U.S. v. Tucker, 2:98-CR-425C.

• Decision Date: 04 May 2001
• Docket Number: No. 2:98-CR-425C.,2:98-CR-425C.
• Parties: UNITED STATES of America, Plaintiff, v. Jeffrey TUCKER, Defendant.
• Court: U.S. District Court — District of Utah

150 F.Supp.2d 1263

UNITED STATES of America, Plaintiff, v. Jeffrey TUCKER, Defendant.

No. 2:98-CR-425C.

United States District Court, D. Utah, Central Division.

May 4, 2001.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGEMENT

CAMPBELL, District Judge.

Defendant Jeffrey Tucker ("Tucker" or "Defendant") is charged under 18 U.S.C. § 2252A(a)(5)(B) with knowing possession of child pornography. The court held a bench trial on this matter on January 4, 2001 and enters the following findings of fact, conclusions of law, and judgement.

Findings of Fact

There is little dispute about the facts of this case.¹ An admitted pedophile, Defendant was paroled from Utah State Prison on May 14, 1996, after completing a sentence for the sexual abuse of a child. Under the conditions of his parole, Tucker was specifically required to comply with all federal, state and municipal laws. Adult Probations and Parole Officer Kenneth England supervised Defendant on parole. After his release, Tucker lived and was employed in Salt Lake City by the United States Bureau of Reclamation.

Subsequent to his parole, Tucker used his computer to visit websites and newsgroups that gave him access to, and allowed him to receive images of, child pornography. Tucker visited these sites many times. Acting on information of a possible parole violation, parole officers conducted a search of Tucker's residence and computer on June 11, 1998. When the officers entered Tucker's home, they found his computer on and a newsgroup entitled "alt.sex.preteen" on his computer screen. During the search, Detective Gruber, a Salt Lake City Police Officer who participated in the search, noticed that many images had been deleted from Tucker's computer that day. After waiving his right to counsel pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Tucker stated that on his computer he had viewed at least several hundred pictures of children between the ages of ten and twelve who were engaged in sexual acts and poses.

At trial, evidence was presented that Tucker had participated in several Internet newsgroups that allowed him to receive images of child pornography. To gain access to these sites, Tucker paid a membership fee for which he received a password. Tucker visited these sites often, and posted several messages on them. The evidence demonstrated that Tucker frequently had visited these sights to view at least five thousand pictures of child pornography. In an interview with Detective Ryan Atack, Tucker admitted visiting pornographic websites on the Internet and seeking out those that featured pornographic depictions of children. When initially visiting one of these Internet sites, Tucker would view a series of "thumbnail" pictures (smaller pictorial versions which may be enlarged) of the child pornography available on the site. Tucker would enlarge any picture he wished so that he could view for as long as he liked and then move on to the next image. During these sessions Tucker had the ability to show the material to others; he could also manipulate the images by enlarging them, and make hard paper copies by printing them. The images Tucker viewed were automatically stored on Tucker's computer cache file, which would enable Tucker to load the picture more quickly if he sought to view an image again.²

In the interview where Agent Atack was present, Tucker also admitted that on June 11, 1998, he had been looking at pornographic images of children who were between the ages of ten and twelve through newsgroups entitled alt/sex/preteens and alt/sex/erotica/teens. He further admitted that he had deleted his computer cache file on June 11, 1998, because it was something that he always did when he "was done." (Transcript of Bench Trial, January 4, 2001 [hereinafter "Tr."].) He stated that he always deleted the images that he had viewed once he was finished with them because "it's like there's always new ones." (Tr. at 105.) Even though Tucker made a practice of deleting the images saved in his cache file after a session of viewing, at least one was saved on his computer's c-drive in a file folder called "Xmission." (Tr. at 72, 81.) On another occasion Tucker either copied or attempted to copy two hundred and nine separate images to a floppy disk on his computer's a-drive. (Tr. at 82-4.) One of those images was then either copied on a disk in the a-drive or viewed by Tucker from a floppy disk on the a-drive. (Tr. at 84.) Tucker said that he did not save the images as a usual practice, but rather deleted them, because he could always access more.

Tucker's computer was seized pursuant to a parole search and was taken to the Salt Lake City Police Department and booked into evidence. Agent Dan Hooper from the Utah Department of Public Safety subsequently conducted a search and forensic examination of the computer. In this examination, Agent Hooper made an exact copy of Tucker's computer hard drive so as to preserve the original hard drive. In his investigation, Agent Hooper found numerous images of child pornography on the hard drive which depicted children engaged in sexually explicit conduct. These images were recovered from the Internet Explorer cache file and the Temporary Internet Files in the computer hard drive's recycle bin. Agent Hooper also found one image of child pornography, file 5-16-98, in the computer's c-drive—a location other than the cache file where images viewed from the Internet were stored by Tucker's computer.

Conclusions of Law

Tucker is charged with knowing possession of child pornography under the pre-amended version of 18 U.S.C. § 2252A(a)(5)(B), which imposes criminal liability on an individual who:

knowingly possesses any book, magazine, periodical, film, videotape, computer disk, or any other material that contains 3 or more images of child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, shall be punished as provided in subsection (b).

18 U.S.C. § 2252A(a)(5)(B) (1997).³ The parties have both stipulated that the images Tucker viewed on the Internet were "mailed, or shipped or transported in ... interstate commerce." Id. Tucker further does not contest the fact that he viewed a number of visual depictions of child pornography on his home computer. He does contend that he is not subject to criminal liability under the statute because he never "possessed" or "knowingly possessed" any child pornography. Because Tucker admits viewing the child pornography, and also concedes that the images viewed where "other material" constituting child pornography for the purposes of the statute, the only remaining questions to be resolved in this matter are: 1) whether Tucker had possession under 18 U.S.C. § 2252A(a)(5)(b) such that he is subject to criminal liability; and 2) whether such possession was knowing possession.

I. Did Tucker "Possess" Child Pornography?

The word `possess' means to own or to exert control over. The word `possession' can take on several different, but related, meanings. The law recognizes two kinds of `possession'—actual physical possession and constructive possession. A person who knowingly has direct physical control over a thing at a given time is then in actual possession of it.

O'MALLEY, GRENIG, AND LEE, FEDERAL JURY AND PRACTICE INSTRUCTIONS: CRIMINAL § 16.05, "Possession"—Defined (5th ed.2000)(emphasis added). "The term `possess' means to exercise authority, dominion or control over" a given thing. DEVITT, BLACKMAR, AND O'MALLEY, FEDERAL JURY AND PRACTICE INSTRUCTIONS: CRIMINAL § 36.12, "Possess"—Defined (4th ed.1992)(emphasis added). "As so defined, possession means actual physical possession, just as having the drugs or weapons in one's hand, in one's home or other place under one's exclusive control." County Court of Ulster County v. Allen, 442 U.S. 140, 163 n. 21, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979). Black's Law Dictionary defines natural possession as "[t]he exercise of physical detention or control over a thing...." BLACKS LAW DICTIONARY 1184 (7th ed.1999). "In order for an individual constructively to possess property, he must knowingly hold the power and ability to exercise dominion and control over it." United States v. Culpepper, 834 F.2d 879, 881 (10th Cir.1987) (citations omitted). "Constructive possession may be established by circumstantial evidence." Id., citing United States v. Massey, 687 F.2d 1348, 1354 (10th Cir.1982). With regard to possession of contraband such as narcotics, the Tenth Circuit has also "defined constructive possession as `an appreciable ability to guide the destiny of the'" contraband. Id., quoting Massey, 687 F.2d at 1354 (emphasis added).

Given this definition, Tucker had possession of the child pornography. Tucker had control over the images he viewed on his computer due to the fact that he could detain them on his monitor as long as he liked and control them by, among other things, enlarging and manipulating them. While the images that Tucker received were on his computer screen, he could control them in many ways: he could copy them had he chosen; he could print them had he chosen; he could enlarge them and "zoom-in" on the pictures as he chose; he could show them to other had he chosen; and he could copy them to other directories—as he attempted to do with the 5-16-98 files found on his c-drive, outside of his cache file. It is true that when Tucker viewed the images, the site and its images were automatically saved on Tucker's cache file, and that Tucker did not play any role in this automatic operation other than gaining access to the websites and viewing child pornography; yet Tucker also demonstrated ultimate dominion and control over these images because he was able to destroy them by deleting them...