United States v. Kelley

• Decision Date: 30 June 2017
• Docket Number: No. 16-2696,16-2696
• Citation: 861 F.3d 790
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Jeremy KELLEY, Defendant–Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

861 F.3d 790

UNITED STATES of America, Plaintiff–Appellee

v.Jeremy KELLEY, Defendant–Appellant

No. 16-2696

United States Court of Appeals, Eighth Circuit.

Submitted: February 10, 2017

Filed: June 30, 2017

Counsel who presented argument on behalf of the appellant was Anna Marie Williams, AFPD, of Fayetteville, AR.

Counsel who presented argument on behalf of the appellee was Denis Dean, AUSA, of Fort Smith, AR.

Before SMITH,¹ GRUENDER, and BENTON, Circuit Judges.

SMITH, Circuit Judge.

Jeremy Kelley was convicted of one count of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2) and (b)(1), three counts of receiving child pornography in violation of 18 U.S.C. § 2252(a)(2) and (b)(1), and one count of possessing child pornography involving a minor under 12 years old in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). The district court² sentenced Kelley to five concurrent 124–month sentences. The court also imposed a $2,000 fine and a $5,000 special assessment pursuant to the Justice For Victims of Trafficking Act of 2015. Kelley appeals his conviction, arguing that the district court erred in denying his motion for acquittal, admitting testimony regarding his use of adult pornography, and imposing the $5,000 special assessment. Finding no error, we affirm.

I. Background

In May 2015, the Internet Crimes Against Children Task Force—a coordinated effort of federal, state, and local law enforcement—identified an Internet Protocol (IP) address in Northwest Arkansas that was used to download videos known to contain child pornography as previously catalogued by the National Center for Missing and Exploited Children. Using investigative software, law enforcement determined that approximately 59 files of known child pornography were downloaded from this IP address using the Ares peer-to-peer file-sharing network between January 7th and May 5th of 2015. Investigators traced the IP address to a Cox Communications account connected to a residence owned by Jeremy Kelley and his wife in Prairie Grove, Arkansas.

On June 25, 2015, investigators executed a search warrant on the residence connected to the internet account. Kelley and his wife were home when the search began. Special Agent Gerald Faulkner of Homeland Security Investigations interviewed Kelley, who confirmed that his family had internet service through Cox Communications and that the service was secured by a password. Kelley admitted that he was the primary user of a Toshiba laptop found in the living room and that his wife and other family members all used their own computing devices. Although Kelley and his wife were the home's only full-time residents, Kelley's children from other marriages would occasionally visit. Kelley admitted to having a paid membership to the Ares peer-to-peer network. He claimed that he had not used the Ares program to download pornography in years and that he only downloaded adult pornography. Agent Faulkner testified that Kelley admitted viewing adult pornography, stating:

I asked Mr. Kelley in the past what type of pornography, and he relayed that it was adult pornography, or what he called role-playing pornography, where adult females are made to look like underage teenage girls.

* * *

I asked Mr. Kelley when he did use[ ] to look up child pornography through Ares, what search terms, [and] he said that he would use "office sex," "lesbian," "young teen," "teen," and "Vicky Vette." ^[3]

* * *

I informed him that the downloads of known child pornography videos in question were approximately between January 7th through May 5th of 2015, at which time Mr. Kelley recanted his initial statement and said that he had, in fact, downloaded adult pornography during that timeframe through Ares.

* * *

I asked Mr. Kelley if any of those videos contained child pornography or depicted children of questionable ages. He said that some of them looked very young. One video in particular that he described, that based on the camera angle from the video and the underdevelop[ed] chest area of the child, it was hard to determine whether it was a boy or a girl.

Agent Faulkner also testified that Kelley recognized some of the titles of the files that the Task Force had identified as downloaded under Kelley's IP address: "Mr. Kelley advised that some of the titles in the downloads did look familiar, and he acknowledged the use of the term ‘Vicky’ in the titles." According to Agent Faulkner, a search for "Vicky," instead of "Vicky Vette," often returns child pornography depicting "an actual real girl [named Vicky] that has been rescued and identified by law enforcement, and her series of videos that had been transferred all over the world are now a known recognition to the National Center For Missing and Exploited Children."

Before leaving Kelley's home, law enforcement confiscated the computing devices found there, including the Toshiba laptop primarily used by Kelley. The computer had three user profiles, enabling access by Kelley, his wife, and his son. Detective Andy Higdon of the Fayetteville Police Department completed a forensic analysis of the Ares program on Kelley's laptop. He testified that Kelley's password-protected profile had run searches for files using the terms "8-yr-old," "daughter incest," "daughter lover," "kidnapped girl," "playtime niece," "sex uncle," and "pedo." He also testified that someone had searched for "Vicky" but not "Vette" using the program. Detective Higdon described how the Ares search feature worked: "when you're searching through the Ares program [,] for instance, the search keyword ‘daughter incest,’ that can be any part of the file.... If ‘daughter’ is a part of that filename, it's going to pull that. If ‘incest’ is a part of that filename, it's going to pull that." As an example, Detective Higdon described one of the video files found on Kelley's computer called "8–year niece learns sex with uncle," which could have been discovered through the search feature using several of the identified search terms including "8-yr-old," "sex uncle," and "playtime niece."

Detective Travis Monson of the Springdale Police Department also completed a forensic examination of Kelley's laptop. At trial, Detective Monson testified to finding more than an hour of video footage spread across 15 different video files containing child pornography. All the child pornography files were found on Kelley's password-protected profile, using the Ares account paid for by Kelley. Detective Monson identified the four files at issue in Kelley's indictment: three appeared to have been downloaded on May 5th between 1:17 p.m. and 2:07 p.m., and one was downloaded on May 1st. Detective Monson testified that download dates could be manipulated by adjusting the computer clock. He also noted the possibility of a batch download in which a user initiates the download of multiple files, and each file receives a timestamp at the time of its completion—thus, a person could start a large download in the morning, and each file would receive a timestamp at some point later in the day when the respective downloads are completed. Detective Monson also testified that a number of videos were in Kelley's "Recent Folder," meaning that the files had been accessed recently. The laptop also had installed a utility program called CCleaner. Among other things, this program is commonly used to remove pornography from computers. Kelley stipulated that all 15 videos contained images of child pornography involving minors under the age of 12. At the close of the government's case, Kelley moved for a judgment of acquittal, which the court denied.

Kelley largely defended against the charges by claiming an alibi. He asserted that on May 5, 2015, the day in which three of the video files were downloaded onto his computer, he was in Fort Smith, which is about 60 miles away from his home in Prairie Grove. He presented a single alibi witness, Heather Mann, who was a paramour of Kelley's. Mann testified to eating lunch in Fort Smith with Kelley on May 5, 2015, at a restaurant called China Jade. She estimated that she arrived at lunch around noon and was back at work by 1:15 p.m. She remembered distinctly that it was raining. Under cross-examination, Mann acknowledged conversing with Kelley about that rendevous as happening on a Wednesday.

Q. Now, do you remember further in that conversation ... Jeremy Kelley said, "I can remember what I was wearing. I knew exactly that it was either May 5th or May 6th. I looked at my calendar and it was a Wednesday"?

Do you remember him telling you that?

A. Yes.

Q. And he knows for sure it was a Wednesday because he was going to go down on Monday and he wasn't able to do so. So he went down two days later on a Wednesday. And then he went back on that Friday. So he remembers it was a Wednesday.

So Wednesday, May 5th?

A. Yes, sir.

The prosecution then informed Mann that May 5, 2015, was actually a Tuesday. Later, meteorologist Dan Skoff testified that according to historical weather data, Tuesday, May 5, 2015, was "completely clear" of precipitation, but that it rained for most of the day on Wednesday, May 6, 2015.

Kelley also testified about his activities on May 5, 2015. He claimed to have left his house around 8:45 a.m. to make sales calls in Fort Smith. He ate lunch with Mann and then visited a friend. He claimed to have returned home around 3:30 p.m. He also claimed that it was raining that day. He presented no further testimony, although claiming to meet with at least three other people. He produced no receipt from the restaurant, no credit card statement, no telephone or text message records, nor any documentation to verify that any of the meetings in Ft. Smith occurred on May 5th.

Regarding the files on his computer, Kelley admitted to seeing an image "of a person from the shoulder about midthigh from the side that had an arm that was raised," but he claimed that it occurred "[a]t least seven years passed." He also admitted to using the search terms "office sex," ...