United States v. Goberson

527 F.3d 882, 2008 U.S. App. LEXIS 11517
CourtCourt of Appeals for the Ninth Circuit
DecidedMay 30, 2008
Docket07-10100
StatusPublished

This text of 527 F.3d 882 (United States v. Goberson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Goberson, 527 F.3d 882, 2008 U.S. App. LEXIS 11517 (9th Cir. 2008).

Opinion

527 F.3d 882 (2008)

UNITED STATES of America, Plaintiff-Appellee,
v.
Francis Eugene GIBERSON, Defendant-Appellant.

No. 07-10100.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 15, 2008.
Filed May 30, 2008.

*883 Franny A. Forsman, Federal Public Defender, and Jason F. Carr, Assistant Federal Public Defender, Las Vegas, NV, for the appellant.

Steven W. Myhre, Acting United States Attorney, Robert L. Ellman, Appellate Chief, and Elizabeth A. Olsen, Assistant United States Attorney, Reno, NV, for the appellee.

Before: J. CLIFFORD WALLACE and MARY M. SCHROEDER, Circuit Judges, and ROGER T. BENITEZ,[*] District Judge.

*884 WALLACE, Senior Circuit Judge:

Giberson appeals from the district court's denial of his motion to suppress evidence of child pornography found on his personal computer, which led to his conviction for receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2) and possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). He also appeals from his sentence, arguing the district court erred in sentencing him for both possession and receipt of child pornography. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). We affirm his conviction, vacate his sentence, and remand.

I.

On February 24, 2003, a North Las Vegas Police Department officer stopped Giberson because his license plates had expired. During the stop, the officer discovered that Giberson had a false Nevada identification (I.D.) card in the name of Charles F. Walsh, III. After learning that Giberson had three outstanding arrest warrants for traffic violations and no valid driver's license, the officer arrested Giberson. A search incident to the arrest revealed a "Play Cash" card from a casino in Walsh's name. Giberson told the officer that he used the fake I.D. for work and to avoid paying his child support obligation.

United States Health and Human Services (HHS) Agent David Kiesow began an investigation into Giberson's child support obligations and discovered that, in 1991, a Minnesota state court had ordered Giberson to make monthly payments to his ex-wife for the support of their two children. Ironically, Giberson, who at one point had served as Deputy Commissioner of the Minnesota Department of Human Services and had supervised the child support enforcement division, failed to make the required payments and, as of July 2003, was $108,000 behind. Law enforcement efforts to collect Giberson's child support arrearage had been unsuccessful.

As a result of this investigation, Agent Kiesow obtained a warrant to search Giberson's residence in Nevada. The search warrant authorized HHS agents to search for: (1)"records or documents that appear to show ownership of assets or property"; (2) "records or documents from financial institutions" in Giberson's name or the names of any known or unknown aliases; (3) "records and correspondence relating to identification cards"; (4) "records, documents or correspondence ... related to the use or attempted use" of other individual's identities; (5) "correspondence, records and documents" relating to Giberson's or his aliases' earnings and employment; (6) tax records; (7) documents or records showing receipt of income or expenditure of funds; and (8) records referring to Giberson's employer. Prior to executing the warrant, Agent Kiesow had no evidence that Giberson owned a computer or used a computer in the commission of his suspected crimes.

On September 11, 2003, the day after they obtained the warrant, HHS agents searched Giberson's home. In one of the bedrooms, they discovered a personal computer. The computer was on a desk and was connected to a printer that was on an adjacent dresser. Next to the printer, on the dresser, the agents found a sheet of what appeared to be fake Nevada I.D. cards. The agents observed that the cards were not high quality and looked like they could have been printed from the adjacent printer. On the desk with the computer, agents found transparencies depicting the *885 Nevada State Seal. In the drawers of the computer desk, on the desk, and on the dresser next to the desk, they found a number of other documents evidencing the production of false I.D.s, including fake Social Security cards and State of New York birth certificates in the name of Charles Walsh III, one of Giberson's known aliases, and in other names.

Believing that many of the I.D. materials had been printed off of Giberson's computer, Agent Kiesow contacted an Assistant U.S. Attorney, who advised him to secure the computer until the agents could obtain a search warrant for it. Kiesow then sent the computer to a forensics laboratory in Chicago. There, HHS forensic computer specialist David Rehms made a mirror image of the computer's hard drive before shipping the computer back to Giberson's wife in Nevada.

On September 29, 2003, Kiesow obtained a second search warrant. The second warrant authorized a search of the mirror image of Giberson's hard drive for records relating to I.D. cards or the creation of I.D. cards, including driver's licenses, state seals, and pictures of individuals that might be placed on I.D. cards, as well as records related to Giberson's assets, property, employment, and income.

The next day, computer specialist Rehms began his search of the mirror image using a law enforcement utility software package called ILOOK. ILOOK pulls computer files based on file type, and dumps all similar file types into separate folders. For example, ILOOK retrieves all graphics or images files and puts them into one folder. An analyst can then open that folder and view multiple thumbnails (reduced-sized versions) of the images on the computer screen at one time without opening individual files. In this case, after sorting the computer files with ILOOK, Rehms used another software package to view the files because it enabled him to view more thumbnails of graphic images on the screen at a time, making his search more efficient.

While Rehms was scanning the thumbnail images for images and photographs related to the production of fake I.D.s, he discovered images he believed to be child pornography. Rehms immediately stopped his search and telephoned Agent Kiesow, who directed Rehms to stop his search while Kiesow determined the proper course of action. Either later that day or the next day, Kiesow telephoned Rehms and told him to continue searching for the items in the search warrant, but that, if Rehms came across more child pornography, he was to print it out. However, Rehms did not specifically search for child pornography. He continued his search for items related to fake I.D.s, and as he came across images of child pornography, he printed out a sampling. Rehms also found images related to the production of fake I.D.s and seals for the State of Nevada.

Following Rehms' discovery, Kiesow contacted FBI Special Agent Andrew Gruninger, who obtained a search warrant to search the mirror image of Giberson's hard drive. A subsequent forensic search of the hard drive pursuant to the third warrant revealed more than 700 images of child pornography.

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Cite This Page — Counsel Stack

Bluebook (online)
527 F.3d 882, 2008 U.S. App. LEXIS 11517, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-goberson-ca9-2008.