United States v. Paul Stanley ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4572
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PAUL STANLEY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, Chief District
Judge. (8:11-cr-00333-DKC-1)
Submitted: June 6, 2013 Decided: July 19, 2013
Before DUNCAN and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Megan E. Coleman, MARCUSBONSIB, LLC, Greenbelt, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, Sujit
Raman, Appellate Chief, Baltimore, Maryland, LisaMarie Freitas,
Special Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This appeal arises from Paul Stanley’s conviction by a jury
of three counts related to child pornography--for
transportation, receipt, and possession of child pornography, in
violation of 18 U.S.C. §§ 2252A(a)(1), (2), (5)(B)--as well as
one count of obstruction of justice, in violation of 18 U.S.C. §
1512(c)(1). Stanley argues that the district court erred in
admitting expert testimony by the agent who conducted the
forensic examination of Stanley’s computer. Stanley also
contends that the district court erred in denying his motion for
judgment of acquittal, challenging the sufficiency of the
evidence supporting his convictions. Finding no reversible
error, we affirm.
I.
We first consider Stanley’s argument that Agent Crystal
Gilmer, a computer forensic examiner with the Maryland State
police, should not have been permitted to testify as an expert
regarding her forensic examination of Stanley’s laptop computer.
Stanley asserts that Agent Gilmer possessed insufficient
specialized knowledge or skill in the software programs used to
extract data from Stanley’s computer, and failed to offer
testimony regarding the reliability of the forensic tools used
in the examination.
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We review the district court’s decision to admit expert
testimony for abuse of discretion and will not find an abuse
unless a ruling is “arbitrary and irrational.” United States v.
Cloud, 680 F.3d 396, 401 (4th Cir 2012), cert. denied, 133 S.
Ct. 218 (2012); United States v. Dorsey, 45 F.3d 809, 812 (4th
Cir. 1995).
Federal Rule of Evidence 702 outlines the requirements for
the admissibility of expert testimony. These are four-fold.
First, the district court must find that “the expert’s
scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine the fact in issue.” Fed. R. Evid. 702(a). Second,
“the testimony [must be] based on sufficient facts or data.”
Id. 702(b). Third and fourth, “the testimony [must be] the
product of reliable principles and methods” that “the expert has
reliably applied . . . to the facts of the case.” Id. 702(c)-
(d). As to these latter prongs, the district court “must have
considerable leeway in deciding in a particular case how to go
about determining whether particular expert testimony is
reliable.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152
(1999). The many factors set forth in Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579 (1993), and its progeny are neither
exclusive nor dispositive. Fed. R. Evid. 702 advisory
committee’s note. Furthermore, “the trial court’s role as a
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gatekeeper is not intended to serve as a replacement for the
adversary system,” and consequently, “the rejection of expert
testimony is the exception rather than the rule.” Id.During her expert testimony, Agent Gilmer explained the
process she used to examine Stanely’s laptop, utilizing multiple
forensic tools. These tools included a forensic software
program called EnCase, which she used to make a “mirror” image
of Stanley’s computer in order to examine its contents without
risking damage to the original. Agent Gilmer’s examination
revealed that Stanley had downloaded and installed a peer-to-
peer file sharing program called FrostWire onto his laptop.
Agent Gilmer also discovered that the FrostWire program had been
used to search for and download child pornography, as well as to
view, keep, and share child pornography files.
We conclude that the district court did not abuse its
discretion in admitting Agent Gilmer’s expert testimony on these
facts. Assessing the first of Rule 702’s requirements, many
courts have noted that the process of forensic data extraction
requires specialized knowledge or skill conducive to expert
testimony. See, e.g., United States v. Yu, 411 F. App’x 559,
566-67 (4th Cir. 2010) (“[T]he process of forensic data
extraction requires ‘some specialized knowledge or skill or
education that is not in possession of the jurors.’”) (quoting
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United States v. Johnson, 617 F.3d 286, 293 (4th Cir. 2010));
United States v. Ganier, 468 F.3d 920, 926 (6th Cir. 2006).
As for the factual basis and reliability of the testimony,
the district court acted well within the wide bounds of its
discretion. During the lengthy voir dire that included several
rounds of cross-examination, the district court heard
considerable evidence regarding Agent Gilmer’s education,
training, experience, and knowledge of the forensic tools and
procedures she utilized, as well as detailed explanations of her
use of the forensic software in this particular case. Agent
Gilmer also explained that the forensic tools she used to
examine the contents of Stanley’s laptop had been accepted as
reliable procedures by her law enforcement agency. Having heard
all of this evidence and the defense’s objections, the district
court permitted the government to proceed with its examination
of Agent Gilmer as an expert in “computer examination and
analysis.” J.A. 204.
We find the record more than adequately supports the
district court’s determination that Agent Gilmer’s testimony was
based on sufficient facts and data, and was reliable.
II.
We turn next to Stanley’s arguments regarding the
sufficiency of the evidence, reviewing the district court’s
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denial of a motion for judgment of acquittal de novo. United
States v. Penniegraft, 641 F.3d 566, 571 (4th Cir. 2010), cert.
denied, 132 S. Ct. 564 (2011). In this posture, we view the
evidence presented to the jury in the light most favorable to
the government and “will sustain the jury’s verdict if any
rational trier of fact could have found the essential elements
of the crime charged beyond a reasonable doubt.” Id. at 571
(citing Jackson v. Virginia, 443 U.S. 307, 391 (1979)).
A.
Stanley first argues that the evidence presented cannot
support his child pornography convictions. We disagree.
Stanley was charged and convicted of transportation,
receipt, and possession of child pornography under a statute
that criminalizes, in pertinent part, the following activities:
(1) knowingly . . . transport[ing] . . . using any
means [of interstate commerce], including by computer,
any child pornography;
(2) knowingly receiv[ing] . . . any child pornography
[or material that contains child pornography] that has
been [transported in interstate commerce], including
by computer; or . . .
(5) . . . (B) knowingly possess[ing], or knowingly
access[ing] with intent to view, any . . . material
that contains an image of child pornography that has
been [transported in interstate commerce], including
by computer[.]
18 U.S.C. §§ 2252A(a)(1), (2), (5)(B).
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We decline Stanley’s invitation to find that downloading,
storing, and sharing images using a peer-to-peer program on
one’s computer cannot establish knowing receipt, possession or
transportation of child pornography. We have held that “use of
a peer-to-peer file-sharing program qualifies as distribution”
in the context of a sentencing enhancement for distribution of
child pornography. United States v. Layton, 564 F.3d 330, 335
(4th Cir. 2009). Thus, “[w]hen knowingly using a file-sharing
program that allows others to access child pornography files, a
defendant commits an act related to the transfer of [child
pornography].” Id. (internal quotation marks omitted). The
same rationale applies to transportation, receipt, and
possession of child pornography as defined by 18 U.S.C. § 2252A.
Furthermore, the evidence supports the jury’s finding that
Stanley possessed the requisite knowledge of his actions for
each of the child pornography convictions. In affirming the
sufficiency of the evidence to support a defendant’s conviction
for receipt of child pornography, we have reasoned that “whether
a defendant knew that images viewed online would be saved to his
computer is a close question only where there is some indication
that the images were saved there without his knowledge.” United
States v. Johnson, 2013 WL 1767640, at *3 (4th Cir. Apr. 25,
2013). Here, as in Johnson, the government presented ample
evidence of Stanley’s intent and awareness of his illegal acts.
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According to Agent Gilmer’s testimony, 570 files had been
available for sharing at the time Stanley’s laptop was seized,
all of which were saved in the folder designated for saving and
sharing files, entitled “C:/Users/Paul/shared.” J.A. 261. Upon
opening the FrostWire shared folder, it prominently displayed
the following warning: “You are sharing 570 files. You can
control which files FrostWire shares.” J.A. 238. The
government introduced evidence of common search terms associated
with child pornography, which were included in many of the file
names found on the laptop. Agent Gilmer also testified that
during the ten days prior to the laptop’s seizure, specific
images in the FrostWire shared folder had been accessed 209
times, with 173 of the images containing terms indicative of
child pornography in their titles.
In addition to this abundance of evidence that Stanley had
repeatedly sought and viewed child pornography, and was on
notice that these files were being shared with others through
the FrostWire program, the jury also heard testimony about
Stanley’s attempt to destroy his laptop by placing it under
running water in the shower after officers informed him that
they were investigating his involvement in child pornography
activities. From this evidence, particularly when viewed in the
light most favorable to the government, a rational jury could
have concluded beyond a reasonable doubt that Stanley knowingly
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transported, received, and possessed child pornography, in
violation of the charged provisions of 18 U.S.C. § 2252A.
We thus conclude that substantial evidence supports
Stanley’s child pornography convictions.
B.
Finally, Stanley argues that insufficient evidence supports
his conviction for obstruction of justice. Again, Stanley’s
argument lacks merit.
To sustain a conviction for obstructing a federal
proceeding, the government was required to prove that Stanley
“corruptly . . . alter[ed], destroy[ed], mutilate[d], or
conceal[ed] a record, document, or other object, or attempt[ed]
to do so, with the intent to impair the object’s integrity or
availability for use in an official proceeding.” 18 U.S.C. §
1512(c)(1).
The government presented evidence that the Internet Crimes
Against Children Task Force (the “Task Force”) was conducting an
online undercover investigation into individuals using peer-to-
peer networks to traffic child pornography. In the course of
this investigation, officers identified an internet protocol
(“IP”) address which they linked to Stanley. When Task Force
officers arrived at Stanley’s residence, they identified
themselves and informed Stanley that they were pursuing an
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investigation into child pornography activities. Stanley asked
if he could go back into the residence to get dressed, at which
point he went into the basement and woke his roommate, Brian
Pease, telling him that “[t]he cops are here for my computer.”
J.A. 191. When Pease got out of bed a few minutes later, he
found Stanley’s laptop in the shower under running water, and
removed it. Meanwhile, Stanley returned to the door and advised
the Task Force officers that he no longer had possession of the
laptop because he had given it to a friend when it stopped
working six months earlier. Task Force officers subsequently
obtained a search warrant for Stanley’s residence, and recovered
the laptop Stanley had placed in the shower.
Again viewing this evidence in the light most favorable to
the government, we find it more than sufficient to allow a
reasonable juror to determine beyond a reasonable doubt that
Stanley attempted to destroy or conceal his laptop in order to
impair its availability for use in an official proceeding. ∗
∗
Stanley also argues that the evidence failed to establish a
sufficient “nexus” to a federal proceeding; in other words, that
Stanley should be acquitted on the obstruction of justice count
because he had no reasonable likelihood of knowing that the
investigation by Maryland State police officers related to a
federal proceeding. However, Stanley’s proffered interpretation
is contradicted by the plain statutory language. In particular,
the statute specifies that a qualifying proceeding “need not be
pending or about to be instituted at the time of the offense,”
18 U.S.C. § 1512(f)(1), and that “no state of mind need be
proved with respect to the circumstance . . . that the official
(Continued)
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III.
Accordingly, we affirm Stanley’s convictions. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
proceeding . . . is before a judge or court of the United
States,” id. at § 1512(g).
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