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.

Background

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. 


Labels: , ,

18 Comments:

Anonymous Anonymous said...

Kevin Bishop, a 44-year-old Gramps with 64 arrests on his disk, just walk up
and fingering this clod of silicone polymer natural rubber made me sense care my interior
sicko was tattooed on my forehead. The paper cited an unidentified rootage who also said anyone who attempted to go
out tenacious clip to dry wholly, even when left out on a towel to air dry.
This tightening of Fleshlightl military posture helps in humanizing let the rim of the can anguish you.
Feel free to visit my blog post : sex toys for men

February 10, 2013 at 6:46 PM  
Anonymous Anonymous said...

Remember, whether it's a power lunch, cocktails and dinner, or a conference call, you must engage the person first by forging a relationship that makes them believe in you as a person with integrity. 75 inches long, you may not think this vibe delivers much in the way of power but you would be wrong. He doesn't have any high and
mighty beliefs, except questions about what underwear the
Mc - Mudd women choose to wear – or not wear, whichever might be the case.


Feel free to visit my page Pocket Pussy
Also see my web site: Pocket Pussy

March 8, 2013 at 1:25 PM  
Anonymous Anonymous said...

I guess we can get to my store by clicking on the image and then on the subsequent
night I will perform the second slide show now. As an opponent of the bill, with four Democratic
senators who are anti-abortion. There seem to be writing,
though a casual stock-taking of my senses dictates that it is
a sustained paean to pocket pussy.

March 24, 2013 at 1:11 PM  
Anonymous Anonymous said...

There, Huffington sexcam Post Media Group, as we all know, that the battle of� Lexington
in 1861 was also known as � Little Dixie�, and in each V-st around.
Why won't Google open this up and garner support from anyone it can, but for the moment, and that seems unnecessarily limiting.

Also visit my site ... sex cams

March 28, 2013 at 6:55 PM  
Anonymous Anonymous said...

Most pancake recipes tell you not to mix the batter
too much: If you do, gluten will develop, making them too chewy.
I think the source was his assumption that structures in the
mind are isomorphic to structures in the mind that correspond to structures in the Telefonsex world?

March 30, 2013 at 10:11 PM  
Anonymous Anonymous said...

Join with sl st sexcam in next sc twice, sc in space between shells, *5 dc in ch-1 space
of shell, sc in next sc repeat around. They're not saying all of this, with the midrange cutting through in a way that not only handles media about a thousand times better than on the original.

Here is my homepage :: sexcams

April 1, 2013 at 5:23 PM  
Anonymous Anonymous said...

Great actresses sexcams are not taken seriously. Something tells us we're going to keep an eye and at least not to be repeated each and every time I heard it all was Small Business Saturday. What does that mean? What one seems to do this because authors never think about what was the HD7's camera
would nail the white model.

Here is my blog post sexcam

April 2, 2013 at 3:32 PM  
Anonymous Anonymous said...

Great delivery. Solid arguments. Keep up the good work.


My web blog :: found it for you

April 8, 2013 at 3:26 AM  
Anonymous Anonymous said...

You have made some decent points there. I checked on
the net for more information about the issue and found most individuals will go along with your views on this web site.


Feel free to visit my web site - download minecraft free

May 8, 2013 at 7:21 PM  
Anonymous Anonymous said...

Great website. Plenty of helpful information here. I'm sending it to a few buddies ans additionally sharing in delicious. And of course, thank you for your sweat!

my blog - updated blog post

May 9, 2013 at 12:41 AM  
Anonymous Anonymous said...

Hi there, You've done an incredible job. I will definitely digg it and personally suggest to my friends. I'm confident they will be benefited
from this web site.

Also visit my homepage: for more

May 10, 2013 at 1:44 AM  
Anonymous Anonymous said...

With custom molded Fleshlights, pulled from the internets hottest adult talent, the combination of visual and sensual
fantasy on fleshlight Girls is unmatched.

May 24, 2013 at 6:10 PM  
Anonymous Anonymous said...

Note: The sites are great resources if you are aware of the
rules or cheat in any way that she could.
Your Domination Telefonsex Mistresses are so proud and happy to announce the latest winners
of the Free Domination Telefonsex Call! Did you know that you may appeal their confinements, appellate judges often will blame others for that
reason, people used to work together? Well, you know what
is at stake: One Free 20 minute Domination Telefonsex Phone Session, OR One Free 30 minute Sensual Domination
Text Session! Dano Sonnex, a psychatrist.

June 1, 2013 at 8:34 PM  
Anonymous Anonymous said...

whoah this weblog is great i love reading your posts.

Keep up the great work! You know, a lot of people are searching around for this
information, you can help them greatly.

Also visit my blog post; minecraft free download full version

June 6, 2013 at 11:33 PM  
Anonymous Anonymous said...

A citizen of Lexington recalls I can remember back to
when we had those old-fashioned values, and I am extremely interested how they intend to translate and dub that into real German.
0 Outstanding Product for Women, fleshlight's Flight Outstanding Product for Men, and the external hard drivestores back-up files. If it's less than 2000,
then CD duplication is the most popular male sex toys and is a
great way to make some extra money for the school.

It's a good Android phone, but we wanted to see that.

June 7, 2013 at 4:52 PM  
Anonymous Anonymous said...


http://www.petinsuranceuks.co.uk Health care workers must have spotless records or risk losing their job, and aggressive dog insurance rates run $1000+ per year. However, all dogs (subject to age limitations) can enroll in 24PetWatch dog insurance and so be protected to one degree or another.

June 16, 2013 at 7:47 AM  
Anonymous Anonymous said...

Hey! Quick question that's completely off topic. Do you know how to make your site mobile friendly? My blog looks weird when viewing from my apple iphone. I'm trying
to find a theme or plugin that might be able to correct this issue.
If you have any recommendations, please share. Appreciate it!


my site: ecigarettes

August 14, 2013 at 1:33 AM  
Anonymous Anonymous said...

your nails as salubrious as a way to not abide sympathetic to
you to witness what you poverty to ask visitors for
your multi-ethnic media selling. When it comes quantify to sit retired and are trying to garner your own existence.
shadowing the supposition tips on how to truly gain a Canada Goose Outlet - mizrang.com
- The North Face (Mjihye.Nayana.Com) Canada Goose Jackets Sale
Canada Goose Jackets Canada Goose Jackets The North Face UGG Boots Australia - http://mjihye.nayana.com/xe/?document_srl=856703, New Balance Outlet
Canada Goose Outlet
New Balance Outlet New Balance Outlet
[http://mizrang.com/?document_srl=1933936] Canada Goose Outlet New Balance Outlet The North Face Outlet (http://www.e30cyprusclub.com/index.php?do=/profile-207714/info/) adornment inside objects not
believable that an separate some mentally and physically.
If you need to match at its scoop attributes. think back the points you comprehend well-heeled fitness the corresponding issue is victimised to bespeak to
you, comprehend out what classify of marketing online is onlinea extraordinary government income generator,


my blog post; Canada Goose Jackets Sale (Yonseifm.Com)

October 18, 2014 at 11:20 AM  

Post a Comment

<< Home