United States v. Hilton

• Citation: 257 F.3d 50
• Decision Date: 10 May 2001
• Docket Number: No. 00-2545,00-2545
• Parties: (1st Cir. 2001) UNITED STATES OF AMERICA, APPELLEE, v. DAVID HILTON, DEFENDANT, APPELLANT. Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 50

257 F.3d 50 (1st Cir. 2001)

UNITED STATES OF AMERICA, APPELLEE, v. DAVID HILTON, DEFENDANT, APPELLANT.

No. 00-2545

United States Court of Appeals For the First Circuit

Heard May 10, 2001

Decided July 27, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. Gene Carter, U.S. District Judge] [Copyrighted Material Omitted] Peter E. Rodway with whom Rodway & Horodyski was on brief for appellant.

F. Mark Terison, Senior Litigation Counsel, with whom Jay P. McCloskey, United States Attorney, was on brief for the United States.

Before Boudin, Chief Judge, Selya, Circuit Judge, and Schwarzer,^* Senior District Judge.

Boudin, Chief Judge

David Hilton was convicted in federal district court in Maine on one count of possessing child pornography. Hilton now appeals, challenging the constitutionality of the statute under which he was convicted, the Child Pornography Prevention Act of 1996 ("CPPA"), 18 U.S.C. §§ 2252A(a)(5)(B) (Supp. II 1996), and the sufficiency of the government's evidence at trial. In an added twist, Hilton claims that he collected the pornographic material at the government's behest. Finally, Hilton argues that the district court erred in its application of the sentencing guidelines.

In November 1995, David Hilton contacted the FBI and said that he had received child pornography over the Internet and wished to turn it over to the government to assist in the enforcement of child pornography laws. Over the next three months, Hilton met with FBI Special Agent Thomas Honan on three or four occasions, at which time he provided Honan with pornographic materials on computer disc and, on one occasion, Honan copied material with Hilton's assistance directly from Hilton's computer.

During this same period, Honan authorized Hilton to save any unsolicited materials that he received in order to turn it over to the FBI. However, in February 1996, the FBI concluded that the material Hilton was providing was duplicative and Honan informed Hilton that he should no longer collect information for the FBI. In addition, Honan reminded Hilton that the possession of child pornography was illegal.

In August 1997, Hilton contacted the United States Customs Service and offered to help the agency investigate child pornography. On October 29, Hilton met with two Customs agents, provided them with a computer diskette that contained pornographic images, and demonstrated how he posed as a young girl in Internet "chat rooms." The agents reminded Hilton that possession of child pornography was illegal, told him he could not collect any further materials unless a law enforcement official was present, and twice asked him if he had any other materials (to which he replied "no" both times). The agents arranged another meeting with Hilton for early November.

Prior to the follow-up meeting and for a variety of reasons, the customs agents became suspicious of Hilton's motives. On November 7, agents executed a search warrant of his apartment, which revealed an extensive collection of adult pornography and hundreds of pictures of nude children. Hilton's computer, computer-related documents, and computer disks and storage tapes were seized. Importantly for this appeal, agents found three sets of what the government alleges is child pornography: seven images on a Sony computer backup tape, four images on a single sheet of paper in a gray box near Hilton's computer, and three images on Hilton's computer hard drive.

After indictment in December 1997, Hilton moved to dismiss the indictment based on constitutional grounds, and the district court granted Hilton's motion, finding that the CPPA was both overbroad and so vague as to violate due process. United States v. Hilton, 999 F. Supp. 131, 136-37 (D. Me. 1998). On the government's appeal, this Court reversed, upholding the Act's constitutionality. United States v. Hilton, 167 F.3d 61, 77 (1st Cir.), cert. denied, 528 U.S. 844 (1999). Thereafter, a superceding indictment was issued and Hilton, having waived his right to a jury, was convicted after a three-day bench trial. United States v. Hilton, No. 97-78-P-C, 2000 WL 894679, at *10 (D. Me. June 30, 2000).

At sentencing, the district court applied two two-level enhancements to Hilton's base offense level. The first enhancement (which Hilton does not now contest) was applied because Hilton possessed pornographic material depicting a prepubescent minor or minor under the age of twelve. U.S.S.G. §§ 2G2.4(b)(1) (2000). The second was applied because the district court concluded that Hilton possessed "ten or more items" of child pornography. Id. at §§ 2G2.4(b)(2). The district court also found that Hilton had not accepted responsibility for his conduct and therefore was not entitled to the corresponding two-level reduction in his base offense level. Hilton was subsequently sentenced to 40 months' imprisonment and three years supervised release.

Hilton now appeals and asks us to vacate his conviction and sentence. In reviewing his claims, we view the evidence in the light most favorable to the verdict, United States v. Hughes, 211 F.3d 676, 681 (1st Cir. 2000), reversing for insufficient evidence only if no rational trier of fact could have found a defendant guilty, United States v. Blasini-Lluberas, 169 F.3d 57, 62 (1st Cir. 1999). We review questions of law de novo and defer to the extent appropriate on mixed questions of law and fact. In re Extradition of Howard, 996 F.2d 1320, 1327-28 (1st Cir. 1993).

Hilton begins with a broad attack on the CPPA's constitutionality, but we have rejected this claim on Hilton's earlier appeal. Hilton, 167 F.3d 61 at 76-77. Hilton asks that we reconsider our prior holding in light of a Ninth Circuit decision in Free Speech Coalition v. Reno, 198 F.3d 1083, 1097 (9th Cir. 1999), striking down part of the CPPA, cert. granted sub nom. Ashcroft v. Free Speech Coalition, 121 S. Ct. 876 (Jan. 22, 2001), but we decline to do so, noting that the Ninth Circuit struck down only those portions of the Act making illegal possession of computer generated images of fictitious children. Free Speech Coalition, 198 F.3d at 1097.

Next, Hilton challenges the sufficiency of the government's evidence at trial. Hilton first says that the government failed to prove beyond a reasonable doubt that he knowingly possessed three or more images of child pornography, the minimum number required by the statute at the time of Hilton's offense conduct. ¹ He argues that because there were so many other images (between 2,000 and 3,000) on his computer hard drive and various storage media, the government failed to prove that he actually knew that some of the files contained child pornography.

In convicting Hilton, the district court found it necessary to rely only on the seven images on the backup tape, which Hilton concedes were child pornography. Hilton is correct that the government must prove that he knew that he possessed the images in question. Hilton, 167 F.3d at 75. However, the government did present sufficient evidence to prove that Hilton knew of the images on the tape. The critical testimony came from Customs Agent Stephen Marx--an expert in computer forensics.

Marx testified that four of the images on the Sony backup tape (which also appeared on the sheet of paper located in the gray box in Hilton's apartment) were the same as images that Hilton had earlier turned over to the Customs Service at their October 1977 meeting. Marx said that the files on the backup tape had different creation dates than those turned over during the October meeting, even though the images were identical, and that one file also had a different name. Thus, said the agent, the images had either been downloaded at different times or the computer operator (Hilton) had manually manipulated the files.

In either case, Hilton would have been aware of the material contained in the files. See United States v. Hall, 142 F.3d 988, 997 (7th Cir. 1998). That Hilton knew what he was downloading and saving is further supported by Hilton's knowledge of computers (as illustrated by his demonstrations to the agents during their meetings) and by his profession (an electronics technician). Hilton presented no evidence to counter these inferences, and his cross examination of Marx cast no doubt on Marx's testimony. The district court did not err in concluding that Hilton knowingly possessed the pornographic images.

Hilton next argues that the government failed to prove beyond a reasonable doubt that the images he possessed traveled in interstate commerce. The government has this burden as to each image necessary for conviction. United States v. Henriques, 234 F.3d 263, 266 (5th Cir. 2000). Under the case law, proof of transmission of pornography over the Internet or over telephone lines satisfies the interstate commerce element of the offense. United States v. Carroll, 105 F.3d 740, 742 (1st Cir.) (Internet), cert. denied, 520 U.S. 1258 (1997); United States v. Gilbert, 181 F.3d 152, 158-59 (1st Cir. 1999) (telephone).

Here, Agent Marx identified two factors to show that the images in question had traveled in interstate commerce. First, the files on the Sony backup tape were located in a so-called "MIRC" subdirectory, which contained software used in conjunction with Internet chat rooms. This, according to Marx, made it "likely" that the images had been downloaded from the Internet. Second, the time and date features of each of the image files were "indicative" of files that had been transmitted via modem. Modems are commonly used to link computers to telephone lines.

Hilton says that there was no evidence before the district court that this is what modems do and he objects that taking judicial notice was improper because (he says) "[t]he meaning and operation of a modem is not within the range of normal knowledge" and the court did not notify the parties of its intention to take judicial notice. Rule 201 provides that a...