United States v. Harvey Pelland

494 F. App'x 475
CourtCourt of Appeals for the Fifth Circuit
DecidedOctober 17, 2012
Docket11-10929
StatusUnpublished

This text of 494 F. App'x 475 (United States v. Harvey Pelland) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth 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. Harvey Pelland, 494 F. App'x 475 (5th Cir. 2012).

Opinion

PER CURIAM: *

Defendant-Appellant Harvey James Pelland appeals his convictions on one count of possessing child pornography and five counts of receiving visual depictions of a minor engaging in sexually explicit conduct. He argues that the government offered insufficient evidence to sustain these convictions, that the possession conviction was based on erroneously decided circuit precedent, and that the receipt convictions were multiplicitous. For the reasons that follow, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant-Appellant Harvey James Pelland is a seventy-seven-year-old Canadian native. In March 2007, he was convicted in British Columbia of making or publishing child pornography and possessing child pornography. After serving a prison sentence for these convictions, Pel-land moved to the United States in violation of his parole conditions. While living in Arizona in early 2008, Pelland met Patsy Poisson in an Internet chat room aimed at users over age fifty-five. The two later met face-to-face, and continued to have contact via telephone and the Internet. Because Poisson was to undergo hip surgery in August 2008, Pelland agreed to house-sit at her home in Odessa, Texas. After Poisson returned in November 2008, the two became roommates, moving into a rented house in Big Spring, Texas.

Poisson and. Pelland had separate bedrooms in the Big Spring house. Pelland kept in his bedroom a laptop computer he had owned before moving in, as well as a Compaq desktop computer that Poisson gave to him after they moved in. Nobody but Pelland used the desktop computer after Poisson gave it to him. Poisson also gave Pelland a thumb drive, which she had previously used only to store music files. Pelland and Poisson each had Internet access in his-or her bedroom.

After law enforcement learned of Pel-land’s whereabouts, Big Spring Police obtained an arrest warrant for Pelland for failing to register as a sex offender. They arrested him at his and Poisson’s home on April 6, 2009. A federal grand jury later charged Pelland with multiple child pornography offenses. Although the district court dismissed the initial indictment without prejudice based on a Speedy Trial Act violation, the government filed a new criminal complaint against Pelland. The grand jury then returned a superseding indictment, charging Pelland with possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) (Counts 1 and 4), and receiving visual depictions of a minor engaging in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2) (Counts 2-8 and 5-7).

At trial, Big Spring Police Officer Thad Thomas and I.D. Technician Wayne Jones testified that, following Pelland’s arrest, police searched his bedroom with his verbal and written consent. They removed, inter alia, the desktop computer and thumb drive that Poisson had given to him, Pelland’s laptop, and about thirty-five DVDs. Big Spring Police turned these de *477 vices over to Immigration and Customs Enforcement computer forensics agent James Paul Cummings, Jr., for investigation and analysis. Cummings testified that he found over one hundred images of nude children on the desktop’s hard drive, over thirty such images on the thumb drive, and a video on the thumb drive depicting a minor engaging in sexually explicit conduct. The parties stipulated that the visual depictions for which Pelland was charged included actual minors under age eighteen. Cummings found no sexually explicit files on Pelland’s laptop or the DVDs.

Testifying as an expert on computer investigations and analysis, Cummings explained the technical aspects of his findings. Many of the child pornography files in the desktop and thumb drive included information respecting their “creation dates.” A creation date can be either the date a file is transferred onto a new storage device, or a static date showing when a file was originally created (for example, by being downloaded from the Internet). The creation dates for the ten files set out in the superseding indictment were six separate dates between March 18 and 81, 2009.

Cummings verified that the desktop computer’s date and time settings were correct. Department of Homeland Security (“DHS”) investigator Michael Brunet testified that Pelland admitted in a post-arrest interview to using the desktop computer during the period covering the charged files’ creation dates. Pelland further stated in this interview that he was responsible for any pornographic images found on the computers or thumb drive. Although Pelland was charged only for possessing or receiving files with March 2009 creation dates, some of the child pornography files that Cummings found had creation dates as early as May 6, 2008.

Cummings testified that although the image set out in Count 4 was found in the desktop computer’s “temporary internet files” folder — indicating this image was downloaded from the Internet — the remaining files set out in the superseding indictment were in different file paths that did not necessarily indicate Internet viewing or downloading.

Cummings also testified as to Pelland’s use of “Internet relay chats” (“IRCs”)— Internet chat rooms that permit users to send electronic messages to one another. Pelland frequented IRCs related to sexual exploitation of children. Users in these IRCs asked where they could find child pornography, directed others to websites where child pornography could be downloaded, and arranged to exchange child pornography via e-mail or file-sharing programs. Pelland’s desktop computer automatically generated logs showing the date and time Pelland entered a child pornography IRC, as well as the explicitly named “channels” he accessed in these IRCs. Cummings recovered these logs, which showed IRC log-in dates ranging from February 22 to April 8, 2009. In a trial exhibit, the government set out the sixteen dates in the period from March 10 to April 3, 2009 on which Pelland accessed at least one IRC. The creation dates of the ten files for which Pelland was charged each corresponded to an IRC log-in date.

Pelland confirmed to DHS investigator Brunet that he had used IRCs to obtain links to child pornography websites, and that he had viewed child pornography on these websites. Cummings determined that a sexually explicit website had been accessed from the desktop computer, albeit on a date that does not match the creation date of any file for which Pelland was charged. Pelland’s descriptions to Brunet of the images he had viewed on the Internet were consistent with the images set out in the superseding indictment.

*478 Cummings also found file-deletion software on the desktop’s hard drive, which is used to wipe files from a data storage device. Using a computer operating system’s built-in “delete” function does not completely remove a file; doing so merely removes the computer’s ability to find the file, and permits the computer to overwrite the file with new files. Cummings determined that the file-deletion software had been used, and Brunet testified that Pelland expressed surprise when Brunet described files Pelland thought he had deleted from the thumb drive.

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Bluebook (online)
494 F. App'x 475, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-harvey-pelland-ca5-2012.