Sunday, February 13, 2011

Case o' The Week: Tucson & Thomas - Flyer and Possesion of Child Porn

Child porn on appeal: can you get a fair shake?

Does the Ninth deal with the emotionally-charged issues of child pornography in a neutral, detached, and rigorous analysis, with decisions dictated solely by the record and controlling law and not swayed by the nature of the crime? Or are outcomes in the Ninth arguably affected by the reprehensible crime at issue?

Yes -- both (and sometimes, in decisions delivered the same week). See United States v. Flyer, 2011 WL 383967 (9th Cir. Feb. 8, 2011), decision available here; compare United States v. Krupa, 2011 WL 353212 (9th Cir. Feb. 7, 2011), decision available here.

Players: Big win by ND Cal CJA attorney Nina Wilder. Admirable and courageous decision by Judge Sidney Thomas, above right.

Facts: Again the Ninth confronts Tucson agents with too much time on their hands. As in Wright, 625 F.3d 583 (9th Cir. 2010), in Flyer the same FBI agent -- Robin Andrews -- trolled the internet and downloaded child porn. These images allegedly came from Flyer’s IP address. Id. at *1, *5. A search of the residence produced a PC and other digital gear. Id. at *2. Child porn was found in the unallocated space of the PC: Flyer was charged with possession and convicted at trial. Id. at *2-*3.

Issue(s): “Flyer argues there was insufficient evidence to establish that he exercised dominion and control over the images recovered from the unallocated space on the hard drive. Alternatively, he argues that even if he could said to have ‘possessed’ the images before their deletion, no evidence indicated that the possession occurred during the time period charged in the indictment.” Id. at *6.

Held: “We conclude that Flyer’s conviction must be reversed . . . . The government concedes that it presented no evidence that Flyer knew of the presence of the files on the unallocated space of his Gateway computer’s hard drive. The government also concedes it presented no evidence that Flyer had the forensic software required to see or access the files. Unlike Romm, there is no evidence here that Flyer had accessed, enlarged, or manipulated any of the charged images, and he made no admission that he had viewed the charged images on or near the time alleged in the indictment.Id. at *7.

Of Note: In Flyer, Judge Sidney Thomas maintains his reputation as one of the most thoughtful jurists in the country on the intersection of technology, the Fourth Amendment, and criminal law. See also United States v. Kelley, 482 F.3d 1047. 1055 (9th Cir. 2007) (Thomas, J., dissenting); United States v. Comprehensive Drug Testing, 513 F.3d 1085, 1116 (9th Cir. 2008) (Thomas, J., dissenting) (overruled reh’g en banc).

If the White House can ever manage to look West of New York's five boroughs, here’s the rare judge who thoroughly understands the technological issues that will be facing the future high Court.

How to Use: Start with Flyer for any child porn case. It discusses jurisdictional requirements, id. at *5, Trombetta destruction of evidence in the context of forensic analysis, id. at *3, and states a great new rule: “deletion of an image alone [leaving the file in unallocated space] does not support a conviction for knowing possession of child pornography on or about a certain date within the meaning of § 2255(a)(4)(B). Id. at *7.

It also gives a sobering reminder for trial practice – make and renew Rule 29 motions! “Here, Flyer did not renew his motion for judgment of acquittal at the close of the evidence and thus did not preserve his claim. Accordingly, we apply plain-error review . . . .” Id. at *5. With this very good panel Flyer still prevailed on plain-error review, but better not to put appellate counsel in that tough position.

For Further Reading: Though Flyer is great, last week also brought the very disappointing Fourth Amendment / child porn decision in United States v. Krupa, 2011 WL 353212 (9th Cir. Feb. 7, 2011). In Krupa, a single Ninth Circuit judge (we believe) steers the Court far from its previous authority in Battershell. Id. at *2-*3. As dissenting Judge Berzon correctly complains, “The majority seems to imagine ‘probable cause’ as a cloud that follows certain people around, created by their idiosyncratic habits and irresponsible friends, and persisting even though the individuals are not suspected of any particular crime.” Id. at *4 (Berzon, J., dissenting).

Judge Berzon ends her dissent with a thoughtful reflection: “I cannot help but think that had this case involved anything but child pornography, it would come out differently. I fear that understandable abhorrence of this particular crime can infect judicial judgment. We would do well to remember that the protections of the Fourth Amendment do not depend on the nature of the suspected criminal activity, any more than they do on the race or gender of the suspect. And that is particularly so where the issue is the searching of personal computers, on which more and more extremely sensitive information is stored.” Id. at *8.

Judge Berzon is right: Krupa deserves en banc review.

Image of the Honorable Judge Sidney Thomas from The New Yorker's view of the World from

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



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Anonymous Criminal Defense Lawyer Chicago said...

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Sunday, February 13, 2011 8:55:00 PM  
Anonymous Anonymous said...

This comment has been removed by a blog administrator.

Monday, February 14, 2011 2:20:00 PM  
Blogger Steve Kalar said...

To the anonymous poster - sincere thanks for the gentle spelling tip! Errors corrected above.


Monday, February 14, 2011 3:01:00 PM  

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