United States v. Eychaner

Citation326 F.Supp.3d 76
Decision Date15 August 2018
Docket NumberCriminal Case No. 4:17cr76
CourtU.S. District Court — Eastern District of Virginia
Parties UNITED STATES of America, v. Elmer Emmanuel EYCHANER, III, Defendant.

Lisa Rae McKeel, Megan Cowles, United States Attorney Office, Newport News, VA, for United States of America.

OPINION AND ORDER

Mark S. Davis, UNITED STATES DISTRICT JUDGE

This matter is before the Court on a Renewed Motion for Judgment of Acquittal filed by Defendant Elmer Emmanuel Eychaner, III ("Defendant" or "Eychaner") pursuant to Federal Rule of Criminal Procedure 29 (c) (1). ECF No. 90. For the reasons noted below, Defendant's Renewed Motion for Judgment of Acquittal is DENIED as to Counts Two, Three, and Four, but the Motion is GRANTED as to Count Five, and Defendant's conviction on Count Five is VACATED .

I. Background

In August 2017, Defendant was charged with the following five counts: Access with Intent to View Visual Depictions of Minors Engaging in Sexually Explicit Conduct, in violation of 18 U.S.C. § 2252 (a) (4) (B) (Count One); Attempted Receipt of Visual Depictions that Depict Minors Engaging in Sexually Explicit Conduct and are Obscene, in violation of 18 U.S.C. § 1466A(a) (1) (Count Two)1 ; Destruction of a Tangible Object to Impede a Federal Investigation, in violation of 18 U.S.C. § 1519 (Count Three); Obstruction of Justice - Attempted Evidence Tampering, in violation of 18 U.S.C. § 1512(c) (1) (Count Four); and Penalties for Registered Sex Offender, in violation of 18 U.S.C. § 2260A (Count Five). Indictment, ECF No. 1.

In September 2017, Eychaner entered a plea of not guilty and a jury trial was scheduled. The trial date was later continued to May 15, 2018. ECF No. 25. On May 13, 2018, the Government moved to dismiss Count One of the Indictment. ECF No. 62. The Court granted the motion the next day. ECF No. 70. After a four-day jury trial, on May 18, 2018, the jury returned guilty verdicts on each of the remaining counts of the Indictment. ECF No. 86.

A. The Evidence Presented at Trial

The evidence at trial revealed that in December 2007, Eychaner pled guilty to Possession of Material Containing Child Pornography. In March 2008, he was sentenced to 120 months imprisonment and a term of lifetime supervision. See Judgment, United States v. Eychaner, No. 2:07cr183 (E.D. Va. Mar. 13, 2008), ECF No. 30. As special conditions of supervised release, Defendant was prohibited from (1) possessing or using a computer to access any online computer services at any location without the prior approval of the probation officer and (2) from possessing or accessing pornographic material or any pictures of juveniles. Id. at 4.

In June 2016, Defendant began his term of supervised release. Shortly thereafter, Eychaner spoke to Probation Officer Stephanie Powers, who was supervising him at the time, and told her that he wanted to obtain a computer to conduct job searches. Eychaner agreed in writing that his computer would be monitored, and he signed forms advising him that the Probation Office would monitor his computer in a variety of ways through software provided by RemoteCOM, a third-party vendor. See Waiver of Hearing to Modify Conditions of Supervised Release, United States v. Eychaner, No. 2:07cr183 (E.D. Va. July 15, 2016), ECF No. 40. He was also specifically advised that the monitoring software could "restrict and/or record any an[d] all activity on the computer, including keystrokes and Internet use history." Id. On August 8, 2016, RemoteCOM's monitoring software was installed onto Defendant's computer.

Later that August, Probation Officer Stephanie Powers received information from RemoteCOM about Defendant's suspicious computer activities. After being confronted about this information, Eychaner admitted to having performed an Internet search for images of clothed minors. At that time, he also told his probation officer that he had used a voice recognition program called Cortana2 to circumvent RemoteCOM's keystroke monitoring. Probation Officer Powers then instructed Eychaner to use his computer only to search for jobs, but she allowed him to keep his computer.

On November 17, 2016, utilizing his own computer, Defendant used his roommate's Wi-Fi to access the Internet in order to perform searches on Bing.com using the Cortana voice recognition program. Eychaner used many sexually explicit search terms3 that generated a large number of anime images depicting children engaged in sexual activity.4 In addition to his Bing.com searches, Defendant also went to the websites "premiumhentai.site" and "premiumhentai.biz" to find additional anime images. Defendant's online activities that evening lasted from 6:34 p.m. to 7:38 p.m., during which time RemoteCOM's monitoring software captured still screenshot images from Defendant's computer screen every ten seconds.

On the morning of November 18, 2016, Defendant called Probation Officer Candace Yost, who was then supervising him, and told her that he wanted to return his computer because the monitoring software was too expensive. Less than an hour later, he called back and stated that he had not been honest with her. He then confessed that he had accessed inappropriate images on his computer the night before, which he described as "anime child pornography." Defendant also related that he had been able to access these images using the Cortona voice recognition program and that he believed that he had found a hole in the monitoring system.

After hearing Eychaner's confession, Probation Officer Yost then went to Probation Officer Mako, who was in charge of computer monitoring for the United States Probation Office for the Eastern District of Virginia. Probation Officer Mako examined Eychaner's computer activity and confirmed that, while there was no unusual activity in the keystroke monitoring section from the previous night, RemoteCOM had captured hundreds of screenshots showing that Eychaner had viewed explicit images.

Probation Officer Yost then called Eychaner back and told him she needed to collect his computer. Eychaner replied that he was at work at the moment, but that he would be home later that day. He also told her that he had already taken his hard drive out of his laptop and thrown it down a storm drain on the way to work that day. Eychaner stated that he had done this because he was angry at his computer, which he described as "the danger zone." Probation Officer Yost then told him that she would need him to collect all the remaining pieces of his laptop for her to retrieve later that day.

In the early evening of November 18, 2016, Probation Officers Yost and Powers went to Eychaner's residence to collect his computer. At that time, Eychaner again confessed to having viewed images he described as "anime child pornography" the night before. He then gave the probation officers his computer mouse and power cord, and led them outside the residence to a trash can where he removed the remaining pieces of his broken laptop computer and his laptop's battery. The computer was missing its hard drive, and the hard drive was never recovered.

Probation Officer Yost later took the pieces of Defendant's computer and gave them to FBI Task Force Officer Call, who then turned them over to Computer Forensic Analyst ("CFA") Jones for analysis. CFA Jones testified at trial that he could not conduct a forensic examination of the computer because of the missing hard drive. Officer Call and CFA Jones also testified about the steps that would have been taken in the investigation if there had been a hard drive to forensically analyze.

At trial, the Government published thirteen images to the jury from the complete screenshots captured from Defendant's Bing.com image searches.5 In their unredacted form, the screenshots show around 20 images from the results returned from Eychaner's Bing.com searches. The thirteen images published to the jury each show one image from a particular screenshot, with the remaining images all redacted. See Gov.'s Exs. 14a-la, 14a-1b, 14a-1c, 14a-2, 14a-6a, 14a-6b, 14a-7a, 14a-7b, 14a-8, 14a-9, 14a-10, 14a-11, and 14a-12;6 see also Special Jury Verdict Form, ECF No. 86 (listing image numbers).

In addition to the thirteen images from the Bing.com searches, the Government also published five screenshot images from premiumhentai.site and premiumhentai.biz.7 See Gov.'s Exs. 14a-4, 14a-13, 14a-14, 14a-15, 14a-16; see also Special Jury Verdict Form, ECF No. 86 (listing image numbers). One of these screenshots features the following description of a set of images available on premiumhentai.site:

The newest lolicon 3d image set by Vinput in perfect picture quality. Horny little loll girls posing naked and taking huge cocks inside their tight wet little pussies. This set contains 25 seconds of bonus animation video with cute naked dancing little girl, enjoy! Also, don't miss the others [sic] volumes!

Gov.'s Ex. 14a-14 (listing 19 images and one video in the set). Two of the other images include information on the page listing the type of images in the "set," the number of images in that set, and the username of the set's "author." See, e.g., Gov.'s Ex. 14a-15 ("Type: lolicon images | Author: Pororin | 27 pics"). In addition, two of these images also feature a large "DOWNLOAD" button on the screen. See Gov.'s Exs. 14a-14, 14a-15.

Among the Government's exhibits submitted at trial were several screenshots showing that, at the moment the screenshot was taken, the images had been enlarged either by hovering over the image or by clicking on it. See Gov.'s Exs. 14a-4, 14a-16. The Government also submitted screenshots taken just after 8:00 p.m. on November 17 that show that Eychaner deleted his Bing.com search history. See Gov.'s Ex. 12 at 80 (featuring a browser tab for "Bing-Search History" with a box stating "Clear your history" and "You're about to delete your entire search history. Are you sure you want to continue?" where the button for "Yes" appears to have been selected.).

The Defendant's evidence...

To continue reading

Request your trial
1 cases
  • United States v. Whitley
    • United States
    • U.S. District Court — Eastern District of Virginia
    • 3 Junio 2022
    ...light most favorable to the government, any rational trier of fact could have found the elements of the offense beyond a reasonable doubt.” Id. (quoting United States v. United Med. & Supply Corp., 989 F.2d 1390, 1402 (4th Cir. 1993)). B. Analysis 1. Robinson's Motion Robinson, who was conv......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT