Metadata from VHS? 8th Circuit upholds VHS tape seizure in child porn case

I couldn't help but mention this case, briefly. The 8th Circuit, in United States v. Hager, No. 12-2074 (Mar. 29, 2013), held that a search warrant for digital devices containing metadata related to the production of child pornography allowed officers to search/seize VHS tapes. Even though the court acknowledged that VHS tapes are analog and contain no such thing. The ruling was bolstered, in part, by the officer's reliance on a computer forensic expert's opinion, as well as an AUSA stating that the VHS tapes were within the scope of the warrant.

I have bolded/italicized/underlined important parts:

During the search of Hager's residence, agents found 747 VHS tapes capable of holding more than 4,400 hours of information when viewed on a television. Litzinger called a computer forensic expert in North Dakota to ask whether the tapes constituted "electronic media." The expert said that they did. Litzinger then called the First Assistant United States Attorney for North Dakota, who said that the VHS tapes were within the scope of the warrant. Agents then seized the tapes. 

Litzinger was unfamiliar with WebTV or how VHS recording devices worked, thinking that WebTV was similar to a modem. Litzinger believed that he would find the Mueller images on the VHS tapes and that the VHS tapes would contain metadata useful to the Mueller case. Litzinger did not know that VHS tapes are analog, not digital, and as such cannot contain metadata; Litzinger saw a USB port on the WebTV box and assumed that the information on the VHS tapes would be the same as if it was saved on a computer.

Litzinger and a non-expert support staff member of the North Dakota HSI reviewed the VHS tapes at the North Dakota HSI office. Neither Litzinger nor the support staff member knew that the VHS tapes could not contain metadata, although a reasonably competent forensic computer examiner would know this. Upon viewing the tapes, Litzinger and the support staff member found child pornography, whereupon they stopped viewing the tapes and sought and obtained an additional warrant.

Now I understand that EXIF data, metadata, and digital signatures might be confusing to detectives/attorneys unfamiliar with the concepts, but letting this one go on the merits, or (as the court argues), alternatively, under the Leon good faith exception, strains credibility. 

Another excerpt is below:

Hager argues that the first search warrant authorized only a search for the metadata of the sexually suggestive images of Mueller's daughters. Accordingly, Hager argues that the agents were not authorized to search for the images on the VHS tapes in his residence because the VHS tapes could not contain metadata. Reviewing de novo, see United States v. Stoltz, 683 F.3d 934, 938 (8th Cir. 2012), we conclude that the agents did not exceed the scope of the warrant. 

In his affidavit in support of the search warrant, Litzinger made clear that he sought to recover "sexually suggestive images depicting known children which were produced by Robert John Mueller in Detroit, Michigan[.]" Appellant's App. 3-4, Litzinger Aff. ¶ 3. Similarly, the warrant authorized a search for and the seizure of "sexually suggestive images depicting [Mueller's minor daughters] wherever they may be stored or found[.]" Appellant's App. 42. In his affidavit, Litzinger averred that Hager had received the Mueller images and that Hager likely possessed hard copies thereof. Although Litzinger undoubtedly sought to examine any metadata from the Mueller images, a fair reading of his affidavit reveals that Litzinger sought to recover the metadata in addition to, and not to the exclusion of, the images themselves. See United States v. Monson, 636 F.3d 435, 441 (8th Cir. 2011)(explaining that "we ordinarily interpret affidavits in a 'common sense' fashion that is not 'hypertechnical'" (quoting United States v. Hudspeth, 525 F.3d 667, 674 (8th Cir. 2008))). 

Hager argues also that the warrant's addendum limited the scope of the search to only metadata. The addendum limited the search of tapes to "Electronically Stored Information that is specifically described in and that is the subject of this warrant." Appellant's App. 43. The warrant, however, authorized a search for "sexually suggestive images depicting [Mueller's minor daughters] wherever they may be stored or found[.]" Appellant's App. 42. When read in conjunction with the warrant's authorization, the addendum limited the search of tapes to the Mueller images and accompanying metadata, that is, "the subject of [the] warrant."See United States v. Fiorito, 640 F.3d 338, 347 (8th Cir. 2011) [12] ("The broad language of the warrant must be given a practical, rather than a hypertechnical, interpretation that is cabined by the purpose for which it issued."). Accordingly, the agents acted within the scope of the warrant when viewing the VHS tapes found in Hager's residence.

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Eighth Circuit holds testimony that adults rarely seek actual minors online can be impeached, affirms conviction

In United States v. Grauer, No. 11-3852 (8th Cir. 2012), the Eighth Circuit affirmed the conviction of a man for enticement of a minor and possession of child pornography over multiple arguments from the defendant.

As part of an ICAC investigation, an Iowa deputy sheriff, pretending to be a 14-year-old girl, engaged in multiple instant messaging conversations with the defendant. The conversations were often of a sexual nature and involved the defendant sending pornography to the "girl," and the two ultimately decided to meet. The defendant was arrested, his home searched, and child pornography found. Charges for the child pornography possession and attempted enticement of a minor followed, and he was convicted.

At trial, the defense presented a witness who argued that adults often used chat rooms to engage in "age-play" online, where one of the participants pretends to be a "schoolgirl," but both are actually adults. As such, it was likely that the defendant actually believed the 14-year-old girl was an adult (he actually lied about his age - saying he was 49 rather than his actual age of 58). The doctor-witness testified that "it's either rare or nonexistent" for adults to actually seek minors online. The prosecutor then asked the witness if he was aware of multiple cases involving that activity, and he acknowledged hearing of them. The first wasn't objected to, the defense objected to the second and it was overruled, and an objection to a third and fourth case were sustained. On appeal, the defendant argued the questioning was improper and intended to inflame the jury, but the court disagreed as it was necessary to disprove the assertion.

The defendant also argued that the evidence presented on the child pornography charges was insufficient because "the government presented no evidence as to how the images came to be on his computer or when they were accessed." However, at trial, the defendant's wife testified that the laptop was used in his home office and "that no one else used his laptop regularly." Evidence was also shown that the multiple images were stored on folders created manually on the computer, and several of them had been sent over instant messaging to the "girl." As such, the Eighth Circuit found the evidence to be sufficient.

A sentencing enhancement was applied for "misrepresentation[s] ... made with the intent to persuade, induce ... the travel of, a minor to engage in prohibited sexual conduct." The defendant argued that despite his misrepresentations of his name and age, it was not made with the requisite intent. However, the Eighth affirmed the application of the enhancement, finding that the district court "was in the best position" to decide the issue, and it "was [not] clearly erroneous."

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8th Circuit judge writes of concern with CP guidelines

An Eighth Circuit judge has joined the group of members of the judiciary opposed to the federal child pornography guidelines. In a recent opinion before the court, Judge Bright wrote a concurrence to suggest that the sentence was "excessive." United States v. Zauner, No. 12-1007 (8th Cir. 2012).

The defendant had been charged with production of child pornography after she took sexually explicit photos of her children at the urging of a man she met online. The two met on a ridesharing website. She was sentenced to 18 years in prison and 15 years of supervised release, and restitution of $20,000 was ordered. On appeal, she argued that the sentence was substantively unreasonable, but the Eighth Circuit affirmed.

Judge Bright, concurring, noted that the court owes a substantial deference to the district court, but wrote:

In this area, the guidelines routinely place defendants near or over the statutory-maximum sentence, eliminating any meaningful distinction between the least and most culpable offenders. This case is a great example.... Yet looking at Zauner's offense conduct alone, she does not rank among the worst child pornography offenders deserving of the statutory-maximum sentence. She was a first-time offender and her conduct did not trigger several of the possible enhancements under U.S.S.G. § 2G2.1. There is also nothing in the record to indicate the pictures were distributed beyond those people directly involved in the offense conduct. On the facts of this case, I do not believe any reasonable judge would have sentenced Zauner to the recommended sentence under the guidelines. The district court apparently agreed, exercising its prerogative to depart downward to sentence Zauner to eighteen years in prison—three years above the mandatory minimum. And where the guidelines are out of line and increasingly disregarded by sentencing judges, the mere fact of a downward departure should not insulate the district court's sentence from any type of meaningful review. In addition, in cases such as this, where the guidelines obviously do not fit, a sentencing judge should give careful assessment to the sentencing requirements of § 3553(a) and state the judge's reasons and conclusions on the record. 

I also write separately because I personally believe the sentence was excessive.

Several other judges have had similar disagreements as discussed earlier on this blog - here, here, here, and here.

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8th Circuit affirms supervised release condition banning legal child nudity

In United States v. Kelly, 2012 U.S. App. LEXIS 9225 (8th Cir. 2012), the Eight Circuit held that a special condition of supervised release prohibiting the defendant from possessing photographic depictions of nude children was not unconstitutionally overbroad.

The defendant had been convicted of being a felon in possession of a firearm. The sentencing court found that he was a "sexual predator" based on his criminal history and ordered the following condition:

The Defendant shall neither possess nor have under his control any material, legal or illegal, that contains child pornography, or photographic depictions of child nudity or of children engaged in any sexual activity.

On appeal, the defendant argued that the provision violates his First Amendment rights as it might prohibit works "such as Raphael's 'Madonna with the Christ Child.'" The Eighth Circuit disagreed, holding that "viewing photographic depictions of child nudity would undermine [the defendant's] rehabilitative process" and affirmed.

A dissenting opinion by Judge Bye argued that the ban of "'legal' child nudity," materials which would "be completely innocuous and wholly lacking in any prurient interest," was not supported by a particularized showing. The dissent also discussed the defendant's criminal history which dealt with the sexual assault of post-pubescent females.

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Panel compares use of file-sharing program to leaving box of treats in a common area

A common issue for appeal in child pornography sentencing cases is whether the "thing of value" requirement under U.S.S.G. § 2G2.2(b)(3)(B) can be satisfied by showing simply that the defendant (1) had images of child pornography and (2) used file-sharing software. The five-level enhancement is applicable if the defendant distributed child pornography, but some courts hold that proof of distribution is not necessary as long as those two elements are met. (Read a prior post here concerning this dispute in the 8th and 11th Circuits.)

Eighth Circuit precedent does not require proof, and a recently decided case from that circuit followed that concept. United States v. Burman, 666 F.3d 1113 (8th Cir. 2012). What was interesting, however, was the concurring opinion. The majority had suggested that "[h]e who places an open box of treats in a common area of an office may be distributing treats," but as the concurring judge noted, the enhancement "applies only where the defendant is engaged in a 'transaction' that is conducted 'for a thing of value.'"

The concurring judge also cites a prior Eighth Circuit concurring opinion (his own) in which he wrote, "But simply showing that a defendant made images available to others through a file-sharing software program and downloaded images from others through the same program, with knowledge that the software allowed such distribution and receipt, is a tenuous basis on which to urge the application of § 2G2.2(b)(3)." United States v. Bastian, 603 F.3d 460 (8th Cir. 2010).

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