U.S. v. Stulock, 02-1401.
| Citation | 308 F.3d 922 |
| Decision Date | 25 October 2002 |
| Docket Number | No. 02-1401.,02-1401. |
| Parties | UNITED STATES of America, Appellee, v. Edward M. STULOCK, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Michael A. Gross, argued, St. Louis, MO, for appellant.
Carrie A. Constantin, argued, Asst. U.S. Atty., St. Louis, MO, for appellee.
Before WOLLMAN, HEANEY, and BYE, Circuit Judges.
After Edward M. Stulock was convicted on one count of knowingly receiving child pornography, the district court1 sentenced him to a term of imprisonment of 72 months. Stulock appeals his sentence, arguing that the court erred when it assessed enhancements under the sentencing guidelines for use of a computer in connection with the transmission or advertisement of child pornography, for obstruction of justice, and for possession of child pornography depicting violence. We affirm.
In 1999, federal and state law enforcement officers raided a company engaged in distributing child pornography on the internet. Using a list of customer names and email addresses recovered from that company, the agents emailed offers to sell pornographic materials to Stulock and many other individuals included in the list. Stulock responded to the offer with a request for a list of materials containing "mostly girls, age 7-14, hardcore." After receiving a list of videos, Stulock mailed a personal check in payment for a videotape entitled "No Way," described as "Daddy fucks 10 year old daughter." Federal agents made a controlled delivery of the tape and shortly thereafter executed a search warrant. During the search of Stulock's home, the agents found the tape hidden in a bedroom closet and seized a personal computer.
Examination of Stulock's computer revealed evidence of his involvement with child pornography. Numerous images of children younger than 18 engaged in sexual acts were recovered from several locations on the computer. In addition, the web browser history indicated that Stulock had visited several web sites having names associated with child pornography, including www.hairless-lolita.com, www.preteenlinks.com, www.littlepussy.com, www.peachfuz.com, and www.lolitahardcore.com.
The agent who examined the computer explained to the district court that when a computer file is deleted, the contents of the file are not irretrievably lost. The space occupied by the file is flagged as available, and until new data is stored in that location the deleted file can be recovered using an undelete tool. In addition to the contents of the file, information about when the file was created, last modified, and last accessed can be recovered. Thousands of previously deleted files were recovered from the temp directory on Stulock's primary hard disk and from a secondary hard disk designated by the computer as the F drive. The temp directory is where a program such as an image viewer or a word processor will store a duplicate of a file that is opened for use. Any changes are made to the copy and only applied to the original when the user saves the file. The copy in the temp directory is deleted when the user closes the file. More than 3,000 deleted files were recovered from the temp directory, including numerous examples of child pornography. Stulock's computer was configured to use the temp directory as the location where downloaded files that had been packaged in the ZIP file format would be stored. A ZIP file can contain hundreds of images or other files, thus allowing a user to download many files without having to save each one individually. Thus, the presence of an image in the temp directory indicated that Stulock had either purposely downloaded the image in a ZIP file or had opened an image stored elsewhere on the disk using a viewer that created a temporary copy. Among the 1,007 deleted files recovered from the F drive were three identified as portraying a minor female in bondage. Three images were located in the internet browser cache. The browser cache contains images automatically stored by the computer when a web site is visited so that upon future visits the images need not be downloaded again, thereby improving the response time. Unlike the other files recovered, the images in the browser cache had not been deleted and then recovered.
Stulock was charged with knowingly receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2) and knowingly possessing child pornography in violation of § 2252A(a)(5)(B). After a bench trial, Stulock was convicted of knowingly receiving the child pornography videotape, but he was acquitted on the charge of knowingly possessing child pornography. The possession charge specified only the images found in the browser cache. The district court explained that one cannot be guilty of possession for simply having viewed an image on a web site, thereby causing the image to be automatically stored in the browser's cache, without having purposely saved or downloaded the image.
In sentencing guidelines cases, we review the district court's findings of fact for clear error and its interpretation of the guidelines and their application to the facts de novo. United States v. Hunt, 171 F.3d 1192, 1195-96 (8th Cir.1999). The district court applied three sentencing enhancements resulting in a combined increase of 8 levels. Stulock appeals the application of each of these enhancements.
First, Stulock argues that the enhancement for use of a computer in connection with the transmission or advertisement of child pornography was improper because his use of a computer was peripheral to his receipt of a video in the mail. U.S.S.G. § 2G2.2(b)(5) provides for a two-level enhancement "[i]f a computer was used for the transmission of the material or a notice or advertisement of the material." Stulock argues that the enhancement does not apply because he used his computer to receive rather than to send a "notice or advertisement." We find the analysis in United States v. Richardson persuasive. 238 F.3d 837 (7th Cir.), cert. denied, 532 U.S. 1057, 121 S.Ct....
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