United States v. William Riley Simpson

152 F.3d 1241, 49 Fed. R. Serv. 1631, 98 Colo. J. C.A.R. 4348, 1998 U.S. App. LEXIS 20107, 1998 WL 480097
CourtCourt of Appeals for the Tenth Circuit
DecidedAugust 17, 1998
Docket97-5121
StatusPublished
Cited by103 cases

This text of 152 F.3d 1241 (United States v. William Riley Simpson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth 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. William Riley Simpson, 152 F.3d 1241, 49 Fed. R. Serv. 1631, 98 Colo. J. C.A.R. 4348, 1998 U.S. App. LEXIS 20107, 1998 WL 480097 (10th Cir. 1998).

Opinions

STEPHEN H. ANDERSON, Circuit Judge.

William Riley Simpson appeals his jury conviction on two counts of receiving child [1244]*1244pornography in violation of 18 U.S.C. § 2252(a)(2). The conviction was based on images stored in computer files which were obtained during the execution of a search warrant. He contends that (1) the search warrant was improperly obtained and executed; (2) the court admitted improper evidence and testimony; (3) the evidence was insufficient to support the conviction; and (4) the court abused its discretion in denying a continuance of the trial. We affirm.

I. BACKGROUND

On March 11,-1996, Detective Steve Johnson of the Tulsa Police Department obtained a warrant to search Simpson’s house for child pornography. He subsequently executed the warrant, during which Simpson’s entire computer, 18 diskettes, 19 videotapes, and various documents were seized. .

On March 7, 1997, an indictment was filed against Simpson, charging him with two counts of receiving child pornography -in violation of 18 U.S.C. § 2252(a)(2). Simpson filed a motion to suppress all evidence seized pursuant to the search warrant, which, following a hearing, was denied. The government, provided Simpson with a copy of the seized computer and disks on April 18, 1997. In a.pretrial conference held on May 14, 1997, the.court set the trial date for May 19, 1997. Shortly after the pretrial conference, counsel for Simpson finally located an expert witness to testify on Simpson’s behalf, but because he was going to be out of the country until June 23,1997, Simpson moved for a continuance. The court denied the continuance, but because of a conflict on the court’s schedule, the trial was delayed until May 27, 1997.

At trial, the government’s evidence was almost entirely circumstantial. Agent Reh-man testified that he had a “conversation” under the assumed name of “FlaHawk” in a chat room called “Kidsexpics” -with an individual identified as “Stavron” who said that his name was “B. Simpson” and who gave a street address and e-mail address. Appellant’s App. Vol. II at 147-63. Other witnesses testified that both the street and email addresses belonged to the Defendant, Bill Simpson. See id. at 197-98; Vol. Ill at 382. Agent Rehman and the individual discussed several items of child pornography in lurid detail and the individual identifying himself as B. Simpson indicated that he possessed many images of child pornography. Id. Vol. II at 155-59. The two also made a deal that the individual would send Rehman a check for $30 and a floppy disk containing numerous pornographic images of children under age 13 and in return, Rehman would send a video tape containing sexual interactions between a twelve year-old girl and a sixteen year-old boy. Id. at 157-63. A printout of this conversation was admitted as evidence and published to the jury. Id. at 152-54. Agent Rehman testified that through a series of e-mails from the given email address, the individual backed out of the deal because he was afraid of using the U.S. mail, so nothing was ever sent. Id. at 164-66. Agent Rehman also was qualified as an expert witness on computer terms and usages and testified about the process of transferring files over the Internet. Id. at 171-73.

Detective Johnson testified that he had verified that a Bill Simpson lived at the street address given to Agent Rehman and prepared an affidavit for a search warrant of that address. Id. at 197-98. Detective Johnson and other officers executed the warrant and seized many things, including a computer, disks, and several papers located near the computer. Id. at 198-220. The papers contained the name “FlaHawk” and the name, street address, and e-mail address that Agent Rehman had given the individual in the chat room. Id. at 211.

Timothy Ogiela, a computer specialist with the FBI, testified that he made an exact copy of the seized computer’s hard drive and placed that copy on another computer’s empty hard drive. Id. at 267-72. He also testified that the files on the seized computer’s hard drive were highly organized. Id. at 273-74.

Neil Walters, a Tulsa Police Department Detective who was present during the execution of the search warrant, testified that he copied the seized hard drive onto another hard drive and then copied that onto a CD-ROM. Id. at 281-84. From that CD-ROM and two floppy disks, Detective Walters then showed the jury four “avi” files, which consisted of short digital videos, and eleven [1245]*1245“jpg” files, which consisted of still images. Id. at 288-94. Two of the jpg files that were shown were the files that formed the basis of the two counts of the indictment and the remaining jpg files and the avi files were permitted by the court pursuant to Fed. R.Evid. 404(b). All of the files contained graphic depictions of children engaged in sexual activities, and the judge required that each image be displayed only for a few seconds. Id. at 259.

The prosecution recalled Agent Rehman, who was then accepted by the court as an expert on the use of computers and investigating child exploitation and pornography. Id. Vol. Ill at 346. He testified how many of the individuals who use computers to view child pornography name the files and organize them on their computers. Id. at 350-52. He also went through the list of directories on the seized computer’s hard drive and explained what the directory names could mean. Id. at 354-58. Agent Rehman then explained that in his .experience the fact that the dates differed on the file transfer protocol (“ftp”) log and on the files found on the seized computer is not uncommon because people downloading through the Internet typically receive copies of files they already have, so they then delete the duplicates. Id. at 359-62. He also testified that his experience has shown that a child pornography file with a complex name generally contains the same image no matter where he has found them on the Internet, and he expressed his opinion that the files downloaded through the Internet at a site in Boston were the same as the ones located on the seized computer. Id. at 362-63.

Next, Jeff Bewley, the Server Administrator for an Internet service provider testified that the ftp log found on the seized computer indicated a ■ transfer of files named “doit007.jpg” and “kk-a0021.jpg” from an Internet site located in Boston. Id. at 391-98. He also indicated that files would not be transferred via the Internet accidentally — in other words, the user would know that hé or she was getting a file, although they might not know what the file contained. Id. at 402.

Finally, Dr. Nancy Inhofe, a pediatrician, who had extensive experience using a scientific method of determining the age of a child and who had worked in clinics for sexually abused children, testified for the prosecution that the children pictured in the two files charged were younger than about age eleven. Id. at 414-19, 426-28. Dr. Inhofe also testified that the individuals portrayed in the other images and videos shown to the jury were children. Id. at 429-32.

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Bluebook (online)
152 F.3d 1241, 49 Fed. R. Serv. 1631, 98 Colo. J. C.A.R. 4348, 1998 U.S. App. LEXIS 20107, 1998 WL 480097, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-william-riley-simpson-ca10-1998.