I am analyzing whether a client in one of my current cases "knowingly" downloaded a certain number of images for sentencing purposes. In researching the question I came accross this useful framework used by the 3d Circuit.
More difficult is the question whether Miller received the images knowingly. Other courts, confronting this question, have deemed at least four factors relevant to this inquiry: (1) whether images were found on the defendant's computer, see United States v. Irving, 452 F.3d 110, 122 (2d Cir.2006); (2) the number of images of child pornography that were found, see id. (finding defendant's possession of 76 images relevant); (3) whether the content of the images "was evident from their file names," United States v. Payne, 341 F.3d 393, 403 (5th Cir.2003) (finding "number of images in [defendant's] possession, taken together with the suggestive titles of the photographs" established knowing receipt); and (4) defendant's knowledge of and ability to access the storage area for the images, see Romm, 455 F.3d at 997-1001 (addressing defendant's ability to access cache files in hidden subdirectory); cf. Kuchinski, 469 F.3d at 861-63 (same). We summarize the evidence bearing on these four factors:
(1) The government adduced no direct, forensic evidence that the images were downloaded onto Miller's computer. Agent Kyle testified that it was his "educated guess" that Miller downloaded the images onto the zip disk via the internet, perhaps by trading them in a chat room or by searching for them on a website. A. 195. However, Agent Kyle went on to testify, the government had no proof from Miller's hard drive that supported this hypothesis. Agent Price, on cross-examination, acknowledged that, despite the FBI's use of forensic software designed to recover deleted material from hard drives, the FBI had discovered no evidence that Miller's computer had been used to upload or download child pornography.(fn12) Agent Price further testified that there was no evidence that Miller ever used search engines to locate child pornography websites, or that such websites had ever been visited from Miller's computer (the FBI's investigation did reveal, however, that two websites containing adult pornography had been visited from the computer). Agent Price also acknowledged that there was no evidence that Miller ever participated in email exchanges or online chat rooms that pertained to child pornography. Finally, Price acknowledged that there was no evidence that Miller used a "wiping" or "eliminator" program to clear his hard drive of evidence that files had been downloaded. A. 296-97.
(2) The second factor, the number of images of child pornography found, likewise does not weigh in the government's favor in light of the overwhelming number of adult images that were found. The government presented evidence pertaining to only twenty of the 1200-1400 images found on the zip disk, and the District Court subsequently determined, in the process of sentencing Miller, that only eleven of these images constituted child pornography. Miller contended that he was unaware of the existence of these images and, significantly, Miller volunteered the password of the zip disk to Agent Kyle, cautioning him that the disk contained pornography. Miller also presented evidence that 586 of the images were copied onto the disk at periodic intervals over a seven-hour period, suggesting that they were not individually viewed when they were being copied. Agent Price's rebuttal to this suggestion was that Miller may have first downloaded the images onto his hard drive, or that of another computer, before copying them onto the disk. This possibility puts sharp light, however, on the facts that no forensic evidence of child pornography was found on Miller's hard drive, and that there was no evidence adduced that another computer may have been used to download the images.
(3) Nor does the third factor, whether the content of the images "was evident from their file names," weigh in the government's favor. Several of the images were embedded with the names of websites that possibly advertised child pornography, but - according to Agent Kyle's and Smith's testimony - this does not suggest that the images were obtained from those websites. Moreover, these website names would not be seen unless a person opened and viewed the files. While there is strong evidence that Miller eventually came to view some of the images of child pornography that were on the disk,(fn13) and thus to knowingly possess the images, this evidence does not lend much support to the inference that Miller knowingly downloaded the images.
(4) Turning to the fourth factor, whether the defendant had knowledge of and an ability to access the storage space for the images, it is clear that Miller had access to the images on the zip disk. Indeed, Miller admitted to storing image files, including adult pornography, on the disk. In this respect, the facts of this case are more akin to the facts of Romm, 455 F.3d at 997-1001, where the court found that the defendant's knowledge that he could access cache files supported the inference that he knowingly possessed the files, than to the facts of Kuchinski, 469 F.3d 853, 861-63, where the court rejected this inference because the defendant was unaware of, "and concomitantly lack[ed] access to and control over the existence of the files." In contrast to the facts before us, however, the defendant in Romm had stored images of child pornography on the hard drive of his computer, albeit in a subdirectory that was difficult for a typical computer user to access. The Romm court acknowledged that "[n]o doubt, images could be saved to the cache when a defendant accidentally views the images, as through the occurrence of a `pop-up,' for instance." 455 F.3d at 1000. However, the court concluded that this "[wa]s not the case" in Romm's circumstance: "By his own admission . . ., Romm repeatedly sought out child pornography over the internet. When he found images he "liked," he would "view them, save them to his computer, look at them for about five minutes [ ] and then delete them." Id. By contrast, Miller has consistently denied that he knowingly viewed or had any interest in viewing child pornography.
Beyond the facts relevant to these four factors, however, the evidence presents a fifth factor that may support the jury's determination: the number of occasions that the images were copied onto the zip disk. Smith testified that the images copied onto the zip disk on October 13, 2002, were likely transferred automatically. However, images of child pornography were also copied onto the disk on subsequent dates. Specifically, according to their dates created, the eleven images that the District Court determined to actually be child pornography were copied to the zip disk on October 13, October 29, December 17, and December 20, 2002. A reasonable juror might have concluded, from this evidence, that Miller copied the images on more than one occasion.
United States v. Miller, 527 F.3d 54 (3rd Cir. 2008)