U.S. v. Kimler, No. 02-3097.

• Decision Date: 07 July 2003
• Docket Number: No. 02-3097.
• Citation: 335 F.3d 1132
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Randy C. KIMLER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

335 F.3d 1132

UNITED STATES of America, Plaintiff-Appellee, v. Randy C. KIMLER, Defendant-Appellant.

No. 02-3097.

United States Court of Appeals, Tenth Circuit.

July 7, 2003.

COPYRIGHT MATERIAL OMITTED

Timothy J. Henry, Assistant Federal Public Defender (David J. Phillips, Federal Public Defender, Wichita, KS, with him on the briefs), for Defendant-Appellant.

Alan G. Metzger, Assistant United States Attorney, Wichita, KS (Eric F. Melgren, United States Attorney, Topeka, KS, and Brent I. Anderson, Assistant United States Attorney, Wichita, KS, on the brief), for Plaintiff-Appellee.

Before TACHA, Chief Judge, and ANDERSON and O'BRIEN, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

After a jury trial, Randy C. Kimler was convicted of one count of receiving or distributing, by computer, images of minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2), one count of possession of such images in violation of 18 U.S.C. § 2252(a)(4)(B), and four counts of distribution of such images in violation of 18 U.S.C. § 2252(a)(2). After various adjustments, Kimler was sentenced pursuant to the United States Sentencing Commission, Guidelines Manual (USSG) (2001 ed.), to 87 months' imprisonment and three years of supervised release. Two conditions of his supervised release are that he cooperate in the collection of a DNA sample, as required by 18 U.S.C. § 3583(d), and that he participate in a sex offender treatment program. Kimler appeals his conviction and sentence, including the two described conditions of his supervised release. For the reasons stated below, we affirm.

BACKGROUND

I. Facts

In April 2001, a citizen in Louisiana contacted the Federal Bureau of Investigation ("FBI") regarding an unsolicited email message she had received that appeared to contain child pornography. Agents from the FBI office in Louisiana investigated the email message and determined that it contained an image of a minor engaged in sexually explicit conduct and that the email address from which the message had originated was registered to Karen Kimler,¹ a resident of Wichita, Kansas. They forwarded this information to the FBI office in Wichita.

Agent Leslie Earl of the Wichita office of the FBI visited the Kimler residence on April 24, 2001. He talked with Karen, her stepson, Eric Kimler, and her husband, Randy Kimler. Earl showed an edited version of the image to Karen and asked if she recognized it. Karen responded that, though she recognized the girl in the image as Samantha Kimler, Randy's daughter from a previous marriage, she had never seen the image nor sent it in an email message. Similarly, Eric said that he had never seen the image and that he did not send it in an email message. Agent Earl did not ask Randy about the image at that time. He did, however, ask Randy to bring his computer to the FBI office the next day and to be prepared to answer questions regarding the email message.

Randy arrived at the FBI office at the appointed hour but did not have his computer. He brought, instead, a packet of images that he said he printed from his computer. Upon examination, Agent Earl believed the images included child pornography. In this initial interview with Agent Earl, Randy identified the image that had been sent to Louisiana and admitted that he sent it to at least two people he met on the internet. He told Agent Earl that he had used the email addresses registered in his wife's and daughter's names to send out pornographic images. He forwarded them from his wife's account to his daughter's, and then sent them to third parties. He used this method because he did not know how to send attachments using his own email address and he did not want to send the images directly from Karen's email address. However, he denied sending out child pornography. Randy then signed a consent form giving Agent Earl permission to seize and search his computer.

Shortly after the interview, Agent Earl and a partner went to the Kimler home and seized the family computer, which they delivered to an FBI computer forensic examiner, Specialist Loveall. Loveall recovered numerous email messages with images attached. He also found images that were not attached to email messages. Many of the images had been sent and received using a combination of email addresses including: a Hotmail² address, me_4_u11, registered to Samantha; a Hotmail address, luckynlove43, registered to Karen; and a Hotmail address, Chi Town Rebel, registered to Randy. Loveall saved the images and emails to compact discs, which he delivered to Agent Earl. The images found on the Kimlers' computer and Randy's interview with the FBI led to the charges in this case.

The evidence introduced at trial established that every image Kimler received or distributed using his and his family's Hotmail accounts traveled through the Hotmail servers in California and Kimler's internet service provider in Missouri before reaching his computer in Wichita, Kansas. R. Vol. III at 157. En route, the data traveled across state lines, at least some of the way over ordinary phone or cable lines. Id. Even email messages sent from one of Kimler's accounts to another account on his computer traveled across the Kansas state line to his internet service provider located in Kansas City, Missouri, then back over the state line to Kimler's computer in Kansas. Id.

In support of its case, the government introduced into evidence sixty-nine exhibits including emails, emails with attached images, and other images, all retrieved from Kimler's computer, or brought by Kimler to the FBI interview. Those exhibits showed on their faces that images, purportedly proscribed by the statute, were received and distributed over the internet and possessed by way of storage on Kimler's computer. Thus, for example, the government introduced evidence, through Specialist Loveall's testimony, that the Kimlers' computer contained at least five email messages, with attached images, that had been sent from the United Kingdom. Id. at 133-35; see Trial Exs. 10, 11, 18, 19 and 20. Loveall also testified that he found images attached to email messages that had been sent from the Kimlers' computer to various email addresses. R. Vol. III at 135-40; see Trial Exs. 29-36. Finally, Loveall testified — without objection or challenge on cross-examination — that in his examination of the Kimlers' computer he found additional evidence that many of the images found on the computer had been downloaded from the internet and that images were also being sent from the computer to the internet. R. Vol. III at 141.

Randy's daughter, Samantha, was called as a witness for the government. She testified that she did not send any messages from the Hotmail address registered in her name. She further testified that, while she was living with Randy in 1999, she received two messages with attached images of what appeared to be "little girls" engaged in sexually explicit conduct, at an email address he had established for her. She testified that when she mentioned those email messages to Randy, he directed her to forward them to his email address, which she did. She also testified that on one occasion she saw Randy looking at a picture of a naked young girl on the computer screen.

Neither Randy nor Karen testified at trial. Randy's son, Eric, was called as a defense witness. On direct examination, he testified that in addition to Randy and himself, nine other individuals had access to the internet at the Kimlers' house, either through the family computer or through WebTV:³ family members Karen, Samantha, Junior Kimler, and Spring Kimler; Eric's friends, Jeremy, Shane, A.K., and Lee; and his cousin, Jacob Saunstare. However, on cross-examination, Eric testified that he never saw any of those individuals accessing pornography on the internet at his house.⁴ More to the point, Eric testified that none of his friends had the passwords to the email accounts that were used to send and receive the images of minors at issue in this case.

Also on direct examination, he admitted that he often looked at pornography on the internet. But on cross-examination he said that he only looked at girls "[f]rom 14 up."⁵ Id. at 184. He testified that he was not interested in "really, really young girls." Id. In particular he testified that he did not look for images of girls who appeared to be eight through twelve years old. He further testified that he had neither sent nor received email messages containing pornographic images.

Jacob Saunstare was also called by the defense. He testified that he often accessed the internet at the Kimlers' house, and that he used the Kimlers' internet access to view pornography, occasionally with Randy's help. However, he testified that he never accessed any child pornography. He also testified that he never sent or received child pornography over the internet while at the Kimlers' house. Finally, on cross-examination he acknowledged that he did not have the passwords to any of the Kimlers' email accounts.

Other than Eric, Samantha, and Jacob, none of the other individuals identified by the defense, through Eric, as having access to the Kimlers' internet connection, was called to testify.

At the close of the government's case the court dismissed Counts 8 and 9, two of the date-specific counts of distribution of images of minors engaged in sexually explicit conduct, for lack of supporting evidence. The jury acquitted Kimler of one count of distribution of child pornography (Count 3). Kimler was convicted on the remaining counts of the indictment — one count of receipt or distribution of images of minors engaged in sexually explicit conduct (Count 1); one count of possession of images of minors engaged in sexually explicit conduct (Count 2); and four counts of distribution of images of minors engaged in sexually explicit conduct (Counts 4, 5, 6 and 7).

At sentencing, the district court found that some of the images...