Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Hernandez

United States District Court, E.D. California

June 26, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
ARMADO HERNANDEZ, Defendant.

TENTATIVE RULING RE: RESTITUTION

GARLAND E. BURRELL, Jr., Senior District Judge.

Two groups of victims seek restitution under 18 U.S.C. § 2259 in connection with Defendant Armado Hernandez's guilty plea to one count of Receipt and Distribution of Child Pornography proscribed in 18 U.S.C. § 2252(a)(2): a victim identified as "Vicky" and John Does I-V, who are collectively referred to as members of the "Erik" and/or "8 Kids" series.[1] Defendant was sentenced on December 20, 2013, but decision on the restitution requests was continued until June 6, 2014.

For the reasons stated below, "Vicky" is awarded $2, 282.86 in restitution, and each John Doe's restitution request is denied.

I. FACTUAL BACKGROUND

The Factual Basis for Defendant's Plea Agreement states, in relevant part:

In the summer of 2010, FBI Chico received information from an officer of the Glenn County Sheriff's Department regarding a computer he had received from a concerned citizen....
....
The law enforcement forensic review of this computer... revealed that there were approximately 450 still image files of child pornography and approximately 250 videos files or child pornography on the abandoned computer. Many were downloaded by Hernandez using a peer-to-peer file-sharing network. Forensic analysis of the computer shows no evidence of any users of the computer other than Hernandez (and the concerned citizen).
There is evidence that the registered owner of the software for this abandoned computer, Amado Hernandez, ... downloaded these files. Evidence of this comes from the photo "picture_5.jpg, " which was located in a Quick Cam folder. This is a photo of an apparently naked Amado Hernandez holding a pad of paper displaying his peer-to-peer username and the date "08 MAR 2009." At the bottom of the image... is imprinted a Quick Cam generated date 03/08/2009 11:26 AM. This date correlates with the "create" date for the image file found on Hernandez's computer, as revealed by the forensic software. Computer files containing visual depictions of minors engaged in sexually explicit conduct were downloaded very close in proximity to the time of the photo of the apparently naked Amado Hernandez in "picture_5.jpg" was created.
The video and image files were forward to... NCMEC, which compared those files with images of known child pornography victims. NCMEC subsequently reported that 43 of those submitted video files were of known child victims from 15 different identifiable series of child pornography. Moreover, NCMEC also reported that there were 72 child pornography still images from 35 different identifiable series of child pornography....
....
When interviewed, Hernandez said... he lived in Chico during at least March 2009 through October 2009. He said through July 2009 he used a custom built desktop computer that he later discarded because it was not working well. Hernandez admitted that he downloaded and possessed child pornography during this time in Chico....
Because he downloaded and viewed the images of child pornography, the defendant knew that the images that he downloaded through the file-sharing network showed minors engaged in sexually explicit conduct.

(Plea Agreement 15:6-17:10, ECF No. 44.)

The Presentence Report provides additional information concerning Defendant's admitted use of the peer-to-peer network to download child pornography as follows:

A forensic review of the [referenced] computer... revealed that... [m]any [of the still images and videos of child pornography] were downloaded by [Defendant] using a peer-to-peer file-sharing network, Gigatribe.
....
On January 2, 2011, [Defendant] was contacted in San Diego, California, on a cruise ship. [Defendant] admitted he had used the peer-to-peer network user names "pnplatinoboi, " "pnpcaliperv, " "pnpcaliperv2, " and "pnpervlatino" to download child pornography. The first three user names were used while he lived in Chico. The latter account was created just weeks prior to the interview, while he lived and worked on the cruise ship.

(Presentence Report ("PSR") && 3, 7.)

A May 29, 2014 Forensic Investigation Report prepared by Jos Van Hout, the Forensic Examiner/Investigator who conducted the original forensic examination of the referenced computer, further states:

On May 20, 2014 at approximately 12:37PM I received a call from FBI Agent Mark Roberts. He indicated there was a question related to some Child Pornography image and video files in this case. Agent Roberts inquired if there was a way for me to access my original forensic files and reports to determine if the[] files in question were viewed and/or manipulated by the [Defendant]....
On May 23, 2014 at approximately 1100 hours I arrived at the Butte County District Attorney's Office to review my files and evidence.
....
Agent Roberts had submitted [certain] file names in question for me to analyze. The question in [these] files was whether the suspect viewed the images or video.
1) A video from NCMEC report request number 49933 from the "Vicky" series identified as Vicky_newest_(PTHC).wmv
I located the video file in the following path on the computer. C/Documents and Settings/Amado/My Documents/My Downloads/Gigatribe/pnpcaliperv/vids/Vicky_ne west_(PTHC).wmv
....
2) An image file from NCMEC report number 49933_1 from the "Erik" series identified as P080.jpg
I located the video [sic] file in the following folder path on the computer. C/Documents and Settings/Amado/My Documents/My ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.