United States v. Benjamin Zarn ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 17 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 09-30155
Plaintiff - Appellee, D.C. No. CR-08-73-GF-SEH
v.
MEMORANDUM *
BENJAMIN LEO ZARN,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted February 4, 2010
Seattle, Washington
Before: W. FLETCHER and RAWLINSON, Circuit Judges, and LASNIK, **
Chief District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Robert S. Lasnik, United States Chief District Judge
for the Western District of Washington, sitting by designation.
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Benjamin Leo Zarn appeals his conviction after a bench trial for receipt of
child pornography in violation of 18 U.S.C. § 2252A(a)(2). He contends that there
was insufficient evidence to support the conviction. Although Zarn admits to
searching for and viewing child pornography on the Internet on multiple occasions,
he did not download the images or know that the computers he used were
automatically caching the images.
A court need not find that the defendant downloaded the images to convict
him or her of possessing or receiving child pornography: “In the electronic context,
a person can receive and possess child pornography without downloading it, if he
or she seeks it out and exercises dominion and control over it.” United States v.
Romm, 455 F.3d 990, 998 (9th Cir. 2006) (citing United States v. Tucker, 305 F.3d
1193, 1204 (10th Cir. 2002)). Regardless of whether Zarn was aware that the
computers automatically cached the child pornography images, he exercised
dominion and control over those images. Zarn repeatedly used specific search
terms and web addresses to seek out and access web sites containing child
pornography images, he caused those images to appear on the computers’ screens
where he viewed them, and he controlled the images by displaying them, closing
the sites, and moving from one to another. Furthermore, while viewing the images,
Zarn had the ability to exercise further incidents of control by printing, saving, or
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copying them. The Romm court held that such indicia of control are sufficient to
show possession and receipt:
Romm exercised dominion and control over the images in his cache by
enlarging them on his screen, and saving them there for five minutes before
deleting them. While the images were displayed on Romm’s screen and
simultaneously stored to his laptop’s hard drive, he had the ability to copy,
print, or email the images to others. Thus, this evidence of control was
sufficient for the jury to find that Romm possessed and received the images
in his cache.
Romm, 455 F.3d at 998. The facts in this case are sufficient to prove knowing
receipt of child pornography.
AFFIRMED.
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