United States v. James Lowe ( 2015 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0169p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
│ No. 14-5615
v. │
>
│
JAMES PAUL LOWE, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Eastern District of Tennessee of Chattanooga
No. 1:13-cr-00029—Harry S. Mattice, Jr., District Judge.
Argued: April 23, 2015
Decided and Filed: July 28, 2015
Before: SILER, COOK, and STRANCH, Circuit Judges.
_________________
COUNSEL
ARGUED: Christopher T. Varner, EVANS HARRISON HACKETT PLLC, Chattanooga,
Tennessee, for Appellant. Terra L. Bay, UNITED STATES ATTORNEYʼS OFFICE,
Chattanooga, Tennessee, for Appellee. ON BRIEF: Christopher T. Varner, EVANS
HARRISON HACKETT PLLC, Chattanooga, Tennessee, for Appellant. Terra L. Bay, UNITED
STATES ATTORNEYʼS OFFICE, Chattanooga, Tennessee, for Appellee.
_________________
OPINION
_________________
COOK, Circuit Judge. James Paul Lowe appeals his conviction for knowingly receiving,
distributing, and possessing child pornography in violation of 18 U.S.C. § 2252(a). He concedes
1
No. 14-5615 United States v. Lowe Page 2
that a laptop computer found in his home contained hundreds of image and video files depicting
child pornography but maintains that no rational juror could find beyond a reasonable doubt that
he knew about those files or placed them there. We agree and REVERSE Lowe’s conviction.
I.
Between March and August 2011, a user downloaded child pornography to a laptop
found in the home James Lowe shared with his wife, Stacy Lowe. The Lowes lived at 2204
Robin Street in Athens, Tennessee. Michael Lowe, a minor relative described by one witness as
James Lowe’s “adopted child,” lived with James and Stacy at some point during 2011 but moved
out before agents searched the home in August.
Four government witnesses testified at Lowe’s trial. Bradley County Sheriff’s Office
Detective J.P. Allman recounted learning in early 2011 that someone was using a particular
Internet Protocol (IP) address to share child pornography. On May 23, he searched for that IP
address and discovered a computer sharing files with names consistent with child pornography
over a peer-to-peer network. He downloaded one video and two still images of child
pornography from the computer’s shared folder.
Detective Allman subpoenaed AT&T for information about the account associated with
the IP address. AT&T’s records listed James Lowe as the account holder, 2204 Robin Street as
the billing address, and Lowe.Stacy@yahoo.com as the email address associated with the
account. Detective Allman conducted surveillance and determined that, as of August 2011,
James and Stacy Lowe were the sole residents of 2204 Robin Street.
Detective Allman and other officers executed a search warrant on August 8. Stacy was
home during the search but James was not. Law enforcement officers seized three computers: a
Dell Inspiron laptop with the username “Stacy” found in the bedroom, an HP Pavilion laptop
with the username “Jamie” found in the office, and a desktop that was also located in the office.
Detective Allman testified that his role during the search was “speaking with Ms. Lowe.” (R. 75,
Allman Test., Day 1 Trial Tr. at 32.) He later told the jury that he learned that the laptop found
in the office belonged to James Lowe. Agents also found a form on the desk in the office that
No. 14-5615 United States v. Lowe Page 3
listed James’s name, social security number, date of birth, and the email address
jamedog111@excite.com.
FBI Special Agent Stephen McFall told the jury that he examined the three hard drives
and discovered that only the HP Pavilion laptop contained child pornography. Agent McFall
found 639 image files and 176 video files depicting child pornography on the device.
A user named the HP Pavilion laptop “Jamie-PC” and created a single user account,
“Jamie.” The laptop’s settings did not require users to enter a password to access the “Jamie”
account or any of the laptop’s files and programs. And while the Lowes password-protected
their residence’s wireless-internet account, the laptop automatically connected to the internet
through a stored wireless password.
The laptop’s desktop screen included the following shortcuts, icons, and files: the
computer’s recycling bin, an internet browser, iTunes, Shareaza (a peer-to-peer file-sharing
program), a media player, a folder labeled Microsoft Office Programs, a PDF file labeled “2011-
_Auhto…,” four Microsoft Excel spreadsheets labeled “Copy of Service Aut…,” an MP3 music
file, and what appeared to be a computer game. Agent McFall told the jury that the spreadsheets
“looked like they were authorization agreements for business.” (R. 75, McFall Test., Day 1 Trial
Tr. at 107.)
Agent McFall testified at length about the Shareaza peer-to-peer file-sharing program
used to download child pornography to the HP Pavilion laptop.1 Someone installed the program
on February 24, 2011. Because no one overrode the program’s default username setting, the
Shareaza account adopted the laptop’s username, “Jamie.” But someone altered the default for
the program’s chat-feature username and instead entered “JA.”
Shareaza was not password-protected, and it automatically started running in the
background whenever someone switched the computer on. But users had to open the program to
search for files and initiate downloads.
1
Shareaza was also installed on the desktop computer.
No. 14-5615 United States v. Lowe Page 4
The Shareaza home screen—which any user would see upon opening the program—
showed that someone searched for terms consistent with child pornography such as “young
mama” and “PTHC” (which stands for “pre-teen hard core”), and non-pornographic terms such
as “Oceans 11,” “Ellie Goulding,” and “Tron.” The list of downloads on the home screen
included files named “PTHC Pedoland Frifam Heidi,” “11 yo sleeping kid,” and “new girl img-
0063-r10.”
Files were stored in an “incomplete” folder within Shareaza until they finished
downloading, at which point they would appear in the laptop’s “downloads” folder. Agent
McFall testified that files could “take a very long time to download” and that downloading time
depended on factors such as the internet connection’s speed. (R. 75, McFall Test., Day 1 Trial
Tr. at 103.)
Most of the laptop’s images and videos depicting child pornography were stored in
Shareaza libraries. Agent McFall also found evidence of images, some of which had been
deleted, elsewhere on the laptop’s hard drive. For instance, the recycling bin contained a video
titled “Lolita PTHC 2011 3yo Ariel part 1.” Agent McFall found references to the three files
Detective Allman downloaded on May 23 through a text-string search, but someone deleted the
actual files before agents seized the computer. He never specified whether the “downloads”
folder contained child-pornography files.
Agent McFall admitted that he could not pinpoint when someone searched for or initiated
downloads of child pornography. But forensic analysis revealed the date and time on which
partial or completed downloads appeared on the laptop’s hard drive. Microsoft Windows
registry data revealed that a user opened files depicting child pornography as recently as
August 4.
Agent McFall also testified about the laptop’s internet-usage history as recorded through
“cookies.” On numerous occasions between March and August, downloads completed within
minutes of someone accessing a web-based email service or one of several retail, banking,
appliance-repair, and travel websites. Agent McFall identified one date—March 10—on which a
user appeared to log in to Yahoo!’s email service. When the government’s attorney asked if he
recalled “what the log-in was,” he replied, “For the Yahoo mail, I don’t remember exactly. I
No. 14-5615 United States v. Lowe Page 5
think Jamie or jame dog was part of the, part of the e-mail address.” (R. 76, McFall Test., Day 2
Trial Tr. at 173.) In general, however, Agent McFall attributed no special significance to the
laptop’s browsing history.
Agent McFall also told jurors that a user opened an “East Tennessee Appliance Services”
invoice listing 2204 Robin Street as the business address about forty minutes before a child-
pornography video finished downloading on March 3. No witness testified about what James
and Stacy Lowe did for a living or whether the other two computers also contained business
documents.
Lowe moved for a judgment of acquittal at the close of the government’s case and rested
without putting on his own evidence. The court denied his motion but expressed some
misgivings about the government’s proof:
I have to say, in this case, it has been particularly difficult, even though it’s my
job to do so, to discern where that line [between speculation and reasonable
inference] is and where what might be a reasonable inference that can be drawn
from the record evidence becomes nothing more than an invitation for the jury to
speculate as to what the evidence may be or what it may show.
(R. 77, Day 3 Trial Tr. at 222–23.) After the jury found Lowe guilty on all three counts, the
district court denied his post-trial motion for a judgment of acquittal. It sentenced Lowe to
150 months’ imprisonment, varying significantly below the guidelines range of 210 to 240
months. Lowe timely appealed.
II.
We review de novo the district court’s judgment denying Lowe’s motion for acquittal.
United States v. Blanchard, 618 F.3d 562, 574 (6th Cir. 2010). In considering Lowe’s
sufficiency-of-the-evidence challenge, we “view[] the evidence in the light most favorable to the
prosecution” and must affirm if “any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” United States v. Washington, 715 F.3d 975, 979 (6th
Cir. 2013) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (internal quotation marks
omitted). “Circumstantial evidence alone is sufficient to sustain a conviction and such evidence
need not remove every reasonable hypothesis except that of guilt.” United States v. Algee,
No. 14-5615 United States v. Lowe Page 6
599 F.3d 506, 512 (6th Cir. 2010) (quoting United States v. Kelley, 461 F.3d 817, 825 (6th Cir.
2006)) (internal quotation marks omitted); see also United States v. Garcia, 758 F.3d 714, 718–
19 (6th Cir. 2014) (affirming a firearm-possession conviction where “circumstantial evidence
and a chain of inferences” would permit a jury to conclude that the defendant actually possessed
the weapon). “A convicted defendant bears ‘a very heavy burden’ to show that the government’s
evidence was insufficient.” United States v. Tragas, 727 F.3d 610, 617 (6th Cir. 2013) (quoting
United States v. Kernell, 667 F.3d 746, 756 (6th Cir. 2012)).
III.
Notwithstanding Lowe’s heavy burden, we agree with his argument that no rational juror
could find him guilty beyond a reasonable doubt based on the evidence presented at trial. A
juror could reasonably infer that James owned and occasionally used the laptop from (1) the
device’s sole username, “Jamie,” a common diminutive of James; (2) Detective Allman’s
testimony that the laptop “belonged to” James; and (3) Agent McFall’s testimony about the
March 10 visits to the Yahoo! email log-in page. But, without improperly stacking inferences,
no juror could infer from such limited evidence of ownership and use that James knowingly
downloaded, possessed, and distributed the child pornography found on the laptop.
James shared his home with two other people, both of whom could access the HP
Pavilion laptop’s “Jamie” account and Shareaza file-sharing program without entering
passwords. We need not decide if Detective Allman’s testimony that Michael Lowe moved out
in “early 2011” and Agent McFall’s testimony that someone at 2204 Robin Street used the laptop
to view images as late as August 4 permitted the jury to conclude that someone other than
Michael placed images on the computer. Even if a juror reasonably could rule out Michael’s
responsibility for at least some of the images, the remaining evidence provided no basis to
determine whether James or Stacy (or both) knowingly possessed child pornography. Compare
United States v. Moreland, 665 F.3d 137, 143–52 (5th Cir. 2011) (reversing conviction in light of
evidence that three people used the defendant’s user account and the absence of evidence
specifically linking the defendant to the images), with United States v. Koch, 625 F.3d 470, 478–
79 (8th Cir. 2010) (sustaining conviction where the defendant lived alone and the username of
the computer seized from his bedroom matched his first name).
No. 14-5615 United States v. Lowe Page 7
Importantly, the government presented no evidence from which a juror could infer that
Stacy did not use the laptop over the five-month period. First, although a juror reasonably could
infer that Stacy used the “Stacy” laptop from evidence that she was home alone during the search
and that agents found that laptop powered on, the juror could not draw the additional inference
that Stacy did not use the “Jamie” laptop. Second, no juror reasonably could conclude that
James and not Stacy used the HP Pavilion laptop to save business records, open an invoice
listing 2204 Robin Street as the return address, and access banking, retail, travel, and appliance-
repair websites on dates when partial or complete child-pornography files appeared on the hard
drive. The government presented no evidence of what James and Stacy did for a living, whether
they worked inside or outside of the home, their interests and hobbies, or where they banked.
Further, Agent McFall attributed no special significance to the pattern of internet activity during
the period in question. Although a juror might infer from visits to appliance-repair and banking
websites that an adult primarily used the computer, she could only speculate about whether the
adult was James or Stacy Lowe. See Moreland, 665 F.3d at 145–46 (reversing conviction where
a forensic expert admitted that the computer’s internet-usage patterns did not show who visited
the websites in question).
In sum, the evidence presented here fell well short of what we have found sufficient to
convict in other cases involving multiple possible users of a single device. In United States v.
Oufnac, 449 F. App’x 472 (6th Cir. 2011), for instance, “ample other evidence” linked the
defendant to images found on a shared device. Id. at 476. Although the computer in question
had three user accounts, pornographic images appeared only in Oufnac’s personal “My
Documents” folder within his password-protected account. Id. at 473, 476–77. Oufnac’s former
girlfriend testified about finding child pornography on his computer on several previous
occasions. When she confronted him, he said the images were “none of her business” but
admitted that they aroused him, and, on one occasion, he agreed to destroy a compact disc on
which she found “files and files and files and files” of child pornography. Id. at 473, 476.
Oufnac also admitted to law enforcement that he recently viewed child pornography, although he
later claimed that the images were “fake.” Id. at 474, 476.
No. 14-5615 United States v. Lowe Page 8
Similarly, in United States v. Mellies, 329 F. App’x 592 (6th Cir. 2009), we sustained a
defendant’s conviction for possessing child pornography found on a laptop and compact discs in
his home office, notwithstanding evidence that his wife and stepson occasionally used the laptop.
Id. at 595, 607–08. The images were primarily stored in password-protected files and folders.
Id. at 607. Mellies was “associated with” all but two of the hundreds of documents and
thousands of emails stored on the laptop, and he was the only member of the household whose
fingerprints appeared on compact discs containing child pornography. Id. at 595. Further, a
detective testified that Mellies told arresting officers: “I’m not a part of some sort of a ring” and
“[T]his is something that doesn’t have anything to do with anybody else at all.” Id. at 594.
Of course, Oufnac and Mellies do not establish a minimum threshold for proving
knowing possession of child pornography with circumstantial evidence. They do, however,
identify the types of evidence on which a jury reasonably may rely to convict an individual of
possessing child pornography found on a shared device. The jury heard no such evidence in
Lowe’s case, despite the fact that the non-password-protected laptop containing pornographic
images was found in a common area of a home shared by three individuals.
IV.
Along with the lack of proof concerning who downloaded the images in the first instance,
the evidence did not permit a juror to conclude that James knew the HP Pavilion laptop
contained child-pornography files and permitted them to remain on the computer. Most of the
images and videos depicting child pornography were stored in Shareaza libraries. Without more
information about James’s computer use, no juror reasonably could infer that he opened
Shareaza during the five-month period in question. Further, the evidence did not suggest that
someone using the laptop for innocent purposes would know about ongoing child-pornography
downloads if he or she did not open Shareaza.
With respect to images stored outside of Shareaza, the evidence showed that, at most,
images and videos temporarily appeared in the computer’s “downloads” folder and recycling bin.
Although a juror might be able to infer that a defendant knows about pornography stored in her
personal files, especially if the files contain recently opened or created documents, he could not
draw the same conclusion about pornography that automatically appears in the “downloads”
No. 14-5615 United States v. Lowe Page 9
folder or that a user moved to the recycling bin. Compare Oufnac, 449 F. App’x at 476–77
(explaining that a reasonable juror could conclude that a defendant either saved ninety-six
images and videos to his personal “My Documents” folder within his password-protected
account or “at least knew of and permitted their continued existence”), with Moreland, 665 F.3d
at 144–45, 152 (noting the lack of a “circumstantial indicium that established that [the defendant]
knew of the images or had the ability to access them” when images were found primarily in the
hard drive’s “unallocated slack spaces”).
In sum, no juror could conclude beyond a reasonable doubt from the evidence presented
at trial that James Lowe knowingly received, possessed, and distributed the images and videos
depicting child pornography found on the HP Pavilion laptop seized from his home.
V.
We REVERSE James Lowe’s conviction and REMAND for further proceedings
consistent with this opinion.