Saturday, July 29, 2006

Case o’ The Week: RAM, Rom, wrong - Ninth’s disappointing child porn case

What do the Mona Lisa (left) and child porn have in common? Nothing, says Judge Bea, in a disappointing new child porn case from the Ninth. United States v. Rom, __ F.3d __, 06 Cal. Daily. Op. Serv. 8261 (9th Cir. July 24, 2006), available here. A tough opinion upholding a conviction for "possession," for child porn images in an internet cache.

Players: Hard fought case by Nevada AFPD Jason Carr.

Facts: Rom, who had a sex-offense prior, viewed child porn on the internet while in Las Vegas. Id. at 8267. He flew to Canada on a business trip, where Canadian immigration detected his criminal record, searched his laptop, and saw child porn websites in the computer’s internet history. Id. On his return through Seattle, ICE agents searched the laptop and Rom admitted to viewing child porn on the web. Id. at 8269. Experts at trial said that child porn had been deleted, and that some porn was in the computer’s internet cache. Id. Many of the images were “thumbnails,” some of which had been “enlarged.” Id.

Issue(s): 1. Search: “[W]hether, absent a search warrant or probable cause, the contents of a laptop computer may be searched at an international border . . . Id. at 8265. 2. Sufficiency: “Rom concedes there was sufficient evidence for the jury to find he acted with the requisite mental state of ‘knowingly,’ but rather contends that the act he committed was merely the viewing of child pornography, not the possession or receipt of it.” Id. at 8273-74. 3. Jury Instruction: “We also address an error in the jury instructions on the mental state required for knowingly possessing child pornography.” Id. at 8265.

Held: 1. Search: “[S]earches made at the border . . . are reasonable simply by virtue of the fact that they occur at the border. . . Thus, the routine border search of Rom’s laptop was reasonable . . .’Id. at 8272 (citations and quotations omitted). 2. Sufficiency of the evidence: In the electronic context, a person can receive and possess child pornography without downloading it, if he or she seeks it out and exercises dominion and control over it. . . . Here, we hold Rom exercised dominion and control over the images in his cache by enlarging them on his screen, and saving them there for five minutes before deleting them. While the images were displayed on Rom’s screen and simultaneously stored to his laptop’s hard drive, he had the ability to copy, print, or email the images to others. Thus, this evidence of control was sufficient for the jury to find that Rom possessed and received the images in his cache.” 3. Jury Instruction: The instruction was erroneous because it did not require the jury to find Rom knew prohibited files were on his hard drive. Id. at 8283 (discussing Lacy error). {But 9th refuses to correct the plain error}.

Of Note: A ND Cal AUSA recently revealed that ICE has a new investigation approach. ICE agents look for single men with laptops at international airports, then simply search the computers (without cause). LAX, SFO, Sea-Tac: any international hub could be getting these tough child porn cases. Note that as bad as Rom is, it did not reach two issues for international airport searches of laptops: a First Amendment angle, and whether such searches are “routine.” Id. at 8273 & n. 11. Also, query whether the new ICE approach has Equal Protection ramifications.

How to Use: Rom is bad – very bad – but there are chinks in its armor. Author Judge Bea conceded that Judge Kleinfeld has argued the rule of lenity against this expansive use of cached images for “possession” and “receipt” of child porn. Id. at 8279. Kleinfeld argued that someone with porn in his cache no more has “received” it than someone “receives” an image of the Mona Lisa who views the painting in the Louvre. Id. at 8280. Bea distinguishes this case, however, because here forensic evidence showed Rom actually enlarged images in the cache. Id. If forensics support a pure “pop-up” history, or inadvertently skimming over an image, Rom might not control.

For Further Reading: Bloggers are unimpressed with Rom. Warrantless and suspicionless searches of laptops is raising some eyebrows, even in the post 9/11 world. See article here. . Others query Bea’s logic, when the Canadians had initially developed PC anyway. See commentary here. Still others take issue with the forensic assertions in the opinion. See blog here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at



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