United States v. Rogers

United States Court of Appeals
For the First Circuit

No. 12-1639

UNITED STATES OF AMERICA,

Appellee,

v.

BRIAN K. ROGERS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Lynch, Chief Judge,
Stahl and Thompson, Circuit Judges.

Robert C. Andrews for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief,
for appellee.

April 30, 2013
 STAHL, Circuit Judge. Brian Rogers was convicted by a

jury in the District of Maine of possessing child pornography in

violation of 18 U.S.C. § 2252A(a)(5)(B). Rogers now appeals his

conviction, arguing that the government did not prove that he

knowingly possessed the child pornography that was found on a

laptop he sold to a pawn shop. Rogers also challenges the district

court's award of $3,150 in restitution to a victim depicted in the

pornography; he asserts that the government failed to establish a

causal connection between his conduct and any harm to the victim.

After careful consideration, we affirm both the conviction and the

restitution award.

I. Facts & Background

The following facts are drawn from the trial record and,

in light of Rogers's challenge to the sufficiency of the evidence

supporting his conviction, are presented in the light most

favorable to the jury verdict. United States v. Valerio, 676 F.3d

237, 240-41 (1st Cir. 2012).

On July 15, 2008, Rogers's then-wife, Heather Rogers,

sold a laptop computer to Coastal Trading and Pawn in Brunswick,

Maine. Later that day, she returned with Rogers himself, who sold

a second laptop to the store. In keeping with Coastal Trading's

usual practice, the clerk asked for, and received, the passwords to

both laptops, to allow the store's staff to access the computers

and restore them to their factory settings.

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 The next day, Coastal Trading's computer technician began

the process of preparing the second laptop for resale. He turned

it on and entered the password that Rogers had provided. In an

effort to find the program that would restore the laptop to its

factory settings, he looked in the Windows recycle bin. There, he

discovered a video file captioned "My 15-Year Old Sister." This

discovery prompted him to search the laptop for other videos; he

found "quite a few" more. He viewed portions of a few videos and

saw "[y]oung children involved in sexual acts." He immediately

notified the store manager, who called the Brunswick police.

A few days later, Brunswick Detective William Moir

collected the laptop and the associated sales paperwork from

Coastal Trading and took them to the police station. Until Moir

came to collect it, the laptop remained in the store's back room,

and no one accessed it. Moir, who had specialized electronic

forensics training, removed the laptop's hard drive and attached it

to a "write blocker," which allowed him to view the drive's

contents without altering them. After finding some files with

names "indicative of child pornography," he took the drive to the

Maine State Police Computer Crimes Unit for further analysis.

There, he worked with an analyst to copy and review the contents of

the drive. They found both videos and still images of children

engaged in sex acts.

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 Detective Moir soon returned to Coastal Trading and

seized the laptop that Heather Rogers had sold to the store on her

first visit. Nothing of significance was found on that first

computer. Moir then obtained a search warrant for Rogers's home,

which he and other law enforcement officers executed on July 31.

Heather Rogers was there when they arrived; Brian Rogers returned

home during the search. When the officers came upon a desktop

computer and a case containing compact discs, they seized both.

The hard drive of the second laptop -- the one on which

the store employees initially found child pornography -- was

subsequently subjected to a more comprehensive forensic inspection.

Chris Hull, an analyst with the Computer Crimes Unit, used forensic

software to examine the hard drive's contents. He found two user

accounts on the drive: an account called "Mingan" (also designated

"Admin") and a default "guest" account. He also found six child

pornography videos in a "shared" folder associated with the

"Mingan" user account, and still images depicting child pornography

in the "Temporary Internet Files" and "lost files" folders. The

shared folder was created by LimeWire, a peer-to-peer file-sharing

program that Hull found in the recycle bin. The Temporary Internet

Files folder, as Hull testified at trial, stores files from

frequently visited websites that otherwise would have to be loaded

remotely, with the goal of speeding up the user's web browsing

experience.

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 Hull also examined the "index.dat" file, which records

the computer user's activity, whether it be visiting websites or

opening files on the computer itself. The index file reflected

numerous visits to websites like "nymphets-first-time-sex.com"

(which was also bookmarked in the laptop's default web browser,

along with "Natural Lolitas" and "innocent-girl.com."). And Hull

found "cookies" (widely used data packets that allow websites to

recognize returning users1) from various websites, including "son-

porno-schoolgirls," a Yahoo user account called "Brian87_2006," and

the social networking site Myspace (which appeared to be associated

with the same login information as the Yahoo account). Indeed,

Detective Moir found a Myspace page for a user called "Mingan"; one

of the account's three Myspace "friends" was Heather Rogers, Brian

Rogers's wife. As it happens, Hull determined that the password

for the user account "Mingan" on the laptop was "Heather," and the

password hint associated with that account was "My baby."

Additionally, Hull found ten "infections," i.e., malware

programs, on the laptop. To determine whether they might be

responsible for the presence of child pornography, he installed the

same infections on a test machine that replicated the conditions on

the laptop and let them run for a week. No child pornography

appeared on the test machine.

1
See In re Pharmatrak, Inc., 329 F.3d 9, 14 (1st Cir.
2003) (describing cookies).

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 Hull examined the desktop computer seized from Rogers's

home as well. Using the same forensic tools he used on the laptop,

he uncovered child pornography images. These files were located in

unallocated space, indicating that the files had been deleted by a

user but not yet overwritten with new data. He also found two user

accounts on the desktop: "Bunny" and "NEXCOM," the latter of which

was also captioned "Mingan." Associated with the latter account

were internet bookmarks for websites like "LolitasBBS-freeware" and

"nasty-virgins.org."

On October 22, 2008, a grand jury indicted Rogers on one

count of possessing child pornography in violation of 18 U.S.C.

§§ 2252A(a)(5)(B), 2256(8)(A).2 After rulings by both the district

court and this court related to the suppression of certain

statements Rogers made during the search of his house, see United

States v. Rogers, 659 F.3d 74 (1st Cir. 2011), the case went to

trial. The jury, after hearing testimony about all the events

related above, found Rogers guilty. The district court sentenced

Rogers to sixty months' imprisonment and eight years' supervised

release. As discussed in more detail below, the district court

2
Rogers was charged with possessing the child pornography
found on the laptop, but not the images found on the desktop. At
trial, he objected to testimony regarding the desktop computer on
the ground that it was other-bad-acts evidence under Federal Rule
of Evidence 404(b). The district judge allowed the testimony on
the ground that it went to intent, knowledge, or absence of
mistake, see Fed. R. Evid. 404(b)(2), and gave a cautionary
instruction to the jury. Rogers has not renewed his evidentiary
argument on appeal.

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also ordered Rogers to pay $3,150 in restitution to "Vicky," a

woman who was depicted in some of the child pornography materials

found on the laptop.

II. Analysis

A. Sufficiency of the Evidence

A sufficiency-of-the-evidence challenge to a jury's

guilty verdict will not succeed unless no rational jury could have

concluded that the government proved all of the essential elements

of the offense beyond a reasonable doubt. United States v. Green,

698 F.3d 48, 56 (1st Cir. 2012). As noted above, we evaluate the

facts and draw all reasonable inferences in favor of the verdict.

Id. We do not weigh evidence or assess credibility. United States

v. Tavares, 705 F.3d 4, 18 (1st Cir. 2013).

18 U.S.C. § 2252A(a)(5)(B) creates criminal penalties for

any person who "knowingly possesses, or knowingly accesses with

intent to view, any . . . computer disk, or any other material that

contains an image of child pornography" that was produced or

transported in interstate commerce, including via computer. Here,

it is undisputed that the images found on the laptop constituted

child pornography and that the interstate commerce element was

satisfied. Rogers's challenge focuses instead on the question of

knowing possession. To satisfy the statute's knowing-possession

requirement, the government must show that Rogers possessed, and

knew he possessed, child pornography. See United States v.

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X-Citement Video, Inc., 513 U.S. 64, 78 (1994); United States v.

Hilton, 167 F.3d 61, 75 (1st Cir. 1999), disapproved of on other

grounds by Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002).

To begin with, there can be no serious dispute that the

child pornography found on the laptop was downloaded knowingly and

deliberately. The web browser's cookies and indexed history

indicated that someone had used the browser to make numerous visits

to websites related to, or with names indicative of, child

pornography, including "nymphets-first-time-sex.com," "Natural

Lolitas," and "innocent-girl.com." See United States v. Pruitt,

638 F.3d 763, 767 (11th Cir. 2011) (conviction was supported by "a

record of visits to websites with a child-pornography connection");

accord United States v. Ramos, 685 F.3d 120, 132 (2d Cir. 2012);

United States v. Kain, 589 F.3d 945, 949 (8th Cir. 2009). Further,

the discovery of child pornography in the Temporary Internet Files

folder suggests that those images were downloaded when a user

visited websites hosting them. Cf. Kain, 589 F.3d at 948. And, as

the government observes, the fact that a user bookmarked some of

these websites supports the conclusion that they were visited

deliberately. Cf. United States v. Kornhauser, No. 12-135-CR L,

2013 WL 1197751, at *2 (2d Cir. Mar. 26, 2013) (summary

affirmance); United States v. McNealy, 625 F.3d 858, 870 (5th Cir.

2010).

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 To be sure, we must be cognizant of "the prevalence and

sophistication of some computer viruses and hackers that can prey

upon innocent computer users" by placing child pornography on their

machines, but "the specter of spam, viruses, and hackers must not

prevent the conviction of the truly guilty." Pruitt, 638 F.3d at

766-67. Here, Hull's forensic analysis of the computer, which

included running the malware "infections" discovered on the laptop

on a test machine for over a week, all but ruled out the

possibility that the images had been downloaded by a virus without

the user's knowledge. And child pornography (along with a similar

pattern of web browsing) was found on the desktop computer seized

from Rogers's home, further diminishing the possibility that the

presence of the images and videos on the laptop was inadvertent.

Lastly, some of the files were found in the laptop's recycle bin,

suggesting that someone deliberately attempted to delete them (and

thus knew they had been downloaded). See Ramos, 685 F.3d at 132;

United States v. Bass, 411 F.3d 1198, 1202 (10th Cir. 2005). On

this record, there is no real possibility that this case involved

unknowing possession. Cf. Note, Child Pornography, the Internet,

and the Challenge of Updating Statutory Terms, 122 Harv. L. Rev.

2206, 2211-14 (2009) (describing ways that a person could

unintentionally possess or receive child pornography).3

3
There was also no testimony realistically suggesting that
the images could have been downloaded or installed after Rogers
sold the laptop to Coastal Trading. The pawn shop's employees and

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 The only remaining question is whether the government

proved that the person who knowingly possessed the images and

videos was Rogers himself. We think it did. The user account

"Mingan," which was the only user-created account on the laptop,

was strongly associated with Rogers, and child pornography videos

were found in the shared folder associated with that user account.

The password hint for the "Mingan" account was "My baby" and the

password itself was Rogers's wife's name (Heather). Rogers himself

provided this password to Coastal Trading when he sold the laptop,

and has not pointed to evidence suggesting that anyone else knew

it. Further, Detective Moir discovered a Myspace profile named

"Mingan," one of whose Myspace friends was Heather Rogers. The

Myspace profile appeared to share login information with a Yahoo

account that the laptop had been used to access: Brian87_2006.

Brian, of course, is Rogers's name, and he was born in 1987. See

United States v. Boll, 635 F.3d 340, 341 (8th Cir. 2011) (the fact

that a computer was registered to "Terry," the defendant's first

name, supported the conclusion that he knowingly possessed child

pornography found on it); United States v. Koch, 625 F.3d 470, 478

(8th Cir. 2010) (conviction was supported by the fact that "user

all the law enforcement personnel who handled the laptop testified
that the computer was not altered in any way after Rogers left it
at the store. Further, the laptop's operating system indicated
that the child pornography files had been created well before
Rogers sold the computer to Coastal Trading (although, as Rogers
points out, such information is not impervious to manipulation).

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names on both the computer and flash drive [on which child

pornography were found] were variations on [the defendant's] first

name"). The web browser's cookies showed access to the same Yahoo

account, along with visits to the disturbingly named websites

discussed above. The web browser also included a bookmark for the

U.S. Navy's website; Rogers was a member of the Navy at the time of

his arrest.4

In light of all this evidence, and the reasonable

inferences that can be drawn from it, we think the jury's decision

to convict was wholly rational. The evidence amply established

that Rogers possessed and used the laptop, and supported the

reasonable inference that he was the one who searched for and

knowingly downloaded the child pornography. Rogers's suggestions

that someone else somehow downloaded or placed the images and

videos on the laptop are simply not supported by any evidence

adduced at trial. Hull's testimony all but extinguished the

possibility that a virus put the images and videos there, and there

4
Less forceful is the government's suggestion that Rogers
must have been the laptop's user because it contained computer
games with "pugilistic" names like "Dungeons and Dragons" and
"World of Warcraft," which the government says are not "games that
might appeal to a female," i.e., Heather Rogers. As best we can
tell, this argument is simply based on outmoded assumptions about
what sort of entertainment appeals to women. See Nick Breckon,
Nielsen Estimates 400,000+ Female World of Warcraft Players in US,
Shack News (Apr. 8, 2009 2:27 p.m.), http://www.shacknews.com/
article/58076/nielsen-estimates-400000-female-world (last visited
Apr. 25, 2013) (reporting that a Nielsen Company survey found
428,621 female World of Warcraft players in the United States).

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was no suggestion that a third party could have done it after

Rogers sold the laptop. Nor was there any testimony that, before

the computer's sale, anyone other than Brian and Heather Rogers had

access to it (assuming that she even knew the password, which is

certainly possible but is not established by any evidence in the

record). Thus constrained, Rogers is forced to posit that his now-

ex-wife was responsible for the child pornography found on the

laptop, but that assertion finds essentially no support in the

record, and the jury was entitled to dismiss it. Consequently, we

reject Rogers's challenge to the sufficiency of the evidence

supporting his conviction. Cf. United States v. Salva-Morales, 660

F.3d 72, 75 (1st Cir. 2011) (per curiam).

B. Restitution

The district court ordered Rogers to pay $3,150 in

restitution to "Vicky," a woman whose abuse at the hands of her

father at age ten or eleven was depicted in two minutes of video

found on the laptop. The order was made pursuant to 18 U.S.C.

§ 2259, which prescribes a mandatory restitution scheme for victims

of certain crimes, including the possession, transportation, or

distribution of child pornography. The statute calls for

restitution of "the full amount of the victim's losses," including

medical services; therapy or rehabilitation; transportation,

housing, or child care costs; lost income; attorneys' fees and

costs; and "any other losses suffered by the victim as a proximate

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result of the offense." Id. § 2259(b)(1), (3). The "victim" is

"the individual harmed as a result of a commission of a crime."

Id. § 2259(c).

We first considered restitution to a child pornography

victim under § 2259 in United States v. Kearney, 672 F.3d 81 (1st

Cir. 2012), cert. dismissed, 133 S. Ct. 1521 (2013), which also

involved restitution to Vicky.5 In Kearney, we identified three

issues related to the restitution inquiry: (1) whether someone is

a victim of a child pornography offense; (2) what causation

requirement applies to identify the compensable losses suffered by

the victim as a result of the offense; and (3) what amount of

restitution is reasonable. Id. at 93. We held that Vicky was

plainly a victim of Kearney's crime because she was harmed by the

continuing possession and dissemination of child pornography

containing her image, which he perpetuated. Id. at 94. As to

causation, we joined a number of other circuits in applying a

proximate causation standard (although the circuits' applications

of that standard have varied), and found "that the proximate cause

requirement was satisfied here, because Kearney's actions resulted

in identifiable losses as outlined in the expert reports and

Vicky's victim impact statements." Id. at 99-100. Finally, we

upheld the district court's award of $3,800 as reasonable. We

5
Unfortunately, video of Vicky's abuse has been widely
disseminated online, leading to numerous child pornography cases in
which material depicting her has played a role.

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found no error in the district court's decision to base the

restitution award on amounts that Vicky had received in other

cases, and we noted that "the restitution award was small, both in

absolute terms and as a proportion of the total amount of the

restitution request," id. at 101, which came to $226,546.10, id. at

86.

Having sketched the terrain, we turn to the restitution

award in this case. "We review orders of restitution for abuse of

discretion, reviewing legal questions de novo and subsidiary

findings of fact for clear error." Id. at 91. Here, our analysis

is straightforward. As Rogers's counsel acknowledged at oral

argument, Vicky's restitution request in this case was supported by

precisely the same set of materials that she submitted in Kearney:

"affidavits and a letter provided by Vicky's attorney, with

attached documentation." Id. at 85. Here, as in Kearney, those

materials amply established "that Vicky has suffered immensely

. . . from the continued dissemination and viewing of" material

depicting her abuse. Id. Given that the underlying crimes in the

two cases are similar, that the materials supporting the

restitution requests are identical, and that there is no evidence

that Vicky has been made whole, we see no basis to reach a result

here that differs from the one we reached in Kearney. Certainly,

Rogers cannot show that the district court abused its discretion by

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ordering him to pay slightly less than Kearney had to pay on such

a similar record.

Indeed, rather than asserting that this case is

materially different from Kearney,6 Rogers devotes much of his

energy to arguing that we should have adopted a stricter causation-

of-harm standard like that employed by some other courts. E.g.,

United States v. McGarity, 669 F.3d 1218, 1269-70 (11th Cir.),

cert. denied, 133 S. Ct. 374 (2012). But Kearney remains binding

on us. United States v. Troy, 618 F.3d 27, 35 (1st Cir. 2010); see

also United States v. Chiaradio, 684 F.3d 265, 284 (1st Cir. 2012)

(applying Kearney). We acknowledge that Kearney left unanswered

some questions about how the restitution analysis works; for

example, the district court and the attorneys in this case wrestled

conscientiously with the question of how to settle on a precise

amount to award the victim. Future cases may call for further

refinement of the causation and reasonableness inquiries. But this

case, which Rogers has not seriously attempted to distinguish from

Kearney, does not. Consequently, we affirm the district court's

award of $3,150 in restitution.

III. Conclusion

For the foregoing reasons, we affirm Rogers's conviction

and the district court's restitution award.

6
For example, Rogers does not attempt to distinguish the
notice of his offense that Vicky's attorney received in this case
from the notice given in Kearney. See 672 F.3d at 85 & n.4, 100.

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