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United States v. Davis

United States Court of Appeals, Seventh Circuit

June 12, 2017

United States of America, Plaintiff-Appellee,
EDWARD J. DAVIS, Defendant-Appellant.

          ARGUED MARCH 27, 2017

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 14 CR 00659 - Gary Feinerman, Judge.

          Before BAUER and EASTERBROOK, Circuit Judges, and DeGuilio, [*] District Judge.

          BAUER, Circuit Judge.

         On May 25, 2016, a jury found Edward James Davis guilty of one count of knowingly transporting and causing to be transported more than 10 images of child pornography, in violation of 18 U.S.C. § 2252A(a)(1), and one count of possession of material which contained an image of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). On October 11, 2016, the district court sentenced Davis to 210 months' imprisonment on each count, to be served concurrently. The court also imposed a $400, 000 fine, $2, 000 in restitution, a five-year term of supervised release, and a $200 special assessment. Davis brings this appeal challenging the sufficiency of the government's evidence at trial, as well as the constitutionality and reasonableness of the $400, 000 fine.

         I. BACKGROUND

         In late 2013, FBI agents began investigating pornographic images that appeared on the online photo-sharing website Shutterfly Shutterfly allows individuals to create an account using an email address, and then upload images to the website. One Shutterfly feature, called a "share site, " allows users to post images and then invite other Shutterfly users to view them, and also upload their own images.

         At Davis' trial, FBI Agent Daniel O'Donnell testified that in January 2014, he executed a search warrant on a Shutterfly share site titled bwbb722." The site showed that it had approximately 50 members at that time, one of whom was a user with the username "Jimmy D." "Jimmy D" joined "bwbb722" on August 29, 2013, and posted just over 2, 000 images to the site on August 30, 2013. Agent O'Donnell testified that he determined, based on his experience and training, that at least 1, 000 of these images depicted minors engaging in sexual intercourse with both minors and adults. The remainder were images depicting minors in either sexually suggestive poses or partially clothed.

         The "Jimmy D" username was created using the email address jimmydbw@cs. com. That email address was registered through AOL. In response to a search warrant, AOL provided the information associated with that address to Agent O'Don-nell. The account was registered to "Jim Davis/' with an address of 10532 West Drummond Place, Melrose Park, Illinois. Davis had owned the home at that address since 1983. The AOL account was also registered with a credit card with the name "James Davis."

         On April 22, 2014, FBI agents and local police executed a search warrant on the home at 10532 West Drummond Place and found Davis there alone. There were two bedrooms in the house, each with one bed. Anthony Stack of the Cook County Sheriff's Department, who participated in the search, testified that only one of the bedrooms appeared to be slept in, while the other appeared to be used for storage. He testified that Davis appeared to be the only occupant of the home. During the search, Officer Stack found and seized two computers-one laptop and one desktop-in the first floor study.

         FBI Special Agent Shannon McDaniel performed the forensic search of the seized computers. She testified that she found 350 images of child pornography on the desktop computer's hard drive and 700 images of child pornography on the laptop's hard drive. These images were located in the "carved space" of the hard drives. FBI Senior Forensic Examiner Jon Shumway testified that when a user deletes an image from a computer, it will remain in the carved space on a hard drive, even though the typical user may no longer be able to see or access it. Agent McDaniel testified that, by using forensic software, she was able to recover the pornographic images from the carved space on the hard drives seized from Davis' home.

         Over 180 of these images were visual matches for the images that "Jimmy D" posted on the "bwbb722" Shutterfly site on August 30, 2013. Agent McDaniel also testified that the forensic software used to search the hard drives was able to recover metadata, which provides specific information about the use and activity of particular images. From the metadata she recovered, Agent McDaniel confirmed that certain of these images had been uploaded from these computers to various Shutterfly share sites using the name "Jimmy D" and the email address Over 30 of the 180 matched images were uploaded to Shutterfly in August 2013, prior to being posted to "bwbb722." Session activity obtained from AOL confirmed that the account was online during the time frames in which "Jimmy D" posted the images to "bwbb722" on August 30, 2013.

         Agent McDaniel also testified as to other information and documents she located on the seized computers. The desktop computer contained a copy of Davis' passport; two photographs of Davis; a landscaping bill addressed to Davis at his home address; an anatomical donation form completed with Davis' name, address, and phone number; and a reservation for a trip made in Davis' name. The laptop computer contained a photograph of Davis, as well as data recovered from an antivirus program that was registered with the email address and Davis' phone number.

          On May 17, 2016, a superseding indictment charged Davis with one count of transporting more than 10 images of child pornography on August 30, 2013, and one count of knowingly possessing an image of child pornography in or around August 2013. On May 25, 2016, after a three-day trial, at which Davis called no witnesses, the jury returned guilty verdicts on both counts. Davis filed a motion for judgment of acquittal, a motion in arrest of judgment, and a motion for a new trial. He argued that the evidence at trial was insufficient to support his convictions, and also made a number of challenges to the court's evidentiary rulings. On July 6, 2016, the district court denied Davis' motions. On October 11, 2016, the court ...

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