Friday, August 10, 2012

Cache Landing

United States v. Ramos, No. 10-4802-cr (2d Cir. July 2, 2012) (Winter, Raggi, Chin, CJJ)

This long opinion in a child pornography (“cp”) case tackles two interesting issues.


James Ramos was on New York State parole for a sex offense; to secure his release, he agreed to a search condition, to “promptly, fully and truthfully” reply to his PO’s questions, and to “fully” comply with the PO’s instructions.  He also, obviously, had to agree to stay away from “pornographic materials.” After five years, the PO told Ramos that two new conditions, polygraph testing and GPS monitoring, were being added to his supervision. Ramos protested at first, but eventually gave in.

Before his first polygraph examination, Ramos told the examiner that he had viewed forbidden materials, including cp, on his computer several times since his release. He took the test, which was inconclusive, then signed a form admitting what he had told the examiner. After that, he was forbidden from owning or using a computer or accessing the internet.  The PO also told ICE agents about Ramos, and the agents went to his home to follow up. Ramos admitted to the agents that he had viewed cp on his computer and that the agents would probably find some cp images on the computer.  Eventually, Ramos waived his Miranda rights and consented to a search.  The computer revealed that he had visited cp internet sites and viewed images of cp: the hard drive had deleted “cookie” files from suspect websites, and there were deleted web pages that bore the names “Lolita Photos” and “9-12yr Pics,” although the images themselves were not recoverable.  Ramos had seemingly deleted his browser history, but there had been 140 cp images from temporary internet files in the deleted space.

A few months later, after Ramos was indicted, ICE agents and parole officers went to his home to arrest him. A search that day revealed a laptop; PO’s opened it, clicked on an icon and found more child pornography, although those images appeared to be morphs. The hard drive had a software program that permitted a user to alter images and that software had been used to modify pictures of two young girls to make it appear as if they were engaged in sex acts.The laptop was made in Korea and its hard drive was made in Thailand.

In the district court, Ramos moved to suppress his statements and the evidence recovered from the two searches. When that motion was denied, he went to trial and was convicted of three counts of receiving and possessing cp. He received the mandatory minimum for a recidivist - 180 months’ imprisonment.

The Fifth Amendment Issue

Ramos’ first claim on appeal was that the statements he made during the polygraph examination were compelled, in violation of the Fifth Amendment.  While generally the Fifth Amendment privilege must be invoked before an individual can seek its protection, there is an exception for “penalty cases” - those where the government compels waiver of the Fifth Amendment privilege by "threatening some sort of sanction capable of forcing self-incrimination.” Thus, if a probation or parole officer tells a supervisee, “explicitly or implicitly, that invocation of the privilege would lead to revocation of supervision, the supervisee is deemed to have been compelled to speak and his failure to assert the privilege would be excused.” This compulsion occurs where the supervisee is required to “choose between making incriminating statements and jeopardizing his conditional liberty by remaining silent,” but it does not occur “merely because the terms of [release] require [the releasee] to appear before his probation officer and tell the truth ‘in all matters.’” Whether a case is a “penalty case” turns on a examination of the “totality of the circumstances.”

Here, Ramos claimed Fifth Amendment protection for the incriminating statements he made during the course of the polygraph examination. The circuit held that those statement were not compelled. First, Ramos was not told that he would lose his freedom if he invoked the Fifth Amendment. Rather, the consent forms provided only that he could face revocation of his parole if he failed to truthfully answer his PO’s questions.  Moreover, there was no evidence that Ramos “subjectively felt compelled to answer incriminating questions.” Ramos testified that he felt he had to sign consent forms or be sent back to prison, but did not say he felt the same way about answering incriminating questions. Third, Ramos could not have “reasonably believed” that his parole would be revoked if he exercised his Fifth Amendment rights, because that is illegal under New York law.

The Sufficiency of the Evidence

Ramos raised two sufficiency issues on appeal, both unsuccessfully.

His first argument was that viewing images in temporary internet files does not constitute the receipt or possession of child pornography. Here, the trial evidence showed only that Ramos viewed images in temporary internet “cache” files without saving them. He argued that the mere viewing of child pornography stored in temporary cache was insufficient to sustain a conviction under the then-applicable statute, which made it a crime to knowingly receive or knowingly possess material containing an image of cp (the statute has since been amended to include knowingly accessing cp with intent to view it).

The Second Circuit gives the terms receipt and possession their ordinary meaning, but until now it was an open question whether viewing images stored in temporary cache files sufficiently established a knowing receipt or possession of cp. Other circuits have split on the question, although the majority have found that it is, and the circuit went with the majority, at least on the facts here. Even if Ramos “viewed the images in question only in temporary internet files and did not save them into his hard drive,” he still was guilty of knowingly receiving and possessing child pornography.

He “clearly ‘received’ and ‘possessed’ the images, even though they were only" in cache files.  The trial evidence showed Ramos had “some control” over the images, “even without saving them”: he could view them on his screen, leave them on his screen for as long as the computer was on,  copy and attach them to an email, print them and move them from a cache file to other files and view or manipulate them off-line.  Thus, “an individual who views images on the internet accepts them onto his computer, and he can still exercise dominion and control over them, even though they are in cache files.”

Here, in addition, there was “ample evidence” that Ramos intentionally searched for images of cp, found them, and knowingly accepted them onto his computer, albeit temporarily.  This was supported by his browsing history, which showed that he viewed 140 images of cp, his knowledge that the images would likely be found on his computer, and his deletion of his temporary internet files and browsing history.

Ramo’s second sufficiency claim related to interstate or foreign commerce.  One of his computers contained morphed images. He argued both that the government failed to establish that the original “source” images came through the internet or in commerce and that the government failed to show that he produced the images using materials that had traveled in commerce.

The circuit rejected the first argument out of hand. The government does not have to show that the cp itself has crossed state lines. Even cp “created entirely intrastate” had a “significant impact on interstate commerce because” of its effect on the interstate market.

The court also held that the interstate commerce element is established by a defendant’s use of a foreign manufactured computer to produce cp. The morphed images here were found on Ramos’ laptop; both the computer and its hard drive were made in foreign countries, and were thus both materials that had been “shipped or transported in interstate or foreign commerce.” And there was sufficient evidence that Ramos himself used the computer equipment to create the morphs himself. 

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