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CAN DELETED PORN BE USED IN A

POSSESSION OF CHILD PORNOGRAPHY CASE?

Houston Criminal Defense Attorney John T. Floyd Discusses How


Deleted Computer Files Can be Used in the Prosecution of a Child
Pornography Case

FBI agent Randall Clark is part of the Houston Area Cyber Crimes Task
Force. His job is to track and catch sex predators looking for child victims
on the internet. In a recent interview with the Houston CHRONICLE, Clark
said that “we know whenever there are kids online, there will be predators,
so we try to get into those places [like MySpace].”

Before sex predators start trolling the internet for child victims they more
often than not have visited child pornography sites. There are dozens of
these international websites more than willing to ply their trade with willing
consumers. The problem, however, is that some innocent internet travelers –
particularly those who visit adult porn sites – will encounter child porn sites
or receive child pornography. Most of the adult porn voyeurs will
immediately “delete” the child porn images as soon as they receive it. They
want nothing to do with it.

But can “deleted” child porn be used to prosecute a person for possession of
child pornography in the State of Texas? Human logic, and the language of
the law, would indicate not. But the law is not always what it appears or
what its language suggests.

The Texas child pornography statute provides, in part, that a person commits
the offense of possession of child pornography if that person “knowingly or
intentionally possesses visual material that visually depicts a child …
engaging in sexual conduct[.]” See: Tex.Pen. Code Ann. § 43.26(a)(1)
(Vernon 2003).

Child pornography is “contraband” under Texas law much like illegal


narcotics. A person possesses contraband under the law when he exercises
actual care, custody, control, or management over the contraband. See: Tex.
Pen. Code Ann. § 1.07(a)(39) (Vernon Supp. 2006). A person acts
“intentionally” to possess contraband when it is his conscious objective or
desire to engage in that conduct or to cause the result. See: Tex.Pen. Code
Ann. § 6.03(a) (Vernon 2003). A person acts “knowingly” when he is aware
of the nature of his conduct or that the circumstances exist or when he is
aware that his conduct is reasonably certain to cause the result. Id., §
6.03(b).

It would seem that this statutory language would protect the innocent
internet traveler. That would be a dangerous misconception. The State is
required to prove these issues almost invariably through circumstantial
evidence. See: Hernandez v. State, 819 S.W.2d 806, 810 (Tex.Crim.App.
1991). And the courts have carved out a rather liberal standard that a jury in
a criminal case can infer guilty knowledge from all the circumstances of that
case, including the acts, conduct, and remarks of the defendant and from the
surrounding circumstances. See: Dillon v. State, 574 S.W.2d 92, 94
(Tex.Crim.App. 1978).

Still, it would seem that a person who has received, and deleted, child
pornography no longer has actual care, custody, control, or management of
that contraband sufficient to warrant a criminal prosecution. But that is not
always the case. To fully understand this legal contradiction, one must
understand how law enforcement agencies, like the one Agent Clark is
associated with, investigates, secures, and recovers child pornography.

Computer forensics experts in law enforcement agencies typically use a


software called “EnCase” in its child pornography investigations. EnCase
involves the acquisition, authentication, and reconstruction of information
located on a computer hard drive. Texas courts have consistently recognized
that EnCase satisfies the criteria set forth by the Texas Court of Criminal
Appeals in Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App. 1992) that to be
reliable, scientific theory (a) must be valid, (b) the technique applying the
theory must [also] be valid, and (c) the technique must have been properly
applied on the particular occasion. Id., at 573.

Encase is used worldwide by law enforcement agencies, including the


United States Postal Service. It acquires data and analyzes it without writing
anything to the images it obtains, including deleted files. It accomplishes
this task in child pornography cases by looking at the computer’s internet
search queries using key words like "pedophile" which will generally
produces queries like "pedophile sex stories," "pedophile," "free pedophile
sex," or "pedophile stories." SC Magazine compared EnCase to several
other forensics softwares and gave it an overall five-star rating out of five
stars. Texas courts have recognized that Encase has a “low potential rate of
error.” See: Williford v. State, 127 S.W.3d 309, 311 (Tex.App.-Eastland
2004)

But Encase is not without some deficiencies which are listed below:

• It cannot determine how images were received by a computer,


whether by email, or internet search, or from a disk.
• It does not tell how long images are on a computer before being
deleted to the recycle bin.
• It cannot detect whether child pornography got into a computer
through a “back door Trojan Horse.”

See: Fridell v. State, 2004 Tex.App. LEXIS 11501, pp. 5-6 (Tex.App.-
Beaumont 2004)

At the outset it should be noted that some criminal defendants have argued
that the possession of child pornography itself in one’s home is an activity
protected by the First Amendment to the United States Constitution. See,
e.g.: Stanley v. Georgia, 394 U.S. 557 (1969). Texas courts, however, have
held that the state has the power to prohibit, regulate, and criminalize child
pornography, including possession in the home. See: Savery v. State, 782
S.W.2d 321, 323 (Tex.App.-Beaumont 1989). See also: New York v. Ferber,
458 U.S. 747 (1982). The Savery court held:

“Appellant maintains that the paramount issues were his First Amendment
rights. We think we correctly held that the Texas child pornography statute
was and is a separate and distinct legislative enactment narrowly drafted and
is a separate and distinct proper legislative prerogative which does not
offend the First Amendment. We hold the First Amendment does not forbid
a state of the Union from prohibiting child pornography -- even its
possession in a home. We determine TEX. PENAL CODE ANN. sec. 43.26
(Vernon 1989) is valid.

”The sovereign States are empowered to regulate pornographic depictions of


children. This power is soundly based. A State's interest in protecting and
safeguarding the physical, psychological, mental and emotional well-being
of a minor is compelling. A self-governing democracy depends for its future
life on the healthy, well-rounded maturation process of its children and
young people into responsible adult citizens. Indeed, the prevention of
sexual exploitation and abuse of children constitutes an appropriate State
objection of paramount importance. We reiterate that Ferber, supra, was a
holding that the First Amendment does not forbid a sovereign state from
prohibiting child pornography. Even the possession of child pornography
may be prohibited, the possession being a first step in distribution. Certainly
the sale and distribution of child pornography can constitutionally be
forbidden. Hence, TEX. PENAL CODE ANN. sec. 43.26 (Vernon 1989) is
constitutional..

”We conclude that the Ohio case of State v. Meadows, 28 Ohio St. 3d 43,
503 N.E.2d 697 (1986) is a well reasoned case and a parallel situation to our
case sub judice. In Meadows, supra, the Court held that the Ohio statute
which criminalizes the knowing, in-home, private possession of materials
that show minors participating or engaging in sexual activity, masturbation
or bestiality did not run contrary to the First Amendment to the United
States Constitution. Point of error one is overruled.” Id. [Internal citations
omitted].

The First Amendment having been thoroughly dismissed, it naturally


follows that this prohibition against in-home child pornography includes
images or material received and ultimately deleted. The defendant in Fridell
the defendant was convicted of aggravated sexual assault of a child and
possession of child pornography. The defendant voluntarily surrendered his
computer to the police in June 2003 and gave them consent to search it. The
state’s computer forensic expert testified at Fridell’s trial that there was no
evidence, such as defendant’s name, to link him to or to show that he created
the recovered files depicting images of child pornography.

The State, however, relied upon another computer forensic expert who
testified that his investigation of Fridell’s computer hard drive showed the
term “Lolita” 5,000 times and the term “teen” some 10,000 times. He also
found numerous internet search queries with terms such as “preteen,”
“naked,” and “young female.”

Fridell testified that he remembered seeing several of the photographs but


not most of them. He said he saw some of the images because they would
“pop-up” while he was using his computer. Saying he did not intend to have
child pornography, he tried to get rid of the images by deleting them to the
recycle bin. And while he said others had access to his computer and he did
not use the search term “teen girls” on his web browser, he could not offer
any evidence as to who at his home might have used the computer or had an
interest in child pornography.

The appeals court rejected Fridell’s testimony, saying:

“The numerous photographs recovered, the extensive use of appellant's


computer in searching for child pornography, and the appellant's attempts to
erase material from the computer all show that appellant's possession of
child pornography was knowing or intentional. We find that the evidence is
legally sufficient to the support appellant's conviction. Likewise, we find
that the evidence is factually sufficient and that the convictions are neither
clearly wrong nor manifestly unjust.”

Similarly, Anthony Bruce Carter was convicted in Dallas for four counts of
possession of child pornography. See: Carter v. State, Tex.App. LEXIS
10687 (Tex.App.-Dallas 2006). Like Fridell, Carter in October 2003
consented to letting the police search and seize his computer which resulted
in several images of child pornography being recovered from it. At his trial,
Carter testified that he received three of the images in one closed file as an
attachment to an email after he visited an internet chat room. He said he had
no reason to believe the attachment contained child pornography, and as was
his practice with all email attachments, he downloaded it to his My
Documents folder. He said that he later opened all three images at the same
time, and when he realized they contained child pornography, he
immediately deleted them. He qualified his testimony by saying that he
inadvertently saved one of the images to My Documents and sent the other
two directly to the recycle bin.

Carter also testified that he saved other images to his My Documents folder,
believing that they did not depict a child under the age of 18. His testimony,
however, was rebutted by a voluntary statement he gave to the police on the
day they seized his computer which stated he had “received and reviewed
some child porno in the past but all has been deleted. All this happened on
the Net. In AOL Chat is where this all took place.” Carter countered by
saying his statement was referring to the three images received in the email
attachment.

But the Carter court, like the court in Fridell, was not persuaded by his
deletion defense:
“The evidence shows appellant testified inconsistently about his receipt and
deletion of the images in exhibits 8 and 10. At one point, he said he saved
these images to his My Documents folder. At another point, he testified he
inadvertently saved exhibit 8 to his My Documents folder and sent exhibits 9
and 10 directly to the recycle bin. In his written statement, he stated ‘all this
happened’ on an internet chat room, but he testified he received the images
through email. Appellant also admitted he reviewed the images, although he
testified he deleted them immediately upon realizing they contained child
pornography.

”The computer analysis shows that appellant chose to save the images in My
Documents. Otherwise, according to Lt. York, the images would have been
retrieved from his temporary internet files folder. And the evidence showed
appellant renamed exhibits 9 and 10 before deleting them. Further, several
internet search queries using the word ‘pedophile’ were found on appellant's
computer. Appellant did not deny making these searches; he said he did not
remember making them. And in his statement, appellant admitted he had
reviewed child pornography in the past, although he testified he was
referring to the images in exhibits 8, 9, and 10, which he claimed he
immediately deleted.

”Appellant does not cite any authority to support his argument that the State
must prove the length of time the images were on appellant's computer. The
penal code states that possession is a voluntary act if the possessor
knowingly obtains or receives the thing possessed or is aware of his control
of the thing for a sufficient time to permit him to terminate his control. Id. §
6.01(b). The jury was free to believe some, all, or none of appellant's
testimony. And the jury has the exclusive duty of reconciling conflicts in the
evidence. We conclude the jury could have reasonably concluded appellant
knowingly or intentionally possessed the images depicted in exhibits 8 and
10 under either theory of possession.”

The only protection for the innocent internet traveler is to avoid pornography
sites altogether. While adult pornography is legal on the internet, those sites
are often entwined with child pornography sites. An unsuspecting adult
pornography viewer could inadvertently trigger a download of child
pornography and be forced to immediately delete it. Innocent downloading
of unknown images to particular document folders or files could be seen as
evidence of intent to possess. The EnCase program used by law
enforcement cannot determine how long child pornography is on a computer
before it is deleted; however, since the State does not have to prove the
length of time child pornography is on a computer in order to secure a
conviction under § 43.26(a)(1), the prudent course is to avoid any kind of
pornography on the internet.