United States v. Breton, 740 F. 3d 1 (1st Cir.), January 2014

In May 2012, appellant was found guilty of producing, possessing, and distributing child pornography.  He appeals the admission of certain statements made by his wife, sufficiency of the evidence, admission of certain other incriminating evidence, and the sentence.  We will discuss the challenge to the admission of the incriminating evidence here.  Suffice it to say, the other issues were resolved quite easily.

Facts: Appellant’s arrest for the child pornography charges was incidental to an unrelated investigation of appellant for computer hacking.  Police went to appellant’s house to question him regarding the hacking investigation, and noticed a large dog in the home.  They asked appellant to secure the dog, and in the meantime appellant squirreled away a laptop computer.  So when the police went in, appellant offered his desktop computer as well as a non-functioning laptop in the name of cooperation.  Later that day, appellant told his wife about the police and that he hid the laptop.  Appellant’s wife took that opportunity to take their infant daughter, and the laptop and move in with her parents.  Unbeknownst to appellant, his wife contacted the police and made the previously hidden laptop available to them.  A forensic search of the laptop revealed sexually explicit images of children in a hidden file associated with Yahoo messenger.   Wiping software was also found, and noted that it had been installed within moments of the police leaving appellant’s house.  When questioned about the hidden laptop and the wiping software, appellant admitted that he installed the wiping software so he could get rid of intimate images of he and his wife, but admitted that it did appear like he was “destroying evidence.”  Appellant also admitted to a number of facts, which associated the usernames and email addresses found on the computer to him.  It is the evidence associated with these usernames and email addresses which are the subject of our discussion.

A search of the laptop revealed more than 300 images (200 known via NCMEC) of child pornography.  Of those that were unknown, 3 pertained to an infant (which appellant’s wife identified as their daughter because of the onesie, the quilt in the picture, and appellant’s easily identifiable finger).   Registry files associated with the aforementioned usernames/email were discovered to contain words/phrases easily associated with child pornography (e.g., “Pthc,” meaning “preteen hardcore;” “Lolita,” meaning an underage female; and “girl–in–tent–11–YO).  Law enforcement also found an Internet Relay Chat (IRC) program associated with similar usernames to contain log files of chat rooms with names like “young-girl-sex,” “dad-and-daughter-sex,” “little-boy-sex-chat,” “mom-daughter-sex,” and “teen-sex-pics.”  On the desktop no incriminating images were found, however evidence pertaining to two web-sharing forums- imgsrc.ru (“Image Source Russia”), a website that allows users to upload images from servers in Russia into albums to share publicly or with password protection; and XNews, a newsgroup website where readers can comment on particular topics were found.  There was evidence of past searches on Image Source Russia for such phrases as “12YO,” “daughter,” “naked,” “girl,” “sex,” “14,” and “14 plus girl,” as well as evidence of webpages visited containing albums with titles and keywords like “love Lolita,” “children,” “young girls,” “14YO topless,” and “young nude preteen girls.” And although the files themselves were missing, there was evidence of downloads from XNews including, “Pthc11YRsoneat mom”and “O–R–G–A–S–I–S–M.mpg.”

Trial:  Appellant moved in limine to exclude the above information as irrelevant, unfairly prejudicial, and confusing (401 & 403 grounds).  The judge denied the motion, and appellant was convicted of the charges.

Attack on Relevancy:  “Breton first argues that file and chat room names suggestive of child pornography were not relevant to the charged crimes where no corresponding images were recovered. As we have said before, “[a] relevancy-based argument is usually a tough sell.” Bielunas v. F/V Misty Dawn, Inc., 621 F.3d 72, 76 (1st Cir.2010). This is not a high bar, and we give a district judge “considerable leeway in deciding whether the contested evidence satisfies this … standard.” Id. To prove that a defendant knowingly possessed child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) or knowingly distributed child pornography in violation of 18 U.S.C. § 2252A(a)(2) requires a showing of scienter. Courts, including this one, consider file, chat room, and website names suggestive of child pornography relevant to proving a defendant’s knowledge of such materials. See, e.g., United States v. Rogers, 714 F.3d 82, 86–87 (1st Cir.2013).”

Holding on Relevancy: The district judge admitted this evidence over Breton’s objections because he believed the file and chat room names were relevant to “the [g]overnment’s effort to establish the scienter requirement and to show what [Breton] was doing … on his computers, even though there may not have been images in those particular files.” *14 He found that “the combination of file names and chat rooms cumulatively [could] be used to argue to the jury that [Breton] was, in fact, involved in child pornography.” We agree. The presence of files with names indicative of child pornography—even absent further proof of what, if anything, those files contained—tends to make it more probable that Breton knowingly was involved with child pornography.

Attack on Prejudice:  “Evidence produces unfair prejudice when it “invites the jury to render a verdict on an improper emotional basis.”

Holding on Prejudice: “We give great deference to a district judge’s balancing of probative value versus unfair prejudice. Gentles, 619 F.3d at 87. This is true even when a judge does not expressly explain the Rule 403 balancing process on the record. See, e.g., United States v. Smith, 292 F.3d 90, 98 (1st Cir.2002).”  Here the Judge did not specifically announce a 403 analysis so appellant argued that he failed to conduct one.  We disagree. Preliminarily, we note that the absence of an express Rule 403 finding here on this particular piece of disputed evidence does not mean the district judge failed to perform this analysis. See Smith, 292 F.3d at 98. The judge’s handling of other disputed evidence demonstrates that he was aware of his responsibility to weigh the relevant factors and perform Rule 403 balancing prior to admitting such evidence. See De La Cruz, 902 F.2d at 123 n. 1.

Practitioner Note:  Even though this turned out well, it is a good idea to ask the Judge to articulate his 403 analysis on the record.  Doing so requires the appellate court to give greater deference to the Judge.   Additionally, this issue came about as a result of a Defense motion in limine.  The use of  offensive Government pretrial practice is encouraged, as this puts the prosecutor in a great position with respect to the facts, and witness preparation.  It also sometimes has the added effect of encouraging defendants to plea.



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