United States v. Anthony Espinosa Gonzales

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 7, 2024
• Docket: 21-10362
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 7 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-10362

Plaintiff-Appellee, D.C. No. 2:17-cr-01311-DGC-1 v.

ANTHONY ESPINOSA GONZALES, AKA MEMORANDUM* Anthony Espinoza Gonzales,

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding

Argued and Submitted November 6, 2023 Phoenix, Arizona

Before: HAWKINS and COLLINS, Circuit Judges, and S. MURPHY,** District Judge.

Appellant Anthony Espinosa Gonzales appeals his jury trial conviction for

eight counts of distribution of child pornography and one count of possession of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Stephen Joseph Murphy III, United States District Judge for the Eastern District of Michigan, sitting by designation. child pornography. As the parties are familiar with the facts, we do not repeat them

here. Gonzales raises three issues on appeal. For the reasons below, we affirm the

district court.

First, Gonzales argued that the district court abused its discretion by finding

that the Government presented adequate foundation for (1) the reliability of

Torrential Downpour, (2) the “mirror image” process used to clone the seized tablet,

(3) the processes underlying the Forensic Took Kit (FTK) tool, and (4) the processes

underlying the Independent Evidence Finder (IEF) tool. We review the district

court’s determinations about authentication and foundation for an abuse of

discretion. United States v. Estrada-Eliverio, 583 F.3d 669, 672 (9th Cir. 2009);

United States v. Tank, 200 F.3d 627, 630 (9th Cir. 2000). “To satisfy the requirement

of authenticating or identifying an item of evidence, the proponent must produce

evidence sufficient to support a finding that the item is what the proponent claims it

is.” Fed. R. Evid. 901(a).

First, the Government presented two witnesses, Detective Erdely and Special

Agent Cullen, who testified to the accuracy and reliability of Torrential Downpour,

the mirror image process, the FTK tool, and the IEF tool and explained how each

electronic forensic tool functions. Because the testimony presented at trial

adequately explained the reliability of the processes underlying all four categories

of digital forensic evidence challenged by Gonzales, the Government satisfied its

2 burden of showing that Torrential Downpour, the mirror image process, the FTK

program, and the IEF program were what the Government claimed they were. See

Fed. R. Evid. 901(a). The district court did not abuse its discretion.

Second, Gonzales argued that the Government failed to prove he knew the

images underlying Counts 4, 7, and 8 were child pornography because it presented

no evidence that he opened or viewed those files. We review a forfeited challenge

to the sufficiency of the evidence for plain error. United States v. Lopez, 4 F.4th

706, 719 (9th Cir. 2021). The crime of distribution of child pornography requires

that a defendant knew that the image at issue depicted a minor engaged in sexually

explicit conduct. 18 U.S.C. § 2252. But the Government need not present direct

evidence that the child pornography files were accessed or opened in every case to

establish knowledge. See, e.g., United States v. Ruiz-Castelo, 835 F. App’x 187,

189 (9th Cir. 2020) (explaining that “the government was required to prove Ruiz-

Castelo’s knowledge that the video contained sexually explicit conduct with a minor,

not that Ruiz-Castelo necessarily viewed the video before he distributed it”).

What is more, the fact that the forensic evidence did not show that the files

containing the images underlying Counts 4, 7, and 8 had been opened does not

undermine the convictions on those counts because circumstantial evidence of the

number of child pornography files and their location may be sufficient to prove

knowledge. United States v. Hardrick, 766 F.3d 1051, 1057 (9th Cir. 2014). Here,

3 Gonzales admitted that he used the tablet to search for child pornography during the

relevant timeframe, he possessed many child pornography files in an unusual

location on the device, and he successfully shared other child pornography files with

the FBI that he viewed but that were no longer on his device. The Government

therefore presented sufficient evidence at trial for a reasonable juror to conclude that

Gonzales knew the images underlying Counts 4, 7, and 8 showed minors engaged in

sexually explicit conduct.

Third, Gonzales argued that the district court improperly delegated the setting

of his restitution payment schedule to the Bureau of Prisons (BOP). Because

Gonzales did not object to the district court’s order setting a restitution payment

schedule at sentencing, his argument is reviewed for plain error. See Fed. R. Crim.

P. 52(b); United States v. Olano, 507 U.S. 725, 732 (1993). To be sure, the district

court cannot delegate the setting of a restitution payment schedule to the probation

office or the BOP. United States v. Gunning, 401 F.3d 1145, 1150 (9th Cir. 2005).

But the BOP nonetheless has “independent power to administer the [Inmate

Financial Responsibility Program (IFRP)],” Ward v. Chavez, 678 F.3d 1042,

1046−47 (9th Cir. 2012), and may require inmates who participate in IFRP “to pay

restitution to victims at a higher or faster rate than was specified by the sentencing

court,” United States v. Lemoine, 546 F.3d 1042, 1044 (9th Cir. 2008). And although

the district court’s judgment here states that “payment shall be made through

4 [IFRP],” Gonzales fails to show that his subsequent participation in that program

was not voluntary on his part. Thus, because Gonzales was a voluntary participant

in IFRP, the BOP had the authority to adjust Gonzales’s restitution payment

schedule. The district court therefore did not plainly err.

We therefore AFFIRM the district court.