UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
November 30, 2009
UNITED STATES OF AMERICA, PLAINTIFF,
RICHARD MICHAEL WELTON, DEFENDANT.
The opinion of the court was delivered by: Margaret M. Morrow United States District Judge
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Defendant was indicted on one count of receiving images of child pornography in violation of 18 U.S.C. § 2252A(a)(2), and one count of possessing images of child pornography in violation of 18 U.S.C. § 2252A(a)(5).*fn1 Defendant waived trial by jury with the consent of the government and the approval of the court pursuant to Rule 23(a) of the Federal Rules of Criminal Procedure. On August 4, 2009, both parties requested that the court make findings of fact pursuant to Rule 23(c).*fn2 Having carefully considered the testimony and exhibits in evidence, the briefs submitted by the parties, and the relevant law, the court makes the following findings of fact and conclusions of law:
I. FINDINGS OF FACT
Covina First Presbyterian Church
1. The Covina First Presbyterian Church ("Church") has five buildings, connected by a courtyard.*fn3
2. Exhibit 97 accurately depicts the front of the Church between 2005 and 2007.*fn4
3. Exhibit 98 accurately depicts the side entrance of the Church between 2005 and 2007.*fn5
4. During the last seven years, there have been transients on Church property. None of the transients, however, has entered the buildings on the property.*fn6
5. The Church has a nursery, used on Sundays, so that those attending church can leave their infants with babysitters during services; otherwise, the nursery is rarely used.*fn7
6. From 2005 to 2007, the nursery had a lock on its door.*fn8 7. The entrance to the nursery is located directly to the left of the side entrance to the Church depicted in Exhibit 98.*fn9
8. One can access the nursery without entering any other Church building.*fn10
9. Exhibit 100 accurately depicts the entrance to the nursery between 2005 and 2007.*fn11
10. From 2005 to 2007, parts of the church, including the office, the sanctuary, and the greeting hall, had an alarm system.*fn12 The building that houses the nursery, a chapel, and a storage room did not have an alarm, however.*fn13
11. In 2005 and 2006, there were at least two changing tables in the nursery.*fn14 Exhibits 101 and 102 accurately depict the two changing tables.*fn15 Exhibit 104 accurately depicts one of the two changing tables as it appeared in 2005 to 2007.*fn16
12. The changing tables are white cabinets whose top is surrounded on three sides by a small railing.*fn17 The changing tables are not affixed to the wall.*fn18
13. The bottom of each changing table has a small, hollow, concave area that is inaccessible when the changing table is sitting on the ground.*fn19 The sides of each changing table extend all the way to the ground such that the area under the changing table is accessible only by lifting the table.
14. In August 2007, the Church was engaged in repainting the nursery and replacing the nursery carpet.*fn20
15. At all times relevant to the indictment, David Robertson was a retiree who volunteered at the Church doing such things as painting, weeding, gardening, emptying waste baskets, moving tables, and organizing things.*fn21 Robertson has volunteered at the Church for seven years.*fn22
16. Robertson is familiar with the buildings and grounds at the Church, including the nursery.*fn23
17. In August 2007, while pulling a changing table away from the wall to paint behind it, Robertson found a stack of 10-15 printouts in the hollow area under the changing table. The printouts contained images of nude children.*fn24
18. After finding the printouts, Robertson gave them to the church's pastor, Andrea Messinger.*fn25
19. Messinger instructed Robertson to dispose of or destroy the printouts; Robertson destroyed the stack of images by shredding them.*fn26
20. A week and a half to two weeks later, on August 22, 2007, in the course of preparing the Church nursery for recarpeting, Robertson lifted the second changing table off the ground, and found another stack of printouts.*fn27
21. Exhibit 102 accurately depicts the two changing tables underneath which Robertson found the printouts in August 2007.*fn28
22. The changing table in the foreground of Exhibit 102 is the one underneath which Robertson found the first set of printouts. The changing table in the background is that under which he found the second group of printouts.*fn29
23. Robertson flipped through the second group of printouts, but did not stop to study any of the images.*fn30
24. Based on his review of the images on the printouts, Robertson knew that they depicted nude bodies and sexual contact; he saw at least one child on the floor involved in oral copulation of a man.*fn31
25. Robertson touched the printouts with his bare hands.*fn32 He subsequently handed the stack of images to Linda Breatore.*fn33
26. For the last seven years, Breatore has worked as a secretary and receptionist at the Church.*fn34
Breatore greets people, prints bulletins, addresses maintenance issues, looks up Bible passages, and otherwise contributes to the everyday running of the Church.*fn35
27. When Robertson gave Breatore the stack of printouts, she held them on her lap, flipped open to the middle of the stack, and realized they were pornography involving teenagers and children who were, in her estimation, three and four years old.*fn36
28. After looking at the images, Breatore went out to the courtyard to call Messinger and advise her of the situation. Breatore took the printouts with her.*fn37
29. Breatore then called individuals who had access to the nursery to ascertain whether anyone was aware of a break-in, and whether Church policy that at least two people be in the nursery at all times had been violated.*fn38
30. After making these calls, Breatore spoke with Messinger a second time. Messinger suggested that Breatore contact John King, a local politician and leader in the Church.*fn39
31. Breatore spoke with King, who said he would alert the police.*fn40
32. While Breatore made these telephone calls, she kept the stack of printouts on her lap.*fn41
33. On the day Robertson discovered the second stack of printouts and delivered them to her, Breatore looked at each photograph individually to make sure that no children who were members of the church congregation had been photographed.*fn42 Breatore spent approximately ten minutes looking at the printouts the day she received them.*fn43
34. Breatore handled the printouts with her bare hands.*fn44
35. Breatore kept the stack of printouts with her while she was at the church, even taking the, to the restroom when she went.*fn45 When she left that night, Breatore stored the printouts either in the receptionists' office, which has a lock, or in a safe. She distinctly remembers that she left them in the administration building, which has a lock and an alarm.*fn46 The next day, Breatore gave the printouts to Messinger.*fn47
36. At some point, Breatore placed the printouts in a bag.*fn48
37. Breatore never removed or disposed of any of the printouts in the stack.*fn49
38. When the police arrived the following day, Breatore joined Detective Robert Bobkowitcz, Messinger, and King in the conference room.*fn50 During the meeting, the printouts were given to Bobkowitcz.*fn51
39. At trial, Breatore looked at each page of the stack of printouts comprising Exhibit 125, and placed her initials in the corner of pages 1, 2, 4, 8, 9, 20, 22, 23, 29, 37, 40, 41, 54, 57, 58, 66, 71, 72, 74, 80, 85, 87, 88, 89, 90, 91, and 93 of the exhibit,*fn52 to indicate that she distinctly remembered viewing those pages on the day Robertson gave her the images.*fn53
40. Breatore specifically remembered the poses and some of the faces of the minors depicted in the printouts.*fn54
41. Breatore confirmed that Exhibit 125 was approximately the same size as the stack of images she received from Robertson.*fn55
Detective Robert Bobkowitcz
42. Bobkowitcz is a Covina Police Department detective, specializing in adult and juvenile sex crimes.*fn56 Bobkowitcz has been an detective in the Covina Police Department for four years. He has been a police officer for 19 years.*fn57
43. Bobkowitcz has viewed child pornography approximately five or six times.*fn58 He has seen hundreds, but not thousands, of images of child pornography.*fn59 He has also received training regarding child pornography, its origin, and how it is traded.*fn60
44. Bobkowitcz is familiar with the manner in which the Covina Police Department obtains fingerprints from suspects and applicants.*fn61
45. On August 23, 2007, King called Bobkowitcz to advise him that images possibly constituting child pornography had been found in the Church nursery. King asked Bobkowitcz to investigate.*fn62
46. That same day, Bobkowitcz went to the Church and met with Messinger, Breatore, and King in the conference room.*fn63 At the conclusion of the meeting, Bobkowitcz assumed custody of the images and took them to the police station.*fn64
47. Bobkowitcz was the officer in the Covina Police Department in charge of the case related to the printouts.*fn65 He looked at every image in the stack of printouts on August 23, 2007, the day he brought them to the police station.*fn66 When he was finished, Bobkowitcz locked the images in a drawer in his desk.*fn67
48. Bobkowitcz had previously worked on cases with FBI Special Agent Stephanie Benitez.*fn68 On August 30, 2007, Bobkowitcz gave the printouts to Benitez.*fn69 The printouts remained locked in Bobkowitcz's desk until he gave them to Benitez.*fn70
49. Bobkowitcz neither purposefully removed any pages from nor added any pages to from the stack of printouts.*fn71
50. At trial, Bobkowitcz reviewed each page of Exhibit 125, and placed his initials in the corner of pages 1, 2, 3, 4, 8, 9, 10, 12, 13, 19, 20, 22, 23, 24, 27, 28, 29, 32, 33, 34, 35, 37, 38, 39, 40, 41, 50, 51, 54, 55, 57, 58, 66, 67, 68, 69, 70, 71, 72, 74, 80, 83, 86, 87, 88, 89, 90, 91, and 95 of Exhibit 125-A, indicating that he recalled seeing those pages at the time he took custody of the stack.*fn72
51. Benitez asked Bobkowitcz to have Robertson and Breatore complete fingerprint cards; she also asked that Bobkowitcz himself complete one.*fn73
52. On September 12, 2007, Bobkowitcz was fingerprinted by Jailer Russell Amio, and gave his fingerprint card to Benitez.*fn74
53. When nonsuspects are fingerprinted they are asked to show identification.*fn75
54. Bobkowitcz requested that Breatore and Robertson complete fingerprint cards for Amio. He gave their cards to Benitez.*fn76
55. Bobkowitcz knows the Covina Police Department's policy as to whether the officer who takes a person's fingerprints must sign the fingerprint card.*fn77 Bobkowitcz recognized Amio's signature on his fingerprint card and on the fingerprint cards of Breatore and Robertson. In each case, Amio signed the card as the person who had taken the fingerprints. Bobkowticz asked Amio to take Breatore's and Robertson's fingerprints, and received their fingerprint cards from Amio.*fn78
56. Bernell Trapp is a detective with the Los Angeles County Sheriff's Department, assigned to the safe team task force headed by the FBI.*fn79 Trapp has worked at the Los Angeles County Sheriff's Department since June 1985.*fn80
57. Benitez asked Trapp to assist in interviewing defendant Richard Michael Welton.*fn81 The interview, which was recorded, took place on September 18, 2008.*fn82 Trapp, Benitez, and Welton were present at the interview.*fn83 Trapp was able to hear the entire interview,*fn84 and listened to and authenticated the recording.*fn85
58. Benitez brought paperwork and copies of the images found at the Church to the September 18, 2008 interview.*fn86 Trapp recognized Exhibit 125 as the images Benitez brought to the interview, and in particular recalled the splotchiness of the images, the fact that some had Asian writing on them, and the fact that some were cartoon images.*fn87
59. Trapp stated that, when Welton was presented with copies of the images found at the Church and asked if he remembered them, he did not seem surprised.*fn88
Government Expert Witness Kathryn Suchma
60. Kathryn Suchma is a latent print examiner for the FBI.*fn89
61. The palm or surface of the hand has a specialized skin known as friction ridge skin. When that skin is coated in oils or sweat, an impression of the skin can be left on an object that the person handles.*fn90 Fingerprints can be used as a means of identification because fingerprints are unique to each individual and they persist throughout life, with the exception of scarring or injury.*fn91
62. Suchma has completed 32 credit hours of scientific course work and a four-year degree, as well as 18 month of training at the FBI laboratory in the field of latent prints and fingerprint comparisons.*fn92 She has worked for the FBI laboratory since 2005,*fn93 handling hundreds of cases involving latent print examinations.*fn94
63. Suchma received 95 pages, a black plastic bag, and four fingerprint cards, in February 2008, for analysis.*fn95 Exhibits 1-95 are the original images sent to and analyzed by Suchma.*fn96 Exhibit 125 is an exact duplicate of Exhibits 1-95.*fn97
64. Exhibits 109-112 were sent to Suchma in February 2008.*fn98 Exhibit 109 represents a true sample of Welton's fingerprints.*fn99 Exhibit 110 represents a true sample of Breatore's fingerprints.*fn100 Exhibit 111 represents a true sample of Robertson's fingerprints.*fn101 Exhibit 112 represents a true sample of Bobkowitcz's fingerprints.*fn102
65. Twelve of Breatore's fingerprints are on the black plastic bag Benitez sent Suchma in February 2008, identified as Exhibit 96.*fn103 Breatore's fingerprints are also on Exhibits 22, 38, 45, 54, 74, 76, and 95.*fn104
66. Bobkowitcz's fingerprints are on Exhibit 74.*fn105
67. Welton's fingerprints are on Exhibits 2, 13, 31, 41, 60, 61, 66, 78, and 81,*fn106 indicating that he touched these exhibits.*fn107
68. Joshua Hoffman was a suspect in a sexual battery case investigated by Bobkowitcz.*fn108 Suchma compared the fingerprints found on the images to Joshua Hoffman's and found none of his fingerprints on the images.*fn109
Government Expert Witness Christopher Christopherson
69. Christopher Christopherson is an FBI Special Agent specializing in cyber investigations, including investigations involving child pornography and computer intrusions.*fn110
70. Prior to working for the FBI, Christopherson was a computer science professor, with a specialty in web programming and web design. Prior to that, he was a web programmer, designing and programming websites and web applications.*fn111
71. Christopherson has received training from the FBI on the processing of digital evidence, i.e., evidence involving use of the Internet or a computer.*fn112
72. Christopherson has taken courses at the FBI concerning network traffic analysis, incident response, and other aspects of cyber crime. He has also received training regarding popular internet protocols, including HTTP and email.*fn113 Christopherson is familiar with the manner in which a computer processes information and puts that information on a printout.*fn114
73. Christopherson has worked on approximately 20 cases involving child pornography,*fn115 and received Exhibits 1 through 95 in this case for analysis.*fn116 As part of his analysis, he reviewed HTTP protocol, which controls how information is sent between a web browser or an individual using the web browser and a web server, and how the server responds. From 2005 to 2007, Firefox and Internet Explorer together had a 95% share of the web browser market.*fn117
Christopherson examined these web browsers to determine how their software identifies the website source of information on the printout they prepare.*fn118 The Internet Explorer and Firefox programs typically include the Universal Resource Locator (URL) on printouts they prepare.*fn119
74. Exhibit 67 contains, in the upper right corner, a URL, whose text begins with "http://" and ends with ".html."*fn120 In addition to Exhibit 67, each of Exhibits 1-44, 46-60, 62-63, 65-66, 68-72, 74-80, 82, 84-95, contains a URL beginning with "http://."*fn121
75. The Internet Explorer and Firefox programs typically include a date and time stamp on printouts they prepare.*fn122 Exhibit 67 contains, in the lower right corner, a date and time stamp.*fn123 The date and time on such a stamp are based on communications between the user and the client or the web browser; it is determined on the client's side.*fn124
76. Exhibits 1, 33, 47, 52, 53, 60, 63, 69, 70, 75-80, and 82-94 bear only a date stamp. Exhibits 2-32, 34-44, 48-51, 54-59, 61, 65, 68, 72-73, and 95 bear stamps with both the date and time.*fn125
77. Exhibit 67 contains, in the lower left corner, "1 of 2," indicating that it is the first in a series of pages comprising a printout.*fn126 The page number in the series is supplied by the web browser.*fn127 Numbers and words reflecting the page number are typical information that both Internet Explorer and Firefox include on printouts.*fn128
78. In addition to Exhibit 67, Exhibits 1-44, 46-61, 63-66, 68-74, and 95 contain notations indicating which page in a series the printout represents.*fn129
79. Exhibit 67 contains, in the upper left corner, text indicating the title of the web page.*fn130 The webpage title is supplied by the web server that provides access to the webpage.*fn131
80. In addition to Exhibit 67, Exhibits 2-32, 34-44, 46, 48-51, 55-59, 61-62, 65, 67-68, 70, 72-73, 81, and 86-91 contain title information as metadata in the upper left corner of the Exhibits.*fn132
81. It is typical of website design to include an image at the top of the webpage known as a "banner." The presence of a banner indicates that a printout came from the Internet.*fn133
82. An IP address is the computer address of a web server and may be included in the URL in lieu of a domain name.*fn134
83. The URLs on Exhibits 66, 71, and 86-91 include the IP address 220.127.116.11.*fn135 The information following the IP address 18.104.22.168 provides information regarding the directory within the web server where the page is found and the file name of the images on the page.*fn136
84. ARIN is a non-profit company based in North America, which delegates IP address space in North America.*fn137 RIPE is a non-profit company based in Europe, which delegates IP address space in Europe.*fn138 Consultation with ARIN and RIPE is generally accepted in the cyber industry as a method of determining the physical location of an IP address.*fn139
85. The service "Who-Is" enables one to determine to whom an IP address is registered.*fn140 Who-Is gets its information from Regional Internet Registrars ("RIRs") like ARIN and RIPE.*fn141 The service "Geotrace" conducts geographic tracing to determine the physical location of an IP address.*fn142 Consultation with the "Who-Is" and "Geotrace" services is generally accepted in the cyber industry as a means of determining the physical location of an IP address.*fn143
86. RIPE was the first RIR formed in approximately 1992. Other RIRs were formed later. When it came into being, each RIR was given a block of IP addresses to delegate to subscribers such as Internet service providers and corporations.*fn144
87. The current physical location of the IP address 22.214.171.124 is Madrid, Spain. It is registered to a company named Terra Networks.*fn145 An IP address can move from one physical location to another.*fn146 Given that RIRs have generally been assigned blocks of IP addresses to delegate within a particular territory, it is highly likely that the IP address 126.96.36.199 was initially delegated to RIPE for use in Europe, and that at all times relevant to this case, it was used in Europe.*fn147
88. JPEG is a method of organizing the data of an image into a computer file.*fn148 One indication that an image is a JPEG is that the file name may contain ".JPG" at the end.*fn149
89. Exhibits 1-6, 8-9, 11, 14-23, 25-30, 32-41, 46-48, 50-52, 54-60, 63, 65-66, 69, 71, 74-79, 82, 84-85, and 92-95 all contain ".JPG" at the end of the URL.*fn150
90. In or about 2005, Christopherson saw the image in Exhibit 88-A on a computer while he was in the state of Louisiana.*fn151
91. Christopherson entered the URL from Exhibits 3, 5, and 25 into a browser and found the images located at that URL to be the same as those in the exhibits.*fn152
92. When an individual conducts an Internet search, it is impossible for that individual to communicate only with computers in a certain region. This is because the structure of the Internet causes the route between a web browser and web server to vary between communications and sometimes even within the same communication. As a consequence, the data will travel through different regions.*fn153
September 18, 2008 Interview with Defendant
93. Welton was born on May 16, 1961.*fn154 On September 18, 2008, Trapp and Benitez interviewed Welton at his home/place of work.*fn155 During the interview, Welton identified the approximate location of Covina First Presbyterian Church.*fn156 He knew that the Church had a courtyard,*fn157 and acknowledged that he had been inside the Church when no one else was present.*fn158 Welton also admitted that he had been inside the Church nursery late at night.*fn159
94. Welton recognized the stack of prinouts,*fn160 and said he had placed them under a changing table in the nursery at the Church.*fn161 Welton returned to the nursery at least one time after he first placed printouts there.*fn162
95. He retrieved at least some of the images using a computer in a church.*fn163
96. Welton found at least some of the printouts on preview pages of pay for view websites.*fn164
97. Welton knew that the printouts included photographs of minor children.*fn165
98. At no time during the interview did Welton deny that the stack of printouts in Exhibit 125 was his,*fn166 or that some of the images depicted children.*fn167
99. The girl depicted in Exhibit 89-C is a real minor. She was between 7-10 years old at the time the image in Exhibit 89-C was taken. The image depicted in Exhibit 89-C was taken in Illinois.*fn168
100. The girl depicted in both Exhibit 89-E and 91-B is the same girl. She is a real minor. The girl was seven years old when the images in Exhibits 89-E and 91-B were taken. The images in Exhibits 89-E and 91-B were taken in Florida.*fn169
II. CONCLUSIONS OF LAW
A. Count Two (18 U.S.C. § 2252A(a)(5)(B))
1. In order to obtain a conviction for possession of child pornography under 18 U.S.C. § 2252(a)(5)(B), the government must prove beyond a reasonable doubt (1) that the defendant knowingly possessed one or more visual depictions of an actual minor engaging in sexually explicit conduct; and (2) that the images of child pornography defendant knowingly possessed had been mailed, shipped or transported in interstate or foreign commerce by any means, including by computer. 18 U.S.C. § 2252(a)(5)(B).
2. To establish that a defendant possessed child pornography, "there must be a 'sufficient nexus between the defendant and the contraband to support the inference that the defendant exercised dominion and control over it.'" United States v. Romm, 455 F.3d 990, 999 (9th Cir. 2006) (quoting United States v. Carrasco, 257 F.3d 1045, 1049 (9th Cir. 2001) (alteration original)). To establish knowing possession of child pornography, there must be evidence that defendant knew the pornography he possessed involved a minor engaging in sexually explicit conduct.
United States v. X-Citement Video, Inc., 513 U.S. 64, 78 (1994). See also Romm, 455 F.3d at 1003 n. 16 (" In X-Citement Video, the Supreme Court held 18 U.S.C. § 2252 requires the government to prove the defendant's knowledge that the performer depicted is a minor because this is 'the crucial element separating legal innocence from wrongful conduct'").
3. Interstate nexus may be proved in a number of ways. Given the statutory language, the clearest is to show that the image was "mailed, shipped or transported in interstate or foreign commerce, including by computer." 18 U.S.C. § 2252(a)(5)(B). In addition, interstate nexus may be proved by showing use of the Internet to download the image. United States v. MacEwan, 445 F.3d 237, 244 (3d Cir.) ("[B]ecause of the very interstate nature of Internet, once a user submits a connection request to a website server or an image is transmitted from the website server back to the user, the data has traveled in interstate commerce. Here, once the images of child pornography left the website server and entered the complex global data transmission system that is the Internet, the images were being transmitted in interstate commerce"), cert. denied, 127 S.Ct. 208 (2006); see also United States v. Mellies, 329 Fed. Appx. 592, 606-07 (6th Cir. May 15, 2009) (Unpub. Disp.) ("[T]he district court did not err in instructing the jury that 'any image of child pornography that was transmitted or received over the Internet moved in interstate commerce'"); ("Transmission of photographs by means of the Internet is tantamount to moving photographs across state lines and thus constitutes transportation in interstate commerce"); United States v. Runyan, 290 F.3d 223, 239 (5th Cir. 2002) ("We join the First Circuit in holding that '[t]ransmission of photographs by means of the Internet is tantamount to moving photographs across state lines and thus constitutes transportation in interstate commerce' for the purposes of 18 U.S.C. § 2251," quoting United States v. Carroll, 105 F.3d 740, 742 (1st Cir. 1997)); United States v. White, 2 Fed. Appx. 295, 298 (4th Cir. Jan. 22, 2001) (Unpub. Disp.) (same); United States v. Patton, Cr. No. 09-43 (PAM/JSM), 2009 WL 1514502, *2 (D. Minn. June 1, 2009) ("'[T]he government may satisfy the interstate commerce element by proving that child pornography images were transmitted over the Internet,'" quoting United States v. Lewis, 554 F.3d 208, 205 (1st Cir. 2009)); United States v. Gouin, No. CR05-433RSL, 2008 WL 1886158, *2 (W.D. Wash. Apr. 24, 2008) ("[T]his court believes the Ninth Circuit will follow the Third Circuit's reasoning in MacEwan"); United States v. Pomerico, No. 06 CR 113(RJD), 2008 WL 4469465, *6 (E.D.N.Y. Oct. 3, 2008) ("[T]his Court finds that 'use of the Internet satisfies the interstate commerce element of . . . 18 U.S.C. § 2252A(a)(2)(B),'" quoting MacEwan, 445 F.3d at 239)).
1. The Government Proved Beyond a Reasonable Doubt That Defendant Knowingly Possessed the Images
4. As noted, to prove possession, the government must adduce evidence of "a sufficient connection between the defendant and the contraband to support the inference that the defendant exercised dominion and control over it." Romm, 455 F.3d at 999 (quoting Carrasco, 257 at 1049). Possession can be proved even if the contraband is not found on defendant's person or in his home. The Ninth Circuit has held, for example, that marijuana hidden under a bush was in the constructive possession of a defendant because he knew of its presence and had the power to exercise dominion and control over it. United States v. Cepelis, 426 F.2d 134, 135-36 (9th Cir. 1970) ("Here the trial judge could have found sole or joint possession in the appellant from his demonstrated ability to arrange for the delivery of the hashish"). See also Brothers v. United States, 328 F.2d 151, 156 (9th Cir.) (possession found of drugs hidden in a Lucky Strike package on a curb), cert. denied, 377 U.S. 1001 (1964); (White v. United States, 315 F.2d 113, 114-15 (9th Cir.) (possession found of drugs hidden at a service station), cert. denied, 375 U.S. 821 (1963).
2. Although in this case the images were not found on defendant's person or in his home, the government proved beyond a reasonable doubt that defendant possessed the images. As in Cepelis, defendant was able to pinpoint the location of the images. When Benitez asked defendant where the images were stored, and whether they were stored on top of something or underneath something, defendant said that they were stored under a cabinet, specifically in a hollow part of the cabinet in the nursery of the church.*fn170 Cepelis, 426 F.2d at 135-36. He also exercised dominion and control over the images, to the extent that he returned to the nursery and used the images until Robertson discovered them in August 2007.*fn171 This conclusion is corroborated by the fact that defendant's fingerprints were found on many of the images in the stack. Thus, the possession element of the § 2252A(a)(5)(B) offense is satisfied.
3. At trial, defendant objected to the introduction of Exhibits 1-96 and 125 on the basis that there was a defect in the chain of custody.*fn172 The court held that any defect in the chain of custody went to the weight, rather than the admissibility, of the evidence.*fn173 See United States v. Robinson, 967 F.2d 287, 292 (9th Cir. 1992) (citing United States v. Candoli, 870 F.2d 496, 509 (9th Cir. 1989)). See also United States v. Matta-Ballesteros, 71 F.3d 754, 768 (9th Cir. 1995) ("The prosecution must introduce sufficient proof so that a reasonable juror could find that tapes are in substantially the same condition as when they were seized, and may admit the tapes if there is a reasonable probability the tapes have not been changed in important respects"). The government presented evidence establishing a clear chain of custody from Robertson to Breatore*fn174 to Detective Bobkowitcz*fn175 to Agent Benitez*fn176 in August 2007. Benitez subsequently sent the images to an FBI latent print examiner in February 2008.*fn177
Benitez did not testify, there was testimony that Bobkowitcz sent the photographs to Benitez and that Suchma received the photographs from Benitez. This indicates that Benitez maintained control of the photographs during the intervening period. As respects a majority of the printouts that the fingerprint examiner received, the government provided direct evidence that they were found in the nursery in August 2007. Either Breatore or Bobkowitcz specifically recalled that Exhibits 1, 2, 3, 4, 8, 9, 10, 12, 13, 19, 20, 22, 23, 24, 27, 28, 29, 32, 33, 34, 35, 37, 38, 39, 40, 41, 50, 51, 54, 55, 57, 58, 66, 67, 68, 69, 70, 71, 72, 74, 80, 83, 86, 87, 88, 89, 90, 91, 93, and 95 were in the original stack. In addition, there was evidence that either Breatore's or Bobkowitcz's fingerprints were found on Exhibits 22, 38, 45, 54, 74, 76, and 95. This constitutes direct evidence that two additional images were in the original stack. Finally, Exhibits 2, 13, 31, 41, 60, 61, 66, 78, and 81 bore defendant's fingerprints, providing direct evidence that he had handled those images; coupled with his admission that he had placed the stack under the changing table and returned to view it once or twice, this fingerprint evidence supports an inference that these exhibits too were part of the original stack. In toto, therefore, there was direct evidence that 59 of 95 exhibits were in the original stack. Combined with the fact that the only testimonial gap in the chain of custody*fn178 identified by defendantwas during a period when the exhibits were in the possession of FBI Special Agent Benitez, that no evidence was adduced that the images had been in the possession of intermeddlers or had been tampered with or changed, the court finds, beyond a reasonable doubt, that Exhibits 1-95 were in the original stack of printouts, and were in substantially the same condition as when found.*fn179 See United States v. Harrington, 923 F.2d 1371, 1374 (9th Cir. 1991) ("[I]n the absence of any evidence of tampering, a presumption exists that public officers 'properly discharge [ ] their official duties,'" quoting Gallego v. United States, 276 F.2d 914, 917 (9th Cir. 1960)); United States v. Dickerson, 873 F.2d 1181, 1185 (9th Cir. 1988) ("An important factors to be considered is the likelihood of intermeddlers tampering with evidence").
b. Images of Actual Minors
5. In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the Supreme Court held that criminalizing the possession of "virtual" child pornography, i.e., images that do not depict a "real" child, would violate the freedom of speech protections of the First Amendment. Id. at 239-40, 258. As a result, the government has the burden of proving beyond a reasonable doubt that the visual depictions defendant possessed were images of actual minors.*fn180
United States v. Salcido, 506 F.3d 729, 733 (9th Cir. 2007). The Ninth Circuit has clearly stated that neither expert nor lay testimony is required to prove that images depict actual minors. Salcido, 506 F.3d at 733 ("With respect to the quantum of evidence necessary to support a conviction, there seems to be general agreement among the circuits that [the] pornographic images themselves are sufficient to prove the depiction of actual minors"). The trier of fact may conclude beyond a reasonable doubt that the visual depictions are of actual children where "it is obvious from the pictures themselves that they are of children." United States v. Rearden, 349 F.3d 608, 613, (9th Cir. 2003). In Salcido, the court held that the factual determination that real minors were depicted was further supported by the fact that the defendant had admitted his interest in child pornography. Salcido, 506 F.3dat 735.
6. Here, based on the images themselves, the court finds that Exhibits 3, 21, 65, 66, 67, 68, 70, 71, 72, 78, 87, 88A, 88D, 88E, 89A, 89B, 89C, 89D, 89E, 89F,89G, 89H, 89I, 90 (all pictures), 91A, 91B, 91C, and 91D depict actual minors.*fn181 The court's determination is supported by defendant's tacit admission at the September 18, 2008 interview that the pictures were images of young children.*fn182 In addition, the parties stipulated that the girl depicted in both Exhibit 89(e) and 91(b) is an actual minor, and that the girl depicted in Exhibit 89(c) is also an actual minor.*fn183
c. Engaged in Sexually Explicit Conduct
7. The government also has the burden of proving that the actual minors depicted are engaged in sexually explicit conduct. Section 2256 provides a definition of sexually explicit conduct, which includes:
(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(iv) sadistic or masochistic abuse; or
(v) lascivious exhibition of the genitals or pubic area of any person.*fn184
18 U.S.C. § 2256(2)(A).
8. In evaluating whether an image involves a lascivious exhibition of genitals or pubic area under § 2256(a)(A)(v), courts in the Ninth Circuit frequently cite the six factor test first articulated in United States v. Dost, 636 F.Supp. 828 (S.D. Cal. 1986), aff'd sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987). The factors are:
"1) whether the focal point of the visual depiction is on the child's genitalia or pubic area;
2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;
3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;
4) whether the child is fully or partially clothed, or nude; 5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;
6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer." Id. at 832.
The Ninth Circuit has held that the Dost factors are a "starting point" in determining whether a particular image is likely "so presented by the photographer as to arouse or satisfy the sexual cravings of the voyeur." United States v. Hill, 459 F.3d 966, 971 (9th Cir. 2006) (quoting Wiegand, 812 F.2d at 1244). The factors are "neither exclusive nor conclusive"; rather, a finding of lasciviousness must based on "'the overall content of the visual depiction.'" Hill, 459 F.3d at 971 (quoting Dost, 636 F.Supp. at 832). The trier of fact need not "rely on the Dost factors with precision to reach a mathematical result, or . . . weigh or count them, or . . . rely on them exclusively." United States v. Overton, 573 F.3d 679, 686-87 (9th Cir. 2009)(quoting United States v. Rivera, 546 F.3d 245, 253 (2d Cir. 2008)).
9. The following exhibits show actual minors engaged in sexually explicit conduct:
a. Exhibit 65 depicts a completely nude child in a coy pose; the child's pubic area is a focal point of the image, which is clearly intended to elicit a sexual response;
b. Exhibit 66, which contains five photographs, depicts both genital-genital and oral-genital sexual intercourse;
c. Exhibit 67 depicts a nude child in an unnatural pose with an arched back that suggests sexual coyness. The child's pubic area is a focal point of the image, which is clearly designed to elicit a sexual response;
d. Exhibit 68 depicts a nude child, who is reclining in a manner typically associated with sexual activity, in a bedroom -- a place associated with sexual activity. The image appears designed to elicit a sexual response;
e. Exhibit 71, which contains eight photographs, depicts a child engaged in genital-genital and oral-genital sexual intercourse;
f. Exhibit 72 depicts a child wearing only an unbuttoned men's shirt and a tie -- inappropriate attire given the age of the child. The child's nude pubic area is a focal point of the image, and the child is positioned in a suggestive pose designed to elicit a sexual response;
g. Exhibit 87, a series of images, depicts a child (1) engaged in oral-genital sexual intercourse; (2) engaged in masturbation of an adult man; (3) posed so that an adult's hand is inclined toward the child's pubic area, making that area the focal point of the image; and (4) in a bedroom, nude, with legs spread in a fashion suggesting a willingness to engage in sexual activity and designed to elicit a sexual response;
h. Exhibit 88A, depicts a child engaged in oral-genital sexual intercourse;
i. Exhibit 88D depicts a child engaged in genital-genital sexual intercourse;
j. Exhibit 88E depicts a child engaged in genital-genital sexual intercourse;
k. Exhibit 89A-F depict a child or children engaged in oral-genital sexual intercourse;
l. Exhibit 89G depicts a nude child in a coy, suggestive pose. The child's pubic area is a focal point of the image, which is clearly designed to elicit a sexual response;
m. Exhibit 89H depicts a child engaged in genital-genital sexual intercourse;
n. Exhibit 89I depicts a child wearing only stockings -- inappropriate attire considering the age of the child. The child's legs are spread in such a way that the pubic area is the focal point of the image. The manner in which the child is posed suggests a willingness to engage in sexual activity, and is clearly intended to elicit a sexual response;
o. Exhibit 90 consists of two images. In the first, a child's public area is the focal point of the image. The child is nude, and the image is designed to elicit a sexual response. In the second, the child is engaged in masturbation of an adult male;
p. Exhibits 91A, B, and D show a child engaged in genital-genital sexual intercourse; and
q. Exhibit 91C depicts a child facing away from the camera, bent over with legs spread; this makes the child's public area the focal point of the image. Additionally, the child is nude, and the child's position suggests a willingness to engage in sexual activity. The image is designed to elicit a sexual response.
d. Knowing Possession
10. In addition, to proving that defendant possessed sexually explicit images of actual minors, the government must prove beyond a reasonable doubt that defendant's possession of the images was knowing, i.e., that he knew the sexually explicit nature of the images and the age of those depicted. X-Citement Video, 513 U.S. at 78 (under § 2252 "the term 'knowingly' . . . extends both to the sexually explicit nature of the material and to the age of the performers"); Romm, 455 F.3d at 1003 & n. 16 (applying X-Citement Video to §2252A).*fn185 The government must therefore prove beyond a reasonable doubt not only that defendant knew he was in possession of the images, but also that he knew that they depicted child pornography.
See Model Criminal Jury
Instruction 8.154 (2003) (to find guilt under § 2252(a)(4)(B), the jury must determine that the government has proved beyond a reasonable doubt that defendant knew the visual depiction(s) showed minor(s) engaged in sexually explicit conduct and that he knew the production of the images involved the use of a minor in sexually explicit conduct); Romm, 455 F.3d at 1005 (noting that § 2252 and § 2252A are materially the same and applying Model Instruction 8.154 to possession under § 2252A).
11. The court concludes that the government met its burden in this regard. The evidence showed that defendant knew the images identified in paragraph 9 depicted actual minors; he also knew that the minors in the images were engaged in sexually explicit conduct. First, defendant's statements during the September 18 interview compel such a finding. When Benitez asked why defendant looked at two to four year old girls, he did not deny that the images depicted girls of this age, but merely said that he had been trying "to figure that out."*fn186 More fundamentally, defendant could not have possessed the images without knowing that they depicted minor children engaged in sexually explicit conduct. This is not analogous to a case in which an individual has a large cache of images on a computer hard drive and is not aware that some of the images depict minors engaged in sexually explicit activity. See United States v. Kuchinski, 469 F.3d 853, 861-63 (9th Cir. 2006) (reversing a conviction for knowing receipt of child pornography based on images stored in the cache files of defendant's computer where defendant lacked knowledge of or access to the files).
12. When asked by Benitez whether he remembered the stack of pictures, defendant said he did, and commented that they were "old stuff." Clearly, defendant recognized the images on sight.*fn187
The evidence thus does not support an inference that defendant received the stack of images but never looked through them. Indeed, defendant acknowledged that he added to the stack after he first placed the images in the church nursery.*fn188 He also provided detailed information as to how he found the images by clicking through preview links.*fn189 See Romm, 455 F.3d at 1002 ("[D]ownloading child pornography constitutes both the act of possession and receipt").
13. Additionally, the fact that the exhibits bear dates presented in different formats, as well as other meta-information in different formats, gives rise to an inference that different browsers were used to download the images.*fn190 Similarly, the fact that the documents bear different date and time metadata gives rise to an inference that they were printed at different times. Defendant elicited testimony from Christopherson, the government's expert, that a user printing multiple pages at one time would have had to manually adjust his computer's clock while printing to have different dates and/or times displayed.*fn191 It is highly unlikely that defendant physically altered the clock on the computer he was using multiple times while printing images on a single occasion. Thus, although the court does not consider the date and time metadata for the truth that the printouts were made at those exact dates and times, it does consider the metadata circumstantial evidence that the printouts were made at different times. See, e.g., United States v. Mungia, 273 Fed. Appx. 517, 521 (6th Cir. Apr. 16, 2008) (Unpub. Disp.) ("We have previously held that '[p]ersonal telephone directories and notebooks are admissible as "drug records" for non-hearsay purposes of showing that a conspiracy existed and that a defendant was a member of the conspiracy.' See [United States v.] Gaitan-Acevedo, 148 F.3d [577,] 591 [6th Cir. 1998]; see also United States v. Chavez, 229 F.3d 946, 953-54 (10th Cir. 2000) (defendant argued that phone number on scrap of paper was hearsay because it was offered to show that the person who answered the call was a co-conspirator, but the court held that it was properly admitted for the 'non-hearsay purpose of linking the coconspirators,' explaining that '[n]o, "truth" can be gleaned from a mere phone number and thus, the number could not have been submitted for the truth of the matter asserted.' The defendant presents no rationale for distinguishing the cell-phone contact lists and logs from paper-based personal telephone directories or notes introduced for the purpose of establishing a conspiracy, and we see none.
We conclude, therefore, that the evidence was properly admissible for the non-hearsay purpose of linking Munguia to his co-conspirators"); United States v. Tin Yat Chin, 371 F.3d 31, 39 (2d Cir. 2004) ("When a category of writings does not trigger the traditional reliability concerns of hearsay -- defects in memory, perception, narration, or sincerity -- we have sanctioned their admissibility as 'non-hearsay.' See United States v. Saint Prix, 672 F.2d 1077, 1083-84 (2d Cir. 1982) (affirming admissibility of sales receipts for vans 'to prove that someone using [defendant's] name bought the vans, from which the jury could infer that the person using [defendant's] name was [defendant] himself"); United States v. Lieberman, 637 F.2d 95, 101 (2d Cir. 1980) (finding a hotel registration card signed by guests admissible 'to show that someone calling himself Robert D'Ambra registered in the hotel laying a foundation for further evidence that from his room a call was made to [defendant's] unpublished telephone number' (internal citation omitted)); United States v. Mejias, 552 F.2d 435, 446 (2d Cir. 1977) (affirming admissibility of motel receipt, luggage store invoice, and travel agency business card, all of which were in the defendant's possession when he was arrested, as circumstantial evidence of his presence at a motel)"). The fact that different computers were used to print the images, and that the printing was done at different times also supports a finding of knowing possession. See United States v. Miller, 527 F.3d 54, 69 (3d Cir. 2008) (holding that the number of occasions on which photographs were copied onto a Zip disc supported a finding of knowing possession).
14. Moreover, many of the website addresses from which the images were copied contain language that identifies the images as child pornography.*fn192 See United States v. Payne, 341 F.3d 393, 403 (5th Cir. 2003) (holding that the "number of images in [defendant's] possession, taken together with the suggestive titles of the photographs" established knowing receipt). Finally, the fact that Welton's fingerprints were found on the front or back of nine pages scattered throughout the stack compels the conclusion that he went through the images in the stack and was able to observe the nature of the images they contained.
15. For all of these reasons, the court finds that the government proved beyond a reasonable doubt that defendant possessed the eleven exhibits*fn193 that visually depict actual minors engaged in sexually explicit conduct.*fn194 These eleven exhibits contain 38 visual depictions of actual minors engaged in sexually explicit conduct.
2. The Government Has Proved That Some of the Images Were Transported in Interstate Commerce
16. The government also met its burden of proving beyond a reasonable doubt that images of child pornography knowingly possessed by defendant had been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer. 18 U.S.C. § 2252(a)(5)(B). In this regard, the court has jurisdiction if even one image traveled in interstate commerce. United States v. Lacy, 119 F.3d 742, 748-49 (9th Cir. 1997) ("[J]urisdiction exists if the 'pictures or the materials used to produce them' traveled in interstate commerce").
17. The government and defendant stipulated that three of the images were produced out of state; their presence in the state of California proves that they were transported in interstate commerce. See United States v. Gouin, No. CR950433RSL, 2008 WL 1886158, *2 (W.D. Wash. Apr. 24, 2008) (finding, in a case where the government presented evidence that images recorded the abuse of real children in other states, that the images must have traveled to defendant's state to become part of his collection of pornography), aff'd, United States v. Gouin, 323 Fed. Appx. 573 (9th Cir. Apr. 22, 2009) (Unpub. Disp.). So too, it is clear that the image Christopherson saw previously on a computer in Louisiana traveled to California in interstate commerce.*fn195
Christopherson also presented credible evidence that many of the images, namely, those bearing the 213 IP address, had been hosted on a website in Europe. Gouin, 2009 WL 1069297 at *1 ("The government presented testimony that . . . some of the images came from websites registered in foreign countries").
18. Based on the authority cited earlier, the court additionally finds that "Internet transmission of the visual depictions at issue meets the statutory definition of 'transported in interstate commerce.'" Gouin, 2008 WL 1886158 at *2. "Regardless of the route taken, . . . we conclude that because of the very interstate nature of the Internet, once a user submits a connection request to a website server or an image is transmitted from the website server back to the user, the data has traveled in interstate commerce. Here, once the images of child pornography left the website server and entered the complex global data transmission system that is the Internet, the images were being transmitted in interstate commerce." MacEwan, 445 F.3d at 244.
19. Defendant's post-trial brief relied heavily on United States v. Schaefer, 501 F.3d 1197 (10th Cir. 2007), for the proposition that mere use of the Internet does not demonstrate that the images were transported in interstate commerce.*fn196 This reliance is misplaced. First, the Tenth Circuit appears to be the only circuit that has so held. By contrast, the First, Third, Fourth, Fifth, and Sixth Circuits, as well as the District of Minnesota, the Eastern District of New York, and the Western District of Washington all have held that the transmission of images via the Internet is sufficient to establish that they traveled in interstate commerce. See Schaefer, 501 F.3d at 1202 (recognizing the contrary rulings). Indeed, based on the court's research, it appears no other court has followed Schaefer's reasoning. Schaefer was a unique case in which the government made no attempt to prove that images transmitted via the Internet had traveled in interstate commerce. Consequently, even the Tenth Circuit has limited the applicability of the holding. See United States v. Vigil, 523 F.3d 1258, 1266 (10th Cir. 2008) ("Schaefer is limited to its facts -- the government's say so was not enough to prove that the Internet operates in interstate commerce, no matter how obvious").
20. In this case, the government's expert, Christopherson, offered undisputed testimony that it was impossible for an individual who is surfing the Internet to communicate only with computers in a certain geographical region.*fn197 See Gouin, 2008 WL 1886158 at *3 ("Had the Schaefer court been presented with the breadth and depth of the evidence of interstate transportation in this case, the Tenth Circuit would have had no difficulty in affirming Schaefer's conviction").
21. In sum, the court concludes that the evidence the government presented in this case is sufficient to support a finding that images transmitted via the Internet traveled in interstate commerce. The question thus becomes whether the government proved beyond a reasonable doubt that the images of child pornography defendant possessed were transmitted over the Internet. The government's expert, Christopherson, testified that metadata on the printouts constituted circumstantial evidence that the images were printed from Internet websites.
22. The government can prove the interstate commerce element of the crime through circumstantial rather than direct evidence. Runyan, 290 F.3d at 242 ("[C]ircumstantial evidence linking a particular image to the Internet (such as the presence of a website address embedded on the image) can be sufficient evidence of interstate transportation to support a conviction under § 2252A"). In Runyan, the Fifth Circuit held that the government must present "some evidence" linking specific images to the Internet; merely proving that defendant had Internet access and sometimes accessed pornography websites or newsgroups is not sufficient. Id. The Runyan court held that the government had presented sufficient evidence because one image on defendant's hard drive had a website address embedded on it and contained language advertising child pornography available at the website. In addition, the government presented expert testimony that the image had come from the Internet. Id. In United States v. Henriques, 234 F.3d 263 (5th Cir. 2000), the Fifth Circuit addressed a case in which some images in a group contained embedded web addresses, but the ones on which defendant's conviction rested did not. The court held that the evidence did not support conviction "since the government did not attempt to prove the nexus to the Internet for the three images [of child pornography on which the conviction was based] independently." Id. at 267-68.
23. The First Circuit has adopted the holding in Henriques. In United States v. Hilton, 257 F.3d 50 (1st Cir. 2000), the court held that physical evidence and expert testimony was sufficient to prove beyond a reasonable doubt that images had been transported over the Internet. Id. at 54-55. The files in question were located on a "MIRC" subdirectory, which contained software used in connection with Internet chat rooms. Additionally, the time and date features of each of the image files were "indicative" of files that had been transmitted via modems. Id. Similarly in Miller, one factor on which the Third Circuit relied in concluding that the evidence supported an inference that images had traveled via the Internet was the fact that they "advertised the names of websites suggesting that they were initially downloaded from the internet." Miller, 527 F.3d at 66 (citing Henriques, 234 F.3d at 267).
24. Based on this precedent, the credible testimony of the government's expert, and the court's independent review of the exhibits, the court finds beyond a reasonable doubt that Exhibits 65, 66, 67, 68, 71, 72, 87, 88, 89, 90, and 91, each of which depicts an actual minor engaged in sexually explicit conduct, were retrieved using the Internet.*fn198 The court relies not only on Christopherson's testimony, but on circumstantial evidence found on the exhibits themselves, including the presence of a URL in the header or footer, or embedded in the image itself,*fn199
Runyan, 290 F.3d at 242, a time and date stamp, Hilton, 257 F.3d at 54-55, and the presence in the headers of the names of the websites, Miller, 527 at 66. Furthermore, defendant detailed in the September 18, 2008 interview how he sought out images on the Internet,*fn200 and stated that he had used a church computer to find the images.*fn201
3. Conclusion as to Possession Count
25. For the reasons stated, the court finds beyond a reasonable doubt (1) that defendant possessed all of Exhibits 1-95; (2) that fifteen of the exhibits visually depict actual minors; (3) that of those fifteen exhibits, eleven display actual minors engaged in sexually explicit conduct; (4) that defendant possessed these eleven exhibits knowing that they depicted an actual minor engaging in sexually explicit conduct; and (5) that each of the eleven exhibits traveled in interstate commerce. The eleven exhibits in question are Exhibits 65, 66, 67, 68, 71, 72, 87, 88, 89, 90, and 91.
4. Defendant's Knowing Possession of Child Pornography Occurred Within the Applicable Statute of Limitations
26. The government must also prove that the conduct for which it seeks to convict defendant occurred within the applicable statute of limitations. At the time of the conduct alleged in the indictment, possession of child pornography was governed by the general five-year statute of limitations set forth in 18 U.S.C. § 3282 for non-capital offenses. On July 27, 2006, after the conduct alleged in the indictment occurred, Congress promulgated 18 U.S.C. § 3299,*fn202 which eliminated the statute of limitations for possession of child pornography. Pub. L. 109-248, Title II, § 211(a), July 27, 2006, 120 Stat. 616. "[P]rosecution under a statute that purports to revive a limitations period after it has run would fall afoul of the Ex Post Facto Clause." United States v. Bischel, 61 F.3d 1429, 1434 (9th Cir 1995). Congress can extend the statute of limitations after an offense is committed, however, without violating the Ex Post Facto Clause, so long as it enacts the extension before the original limitations period has expired. Clements v. United States, 266 F.2d 397, 399 (9th Cir. 1959). Defendant argues that to take advantage of the extended statute of limitations, the underlying conduct must have occurred on or after July 28, 2001.*fn203 The court agrees.
27. The government and defendant appear to agree that the government has the burden of proving that the underlying conduct occurred within the limitations period.*fn204 Az Din v. United States, 232 F.2d 283, 287 (9th Cir. 1956). The government asserts that its burden of proof on this point is by a preponderance of the evidence.*fn205 Defendant does not dispute this.
28. Based on a survey of the relevant case law, the court concludes that the government must show that the conduct occurred within the applicable limitations period by a preponderance of the evidence. In United States v. Gonsalves, 675 F.2d 1050 (9th Cir. 1982), the Ninth Circuit considered the burden of proof under 18 U.S.C. § 3290, which provides that there is no statute of limitations for crimes committed by persons fleeing from justice. To take advantage of this statute, the government must prove that the accused concealed himself intending to avoid arrest or prosecution. Id. at 1052. The court held that the government had to prove the conduct tolling the otherwise applicable statute of limitations by a preponderance of the evidence. It noted that "[a] major reason for adhering to the 'reasonable doubt' standard is absent . . . when the evidence offered to prove a defense is unrelated to the issue of guilt." Id. at 1054.
29. The Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466 (2000), does not necessitate reexamination of the Ninth Circuit's holding in Gonsalves. In Apprendi, the Court held that the U.S. Constitution requires that the government prove beyond a reasonable doubt any fact that increases the maximum possible punishment. Id. at 476. The Ninth Circuit has considered Apprendi's effect on a state statute of limitations, and concluded that the state need not prove that the conduct alleged occurred within the limitations period beyond a reasonable doubt. Renderos v. Ryan, 469 F.3d 788, 796 (9th Cir. 2006). See also Renderos v. Ryan, No. C 04-05250, 2005 WL 1629816, *8 (N.D. Cal. July 7, 2005) ("The [California Supreme Court] also pointed out that no United States Supreme Court case has ever extended to statutes of limitations the rule of Apprendi").
30. Whether the burden is by a preponderance of the evidence or beyond a reasonable doubt, however, the court finds that the government met its burden of showing that defendant's knowing possession of child pornography occurred within the statute of limitations. Defendant knowingly possessed the stack of images from the time he left it in the nursery until the time it was discovered and removed. United States v. Krstic, 558 F.3d 1010, 1019 (9th Cir. 2009) ("[P]ossessory offenses have long been described as 'continuing offenses' that are not complete upon receipt of the prohibited item. Rather, the statute of limitations does not begin to run until the possessor parts with the item"). Because the court finds, by both a preponderance of the evidence and beyond a reasonable doubt that defendant's constructive possession continued until discovery of the photographs in August 2007, the government has met its burden of proving that the conduct occurred within the limitations period as extended by 18 U.S.C. § 3299, that is, that defendant possessed the images on or after July 28, 2001.*fn206
B. Count One (18 U.S.C. § 2252A(a)(2)): Knowing Receipt of Child Pornography
31. To convict a defendant of receipt of child pornography under 18 U.S.C. § 2252A(a)(2), the government must prove beyond a reasonable doubt: (1) that defendant knowingly received one or more visual depictions of child pornography using any means or facility; and (2) that the images of child pornography defendant knowingly possessed had been mailed, shipped or transported in interstate or foreign commerce by any means, including by computer. 18 U.S.C. § 2252A(a)(2).
32. To establish that a defendant knowingly received child pornography, the government must prove beyond a reasonable doubt that defendant a "knowing acceptance or taking of possession" of child pornography. Romm, 455 F.3d at 1001; United States v. Mohrbacher, 182 F.3d 1041, 1048 (9th Cir. 1999) ("An individual who downloads material takes possession or accepts delivery of the visual image; he has therefore certainly received it"). The offenses of possession and receipt are related, but are not identical. Every element of the crime of knowing possession is subsumed within the crime of knowing receipt. United States v. Davenport, 519 F.3d 940, 947 (9th Cir. 2008). The added element of the receipt charge is that the government must prove the requisite mens rea at the moment defendant took possession of the child pornography. See United States v. Kamen, 491 F.Supp.2d 142, 150 (D. Mass. 2007) ("Receipt equals possession plus the additional element of acceptance. . ."). One can knowingly possess child pornography without knowingly receiving it, as for instance if a person's computer is infected with a virus or spyware that surreptitiously places images of child pornography on one's computer and one later comes to know that the child pornography is there. Miller, 527 F.3d at 62-63. When the computer owner discovers the images, he will knowingly possess them, even though he did not knowingly receive them. See United States v. Larson, 558 F.Supp.2d 1103, 1107 (D. Mont. 2008) ("A person acts knowingly if he is aware of the act and does not act through ignorance, mistake or accident").
33. This different mental state -- i.e., defendant's state of mind at the time he came into possession of the child pornography -- is the only additional element that the government must establish to prove knowing receipt of child pornography in addition to knowing possession of child pornography.
1. The Government Did Not Prove Beyond a Reasonable Doubt that Defendant Knowingly Received Child Pornography
34. The government has the burden of proving beyond a reasonable doubt that when defendant took possession of the child pornography, he did so knowing that the images were visual depictions of actual minors engaged in sexually explicit conduct. In other words, the government has the burden of showing that defendant took possession of the images in the absence of ignorance, mistake, or accident. 12 U.S.C. § 2252A(a)(2); Larson, 558 F.Supp.2d at 1107.
35. The government's ability to prove this fact is complicated in this base because it cannot prove when defendant acquired the images. The primary evidence on which the government relies to prove receipt is defendant's September 18, 2008 interview. During the interview, Welton stated: "It had to have been a church somewhere, but I don't know exactly which one, you know, where I was at."*fn207 The recording is cut immediately before and immediately after this statement. The government asserts that defendant's reference to "it" concerns the printing of child pornography. In another excerpt, Benitez states: "I think what you're telling me is that you printed that from a church computer somewhere." Defendant replies: "Yeah."*fn208 Here again, the government asserts that the "that" to which Benitez refers is child pornography. The government, however, has introduced no evidence regarding the statements that preceded or followed this interaction, nor any other evidence that shows that defendant printed the eleven images that the court has found constitute child pornography. At another point, defendant states: "It would have to have been from a long time ago from a computer that I went on." Here too, the government would have the court assume that the activity defendant references is the printing, downloading, or other acquisition of child pornography, as opposed to the printing, downloading or acquisition of the dozens of photographs in the stack of printouts found in the church that do not constitute child pornography.*fn209
36. At another point in the interview, Benitez states that the images must have come from a computer. Defendant responds: "Where that computer is, I have no idea." Benitez responds, "It's what?" and defendant states: "Where this computer; where I got the images?"*fn210 This statement is susceptible of different interpretations. Defendant may have meant to acknowledge that he used a computer, but that he did not remember which one. Alternatively, he may have meant to suggest that he did not use a computer personally but that he received the images from another person who did. At another point during the interview, defendant repeatedly stated that he did not know the source of the images. He said: "I have no idea"; "Probably from. . . No I don't have any idea, I don't know, actually."*fn211 Whatever interpretation is placed on defendant's statements, they do not themselves identify, and the government adduced no other proof identifying, which images defendant's comments referenced. Thus, once again, the court is unable to find that the specific images among the printouts that constitute child pornography were knowingly received by defendant.
4. The government's strongest evidence regarding receipt is defendant's description of how he located the pornography. He stated: "There's a link thing, when you go on the Internet. There's a link banner page to something. . . . And if you keep going to these links, it links to others and you just keep going to this stuff and it goes, automatically goes to a thing and you can say preview and you preview it and then the previews come up."*fn212
5. This evidence, however, lacks foundation in the sense that defendant does not specifically state that the images he downloaded were visual depictions of actual minors engaged in sexually explicit conduct. Detective Trapp confirmed that the item to which defendant referred during the interview was a copy of Exhibits 1-95 that had been placed in front of him. That stack contained not only child pornography, but also adult pornography, cartoons, morphed images, and pictures of children that were not pornographic. For defendant's statements during the interview to constitute evidence beyond a reasonable doubt that defendant knowingly received child pornography, the government would have had to prove that the specific subjects of defendant's statements were the images of child pornography in the stack. Trapp could not recall which image(s) were being discussed at the time defendant made these statements.*fn213
Consequently, it is not outside the realm of possibility that a third person gave defendant a stack of images that contained adult pornography and/or non-pornographic images of children, as well as child pornography. From this larger stack, defendant could have culled the images he preferred and stored them in the nursery. If this were the case, he would knowingly have possessed child pornography, but not knowingly have received it. Because the government has not rebutted the possibility that defendant obtained the images through accident, mistake, or ignorance, it has not met its burden of proving beyond a reasonable doubt that defendant knowingly received child pornography.
6. Any findings of fact that are deemed to be conclusions of law are incorporated herein as such.