Court Error – Abuse of Discretion

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7^th Circuit Court of Appeals

Case Name: United Stats of America v. Thomas J. Owens

Case No.: 20-3189

Officials: FLAUM, KANNE, and SCUDDER, Circuit Judges.

Focus: Court Error – Abuse of Discretion

It is criminal “distribut[ion]” of child pornography within the meaning of 18 U.S.C. § 2252(a)(2) to knowingly make a file containing child pornography available for others to access and download via a peer-to-peer filesharing network. See United States v. Ryan, 885 F.3d 449, 453 (7th Cir. 2018). The government has developed an investigative practice where it employs a confidential software program to participate in the peer-to-peer network and detect and download child pornography files shared therein. Once a file is downloaded and its illicit contents verified, the government ascertains the IP address of the sharing user, contacts the Internet service provider to identify the residence associated with the IP address, obtains a search warrant, and seizes the suspect’s electronics. Often, the downloaded file is then located on the suspect’s device, and the government can verify that the file was indeed made available for downloading. Yet sometimes the file cannot be located on the device or there are questions about the defendant’s sharing settings.

In the case before us now, Thomas Owens was arrested and charged with the distribution and possession of child pornography after a government investigator used such a program, Torrential Downpour Receptor (“TDR”), to download a video file containing child pornography from a folder shared via the BitTorrent network at an IP address later associated with Owens. Nonetheless, a forensic search of Owens’s computer at the time he was arrested failed to locate the file on his computer. Owens moved to compel the production of information relating to the government’s download of the file pursuant to Federal Rule of Criminal Procedure 16. The district court held an evidentiary hearing and denied the motion; Owens now appeals that decision after entering a guilty plea preserving that right.

Given that we review a district court’s Rule 16 decision only for abuse of discretion, we reverse only if a defendant can demonstrate that the pretrial disclosure of the disputed evidence would have enabled the defendant “to substantially alter the quantum of proof in his favor.” United States v. Orzechowski, 547 F.2d 978, 984–85 (7th Cir. 1976) (quoting United States v. Marshall, 532 F.2d 1279, 1285 (9th Cir. 1976)). Because Owens falls short of meeting that burden, we affirm.

Affirmed
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Derek A Hawkins is Corporate Counsel, at Salesforce.