United States v. Bruce Niggemann ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1145
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRUCE H. NIGGEMANN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 15 CR 215 — Charles R. Norgle, Sr., Judge.
____________________
ARGUED SEPTEMBER 27, 2017 — DECIDED FEBRUARY 5, 2018
____________________
Before RIPPLE, SYKES, and HAMILTON, Circuit Judges.
SYKES, Circuit Judge. In the summer of 2014, investigators
in the Kane County Sheriff’s Office discovered that an IP
address was using specialized peer-to-peer software to share
child pornography over the internet. They gave this infor-
mation to special agents in the Department of Homeland
Security, who in turn identified Bruce Niggemann as the
owner of the IP address. The agents obtained and executed a
search warrant at Niggemann’s home in West Dundee,
2 No. 17-1145
Illinois, seizing a laptop and a desktop computer. Both
contained child pornography.
A grand jury indicted Niggemann for receipt and posses-
sion of child pornography in violation of 18 U.S.C.
§ 2252A(a)(2)(A) and (a)(5)(B). A district judge found him
guilty after a bench trial. Because he had a prior conviction
for sexual abuse of a minor, Niggemann faced a mandatory
minimum sentence of 15 years in prison. 18 U.S.C.
§ 2252A(b)(1). The Sentencing Guidelines recommended a
much longer term of 235 to 293 months. The judge imposed
a sentence of 182 months, far below the guidelines range but
slightly above the mandatory minimum.
Niggemann’s main argument on appeal is a challenge to
the sufficiency of the evidence. He maintains that the gov-
ernment did not prove beyond a reasonable doubt that he—
rather than his wife—committed the crimes. He also argues
that his sentence violates the Eighth Amendment.
We affirm. Abundant forensic and other evidence links
Niggemann to the child pornography. The Eighth Amend-
ment claim is squarely foreclosed by United States v. Gross,
437 F.3d 691 (7th Cir. 2006).
I. Background
In mid-2014 Officer Keith Smith of the Kane County
Sheriff’s Department discovered that IP address 24.1.138.60
was using the “Ares” peer-to-peer software program to share
child pornography. Ares software permits users to share
computer files directly with other users. Officer Smith gave
this information to Homeland Security investigators, who
determined through Comcast subscriber information that
the IP address belonged to Niggemann.
No. 17-1145 3
Homeland Security Special Agent Michael Ploessl ran a
background check on Niggemann and discovered a 1994
conviction for aggravated sexual abuse of a minor. The
conviction stemmed from Niggemann’s long-term sexual
abuse of his daughter, niece, and nephew when they were
between the ages of four and eleven. Special Agent Joseph
Busscher used a law-enforcement version of Ares to down-
load a video from the account associated with Niggemann’s
IP address. The video—titled “pthc – new 2007 lilly playing
with dad.avi”—depicted a young child engaging in explicit
sexual acts with an adult male. Agent Busscher testified later
at trial that “pthc” stands for “preteen hard core.”
Armed with this information, Agents Ploessl and
Busscher obtained and executed a search warrant at
Niggemann’s home in West Dundee. Niggemann told the
agents that only he and his wife lived in the home; he then
invoked his right to counsel. Later, unprompted, Niggemann
asked Agent Ploessl: “[S]o you can be arrested for having
pornography on your computer?” Ploessl responded:
“[W]ell, there is pornography, and then there is child por-
nography.” Niggemann shot back: “Porn is porn.”
The agents located a laptop and a desktop computer in
an office in the home. They seized the computers and associ-
ated hard drives. Special Agent Craig Beebe conducted a
forensic examination of the devices. He found 40 child-
pornography videos on the desktop computer and one on
the laptop. Thirty-six of these files were in a manually
created folder named “temp” stored on the desktop. Each
had been viewed at least once.
Ares was installed on both computers. The software was
registered under the name “Bruce Niggemann” and the
4 No. 17-1145
email address “brucen@nimold.com.” Niggemann used this
email address for the company he owned and operated. The
Ares account history revealed frequent searches for terms
associated with child pornography. More than 2,000 files
with titles including these terms had been downloaded.
Agent Beebe identified Niggemann as the primary user
of the computers and determined that the shortcut to access
Niggemann’s email was located in the same folder as the
shortcut to access Ares. Beebe also found certain files un-
doubtedly created by Niggemann: his financial and business
records, his cigar receipts, and a golf-handicap spreadsheet.
One document in particular—an obituary for Niggemann’s
mother—was drafted and saved 45 minutes before the
“temp” folder was created.
A grand jury returned a two-count indictment charging
Niggemann with receiving child pornography and pos-
sessing child pornography in violation of § 2252A(a)(2)(A)
and (a)(5)(B). Niggemann waived his right to a jury, and the
case proceeded to a bench trial.
Prior to trial the parties stipulated to Niggemann’s past
sexual-abuse conviction, including the anticipated testimony
of his daughter, niece, and nephew. Each would have testi-
fied about his frequent sexual abuse over a seven-year
period. A separate stipulation covered the anticipated testi-
mony of an Illinois State Police special agent, who would
have corroborated the testimony of these witnesses and
explained that Niggemann had admitted the sexual abuse.
With the scope of the bench trial thus narrowed, the gov-
ernment presented its case in just one day. Agents Ploessl,
Busscher, and Beebe testified, and the government read into
No. 17-1145 5
evidence the stipulations we’ve just described. The defense
presented no evidence. The judge found Niggemann guilty
on both counts.
Niggemann’s prior sexual-abuse conviction triggered a
mandatory minimum sentence of 15 years. § 2252A(b)(1).
The advisory sentencing range under the Sentencing Guide-
lines was 235 to 293 months in prison. The government
recommended a sentence within the guidelines range.
Niggemann’s counsel argued for the 15-year mandatory
minimum, noting that Niggemann’s age—he was then
67 years old—meant that a term longer than the statutory
minimum would likely be a death sentence. The judge
considered Niggemann’s age but also noted that he showed
no remorse and was a serial sex offender who had victim-
ized vulnerable children. The judge imposed concurrent
terms of 182 months and 122 months, just above the manda-
tory minimum and well below the guidelines range.
II. Discussion
Niggemann first contends that the government intro-
duced insufficient evidence to support the convictions. This
argument faces a “nearly insurmountable hurdle.” United
States v. Sebolt, 460 F.3d 910, 914–15 (7th Cir. 2006). We
review the evidence and draw all reasonable inferences in
the light most favorable to the prosecution, and Niggemann
must show that no rational trier of fact could have found the
essential elements of the crimes beyond a reasonable doubt.
United States v. Coscia, 866 F.3d 782, 795 (7th Cir. 2017).
As evidence-sufficiency challenges go, Niggemann’s is
especially weak. He contends that the government failed to
prove that he, rather than someone else, used his computers
6 No. 17-1145
to download and view the child pornography. He calls this a
case of “non-exclusive computer possession” because the
computers were located in an open room and not password
protected and his wife also occupied the home.
Niggemann relies on two cases as support for this argu-
ment. In United States v. Moreland, the defendant, his wife,
and his ailing father all had access to a computer that was
found to contain child pornography. 665 F.3d 137, 143 (5th
Cir. 2011). The father frequently used the computers late at
night and admitted an interest in pornography. Id. at 147.
The Fifth Circuit reversed the defendant’s conviction because
the government had not introduced evidence to establish
that the defendant himself—rather than the father or some-
one else with access to the computer—had downloaded and
viewed the child pornography. Id. at 150–52.
Similarly, in United States v. Lowe, the defendant shared a
home computer with his wife and a minor relative. 795 F.3d
519, 520 (6th Cir. 2015). The lone account on the computer
was in the defendant’s name, and child pornography was
downloaded from a peer-to-peer file-sharing program
identified with the first two initials of the defendant’s name.
Id. at 520–21. The file-sharing program was not password
protected, and it started running automatically whenever the
computer was switched on. Id. at 521. The record contained
no further evidence about the defendant’s use of the com-
puter during the relevant time period or his knowledge of
the child-pornography downloads. Id. at 524. The Sixth
Circuit held that the evidence was insufficient to convict him
“without improperly stacking inferences.” Id. at 523.
This case is readily distinguishable from Moreland and
Lowe. Here, the government introduced overwhelming proof
No. 17-1145 7
of Niggemann’s receipt and possession of the illicit files.
First, the evidence from the forensic searches uniformly
pointed to Niggemann. The Ares account used to download
and share the pornography was registered under
Niggemann’s name and business email address. The icon to
access the Ares program was located in the same folder as
the icon used to access Niggemann’s email. Other files
corroborated that these were Niggemann’s computers—e.g.,
his business and financial records, his cigar receipts, and his
golf-handicap spreadsheet. Finally, a mere 45 minutes
elapsed between the creation of a draft obituary for his
mother and the creation of the “temp” folder that held 36 of
the child-pornography videos. Drawing all inferences in
favor of the government, the computer evidence alone is
sufficient to support the convictions.
But there was more. Niggemann all but confessed to the
Homeland Security agents during the execution of the
search. He downplayed the severity of the crimes and dis-
missively equated child pornography to other pornography.
And Niggemann’s criminal history of long-term child sexual
abuse was highly probative. He tries to diminish the value of
this evidence by emphasizing that his conviction is decades
old and “very different” than the child-pornography charg-
es. No, this criminal history is proof of his long-standing
sexual interest in children, and a reasonable trier of fact
could find that it establishes motive beyond any reasonable
doubt. Sebolt, 460 F.3d at 917.
Simply put, this case is not at all like Moreland or Lowe.
The government introduced more than enough evidence to
establish Niggemann’s guilt beyond a reasonable doubt.
8 No. 17-1145
Niggemann also challenges his sentence, arguing that the
182-month prison term is so grossly disproportionate to the
crimes that it amounts to cruel and unusual punishment in
violation of the Eighth Amendment. The Supreme Court has
held that the Eighth Amendment’s prohibition on cruel and
unusual punishment “contains a narrow proportionality
principle that applies to noncapital sentences.” Ewing v.
California, 538 U.S. 11, 20 (2003) (plurality opinion) (internal
quotation marks omitted). But the Court set a high bar for
these claims: only “extreme sentences that are grossly dis-
proportionate to the crime” will violate the proportionality
principle. Id. at 23 (internal quotation marks omitted).
Three factors are relevant: “(i) the gravity of the offense
and the harshness of the penalty; (ii) the sentences imposed
on other criminals in the same jurisdiction; and (iii) the
sentences imposed for commission of the same crime in
other jurisdictions.” Id. at 22 (quoting Solem v. Helm, 463 U.S.
277, 292 (1983)). The first factor operates as a threshold
requirement. Unless the defendant establishes an inference
of gross disproportionality between the offense and the
penalty, the analysis does not move on to consider sentences
imposed on other criminals or in other jurisdictions. United
States v. Syms, 846 F.3d 230, 236 (7th Cir. 2017).
Niggemann argues that his sentence is grossly dispropor-
tionate because his prior sexual-abuse conviction was nearly
two decades old, the present crimes involve receipt and
possession of child pornography rather than active distribu-
tion, and his age means that the sentence of 15 years and two
months is tantamount to a life sentence.
We considered a nearly identical disproportionality ar-
gument a decade ago in United States v. Gross. There the
No. 17-1145 9
defendant was convicted of distributing child pornography
and, like Niggemann, had a prior conviction for child sexual
abuse. The judge imposed the 15-year mandatory minimum
sentence under § 2252A(b)(1), and the defendant argued on
appeal that the sentence was disproportionate in violation of
the Eighth Amendment. Gross, 437 F.3d at 692–93.
We rejected the argument. We began with the severity of
the crime, explaining that distribution of child pornography
is “quite serious” because it “creates a market for its produc-
tion, which inevitably leads to the abuse of children.” Id. at
693. And a 15-year minimum for an offender who had
previously abused a child was amply justified; we declined
to second-guess this congressional policy judgment. Id. at
694 (“Any other approach would fail to accord proper defer-
ence to the policy judgments that find expression in [Con-
gress’s] choice of sanctions.” (quotation marks omitted)).
Finally, we observed that the Supreme Court had rejected
Eighth Amendment challenges to much longer sentences for
lesser crimes. See Ewing, 538 U.S. at 28–31 (upholding a
sentence of 25 years to life where the triggering offense was
felony grand theft of three golf clubs); Rummel v. Estelle,
445 U.S. 263, 284–85 (1980) (upholding a life sentence with-
out parole where the triggering offense was obtaining
$120.75 by false pretenses).
Gross forecloses Niggemann’s argument. Although his
convictions are for receipt and possession of child pornogra-
phy—not distribution—his consumption of child pornogra-
phy incentivized its creation, causing real harm to the minor
victims. See Osborne v. Ohio, 495 U.S. 103, 110 (1990) (“Given
the importance of … protecting the victims of child pornog-
raphy, we cannot fault Ohio for attempting to stamp out this
10 No. 17-1145
vice at all levels in the distribution chain.”). And his sentence
appropriately accounts for his history of sexually abusing
young family members over many years. Long-term child
sexual abuse and extensive consumption of child pornogra-
phy demonstrate that his pedophilic inclinations haven’t
abated over time. See United States v. Chapman, 694 F.3d 908,
915 (7th Cir. 2012) (“[A] pedophilic sex offender … who has
committed both a child-pornography offense and a hands-on
sex crime is more likely to commit a future crime, including
another hands-on offense, than a defendant who has com-
mitted only a child-pornography offense.” (internal quota-
tion marks omitted)).
Niggemann may be right that the 182-month prison term
may amount to a life sentence. But nothing in the Supreme
Court’s Eighth Amendment jurisprudence permits us to
disturb the sentence for that reason alone. This is not one of
the “exceedingly rare” cases of a grossly disproportionate
sentence. Ewing, 538 U.S. at 22. The district court’s judgment
is
AFFIRMED.