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United States of America v. James Sumner

May 16, 2013

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JAMES SUMNER, DEFENDANT.



ORDER

TABLE OF CONTENTS I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 II. RELEVANT PROCEDURAL BACKGROUND . . . . . . . . . . . . . . . . . . . . 2 III. RELEVANT TRIAL EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 A. June 16, 2011 Search . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 B. Forensic Examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 IV. MOTION FOR JUDGMENT OF ACQUITTAL . . . . . . . . . . . . . . . . . . . 7 A. Legal Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 B. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 1. Counts 2 through 4: Possession of child pornography . . . . . . 9 a. Parties' arguments . . . . . . . . . . . . . . . . . . . . . . . . . 9 b. Applicable law . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 c. Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 2. Count 1: Receipt of child pornography . . . . . . . . . . . . . . . 14 a. Personally downloaded . . . . . . . . . . . . . . . . . . . . . 15 b. Received by other means . . . . . . . . . . . . . . . . . . . . 17 C. Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 V. MOTION FOR NEW TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 A. Legal Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 B. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 VI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

I. INTRODUCTION

The matter before the court is Defendant James Sumner's "Motion for Judgment of Acquittal[ and] . . . Motion for New Trial" ("Motion") (docket no. 88).

II. RELEVANT PROCEDURAL BACKGROUND

On December 5, 2012, the government filed a five-count Indictment (docket no. 2) against Defendant. Count 1 charged Defendant with receipt of child pornography in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1). Counts 2 through 5 charged Defendant with possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2).

On March 11, 2013, a jury trial on Counts 1 through 5 of the Indictment commenced. On March 13, 2013, at the close of the government's evidence, Defendant moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29, which the court denied. March 13, 2013 Minute Entry (docket no. 76). On that same date, at the close of all of the evidence, Defendant renewed his motion for judgment of acquittal, which the court again denied. Id. On March 15, 2013, the jury returned guilty verdicts on Counts 1 through 4. Jury Verdicts (docket no. 82) at 1, 6, 8, 10. Because the jury concluded that Count 1 and Count 5 were based on the same facts, the jury did not reach Count 5.*fn1 Id. at 5, 12.

On March 29, 2013, Defendant filed the Motion, in which Defendant "requests that the court grant [his] motion for judgment of acquittal on the grounds that the government failed to present sufficient evidence to establish the elements of all the crimes charged beyond a reasonable doubt." Motion at 1. Defendant also "conditionally and alternatively requests that the court grant him a new trial in the interest of justice on the ground that the jury verdict[s] [were] against the weight of the evidence." Id. On April 8, 2013, the government filed a Resistance (docket no. 89) to the Motion, arguing that there is sufficient evidence to sustain the jury's verdicts and that the verdicts are not against the weight of the evidence. Defendant did not file a reply, and the time for doing so has expired. See LR 7(g). Defendant requests a hearing on the Motion. The court finds that a hearing is unnecessary. The Motion is fully submitted and ready for decision.

III. RELEVANT TRIAL EVIDENCE*fn2

Viewed in the light most favorable to the government, the trial evidence is as follows.

A. June 16, 2011 Search

On June 16, 2011, law enforcement officers with the Cedar Rapids Police Department executed a search warrant for electronic media at Defendant's apartment. The apartment had two bedrooms and one bathroom. Defendant's fourteen-year-old son slept in one bedroom, Defendant's seven-year-old daughter slept in the other bedroom and Defendant slept in the living room.

During the course of the search, law enforcement officers found three Verbatim CD-Rs that a forensic investigator later determined contained sexually explicit images of minors. The officers discovered the CDs, referred to as Item Number 6, Item Number 9 and Item Number 10, in a box in the standard-sized closet in Defendant's daughter's bedroom. In the same box, the officers found a Verbatim Inkjet Printable DVD-R that included pictures of Defendant's wedding to his third wife and a picture of his son's preschool class. In the walk-in closet in Defendant's daughter's bedroom, the officers found a cigar box containing receipts listing Defendant's name and credit card number.

Law enforcement officers also found a Fujifilm mini-DVD, which a forensic investigator later determined contained a video that included sexually explicit images of minors. The officers found the mini-DVD in a tin container in a box, which was on a shelf in the linen closet in the bathroom. Of the approximately ten devices and eighty different types of media law enforcement found during the course of the search, only the three Verbatim CD-Rs and the Fujifilm mini-DVD contained sexually explicit images of minors.

While law enforcement officers conducted the search on June 16, 2011, Cedar Rapids Police Officers Jennifer Roberts and Craig VonSprecken interviewed Defendant in the living room of the apartment. During the interview, the officers inquired about two computers in the apartment-a laptop computer and a desktop computer. Defendant told the officers that he had recently thrown away the hard drive from his laptop computer because it was no longer functioning. Defendant explained that the hard drive had a virus, he was unable to fix it and, thus, just a few days prior to the search, he threw the laptop computer's hard drive in the apartment complex's dumpster. Defendant also advised Officers Roberts and VonSprecken that, sometime in November 2010, he had disposed of the hard drive from the desktop computer because it was "fried." June 16, 2011 Interview (Clip 3), Government's Exhibit 1 (docket no. 79-72) at 00:13. At the time of the search, the desktop computer, with no hard drive, was still set up at an entertainment center in the living room.

B. Forensic Examination

Following the June 16, 2011 search, Joseph Schmitz, an investigator with the Cedar Rapids Police Department, conducted a forensic examination of the media seized from Defendant's apartment, including the three Verbatim CD-Rs and the Fujifilm mini-DVD. At trial, Investigator Schmitz explained that, although the CDs and the mini-DVD were in poor condition, he was able to retrieve images and other information from the disks. Specifically, Investigator Schmitz testified that he was able to determine the dates the individual files on the CDs finished downloading on a computer (the "modified dates"), the dates the CDs and the mini-DVD were created, or "burned," and the manner in which the files were organized on the CDs. Investigator Schmitz further testified that a CD or DVD does not store information related to what computer created the disk or whether anyone viewed files on the disk. Investigator Schmitz's findings regarding the CDs and the mini-DVD are summarized as follows:

(1) The Verbatim CD-R identified as Item Number 6 ("CD Number 6"), which is titled "Yungstuff," was first burned on May 28, 2007, and includes the following sexually explicit images of minors:

Exhibit Number Modified Date of File

Government's Exhibit 39 (docket no. 79-105) 05/29/2007 at 01:43:45 Government's Exhibit 40 (docket no. 79-106) 05/29/2007 at 01:45:09 Government's Exhibit 41 (docket no. 79-107) 06/06/2007 at 16:59:14

(2) The Verbatim CD-R identified as Item Number 9 ("CD Number 9"), which is titled "Cute Stuff," was burned on June 18, 2007, and includes the following sexually explicit images of minors:

Exhibit Number Modified Date of File

Government's Exhibit 45 (docket no. 79-111) 06/16/2007 at 02:59:01 Government's Exhibit 46 (docket no. 79-112) 06/16/2007 at 03:38:49 Government's Exhibit 47 (docket no. 79-113) 06/16/2007 at 03:11:05

(3) The Verbatim CD-R identified as Item Number 10 ("CD Number 10"), which is titled "fmimslp," was burned on April 29, 2007, and includes the following sexually explicit images of minors:

Exhibit Number Modified Date of File

Government's Exhibit 51 (docket no. 79-117) 04/24/2007 at 22:54:16 Government's Exhibit 52 (docket no. 79-118) 04/24/2007 at 22:53:10 Government's Exhibit 53 (docket no. 79-119) 04/24/2007 at 23:09:58 Government's Exhibit 54 (docket no. 79-120) 03/07/2007 at 18:17:42 (4) The Fujifilm mini-DVD identified as Item Number 1 ("mini-DVD") was burned on April 17, ...


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