Amy v. Curtis

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 “AMY”, et al., Case No. 19-cv-02184-PJH 8 Plaintiffs, 9 v. ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ 10 RANDALL STEVEN CURTIS, MOTION FOR SUMMARY JUDGMENT 11 Defendant. Re: Dkt. No. 140 12 13 14 Plaintiffs’ motion for summary judgment came on for hearing before this court on 15 February 25, 2021. Plaintiffs appeared through their counsel, Carol L. Hepburn and John 16 A. Kawai. Defendant appeared through his counsel, Ethan A. Balogh. Following the 17 hearing, the court sought additional clarification from plaintiffs by way of a supplemental 18 chart of evidence and defendant submitted an opposition with a set of objections in 19 response. The court held an additional hearing on March 25, 2021. Having read the 20 papers filed by the parties and carefully considered their arguments and the relevant 21 legal authority, the court hereby GRANTS summary judgment in part and DENIES 22 summary judgment in part as indicated below and for the following reasons. 23 I. Background 24 Fifteen plaintiffs, proceeding under pseudonyms, collectively bring this civil action 25 against defendant Randall Curtis based on Curtis’ possession of child pornography. See 26 18 U.S.C. § 2252(a)(4)(B) (criminalizing possession of child pornography). Plaintiffs 27 assert a single cause of action under Title 18 U.S.C. § 2255(a) (“Section 2255”), which 1 committed a violation of certain enumerated statutes, including 18 U.S.C. 2 § 2252(a)(4)(B). 3 On September 6, 2016, the defendant was indicted in the U.S. District Court for 4 the Northern District of California for knowingly transporting and possessing child 5 pornography in violation of §§ 2252(a)(1) and (a)(4)(B), respectively. FAC ¶ 35 (Dkt. 81 6 at 5). Defendant pleaded guilty to these offenses on July 13, 2017, and he was 7 sentenced and a judgment was entered against him on June 8, 2018. FAC ¶ 36 (Dkt. 81 8 at 6). 9 Plaintiffs Amy, Erika, Tori, Jenny, Jessica, Lily, Sarah, Skylar, Savannah, Sally, 10 Sierra, Maureen, Violet, Pia, and Mya each allege that they were victims of childhood 11 sexual abuse depicted in images of child pornography (alternatively referred to herein as 12 “child sexual abuse material” or “CSAM”) seized from defendant’s possession.1 See FAC 13 ¶¶ 3-30 (Dkt. 81 at 2-5). They first learned of defendant’s potential possession of their 14 CSAM images through their participation in the United States Department of Justice 15 Victim Notification System (“VNS”), which alerts them when they are potential victims in 16 investigations by federal law enforcement agencies. FAC ¶ 38 (Dkt. 81 at 6). Plaintiffs 17 allege that the Child Victim Identification Program (“CVIP”) analysts at the National 18 Center for Missing and Exploited Children (“NCMEC”) matched child pornography images 19 on the defendant’s computer to child pornography images depicting plaintiffs in NCMEC’s 20 database. FAC ¶ 38 (Dkt. 81 at 6). The CVIP notified the government of its findings and 21 plaintiffs subsequently received notice through the VNS that their images were among 22 those possessed by defendant. FAC ¶ 39 (Dkt. 81 at 6). 23 // 24 // 25 1 The term “child pornography” remains a legal definition, but the court alternatively refers 26 to the subject materials in this case as “CSAM” to avoid trivializing the abuse of children. 27 See Child Sexual Abuse Material (CSAM), NATIONAL CENTER FOR MISSING & EXPLOITED CHILDREN, https://www.missingkids.org/theissues/csam (last visited 3/4/2021); 1 II. Procedural History 2 Plaintiffs filed the original complaint in this case in April 2019. Dkt. 1. Defendant 3 moved to dismiss the complaint for failure to state a claim, asserting in part that plaintiffs 4 failed to plead personal injury attributable to him. Dkt. 25. The court denied defendant’s 5 motion to dismiss. Dkt. 42. In particular, the court joined other courts that have 6 concluded that Section 2255 does not require plaintiffs to prove defendant was the but-for 7 cause of their alleged injuries. Dkt. 42 at 7, citing Paroline v. United States, 572 U.S. 8 434, 451 (2014); Doe v. Boland, 698 F.3d 877, 881, 884 (6th Cir. 2012). Defendant 9 subsequently sought to depose plaintiffs, leading to one of many rulings on discovery in 10 this case. The court initially ruled in favor of defendant to permit depositions of plaintiffs 11 on the issues of identity and punitive damages. Dkt. 71. 12 Plaintiffs thereafter sought leave of court to file a First Amended Complaint (“FAC”) 13 that eliminated their original claims for punitive damages, added no new claims, 14 eliminated many factual allegations of the original complaint, and corrected an error 15 pointed out by defense counsel. Dkt. 77. The court granted leave to file the FAC (Dkt. 16 80), and plaintiffs did so (Dkt. 81). Defendant filed his answer to plaintiffs’ FAC on April 17 10, 2020. Dkt. 82. In response, plaintiffs filed a motion to strike defendant’s nine 18 affirmative defenses from the answer. Dkt. 97. 19 The court granted plaintiffs’ motion to strike defendant’s affirmative defenses. Dkt. 20 130. The court clarified that as long as a plaintiff demonstrates that she or he is a victim 21 under Section 2255 and only seeks liquidated damages, then that person need not also 22 prove actual damages. Dkt. 130 at 9. That is, plaintiffs need not establish actual 23 damages to prevail on their Section 2255 claim, they need only to establish that they are 24 victims of defendant’s crime. Id. 25 On the same day as the order on the plaintiff’s motion to strike affirmative 26 defenses, the court reiterated this premise in a separate order regarding defendant’s 27 request for relief from the magistrate judge’s order denying discovery on damages. Dkt. 1 demonstrate that he or she suffered actual damages. See Boland, 698 F.3d at 882.”). 2 This court found error in a portion of the magistrate judge’s discovery ruling, specifically 3 the magistrate judge’s determination that plaintiffs had established their status as 4 defendant’s victims; rather, plaintiffs still had to prove the issue of identity. Dkt. 131 at 3. 5 The court did not find error in the magistrate judge’s discovery order in any other respect, 6 leaving in place the judge’s grant of plaintiffs’ request for a protective order precluding 7 their depositions. Dkt. 131; see also Dkt. 106. The court stated, “given that damages 8 discovery is no longer an issue and given that identity is particularly within the personal 9 knowledge of each plaintiff, their identities could easily by established by declaration or 10 interrogatory responses, obviating the need for expensive, time consuming, and 11 potentially harassing depositions.” Dkt. 131 at 4. Even though the court had initially 12 approved depositions on the issue of identity, as the litigation and motion practice more 13 clearly focused the issues in this case, the court’s view changed. 14 Prior to the orders on the motion to strike and damages discovery, the court set 15 the following schedule for the case: close of fact discovery on October 29, 2020; 16 designation of experts by November 27, 2020; designation of rebuttal experts due by 17 December 29, 2020; dispositive motions to be heard by February 17, 2021; close of 18 expert discovery March 1, 2021. Dkt. 87. Neither party sought further extension of any 19 of these dates. 20 On January 19, 2021, defendant filed a motion for judgment on the pleadings, or in 21 the alternative, motion for summary judgment or adjudication. Dkt. 142. On the same 22 day, plaintiffs filed the present motion for summary judgment. Dkt. 140. Both motions 23 were briefed and heard on February 25, 2021. Dkt. 166. The court denied defendant’s 24 motion by order entered on March 8, 2021. Dkt. 169. 25 The court, struggling to ascertain the locations of plaintiffs’ evidence in a fairly 26 opaque docket, instructed plaintiffs to submit a chart with citations to the documents and 27 at least one photo for each victim relied upon in their motion for summary judgment and 1 response to plaintiffs’ chart “if he believes that the chart refers to evidence not currently in 2 the record.” Id. at 3. On March 10, 2021, plaintiffs’ counsel requested by email to the 3 courtroom deputy that the court review an initial draft of the chart before they complete it. 4 Defendant emailed an objection. The court issued an order clarifying its instructions for 5 the requested post-hearing filing. (Dkt. 172). Plaintiffs timely submitted their evidentiary 6 chart (Dkt. 175), and defendant filed a 20-page opposition that reached far beyond the 7 court’s permitted scope of response (Dkt. 177). The court nonetheless accepted 8 defendant’s brief and has found it helpful. The court held further hearing on the motion 9 on March 25, 2021. Dkt. 179. 10 III. Legal Standard 11 Summary judgment is proper where the pleadings, discovery, and affidavits show 12 that there is “no genuine dispute as to any material fact and the movant is entitled to 13 judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those which may 14 affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 15 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a 16 reasonable jury to return a verdict for the nonmoving party. Id. “A ‘scintilla of evidence,’ 17 or evidence that is ‘merely colorable’ or ‘not significantly probative,’ is not sufficient to 18 present a genuine issue as to a material fact.” United Steelworkers of Am. v. Phelps 19 Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989). Rule 56(c)(1) expressly requires that, 20 to show the existence or nonexistence of a disputed fact, a party must “cit[e] to particular 21 parts of materials in the record.” Fed. R. Civ. Pro. 56(c)(1). 22 The party moving for summary judgment bears the initial burden of identifying 23 those portions of the pleadings, discovery and affidavits which demonstrate the absence 24 of a genuine issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). 25 Where the moving party will have the burden of proof on an issue at trial, it must 26 affirmatively demonstrate that no reasonable trier of fact could find other than for the 27 moving party. However, on an issue for which the opposing party will have the burden of 1 to support the nonmoving party's case.” Id. at 325; In re Brazier Forest Prod., Inc., 921 2 F.2d 221, 223 (9th Cir. 1990) (“[I]if the nonmoving party bears the burden of proof on an 3 issue at trial, the moving party need not produce affirmative evidence of an absence of 4 fact to satisfy its burden. The moving party may simply point to the absence of evidence 5 to support the nonmoving party's case. The nonmoving party must then make a sufficient 6 showing to establish the existence of all elements essential to their case on which they 7 will bear the burden of proof at trial.”) (quoting Celotex Corp., 477 U.S. at 322-23). 8 “Where a moving party carries its burden of production, the nonmoving party must 9 produce evidence to support its claim or defense.” Friedman v. Live Nation Merch., Inc., 10 833 F.3d 1180, 1188 (9th Cir. 2016) (internal citations omitted). But allegedly disputed 11 facts must be material – the existence of only “some alleged factual dispute between the 12 parties will not defeat an otherwise properly supported motion for summary judgment.” 13 Anderson, 477 U.S. at 247-48. The court is only concerned with disputes over material 14 facts and “factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 15 248. It is not the task of the court to scour the record in search of a genuine issue of 16 triable fact. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996). The nonmoving party 17 has the burden of identifying, with reasonable particularity, the evidence that precludes 18 summary judgment. Id. 19 The court must view the evidence in the light most favorable to the nonmoving 20 party: if evidence produced by the moving party conflicts with evidence produced by the 21 nonmoving party, the judge must assume the truth of the evidence set forth by the 22 nonmoving party with respect to that fact. Tolan v. Cotton, 134 S.Ct. 1861, 1865 (2014); 23 Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999). If the nonmoving party fails to 24 produce evidence rebutting the moving party’s initial showing, “the moving party is 25 entitled to judgment as a matter of law.” Celotex Corp., 477 U.S. at 323. 26 Lastly, without granting summary judgment of an entire claim, courts may rely 27 upon Rule 56 to determine certain facts or elements of a claim as established and 1 Lahoti v. VeriCheck, Inc., 586 F.3d 1190, 1202 n.9 (9th Cir. 2009) (citing with approval 2 then-existing Rule 56(d)’s advisory committee note that “[t]he partial summary judgment 3 is merely a pretrial adjudication that certain issues shall be deemed established for the 4 trial of the case . . . and likewise serves the purpose of speeding up litigation by 5 eliminating before trial matters wherein there is no genuine issue of fact.”). 6 IV. Discussion 7 This case, where defendant pleaded guilty to possessing and transporting child 8 pornography but avoided acknowledging the identities of those depicted in the child 9 pornography he possessed, is one of first impression. The case relies on interpretation 10 of Section 2255, a statute providing civil damages for victims of certain enumerated 11 criminal offenses. There are thus only two issues to be decided: victimhood and 12 damages. Through extensive motion practice, the court has made clear its reliance on 13 both Doe v. Boland, 698 F.3d 877, 882 (6th Cir. 2012), which held a plaintiff that elects 14 liquidated damages under Section 2255 need not demonstrate that he or she suffered 15 actual damages, and Paroline v. United States, 572 U.S. 434, 456-57 (2014), which held 16 that a possessor of CSAM is part of the overall phenomenon that caused a victim’s 17 losses. See Dkt. 42 at 7-8; Dkt. 130 at 8-9; Dkt. 131 2-3. Plaintiffs proceed here seeking 18 only liquidated damages and thus need not establish damages separately. If they 19 establish victimhood, they necessarily establish entitlement to civil (liquidated) damages 20 under Section 2255. Dkt. 130 at 9. 21 In support of their motion for summary judgment, plaintiffs proffer a variety of 22 declarations, reports, and photos. Defendant does not offer any contrary evidence of his 23 own, and instead objects to plaintiffs’ offerings. Defendant’s objections are discussed 24 first before considering the sufficiency of plaintiffs’ evidence. 25 A. Defendant’s objections 26 Defendant’s several objections to the evidence proffered by plaintiffs generally 27 focus on certain categories of evidence. 1 1. Due process and declarations from plaintiffs not deposed 2 Defendant argues that the declarations of Amy, Maureen, Sarah, Lily, and Jenny 3 should all be excluded from evidence because he was not permitted to depose any of 4 them. He asserts that it is “fundamentally unfair” as well as a violation of Fifth 5 Amendment due process to hear their testimony despite their refusal to be examined in 6 the case. In support, defendant cites Ching v. Mayorkas, 725 F.3d 1149 (9th Cir. 2013) 7 without pincite. The court in Ching reversed a district court denial of an immigration 8 petition where due process required that the petitioner be provided with an opportunity to 9 confront witnesses against her. Id. at 1157-59. Plaintiffs do not directly address this 10 issue on reply. 11 Here, defendant seeks another bite at the apple—that is, he attempts to re-litigate 12 an issue already considered at length in this case. Magistrate Judge Illman rejected 13 defendant’s effort to compel depositions of any plaintiffs, some of whom were still minors, 14 explaining, “ . . . Defendant’s request to depose [plaintiffs] about their damages as related 15 to his offense conduct should be foreclosed as irrelevant (due to their election of the 16 liquidated damages remedy) and also because, even if relevant, it would be grossly 17 disproportional to the needs of the case.” Dkt. 106 at 10. This court found no error in 18 that part of Judge Illman’s ruling, agreeing that any depositions to determine plaintiffs’ 19 injuries or causation are unnecessary where plaintiffs seek only liquidated damages. Dkt. 20 131. Accordingly, the court overrules the objection to the extent that it goes to 21 depositions on damages. 22 However, defendant also objects to the declarations of five of the plaintiffs who 23 rely on their own declarations to establish their identity in the CSAM because he was 24 foreclosed by the protective order from deposing them on this issue. The court overrules 25 the objection and continues to find that the Magistrate Judge’s protective order was not 26 clearly erroneous. Nonetheless, only two plaintiffs rely solely on their own identification 27 of themselves in CSAM, and only four minor plaintiffs rely solely on their parents’ 1 plaintiffs below. 2 2. Timeliness of plaintiffs’ supplemental disclosures 3 Defendant asserts that the court should disregard several declarations and 4 exhibits relevant to plaintiffs’ proof of identity pursuant to Federal Rule of Evidence 5 37(c)(1). That rule provides that a party that “fails to provide information or identify a 6 witness as required by Rule 26(a) or (e) . . . is not allowed to use that information or 7 witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was 8 substantially justified or is harmless.” Under Rule 26(a), a party must identify individuals 9 “likely to have discoverable information . . . that the disclosing party may use to support 10 its claims or defenses.” Rule 26(e) requires a party to supplement or correct a Rule 26(a) 11 disclosure or discovery response if it learns that the disclosure or response is incomplete 12 or incorrect. 13 In affirming the exclusion of untimely disclosed evidence, the Ninth Circuit 14 explained, “Rule 37(c)(1) gives teeth to these requirements by forbidding the use at trial 15 of any information required to be disclosed by Rule 26(a) that is not properly disclosed.” 16 Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). In that 17 case, the trial court excluded an expert report where, despite timely disclosure of the 18 expert’s identity, the report was not provided to the opposition until two years after the 19 close of discovery and only 28 days before trial. Id. at 1105. Similarly, the circuit court 20 affirmed a trial court’s exclusion of damages calculations not disclosed until the eve of 21 trial. Hoffman v. Constr. Protective Servs., Inc., 541 F.3d 1175, 1179-80 (9th Cir. 2008), 22 as amended (Sept. 16, 2008). 23 Here, defendant argues that plaintiffs’ supplemental disclosure of additional fact 24 and potential expert witnesses was untimely because it was made on October 28, 2020, 25 the day before fact discovery closed (October 29, 2020). Plaintiffs counter in part that 26 they supplemented discovery two days after this court’s order on discovery, which 27 clarified their need to establish each individual plaintiffs’ identity. See Dkt. 131 at 4 (order 1 supplementing disclosures merely late within the discovery period (as opposed to well 2 after the close of discovery, as in the cases he cites above) renders the disclosures 3 untimely. 4 Defendant undercuts his argument further by raising this issue at the dispositive 5 motion stage of the case. The court issued its revised pretrial order on June 18, 2020, 6 setting the close of non-expert discovery for October 29, 2020, and calling for dispositive 7 motions to be heard by February 17, 2021. Dkt. 87. If defendant needed to conduct 8 further discovery to oppose summary judgment, he should have requested a meet and 9 confer with plaintiffs at the close of fact discovery, as plaintiffs suggest in their papers. If 10 defendant believed that would not have been fruitful, he should have filed a motion to 11 compel or otherwise sought leave to re-open discovery immediately. Indeed, this 12 district’s Civil Local Rules specify that a party has seven (7) days after the close of fact 13 discovery to seek to compel discovery, including depositions. Civ. L. R. 37-3. Thus, 14 waiting until the opposition to a later-filed motion for summary judgment to seek to bar 15 declarations from witnesses he did not even try to depose was an unreasonable and 16 inappropriate strategy.2 17 Because plaintiffs made timely supplemental disclosures when they submitted 18 them to defense counsel within the discovery period, there is no basis on which to 19 exclude the proffered declarations as untimely. Thus, plaintiffs may rely on the 20 declarations from the witnesses named in their supplemental disclosures to establish 21 their identity. 22 3. Hearsay and reliability of parent declarations 23 Defendant argues that the declarations of parents offered to identify minor 24 plaintiffs should be excluded additionally because they are based on information provided 25 by others in violation of Federal Rules of Evidence 602 (personal knowledge 26 2 The court is not privy to the disclosures or to discovery and assumes that no 27 depositions were noticed for or subpoenas issued for the witnesses defendant now 1 requirement) and 801 (hearsay bar). 2 Hearsay is a “statement, other than one made by the declarant while testifying at a 3 trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R. Ev. 4 801(c). “[H]earsay evidence in rule 56 affidavits is entitled to no weight.” Scosche 5 Indus., Inc. v. Visor Gear Inc., 121 F.3d 675, 681 (9th Cir. 1997). Hearsay evidence thus 6 may not be considered on summary judgment if it does not fall under a hearsay 7 exception. See Orr v. Bank of America, 285 F.3d 764, 778 (9th Cir. 2002). In 8 considering a motion for summary judgment, a court does not focus on the admissibility 9 of the evidence’s form, but instead focuses on the admissibility of its contents. See 10 Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). 11 Here, defendant objects to the declarations of John Doe and Jane Doe, arguing 12 the parents base their identification testimony in part on early childhood photos of their 13 daughters provided to them by a social worker. John Doe Decl. ¶ 4 (Dkt. 139-4 at 269); 14 Jane Doe Decl. ¶¶ 3-4 (Dkt. 139-4 at 276). For the alleged hearsay in the declarations of 15 adoptive parents John Doe and Jane Doe, plaintiffs note that the declarants’ identification 16 of their daughters as victims in the sanitized photos is not based solely on photos taken 17 prior to adoption; rather, the identification is informed by those photos plus years of 18 parenting in which they have grown to recognize their respective daughters. The 19 declarations from these parents, read in full, mention the individual plaintiffs’ pre-adoption 20 photos in the context of supporting the reliability of a parent’s identification of a victim 21 based on their personal knowledge of the victim’s appearance over time. The plaintiffs’ 22 argument is more accurate here. The pre-adoption photos are not offered at all as 23 truthful representations of plaintiffs, and thus do not constitute hearsay.3 24 25 3 Defendant also argues that the court should exclude the Jane Doe declaration because 26 it is (1) unsigned, (2) the declarant does not present her true identity, and (3) the signature page may have been from a different document despite having the same 27 ending paragraphs formatted differently. Plaintiffs’ counsel certifies that the declaration 1 4. Hearsay of criminal defense counsel correspondence 2 Defendant alleges that copies of correspondence between the Assistant United 3 States Attorney and his criminal defense counsel amount to hearsay, and that they 4 should be excluded as statements pursuing negotiated compromise protected by Federal 5 Rule of Evidence 408(a). Plaintiffs counter that the correspondence is not being offered 6 for purposes of revealing negotiations between counsel in the criminal case, but rather, it 7 is offered for purposes of negating undue delay as permitted in Federal Rule of Evidence 8 408(b). Plaintiffs argue that the correspondence details arrangements for defense 9 counsel to view the actual contraband in mid-2018 and includes some descriptions by Mr. 10 Curtis’ then-counsel of the content of a portion of the images in this matter. Because 11 some defense counsel previously reviewed the materials involved in this case, they say, 12 the defendant here cannot allege he has been prejudiced by their late submission of 13 supplemental disclosures. 14 The issue of the lateness of plaintiffs’ supplemental disclosures (served prior to the 15 close of discovery) is fully resolved above, leaving no purpose to consider it here. The 16 correspondence itself, part of an exchange to resolve issues of restitution in defendant’s 17 criminal case, clearly falls within the context of a negotiated settlement where defense 18 counsel made certain representations in an attempt to resolve the amounts of restitution 19 payments that would be ordered at sentencing. To the extent the settlement 20 correspondence is proffered by plaintiffs to establish the sexual content of the photos 21 depicting plaintiffs on defendant’s media, as reflected on their post-hearing chart, it is 22 rejected by the court and will not be considered on the issue of sexual content of the 23 images. Defendant’s objection to its use for this purpose is sustained. 24 B. Plaintiffs’ evidentiary offerings and determination of victimhood 25 Title 18 U.S.C. Section 2255(a) allows for civil recovery by victims of certain 26 enumerated statutes prohibiting child molestation, exploitation, and pornography, 27 including the provision to which defendant pleaded guilty, Title 18 U.S.C. Section 1 filings, the court explained that in its view, to establish victimhood under Section 2255, 2 plaintiffs must prove that (1) they are pictured in CSAM (identity), (2) the CSAM depicts 3 sexually explicit conduct as defined by Title 18 U.S.C. § 2256 (sexual content), and 4 (3) the CSAM was found in defendant’s possession. 5 1. Identity 6 There are three categories of proof offered by plaintiffs to establish their identity in 7 the images involved in this case as reflected in the post-hearing chart: (1) plaintiffs’ self- 8 identification, (2) plaintiffs identified by a parent, and/or (3) plaintiffs identified by law 9 enforcement points of contact (POCs) for respective series of CSAM. Even though the 10 law enforcement POCs have long term familiarity and experience with the child 11 pornography series, they identify each plaintiff from the specific images in the record and 12 reflected on the post-hearing chart. It appears from the papers that plaintiffs have also 13 relied on the identification made by Kevin Laws of some of them. Defendant objects to 14 the Laws declaration on the issue of the identification of the minors in the CSAM because 15 it is unreliable and because he is not qualified as an expert on this issue. Because the 16 court ultimately resolves the identification of the minors on the basis of evidence other 17 than the Laws’ declaration, it does not reach this issue. 18 a. Self-identifying plaintiffs 19 Amy is identified through her own declaration. Amy Decl. ¶ 5 (Dkt. 139-4 at 375). 20 Jenny is identified through her own declaration. Jenny Decl. ¶ 5 (Dkt. 139-4 at 358). 21 Maureen is identified through her own declaration. Maureen Decl. ¶ 8 (Dkt. 139-4 at 22 281-82). Sarah is identified in her own declaration. Sarah Decl. ¶ 6. However, Maureen 23 and Sarah are also identified by one or more POCs, leaving Amy and Jenny as the only 24 two plaintiffs who rely solely on their self-identification. Defendant has proffered no 25 evidence contrary to these identifications and the court has overruled his objections. The 26 court finds these declarations to be sufficient to establish the plaintiffs’ identities by a 27 preponderance of the evidence. 1 b. Parents identifying plaintiffs 2 Jessica is identified by her mother. Cooper Decl. ¶ 6 (Dkt. 139-4 at 363). Mya is 3 identified by her mother. Jane Roe Decl. ¶ 6 (Dkt. 139-4 at 306). Pia is identified by her 4 mother. Jane Roe Decl. ¶¶ 7-8 (Dkt. 139-4 at 306). Sally is identified by her father, John 5 Doe. John Doe Decl. ¶ 6 (Dkt. 139-4 at 270). Savannah is identified by her mother, 6 Jane Doe. Jane Doe Decl. ¶ 4 (Dkt. 139-4 at 276-77). Sierra is identified by her father, 7 John Doe. John Doe Decl. ¶ 6 (Dkt. 139-4 at 270). Skylar is identified by her mother, 8 Jane Doe. Jane Doe Decl. ¶ 4 (Dkt. 139-4 at 276-77). Violet is identified by her mother. 9 Violet’s Mother Decl. ¶ 5 (Dkt. 139-4 at 261). Defendant has proffered no evidence 10 contrary to these identifications and the court has overruled his objections. The court 11 finds these declarations to be sufficient to establish the plaintiffs’ identities by a 12 preponderance of the evidence. In addition to being identified by their parents, Mya, Pia 13 and Violet are identified by POCs. 14 Plaintiffs rely on the declaration of Jane Smith, mother of Erika and Tori, for their 15 identifications. However, the declaration fails to distinguish between the girls because 16 the mother cannot tell which of her daughters the image reflects. Jane Smith Decl. ¶¶ 6- 17 7 (Dkt. 139-4 at 368). Because there is no way of knowing which of the two girls is 18 pictured, plaintiffs have not met their burden to establish the identity of either Erika or 19 Tori, much less the identity of both of them. 20 c. Law enforcement POCs identifying plaintiffs 21 Lily is identified by POC for the “Vicky” series, Special Agent Joshua Findley.4 22 Findley Decl. ¶¶ 7-11 (Dkt. 139-4 at 344). Lily is also identified by another POC for the 23 “Vicky” series, Retired Detective Roy Shepherd. Shepherd Decl. ¶¶ 9-13 (Dkt. 139-4 at 24 351-52). In addition to her own declaration, Maureen is identified by POC for the 25 “Lighthouse” series, Retired Special Agent Thomas Rothrock. Rothrock Decl. ¶ 10 (Dkt. 26 4 Though Lily submits a declaration in support of plaintiffs’ motion for summary judgment, 27 she requests that the court rely on the declarations of her law enforcement POCs for 1 139-4 at 290). In addition to the declaration of her mother, Jane Roe, Mya is also 2 identified by POC for the “Sweet Sugar” series, Corporal Adele Brown. Brown Decl. ¶ 11 3 (Dkt. 139-4 at 318-19). In addition to the declaration of her mother, Jane Roe, Pia is also 4 identified by POC for the “Sweet Sugar” series, Corporal Adele Brown. Brown Decl. ¶¶ 5 12-18 (Dkt. 139-4 at 319-21). In addition to her own declaration, Sarah is identified by 6 POC for the “Marineland” series, Retired Detective Deborah Behymer. Behymer Decl. ¶ 7 6 (Dkt. 139-4 at 301). In addition to the declaration of her mother, Violet is identified by 8 POC for the “At School” series, FBI Special Agent Jeffrey Stetler. Stetler Decl. ¶¶ 6-7 9 (Dkt. 139-4 at 266). Defendant has proffered no evidence contrary to these 10 identifications and the court has overruled his objections. The court finds these 11 declarations sufficient to establish the plaintiffs’ identities by a preponderance of the 12 evidence. 13 2. Sexually explicit conduct 14 Title 18 U.S.C. Section 2256(2)(A) defines “sexually explicit conduct” in part as 15 “actual or simulated . . . sexual intercourse;” “masturbation;” or “lascivious exhibition of 16 the anus, genitals, or pubic area of any person,” (emphasis added).5 Additionally 17 relevant is that section’s definition of “child pornography.” 18 U.S.C. § 2256(8)(A). The 18 term “lascivious exhibition” tends to resist easy classification in the context of child 19 pornography, requiring an image-by-image assessment for which many courts have 20 come to rely on the following factors articulated in United States v. Dost:

21 [I]n determining whether a visual depiction of a minor constitutes a “lascivious exhibition of the genitals or pubic area” 22 under § 2255(2)(E), the trier of fact should look to the following factors, among any others that may be relevant in the particular 23 case: 1) whether the focal point of the visual depiction is on the child's 24

25 5 It is the court’s view that the emphasized language would apply to the images where the genitalia exhibited is that of an erect male penis in, on, or near the mouth of a child even 26 if the child’s genitals are not exhibited. In a number of the photos at issue here, the girls’ mouths are simply too small to accommodate the size of the penis. Nonetheless, the 27 court finds that the proximity of an erect penis to the mouth of a child is sufficient to genitalia or pubic area; 1 2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with 2 sexual activity; 3) whether the child is depicted in an unnatural pose, or in 3 inappropriate attire, considering the age of the child; 4) whether the child is fully or partially clothed, or nude; 4 5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; 5 6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer. 6 7 636 F.Supp. 828, 832 (S.D. Cal. 1986), aff'd sub nom. United States v. Wiegand, 812 8 F.2d 1239 (9th Cir. 1987), and aff'd, 813 F.2d 1231 (9th Cir. 1987). “The Dost factors are 9 neither exclusive nor conclusive, and courts may consider any other factor that may be 10 relevant in a particular case.” United States v. Perkins, 850 F.3d 1109, 1121 (9th Cir. 11 2017) (internal citations omitted). 12 The images underlying plaintiffs’ claims are contraband in nature, creating 13 significant difficulty for both sides in establishing facts. Indeed, counsel for neither side 14 has actually reviewed all the unsanitized images themselves. Plaintiffs’ counsel has 15 reviewed some of the images at issue, as has defendant’s counsel, but his review took 16 place three years ago. Plaintiffs rely on descriptions of the contraband images from 17 declarations along with sanitized versions that redact or blackout the more graphic 18 aspects of each image. So, the attorneys are arguing for and against a finding that 19 certain images qualify as CSAM when they haven’t even seen, or recently seen, the 20 unsanitized images. When ordering that plaintiffs prepare a chart reflecting the docket 21 entry for the evidence upon which they rely (see Dkt. 170), the court also advised that it 22 would conduct an in camera review of the unsanitized images and directed plaintiffs to 23 identify at least one image per plaintiff for the court’s review. There are many more 24 images in the record than those appearing on plaintiffs’ chart and plaintiff may rely on any 25 of the images currently in the record, but the court has only reviewed the unsanitized 26 versions of those images reflected on the chart. 27 About the court’s in camera review of this limited set of images. In its order, the 1 duplication of contraband images, an in camera review was the only way to resolve 2 defendant’s various challenges that the images did not qualify as contraband. Dkt. 170 at 3 3. The in camera review was all the more imperative because defendant did not retain 4 an expert who would testify that certain of the images did not qualify as contraband. 5 Rather, defendant appears to rest solely on the argument of his attorney. At the second 6 hearing held on this motion and in his supplemental brief, defendant vehemently objected 7 to the court’s in camera review, even going so far as to accuse the court of being a star 8 chamber. Dkt. 177 at 5. 9 The objection to the court’s review of the unsanitized contraband images is difficult 10 to understand given that both defense counsel and plaintiffs’ counsel agreed at the 11 second hearing that, should the case proceed to trial, a jury would be shown the 12 unsanitized images and be asked to determine if they depicted sexually explicit conduct. 13 Given that the court is required to review child pornography before it is admitted at trial in 14 exercise of its discretion under Federal Rule of Evidence 403, the court overrules 15 defendant’s objection. United States v. Curtin, 489 F.3d 935, 957 (9th Cir. 2007) 16 (presentation of child pornography evidence was improper where it was not first reviewed 17 by trial judge). In addition to its obligation to assess evidence to comply with Rule of 18 Evidence 403, the court has the obligation to adjudicate issues that can be resolved 19 pretrial in order to avoid the unnecessary exhibition of contraband child pornography to a 20 jury of laypersons unaccustomed to viewing this sort of offensive and distasteful 21 evidence. 22 However, to the extent that defendant’s intended objection is that plaintiffs cannot 23 rely on the court’s in camera review to substitute for their own production of evidence to 24 establish the necessary elements of their claims, the court agrees. Accordingly, the in 25 camera review is used herein only to confirm the adequacy or inadequacy of plaintiffs’ 26 position that the proffered images qualify as child pornography. Again, defendant offered 27 no evidence to rebut any of plaintiffs’ evidence. 1 is entered under seal as an addendum to the present order. That document is sealed 2 and the descriptions of the sexually explicit conduct referred to in this order are redacted 3 for the reasons stated in the court’s separate order filed today granting the parties’ 4 motions to seal. 5 There are three categories of proof offered by plaintiffs to establish the sexually 6 explicit conduct depicted in the CSAM involved here: (1) plaintiffs’ descriptions of image 7 content, (2) POCs’ descriptions of image content, and (3) expert Kevin Laws’ descriptions 8 of image content. 9 a. Plaintiffs self-describe image content 10 Amy describes, “The photo attached as Ex. 1 is a photo of me taken by my abuser 11 during the sexual abuse that I endured as a child . . . I remember the blue, red and white 12 bed sheets on the mattress pictured in this photo. I also remember that my abuser 13 posed, photographed, and sexually abused me on top of a mattress with these same 14 blue, red and white bed sheets. Additionally, I remember that my abuser posed me 15 naked with my legs up in the air while he photographed me on top of a mattress with 16 these same blue, red and white bed sheets.” Amy Decl. ¶ 5 (Dkt. 139-4 at 375). The 17 court conducted its own review of the unsanitized image. Amy’s description, confirmed 18 by the court, meets the definition of “sexually explicit conduct.” 18 U.S.C. 19 § 2256(2)(B)(iii). 20 Jenny describes, “The photo attached at Ex. 1 is a photo of me taken by my 21 abuser during the sexual abuse that I endured as a child. . . I recognize this photo as my 22 own appearance . . . I recognize the blue, white, and tan blanket in the background of the 23 photo. I remember being abused on the same blue, white, and tan blanket. I also 24 recognize the brown dog collar I am wearing around my neck in the photo. I recall that 25 my abuser required that I wear this same dog collar while he sexually abused me. The 26 blacked-out part of the photograph likely consists of my face, my mouth, and the genitals 27 of my abuser. I remember my abuser taking photos of my face and mouth with his 1 own review of the unsanitized image. Jenny’s description, confirmed by the court, meets 2 || the definition of “sexually explicit conduct.” 18 U.S.C. § 2256(2)(B)(iii). 3 Maureen describes, “Among the images that were created of me are images □ 4 PNT 208 os photograph is one of 5 || those images, although his xq” Maureen Decl. {| 8 6 || (Dkt 139-4 at 282). A POC similarly describes the image below. The court conducted its 7 || own review of the unsanitized image. Maureen’s description, confirmed by the court, 8 || meets the definition of “sexually explicit conduct.” 18 U.S.C. § 2256(2)(B)(i). 9 b. Law enforcement POCs describe image content 10 Special Agent Findley describes the sexual content of one of the images depicting 11 Lily as follows: “The photo attached hereto as Ex. 1 is a photo of Lily also taken during g 12 || her sexual abuse. The unredacted photo would shows mms 3 14 Findley Decl. {] 8 (Dkt. 139-4 at 344). The sexual content of the media is described by 3 15 || Retired Detective Shepherd using the same terms. Shepherd Decl. Jf] 10-13 (Dkt. 139-4 16 || at 352). The court conducted its own review of the unsanitized version of the image 17 || referred to by both POCs as Ex. 1. The description of Ex. 1, confirmed by the court, 5 18 || meets the definition of “sexually explicit conduct.” 18 U.S.C. § 2256(2)(B)(iii). 19 Retired Special Agent Rothrock describes the sexual content of one of the images 20 || depicting Maureen as follows: “The photo attached hereto as Ex. 1 is a photo of Maureen 21 taken during the sexual abuse she endured as a child. The unredacted photo shows

23 Rothrock Decl. {| 11 (Dkt. 139-4 at 290). The image is similarly described by Maureen 24 above. The court conducted its own review of the unsanitized image. Retired Agent 25 Rothrock’s description, confirmed by the court, meets the definition of “sexually explicit 26 || conduct.” 18 U.S.C. § 2256(2)(B)(i). 27 Corporal Brown describes the sexual content of one of the images depicting Mya 28 || as follows: “The unredacted photo shows Mya EE

TS 3 || HR.” Brown Decl. □ 11 (Dkt. 139-4 at 318-19). The court conducted its own review of 4 || the unsanitized image. Corporal Brown’s description, confirmed by the court, meets the 5 || definition of “sexually explicit conduct.” 18 U.S.C. § 2256(2)(B)(iii). 6 The sexual content of the media depicting Pia is also described by Corporal 7 || Brown. Brown Decl. 12-18 (Dkt. 139-4 at 319-21). Corporal Brown describes, “The 8 || unredacted photo shows

10 || RM.” Brown Decl. {| 13 (Dkt. 139-4 at 319). The court conducted its own review of the 11 unsanitized image. Corporal Brown’s description, confirmed by the court, meets the g 12 || definition of “sexually explicit conduct.” 18 U.S.C. § 2256(2)(B)(iii). It may additionally fit & 13 || the definition of “sexually explicit conduct” as graphic masturbation. 18 U.S.C. 3 14 || § 2256(2)(B)(ii)(II). 3 15 Retired Detective Behymer describes the media of Sarah as follows: “The blacked 16 || out portion of the photo on the left would show her 17 || Onher face Based on my experience and training 5 18 || as alaw enforcement officer involved in child exploitation cases it is my professional 19 || opinion that the unredacted version of this photo is child pornography within the definition 20 || of that term in the federal statute 18 U.S.C. 2256.” Behymer Decl. 6 (Dkt. 139-4 at 21 301). Defendant contests that this description and image fail to meet the definition of 22 || sexually explicit conduct. The court conducted its own review of the unsanitized image 23 || and agrees that neither the description nor the image reflect the lascivious display of 24 genitals nor does it include sexual intercourse of any kind. Additionally, given the poor 25 || quality of the photo, the presence of any substance on her face is not clearly 26 || ascertainable. Thus, the image does not clearly fall within the statutory definition of 27 28

1 “sexually explicit conduct.” 2 Special Agent Stetler provides the following image description regarding Violet: 3 || “The unredacted version of this photo shows Violet 4 5 Stetler 6 || Dec. at J 7 (Dkt. 139-4 at 266). Defendant contests that this image fails to meet the 7 || definition of sexually explicit conduct. The court conducted its own review of the 8 || unsanitized image. Special Agent Stetler’s description, confirmed by the court, meets the 9 || definition of “sexually explicit conduct.” 18 U.S.C. § 2256(2)(B)(ili). See footnote 5 10 || above. 11 c. Descriptions of images from expert Kevin Laws g 12 In his review of files, expert Kevin Laws described images attributed to Lily (Laws & 13 || Decl. J 9(d) (Dkt. 139-4 at 157-58), referring to Ex. 9 (Dkt. 139-4 at 235)), Mya (Laws 3 14 || Decl. J 9(c)(i) (Dkt. 139-4 at 153), referring to Ex. 8 (Dkt. 139-4 at 219)), Pia (Laws Decl. 3 15 || 4 9(c)(ii) (Dkt. 139-4 at 154-55), referring to Ex. 8 (Dkt. 139-4 at 220-234)), and Violet 16 || (Laws Decl. at J 9(a) (Dkt. 139-4 at 148), referring to Ex. 4 (Dkt. 139-4 at 195)). The 17 || court, having found that the POCs’ respective descriptions of the images of these 5 18 || plaintiffs are sufficient, finds it unnecessary to set forth the substantially similar 19 || descriptions provided by Laws. The repetition of the descriptions for those plaintiffs’ 20 || images here would be cumulative and duplicative. The remaining plaintiffs for whom 21 Laws described images were Sally, Savannah, Sierra, and Skylar. 22 Laws identified only one image of Sally. Laws provides the following description: 23 || “This image shows Sally 24 25 -” Laws. Decl. J 9(b)(iv) (Dkt. 139-4 at 153), referring to Ex. 5 (Dkt. 26 139-4 at 201). Defendant contests that this image meets the definition of sexually explicit 27 28 6 This is the only image in which Sarah is identified in the record.

1 conduct. The court conducted an in camera review of a different unsanitized image 2 || designated for Sally. Because the court did not review the unsanitized version of the only 3 || image of Sally for which there is a description in the record, and because the court has 4 || found at least one other image that did not meet the definition of sexually explicit conduct 5 || contrary to plaintiffs’ position, the court declines to adjudicate this issue in plaintiffs’ 6 || favor.’ 7 Laws describes two images of Savannah. One of these images is the unsanitized 8 || version of the image relied upon for identification by Savannah’s parent. Laws provides 9 || the following image description: “This image depicts Savannah — 10

£

14 || EE. was provided to me by HSI Group Supervisor Barfuss.” Laws. Decl. 15 || 9(b)(ii) (Dkt. 139-4 at 151), referring to Ex. 5 (Dkt. 139-4 at 200). The court conducted its 16 || own review of the unsanitized image. Laws’ description, confirmed by the court, meets 2 17 || the definition of “sexually explicit conduct.” 18 U.S.C. § 2256(2)(B)(i). S 18 Laws describes four images of Sierra. Two of these images are the unsanitized 19 || versions of the image relied upon for identification by Sierra’s parent. Laws provides the 20 || following image description: “In this image, —————————s

22 || i. as. Decl. 7 9(b)(i) (Dkt. 139-4 at 149), referring to Ex. 5 23 (Dkt. 139-4 at 205). The court conducted its own review of the unsanitized image. Laws’ 24 description, confirmed by the court, meets the definition of “sexually explicit conduct.” 18 25 || U.S.C. § 2256(2)(B)(iii). 26 27 Wr There is at least one more image in the record in which Sally is identified. John Doe 9g |} Decl. 116 (Dkt. 139-4 at 270), referring to Exhibit 4 (Dkt. 139-4 at 274). This image was not provided to the court for its in camera review.

1 Laws describes a total of five images for Skylar. One of these images is the 2 || unsanitized version of the image relied upon for identification by Skylar’s parent. Laws 3 || provides the following image description: “Sierra is Ee 4 5 ms.” Laws Decl. 7 9(b)(iii) (Dkt. 139-4 at 151), 7 || referring to Ex. 5 (Dkt. 139-4 at 206). The court conducted its own review of the 8 || unsanitized image. Laws’ description, confirmed by the court, meets the definition of Q || “sexually explicit conduct.” 18 U.S.C. § 2256(2)(B)(i). 10 d. Images lacking description 11 There are no descriptions of the contraband images in the record for Erika, Tori, g 12 || and Jessica. Plaintiffs admit in their supplemental chart that no declaration describes & 13 || the redacted content of the photo attributed to both Erika and Tori, exhibit 2 to Jane 3 14 || Smith Declaration (Dkt. 139-4 at 373) and exhibit 9 (second photo) to Kevin Laws 3 15 || Declaration (Dkt. 139-4 at 259).® Plaintiffs admit in their supplemental chart that no 16 || declaration describes the redacted content of the photo attributed to Jessica, exhibit 1 to 17 || the Cooper Declaration (Dkt. 139-4 at 365) and exhibit 11 to Kevin Laws Declaration 5 18 || (Dkt. 139-4 at 254). Plaintiffs rely on court’s in camera review of the media to determine 19 || whether these images fall within the definition of sexually explicit content. However, 20 || plaintiffs cannot substitute the court’s review of the images for their own proof, and this 21 element is therefore not established for Erika, Tori, or Jessica. 22 3. Defendant’s possession of CSAM 23 Civil liability under Section 2255 requires plaintiffs to establish they are victims of 24 one of 14 enumerated child sexual abuse offenses. Plaintiffs here allege they are victims 25 || of defendant's possession of CSAM depicting them. Because defendant’s possession is 26 27 | There are two images in which Jane Smith identifies either Erika or Tori. See Jane 2g |} Smith Decl. ff] 6-7 (Dkt. 139-4 at 368), referring to Exs. 1 & 2 (Dkt. 139-4 at 370-373). This is the only image in which Jessica is identified in the record.

1 an essential element of proof for defendant’s underlying criminal offense (18 U.S.C. § 2 2252), it is thus an essential element to establish plaintiffs’ victimhood. 3 a. Documents from underlying criminal matter 4 Plaintiffs, in their supplemental chart, first identify a set of documents as applicable 5 to all plaintiffs to establish that defendant possessed their CSAM in violation of Title 18 6 U.S.C. § 2252. They are (1) the plea agreement from defendant’s criminal case, (2) the 7 transcript of defendant’s plea hearing where he admits possession of computer media 8 containing child pornography, and (3) a Report of Investigation from HSI’s criminal 9 investigation of defendant listing the same computer media as that contained in the plea 10 agreement. 11 These documents generally present defendant’s criminal culpability, an important 12 set of facts underlying plaintiffs’ case in chief. However, none of these documents 13 provide the necessary nexus to establish that the CSAM depicting plaintiffs’ alleged 14 abuse was found in defendant’s possession. These documents generally show that, 15 throughout his criminal plea, defendant Curtis specifically avoided admitting or otherwise 16 establishing that any of the individuals depicted in the CSAM he possessed are statutory 17 victims. See, e.g., “Stipulation re: Restitution to Claimants Other than ‘CC’”, United 18 States v. Randall Curtis, 16-cr-00510-SI, Dkt. 90 at 2, (“the defendant does not concede 19 that any of the [restitution] Claimants is a statutory victim, and nothing in this Stipulation 20 shall be construed as any admission by defendant in any proceeding by any party”). 21 Defendant generally admitted possession of contraband media, but he did not admit 22 possessing media depicting the plaintiffs in this case. Plaintiffs’ reliance on this set of 23 documents from defendant’s criminal case is therefore unavailing. 24 b. NCMEC Report 25 Plaintiffs additionally rely on the information provided in the NCMEC report in their 26 attempt to establish defendant’s possession of their CSAM. However, as plaintiffs 27 acknowledge, the NCMEC report identifies that images from certain “child pornography 1 criminal case. Each series may also depict more than one individual, meaning that even 2 if a series is identified in some media, an individual plaintiff may not be depicted within 3 that specific media. Plaintiffs’ presentation is missing any declaration or other showing 4 that CSAM depicting each individual plaintiff was found on defendant’s computer. 5 c. Laws Declaration 6 Plaintiffs additionally refer to the report of their expert, Kevin Laws, to establish 7 that their CSAM was found in defendant’s possession. As defendant has pointed out, 8 however, plaintiffs fail to establish that the unsanitized media reviewed by Laws at the 9 HSI office was the media found on defendant’s computer, forming the basis for his 10 conviction. In Mr. Laws’ declaration, he states that he was tasked with performing a 11 forensic examination of the media found on the digital devices seized by HSI during its 12 criminal investigation of Curtis, but there is no confirmation in the declaration that the files 13 reviewed by Mr. Laws indeed originated from or matched those from defendant’s 14 computer.10 See Laws Decl. ¶ 7 (Dkt. 139-4 at 146). Mr. Laws’ testimony simply states 15 that Special Agent Popper provided him with a portable Universal Serial Bus (USB) drive 16 containing folders with titles consistent with defendant’s computer media. Laws Decl. ¶ 8 17 (Dkt. 139-4 at 147). Plaintiffs further fail to establish that the sanitized media received by 18 Laws after his in-person review was the media found on defendant’s computer. Mr. Laws 19 reported receiving by email the sanitized images relied upon elsewhere in plaintiffs’ 20 evidentiary presentation from HSI Group Supervisor Christina Barfuss. Laws Decl. ¶ 11 21 (Dkt. 139-4 at 158). Laws does not report that Supervisor Barfuss made any 22 representations regarding the source of these images. Id. Plaintiffs have made much of 23 the difficulties posed by the new and unique evidentiary procedure under Title 18 U.S.C. 24

25 10 The court harbors some doubt that HSI officials would permit Mr. Laws to review any unsanitized CSAM recovered from a criminal investigation without first establishing Mr. 26 Laws’ representative status in relation to these plaintiffs and defendant’s criminal culpability. The terms of Title 18 U.S.C. § 3509(m)(3) limit the viewing of the contraband 27 images to the victims or their representatives. However, the court cannot assume the 1 § 3509(m)(3) to allow their designated representative to review the contraband images in 2 government custody. The difficulties with contraband evidence, however, cannot serve to 3 excuse their lack of evidentiary showing for this essential element—that the images upon 4 which plaintiffs claim their victimhood were found in defendant’s possession, on his 5 computer. 6 To be clear, in the absence of a declaration or deposition testimony from the 7 person who conducted the forensic examination of defendant’s computer, or someone 8 with personal knowledge of the contents of his computer, that each of these images 9 relied on by plaintiffs, rather than just the series of which they are known to be included in 10 the past, none of the plaintiffs establish that defendant possessed CSAM depicting them. 11 Plaintiffs are not entitled to a favorable adjudication of this issue, and they must proceed 12 to trial to establish defendant’s possession. 13 V. Summary of Findings and Conclusions as to Each Element 14 The court adjudicates the following elements of each plaintiff’s single claim for 15 liquidated damages under Section 2255: 16 • Amy. Amy’s identity as the girl pictured in the image discussed above is 17 established through her own declaration. Amy’s own description of the 18 pornographic nature of the image, confirmed by the court’s in camera 19 review, meets the definition of sexually explicit conduct. Defendant offers 20 no contrary evidence as to these two elements. These two elements are 21 summarily adjudicated in Amy’s favor. However, Amy’s showing of 22 defendant’s possession of that image is insufficient and summary 23 adjudication is denied as to that element. 24 • Erika. Erika’s identity is not established in any of the images proffered by 25 plaintiffs as Jane Smith, mother of Erika and Tori, fails to distinguish 26 between the girls in her declaration. Plaintiffs offer no description of media 27 depicting Erika engaged in sexually explicit conduct. There is no showing 1 is denied as to Erika. 2 • Tori. Tori’s identity is not established in any of the images proffered by 3 plaintiffs as Jane Smith, mother of Erika and Tori, fails to distinguish 4 between the girls in her declaration. Plaintiffs offer no description of media 5 depicting Tori engaged in sexually explicit conduct. There is no showing 6 that any image of Tori was possessed by defendant. Summary judgment is 7 denied as to Tori. 8 • Jenny. Jenny’s identity as the girl pictured in the image discussed above is 9 established through her own declaration. Jenny’s own description of the 10 pornographic nature of the image, confirmed by the court’s in camera 11 review, meets the definition of sexually explicit conduct. Defendant offers 12 no contrary evidence as to these two elements. These two elements are 13 summarily adjudicated in Jenny’s favor. However, Jenny’s showing of 14 defendant’s possession of that image is insufficient and summary 15 adjudication is denied as to that element. 16 • Jessica. Jessica’s identity as the girl pictured in one of the images is 17 established through the declaration of her mother. Defendant offers no 18 contrary evidence as to this element. The element of identity is summarily 19 adjudicated in Jessica’s favor. Plaintiffs offer no description of media 20 depicting Jessica engaged in sexually explicit conduct. Plaintiffs make no 21 showing that any image of Jessica was possessed by defendant. Summary 22 adjudication is denied as to these two elements for Jessica. 23 • Lily. Lily’s identity as the girl pictured in the image discussed above is 24 established through the declarations of POCs Special Agent Joshua Findley 25 and Retired Detective Roy Shepherd. The descriptions of the pornographic 26 nature of the image by Laws and the POCs, confirmed by the court’s in 27 camera review, meet the definition of sexually explicit conduct. Defendant 1 are summarily adjudicated in Lily’s favor. However, Lily’s showing of 2 defendant’s possession of that image is insufficient and summary 3 adjudication is denied as to that element. 4 • Maureen. Maureen’s identity as the girl pictured in the image discussed 5 above is established through her own declaration as well as that of POC 6 Retired Special Agent Thomas Rothrock. Maureen and Agent Rothrocks’ 7 descriptions of the pornographic nature of the image, confirmed by the 8 court’s in camera review, meet the definition of sexually explicit conduct. 9 Defendant offers no contrary evidence as to these two elements. These 10 two elements are summarily adjudicated in Maureen’s favor. However, 11 Maureen’s showing of defendant’s possession of that image is insufficient 12 and summary adjudication is denied as to that element. 13 • Mya. Mya’s identity as the girl pictured in the image discussed above is 14 established through declarations of her mother and POC Corporal Adele 15 Brown. The descriptions of the pornographic nature of the image by Laws 16 and the POC, confirmed by the court’s in camera review, meet the definition 17 of sexually explicit conduct. Defendant offers no contrary evidence as to 18 these two elements. These two elements are summarily adjudicated in 19 Mya’s favor. However, Mya’s showing of defendant’s possession of that 20 image is insufficient and summary adjudication is denied as to that element. 21 • Pia. Pia’s identity as the girl pictured in the image discussed above is 22 established through declarations of her mother and POC Corporal Adele 23 Brown. The descriptions of the pornographic nature of the image by Laws 24 and the POC, confirmed by the court’s in camera review, meet the definition 25 of sexually explicit conduct. Defendant offers no contrary evidence as to 26 these two elements. These two elements are summarily adjudicated in 27 Pia’s favor. However, Pia’s showing of defendant’s possession of that 1 • Sally. Sally’s identity as the girl pictured in the image discussed above is 2 established through the declaration of her father, John Doe. Defendant 3 offers no contrary evidence as to this element. The element of identity is 4 summarily adjudicated in Sally’s favor. The description of the media 5 depicting Sally does not match the unsanitized version of the image 6 reviewed in camera, and defendant argues that the description of the image 7 does not meet the definition of sexually explicit conduct. Summary 8 adjudication is denied as to the element of sexually explicit conduct. 9 Plaintiffs make no showing that any image of Sally was possessed by 10 defendant. Summary adjudication is also denied as to this element for 11 Sally. 12 • Sarah. Sarah’s identity as the girl pictured in the image discussed above is 13 established through her own declaration as well as that of Retired Detective 14 Deborah Behymer. Defendant offers no contrary evidence as to this 15 element. This element is summarily adjudicated in Sarah’s favor. The 16 description of the pornographic nature of the image by Detective Behymer, 17 while confirmed by the court’s in camera review, does not squarely meet 18 the definition of sexually explicit conduct and summary adjudication is 19 denied as to that element. Sarah’s showing of defendant’s possession of 20 that image is insufficient and summary adjudication is denied as to that 21 element. 22 • Savannah. Savannah’s identity as the girl pictured in the image discussed 23 above is established through her mother’s declaration. The description of 24 the pornographic nature of the image by Laws, confirmed by the court’s in 25 camera review, meets the definition of sexually explicit conduct. Defendant 26 offers no contrary evidence as to these two elements. These two elements 27 are summarily adjudicated in Savannah’s favor. However, Savannah’s 1 summary adjudication is denied as to that element. 2 • Sierra. Sierra’s identity as the girl pictured in the image discussed above is 3 established through the declaration of her father. Laws’ description of the 4 pornographic nature of the image, confirmed by the court’s in camera 5 review, meets the definition of sexually explicit conduct. Defendant offers 6 no contrary evidence as to these two elements. These two elements are 7 summarily adjudicated in Sierra’s favor. However, Sierra’s showing of 8 defendant’s possession of that image is insufficient and summary 9 adjudication is denied as to that element. 10 • Skylar. Skylar’s identity as the girl pictured in the image discussed above 11 is established through the declaration of her mother. Laws’ description of 12 the pornographic nature of the image, confirmed by the court’s in camera 13 review, meets the definition of sexually explicit conduct. Defendant offers 14 no contrary evidence as to these two elements. These two elements are 15 summarily adjudicated in Skylar’s favor. However, Skylar’s showing of 16 defendant’s possession of that image is insufficient and summary 17 adjudication is denied as to that element. 18 • Violet. Violet’s identity as the girl pictured in the image discussed above is 19 established through the declarations of her mother and POC Special Agent 20 Jeffrey Stetler. The descriptions of the pornographic nature of the image by 21 Laws and the POC, confirmed by the court’s in camera review, meet the 22 definition of sexually explicit conduct. Defendant offers no contrary 23 evidence as to these two elements. These two elements are summarily 24 adjudicated in Violet’s favor. However, Violet’s showing of defendant’s 25 possession of that image is insufficient and summary adjudication is denied 26 as to that element. 27 // 1 VI. Conclusion 2 For these reasons, the court hereby GRANTS summary judgment in part and 3 DENIES summary judgment in part and adjudicates the various elements of each 4 plaintiff’s claim as indicated above. The elements not adjudicated in plaintiffs’ favor must 5 proceed to trial. A telephone conference will be held shortly in order to discuss the trial 6 date. 7 IT IS SO ORDERED. 8 Dated: April 13, 2021 9 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 10 United States District Judge

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