THE FEDERAL CORNER
January/February 2007
The “I Didn’t Know It Was On My Hard Drive” Objection
F. R. (Buck) Files, Jr.
The fact situation is so common. Law enforcement officers go to the home of Waldo, the internet pornography viewer. They capture Waldo’s computer. An analysis of the hard drive reveals the presence of child pornography. Waldo eventually enters a plea of guilty to either the charge of receipt of child pornography or of possession of child pornography. A pre-sentence investigation is concluded and Waldo’s Guideline level is determined, in part, by the number of child pornography images found on the hard drive.
During the first interview with his lawyer, Waldo says, “I didn’t know that this stuff was on my hard drive.” His lawyer responds, “Everybody’s heard that one before and it’s not going to sell.” In his objections to the pre-sentence investigation report, Waldo’s lawyer argues to the district judge that his client did not knowingly possess the child pornography images found on the hard drive and objects to the Guideline level. The district judge overrules the objection and sentences Waldo to a significant term of years.
That’s what usually happens and that’s what did happen in the case of United States v. Kuchinski, ___ F.3d ___, 2006 WL 3392641 (9th Cir. 2006). Surprisingly, a three judge panel of the Circuit [Circuit Judges Kozinski and Fernandez and United States District Judge Carney (of the Central District of California, sitting by designation)] agreed with Kuchinski as to his argument concerning the appropriate Guideline level and remanded his case for re-sentencing to United States District Judge Richard F. Cebull of the District of Montana.
When FBI agents seized Kuchinski’s computer and had it analyzed, between 15,120 and 19,000 separate images of child pornography were recovered from the computer.
- 16 of these images where located in the computer’s downloaded files.
- 94 images were located in the computer’s deleted files (recycle bin).
- 1,106 images were in the Active Temporary Internet files.
- 13,904 to 17,784 images were in the Deleted Temporary Internet files (cache files).
Kuchinski was indicted for receipt of child pornography in violation of 18 U.S.C. § 252A(a)(2), possession of child pornography, 18 U.S.C. § 2252A(a)(5)(B) and forfeiture of his computer equipment, 18 U.S.C. § 2253. He entered pleas of guilty to the possession and forfeiture counts and was convicted, after a bench trial, of the receipt count. At his sentencing hearing, he objected to the probation officer’s calculation of the number of child pornography images which Judge Cebull adopted in determining Kuchinski’s his Guideline level. His objection was overruled and he was sentenced to 70 months imprisonment.
Writing for the panel, Judge Fernandez addresses Kuchinski’s argument that he was unaware of the images on his computer’s hard drive:
We have made it plain that a person does knowingly receive and possess child pornography images when he seeks them out over the internet and then downloads them to his computer. In fact, we have declared that, ‘[i]n the electronic context, a person can receive and possess child pornography without downloading it, if he or she seeks it out and exercises dominion and control over it.’ Romm, 455 F.3d at 998; see also United States v. Tucker, 305 F.3d 1193, 1204 (10th Cir.2002). Thus, Kuchinski properly concedes that he did knowingly receive and possess the 110 images that he downloaded. But he was charged with many more-an additional 13,904 to 17,984 images, which appeared in his cache files. That makes a substantial difference to the calculation of his advisory Guideline range. Pursuant to the Sentencing Guidelines, the base offense level for his offense was 17, and, if the offense involved 110 images, 2 levels would be added to that, but if it included over 600 images, 5 levels would be added. The difference is wholly related to the cache files. Did Kuchinski knowingly receive and possess the images in those files, or, rather, does the evidence support a determination that he did? We think not.
According to the evidence before the district court, when a person accesses a web page, his web browser will automatically download that page into his Active Temporary Internet Files, so that when the site is revisited the information will come up much more quickly than it would have if it had not been stored on the computer's own hard drive. When the Active Temporary Internet Files get too full, they spill excess saved information into the Deleted Temporary Internet Files. All of this goes on without any action (or even knowledge) of the computer user. A sophisticated user might know all of that, and might even access the files. But, ‘most sophisticated-or unsophisticated users don't even know they're on their computer.’
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There is no question that the child pornography images were found on the computer's hard drive and that Kuchinski possessed the computer itself. Also, there is no doubt that he had accessed the web page that had those images somewhere upon it, whether he actually saw the images or not. What is in question is whether it makes a difference that, as far as this record shows, Kuchinski had no knowledge of the images that were simply in the cache files. It does.
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Where a defendant lacks knowledge about the cache files, and concomitantly lacks access to and control over those files, it is not proper to charge him with possession and control of the child pornography images located in those files, without some other indication of dominion and control over the images. To do so turns abysmal ignorance into knowledge and a less than valetudinarian grasp into dominion and control.
Therefore, on this record it was not proper to consider the cache file images when Kuchinski's offense level for Guideline purposes was calculated. As a result, the Guideline range was miscalculated, and we must vacate the sentence and remand. See United States v. Cantrell, 433 F.3d 1269, 1280 (9th Cir.2006).
For years, defense lawyers have argued the “young and stupid” semi-defense for their youthful clients. Now, we can have the “I didn’t know it was on the hard drive” objection for the unsophisticated computer user in child pornography cases – or at least they can in the 9th Circuit.
