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United States v. Dillingham

United States District Court, E.D. Virginia, Alexandria Division

May 29, 2018

UNITED STATES OF AMERICA
v.
JERRY DEAN DILLINGHAM, Defendant.

          MEMORANDUM OPINION

          Anthony J. Trenga United Stares District Judge.

         Pending is a post-trial motion to set aside Defendant Dillingham's convictions for the distribution and receipt of child pornography. [Doc. No. 66] (“the Motion”). As discussed below, there is no direct evidence that Dillingham actually knew that the charged material contained child pornography at the time of its distribution or receipt and the Motion, at its core, requires the Court to determine whether the substantial evidence concerning the Defendant's general propensity to search for and view child pornography, without any demonstrable connection to the charged images, is sufficient to support the jury's finding that the defendant knowingly distributed and knowingly received child pornography. For the reasons stated below, the Court concludes that the evidence is insufficient as a matter of law to prove either (1) that he knew when files were distributed from his computer in June 2016 that those files contained child pornography; or (2) that he knew when he caused files to download to his computer on July 29, 2016 that those files contained or would contain child pornography. The Court also concludes that a new trial is warranted if the Court's conclusion as to the sufficiency of the evidence is vacated or reversed. The jury's finding that he knowingly distributed or knowingly received child pornography was necessarily based on evidence of Defendant's propensity to search for and view child pornography, with no demonstrable connection to the charged conduct. In light of that evidence, as well as speculative expert testimony that exceeded the scope of the Government's pre-trial disclosures, and issues pertaining to the jury instructions concerning scienter, a new trial is warranted. Accordingly, Defendant's motion to set aside the verdict and enter a judgment of acquittal will be GRANTED and his request, in the alternative, for a new trial will be CONDITIONALLY GRANTED if the Court's judgment of acquittal is later vacated or reversed.

         BACKGROUND

         On August 17, 2017, a three count indictment was issued against the Defendant [Doc. No. 21], charging (1) distribution of child pornography in violation of 18 U.S.C. § 2252(a)(2) (Count 1); (2) receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2)(Count 2); and (3) possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(b)(Count 3). The case was tried with a jury beginning on October 16, 2017. Immediately before the start of that trial, the Government moved to dismiss Count 3, charging possession of child pornography and that Count was dismissed. [Doc. No. 40]. The case proceeded to trial as to distribution (Counts 1) and receipt (Count 2); and on October 17, 2017, the jury convicted Dillingham on both counts.[1]Now before the Court is Dillingham's motion for a judgment of acquittal pursuant to Fed. R. Crim. P. 29 or for a new trial pursuant to Fed. R. Crim P. 33 [Doc. No. 66] (the “Motion”).

         LEGAL STANDARD

         “[T]he relevant question [on a Rule 29 motion] is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). It is the sole providence of the jury to “weigh[] the credibility of the evidence and resolve[] any conflicts in the evidence presented.” United States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994). The Court, therefore, must “assume that the jury resolved all contradictions in the testimony in favor of the government.” United States v. Moye, 454 F.3d 390, 394 (4th Cir. 2006) (citation omitted). Additionally, the Government need not provide direct evidence for each element of the charged offenses; “circumstantial evidence . . . may be sufficient to support a guilty verdict even though it does not exclude very reasonable hypothesis consistent with innocence.” United States v. Jackson, 863 F.2d 1168, 1173 (4th Cir. 1989). Federal Rule of Criminal Procedure 33 provides that “[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” But in considering whether to grant a new trial, “the district court should only overturn a jury verdict in the ‘rare circumstance' when the verdict is against the great weight of the evidence.” United States v. Garcia, ___ F.3d ___, 2017 WL 1592049 at *3 (4th Cir. May 2, 2017) (internal citation omitted). “[A]ny error sufficient to require a reversal on appeal is an adequate ground for granting a new trial.” 3 Wright & Miller, Fed. Prac. & Proc. Crim. § 589.

         ANALYSIS

         Counts 1 (distribution) and 2 (receipt) both charge an offense under 18 U.S.C. § 2252(a)(2), which provides in relevant part:

Any person who . . . knowingly receives, or distributes, any visual depiction using any means or facility of interstate or foreign commerce . . . by any means including by computer, or knowing reproduces any visual depiction for distribution using any means or facility of interstate or foreign commerce . . . if
(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct; . . . Shall be punished as provided in subsection (b) of this section.

         The only real issue at trial was whether Dillingham had the required scienter.[2] In that regard, the distribution charge was based on two sets of images of child pornography that the FBI uploaded from Dillingham's computer in June 2016, presented at trial through Exhibits 108 and 109 (consisting of six images and thirty-five videos of child pornography, respectively). The receipt charge was based on the six images of child pornography contained in Exhibit 108 that the FBI found in the “Trash” of Dillingham's computer after it seized that computer at his home on August 4, 2016 pursuant to a search warrant. See also Ex. 601 (stipulating that the minors in Ex. 108 are actual, identified minors under the age of 12). Collectively, the Government referred to the charged child pornography as the “Known Images.”[3] In order to establish that Dillingham “knowingly” received or “knowingly” distributed this child pornography, the Government was obligated to present evidence sufficient for a juror to find that he actually knew that the downloaded files contained child pornography when those files were distributed or received, as alleged.[4]

         As the Government explained to the jury in its opening statement, uTorrent “is a program used to access an online file sharing network called BitTorrent . . . [which s]ome people use . . . to download music or movies, but other people use . . . to download child pornography.” 10/16/17 Tr 17:9-15. As explained by the Government's expert witness at trial, the BitTorrent network is a peer-to-peer file-sharing network whereby users can both access and make available to others “torrent” files. A torrent file is a file that contains instructions for a computer on how to locate on the BitTorrent network and put together the pieces of another file, such as a video, audio, or image file. Users can find torrent files for content they are interested in through torrent search sites, such as PirateBay or BitMon. A user then needs a BitTorrent “client, ” viz., a piece of software (which appeared on Dillingham's computer under the name “uTorrent”). This client reads the “instructions” in the torrent file, finds from another user's BitTorrent clients the pieces of the file it contains the instructions for finding, assembles that file, and, depending on the settings, makes any files placed in or downloaded to the client's “shared” or “downloads” folder available for others to access using their own BitTorrent clients.

         With respect to the distribution charge, the Government introduced evidence that between June 16 and 24, 2016 FBI agents accessed and uploaded[5] from Dillingham's computer the Known Images multiple times using a law enforcement version of the BitTorrent software. As to the receipt charge, the Government established that on July 29, 2016, the six images in Exhibit 108 were downloaded to Dillingham's computer into a sub-folder within the uTorrent downloads folder called “CVCD” and that shortly after midnight on August 4, 2016, they were transferred to the “Trash” folder on Dillingham's computer.

         On the morning of August 4, 2016, the Government executed a search warrant and seized Dillingham's computer[6] and recovered a significant volume of computer forensic evidence from the computer's hard drive, including the Known Images. Also during that search, Dillingham made certain statements concerning his familiarity with bit-torrent file sharing software, his past attempts to search for “teen” and “pre-teen” pornography, and his occasional inadvertent downloading of child pornography as part of his search for adult pornography.

         The forensic data obtained from Dillingham's computer included “bulk” system logs, including the File System Events logs (Ex. 517), the Safari internet history (Ex. 518), the Chrome internet history (Ex. 519), and additional Chrome internet history recovered from the unallocated space on the computer's hard drive (Ex. 520). From this bulk data, the Government presented selected entries at trial showing (1) that the Known Images in Exhibit 108 were downloaded to Dillingham's computer and later moved to the Trash (Ex. 517A); (2) evidence of multiple past searches for torrent files using child pornography related terms that occurred between July 14 and July 27, 2016 and also dozens of similar undated searches (Ex. 518A); (3) evidence that Dillingham visited several profiles with child pornography related terms in their names on the image-sharing site “imgsrc”; and (4) a digital “footprint” of files in Dillingham's computer that had been “uploaded” to another user though the BitTorrent software installed on his computer, at least one which had a description suggestive of child pornography (Ex. 508).

         None of the recovered forensic data evidenced where the Known Images came from or any search that “linked” to or otherwise evidenced the source of those Known Images or how they came to be on Dillingham's computer either in June or on July 29, 2016. Also, none of recovered forensic data evidenced that Dillingham had opened the CVDC folder or viewed any of the Known Images until August 4, 2016 when he moved the images, the CVCD folder containing the Known Images, and the CVCD torrent file into the Trash. Further, while there was evidence that other torrent files with child pornography terms in their filenames were downloaded at the same time as the Known Images in July (Ex. 517A), there is similarly no evidence showing where those files came from or “linking” them to the search activity shown in the exhibits (Ex. 518A).

         The only direct evidence concerning the source of the Known Images came from Dillingham himself, who testified that he frequently went to the Pirate Bay website and hit a “magnet link, ” which downloaded automatically the “top 100” torrent files, whose content was not otherwise described. Sometime after the files had been downloaded, he would go through those files and delete those he was not interested in, including, according to him, those containing child pornography. There was no evidence that the “top 100” link was promoted or held out as, or otherwise associated with, child pornography. Nor was there any evidence that any of the content or file names associated with the “top 100” link could be seen before being downloaded.

         In the pending Motion, the Defendant contends that while the evidence was sufficient to establish that at some point Dillingham knowingly possessed the Known Images, the Government for whatever reason chose not to prosecute that crime and the evidence is insufficient as a matter of law to allow a jury to find that Dillingham knowingly received or distributed the Known Images.

         a. Count I: Distribution of Child Pornography (18 U.S.C. § 2252(a)(2))

         The Government relies on what is known as the “passive distribution theory” to establish the knowledge requirement for the distribution of child pornography, whereby instead of presenting evidence that the Defendant “actively” posted content to a website or otherwise distributed child pornography through the internet, the Defendant downloaded child pornography by way of the uTorrent software into a “shared” folder in the uTorrent program, knowing that those files would then be available for others to upload from his computer.[7] Dillingham challenges the sufficiency of the evidence to prove that he knew that child pornography was contained in the those files when law enforcement uploaded those images from his computer in June, 2016 and also that he knew that he was making those downloaded files available to others through his use of the uTorrent software.

         1. The sufficiency of the evidence that Dillingham knew he possessed the child pornography “distributed” in June 2016.

         The alleged distribution took place between June 16 and 24, 2016, when Special Agent Scott Stein of the FBI, using a law-enforcement version of the BitTorrent software, uploaded from Dillingham's computer child pornographic images from two known series of child pornography. See Exs. 108 & 109. While the Government presented a significant volume of computer forensic evidence from the period after the charged distribution in June-from July 14, 2016 through early August 2016[8]-it presented no forensic evidence concerning the presence, creation, or source of the Known Images on or before they were uploaded by Agent Stein in June 2016. The only direct evidence that the Known Images were even on Dillingham's computer in June 2016 is the fact that Agent Stein was able to upload them.

         As for circumstantial evidence, the only activity in the forensic record that predates the offense conduct charged in the distribution count is a series of entries in Government Exhibit 520A, which are excerpts from the deleted internet history recovered from the unallocated space on Dillingham's computer. These entries indicate that on October 29, 2015- approximately eight months before the charged conduct-Dillingham viewed “profiles” with names suggesting child pornography on a website called imgsrc.ru. There is no evidence connecting these searches to the Known Images being downloaded or otherwise placed in the shared folder in June 2016. In that regard, the Government's expert testified that imgsrc is not a torrent website at all but rather a site where individuals create named “profiles” and upload images to those profiles for others to view. In short, there is no evidence that this activity is at all related to the charged conduct in the distribution count.

         In contending that the evidence is sufficient to establish that Dillingham knew at the time that child pornography was contained in what the FBI uploaded from his computer in June 2016, the Government also relies on Dillingham's statements concerning his search habits and search experience. In that regard, Dillingham admitted to law enforcement during the execution of the search warrant that there were occasions when he searched for “teen” and “pre-teen” pornography. He also stated that it was his to habit over some unspecified time period to visit PirateBay-a torrent search website-and click a single link to download in bulk the “top 100” torrent files on the site at that time. As described by Dillingham, the amount of material contained in those files would be so large in digital volume that it would sometimes take days for all of it to download to his computer, following which he would go through it, moving anything he was not interested in to the Trash folder. Dillingham also admitted that on “two or three” occasions (which he also characterized as “rare”) he discovered among these bulk downloads instances of child pornography, which he discarded to the Trash. 10/17/2017 Tr 46:5-7.[9] There was no evidence concerning when these “bulk” downloads took place or when he discovered child pornography among those bulk downloads. There is also no evidence that the files distributed in June were part of a bulk download from which he had previously discovered child pornography or that there was any demonstrable connection between the downloading of the Known Images in June that were “distributed” and any of his searches. As discussed in more detail in connection with the receipt charge, any such inference of knowledge drawn from this evidence is necessarily based on an impermissible inference drawn from a general propensity or disposition to search for and view child pornography, i.e., that Dillingham is an individual who searches for and is generally interested in child pornography, and therefore can be imputed with knowledge of any file of child pornography found in his possession. For these reasons, the Government failed to produce evidence that when viewed most favorably to the Government established beyond a reasonable doubt that Dillingham knew at the time that he possessed the child pornography that was distributed in June, 2016 from his computer.

         2. The sufficiency of the evidence concerning Dillingham's knowledge that the uTorrent software made his shared files available to others.

         The Government relied on three sources of evidence to establish Dillingham's knowledge that uTorrent software made files in the “downloads” folder available to others: (1) the uTorrent user agreement (Ex. 111); (2) the Defendant's statements during an interview by Agent Stein on the morning agents executed a search warrant on the Defendant's house (Exs. 106A-D); and (3) messages provided to Dillingham as part of the uTorrent software's user interface and design (Ex. 508). The user agreement evidence is clearly insufficient to prove knowledge. The Government provided no direct evidence that Dillingham read the user agreement, much less the portion that discusses how the shared folder works. Additionally, on cross examination Agent Stein, the witness through whom the Government introduced the user agreement, acknowledged that the user agreement admitted as Exhibit 111 was not taken from the Defendant's computer and was not the user agreement in effect when the Defendant's computer was seized, but rather was the agreement in use on the date of the trial. 10/16/2017 Tr.86-87.

         The statements from Dillingham relied on by the Government were made in response to questions by the FBI agents during the search of his home, excerpts of which are in evidence as Exhibits 106A-D.[10] During that exchange, Dillingham stated that he does not usually “upload anything” and that he understood that files could be shared through the uTorrent software “if you allow that to happen.” The Government contends that notwithstanding the exculpatory nature of this initial response, Dillingham, upon further questioning, admitted that he did, in fact, understand that his files could be shared; but it is not at all clear from those responses whether Dillingham in fact admitted he understood at the time he downloaded the file in June that his downloaded files could be uploaded by others in the network without affirmative actions on his part or was simply acknowledging that he understood what was being explained to him. Likewise, as to the uTorrent user interface, presented as Exhibit 508, it is not at all clear that someone looking at that screen would understand that files were being uploaded by someone within the uTorrent network as opposed to an “uploading” into the computer itself. In fact, the Government used an expert to explain what one saw when looking at that screen, including that the term “seeding” that appears with respect to the values in one column means “uploading” or sharing.”

         The question then is whether a juror could reasonably conclude from this evidence beyond a reasonable doubt that Dillingham understood in June of 2016, when Agent Stein uploaded the Known Images from Dillingham's computer, that the BitTorrent client he was using, called uTorrent, would, without further actions on his part, make available to others any files in his “downloads” folder. If so, that evidence would be sufficient to demonstrate that he was aware that the files in his shared folder were available to others to download, and therefore that he had the necessary scienter as to that element of the “passive distribution” theory, even though the Defendant denied understanding how BitTorrent worked in his trial testimony. 10/17/2017 Tr 47:1-5; see Budziak, 697 F.3d at 1109-10 (finding sufficient evidence of knowledge for passive distribution where “the government presented evidence indicating that [the defendant] was familiar with LimeWire and how it functioned . . . . and that he knew enough about the program's functions to tell an FBI agent that he moved files out of the shared folder to other parts of his computer.”) (emphasis added). Although a close question, the Court concludes, after viewing all the evidence most ...


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