Argued May 14, 2013
On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 1-11-cr-00004-001) District Judge: Honorable Maurice B. Cohill, Jr.
Karen S. Gerlach, Esq. (ARGUED) Office of Federal Public Defender, Counsel for Appellant
David J. Hickton, Esq. (ARGUED) Robert L. Eberhardt, Esq. Rebecca R. Haywood, Esq., Christian A. Trabold, Esq. Office of United States Attorney, Counsel for Appellee
Before: SMITH, FISHER and CHAGARES, Circuit Judges.
FISHER, Circuit Judge.
Craig Alan Finley was convicted in the U.S. District Court for the Western District of Pennsylvania of production, receipt, distribution, and possession of material depicting the sexual exploitation of a minor. Finley appeals from the District Court's judgment of conviction and sentence of 50 years' imprisonment followed by a life term of supervised release. For the following reasons, we will affirm.
The events leading to Finley's indictment and conviction began in 2010 when FBI Agents Marc Botello of Los Angeles, California and Barry Couch of Rochester, New York commenced independent undercover investigations using GigaTribe, a peer-to-peer online file-sharing program. The agents performed "takeovers" of third party accounts, which allowed them to share files and engage in chats with other users. A user with the screen name Boys4me2010 allowed the agents to access his files, including a number of videos and images that contained child pornography. On one occasion, after Boys4me2010 implied that he was sexually involved with a child, Agent Couch asked for the child's name, and Boys4me2010 gave it. Agent Couch then identified one of Boys4me2010's folders that was titled with the child's name and contained images of a young boy. Thereafter, the agents independently identified Boys4me2010's Internet Protocol ("IP") address, traced the IP address to its provider, Armstrong Cable Services, in Butler, Pennsylvania, and subpoenaed the company for information pertaining to the owner of the IP address. Armstrong responded in each instance that the IP address belonged to Craig Finley of Titusville, Pennsylvania.
Agent Michael Shaffer of the Erie, Pennsylvania FBI office became involved in the investigation after receiving leads from Agents Botello and Couch. On December 23, 2010, Agent Shaffer executed a search warrant for Finley's apartment, and although he found no one inside, he did find a running computer. In order to wake the computer, Agent Shaffer moved its mouse, which allowed him to identify a GigaTribe account with the screen name Boys4me2010. He saw images that Boys4me2010 was sharing, including an image of the torso of a boy who was sitting on a green couch. Agent Shaffer saw the same couch in Finley's apartment.
Pennsylvania State Police Corporal Robert Pearson, a federally deputized law enforcement officer who is an expert in computer forensics, conducted examinations of two computers that were seized from Finley's apartment. The computers contained Finley's resume, a link to Finley's Facebook page, and a GigaTribe account for Boys4me2010, along with explicit examples of sharing, distributing, and receiving child pornography. Corporal Pearson estimated that Boys4me2010 had engaged in conversations about sharing, distributing, and receiving child pornography with hundreds of GigaTribe users. He also estimated that there were approximately 30, 000 videos and images of child pornography on the two computers.
On July 12, 2011, a grand jury indicted Finley on a four-count superseding indictment: Count One, production of material depicting the sexual exploitation of a minor in violation of 18 U.S.C. § 2251(a), (e); Count Two, receipt of material depicting the sexual exploitation of a minor in violation of 18 U.S.C. § 2252(a)(2), (b)(1); Count Three, distribution of material depicting the sexual exploitation of a minor in violation of 18 U.S.C. § 2252(a)(2), (b)(1); and Count Four, possession of material depicting the sexual exploitation of a minor in violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2).
Finley pled not guilty and went to trial. Before the jury was selected, defense counsel offered to stipulate that the videos and images obtained from the computers in Finley's apartment were in fact child pornography (i.e., material depicting the sexual exploitation of a minor) on the condition that the government would not show the videos and images to the jury. The government refused on the basis "that a Defendant cannot stipulate away the Government's evidence, " and the District Court ruled that the government was not required to accept the offer. App. at 62-63.
The District Court informed the potential jurors that they might be shown graphic images of child pornography:
"There will likely be explicit language and photographs in this case which will depict children involved in sexually explicit activities. I will tell you, give you a couple of examples. You will likely see pictures and movies of young boys performing oral sex on adult males or other young boys. You will also likely see pictures and movies of adult men performing anal sex on young boys. You will also likely see pictures and movies of young boys engaging in anal sex.
The question is, I understand that it may be difficult for you to hear such language or view these pictures; however, due to the nature of the case some exposure to this material will be necessary. It is important that you be able to set aside any personal feelings you may have about the material that you see and fairly consider the evidence to consider whether this Defendant is guilty of any of the charges.
Will the mere subject matter of this case affect your ability – the ability of any of you to listen and later fairly discuss the evidence with other jurors and act as a fair and impartial juror?"
Id. at 115-16. One juror was excused following this question.
Despite the District Court's ruling that the government was not required to accept defense counsel's offer to stipulate to the content of the videos and images, defense counsel made the following remarks in his opening statement:
"I will tell you right now the images that are being distributed and received through the GigaTribe program on these computers, they're images of child pornography. They are minors engaged in sexually explicit conduct . . . .
So if the prosecutor chooses to still show them to you, even though we are not disputing that fact, he has the right to show them if he chooses, but I am telling you we're not disputing it. I will stand up in my closing argument and tell you that the images are images of minors engaging in sexually explicit conduct. If they still choose to show the images to you, they're doing it in the hopes that you will be so horrified you will stop thinking and you will be so horrified you will want to convict ...