121, subsec. 1(12), 110 Stat. 3009-27 (1996). The Act added 18 U.S.C. § 2252A to the arsenal of federal statutes prohibiting the sexual exploitation and abuse of children. Kain was convicted of violating § 2252A(a)(5)(B), which as amended provides that any person who "knowingly possesses, or knowingly accesses with intent to view, any ... computer disk, or any other material that contains an image of child pornography" that has been transported or produced in interstate commerce "by any means, including by computer," shall be fined or imprisoned not more than ten years.²

"Child pornography" includes a "visual depiction" whose production "involves the use of a minor engaging in sexually explicit conduct." 18 U.S.C. § 2256(8)(A). "Visual depiction" includes "data stored on computer disk or by electronic means which is capable of conversion into a visual image." § 2256(5). "Sexually explicit conduct" includes the "lascivious exhibition of the genitals or pubic area of any person." § 2256(2)(A)(v). A "minor" is "any person under the age of eighteen years." § 2256(1). Kain asserts, and the government does not contest, that a defendant to be convicted under § 2252A(a)(5)(B) must know both that the material viewed is sexually explicit, and that the individuals depicted are actual minors. Cf. United States v. X-Citement Video, 513 U.S. 64, 78, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994).

B. Background. Police seized Kain's laptop computer during a warrant search of his home for evidence of marijuana trafficking. Officers obtained a separate warrant to search the computer, made an exact copy of the hard drive, conducted a forensic examination, and found one hundred or more images of suspected child pornography. Count II of the indictment charged Kain with knowing possession of child pornography, beginning at a time unknown and including the date on which the computer was seized. Count II individually identified twenty-seven images of alleged child pornography. After a bench trial, the district court's verdict found Kain "guilty of the offense of possession of child pornography" charged in Count II.

On appeal, Kain argues that the government failed to prove (i) that he knowingly possessed images of child pornography found on his computer; (ii) that the images depicted actual children under the age of eighteen, and that he knew those facts; and (iii) that twenty-two of the twenty-seven images depicted lascivious exhibition of the genitals, and that Kain knew that any of the images were child pornography. We review the sufficiency of the evidence after a bench trial in the light most favorable to the verdict, upholding the verdict if a reasonable factfinder could find the offense proved beyond a reasonable doubt, even if the evidence "rationally supports two conflicting hypotheses." United States v. McArthur, 573 F.3d 608, 614 (8th Cir.2009) (quotation omitted). Kain's conviction for violating 18 U.S.C. § 2252A(a)(5)(B) must be upheld if the government proved all the elements of the offense as to any one of the twenty-seven images. See United States v. Wallenfang, 568 F.3d 649, 658 (8th Cir.2009).

C. The Knowing Possession Element. At trial, narcotics detective Darryl Balleydier testified that he obtained and executed a warrant to search Kain's house and seized a laptop computer. Two days later, Kain called an investigator and said he wanted to get his computer back and "clean it out." Detective Brian Mize testified that he received the computer, made an exact copy of the hard drive, and conducted a forensic examination. One desktop icon was a folder labeled "Y," which contained twenty-one of the images specifically described in Count II of the indictment. Based on his experience as a father and child pornography investigator, Detective Mize opined that the images depicted prepubescent females. He found the other six images described in Count II in the computer's "temporary internet" and "orphan" files. These images included prepubescent females engaged in sexual intercourse with, performing oral sex on, and masturbating adult males. Detective Mize described "temporary internet" files as locations where the computer temporarily stores web pages that were previously viewed "so they can be viewed on the computer itself."³ "Orphan" files are files "that were on the computer somewhere saved" but were subsequently deleted, "so the computer doesn't know exactly where they came from."

Detective Mize testified that he ran a virus scan on the hard drive and located several "Trojan" programs.⁴ However, based on the location of many images in a desktop folder, Kain's knowledge of the images in that folder, and the presence of an updated virus scanner, Mize opined that the images charged in Count II were not placed on the hard drive by a Trojan. Mize also examined the computer's Internet Explorer browsing history, which evidenced repeated accessing of sites such as "/lolita_kds.html," "Underground-love. com," and "XXX-Land.com."

FBI Agent Patrick Cunningham testified that, when arrested, Kain admitted he owned the computer and had used it to download 40-50 images of child pornography to the "Y" file. When told investigators found 405 images, Kain responded, "[i]f they found 405 images, then there were 405 images on the computer." Sergeant William Cawthon of the Texas Rangers testified that he interviewed a nine-year-old girl during an unrelated investigation who was the minor female in one of the images.

In defense, computer forensic examiner Joshua Restivo opined, based on Detective Mize's report, that the "likely cause" of all the images shown in court being found in the hard drive of Kain's computer was that they were placed there by Trojan viruses. Restivo also testified that the temporary internet and orphan files were in "user inaccessible space," and that it was not possible to determine from Detective Mize's report whether the twenty-seven images depicted real children.

After receiving extensive post-trial briefs, the district court issued its written verdict, finding with respect to Count II:

There was expert testimony where the internet history of the hard drive was examined and showed that web sites associated with the pictures that were found had been visited by that computer.... Mr. Kain was the only one to use that computer ... therefore, the Government established that he exercised the dominion and control over the computer and the child pornography found thereon.

The court reviewed the testimony of defense expert Restivo and found it "not credible." While Restivo's opinion that no one could say whether or not Kain or the Trojans had downloaded the child pornography "might have been somewhat persuasive," the court found that Restivo "destroyed his own credibility" by opining that more likely than not Trojans put the child pornography on the computer. "[Y]ou can't have it both ways," the court observed, further noting that Restivo's opinion was contrary to Kain's admissions to the investigating officers.

On appeal, relying heavily on the testimony of defense expert Restivo, Kain argues that the government (i) failed to prove knowing possession of the child pornography images found in the "Y" folder because Detective Mize's virus scan found powerful Trojans that, when executed, can take over an infected computer and place a child pornography folder on the computer's desktop, and (ii) failed to prove knowing possession of the images found in "temporary internet" and "orphan" files because they were in user inaccessible space outside Kain's control.

The presence of Trojan viruses and the location of child pornography in inaccessible internet and orphan files can raise serious issues of inadvertent or unknowing possession. See United States v. Romm, 455 F.3d 990, 998-1001 (9th Cir. 2006); United States v. Shiver, 305 Fed. Appx. 640, 642-43 & n. 4 (11th Cir.2008); Howard, Don't Cache Out Your Case: Prosecuting Child Pornography Possession Laws Based on Images Located in Temporary Internet Files, 19 Berkeley Tech. L.J. 1227 (2004). But these are issues of fact, not of law. "[A]ctual or constructive possession is a finding of fact we review for clear error." United States v. Denis, 560 F.3d 872, 873 (8th Cir.2009). The presence of child pornography in temporary internet and orphan files on a computer's hard drive is evidence of prior possession of that pornography, though of course it is not conclusive evidence of knowing possession and control of the images, just as mere presence in a car from which the police recover contraband does not, without more, establish actual or construction...