U.S. v. Lynn
| Decision Date | 31 May 2011 |
| Docket Number | No. 09–10242.,09–10242. |
| Citation | 636 F.3d 1127 |
| Parties | UNITED STATES of America, Plaintiff–Appellee,v.Ryan Christopher LYNN, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Geoffrey M. Jones, Esq., Law Office of Geoff Jones, San Francisco, CA, for the defendant-appellant.Benjamin B. Wagner, United States Attorney, and David L. Gappa (argued), Assistant United States Attorney, Fresno, CA, for the plaintiff-appellee.Appeal from the United States District Court for the Eastern District of California, Lawrence J. O'Neill, District Judge, Presiding. D.C. No. 1:08–cr–00172–LJO–1.Before: MARY M. SCHROEDER, SIDNEY R. THOMAS, and RONALD M. GOULD, Circuit Judges.
The opinion in the above-captioned matter filed on February 23, 2011, and published at 636 F.3d 1127, is amended as follows:
At slip opinion page 2851, line 2 , insert the word “the” between “susceptible to” and “criminal conduct.”
Appellant's Petition for Panel Rehearing is DENIED.
The full court has been advised of the Petition for Rehearing En Banc and no judge of the court has requested a vote on the Petition for Rehearing En Banc. Fed. R. App. P. 35. Appellant's Petition for Rehearing En Banc is also DENIED.
No future petitions for rehearing or rehearing en banc will be entertained.
IT IS SO ORDERED.
Ryan Christopher Lynn appeals his conviction and sentence for receiving or distributing visual depictions of a minor engaging in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2) (2006) and for possessing visual depictions of a minor engaging in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(4)(B) (2006).1
Lynn's principal argument is that his convictions should be reversed because they were not supported by sufficient evidence that the visual depictions had been transported in interstate commerce, an element of the offenses. He contends in the alternative that the simultaneous convictions for receiving and possessing visual depictions of a minor engaging in sexually explicit conduct (hereinafter “child pornography”) 2 were based on the same underlying conduct and therefore violate the Fifth Amendment's prohibition on double jeopardy. Finally, Lynn argues that, if his convictions are upheld, the case should be remanded for resentencing because the district court committed procedural error in calculating the Sentencing Guidelines offense level when it included a two-level upward adjustment for a vulnerable victim under U.S.S.G. § 3A1.1(b)(1).
We have jurisdiction under 28 U.S.C. § 1291. We conclude that Lynn's convictions were supported by sufficient evidence. But, determining that there was a double jeopardy violation, we vacate the sentence and remand to the district court with instructions to vacate one of the convictions. We also conclude that there was no procedural error in the district court's calculation of the applicable Sentencing Guidelines range.
On May 23, 2008, federal agents executed a search warrant at the home of Ryan Christopher Lynn, age 21, in Fresno, California, where he lived with his father. The agents seized Lynn's Toshiba laptop computer and found about 184 video files and 53 still images of child pornography stored on its hard drive. Lynn had downloaded the videos and images from the Internet through a peer-to-peer file sharing program called Limewire, which is described in more detail below. In May 2008, Lynn was indicted for receipt or distribution of child pornography in violation of § 2252(a)(2) and possession of child pornography in violation of § 2252(a)(4)(B), as well as a forfeiture count related to the laptop.
Lynn went to trial, and a jury returned a verdict of guilty on both substantive counts. During trial, the government presented an expert, Robert Leazenby, Special Agent with the Wyoming Division of Criminal Investigation, to explain to the jury the basics of computers, the Internet, and peer-to-peer networks. Among other things, Agent Leazenby explained the nature of the Limewire program and the “Gnutella” network it relies on, which together permit users to share files over the Internet. Once individual users or “peers” download the Limewire software to their computers, they can access dynamic indexing servers within the network that store information about the files being offered for download, or shared, by other peers in the network. A Limewire user can conduct a search of those files, pull up a list of users that have a file meeting the search criteria, and then download files that they want directly from other peers. Upon downloading the program, a Limewire folder is created on the hard drive, with sub-folders called “Incomplete,” “Shared,” and “Saved.” When a user downloads a file using Limewire, the file begins to download into the folder marked Incomplete. After the download is complete, the file is placed in the Saved folder, where by default it can be accessed by other members of the network.3
The government also called Kevin Wiens, an expert in computer forensics and the investigation of child exploitation cases with the Fresno County Sheriff's Department, to testify regarding his forensic examination of Lynn's laptop computer. He explained that Lynn's laptop had a Limewire folder with the standard sub-folders and that Wiens had located child pornography videos within the Shared, Saved, and Incomplete folders, and child pornography still images within the Saved and Shared folders.
The government's evidence on the interstate commerce element consisted of the testimony of two witnesses, Michael Crozier, retired Chief Deputy for the Stephens County Sheriff's Office in Georgia, and Roy Shepherd, of Richland, Washington's police department. A portion of one video retrieved from the Limewire Saved folder on Lynn's laptop was played for the jury, and Crozier identified the subject of the video as a minor victim of sexual abuse and exploitation from Georgia. He also stated that a copy of the video was found to have been mailed from an address in Georgia to London, England. Shepherd's testimony took a similar course: a portion of another video from Lynn's laptop (found in the Limewire Shared folder) was shown, and Shepherd identified its subject as a minor victim of sexual abuse and exploitation that took place in Washington.
Lynn's defense was that he downloaded the child pornography from Limewire inadvertently—that is, without knowledge that the files he selected en masse for download contained depictions of child pornography—and that he did not open or view the files after downloading them (with the exception of one image, which he immediately deleted). David Penrod, a computer forensics expert who examined an exact duplicate of Lynn's hard drive, testified on behalf of Lynn. Among other things,4 Penrod discussed the Gnutella network and said that, in using the network, one could be downloading files from users located in different states or countries, or right next door. Lynn also testified in his own defense.
The prosecutor's closing argument on the element of interstate commerce consisted of the following:
And you could look at [the interstate commerce element] as having been satisfied also with more than enough evidence. Any one image would be sufficient to support a conviction if the other elements are met. But just looking at that image element, it's clear that there were hundreds of images of minors engaged in sexually explicit conduct.
And for two of those images, we had witnesses come in from Washington [s]tate and the state of Georgia to explain they were investigators on those cases where those images were produced and they were produced in the state in which the abuse took place, in Washington or in Georgia.
And in the case of witness from Georgia, he said that he became aware of the need to investigate the case because the particular video, which was four hours in length, had surfaced in the United Kingdom.
So that image and those images had traveled not only in interstate commerce, from Georgia to California, but also from Georgia to the United Kingdom.
So, again, more than abundant evidence to find that this element has been met and that the defendant knew that the producing of the visual depiction involved the use of a minor engaged in sexually explicit conduct.
Again, this is something where you will have to use your common sense.
Following the government's case-in-chief, Lynn moved for judgment of acquittal under Federal Rule of Criminal Procedure 29, arguing that the government had produced insufficient evidence to meet its burden on the interstate commerce element of the charged offenses. The district court denied the motion at the close of evidence. After the jury returned a verdict of guilty on both counts, Lynn renewed his motion for judgment of acquittal under Rule 29, again on the basis of the interstate commerce element, and for a new trial under Rule 33. The district court denied these motions.
At sentencing, the district court adopted the Sentencing Guidelines range calculation in the Presentence Investigation Report, which was offense level of 41, criminal history category I, for a range of 324 to 405 months. The offense level included a two-level adjustment pursuant to U.S.S.G. § 3A1.1(b)(1) 5 for a vulnerable victim, to which Lynn objected in writing. Although the probation officer recommended a below-Guidelines sentence of 182 months, the district court sentenced Lynn to 210 months' imprisonment on the receipt count, and 120 months' imprisonment (the statutory maximum) on the possession count, to be served concurrently, with supervised release for a term of life.
Lynn raises three basic contentions in this appeal. First, he contends that his convictions for receipt and possession of child pornography under § 2252...
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