PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4702
UNITED STATES OF AMERICA
v.
RODERICK S. VOSBURGH,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 2-07-cr-00171-001
District Judge: The Honorable Timothy J. Savage
Argued January 12, 2010
Before: SCIRICA, Chief Judge, BARRY, and SMITH,
Circuit Judges
(Filed: April 20, 2010)
Denise S. Wolf (Argued)
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
Anna M. Durbin
Peter Goldberger (Argued)
50 Rittenhouse Place
Ardmore, PA 19003
Counsel for Appellant
OPINION
SMITH, Circuit Judge.
Roderick Vosburgh appeals his conviction for possession
of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B)
and attempted possession of child pornography in violation of
18 U.S.C. § 2252(b)(2). We will affirm.
I. Factual Background
A. Ranchi
At the center of this case is an underground Internet
message board known as Ranchi. Ranchi allows users to post
2
links to images and videos of child pornography.1 Ranchi is
not simply an open forum in which some posts happen to be
related to child pornography; child pornography is Ranchi’s
raison d’etre. It describes itself as a place to “share all kinds of
material especially for all the kiddy lovers around the world.
This material can range from non-nude cuties to hard core baby
material.” Ranchi allows its users access to a wide range of
pornographic pictures and videos, including hard core videos of
infants and other children engaging in sexual acts with each
other and with adults. Ranchi explicitly warns that the
pornographic materials posted to the board are illegal.
Ranchi does not itself host child pornography; instead, it
directs users to where it can be found elsewhere on the Internet.
For obvious reasons, chiefly among them a desire to evade law
enforcement, Ranchi operates in the far recesses of cyberspace.
It is accessible through the use of any one of three “gateway”
websites that exist at any given time. Each gateway consists of
a web page that contains nothing but a hyperlink to the actual
Ranchi message board. The gateway sites change approximately
every three months, but regardless of their location, they always
point to the most recent location of the Ranchi board, which
itself moves around the Internet on a weekly basis. It is highly
unlikely that an innocent user of the Internet would stumble
across Ranchi through an unfortunate Google search. Because
Ranchi moves so frequently and has cumbersome URLs, it is
1
We will state the facts relevant to Ranchi in the present
tense, as they are presented that way in the record. It is
unknown whether Ranchi is operative today.
3
most often, if not always, accessed by way of the gateway sites.
Interested persons often learn of Ranchi, and where to find the
gateways, through postings on other child pornography websites.
A user seeking to access a link to child pornography
posted on Ranchi cannot do so with a simple click of the mouse.
It requires several steps. URLs as posted by Ranchi users
typically begin with the prefix “hxxp,” rather than the customary
“http,” to make it less likely that the links will be detected by
search engines. Therefore, a user interested in that link must
copy it from the board, paste it into the address bar of a web
browser, and then change “hxxp” to “http” so that the address
will be recognized by the browser. Only then can the file be
accessed and downloaded. Even after downloading, files cannot
be viewed immediately. They first must be decrypted, in part
through use of a password.
In July 2006, FBI Special Agent Wade Luders learned of
Ranchi’s existence from a suspect apprehended in an
investigation of a different child pornography board. That
suspect authorized Luders to use his Ranchi handle,
“Bongzilla,” to go undercover on the board. On October 25,
2006, Luders posted six links to what purported to be child
pornography. One of those links directed users to a video
located at the following address:
hxxp://uploader.sytes.net/12/05/4yo_suck.rar.html. Along with
this link, Luders posted the following description:
[H]ere is one of my favs – 4yo hc with dad
(toddler, some oral, some anal) – supercute!
Haven’t seen her on the board before – if anyone
4
has anymore, PLEASE POST.
In the parlance of Ranchi, “yo” stood for “year old” and “hc”
stood for “hard core.” 2 Luders quickly realized that because he
had mistakenly failed to encrypt the file, it was unlikely to
attract attention. He then re-posted the “4yo_suck” link and
posted instructions for decrypting the file. He also promised to
post the necessary password, but never did.
The “4yo_suck” link (hereinafter the “Link”) was, in
short, a trap. It did not direct the user to actual child
pornography. It was a dummy link which led only to Agent
Luders’s secure FBI computer. The “video” downloaded by
way of the Link generated only gibberish on the recipient’s
computer screen. Meanwhile, Agent Luders’s computer
generated a log file containing the Internet Protocol addresses
(“IP addresses”)3 of every user who attempted to access the
Link, and the date and time of each attempt. Among those who
attempted to access the Link was a user at the IP address
69.136.100.151. That individual attempted to download the
2
“Hard core” generally denotes depictions of children
engaged in actual sexual activity.
3
An IP address is a number assigned to each device that
is connected to the Internet. Although most devices do not have
their own, permanent (“static”) addresses, in general an IP
address for a device connected to the Internet is unique in the
sense that no two devices have the same IP address at the same
time.
5
Link three times in a two-minute period between 11:46 and
11:48 p.m. EST on October 25, 2006. Luders traced this IP
address to Comcast Cable Communications. In response to a
subpoena, Comcast informed the government that “the
individual utilizing the IP address 69.136.100.151 on October
25, 2006 at [the relevant times] did so using an account
subscribed to by Rod Vosburgh, residing at 37 State Rd., Apt.
B4” in Media, Pennsylvania. Luders forwarded this information
to FBI Special Agent David Desy in Philadelphia.
B. Affidavit and Search Warrant
Agent Desy took steps to confirm that Vosburgh lived at
the address identified by Comcast, and that he lived there alone.
A January 17, 2007, search of Pennsylvania Bureau of Motor
Vehicle records confirmed that Vosburgh resided at 37 State
Road, Apartment B4 in Media, and a Choicepoint query
conducted the same day revealed the same information. On
January 31, 2007, through query of the U.S. Postal Service,
Agent Desy learned that Vosburgh was the only person
receiving mail at the apartment in question. In addition, Agent
Desy twice conducted surveillance of the apartments at 37 State
Road, and both times observed a vehicle in the parking lot
matching the description of the one owned by Vosburgh.
On February 23, 2007, Agent Desy applied for a warrant
to search Vosburgh’s apartment. The affidavit in support of
that application described how computers and the Internet have
facilitated the spread of child pornography. It explained what IP
addresses are, and how “[l]aw enforcement entities, in
conjunction with Internet Service Providers, have the ability to
6
identify a user’s IP address to a specific household or
residence.” It also described certain characteristics and habits
of persons interested in child pornography. It noted that “[c]hild
pornography collectors almost always maintain and possess their
material in the privacy and security of their homes, or some
other secure location such as their vehicle(s), where it is readily
available,” and that collectors tend to hoard their materials:
Because the collection reveals the otherwise
private sexual desires and intent of the collector
and represents his most cherished sexual
fantasies, the collector rarely, if ever, disposes of
the collection. The collection may be culled and
refined over time, but the size of the collection
tends to increase.
The affidavit also noted that even if a collector deletes illegal
materials from his computer’s hard drive, law enforcement can
often retrieve those files using forensic tools. Next, the affidavit
described the nature of Ranchi, with graphic descriptions of
some of the illegal pornographic materials that agents had found
posted to the site. It then summarized Agent Luders’s posting
of the Link, how his computer logged the IP addresses of users
who attempted to access the Link, and why it was unlikely that
anyone who attempted to download the video promised by the
Link would have done so by accident.4 Finally, the affidavit laid
4
As explained above, any attempt to access the Link
would have been preceded by the following steps: (1) knowing
where to find and then accessing a gateway site; (2) clicking on
7
out the facts specific to Vosburgh. It noted that an individual
using the IP address 69.136.100.151 attempted to access the
Link three times on the night of October 25, 2006. It recounted
how Agent Desy traced that IP address back to Vosburgh’s
apartment, and the subsequent steps Agent Desy took to confirm
that Vosburgh actually lived there. It also described in detail the
property to be searched and the items to be searched and seized.
Those items included “[a]ny and all items which may be used to
visually depict child pornography, store information pertaining
to the sexual interest in child pornography, or to distribute,
possess, or receive child pornography, . . . including . . .
computer hardware[.]”
Magistrate Judge Felipe Restrepo issued a search warrant
on February 23, 2007, approximately four months after
Vosburgh’s apparent attempts to access the Link. That warrant
was executed on February 27, 2007. Before they arrived at his
apartment, officers learned that Vosburgh lawfully owned more
than a dozen guns. Concerned for their safety, officers
attempted to lure Vosburgh out of his apartment with a ruse.
They knocked on his door, identified themselves as police, and
told him that they wanted to talk to him because his car had been
vandalized. Vosburgh did not answer the door, but from the
apartment came a sound of “metal on metal” that sounded like
the racking of a gun. Alarmed, officers remained outside of the
the URL from that gateway to Ranchi; (3) finding a hyperlink on
the Ranchi board; (4) copying and pasting that link into a new
window on his web browser; (5) changing the letters “hxxp” in
the URL as posted to “http”; and (6) downloading the file.
8
apartment and attempted to persuade Vosburgh to open the door.
They knocked at least three times, with the knocks getting
louder each time. They also called Vosburgh’s telephone
several times and left messages asking him to come out of the
apartment. Approximately 27 minutes after officers first
knocked, Vosburgh opened the door. He told officers that he
did not answer sooner because he had been in the bathroom.
Inside Vosburgh’s apartment, police found pieces of
smashed thumb drives, one of which was floating in the toilet.
They also found a hammer and a pair of scissors outside of the
bathroom door.5 They found a screwdriver next to a computer
tower in the kitchen. The computer’s panel had been forcibly
removed and its internal hard drive was missing. Part of an
internal drive was found in a trash bag in the kitchen, and the
remains of that same hard drive were found on a bookshelf in
the living room. The destroyed internal hard drive was
compatible with the tower in the kitchen.
In an interview with Agent Desy, Vosburgh
acknowledged that he lived alone in the apartment and that he
owned a computer. He denied intentionally breaking or
5
One of the officers present that day testified that when
he walked into the apartment and saw the hammer, it became
“obvious” to him that the “metal on metal” sound that officers
feared was the racking of a handgun was actually the sound of
a hammer smashing the metal on the thumb drive. Vosburgh
claimed that the metallic sound was the sound of him unloading
his guns “so there would not be any trouble.”
9
destroying the computer’s internal hard drive; he claimed that he
had discarded it two or three weeks earlier because it was
corrupted. He told officers that he owned an external hard drive
that contained adult pornography, and a thumb drive that
contained work documents and more adult pornography.
Officers collected the internal hard drive and the pieces of the
thumb drive, but the FBI’s computer forensics experts were
unable to recover anything from either. They also took the
external hard drive, which was intact and later examined by FBI
forensics expert Justin Price.6
C. Contents of the External Hard Drive
The external hard drive contained a folder with hundreds
of pictures of what the government calls “child erotica.” 7 Many
6
The external hard drive was inadvertently left in
Vosburgh’s apartment on February 27. When Agent Desy
learned that it remained in Vosburgh’s apartment, he sought a
“piggyback” search warrant to return to Vosburgh’s apartment.
His application incorporated by reference the affidavit used to
obtain the February 27 warrant. After Magistrate Judge Thomas
Rueter issued this warrant on March 1, agents returned to
Vosburgh’s apartment and seized the external hard drive.
7
The government distinguishes child pornography from
child erotica by defining the latter as material that depicts
“young girls as sexual objects or in a sexually suggestive way,”
but is not “sufficiently lascivious to meet the legal definition of
sexually explicit conduct” under 18 U.S.C. § 2256. See also
10
of these were pictures of a young Asian girl known as Loli-chan
who has gained some notoriety by posting suggestive photos of
herself on the Internet.8 It also contained a folder called
“jap111.” This folder contained twenty pictures of adult women
in .jpeg format9 and a file called thumbs.db which itself
United States v. Gourde, 440 F.3d 1065, 1068 (9th Cir. 2006)
(en banc) (citing FBI affidavit describing child erotica as
“images that are not themselves child pornography but still fuel
. . . sexual fantasies involving children”).
8
The government described Loli-chan as follows:
Loli-chan is the name given to a 13-year old girl
who posts pictures of herself on imageboards and
enjoys hearing from her older male fans. In these
images, ‘Loli-chan’ is, for example, licking a
lollipop; in a bathroom wearing a robe and
making a kissing expression; in a swimsuit at a
pool; at the shower, starting to undress from her
swimsuit; in a Mini-Mouse outfit; in a school
uniform sitting on the floor barefoot; and sitting
clothed on a toilet. In many of these images, the
girl is holding signs that read “I’m thirteen,”
“Google your own porn,” “kock swurve is gay,”
[and various other vulgar, non-sensical phrases].
9
“JPEG” stands for Joint Photographic Experts Group
and refers to “a commonly used method for compressing and
storing electronic photographic images. JPEG files are usually
11
contained 68 ‘thumbnail’ images. Two of those images were of
child pornography. One depicted a naked prepubescent girl in
the computer room of a house, with one leg propped up
unnaturally to expose her genitalia. This image became
Government Exhibit 14 at trial, and we will refer to it as such.
The second depicted four naked young girls, sitting on a couch
with their legs spread to expose their genitalia. This became
Government Exhibit 15.
Notably, these two images did not exist as full-sized,
independent picture files (such as .jpeg files) in the jap111
folder when the government seized the hard drive. Nor were
full-sized .jpegs of those images recovered anywhere else on the
external hard drive. Rather, they existed only as miniatures
within the thumbs.db file in the jap111 folder. Because the
nature of thumbs.db is critical to resolution of the issues raised
in this appeal, it is necessary to recount the record evidence
concerning this file.
On ordinary computers running Windows operating
systems, picture files are often stored in folders. When a folder
is opened, the user has several options for displaying the
pictures contained therein. One option is the “thumbnail” view.
When the user selects the thumbnail view, a miniature version
of each picture in the folder is displayed. Each of those
saved with the ‘.jpg’ extension appended to the computer file
name and indicate the file contains a photograph or graphical
image.” United States v. Andrus, 483 F.3d 711, 714 n.2 (10th
Cir. 2007).
12
miniatures is called a “thumbnail.” The user can click on the
thumbnail to open it and view a full-sized version of the picture.
When the user selects the thumbnail viewing option, the
Windows operating system automatically creates a hidden
system file called “thumbs.db” within that folder. The user need
not instruct Windows to do so; it happens automatically as part
of the process of viewing the contents of the folder in thumbnail
view. Thumbs.db is not a collection of many image files; it is a
single file, which can be thought of as a visual catalog of all the
image files contained in the folder. It contains a miniature,
degraded version of every image in the folder that has been
converted into a thumbnail pursuant to the use of the thumbnail
view.
The thumbs.db file is stored within the folder whose
content it reflects, along with the picture files themselves. But
the ordinary user cannot view the contents of thumbs.db.
Indeed, the ordinary user does not even know that thumbs.db is
there. At trial, the government’s expert Justin Price confirmed
that opening the thumbs.db file to view its contents requires
special software, and that there was no evidence that Vosburgh
possessed such software or was otherwise capable of viewing
the contents of the thumbs.db file in the jap111 folder.
The significance of the presence of Exhibits 14 and 15 in
the thumbs.db file on Vosburgh’s external hard drive was one of
the central factual issues at trial. The government contended
that the existence of Exhibits 14 and 15 in the thumbs.db file
was evidence that corresponding full-sized picture files once
existed on Vosburgh’s hard drive in the jap111 folder.
According to the government, Vosburgh knowingly possessed
13
such pictures but then deleted them at some point before the
search of his apartment on February 27; this explained why the
hard drive contained thumbs.db versions of Exhibits 14 and 15,
but not full-sized .jpeg versions of those same images. We will
refer to this theory throughout our opinion as the government’s
“prior possession” theory.
Vosburgh vigorously contested the prior possession
theory. He contended at trial, and now contends on appeal, that
he conclusively disproved the theory with an in-court
demonstration by his expert, Dr. Rebecca Mercuri. He also
offered several alternative explanations for the presence of
Exhibits 14 and 15 in the jap111 thumbs.db file.
II. Procedural History
A. The Indictment
On June 5, 2007, a grand jury in the Eastern District of
Pennsylvania returned a four-count superseding indictment
against Vosburgh. Count I charged that Vosburgh “knowingly
possessed one external hard drive that contained visual
depictions” of child pornography, in violation of 18 U.S.C. §
2252(a)(4)(B), “on or about February 27, 2007.” This charge
related to his possession of the hard drive containing the images
that became Exhibits 14 and 15. Count II charged Vosburgh
with attempted possession of child pornography in violation of
18 U.S.C. § 2252(b)(2), in connection with Vosburgh’s attempts
to access the Link. Count III charged that Vosburgh knowingly
altered or destroyed tangible objects with the intent to obstruct
the investigation of a matter within the jurisdiction of the FBI,
14
in violation of 18 U.S.C. § 1519. Count IV charged Vosburgh
with violating 18 U.S.C. § 2232 by knowingly destroying
property in order to prevent its lawful seizure by the
government.
B. Pre-Trial Proceedings
Considerable motion practice preceded Vosburgh’s trial.
Three sets of motions are most relevant to this appeal. First,
Vosburgh and the government filed motions in limine. The
government sought to admit much of the child erotica found on
the external hard drive; Vosburgh sought to exclude it. The
government argued that those materials, while not illegal, were
relevant because they suggested that Vosburgh had a sexual
interest in children and tended to disprove that Vosburgh did not
know that he possessed the pornographic pictures in Exhibits 14
and 15. It further argued that the images were admissible under
Rule 404(b) because possession of those materials helped to
show Vosburgh’s intent to possess child pornography.
Vosburgh argued that the District Court should exclude the child
erotica as unduly prejudicial under Rule 403. Ultimately, the
District Court admitted some but not all of this evidence. It
allowed forty-six non-pornographic images of prepubescent
girls in swimsuits and thirty of the Loli-chan pictures.
Second, on June 19, 2007, Vosburgh filed a request for
a bill of particulars. He demanded that the government specify,
inter alia, the time and date that he allegedly “downloaded the
two visual depictions” which formed the basis for Count I. The
government opposed Vosburgh’s request on the ground that
Vosburgh already knew everything he was entitled to know:
15
[T]he defendant has been provided with
substantial discovery, including reports of
interviews of witnesses, four search warrant
affidavits, grand jury testimony, police reports,
documents, and reports of forensic examinations
of the computer equipment. Moreover, defendant
has had access to and reviewed the evidence
(including images and documents on the external
hard drive) that was seized from his residence.
Additionally, because the case originated by
complaint and warrant, defendant was informed,
in detailed fashion, of the basis of the underlying
charges as set forth in the affidavit. The
defendant even took the opportunity to cross-
examine the case agent at his probable cause
hearing. And, finally, after the Superseding
Indictment, government counsel identified for
defense counsel the two images found on
defendant’s external hard drive that comprise the
charges for the possession of child pornography.
Nevertheless, the government gave a few specific responses to
the inquiries raised in Vosburgh’s request. In light of those
responses, the District Court denied Vosburgh’s request for a
bill of particulars as moot.
Third, Vosburgh moved to suppress the external hard
drive and other evidence seized in his apartment, claiming that
the warrant was not supported by probable cause. After a
hearing, the District Court denied Vosburgh’s motion to
suppress the fruits of the search, concluding that the magistrate
16
“had a substantial basis for finding probable cause that there
would be child pornography related evidence in the apartment
described in the warrant.” 10
C. Trial
Trial began on October 31, 2007 and lasted for four days.
The relevant testimony is summarized below.
1. Agents Luders and Desy
Agents Luders and Desy testified about the events that
led to Vosburgh’s arrest. Agent Luders testified to his three-
and-a-half years of experience investigating child pornography
crimes with the FBI. He described his investigations of Ranchi
and similar websites, and the nature of the child pornography
accessible through Ranchi. He described how he posted the
Link, how his computer logged Vosburgh’s IP address, and how
he traced that IP address to Vosburgh. He also testified about
the measures Ranchi has taken to conceal itself from all but the
most dogged pursuers of child pornography, and why it was
unlikely that anyone would have stumbled across the board
accidentally. Finally, he testified to the steps users had to go
10
The District Court’s Conclusions of Law also
referenced the good-faith exception to the exclusionary rule
established in United States v. Leon, 468 U.S. 897 (1984). It
noted the existence of the Leon exception, but stopped short of
deciding whether it applied to the search of Vosburgh’s
apartment.
17
through in order to access materials posted to the board, and
why it was unlikely that anyone who had undertaken each of
those steps would have done so inadvertently.
Agent Desy testified about the steps he took once he
received the lead about Vosburgh from Agent Luders. He
described how he confirmed where Vosburgh lived and the
process by which he obtained the search warrant for Vosburgh’s
apartment.
2. Comcast
A witness from Comcast testified about IP addresses and
the process by which Comcast responds to requests from law
enforcement to match IP addresses to individual Comcast
subscribers. He explained that Comcast’s automated system
assigns a unique IP number to each customer on a dynamic
basis, and that the “lease period” for each IP address is
approximately 6-8 days. At the expiration of that lease period,
the assignment of an address to a particular computer may or
may not be renewed. He further explained that Comcast can
trace an IP address back to a particular customer’s account,
through IP assignment logs that go back 180 days. Finally, he
testified that between October 20 and October 30 of 2006, IP
address 69.136.100.151 was assigned to an account registered
to Vosburgh at 37 State Road, Apartment B4 in Media.
3. Justin Price
Price, an information technology specialist for the FBI,
was the government’s expert witness. He conducted the
18
forensic examination of Vosburgh’s external hard drive. He
testified in support of the prior possession theory. According to
Price, the fact that the thumbs.db images of Exhibits 14 and 15
existed in the jap111 folder was proof that corresponding, full-
sized originals must have also existed within that folder and on
Vosburgh’s hard drive. He testified that the thumbs.db file
containing Exhibits 14 and 15 was created on February 21,
2007, and that those specific images were added to (or modified
within) thumbs.db on February 22 – meaning that “on February
22, basically the user went into the [jap111] folder . . . clicked
on view and showed these pictures in thumbnail view.” While
Price testified that the presence of an image in the thumbs.db
was definitive proof that the original, full-sized version of that
image existed in the folder at one time, he also admitted on
cross-examination that the presence of a picture within a folder
did not necessarily mean that the image was actually viewed by
the user. It meant only that the picture was present in a folder
that was viewed in the thumbnail view.
4. Thomas Clinton
Retired U.S. Postal Inspector Thomas Clinton testified
about the naked female in Exhibit 14. He explained that for the
last 18 years of his career, he led a task force of agents
investigating the transmission, production, and distribution of
child pornography throughout the country. He testified that he
recognized the female in Exhibit 14 because he had been in her
home in New Kensington, Pennsylvania in 2003, during the
execution of a search warrant. According to Clinton, she was a
young girl who was living with her adoptive father at that time.
Clinton testified that after the search of the house, the father was
19
arrested and the girl was taken into protective custody. Over
Vosburgh’s hearsay objection, Clinton also testified that he
knew the girl’s date of birth to be August 25, 1992. On cross-
examination, Clinton confirmed that he was not present when
the photograph that became Exhibit 14 was taken, but reiterated
that he recognized the girl in the picture and that she was less
than 11 years old when he met her in New Kensington.
5. Dr. Rebecca Mercuri
Mercuri was Vosburgh’s forensic computer expert, and
her testimony formed the bulk of Vosburgh’s defense. Mercuri
had conducted her own forensic examination of the external
hard drive. In her pre-trial expert report, she concluded that
“there is absolutely no evidence that the [images in Exhibits 14
and 15] . . . ever existed as individual .jpeg files at any time on
[Vosburgh’s] hard drive.” At trial, she likewise fiercely
disputed the prior possession theory. According to Mercuri, the
fact that a thumbs.db file containing Exhibits 14 and 15
appeared in the jap111 folder was not proof that full-sized .jpegs
of Exhibits 14 and 15 once existed on the hard drive. To
underscore that point, Mercuri conducted a live, in-court
demonstration using two computers. Mercuri created a folder
with four .jpegs depicting natural scenery: Pond, Blue Hill,
Sunset, and Winter. She opened the folder and selected the
thumbnail view, thus creating within that folder a thumbs.db file
containing all four images. She then deleted Blue Hills and
Winter from the folder, leaving only the Pond and Sunset .jpegs.
Next, she copied the entire folder onto a second computer.
When she opened that folder on the second computer, it
contained only the Pond and Sunset .jpegs, but it also contained
20
the thumbs.db file created on the first computer. Using special
software to view the contents of thumbs.db on the second
computer, she showed that this thumbs.db file contained four
thumbnails, one corresponding to each of the .jpegs that
originally existed in the folder. The point of her demonstration,
Mercuri said, was to show that “you can have a thumbs.db file
that contains thumbnails in it that you never had the original
pictures of.”
Consistent with her demonstration, Mercuri offered her
own theory about how the thumbs.db file containing the
pornographic images could have gotten onto Vosburgh’s hard
drive without the corresponding .jpegs for those pictures doing
the same. According to Mercuri, Vosburgh could have gotten
the thumbs.db images but not the corresponding originals if he
had downloaded the jap111 folder after the thumbs.db file was
created in that folder but also after the full-sized versions of
Exhibits 14 and 15 had been deleted.
With respect to Count II, Mercuri offered several theories
as to how Vosburgh’s IP address could appear to have attempted
to access the Link without Vosburgh himself knowingly doing
so. Mercuri speculated that an unknown user could have
“spoofed” Vosburgh’s IP address, or that Vosburgh’s computer
could have been infected with malicious software that turned it
into a “zombie.” 11 She admitted, however, that she had no
11
Mercuri testified that “spoofing is a way of making it
appear as though the IP address is from one user when in fact it
is coming from another.” She explained that “people are
21
evidence that such mischief had actually occurred.
6. Closing Argument
The government pressed the prior possession theory
throughout its closing argument. For example, the prosecutor
told the jury:
[Vosburgh] viewed [the pictures] on February
22nd. That is what the forensics showed. He
viewed them on February 22nd. He went to his
view options . . . . he chose view. In order to
choose view, it has to be there and he viewed
them. And when he viewed them, it automatically
created a thumbnail. And he did this on February
22, 2007. And in order to do this, you have to
have the original photos. You have to have the
original photos in jap111 before they could be
instructed if they are going to download illicit materials, . . . not
to use their own IP address, they have to use some other IP
address.” She further testified that a computer becomes a
“zombie” when it is remotely and surreptitiously hijacked by
another user and used to do things that the owner does not know
that it is doing. Hackers may use computers that have been
turned into zombies to send spam emails, or as a place to store
files they do not want to store on their own computers. The
malicious programs used to perform these activities can be
planted on the computer through websites, through email, or
even through an idle Internet connection.
22
viewed in thumbnail.
In response, Vosburgh emphasized Mercuri’s testimony that the
existence of Exhibits 14 and 15 in the thumbs.db file did not
prove that Vosburgh ever knowingly possessed the full-sized
originals on his hard drive. He also reiterated his spoofing and
zombie theories for why someone using his IP address appeared
to have accessed the Link.
The jury found Vosburgh guilty on Counts I and II, and
acquitted him on Count III.12 Vosburgh was sentenced to 15
months of imprisonment and three years of supervised release.
D. Post-Trial
Vosburgh filed a post-trial motion for judgment of
acquittal, or in the alternative, for a new trial. He claimed that
there was insufficient evidence to convict him on Counts I and
II. He also claimed, for the first time, that a new trial should be
held because there was a constructive amendment of his
indictment and/or a variance between the indictment and the
evidence at trial. The District Court denied Vosburgh’s motion
12
The District Court dismissed Count IV at the close of
the government’s case-in-chief because there was insufficient
evidence for the jury to find that Vosburgh knew there was an
outstanding search warrant at the time he allegedly destroyed his
computer equipment. Neither Count III nor Count IV is
implicated in this appeal.
23
without opinion.
Vosburgh then filed a timely notice of appeal. We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
Vosburgh raises four challenges to his conviction. First, he
contends that the District Court erred by failing to suppress
evidence found in his apartment, because there was no probable
cause to search his apartment for evidence of child pornography
crimes. Second, he argues that the government constructively
amended Count I of the indictment by changing its theory of
prosecution during closing argument. In the alternative, he
argues that there was a prejudicial variance requiring a new trial.
Third, he argues that there was insufficient evidence to convict
him on Count I. Fourth, he argues that the District Court erred
at trial by admitting evidence that he contends was unduly
prejudicial and inadmissible hearsay.
III. Probable Cause
The Fourth Amendment to the United States Constitution
protects the “right of the people to be secure” in their homes and
effects. U.S. Const. amend. IV. To that end, it generally
requires that search warrants be supported by probable cause.
Id. Evidence seized pursuant to a search warrant that is not so
supported may be suppressed. See, e.g., United States v.
Zimmerman, 277 F.3d 426, 438 (3d Cir. 2002). Vosburgh
argues that the District Court should have granted his motion to
suppress because officers lacked probable cause to search his
apartment.
24
A. Standard of Review
The applicable standards for issuing and reviewing a
search warrant were set forth in Illinois v. Gates, 462 U.S. 213
(1983):
The task of the issuing magistrate is simply to
make a practical, common-sense decision
whether, given all the circumstances set forth in
the affidavit before him, . . . there is a fair
probability that contraband or evidence of a crime
will be found in a particular place. And the duty
of a reviewing court is simply to ensure that the
magistrate had a “substantial basis for . . .
conclud[ing]” that probable cause existed.
Id. at 238-39 (some alterations in original).
We exercise plenary review of the District Court’s denial
of a motion to suppress. Zimmerman, 277 F.3d at 432. “Thus,
we apply the same standard the District Court was required to
apply,” i.e., “whether the magistrate who issued the warrant had
a ‘substantial basis’ for determining that probable cause
existed.” Id. We owe “great deference” to the magistrate’s
probable cause determination, Gates, 462 U.S. at 236, but we
will not simply “rubber stamp” it. Zimmerman, 277 F.3d at 432.
B. Analysis
Agent Desy’s affidavit explained that on October 25,
2006, someone using a computer with an IP address of
25
69.136.100.151 attempted to download a video that purported to
be hardcore child pornography. It further explained that on the
day in question, the relevant IP address was assigned to a
Comcast account registered to Vosburgh’s apartment. It also
asserted that child pornography collectors tend to hoard their
materials and “rarely, if ever” dispose of them. We must decide
whether these averments provided a “substantial basis” for the
magistrate’s conclusion that there was a “fair probability that
contraband or evidence of a crime [would] be found” in
Vosburgh’s apartment at the time of the search. Gates, 462 U.S.
at 238. We answer that question in the affirmative.
This Court has not squarely addressed the issue, but
several Courts of Appeals have held that evidence that the user
of a computer employing a particular IP address possessed or
transmitted child pornography can support a search warrant for
the physical premises linked to that IP address. See, e.g., United
States v. Perez, 484 F.3d 735 (5th Cir. 2007).13 In Perez, a
13
See also United States v. Stults, 575 F.3d 834, 843-44
(8th Cir. 2009) (holding that probable cause supported warrant
where officers used IP address to identify possessor of child
pornography on a file-sharing network); United States v.
Perrine, 518 F.3d 1196, 1205-06 (10th Cir. 2008) (upholding
probable cause where pornographic images were traced to
defendant’s residence using IP address); United States v.
Wagers, 452 F.3d 534, 539 (6th Cir. 2006) (upholding probable
cause where suspect was identified as a member of child
pornography websites through an IP address assigned to his
residence); United States v. Hay, 231 F.3d 630, 635-36 (9th Cir.
26
woman contacted law enforcement after she received an
unsolicited email containing child pornography from a Yahoo!
email address. Yahoo! identified the user who sent the
offensive email, and from its records identified that user’s IP
address. The FBI determined that the IP address belonged to a
Time Warner customer, and subpoenaed the identity and address
of that customer from Time Warner. A search of that address
uncovered child pornography. Id. at 738. On appeal, the
defendant argued that the images should have been suppressed
because the “mere association between an IP address and a
physical address is insufficient to establish probable cause.” Id.
at 739. The Fifth Circuit disagreed, concluding that the IP
address provided “a substantial basis to conclude that evidence
of criminal activity” would be found at the defendant’s home,
even if it did not conclusively link the pornography to the
residence. Id. at 740. The court noted that although it was
technically possible that the offending emails “originated
outside of the residence to which the IP address was assigned,
it remained likely that the source of the transmissions was inside
that residence.” Id. (emphasis added).
We agree with the reasoning in Perez. As many courts
have recognized, IP addresses are fairly “unique” identifiers.14
2000) (finding a substantial basis for magistrate’s probable
cause determination where images of child pornography were
traced to defendant using an IP address).
14
We say “fairly” unique because there undoubtedly
exists the possibility of mischief and mistake with IP addresses.
27
See, e.g., United States v. Forrester, 512 F.3d 500, 510 n.5 (9th
Cir. 2008) (stating that “every computer or server connected to
the Internet has a unique IP address”); Perrine, 518 F.3d at 1199
n.2 (noting that an IP address “is unique to a specific
computer”); Peterson v. Nat’l Telecomm. & Inform. Admin., 478
F.3d 626, 629 (4th Cir. 2007) (explaining that “[e]ach computer
connected to the Internet is assigned a unique numerical [IP]
address”); White Buffalo Ventures, LLC v. Univ. of Texas at
Austin, 420 F.3d 366, 370 n.6 (5th Cir. 2005) (describing an IP
address as “a unique 32-bit numeric address” that essentially
“identifies a single computer”). The unique nature of the IP
address assigned to Vosburgh on October 25 made his attempts
to access the Link fairly traceable to his Comcast account and
the physical address to which that account was registered.
Attempted possession of child pornography is a federal
crime. See 18 U.S.C. § 2252(b)(2). Therefore, the attempts to
access the Link by someone using Vosburgh’s IP address were
For example, the trial evidence showed that proxy servers can be
used to mask IP addresses, and that knowledgeable users can
“spoof” the IP addresses of others. In this case, we are
confident that Vosburgh’s IP address was a fairly reliable
identifier of his computer for probable cause purposes, in light
of the total lack of record evidence that he was the victim of any
mischief. In those cases where officers know or ought to know,
for whatever reason, that an IP address does not accurately
represent the identity of a user or the source of a transmission,
the value of that IP address for probable cause purposes may be
greatly diminished, if not reduced to zero.
28
undoubtedly criminal activity. Considering the “totality of the
circumstances” outlined in Agent Desy’s affidavit, Gates, 462
U.S. at 238, we think it was fairly probable that
“instrumentalities or evidence” of that criminal activity – such
as computers and computer equipment – would be found in
Vosburgh’s apartment.15 See United States v. Urban, 404 F.3d
754, 774 (3d Cir. 2005) (quoting United States v. Tehfe, 722
F.2d 1114, 1117-18 (3d Cir. 1983)); see also Agnellino v. New
Jersey, 493 F.2d 714, 727 (3d Cir. 1974) (stating that the
standard for probable cause “clearly is something less than
‘certainty’ or ‘evidence of guilt beyond a reasonable doubt’”);
Perez, 484 F.3d at 740 (recognizing that “[p]robable cause does
not require proof beyond a reasonable doubt”).
Vosburgh argues that even if the IP address established
some connection to the physical location of his apartment, the
four-month gap between the warrant application and the
attempts to access the Link described in Agent Desy’s affidavit
rendered the information in the affidavit stale. The “[a]ge of the
information supporting a warrant application is a factor in
determining probable cause.” United States v. Harvey, 2 F.3d
15
The search warrant authorized agents to search for and
seize much more than computer equipment. It allowed them to
seize all originals, copies, and negatives of any visual depictions
of minors engaging in sexually explicit conduct; “[a]ny and all
documents . . . pertaining to” the possession of child
pornography; and diaries, notebooks, records, and notes
reflecting contact with minors. Vosburgh does not challenge the
scope of the warrant.
29
1318, 1322 (3d Cir. 1993). “If too old, the information is stale,
and probable cause may no longer exist.” Zimmerman, 277 F.3d
at 434. “Age alone,” however, is not determinative. Id. To
analyze a claim of staleness, we must do more than simply count
the number of the days between the date of the alleged criminal
activity and the date of the warrant. We must also consider “the
nature of the crime and the type of evidence” involved. Id.
This is not the first time we have had occasion to
consider staleness vel non in the context of child pornography.
See, e.g., United States v. Shields, 458 F.3d 269, 279 n.7 (3d Cir.
2006); Harvey, 2 F.3d at 1322-23 (rejecting defendant’s
staleness claim). In Shields, FBI agents infiltrated two online
groups explicitly dedicated to the exchange of child
pornography. Eventually, both groups were shut down and the
agents obtained records of group members’ email addresses.
Shields, 458 F.3d at 272. They traced one of those addresses
back to Shields. Nine months after the groups were shut down,
agents obtained a search warrant for Shields’s home, where they
found hundreds of images of child pornography. Id. at 273. On
appeal, we rejected Shields’s probable cause challenge. Shields
did not argue staleness, but we raised the issue sua sponte and
concluded that the information in the affidavit was not stale,
despite the nine-month gap between the warrant application and
any possible participation by Shields in the child pornography
groups. Id. at 279 n.7.
We reiterate that staleness is not a matter of mechanically
counting days. Zimmerman, 277 F.3d at 434. Nevertheless, our
conclusion in Shields that a nine-month gap did not render the
information stale counsels in favor of the same result here, given
30
the similar “nature of the crime[s]” involved, id., and the fact
that the gap here was only four months. We therefore hold that
the information in Agent Desy’s affidavit was not stale. As the
affidavit explained, and as we have long recognized, persons
with an interest in child pornography tend to hoard their
materials and retain them for a long time. See, e.g., Shields, 458
F.3d at 279 n.7 (noting that “collectors of child pornography
often store their material and rarely discard it”); Harvey, 2 F.3d
at 1322-23 (rejecting staleness claim in part due to recognition
that “pedophiles rarely, if ever, dispose of sexually explicit
material”). Child pornography is illegal, and therefore difficult
and risky to obtain. Presumably, once a child pornography
collector gets his hands on such material he will not be quick to
discard it. Zimmerman, 277 F.3d at 434. Vosburgh argues that
this “hoarding” principle had no place in Agent Desy’s affidavit
(and should not inform this Court’s staleness analysis) because
the affidavit established no basis for concluding that Vosburgh
was a child pornography collector. We disagree. The affidavit
described repeated, deliberate attempts to access the Link –
which, as the affidavit explained, was advertised as hard core
child pornography and posted to an underground website
explicitly and exclusively dedicated to such pornography –
originating from an apartment in which Vosburgh lived by
himself. Under these facts, we cannot say that it was
unreasonable for officers to infer that the person responsible for
those attempts already possessed some quantity of child
pornography. See United States v. Wagers, 452 F.3d 534, 540
(6th Cir. 2006) (noting that “evidence that a person has visited
or subscribed to websites containing child pornography supports
the conclusion that he has likely downloaded, kept, and
otherwise possessed the material.” (citing United States v.
31
Martin, 426 F.3d 68, 77 (2d Cir. 2005), and United States v.
Froman, 355 F.3d 882, 890-91 (5th Cir. 2004))).16
We do not hold, of course, that information concerning
child pornography crimes can never grow stale. We observe
only that information concerning such crimes has a relatively
long shelf life. It has not been, and should not be, quickly
deemed stale. See, e.g., Shields, 458 F.3d at 279 n.7. See also
United States v. Paull, 551 F.3d 516, 522 (6th Cir. 2009) (noting
that “the same time limitations that have been applied to more
fleeting crimes do not control the staleness inquiry for child
pornography”). This is especially true where, as here, the crime
in question is accomplished through the use of a computer. As
the Ninth Circuit observed in one child pornography case,
computers have “long memor[ies].” United States v. Gourde,
440 F.3d 1065, 1071 (9th Cir. 2006) (en banc); see also United
States v. Frechette, 583 F.3d 374, 379 (6th Cir. 2009) (“Digital
images of child pornography can be easily duplicated and . . .
even if they are sold or traded . . . . have an infinite life span.”).
Images stored on computers can be retained almost indefinitely,
and forensic examiners can often uncover evidence of
possession or attempted possession long after the crime has been
completed. See, e.g., Gourde, 440 F.3d at 1071 (crediting
16
Cf. Shields, 458 F.3d at 278 (finding it fairly probable
that the defendant would be found in possession of child
pornography, because he had “voluntarily registered for two e-
groups that were devoted principally to sharing and collecting
child pornography,” using an email address that strongly
suggested an interest in such pornography).
32
statement in affidavit that FBI computer experts can resurrect
files from a hard drive even after they have been deleted). The
staleness inquiry requires us to consider the “type of evidence”
at issue, Zimmerman, 277 F.3d at 434, and we think it obvious
that the type of evidence agents sought from Vosburgh’s
apartment – computers and/or computer equipment – is not the
type of evidence that rapidly dissipates or degrades. Nor is it the
type of property that is usually quickly or continuously
discarded. Cf. United States v. Ritter, 416 F.3d 256, 270-71 (3d
Cir. 2005) (Smith, J., concurring in the judgment) (discussing
the relevance to staleness of the nature of the evidence and how
quickly it might reasonably be expected to be discarded).
Therefore, the passage of weeks or months here is less important
than it might be in a case involving more fungible or ephemeral
evidence, such as small quantities of drugs or stolen music. See
id.
The magistrate’s task was to make a practical, common-
sense decision as to whether there was a fair probability that
evidence of criminal activity – including possession or even
attempted possession of child pornography – would be found in
Vosburgh’s apartment four months after he attempted to access
the Link. On the facts before us, and in light of our precedents,
we agree that the magistrate had a substantial basis for
concluding that there was. Our decision fits comfortably within
the body of case law concerning staleness in the context of child
pornography. See, e.g., United States v. Morales-Aldahondo,
524 F.3d 115, 119 (1st Cir. 2008) (rejecting defendant’s
argument that three-year gap between date of download and
warrant application rendered information stale, in light of
testimony from the “government’s knowledgeable witness” that
33
child pornography collectors “do not quickly dispose of their
cache”); United States v. Irving, 452 F.3d 110, 125 (2d Cir.
2006) (holding that twenty-two month old information in
affidavit in support of warrant to search for child pornography
was not stale); United States v. Lemon, 590 F.3d 612, 615-16
(8th Cir. 2010) (upholding probable cause determination despite
eighteen-month gap between the warrant application and the
incident described in the affidavit that suggested possession of
child pornography); United States v. Lacy, 119 F.3d 742, 745
(9th Cir. 1997) (rejecting staleness claim in child pornography
case involving ten-month gap); United States v. Terry, 522 F.3d
645, 650 n.2 (6th Cir. 2008) (upholding probable cause in child
pornography case involving a five-month gap).
Vosburgh claims that Zimmerman, in which we held that
a search warrant for pornography lacked probable cause,
supports his argument that the information in Agent Desy’s
affidavit was stale. In Zimmerman, police obtained a warrant to
search the defendant’s home for adult and child pornography,
and found several images of the latter.17 277 F.3d at 429. The
warrant application contained no information suggesting that
Zimmerman possessed child pornography in his home, and only
one piece of information suggesting that adult pornography
would be found at the home: a report that six to ten months
earlier, a video clip of adult pornography was shown to minors
17
Officers undertook the search for adult pornography
pursuant to allegations that Zimmerman was criminally liable
under Pennsylvania law for sexually abusing children and
corrupting a minor. Zimmerman, 277 F.3d at 431.
34
there. Id. We concluded that there was no probable cause to
search for child pornography, because there was no information
suggesting that there was ever child pornography in the home.
Indeed, the government conceded as much. Id. at 432. We
further held that there was no probable cause to search for adult
pornography either, because the only piece of information
suggesting that pornography could be found at the home – the
report about the video clip that was shown to minors – was stale.
Id. at 433-34.
We cannot agree that Zimmerman controls this case.
Initially, we note that the four-month gap at issue here is shorter
than the six-month gap at issue in Zimmerman. Recognizing
that staleness is about more than simply counting days, however,
we note another important distinguishing fact. In Zimmerman,
we acknowledged that child pornography collectors hoard and
protect their materials closely, but we also noted that there was
no information whatsoever in the affidavit to suggest that
Zimmerman was a child pornography collector. The affidavit
only asserted that Zimmerman had viewed adult pornography in
his home. Therefore, the hoarding presumption applicable to
child pornography collectors was inapposite, and nowhere did
the affidavit address “whether adult pornography is typically
retained” in the same manner as child pornography. Id. at 435
(emphasis added). Largely for that reason, we held that the six-
month delay rendered the affidavit’s information stale. The case
before us is different. As we have explained, there was ample
information to suggest that Vosburgh could be a collector of
child pornography. Therefore, unlike in Zimmerman, the
probable cause analysis here must account for the accepted fact
that child pornography collectors tend to hoard their materials
35
for long periods of time. 18 See Shields, 458 F.3d at 279 n.7;
Harvey, 2 F.3d at 1322-23.
In summary, we hold that the search warrant was
supported by probable cause. The IP address connected to a
criminal attempt to access child pornography was fairly
traceable to Vosburgh’s apartment, and the information in the
warrant application describing that attempt was not stale.
Accordingly, the District Court did not err by denying
Vosburgh’s motion to suppress.
18
There is another distinction between this case and
Zimmerman which, although not directly relevant to staleness,
demonstrates why the probable cause showing here was stronger
than the showing in Zimmerman. In Zimmerman, we
emphasized that there was no information suggesting that the
defendant had ever possessed child pornography in his home.
277 F.3d at 432. Furthermore, there was no indication that even
the single pornographic video clip referenced in the warrant
application was ever located at the defendant’s home. There
was no indication that Zimmerman had ever downloaded the
clip; it could just as easily have been “located in cyberspace.”
Id. at 435. In other words, nothing in the warrant application
established any nexus between the pornography and the
residence to be searched. Here, by contrast, the warrant
application described Vosburgh’s multiple attempts to download
the Link, and explained why, based on Comcast’s records, there
was reason to believe those attempts originated from
Vosburgh’s apartment.
36
IV. Constructive Amendment and Variance
Vosburgh’s next claim is that the government
impermissibly changed its theory of prosecution during closing
argument. The result, he maintains, was either a constructive
amendment of the superseding indictment or a prejudicial
variance requiring a new trial.
A. Standard of Review
We exercise plenary review over properly preserved
claims of constructive amendment or variance. United States v.
Daraio, 445 F.3d 253, 259 (3d Cir. 2006). Vosburgh, however,
raised these claims for the first time in his post-trial motion.
Therefore, we will review for plain error only.19 See United
States v. Tiller, 302 F.3d 98, 105 (3d Cir. 2002) (applying plain
error review where the defendant failed to object at trial to the
substance of the government’s closing argument). See also
United States v. Brandao, 539 F.3d 44, 57 (1st Cir. 2008)
19
For Vosburgh to succeed under this standard, he must
establish error that was plain and affected his substantial rights.
United States v. Vazquez-Lebron, 582 F.3d 443, 446 (3d Cir.
2009). To show that an error affected his substantial rights, he
must show that the error was “prejudicial,” that is, that it
“affected the outcome of the district court proceedings.” Id. “If
these requirements are met, we may, at our discretion, grant
relief . . . if the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id. (internal citations
and quotations omitted).
37
(applying plain error review when constructive amendment was
first raised in the district court in an unsuccessful post-trial
motion, and describing that claim as an “unpreserved
objection”); United States v. Hughes, 213 F.3d 323, 328 n.7 (7th
Cir. 2000) (noting that even though defendant had raised a claim
of constructive amendment in a post-trial motion for a new trial,
because he did not raise the objection at trial the court would
review only for plain error), vacated on other grounds, 531 U.S.
975 (2000).
B. Analysis
The Fifth Amendment provides that “[n]o person shall be
held to answer for a capital, or otherwise infamous crime, unless
on a presentment or indictment of a Grand Jury[.]” U.S. Const.
amend. V. Because of this constitutional guarantee, “a court
cannot permit a defendant to be tried on charges that are not
made in the indictment against him.” Stirone v. United States,
361 U.S. 212, 217 (1960). From this rule comes the general
prohibition against constructive amendments. See United States
v. Navarro, 145 F.3d 580, 585 (3d Cir. 1998) (stating that a
constructive amendment deprives a defendant of his Fifth
Amendment right “to be tried only on charges presented in an
indictment returned by a grand jury” (quoting United States v.
Miller, 471 U.S. 130, 140 (1985))).
“An indictment is constructively amended when, in the
absence of a formal amendment, the evidence and jury
instructions at trial modify essential terms of the charged offense
in such a way that there is a substantial likelihood that the jury
may have convicted the defendant for an offense differing from
38
the offense the indictment returned by the grand jury actually
charged.” Daraio, 445 F.3d at 259-60. An indictment can be
constructively amended through “evidence, arguments, or the
district court’s jury instructions,” if they “effectively amend the
indictment by broadening the possible bases for conviction from
that which appeared in the indictment.” United States v. McKee,
506 F.3d 225, 229 (3d Cir. 2007) (quoting United States v. Lee,
359 F.3d 194, 208 (3d Cir. 2004)). When considering a claim
of constructive amendment, the “key inquiry is whether the
defendant was convicted of the same conduct for which he was
indicted.” Daraio, 445 F.3d at 260 (quoting United States v.
Robles-Vertiz, 155 F.3d 725, 729 (5th Cir. 1998)). If a
defendant is convicted of the same offense that was charged in
the indictment, there is no constructive amendment. United
States v. Patterson, 348 F.3d 218, 227 (7th Cir. 2003).
Variances and constructive amendments are similar in
that both involve “variations between the charges in an
indictment and the evidence at trial.” Daraio, 445 F.3d at 259.
A variance occurs “where the charging terms of the indictment
are not changed but when the evidence at the trial proves facts
materially different from those alleged in the indictment.” Id.
Not all variances constitute reversible error. A variance
“result[s] in a reversible error only if it is likely to have
surprised or has otherwise prejudiced the defense.” Id. at 262.
To demonstrate prejudice from a variance, the defendant must
show “that the variance prejudiced some substantial right.” Id.
A variance that sufficiently informs the defendant of the charges
against him and allows him to prepare his defense without being
misled or surprised at trial does not prejudice the defendant’s
39
substantial rights.20 Id. Constructive amendments, by contrast,
are “per se reversible under harmless error review, [and] are
presumptively prejudicial under plain error review.” United
States v. Syme, 276 F.3d 131, 136 (3d Cir. 2002).
Vosburgh argues that the government changed its theory
of prosecution as to which “visual depictions” of child
pornography Vosburgh unlawfully possessed. Count I of the
indictment charged that Vosburgh “knowingly possessed one
external hard drive that contained visual depictions” of child
pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), “on or
about February 27, 2007.” (A. 45.) Vosburgh’s arguments rest
on his interpretation of the statutory term “visual depiction.”
The relevant definition states that a “visual depiction includes
undeveloped film and videotape, [or] data stored on computer
disk or by electronic means which is capable of conversion into
20
Although variances and constructive amendments are
similar errors, the rules against each serve different purposes
and derive from different constitutional provisions. The rule
against constructive amendments arises under the Fifth
Amendment, and protects the “constitutionally guaranteed role
of the grand jury.” Daraio, 445 F.3d at 261. The rule against
prejudicial variances exists to ensure “the fairness of the trial
and the protection of the defendant’s right to notice of the
charges against her and her opportunity to be heard.” Id. Thus,
“the variance rule, to the extent that it is constitutionally
required, is more of a due process rule than is the flat fifth
amendment prohibition against being tried on an indictment
which a grand jury never returned.” Id. at 261-62.
40
a visual image . . . .” 18 U.S.C. § 2256(5).
Vosburgh argues that a “visual depiction” is defined, not
as a particular image, but as the collection of bytes that is
“capable of conversion” into that image. Id. (emphasis added).
On that basis, he distinguishes the pornographic thumbnails in
the thumbs.db file from the full-sized .jpegs of those same
images that once existed in the jap111 folder. He claims that
although the thumbs.db images and the full-sized .jpegs
possessed on February 22, 2007 are the same pictures of naked
children, those pictures are two different “visual depictions”
because each is generated by the computer’s conversion of a
distinct collection of bytes of data.
According to Vosburgh, he was charged only with
possession of the thumbnails in the thumbs.db file, not
possession of the .jpegs whose earlier existence was evidenced
by those thumbnails. As support for this claim, he cites the
government’s response to his pretrial request for a bill of
particulars. There, the government stated that it had “identified
for defense counsel the two images found on defendant’s
external hard drive that comprise the charges for the possession
of child pornography.” Seizing on this reference to the “two
images found on defendant’s external hard drive,” Vosburgh
argues that he went to trial on Count I believing that he was
charged only of knowingly possessing the thumbnails in
thumbs.db. He contends that after the trial evidence proved that
he could not have knowingly possessed the thumbs.db versions
of Exhibits 14 and 15, the government realized that it would not
be able to convict him based on his possession of those
thumbnails alone. Therefore, it changed course at closing
41
argument: no longer was Vosburgh accused of possessing the
thumbs.db images. Instead, he was accused of knowingly
possessing, on or around February 22, the full-sized .jpeg
versions of Exhibits 14 and 15, with his possession of the
pornographic-but-hidden thumbs.db miniatures on February 27
merely serving as evidence of his knowing possession of those
full-sized pictures approximately five days earlier. As a result,
Vosburgh claims, the prosecution “invited conviction for
something the indictment did not charge” and thereby
constructively amended the indictment. In the alternative, he
argues that this inconsistency created a prejudicial variance,
since he was “misled [and] surprised at trial” about the exact
images that he was on trial for possessing. Daraio, 445 F.3d at
262.21
The government argues that there was neither a
constructive amendment nor a prejudicial variance. It maintains
that its theory of prosecution was consistent from start to finish,
and specifically contends that Count I did not specify whether
the “visual depictions” were the thumbnails in the thumbs.db
file or the previously-existing, full-sized .jpegs. Rather, the
government argues, Count I notified Vosburgh generally about
the illegal “images” he was charged with possessing, and the
specific date of that possession was proved through Price’s
testimony at trial.
21
Vosburgh does not argue for reversal on the grounds
that the superseding indictment materially misidentified the
relevant date of possession.
42
We are confident that there was no constructive
amendment of the indictment. The statute under which
Vosburgh was charged, 18 U.S.C. § 2252(a)(4)(B), does not
criminalize the knowing possession of “visual depictions” of
child pornography. It criminalizes knowing possession of
“books, magazines, periodicals, films, video tapes, or other
matter which contain any visual depiction” of child
pornography. Id. (emphasis added). Accordingly, in Count I of
the indictment, Vosburgh is charged, not with possession of any
one particular “visual depiction” of child pornography, but with
possession of “one external hard drive” (what § 2252(a)(4)(B)
calls “other matter”) that contained visual depictions of child
pornography, on or about February 27, 2007. Assuming without
deciding that Vosburgh is correct that the thumbs.db images of
child pornography and the corresponding full-sized pictures are
different “visual depictions” within the meaning of the statute,22
22
Vosburgh’s interpretation of the statutory text is
sensible, but it does not account for the use of the word
“includes.” See 18 U.S.C. § 2256(5) (a visual depiction
“includes . . . data stored on computer disk . . . which is capable
of conversion into a visual image”) (emphasis added). It could
be that the statutory language Vosburgh relies upon was not
intended to be an exhaustive definition of “visual depiction,” but
only to make clear that, in addition to the ordinary meaning of
“visual depiction,” the statute also encompasses matter that
might not, in the ordinary sense of the term, be thought of as a
visual depiction of an image – such as data stored on a hard
drive that could not be viewed without conversion into an image
by a computer. Under this interpretation of the term, the
43
the fact remains that both of those “visual depictions” were
depictions of the same underlying images, located on the same
external hard drive. The indictment, when read in tandem with
the government’s response to Vosburgh’s request for a bill of
particulars, unmistakably and correctly identified the relevant
hard drive and images. At most, the government’s response
imprecisely identified the exact “visual depictions”– essentially,
which copies of the pornographic pictures on the hard drive –
were at issue. While the line between variances and
constructive amendments is not easily drawn, Daraio, 445 F.3d
at 261, we believe that this error would not have created a
constructive amendment of the indictment, because it would not
modify “the elements of the crime charged.” United States v.
Castro, 776 F.2d 1118, 1122 (3d Cir. 1985) (quoting United
States v. Somers, 496 F.2d 723, 744 (3d Cir. 1974)).
It would be more accurate to say that any error present
here created a variance. A variance occurs when the evidence
at trial “proves facts materially different from those alleged in
the indictment.” McKee, 506 F.3d at 231 n.7. If the thumbs.db
thumbs.db pornographic images and the full-sized originals
might be considered the same “visual depictions,” since they
are, for all intents and purposes, the same pictures. In that case,
there would be no inconsistency between the indictment and the
trial evidence. The government does not advance this argument;
in fact, it does little to engage Vosburgh’s statutory argument at
all. Because it does not alter our disposition of the case, we will
proceed on the assumption that Vosburgh’s interpretation of the
statutory term is correct.
44
and .jpeg images were in fact different “visual depictions” of
pornography, then the evidence at trial arguably proved facts
materially different from those alleged in the government’s
response to Vosburgh’s request for a bill of particulars. The
issue then is whether that variance “surprised or otherwise . . .
prejudiced the defense,” Daraio, 445 F.3d at 262, so as to
require reversal. In our view, it did not.
The government’s response to Vosburgh’s request for a
bill of particulars appears to conflate the terms “images” and
“visual depictions,” and in that sense may be “below the level of
clarity to which prosecutors should aspire.” Syme, 276 F.3d at
151. But any notion that Vosburgh was “surprised at trial” by
the prior possession theory, Daraio, 445 F.3d at 262, is flatly
contradicted by the record. Vosburgh did not raise his
constructive amendment and variance arguments until his post-
trial motion for a judgment of acquittal. If he really had been
surprised by the government’s change of course during closing
argument, we think it likely that he would have said something
at trial. He did not. In fact, there is little to no indication in the
record that Vosburgh was surprised at trial, and much evidence
that he was not.
First, in her pre-trial report, Vosburgh’s expert Dr.
Mercuri concluded that “there is absolutely no evidence that the
only two files that [the] Prosecution claims are child
pornography in this case [i.e., Exhibits 14 and 15] . . . ever
existed as individual .jpg files at any time on the Defendant’s
hard drive. Additional findings are as follows . . . .” The
reference to whether Vosburgh possessed “.jpg” files shows that
the defense at least contemplated a theory of prosecution other
45
than one based on possession of the thumbs.db file.
Second, the prosecutor raised the prior possession theory
in her opening statement. She said:
“You will also hear evidence that [Exhibits 14
and 15] were found in part of the computer
external hard drives that a user may not know it
existed called the thumb[s].db directory. But
what you will also hear is that in order to get
there, the defendant had to view these – has to
store them in a file folder called japs111, had to
view them in a thumbnail view, and it
automatically got there. So it shows that he had
possession of these images.”
Vosburgh’s attorney did not object to this statement as any sort
of surprise or ambush, further evidencing his lack of surprise.
Moreover, this statement disproves Vosburgh’s claim that the
government raised the prior possession theory for the first time
at closing.
Next, we note that the government’s expert Justin Price
testified extensively in support of the prior possession theory.
For example, the following exchanges occurred between Price
and the prosecutor during direct examination:
Q: So if you have a photo, like we do in this case,
from the thumbs.db file, can you say with
certainty that that original photo once existed on
the hard drive?
46
A: Yes. There is no other way for that
photograph to be inside the thumbs.db file
without it being within [the jap111] folder.
*****
A: . . . Again, this thumbs.db file was just specific
to that one folder. So you can tell with reasonable
certainty that those thumbnails that were
recovered within this file were once in that
directory at some point in time.
Q: So what happened, if you know, to the original
image in the folder jap111 computer?
A: We don’t know what happened to it, because
it was not recovered.
*****
Q: Now . . . can you say when the image of the
one nude girl [Exhibit 14] . . . . entered the
thumbs.db file?
A: Yes. According to the date and time attributes
it was added or modified into that thumbs.db file
on February 22nd of ’07.
Q: So what does that mean? What happened on
February 22, 2007?
47
A: On February 22nd, basically the user went into
the folder, jap111, clicked on view, and showed
these pictures in thumbnail view. And once that
is generated, the thumbnails are generated, those
pictures are added into this particular file.
******
Q: Let’s look at the next one. Image of four nude
girls, Exhibit 15. Where was this image found?
A: This picture was found in the exact same
thumbs.db files as in the previous exhibit.
Q: And when was it added to the thumbs.db file?
A: Again, on the same date and time, February
22nd of 2007.
Q: So, like that last image, can you say with
certainty whether this image once existed in its
original form on the external hard drive?
A: It must be there in order for the thumbnail
picture to be generated from the computer system.
*****
Q: So the thumbs.db was created February 21st.
48
A: 21st.
Q: And Exhibit 14 and 15, the images, the
thumbnail images of the girls, when [were those]
created?
A: They were last modified on the 22nd which is
the date that it captures.
Q: So separate days?
A: That is correct.
Q: What does that mean?
A: Well, what it would show you is the files of
Exhibit 14 and 15 had to be viewed either on or
after the thumbs.db was created on the 21st.
Q: Now, you testified that to see one of these
thumbnails in the thumbs.db you need special
software?
A: To view the files within the thumbs.db, yes.
Q: Would you need that special software to view
the originals?
A: No, you would not.
Each of these exchanges developed testimony in support of the
49
prior possession theory. Vosburgh’s lawyer ably cross-
examined Price about his testimony, but never objected to it as
evidence of a crime that was beyond the scope of the indictment.
She likewise did not object when the government argued prior
possession during closing argument.23
Finally, and most tellingly, we note that Vosburgh’s
expert, Dr. Mercuri, came to trial prepared to refute the prior
possession theory. She conducted a lengthy, in-court computer
demonstration attempting to show that a person can possess a
particular image in a thumbs.db file without ever having
possessed a full-sized .jpeg of that same image on his hard drive.
See Section II.C.5, supra. We think the fact that Vosburgh’s
expert came to trial prepared with a powerful demonstration
contradicting the government’s theory of prosecution shows that
Vosburgh knew exactly what that theory was well before closing
argument.
In sum, there is no indication in the trial record that
Vosburgh could have been, or was, unfairly surprised when the
government advanced the prior possession theory during closing
argument. A variance is only grounds for reversal if it is
prejudicial, and it is only prejudicial if it “prejudiced some
substantial right.” Daraio, 445 F.3d at 262. “A variance does
not prejudice a defendant’s substantial rights . . . if the
indictment sufficiently informs the defendant of the charges
23
We note the absence of objection to show that
Vosburgh was not surprised at trial, not to imply any
ineffectiveness on the part of Vosburgh’s counsel.
50
against him so that he may prepare his defense and not be misled
or surprised at trial[.]” Id. Here, even assuming that there was
a variance between the indictment and the evidence, the record
demonstrates that Vosburgh prepared a strong defense that
belies any claim of prejudice or surprise at trial.24 His request
for acquittal or a new trial on this basis will therefore be denied.
V. Sufficiency of the Evidence
Vosburgh’s next argument is that there was insufficient
evidence to convict him on Count I because the prior possession
theory was definitively disproved by Dr. Mercuri’s in-court
demonstration. This argument lacks merit and does not require
lengthy discussion. When evaluating a sufficiency of the
evidence challenge, “we must view the evidence in the light
most favorable to the government and must sustain the jury’s
verdict if a reasonable jury believing the government’s
evidence” could find guilt beyond a reasonable doubt. Syme,
276 F.3d at 156. We must also recognize that the jury is entitled
to draw reasonable inferences from the trial evidence. United
States v. Starnes, 583 F.3d 196, 212-13 (3d Cir. 2009).
Price testified that Vosburgh viewed the jap111 folder in
thumbnail view on February 22nd, and that Exhibits 14 and 15
were among the pictures in the folder at that time. The jury
could have reasonably inferred from this testimony that
24
Vosburgh claims that he was surprised at trial, but he
never explains what he would have done differently had he been
accurately apprised of the charges against him.
51
Vosburgh not only possessed, but knowingly possessed, those
pictures. Vosburgh’s expert Dr. Mercuri advanced several
alternative theories that, if believed, also could have explained
the presence of the pornographic images in the thumbs.db file.
The most prominent of those was the theory that the images in
Exhibits 14 and 15 migrated onto Vosburgh’s computer as part
of the hidden thumbs.db file in the jap111 folder, even though
the full-sized .jpegs of those images never did. This was a
classic battle of the experts. While a reasonable jury could have
accepted Vosburgh’s explanation of the evidence, there was
certainly sufficient evidence to support the jury’s choice to
believe the government instead.
VI. Evidentiary Issues at Trial
A. Admission of Child Erotica
Vosburgh contends that the District Court erred by
allowing the government to introduce thirty of the Loli-chan
pictures found on his external hard drive. He argues that the
probative value of those pictures was substantially outweighed
by the danger of unfair prejudice, and therefore they should have
been excluded under Rule 403 of the Federal Rules of Evidence.
Vosburgh emphasizes that the Loli-chan images, while vulgar,
were not illegal, and claims that they had no tendency to prove
any of the elements of the charges against him. He argues that
the admission of the pictures inflamed the jury against him
based on his “bad taste” in “sexually-tinged humor.”
Rule 403 permits the District Court to exclude relevant
evidence if “its probative value is substantially outweighed by
52
the danger of unfair prejudice[.]” Fed. R. Evid. 403. We review
the District Court’s Rule 403 ruling for an abuse of discretion.
United States v. Jones, 566 F.3d 353, 362 (3d Cir. 2009). “A
district court has broad discretion to determine the admissibility
of relevant evidence in response to an objection under Rule
403.” United States v. Balter, 91 F.3d 427, 442 (3d Cir. 1996).
Rule 403 is a balancing test, and “[l]ike any balancing test, the
Rule 403 standard is inexact, requiring sensitivity on the part of
the trial court to the subtleties of the particular situation, and
considerable deference on the part of the reviewing court to the
hands-on judgment of the trial judge.” United States v.
Guerrero, 803 F.2d 783, 785 (3d Cir. 1986). We will not
disturb the District Court’s ruling unless it was “arbitrary or
irrational.” United States v. Kellogg, 510 F.3d 188, 197 (3d Cir.
2007) (quoting United States v. Universal Rehab. Servs. (PA),
Inc., 205 F.3d 657, 665 (3d Cir. 2000) (en banc)).
The ruling before us was not an abuse of discretion. The
probative value of the Loli-chan pictures was not insignificant.
Possession of those pictures suggested that Vosburgh harbored
a sexual interest in children, and tended to disprove any
argument that he unknowingly possessed Exhibits 14 and 15, or
attempted to access the Link by accident. See United States v.
Dornhofer, 859 F.2d 1195, 1199 (4th Cir. 1988) (upholding
admission of child erotica evidence against Rule 403 challenge
because possession of such material made defendant’s claim that
he ordered child pornography by mistake less probable).
Meanwhile, the risk of unfair prejudice was low. The
District Court specifically instructed the jury that Vosburgh was
not on trial for possessing the Loli-chan pictures, and that those
53
pictures were not illegal. This limiting instruction minimized
any risk of unfair prejudice. See, e.g., United States v. Givan,
320 F.3d 452, 461-62 (3d Cir. 2003) (noting that the court’s
instruction about the limited purpose for which the jury could
consider evidence of defendant’s prior convictions “minimiz[ed]
any prejudicial effect” of that evidence); Guerrero, 803 F.2d at
787 (upholding admission of threat evidence against defendant’s
Rule 403 challenge because the trial court’s instructions would
have “limit[ed] any possible prejudice”). Under these
circumstances, and in light of the “broad discretion” we afford
trial courts under Rule 403, Balter, 91 F.3d at 442, the District
Court did not abuse its discretion by permitting the government
to introduce some of the Loli-chan pictures found on
Vosburgh’s hard drive.
B. Admission of Testimony Concerning the Age of
the Girl in Exhibit 14
Vosburgh’s final claim is that the District Court erred by
admitting hearsay testimony concerning the age of the girl
depicted in Exhibit 14. Whether testimony is hearsay is a
question of law over which we exercise plenary review. United
States v. Lopez, 340 F.3d 169, 175 (3d Cir. 2003). To the extent
the District Court’s ruling was based on a permissible
interpretation of the Federal Rules of Evidence, however, we
review only for an abuse of discretion. United States v. Saada,
212 F.3d 210, 220 (3d Cir. 2000).
To convict Vosburgh on Count I, the government had to
prove that at least one of the images on Vosburgh’s hard drive
depicted “minor[s] engaging in sexually explicit conduct.” 18
54
U.S.C. § 2252(a)(4)(B). To that end, the government sought to
prove that the naked female in Exhibit 14 was a minor.25 It did
not do so by introducing her birth certificate or some similar
record. Instead, it sought to do so through the testimony of
retired Postal Inspector Clinton.
Clinton testified that he recognized the girl in Exhibit 14
because he had conducted a search of her house and arrested her
adoptive father as part of his work on an anti-child pornography
task force. He was asked whether he knew when the girl was
born. Vosburgh’s lawyer objected on hearsay grounds. From
there, the Court took over questioning and the following
exchange occurred:
Q [The Court]: Do you know the date of birth of
that person?
A: Yes, I do, Your Honor.
Q: And how do you know it?
A: From records we obtained from the –
during the search and from the adoption
agency.
Q: From Vital Statistics?
25
A “minor” is any person less than 18 years old. 18
U.S.C. § 2256(1).
55
A: Yes, sir.
Q: Very well.
Q [Prosecutor]: Do you know the date that girl
was born?
A: Yes, I do.
Q: What is that?
A: August 25th of 1992.
Apparently, the District Court viewed Clinton’s testimony as
falling within the “vital statistics” hearsay exception of Rule
803(9), and for that reason permitted Clinton to testify about the
girl’s date of birth.26 Clinton went on to testify that the girl was
ten and a half years old at the time he met her and initiated her
removal from her adoptive father’s home.
26
Rule 803 provides that “[t]he following are not
excluded by the hearsay rule, even though the declarant is
available as a witness: . . . .
(9) Records of Vital Statistics.
Records or data compilations, in
any form, of births, fetal deaths,
deaths, or marriages, if the report
thereof was made to a public office
pursuant to requirements of law.
56
Vosburgh argues that Clinton’s testimony about what the
“records” said about the girl’s date of birth was impermissible
hearsay. He concedes that under Rule 803(9), records of vital
statistics about the girl’s age would not have been excluded by
the hearsay rule, but points out that the government never
introduced any birth or adoption records into the trial record. It
offered only Clinton’s testimony about what he learned from
those records. Therefore, Vosburgh argues, Clinton’s testimony
contained a layer of hearsay unaccounted for by the Rules of
Evidence, and was inadmissible. Vosburgh contends that this
error was not harmless because without Clinton’s testimony, the
jury could not have assigned an age to the female in Exhibit 14.
The government agrees that Clinton’s testimony about the girl’s
date of birth was hearsay.27 Its response is twofold. First, it
27
The issue may not be as simple as the parties portray
it. Testimony that conveys a witness’s personal knowledge
about a matter is not hearsay. See, e.g., United States v.
Simmons, 773 F.2d 1455, 1460-61 (4th Cir. 1985) (concluding
that testimony concerning the out-of-state location of a business
was not hearsay because it reflected the witness’s personal
knowledge that the business in question had never had a
manufacturing plant within the state); United States v. Steel, 759
F.2d 706, 712 (9th Cir. 1985) (concluding that testimony
concerning the ownership of a vehicle was not hearsay because
the testimony stemmed from the witness’s “personal
knowledge”). It can be difficult to distinguish hearsay –
testimony that recounts what was spoken by an out-of-court
declarant or written on an out-of-court document – from
personal knowledge, because “[m]ost knowledge has its roots in
57
contends that the District Court’s error was inconsequential,
because Clinton’s testimony about the girl’s age would have
been admissible under the residual hearsay exception of FRE
807. This argument is plainly wrong. The party invoking the
Rule 807 exception must give pretrial notice of its intention to
do so. See Fed. R. Evid. 807 (stating in part that “a statement
may not be admitted under this exception unless the proponent
of it makes [it] known to the adverse party sufficiently in
advance of the trial . . . to provide the adverse party with a fair
opportunity to prepare to meet it[.]”). Here, the government did
not invoke Rule 807 at trial, nor could it have, because it never
provided the requisite pre-trial notice.
The government’s alternative argument is that the
District Court’s error was harmless. The test for harmless error
is whether it is “highly probable that the error did not contribute
to the judgment.” United States v. Dispoz-O-Plastics, Inc., 172
hearsay.” Robinson v. Watts Detective Agency, 685 F.2d 729,
739 (1st Cir. 1982). See also Agfa-Gevaert, A.G. v. A.B. Dick
Co., 879 F.2d 1518, 1523 (7th Cir. 1989) (“[k]nowledge
acquired through others may still be personal knowledge”).
Arguably, Clinton’s testimony about the female’s date of birth
was not hearsay, but an expression of a discrete historical fact
about which Clinton had acquired personal knowledge through
his review of “vital statistics.” Because both parties take the
position that the testimony was hearsay, our analysis assumes
that it was. The difficult line-drawing that might have been
required if the government had not conceded this point can be
left for another day.
58
F.3d 275, 286 (3d Cir. 1999) (quoting United States v.
Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 1999)). This “[h]igh
probability” requires that the court possess a “sure conviction
that the error did not prejudice the defendant.” Id. We hold that
“sure conviction” in this case. Vosburgh was charged under a
statute criminalizing the possession of an external hard drive
containing “any” visual depiction of child pornography. See 18
U.S.C. § 2252(a)(4)(B). Even if there were a basis for doubting
that the female in Exhibit 14 was a minor, there was and is no
dispute about whether the naked females in Exhibit 15 were.
The jury could have convicted Vosburgh solely for possession
of a hard drive containing the image that became Exhibit 15,
regardless of whether Exhibit 14 depicted a “minor” in a
pornographic pose.
Furthermore, assuming arguendo that the jury convicted
on the basis of Exhibit 14, it is not the case, as Vosburgh claims,
that the jury only could have determined that the female
depicted therein was a minor based on Clinton’s testimony as to
her date of birth. There was enough other evidence that the
female in Exhibit 14 was a minor that we can hold a sure
conviction that Vosburgh was not prejudiced by Clinton’s
hearsay testimony. First, the jury viewed Exhibit 14 for itself.
See United States v. Katz, 178 F.3d 368, 373 (5th Cir. 1999)
(observing that in many cases, it will be “possible for the fact
finder to decide the issue of age in a child pornography case
without hearing any expert testimony”). Second, Clinton
offered a great deal of other testimony that established nearly
conclusively that the female in Exhibit 14 was a minor, and
Vosburgh offered none to the contrary. Clinton described the
female that he recognized in Exhibit 14 as a “young girl” several
59
times. He testified that when he arrived at her house, she
emerged from the house holding her adoptive father’s hand, and
that after he arrested the father he took the girl into protective
custody. Both of those facts suggested that the female in
question was a minor. In addition, Clinton testified that he
encountered the female in Exhibit 14 through his leadership of
a task force investigating the production and distribution of
child pornography. In light of these facts, we are confident that
any error in admitting Clinton’s hearsay testimony about the
precise date of birth of the female in Exhibit 14 did not
prejudice Vosburgh. We think it is highly probable, indeed
virtually certain, that even without that testimony the jury would
have concluded that the female in Exhibit 14 was a minor.
VII. Conclusion
The judgment of conviction will be affirmed.
60
United States v. Roderick S. Vosburgh, No. 08-4702
Barry, Circuit Judge, Concurring.
It is not disputed that when it applied for the search warrant,
the government had no idea, much less evidence, that Vosburgh
had ever possessed child pornography. All it knew was that during
a two-minute period of time on one day in Vosburgh’s life, he
attempted to access the Link, and was unsuccessful. That’s it.
Paltry as that was, I agree with my colleagues that it was
nonetheless “fairly probable” that evidence of that attempt would
be found in Vosburgh’s apartment, that the information in the
warrant application describing that attempt was not stale, and that
Vosburgh’s motion to suppress was properly denied.
I write, however, to note my disappointment that, given
how little the government knew about Vosburgh, it somehow
believed it appropriate to spend the first fifteen pages of the
eighteen-page affidavit supporting the warrant application with
what it conceded was “boilerplate” – boilerplate which anything
but subtly suggested that Vosburgh, whose name was never
mentioned, was someone the government had no reason to believe
that he was – a “collector” of child pornography, a child
pornographer, and perhaps even a pedophile. Moreover, the
boilerplate went into considerable detail describing, for example,
the “collection” of the “collector” as revealing his “private sexual
desires and intent” and representing his “most cherished sexual
fantasies involving children,” and into graphic detail describing
the numerous ways in which those fantasies can be turned into
reality, including the sexual gratification a collector may derive
from actual physical contact with children.
The only purpose of those many pages of boilerplate was,
at least in my view, to assure that the warrant issued, which
assuredly it did. Indeed, the affidavit apparently convinced my
colleagues that, although there was not even an allegation that
Vosburgh ever possessed child pornography, there was reason to
believe he was nonetheless a “collector” or, at least, he “could be.”
(Slip Op. at 35.)
1
I have nothing against boilerplate per se. But I am deeply
concerned when information and innuendo as serious as that seen
here is used so inappropriately. Surely the government wants to
win, but it must never forget its obligation to win fairly.
2