Facts: Appellant brought his computer in to a repair shop, where the technician observed more than 1200 images of apparent child pornography, saved them to a thumbdrive, and contacted police. An officer arrived, confiscated the computer, and called appellant to notify him of the confiscation and request he come down for an interview. Appellant went first to the repair shop where he learned what the technician found, and told the technician those images were probably put there by a friend. During his interview with the police, appellant pulled out the Good Samaritan Defense and told police he was conducting his own special, undercover investigation into the world of child pornography. He told police that once he was finished with his investigation he intended on turning everything over to law enforcement. Appellant acknowledged that he was the owner of the computer and consented to its search.
On forensic examination, more than 6,000 images were recovered from the unallocated space (deleted files). A disc with the images was made for law enforcement. The officer reviewed approximately 1200 of the images on the disc, and printed 12 for prosecution purposes.
A 6-count criminal complaint was filed alleging that appellant possessed images of child pornography on December 30, 2009. Counts 1-5 were premised on a single image for each count, while count 6 was premised on two images.
Appellant was convicted on all 6 counts, after his motion for directed verdict was denied (arguing lack of proof of possession). He was sentenced on counts 1-3 to three concurrent 2 ½ years; for counts 4-6 he was sentenced to an additional three concurrent 2 ½ year sentences; for a total of 5 years.
Issues: What is the proper unit of prosecution for the possession of child pornography pursuant to G.L. c. 272, § 29C. when the defendant is charged with possessing multiple images at the same point in time, from a single internet cache.
Whether the images that made up counts 1-3 were protected speech.
Analysis and Holding for Issue 1: The Government argued a victim-based approach (meaning each victim can constitute a single count), instead of a conduct-based approach.
The court held “Considering the purpose statement in conjunction with these other statutory provisions, we understand § 29C (the state statute) to be aimed at eradicating the harmful societal effects posed by the circulation of child pornography, including, but not limited to, the harm caused to the individual children depicted therein. Accordingly, we reject the Commonwealth’s victim-based approach to determining the appropriate unit of prosecution for possession of child pornography, concluding instead that a conduct-based approach is more in keeping with the broad intent of the statute and the tiered punishment framework that it erects. We find useful analogies in other types of possession cases. See, e.g., Rabb, 431 Mass. at 129–132, 725 N.E.2d 1036. In Rabb, we noted “various considerations for identifying when separate quantities of drugs exist to justify two or more charges: ‘Generally, courts which have considered the issue [of multiple prosecutions under controlled substance statutes] have determined that separate convictions for possession of the same type of con- trolled substance [with an intent to distribute] will not violate the Double Jeopardy Clause if the possessions are sufficiently differentiated by time, location, or intended purpose.’ ” Id. at 130, 725 N.E.2d 1036, quoting Rashad v. Burt, 108 F.3d 677, 681 (6th Cir.1997), cert. denied, 522 U.S. 1075, 118 S.Ct. 850, 139 L.Ed.2d 751 (1998). See Commonwealth v. Beacon Distribs., Inc., 14 Mass.App.Ct. 570, 574–575, 441 N.E.2d 541 (1982) (indictment alleging twenty counts of possessing obscene films in same place at same time alleged single offense).”
Analysis and Holding for Issue 2: The court looks to U.S. v. Dost for a list (though not exhaustive or exclusive) of what constitutes child pornography. For those keeping score, you can review the Dost factors and progeny here United States v. Dost, 636 F.Supp. 828, 832 (S.D.Cal.1986), aff’d, 812 F.2d 1239 (9th Cir.), cert. denied, 484 U.S. 856, 108 S.Ct. 164, 98 L.Ed.2d 118 (1987). They do a comprehensive review and determine that each photo making up counts 1-3 constituted child pornography.
Other Problems at Trial: The Government introduced Appellant’s confession along with the 7 images that made up the 6-count complaint. They also introduced 5 uncharged images. The Government said the 5 uncharged images were for absence of mistake, motive, or modus operandi. Each charged image was attached to each verdict slip, with two images being attached for count 6 verdict slip. One of the images which made up count 6 did not meet any of the factors for child pornography, while the other image did.
With regard to the admission of the 5 uncharged images, the court held that there was no need to introduce them on the grounds of absence of mistake since the defendant’s confession of Good Samaritan was introduced. Therefore they were prejudicial.
Regarding the general verdict issue, the court began by saying that the Government is free to use multiple images to prove up a single offense, but “when the Commonwealth elects to proceed in this manner, it runs the risk of violating the rule articulated “in Commonwealth v. Matchett, 386 Mass. 492, 511, 436 N.E.2d 400 (1982), … that if the evidence presented to the jury would warrant a conviction on one ground, but not on another, and it is impossible to tell on which ground the jury relied, the verdict must be set aside on appeal.”
Lastly, the Government misstated the law in its closing argument. The court did not look kindly on this. Also, the judge did not properly instruct the jury on the definition of “lewd.”
Holding: The conviction on count 6 must be set aside due to general verdict. Based on the amalgamation of errors in this case, the court held that all convictions are vacated and remanded for new trial.
Practitioner Notes: This case is a good reminder that we are obligated to look at every single image we charge to make certain it meets the definition of child pornography. Also, if we use more than one image to support a count (which we often do) we have to know which image was the basis of the conviction by having special verdict findings. With respect to the unit of prosecution question, I don’t know if the Government was able to discern the dates of download/view from the unallocated space. My hunch is the answer is no, in which case I can see where the court came from on the single unit of prosecution. However, if we can charge based on media (hard drive, thumbdrive, external hard drive) as well as dates, and types of media (still image versus movie) I think we are on better footing for these types of challenges.