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United States v. McCoy

United States Court of Appeals, Eighth Circuit

January 31, 2017

United States of America Plaintiff- Appellee
v.
Frank Russell McCoy Defendant-Appellant

          Submitted: November 18, 2016

          Appeal from United States District Court for the District of Minnesota - St. Paul

          Before BENTON and SHEPHERD, Circuit Judges, and EBINGER [1]District Judge.

          BENTON, Circuit Judge.

          A jury found Frank R. McCoy guilty of possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). The district court[2] sentenced him to 121 months' imprisonment. He appeals the conviction and sentence. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

         I.

         McCoy wrote, posted, and emailed links to stories about the rape, torture, and murder of children. He was convicted of transporting obscene matters, in violation of 18 U.S.C. § 1462, and sentenced to 18 months' imprisonment and two years' supervised release. The Eleventh Circuit affirmed the conviction. United States v. McCoy, 602 Fed.Appx. 501 (11th Cir.), cert. denied, 136 S.Ct. 122 (2015). The conditions of release, proposed by McCoy, required random inspections of his internet and email.

         By the conditions of release, U.S. Probation Officers Timothy Norgren and Lisa Martinetto inspected McCoy's house. Officer Martinetto, a specialist in computer-related cases, observed a suspicious amount of computer equipment, including multiple hard drives and at least two custom-built computers. One custom-built Antec computer had five hard drives, three configured in a Redundant Array of Independent Disks (RAID). According to Officer Martinetto, it is "very unusual for a personal computer user to have a computer with multiple hard drives and especially to use a RAID system." McCoy told Officer Martinetto he had written a program to remove pornography from his computers, offering to let her view them. Due to the large amount of equipment, the officers did not examine the computers. Based on these suspicions, however, Officer Martinetto received permission from the district court to seize and review any computer equipment in plain sight or voluntarily provided by McCoy.

         Officer Martinetto seized the custom-built Antec and three other computers-which contained a total of nine hard drives-and six USB drives. She sent them to a forensic lab for review. McCoy again told Officer Martinetto he used a program to remove pornography from the computers, but added he "might have missed a file."

         Using standard forensic techniques to copy the hard drives, Probation Officer Todd Garrett found child pornography on an unformatted drive. Agents obtained a warrant for a complete search of the hard drives. James Fottrell, director of the High Technology Investigative Unit of the U.S. Department of Justice Child Exploitation and Obscenity Section, conducted a full forensic analysis of the computers, discovering 88 child pornography videos on the custom-built Antec. The videos had been loaded, after McCoy's conviction, from the Antec to a handheld RCA media player.

         A grand jury indicted McCoy on one count of possessing child pornography. He moved to suppress the evidence seized by Officer Martinetto, arguing it was obtained without consent, probable cause, or a search warrant, and exceeded the scope of his conditions of release. At the suppression hearing, Officer Garrett testified, "There is no one central repository for Internet artifacts on a computer hard drive and the Windows operating system, " and that forensic examiners are unable to ascertain the full scope of Internet activity from web-browser activity alone. He explained it would not have been forensically appropriate for Officer Martinetto to examine the computers onsite because she could not "preserve the state and integrity of the original media." The district court denied the motion.

         At trial, the only issue was whether McCoy knowingly possessed child pornography. Officer Martinetto testified that McCoy lived alone, acknowledged ownership of the computer equipment, and discussed his computer skills and sophistication. Officer Garrett testified he found the videos in a folder on McCoy's computer titled "My Documents/My Videos/RCA/RCA_1271_0223." Fottrell testified he found special software for converting child pornography videos to a recognizable RCA media player format. He added that someone transferred them to the RCA player because it was "not something the computer would automatically do." The government introduced recorded calls McCoy made in prison claiming he had removed "everything" from his computer. At the close of the government's case, the district court denied a motion for judgment of acquittal. The jury convicted.

         At sentencing, the district court applied the ten-year mandatory minimum for recidivist offenders based on McCoy's conviction for transporting obscene matters in violation of 18 U.S.C. § 1462. The court denied his downward departure motion, sentencing him to 121 months, the bottom of the guidelines range. He appeals the denial of the suppression motion, the sufficiency of ...


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