Submitted: November 18, 2016
from United States District Court for the District of
Minnesota - St. Paul
BENTON and SHEPHERD, Circuit Judges, and EBINGER District
BENTON, Circuit Judge.
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 sentenced him to 121 months'
imprisonment. He appeals the conviction and sentence. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.
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.
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.
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."
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.
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.
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.
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 ...