U.S. v. Schene

• Decision Date: 29 September 2008
• Docket Number: No. 07-6177.,07-6177.
• Citation: 543 F.3d 627
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jay Martin SCHENE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

543 F.3d 627

UNITED STATES of America, Plaintiff-Appellee, v. Jay Martin SCHENE, Defendant-Appellant.

No. 07-6177.

United States Court of Appeals, Tenth Circuit.

September 29, 2008.

Robert L. Wyatt, IV, Wyatt Law Office, Oklahoma City, OK, for Defendant-Appellant.

Randal A. Sengel, Assistant U.S. Attorney (John C. Richter, United States Attorney, with him on the brief), Oklahoma City, OK, for Plaintiff-Appellee.

Before BRISCOE, SEYMOUR, and HARTZ, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant Jay Martin Schene was convicted by a jury of five counts of knowingly possessing material that contained an image of child pornography that was produced using materials that had been mailed, shipped, or transported in interstate commerce, in violation of 18 U.S.C. § 2252A(a)(5)(B). Schene contends that: (1) the evidence was insufficient to show that the images of child pornography were produced using materials that had been mailed, shipped, or transported in interstate commerce; (2) the evidence was insufficient to show that Schene committed the crime; (3) the district court abused its discretion by admitting into evidence certain testimony regarding gender and homosexuality; and (4) the district court abused its discretion by admitting into evidence images of child pornography, and related exhibits. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

I.

In February 2005, the Federal Bureau of Investigation ("FBI") in Allentown, Pennsylvania, searched the computer of an individual suspected of having child pornography. In the process, they discovered emails from a second individual, whose screen name with America Online ("AOL") was "skitie33." The FBI served a subpoena on AOL, and AOL disclosed that skitie33 was Donald Black, of Duncansville, Pennsylvania. In April 2005, the FBI executed a search warrant on Black's residence and seized four computers. Black admitted trading child pornography with a number of individuals online, although he could not remember any of their names or screen names.

The FBI performed a search of Black's computer, and one of the screen names that they uncovered was "outdoorguy104166."¹ The FBI served another subpoena on AOL, and AOL disclosed that the screen name corresponded to the account of Defendant Schene, who lived in Edmond, Oklahoma. Several other screen names were associated with Schene's account, including "ccarlin317," "myebayshades," "ebayshades," and "okseecat." The FBI referred this information to its Oklahoma City office.

In Oklahoma City, FBI special agent William Weaver performed a search of public records and determined that Schene's home address was in Edmond, Oklahoma. Agent Weaver stopped by Schene's home several times to investigate, and eventually, near the end of May 2006, a woman answered the door. Agent Weaver left his business card with her, and he requested that Schene contact him. Later that morning, Schene called Agent Weaver, who asked Schene to come to the FBI office for an interview. Schene agreed.

At the interview, Schene stated that he had never used, or heard of, outdoorguy. Schene admitted, however, that he used two of the other screen names: ccarlin317 and okseecat. He stated that he worked as a financial advisor for Chase Bank, and that he was married to Cathy Carlin, whose email address was carlincathy@ yahoo.com. When asked, Schene consented to a search of his home computer, and FBI agents accompanied him to his house to perform the search. During the search, Schene told the agents that there were no children in the house, and only he and his wife used the computer.

The FBI agents searched Schene's computer using a software tool called "Presearch," which finds all of the images on the computer's hard drive and shows them one-by-one. At first, the agents only saw images of homes and other generic images from the internet, but eventually, images of child pornography began to appear. Schene denied that the images were his, and he stated that he had no idea how the images had come to be on his computer. The agents seized the computer.

At the FBI office, Bryan Carter, a computer forensics expert, examined the computer in detail. Mr. Carter focused on the hard drive because everything on the computer was stored there, and any visual images came from information on the hard drive. He used several software tools to look for images, and these tools enabled him to search for specific file types — such as images and emails — and to uncover a lot of information about each file. The tools even enabled him to find files that the user had attempted to delete.

Mr. Carter discovered two operating systems on Schene's computer: Windows XP Professional and Windows XP Home Edition. The user had to choose between the two operating systems immediately after starting the computer. Within each operating system were two user names — one for Jay Schene and another for Cathy Carlin — and none of the user names required a password. The email service on the computer was AOL, and Mr. Carter found all of the screen names that AOL had listed in its response to the FBI's subpoena. He also found the email address book that AOL automatically created for outdoorguy. Included within the address book was the screen name skitie33, which the FBI had previously determined to be the AOL screen name for Donald Black of Duncansville, Pennsylvania, who had admitted trading child pornography with a number of individuals online.

During his search of the computer, moreover, Mr. Carter found over 1900 images of child pornography, about half of which the user had attempted to delete. He discovered most of the images in emails associated with outdoorguy and ccarlin317. He also found pornographic movies involving children, as well as a history of movies that had been "created" and viewed on the computer. Some legitimate emails — i.e., emails not containing child pornography — had been sent from ccarlin317 with Jay Schene's signature at the bottom. There was also a wiper/shredder program on the computer,² scheduled to run daily on Cathy Carlin's user profile but accessible from either of the user profiles.

At Schene's trial, the government presented the evidence described above, including the images of child pornography that pertained to each of the five counts in the indictment. In addition, the government read into evidence a stipulation to which all parties had agreed, which stated:

The parties to this case stipulate and agree that the following fact may be accepted as proven:

The hard drive from the defendant's computer is a Seagate 20 gigabyte hard drive. This hard drive was manufactured in the country of Singapore.

Stip., ROA, Vol. I, at 62; Tr. at 104.

The government then called as a witness Jeffrey Elliott, a captain with the Oklahoma Highway Patrol who had been assigned to the FBI cyber crimes task force to investigate crimes involving computers and the sexual exploitation of children. Officer Elliott testified, without contemporaneous objection from Schene, about the content of the images:

A I would say probably 90 to 95 percent of the images that were child pornography were images of young boys. They may be nude by themselves in a sexually provocative position, they may be engaged in a homosexual act with another young boy or an adult male.

Q And in your experience in working with cyber crimes and these types of investigations, have you ever seen a woman who trafficked in child pornography showing homosexual acts between males?

A I have not.

Tr. at 107. Officer Elliott also described an exchange of emails between outdoorguy and an individual using the screen names "butwhoishe" and "handsomehorn." The emails contained images of child pornography, and outdoorguy sent and received several such emails within an hour-long period on the evening of April 28, 2006. Officer Elliott explained further that outdoorguy had sent an email to himself, with seventy-six images of child pornography attached, which would have enabled outdoorguy to access these images on other computers. Finally, on redirect examination, Officer Elliott testified:

Q Now, on the internet history, were there instances you could find where websites with homosexual themes had been visited?

A Yes, sir. I saw repeatedly, I saw the user under the Jay Martin Schene account visit www.menforsexnow.com, www.menforrentnow.com, www. cruisingforsex.com. And there was an address at library.gaycafe.com that was visited very frequently.

Q And did you look at a few of these websites?

A I did. I visited each of those. Each of them are gay oriented for males. They all offered child pornography to view. They are kind of a social networking site where you can post your profile or post an ad requesting to meet with someone and that kind of thing.

Tr. at 126.

As his defense, Schene tried to show that the government had not proven that it was he who had knowingly possessed the pornography. On cross examination, Agent Weaver admitted that he did not know the identity of the woman who first answered the door at Schene's address. He admitted that he never attempted to interview Schene's wife; he never searched her business computer; he never searched Schene's work computer; and he never put together a time-line of Schene's computer usage. Further, Agent Weaver agreed that Schene contacted him very quickly after Agent Weaver left his business card at the residence, and Schene cooperated fully with the investigation — answering all questions and granting the FBI access to his computer. Agent Weaver agreed that families commonly share an AOL screen name and email account, and that neither Jay Schene's nor Cathy Carlin's user name required a password. Schene also questioned Agent Weaver about whether the FBI had unduly focused on Schene — rather than his wife — because Schene was a man:

A I believe we asked if he had any children in the home and he said no. And then it was asked whether he had any nephews or nieces that...