US v. Vosburgh
| Decision Date | 20 April 2010 |
| Docket Number | No. 08-4702.,08-4702. |
| Citation | 602 F.3d 512 |
| Court | U.S. Court of Appeals — Third Circuit |
| Parties | UNITED STATES of America v. Roderick S. VOSBURGH, Appellant. |
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Denise S. Wolf, (Argued), Office of United States Attorney, Philadelphia, PA, for Appellee.
Anna M. Durbin, Peter Goldberger, (Argued), Ardmore, PA, for Appellant.
Before: SCIRICA, Chief Judge, BARRY, and SMITH, Circuit Judges.
Roderick Vosburgh appeals his conviction for possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and attempted possession of child pornography in violation of 18 U.S.C. § 2252(b)(2). We will affirm.
At the center of this case is an underground Internet message board known as Ranchi. Ranchi allows users to post links to images and videos of child pornography.1 Ranchi is not simply an open forum in which some posts happen to be related to child pornography; child pornography is Ranchi's raison d'etre. It describes itself as a place to Ranchi allows its users access to a wide range of pornographic pictures and videos, including hard core videos of infants and other children engaging in sexual acts with each other and with adults. Ranchi explicitly warns that the pornographic materials posted to the board are illegal.
Ranchi does not itself host child pornography; instead, it directs users to where it can be found elsewhere on the Internet. For obvious reasons, chiefly among them a desire to evade law enforcement, Ranchi operates in the far recesses of cyberspace. It is accessible through the use of any one of three "gateway" websites that exist at any given time. Each gateway consists of a web page that contains nothing but a hyperlink to the actual Ranchi message board. The gateway sites change approximately every three months, but regardless of their location, they always point to the most recent location of the Ranchi board, which itself moves around the Internet on a weekly basis. It is highly unlikely that an innocent user of the Internet would stumble across Ranchi through an unfortunate Google search. Because Ranchi moves so frequently and has cumbersome URLs, it is most often, if not always, accessed by way of the gateway sites. Interested persons often learn of Ranchi, and where to find the gateways, through postings on other child pornography websites.
A user seeking to access a link to child pornography posted on Ranchi cannot do so with a simple click of the mouse. It requires several steps. URLs as posted by Ranchi users typically begin with the prefix "hxxp," rather than the customary "http," to make it less likely that the links will be detected by search engines. Therefore, a user interested in that link must copy it from the board, paste it into the address bar of a web browser, and then change "hxxp" to "http" so that the address will be recognized by the browser. Only then can the file be accessed and downloaded. Even after downloading, files cannot be viewed immediately. They first must be decrypted, in part through use of a password.
In July 2006, FBI Special Agent Wade Luders learned of Ranchi's existence from a suspect apprehended in an investigation of a different child pornography board. That suspect authorized Luders to use his Ranchi handle, "Bongzilla," to go undercover on the board. On October 25, 2006, Luders posted six links to what purported to be child pornography. One of those links directed users to a video located at the following address: hxxp://uploader.sytes.net/12/05/4yo_suck.rar.html. Along with this link, Luders posted the following description:
Here is one of my favs—4yo hc with dad (toddler, some oral, some anal)— supercute! Haven't seen her on the board before—if anyone has anymore, PLEASE POST.
In the parlance of Ranchi, "yo" stood for "year old" and "hc" stood for "hard core."2 Luders quickly realized that because he had mistakenly failed to encrypt the file, it was unlikely to attract attention. He then re-posted the "4yo_suck" link and posted instructions for decrypting the file. He also promised to post the necessary password, but never did.
The "4yo_suck" link (hereinafter the "Link") was, in short, a trap. It did not direct the user to actual child pornography. It was a dummy link which led only to Agent Luders's secure FBI computer. The "video" downloaded by way of the Link generated only gibberish on the recipient's computer screen. Meanwhile, Agent Luders's computer generated a log file containing the Internet Protocol addresses ("IP addresses")3 of every user who attempted to access the Link, and the date and time of each attempt. Among those who attempted to access the Link was a user at the IP address 69.136.100.151. That individual attempted to download the Link three times in a two-minute period between 11:46 and 11:48 p.m. EST on October 25, 2006. Luders traced this IP address to Comcast Cable Communications. In response to a subpoena, Comcast informed the government that "the individual utilizing the IP address 69.136.100.151 on October 25, 2006 at the relevant times did so using an account subscribed to by Rod Vosburgh, residing at 37 State Rd., Apt. B4" in Media, Pennsylvania. Luders forwarded this information to FBI Special Agent David Desy in Philadelphia.
Agent Desy took steps to confirm that Vosburgh lived at the address identified by Comcast, and that he lived there alone. A January 17, 2007, search of Pennsylvania Bureau of Motor Vehicle records confirmed that Vosburgh resided at 37 State Road, Apartment B4 in Media, and a Choicepoint query conducted the same day revealed the same information. On January 31, 2007, through query of the U.S. Postal Service, Agent Desy learned that Vosburgh was the only person receiving mail at the apartment in question. In addition, Agent Desy twice conducted surveillance of the apartments at 37 State Road, and both times observed a vehicle in the parking lot matching the description of the one owned by Vosburgh.
On February 23, 2007, Agent Desy applied for a warrant to search Vosburgh's apartment. The affidavit in support of that application described how computers and the Internet have facilitated the spread of child pornography. It explained what IP addresses are, and how "law enforcement entities, in conjunction with Internet Service Providers, have the ability to identify a user's IP address to a specific household or residence." It also described certain characteristics and habits of persons interested in child pornography. It noted that "child pornography collectors almost always maintain and possess their material in the privacy and security of their homes, or some other secure location such as their vehicle(s), where it is readily available," and that collectors tend to hoard their materials:
Because the collection reveals the otherwise private sexual desires and intent of the collector and represents his most cherished sexual fantasies, the collector rarely, if ever, disposes of the collection. The collection may be culled and refined over time, but the size of the collection tends to increase.
The affidavit also noted that even if a collector deletes illegal materials from his computer's hard drive, law enforcement can often retrieve those files using forensic tools. Next, the affidavit described the nature of Ranchi, with graphic descriptions of some of the illegal pornographic materials that agents had found posted to the site. It then summarized Agent Luders's posting of the Link, how his computer logged the IP addresses of users who attempted to access the Link, and why it was unlikely that anyone who attempted to download the video promised by the Link would have done so by accident.4 Finally, the affidavit laid out the facts specific to Vosburgh. It noted that an individual using the IP address 69.136.100.151 attempted to access the Link three times on the night of October 25, 2006. It recounted how Agent Desy traced that IP address back to Vosburgh's apartment, and the subsequent steps Agent Desy took to confirm that Vosburgh actually lived there. It also described in detail the property to be searched and the items to be searched and seized. Those items included "any and all items which may be used to visually depict child pornography, store information pertaining to the sexual interest in child pornography, or to distribute, possess, or receive child pornography, ... including ... computer hardware."
Magistrate Judge Felipe Restrepo issued a search warrant on February 23, 2007, approximately four months after Vosburgh's apparent attempts to access the Link. That warrant was executed on February 27, 2007. Before they arrived at his apartment, officers learned that Vosburgh lawfully owned more than a dozen guns. Concerned for their safety, officers attempted to lure Vosburgh out of his apartment with a ruse. They knocked on his door, identified themselves as police, and told him that they wanted to talk to him because his car had been vandalized. Vosburgh did not answer the door, but from the apartment came a sound of "metal on metal" that sounded like the racking of a gun. Alarmed, officers remained outside of the apartment and attempted to persuade Vosburgh to open the door. They knocked at least three times, with the knocks getting louder each time. They also called Vosburgh's telephone several times and left messages asking him to come out of the apartment. Approximately 27 minutes after officers first knocked, Vosburgh opened the door. He told officers that he did not answer sooner because he had been in the bathroom.
Inside Vosburgh's apartment, police found pieces of smashed thumb drives, one of which was...
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