United States v. Glassgow

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Docket Number

No. 11–2611.

Attorney(S)

William C. Bracker, Council Bluffs, IA, for appellant. Shannon L. Olson, Asst. U.S. Atty., Des Moines, IA (Nicholas A. Klinefeldt, U.S. Atty., on the brief), for appellee.

Judges

William Duane Benton

Acts

Crimes And Criminal Procedure — Sexual Exploitation And Other Abuse Of Children — Crimes — Certain Activities Relating To Material Involving The Sexual Exploitation Of Minors
Judiciary And Judicial Procedure — Courts Of Appeals — Jurisdiction And Venue — Final Decisions Of District Courts

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Smart Summary

Factual and Procedural Background

A law enforcement investigation into peer-to-peer file-sharing of child pornography led to the seizure of a computer from Robert Eugene Glassgow's residence. Glassgow had built the computer, and its hard drive contained 88 images of child pornography. Glassgow admitted to investigators that he viewed the child pornography found in his shared folder and used coded search terms to retrieve some of the images via the peer-to-peer program “FrostWire.” The images were modified and accessed after downloading, and although Glassgow attempted to delete the files, they remained in unallocated space on the hard drive. These images were offered for distribution approximately 84 times over a six-month period in 2008–2009.

A jury convicted Glassgow of receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2), and he was sentenced to 188 months' imprisonment. Glassgow appealed, arguing insufficient evidence for the conviction, abuse of discretion in admitting evidence, errors in sentencing enhancements, and an unreasonable sentence. The Court of Appeals for the Eighth Circuit affirmed the district court's judgment.

Legal Issues Presented

Whether the evidence was sufficient to support Glassgow's conviction for receipt of child pornography beyond a reasonable doubt.
Whether the district court abused its discretion by admitting images of child pornography and related evidence.
Whether the district court erred in applying sentencing enhancements, including distribution, sadistic conduct, number-of-images, and use-of-a-computer enhancements.
Whether the imposed sentence was substantively unreasonable.

Arguments of the Parties

Appellant's Arguments

Glassgow contended the evidence was insufficient because others had access to the computer, and thus his conviction was based on speculation.
He argued the district court abused its discretion by admitting thumbnail images that were not expandable and exhibits that were only “similar” to those found on his computer.
Glassgow challenged the distribution enhancement, asserting he did not widely distribute the images, create them, or profit from distribution, and claimed ignorance of distribution activities due to lack of sophistication.
He argued against the sadistic conduct enhancement, claiming he did not specifically seek out sadistic images.
He contended the number-of-images and use-of-a-computer enhancements were unfair, emphasizing he was a small-scale offender who tried to delete the images.
Glassgow claimed the child pornography sentencing guidelines are unduly harsh, lack empirical support, and produce sentences greater than necessary.

Appellee's Arguments

The government presented evidence that Glassgow knowingly possessed and distributed child pornography, including his confession and the presence of images in unallocated hard drive space.
Government experts authenticated the images and video clips introduced as evidence, demonstrating their relevance and probative value.
The government argued the distribution enhancement was proper because Glassgow used a file-sharing program and made files available for distribution without any concrete evidence of ignorance.
The government supported the application of sentencing enhancements consistent with established guidelines and case law.
The government maintained the within-guidelines sentence was presumptively reasonable and supported by the record.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
United States v. Moran, 612 F.3d 684, 690 (8th Cir. 2010)	Standard for sufficiency of evidence review: de novo review accepting all reasonable inferences supporting the jury verdict.	Applied to uphold the jury's verdict based on reasonable inferences from the evidence.
United States v. Dorsey, 523 F.3d 878, 879 (8th Cir. 2008)	Standard for reviewing district court's admission of evidence: abuse of discretion.	Applied to affirm the admission of thumbnail images and video clips as not an abuse of discretion.
United States v. McCourt, 468 F.3d 1088, 1092–93 (8th Cir. 2006)	Consideration of whether published videos are unfairly prejudicial.	Referenced to support that the admission of video clips was not unfairly prejudicial.
United States v. Mathijssen, 406 F.3d 496, 498 (8th Cir. 2005)	Standard for reviewing application of sentencing guidelines: de novo review.	Applied in reviewing sentencing enhancements imposed by the district court.
United States v. Durham, 618 F.3d 921, 931–32 (8th Cir. 2010)	Distribution enhancement should not be automatic; fact-finder may infer intent to distribute if file-sharing program used unless concrete evidence of ignorance.	Distinguished because no concrete evidence of ignorance was present; enhancement was proper.
United States v. Johnson, 450 F.3d 831, 834 (8th Cir. 2006)	Recognition that certain images are per se sadistic conduct for sentencing enhancement.	Applied to affirm the sadistic conduct enhancement.
United States v. Maguire, 436 Fed.Appx. 74, 78 (3d Cir. 2011)	Consideration of refusal to apply number-of-images and use-of-a-computer enhancements in sentencing.	Distinguished: refusal to apply enhancements in Maguire does not mandate withholding them in all cases; enhancements here were proper.
United States v. Hill, 638 F.3d 589, 593 (8th Cir. 2011)	Standard for reviewing district court sentence: abuse of discretion.	Applied to review the reasonableness of the imposed sentence.
United States v. Battiest, 553 F.3d 1132, 1136 (8th Cir. 2009)	Presumption of reasonableness for within-guidelines sentences on appeal.	Applied to uphold the sentence as presumptively reasonable.

Court's Reasoning and Analysis

The court reviewed the sufficiency of the evidence de novo, accepting all reasonable inferences supporting the jury verdict. Despite Glassgow's contention that others had access to the computer and that his conviction was speculative, the court found that his confession, the presence of 88 images in unallocated space indicating an attempt to delete, and evidence of distribution supported the verdict of knowingly receiving child pornography.

Regarding evidentiary rulings, the court applied an abuse of discretion standard and concluded that the admission of thumbnail images and video clips was proper. An expert verified that exhibits were authentic enlarged images from Glassgow's computer, and the video clips' SHA-1 hash values matched files offered for distribution, eliminating unfair prejudice.

For sentencing enhancements, the court reviewed the application of the guidelines de novo. The distribution enhancement was upheld because Glassgow used a file-sharing program and knowingly made files available for distribution without any concrete evidence of ignorance. The sadistic conduct enhancement was proper as certain images were per se sadistic. The number-of-images and use-of-a-computer enhancements were appropriate given the quantity of images and computer use, despite Glassgow's arguments about deletion attempts and small scale.

The court reviewed the sentence for abuse of discretion and noted that the within-guidelines sentence is presumptively reasonable. Glassgow's arguments failed to rebut this presumption, and the court affirmed the sentence as reasonable.

Holding and Implications

The judgment of the district court is affirmed.

The court's decision directly upholds Glassgow's conviction and sentence, affirming the sufficiency of evidence, proper evidentiary rulings, appropriate sentencing enhancements, and the reasonableness of the sentence. No new precedent was established; the ruling reinforces existing standards for sufficiency review, evidentiary discretion, sentencing guideline application, and appellate review of sentences.

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UNITED STATES of America, Appellee, v. Robert GLASSGOW, Appellant.

BENTON

William C. Bracker, Council Bluffs, IA, for appellant. Shannon L. Olson, Asst. U.S. Atty., Des Moines, IA (Nicholas A. Klinefeldt, U.S. Atty., on the brief), for appellee.
Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.

BENTON, Circuit Judge.

A jury convicted Robert Eugene Glassgow of receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2). He was sentenced to 188 months' imprisonment. He appeals arguing that there was insufficient evidence for the conviction. He also contends that the district court abused its discretion in allowing the government to introduce into evidence images of child pornography and erred in imposing certain enhancements and an unreasonable sentence. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

The Honorable James E. Gritzner, Chief Judge, United States District Court for the Southern District of Iowa.

A law enforcement investigation of peer-to-peer file-sharing of child pornography led to the seizure of a computer from Glassgow's residence. Glassgow had built the computer; the hard drive had 88 images of child pornography. Glassgow admitted to investigators that he had actually viewed the child pornography found in his shared folder. He used coded search terms to retrieve some of the pornography through the peer-to-peer program “FrostWire.” The child pornography images, after being downloaded, were modified and accessed. Later, Glassgow tried to delete the child-pornography files from the computer, but they remained in unallocated space on his hard drive. These images were offered for distribution via a peer-to-peer network about 84 times in a six-month period in 2008–2009.

II.

The sufficiency of the evidence is reviewed de novo. United States v. Moran, 612 F.3d 684, 690 (8th Cir.2010). All reasonable inferences supporting the jury verdict are accepted. Id. The verdict will be upheld if any interpretation of the evidence could lead a reasonable jury to find guilt beyond a reasonable doubt. Id.

Glassgow argues that the proof at trial was insufficient, stressing that three other people had access to the computer (his then-girlfriend and her two daughters). Although he recognizes that the evidence must be viewed most favorably to the verdict, he asserts his conviction is based on speculation. He contends there was insufficient evidence that he “knowingly” possessed the images of child pornography found on his computer's hard drive. He ignores that he confessed, that the child pornography images were offered for distribution, and that 88 images of child pornography were found in unallocated space on his computer (indicating he tried to delete the images). The reasonable inferences and interpretation of the evidence support the verdict of knowingly receiving child pornography.

III.

The district court's admission of evidence is reviewed for abuse of discretion. United States v. Dorsey, 523 F.3d 878, 879 (8th Cir.2008).

All the pornographic images on Glassgow's computer were in thumbnail sketch form. He alleges they were not expandable for viewing and that the government's exhibits were only “similar” to the thumbnail pictures. Glassgow claims that the district court erred in admitting these exhibits. A government expert, however, verified that the images in exhibits 3 through 17 were the actual enlarged images from Glassgow's computer. To the extent Glassgow is challenging the government's exhibit 1 (a DVD compilation of three video clips from a law enforcement database), the SHA–1 values of these videos matched the SHA–1 values of the files offered for distribution from Glassgow's computer. According to the expert, there was a 99.9999% probability that exhibit 1 contained the same video clips that Glassgow possessed. The admission of exhibit 1 (which was not published to the jury, only described to it) was not unfairly prejudicial. Cf. United States v. McCourt, 468 F.3d 1088, 1092–93 (8th Cir.2006) (published videos were not found to be unfairly prejudicial).

SHA–1 stands for Secure Hash Algorithm Version 1—a digital fingerprint of a computer file. It is a 32–digit number that is calculated for a file and unique to it.

The district court did not abuse its discretion in admitting the thumbnail sketches or the video clips.

IV.

The district court applied enhancements for distribution, sadistic conduct, number-of-images, and use-of-a-computer. The application of the sentencing guidelines is reviewed de novo. United States v. Mathijssen, 406 F.3d 496, 498 (8th Cir.2005).

Glassgow argues that he should not receive a distribution enhancement under § 2G2.2(b)(3)(F) because he did not widely distribute the child pornography, create the images, or make any money by distributing them. True, an enhancement for distribution should not be automatically imposed based on use of a file-sharing program. United States v. Durham, 618 F.3d 921, 931–32 (8th Cir.2010) (reversing a distribution enhancement). Glassgow's reliance on Durham is misplaced because this court held that if a defendant uses a file-sharing program, a fact-finder may reasonably infer he intended to distribute files, unless there is “concrete evidence of ignorance.” Id. Glassgow claims ignorance, contending that he did not intend to distribute the images and was not a sophisticated computer user. Unfortunately, there is no “concrete evidence” of ignorance. Glassgow built the computer, and uploaded and downloaded files and programs. He knowingly made files available for distribution. The enhancement for distribution was not imposed merely because Glassgow used a file-sharing program.

The district court imposed an enhancement for sadistic conduct under § 2G2.2(b)(4). Glassgow acknowledges that certain images on his computer were per se sadistic. See United States v. Johnson, 450 F.3d 831, 834 (8th Cir.2006). But then he argues that he really didn't seek out sadistic images and should not receive the enhancement. This argument has no legal support. The district court properly applied this enhancement.

Because the number of child pornography images was at least 300, but less than 600, the district court imposed a § 2G2.2(b)(7)(C) enhancement, and a § 2G2.2(b)(6) enhancement for use-of-a-computer. Glassgow asserts that because computer programs make it easy to access a large number of images, most offenders are unfairly subject to high enhancements. He also contends that he was just a small-scale offender and should not be punished for the total number of images because he tried to delete them. His generic argument that this enhancement is unfair and harsh lacks any legal support. He emphasizes he tried to delete the images, arguing this should bar the distribution enhancement. He relies on an unpublished case where the Third Circuit upheld the district court's decision not to apply two enhancements for use-of-a-computer and number-of-images. United States v. Maguire, 436 Fed.Appx. 74, 78 (3d Cir.2011). The district judge in Maguire refused to apply the two enhancements merely because a computer was used. Maguire appealed his within-guidelines sentence alleging unreasonableness (the government did not appeal). Id. The Third Circuit, considering the totality of the circumstances, found that the sentence was substantively reasonable. Id. at 77–78. Although the Maguire case upheld a refusal to apply the enhancement, it does not require a sentencing court to withhold it in all child pornography cases using a computer. The application of the number-of-images and use-of-a-computer enhancements was proper.

A district court's sentence is reviewed for abuse of discretion. United States v. Hill, 638 F.3d 589, 593 (8th Cir.2011).

Glassgow's offense level of 36 and criminal history category I, resulted in a guideline range of 188 to 235 months. He was sentenced to 188 months. He argues that the child pornography guidelines are unduly harsh, lack empirical support, and produce sentences greater than necessary to serve the objectives of sentencing. Glassgow repeatedly argues he is a “generic offender,” inferring his sentence is substantively unreasonable.

A within-guidelines sentence is presumptively reasonable on appeal. United States v. Battiest, 553 F.3d 1132, 1136 (8th Cir.2009). Glassgow makes no valid appellate argument to rebut the presumption of reasonableness. Id.

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The judgment of the district court is affirmed.
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