Metropolitan News-Enterprise


Tuesday, November 28, 2006


Page 3


C.A.: Web User Not Guilty for Child Pornography in Unknown Cache Files


By a MetNews Staff Writer


A defendant cannot be convicted on child pornography charges based on possession of images found in his computer’s internet cache files absent knowledge the computer automatically saved the images from web sites the defendant visited in such files, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

“To do so turns abysmal ignorance into knowledge and a less than valetudinarian grasp into dominion and control,” Judge Ferdinand F. Fernandez wrote for the court.

The panel upheld John C. Kuchinski’s convictions for receipt and possession of child pornography, but sent the case back to U.S. District Judge Richard F. Cebull

of the District of Montana for resentencing. Cebull had based Kuchinski’s sentence on images found in Kuchinski’s cache files as well as images Kuchinski admitted he intentionally saved on his computer.

After obtaining information that Kuchinski was involved in child pornography, the FBI obtained a warrant and searched his computer. They found between 15,120 and 19,000 separate images of child pornography, according to testimony.

Sixteen of the images had been saved in the computer’s downloaded files, and 94 were in its recycle bin after having been saved and then deleted. More than 1,100 images were in the Active Temporary Internet Files, and another 13,904 to 17,784 were in the Deleted Temporary Internet Files.

An expert explained that when one visits a web site, the web browser automatically saves that page in Active Temporary Internet Files, so that when the site is revisited the information will come up more quickly than if it had to be reloaded from the internet. When the Active Temporary Internet Files fill up, they spill excess saved information into the Deleted Temporary Internet Files.

This happens without any action by the computer user. “[M]ost sophisticated —or unsophisticated users don’t even know they’re on their computer,” the expert testified.Kuchinski was indicted for receipt of child pornography and possession of child pornography. He pleaded guilty to the possession charge.

After a bench trial, Cebull found him guilty of the receipt charge, and sentenced him to 70 months imprisonment and three years of supervised release on both counts, with the sentences to run concurrently. The sentence included significant enhancements based on the number of images involved, for which he included the images in the cache files.

On appeal, Kuchinski argued that only the images he intentionally saved on his computer could be used in sentencing, and not the images in the internet cache files. Fernandez agreed, noting that there was no evidence that Kuchinski was sophisticated, that he tried to access the cache files, or that he even knew they existed.

The judge wrote:

“Did Kuchinski knowingly receive and possess the images in those files, or, rather, does the evidence support a determination that he did? We think not.”

He added:

“There is no question that the child pornography images were found on the computer’s hard drive and that Kuchinski possessed the computer itself. Also, there is no doubt that he had accessed the web page that had those images somewhere upon it, whether he actually saw the images or not.”

But Fernandez explained:

“What is in question is whether it makes a difference that, as far as this record shows, Kuchinski had no knowledge of the images that were simply in the cache files. It does.”

Fernandez distinguished the case from a previous one in which the court upheld a conviction for possession of child pornography based upon evidence that the defendant knew about the cache files, and had actually taken steps to access and delete them.

“In so doing, we opined that ‘to possess the images in the cache, the defendant must, at a minimum, know that the unlawful images are stored on a disk or other tangible material in his possession,’” Fernandez said.

He concluded:

“Where a defendant lacks knowledge about the cache files, and concomitantly lacks access to and control over those files, it is not proper to charge him with possession and control of the child pornography images located in those files, without some other indication of dominion and control over the images.”

Judge Alex Kozinski and District Judge Cormac J. Carney of the Central District of California, sitting by designation, concurred in the opinion.

The case is United States v. Kuchinski, 05-30607.


Copyright 2006, Metropolitan News Company