United States v. Lowe

• Decision Date: 28 July 2015
• Docket Number: No. 14–5615.,14–5615.
• Citation: 795 F.3d 519
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. James Paul LOWE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

795 F.3d 519

UNITED STATES of America, Plaintiff–Appellee

v.James Paul LOWE, Defendant–Appellant.

No. 14–5615.

United States Court of Appeals, Sixth Circuit.

Argued: April 23, 2015.

Decided and Filed: July 28, 2015.

ARGUED:Christopher T. Varner, Evans Harrison Hackett PLLC, Chattanooga, Tennessee, for Appellant. Terra L. Bay, United States Attorney's Office, Chattanooga, Tennessee, for Appellee. ON BRIEF:Christopher T. Varner, Evans Harrison Hackett PLLC, Chattanooga, Tennessee, for Appellant.Terra L. Bay, United States Attorney's Office, Chattanooga, Tennessee, for Appellee.

Before: SILER, COOK, and STRANCH, Circuit Judges.

OPINION

COOK, Circuit Judge.

James Paul Lowe appeals his conviction for knowingly receiving, distributing, and possessing child pornography in violation of 18 U.S.C. § 2252(a). He concedes that a laptop computer found in his home contained hundreds of image and video files depicting child pornography but maintains that no rational juror could find beyond a reasonable doubt that he knew about those files or placed them there. We agree and REVERSE Lowe's conviction.

I.

Between March and August 2011, a user downloaded child pornography to a laptop found in the home James Lowe shared with his wife, Stacy Lowe. The Lowes lived at 2204 Robin Street in Athens, Tennessee. Michael Lowe, a minor relative described by one witness as James Lowe's “adopted child,” lived with James and Stacy at some point during 2011 but moved out before agents searched the home in August.

Four government witnesses testified at Lowe's trial. Bradley County Sheriff's Office Detective J.P. Allman recounted learning in early 2011 that someone was using a particular Internet Protocol (IP) address to share child pornography. On May 23, he searched for that IP address and discovered a computer sharing files with names consistent with child pornography over a peer-to-peer network. He downloaded one video and two still images of child pornography from the computer's shared folder.

Detective Allman subpoenaed AT & T for information about the account associated with the IP address. AT & T's records listed James Lowe as the account holder, 2204 Robin Street as the billing address, and Lowe.Stacy@yahoo. com as the email address associated with the account. Detective Allman conducted surveillance and determined that, as of August 2011, James and Stacy Lowe were the sole residents of 2204 Robin Street.

Detective Allman and other officers executed a search warrant on August 8. Stacy was home during the search but James was not. Law enforcement officers seized three computers: a Dell Inspiron laptop with the username “Stacy” found in the bedroom, an HP Pavilion laptop with the username “Jamie” found in the office, and a desktop that was also located in the office. Detective Allman testified that his role during the search was “speaking with Ms. Lowe.” (R. 75, Allman Test., Day 1 Trial Tr. at 32.) He later told the jury that he learned that the laptop found in the office belonged to James Lowe. Agents also found a form on the desk in the office that listed James's name, social security number, date of birth, and the email address jamedog111@excite.com.

FBI Special Agent Stephen McFall told the jury that he examined the three hard drives and discovered that only the HP Pavilion laptop contained child pornography. Agent McFall found 639 image files and 176 video files depicting child pornography on the device.

A user named the HP Pavilion laptop “Jamie–PC” and created a single user account, “Jamie.” The laptop's settings did not require users to enter a password to access the “Jamie” account or any of the laptop's files and programs. And while the Lowes password-protected their residence's wireless-internet account, the laptop automatically connected to the internet through a stored wireless password.

The laptop's desktop screen included the following shortcuts, icons, and files: the computer's recycling bin, an internet browser, iTunes, Shareaza (a peer-to-peer file-sharing program), a media player, a folder labeled Microsoft Office Programs, a PDF file labeled “2011-_Auhto...,” four Microsoft Excel spreadsheets labeled “Copy of Service Aut...,” an MP3 music file, and what appeared to be a computer game. Agent McFall told the jury that the spreadsheets “looked like they were authorization agreements for business.” (R. 75, McFall Test., Day 1 Trial Tr. at 107.)

Agent McFall testified at length about the Shareaza peer-to-peer file-sharing program used to download child pornography to the HP Pavilion laptop.¹ Someone installed the program on February 24, 2011. Because no one overrode the program's default username setting, the Shareaza account adopted the laptop's username, “Jamie.” But someone altered the default for the program's chat-feature username and instead entered “JA.”

Shareaza was not password-protected, and it automatically started running in the background whenever someone switched the computer on. But users had to open the program to search for files and initiate downloads.

The Shareaza home screen—which any user would see upon opening the program—showed that someone searched for terms consistent with child pornography such as “young mama” and “PTHC” (which stands for “pre-teen hard core”), and non-pornographic terms such as “Oceans 11,” “Ellie Goulding,” and “Tron.” The list of downloads on the home screen included files named “PTHC Pedoland Frifam Heidi,” “11 yo sleeping kid,” and “new girl img–0063–r10.”

Files were stored in an “incomplete” folder within Shareaza until they finished downloading, at which point they would appear in the laptop's “downloads” folder. Agent McFall testified that files could “take a very long time to download” and that downloading time depended on factors such as the internet connection's speed. (R. 75, McFall Test., Day 1 Trial Tr. at 103.)

Most of the laptop's images and videos depicting child pornography were stored in Shareaza libraries. Agent McFall also found evidence of images, some of which had been deleted, elsewhere on the laptop's hard drive. For instance, the recycling bin contained a video titled “Lolita PTHC 2011 3yo Ariel part 1.” Agent McFall found references to the three files Detective Allman downloaded on May 23 through a text-string search, but someone deleted the actual files before agents seized the computer. He never specified whether the “downloads” folder contained child-pornography files.

Agent McFall admitted that he could not pinpoint when someone searched for or initiated downloads of child pornography. But forensic analysis revealed the date and time on which partial or completed downloads appeared on the laptop's hard drive. Microsoft Windows registry data revealed that a user opened files depicting child pornography as recently as August 4.

Agent McFall also testified about the laptop's internet-usage history as recorded through “cookies.” On numerous occasions between March and August, downloads completed within minutes of someone accessing a web-based email service or one of several retail, banking, appliance-repair, and travel websites. Agent McFall identified one date—March 10—on which a user appeared to log in to Yahoo!'s email service. When the government's attorney asked if he recalled “what the log-in was,” he replied, “For the Yahoo mail, I don't remember exactly. I think Jamie or jame dog was part of the, part of the e-mail address.” (R. 76, McFall Test., Day 2 Trial Tr. at 173.) In general, however, Agent McFall attributed no special significance to the laptop's browsing history.

Agent McFall also told jurors that a user opened an “East Tennessee Appliance Services” invoice listing 2204 Robin Street as the business address about forty minutes before a child-pornography video finished downloading on March 3. No witness testified about what James and Stacy Lowe did for a living or whether the other two computers also contained business documents.

Lowe moved for a judgment of acquittal at the close of the government's case and rested without putting on his own evidence. The court denied his motion but expressed some misgivings about the government's proof:

I have to say, in this case, it has been particularly difficult, even though it's my job to do so, to discern where that line [between speculation and reasonable inference] is and where what might be a reasonable inference that can be drawn from the record evidence becomes nothing more than an invitation for the jury to speculate as to what the evidence may be or what it may show.

(R. 77, Day 3 Trial Tr. at 222–23.) After the jury found Lowe guilty on all three counts, the district court denied his post-trial motion for a judgment of acquittal. It sentenced Lowe to 150 months' imprisonment, varying significantly below the guidelines range of 210 to 240 months. Lowe timely appealed.

II.

We review de novo the district court's judgment denying Lowe's motion for acquittal. United States v. Blanchard, 618 F.3d 562, 574 (6th Cir.2010). In considering Lowe's sufficiency-of-the-evidence challenge, we “view[ ] the evidence in the light most favorable to the prosecution” and must affirm if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Washington, 715 F.3d 975, 979 (6th Cir.2013) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ) (internal quotation marks omitted). “Circumstantial evidence alone is sufficient to sustain a conviction and such evidence need not remove every reasonable hypothesis except that of guilt.” United States v. Algee, 599 F.3d 506, 512 (6th Cir.2010) (quoting United States v. Kelley, 461 F.3d 817, 825 (6th Cir.2006) ) (internal quotation marks omitted); see also United States v. Garcia, 758 F.3d 714, 718–19 (6th Cir.2014) (affirming a firearm-possession conviction where “circumstantial evidence and a chain of inferences” would permit a jury to conclude that the defendant actually possessed the weapon)....