Monday, January 12, 2009
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Child Pornography Convictions Over Cached Files Upheld
By STEVEN M. ELLIS, Staff Writer
The Third District Court of Appeal on Friday affirmed a San Joaquin County man’s conviction for possessing child pornography based on the presence of temporary Internet files stored in his computer’s cache.
Reasoning that California law defines an image of child pornography displayed on a computer screen as an object that may be knowingly possessed or controlled, the court on Thursday upheld Michael James Tecklenburg’s conviction despite his argument that he was unaware of the files’ existence.
Tecklenburg was arrested in 2004 after an examiner for the state’s High-Tech Task Force in Sacramento discovered the files while reviewing the hard drive of Tecklenburg’s computer in conjunction with another investigation.
Whenever a computer accesses a website on the Internet, it automatically saves the material in a temporary Internet file, or TIF. Files deleted from a computer are not actually erased from the hard drive, but remain in unallocated space until they are overwritten, and the examiner testified at trial that although there is often no way to determine the original source, the TIF’s demonstrated that at some point the images were on Tecklenburg’s computer screen.
Tecklenburg was convicted of six counts of knowing possession or control of child pornography in violation of Penal Code Sec. 311.11(a), but he contended on appeal that there was insufficient evidence to show he knowingly possessed child pornography absent evidence that he knew of the TIF’s existence.
The statute criminalizes the knowing possession or control of any “image” depicting a person under the age of 18 years personally engaging in or simulating sexual conduct.
No California court had previously considered whether a defendant can be convicted under the statute absent evidence of knowledge of files in a computer’s cache, so the Court of Appeal, in an opinion by Justice Tani Cantil-Sakauye, turned to a similar case from the Ninth Circuit, United States v. Kuchinski (2006) 469 F.3d 853.
There, the Ninth Circuit held that such a conviction was improper without evidence the defendant had knowledge of the cache files, holding that, “[t]o do so turns abysmal ignorance into knowledge and a less than valetudinarian grasp into dominion and control.”
But Cantil-Sakauye wrote that the California statute materially differed from the federal law in Kuchinski, in that the state statute prohibited the possession of an “image” of child pornography, rather than only the underlying material in which the image is contained.
Opining that the evidence amply supported the jury’s conclusion that Tecklenburg knowingly possessed or controlled images of child pornography, she wrote:
“The evidence established defendant actively searched for child pornography websites, opened such websites, went past the home pages, clicked through images on at least one site tour, displayed multiple images of child pornography from the websites on his computer screen, in some cases multiple times, and enlarged some of the images from thumbnail views.
“In our view, the TIF or cache evidenced defendant’s knowing possession or control of the images. There was no need for additional evidence that defendant was aware of the TIF or cache in order for the defendant to have violated [the statute].”
Cantil-Sakauye similarly rejected Tecklenburg’s contention that it could not be proven that he possessed the images, rather that one of the other members of his family with access to the computer, noting the use of a search engine operated by a company through which only Tecklenburg had an email account, his admission to having visited a specific pornographic website later determined to have a child pornography theme, and his spontaneous statement after being questioned that, “My life is over.”
The justice similarly pointed to a substantial amount of similar pornography found at computers maintained by the fire departments in Lodi and Clements, where Tecklenburg served, respectively, as a fire captain and a volunteer firefighter.
“Defendant apparently would have us believe computer browsing of child pornography is common among firefighters—so much so that it is unreasonable, without forensic examination of the computers of all the other firefighters, to infer from the evidence of child pornography on the fire department computers that it was defendant who was on those computers and his home computer when the child pornography was accessed,” she wrote.
“We are not persuaded. Viewing the evidence as in a Venn diagram, the fact defendant provided the commonality among all four of these computers reasonably demonstrated that it was defendant who searched the Internet for and accessed the child pornography websites and images.”
Presiding Justice Arthur G. Scotland and Justice Rod Davis joined Cantil-Sakauye in her opinion.
The case is Tecklenburg v. Appellate Division (People), 09 S.O.S. 223.
Copyright 2009, Metropolitan News Company