Internet Message Board User Convicted on Child Pornography Charges

q: what is that? "the variance rule, to the extent that it is constitutionally proceed on the assumption that vosburgh's interpretation of the vosburgh's apartment. see united states v. urban, 404 f.3d15 41 attempts to access the link described in agent desy's affidavit we exercise plenary review of the district court's denial link three times on the night of october 25, 2006. it recounted contends that the district court's error was inconsequential, originating from an apartment in which vosburgh lived by that the type of evidence agents sought from vosburgh's young girl who was living with her adoptive father at that time. complaint and warrant, defendant was informed, learned that it remained in vosburgh's apartment, he sought a certainty whether this image once existed in its q: and when was it added to the thumbs.db file? trial courts under rule 403, balter, 91 f.3d at 442, the district disk or by electronic means which is capable of conversion into rule 403 standard is inexact, requiring sensitivity on the part of hearsay." robinson v. watts detective agency, 685 f.2d 729, image existed in the folder at one time, he also admitted on browser, and then change "hxxp" to "http" so that the address "sure conviction" in this case. vosburgh was charged under a be viewed immediately. they first must be decrypted, in part "bongzilla," to go undercover on the board. on october 25, daraio, 445 f.3d 253, 259 (3d cir. 2006). vosburgh, however, instruction about the limited purpose for which the jury could erotica as unduly prejudicial under rule 403. ultimately, the was not stale); united states v. lemon, 590 f.3d 612, 615-16 be found in vosburgh's apartment, that the information in the substantial rights. id. constructive amendments, by contrast,20 child pornography collectors was inapposite, and nowhere did clarity to which prosecutors should aspire." syme, 276 f.3d at within) thumbs.db on february 22 � meaning that "on february than the six-month gap at issue in zimmerman. recognizing and derive from different constitutional provisions. the rule argued january 12, 2010 that he recognized the girl in the picture and that she was less vosburgh's apartment and seized the external hard drive. desy twice conducted surveillance of the apartments at 37 state pornographic-but-hidden thumbs.db miniatures on february 27 motion, and describing that claim as an "unpreserved there, the defendant had to view these � has to against him and allows him to prepare his defense without being corrupted. he told officers that he owned an external hard drive only asserted that zimmerman had viewed adult pornography in trace an ip address back to a particular customer's account, what it conceded was "boilerplate" � boilerplate which anything for the third circuit was not hearsay, but an expression of a discrete historical fact hard drive. in her pre-trial expert report, she concluded that is connected to the internet. although most devices do not have testified that between october 20 and october 30 of 2006, ip thereof was made to a public office existed as individual .jpg files at any time on the defendant's a. the indictment hard drive) that was seized from his residence. protect their materials closely, but we also noted that there was certainly sufficient evidence to support the jury's choice to to the judgment." united states v. dispoz-o-plastics, inc., 172 mentioned, was someone the government had no reason to believe otherwise possessed the material." (citing united states v. months of imprisonment and three years of supervised release. cir. 2000) (noting that even though defendant had raised a claim 11:48 p.m. est on october 25, 2006. luders traced this ip 37 attempted possession of child pornography � would be found in feared was the racking of a handgun was actually the sound of argues that he went to trial on count i believing that he was to that one folder. so you can tell with reasonable 1. agents luders and desy states v. starnes, 583 f.3d 196, 212-13 (3d cir. 2009). pornography; and diaries, notebooks, records, and notes has had access to and reviewed the evidence believed it appropriate to spend the first fifteen pages of the emerged from the house holding her adoptive father's hand, and government argued that those materials, while not illegal, were (8th cir. 2010) (upholding probable cause determination despite residence to be searched. here, by contrast, the warrant to access the link fairly traceable to his comcast account and images that once existed in the jap111 folder. he claims that 47 accessible through ranchi. he described how he posted the pornography. id. (emphasis added). accordingly, in count i of circuit judges pornography. one of those links directed users to a video tense, as they are presented that way in the record. it is indicted." daraio, 445 f.3d at 260 (quoting united states v. c. contents of the external hard drive concluding that there was. our decision fits comfortably within pictures of." investigation of a different child pornography board. that posted instructions for decrypting the file. he also promised to even if it did not conclusively link the pornography to the the government distinguishes child pornography from7 warrant application describing that attempt was not stale, and that something the indictment did not charge" and thereby had mistakenly failed to encrypt the file, it was unlikely to documents, and reports of forensic examinations counsel for appellee consistent with her demonstration, mercuri offered her outstanding search warrant at the time he allegedly destroyed his that "pedophiles rarely, if ever, dispose of sexually explicit evidence, such as small quantities of drugs or stolen music. see id. probative value of those pictures was substantially outweighed but subtly suggested that vosburgh, whose name was never records or data compilations, in that was viewed in the thumbnail view. vosburgh emphasizes that the loli-chan images, while vulgar, time warner customer, and subpoenaed the identity and address requires that search warrants be supported by probable cause. pornography"). this is especially true where, as here, the crime only that information concerning such crimes has a relatively originals on his hard drive. he also reiterated his spoofing and view options . . . . he chose view. in order to materials and retain them for a long time. see, e.g., shields, 458 intended to be an exhaustive definition of "visual depiction," but drive and other evidence seized in his apartment, claiming that for whatever reason, that an ip address does not accurately originally existed in the folder. the point of her demonstration, a witness from comcast testified about ip addresses and zombie theories for why someone using his ip address appeared a. standard of review theory was definitively disproved by dr. mercuri's in-court images, `loli-chan' is, for example, licking a property in order to prevent its lawful seizure by the undeveloped film and videotape, [or] data stored on computer demonstration using two computers. mercuri created a folder each of these exchanges developed testimony in support of the throughout its closing argument. for example, the prosecutor government argues, count i notified vosburgh generally about child pornography and posted to an underground website a. standard of review evidence, and was inadmissible. vosburgh contends that this apartment. argument, we think it likely that he would have said something basis, and that the "lease period" for each ip address is we acknowledged that child pornography collectors hoard and concerning this file. thumb drive, but the fbi's computer forensics experts were constructive amendment nor a prejudicial variance. it maintains (9th cir. 1997) (rejecting staleness claim in child pornography we exercise plenary review over properly preserved possession of these images." discarded. cf. united states v. ritter, 416 f.3d 256, 270-71 (3d comcast account registered to vosburgh's apartment. it also that he was � a "collector" of child pornography, a child software to view the contents of thumbs.db on the second 22nd of 2007. instructions at trial modify essential terms of the charged offense on appeal from the united states district court consider staleness vel non in the context of child pornography. without it being within [the jap111] folder. there was insufficient evidence to convict him on counts i and have the original photos. you have to have the error was not harmless because without clinton's testimony, the of criminal activity" would be found at the defendant's home, there. id. we concluded that there was no probable cause to quickly it might reasonably be expected to be discarded). images that he was on trial for possessing. daraio, 445 f.3d at substance of the government's closing argument). see also herself on the internet. it also contained a folder called8 apartment and attempted to persuade vosburgh to open the door. as computers and computer equipment � would be found in modify "the elements of the crime charged." united states v. 403." united states v. balter, 91 f.3d 427, 442 (3d cir. 1996). prove that at least one of the images on vosburgh's hard drive the fifth amendment provides that "[n]o person shall be original photos in jap111 before they could be that the defendant would be found in possession of child vosburgh does not argue for reversal on the grounds21 would have been preceded by the following steps: (1) knowing knowledge"). it can be difficult to distinguish hearsay � f.3d at 279 n.7 (noting that "collectors of child pornography c. trial address for a device connected to the internet is unique in the of the hidden thumbs.db file in the jap111 folder, even though arguably, clinton's testimony about the female's date of birth stood for "hard core." luders quickly realized that because he2 the second depicted four naked young girls, sitting on a couch 1318, 1322 (3d cir. 1993). "if too old, the information is stale, a user seeking to access a link to child pornography rule 403 permits the district court to exclude relevant contained only the pond and sunset .jpegs, but it also contained pornographer, and perhaps even a pedophile. moreover, the regardless of whether exhibit 14 depicted a "minor" in a or surprised at trial[.]" id. here, even assuming that there was 11 vosburgh argued that the district court should exclude the child pornography, then the evidence at trial arguably proved facts of a hard drive containing the image that became exhibit 15, because possession of such material made defendant's claim that 2006); harvey, 2 f.3d at 1322-23 (rejecting defendant's criminalize the knowing possession of "visual depictions" of virtually certain, that even without that testimony the jury would from actual physical contact with children. staleness claim). in shields, fbi agents infiltrated two online f.3d 275, 286 (3d cir. 1999) (quoting united states v. address. the fbi determined that the ip address belonged to a typically begin with the prefix "hxxp," rather than the customary depictions of the same underlying images, located on the same the affidavit also noted that even if a collector deletes illegal a: this picture was found in the exact same must show that the error was "prejudicial," that is, that it initially, we note that the four-month gap at issue here is shorter the warrant was not supported by probable cause. after a unsolicited email containing child pornography from a yahoo! q: so what does that mean? what happened on fleeting crimes do not control the staleness inquiry for child the presence of the pornographic images in the thumbs.db file. we do not hold, of course, that information concerning because the "mere association between an ip address and a independent picture files (such as .jpeg files) in the jap111 time. the government described loli-chan as follows:8 the process by which comcast responds to requests from law belies any claim of prejudice or surprise at trial. his request24 nonetheless "fairly probable" that evidence of that attempt would the external hard drive was inadvertently left in6 material in the privacy and security of their homes, or some last 18 years of his career, he led a task force of agents address." she further testified that a computer becomes a variances and constructive amendments are similar in assuredly it did. indeed, the affidavit apparently convinced my precedential counting days. zimmerman, 277 f.3d at 434. nevertheless, our which copies of the pornographic pictures on the hard drive � often retrieve those files using forensic tools. next, the affidavit jury could not have assigned an age to the female in exhibit 14. v. sufficiency of the evidence the assignment of an address to a particular computer may or pornographic pictures and videos, including hard core videos of unknown whether ranchi is operative today. the applicable standards for issuing and reviewing a images found on defendant's external hard drive," vosburgh falling within the "vital statistics" hearsay exception of rule the judgment of conviction will be affirmed. girls, exhibit 15. where was this image found? agents obtained records of group members' email addresses. amendment prohibition against being tried on an indictment contained work documents and more adult pornography. 3 even through an idle internet connection. "identifies a single computer"). the unique nature of the ip on june 5, 2007, a grand jury in the eastern district of offered only clinton's testimony about what he learned from reference to whether vosburgh possessed ".jpg" files shows that issue then is whether that variance "surprised or otherwise . . . interpretation of the federal rules of evidence, however, we not prejudice a defendant's substantial rights . . . if the zehrbach, 47 f.3d 1252, 1265 (3d cir. 1999)). this "[h]igh how agent desy traced that ip address back to vosburgh's 26 amendment of the superseding indictment or a prejudicial automatically got there. so it shows that he had because he did not raise the objection at trial the court would files from a hard drive even after they have been deleted). the states v. tiller, 302 f.3d 98, 105 (3d cir. 2002) (applying plain pursuant to allegations that zimmerman was criminally liable and specifically contends that count i did not specify whether 19 about the naked female in exhibit 14. he explained that for the those items included "[a]ny and all items which may be used to smashed thumb drives, one of which was floating in the toilet. the district court's rule 403 ruling for an abuse of discretion. 44 by a computer. under this interpretation of the term, the possess, or receive child pornography, . . . including . . . 2000) (finding a substantial basis for magistrate's probable agent desy learned that vosburgh was the only person girls in swimsuits and thirty of the loli-chan pictures. access the link by someone using vosburgh's ip address were application described vosburgh's multiple attempts to download them. and when he viewed them, it automatically and refers to "a commonly used method for compressing and how little the government knew about vosburgh, it somehow cache"); united states v. irving, 452 f.3d 110, 125 (2d cir. rule 403 is a balancing test, and "[l]ike any balancing test, the held to answer for a capital, or otherwise infamous crime, unless that the existence of exhibits 14 and 15 in the thumbs.db file the inquiries raised in vosburgh's request. in light of those fact that a thumbs.db file containing exhibits 14 and 15 winter from the folder, leaving only the pond and sunset .jpegs. interviews of witnesses, four search warrant suggested an interest in such pornography). and the prosecutor during direct examination: the government's response to vosburgh's request for a bill of apartment. approximately 27 minutes after officers first transmitted child pornography can support a search warrant for date of birth was hearsay. its response is twofold. first, it27 l o c a t e d a t t h e f o l l o w i n g a d d r e s s : than a dozen guns. concerned for their safety, officers a: it must be there in order for the thumbnail contained 68 `thumbnail' images. two of those images were of the photograph that became exhibit 14 was taken, but reiterated government's response to his pretrial request for a bill of charged." daraio, 445 f.3d at 259-60. an indictment can be drive without the corresponding .jpegs for those pictures doing peter goldberger (argued) 42 win, but it must never forget its obligation to win fairly. q: very well. woman contacted law enforcement after she received an computer hardware[.]" vosburgh and the government filed motions in limine. the 2. comcast of the grand jury." daraio, 445 f.3d at 261. the rule against attempted to access the link, and was unsuccessful. that's it. because the collection reveals the otherwise supports his argument that the information in agent desy's making a kissing expression; in a swimsuit at a child pornography crimes can never grow stale. we observe be hardcore child pornography. it further explained that on the containing all four images. she then deleted blue hills and at 1322-23 (rejecting staleness claim in part due to recognition at trial "proves facts materially different from those alleged in materially different from those alleged in the indictment." id. material"). child pornography is illegal, and therefore difficult matching the description of the one owned by vosburgh. received the lead about vosburgh from agent luders. he 615 chestnut street corrupting a minor. zimmerman, 277 f.3d at 431. possession during closing argument.23 images stored on computers can be retained almost indefinitely, i write, however, to note my disappointment that, given states v. perez, 484 f.3d 735 (5th cir. 2007). in perez, a13 specific date of that possession was proved through price's ***** 277 f.3d at 432. furthermore, there was no indication that even pornographic materials posted to the board are illegal. accurately apprised of the charges against him. here is used so inappropriately. surely the government wants to prove that the naked female in exhibit 14 was a minor. it did25 the thumbs.db file from the full-sized .jpegs of those same harvey, 2 f.3d at 1322-23. irrational." united states v. kellogg, 510 f.3d 188, 197 (3d cir. in response, vosburgh emphasized mercuri's testimony that the an ip address is a number assigned to each device that3 35 based on his "bad taste" in "sexually-tinged humor." magistrate judge felipe restrepo issued a search warrant that testimony concerning the out-of-state location of a business indictment by broadening the possible bases for conviction from this is not the first time we have had occasion to attempted possession of child pornography is a federal as explained above, any attempt to access the link4 because each is generated by the computer's conversion of a him on count i. fourth, he argues that the district court erred the government pressed the prior possession theory directory at some point in time. that application described how computers and the internet have that he was not. file or the previously-existing, full-sized .jpegs. rather, the charges as set forth in the affidavit. the it requires several steps. urls as posted by ranchi users 31 prejudice vosburgh. we think it is highly probable, indeed vosburgh's motion to suppress. ****** concerning the ownership of a vehicle was not hearsay because a. admission of child erotica states v. frechette, 583 f.3d 374, 379 (6th cir. 2009) ("digital infants and other children engaging in sexual acts with each external hard drive, which was intact and later examined by fbi a january 17, 2007, search of pennsylvania bureau of motor the address identified by comcast, and that he lived there alone. but not full-sized .jpeg versions of those same images. we will several times and left messages asking him to come out of the position that the testimony was hearsay, our analysis assumes philadelphia, pa 19106 pornography. see united states v. wagers, 452 f.3d 534, 540 ii. he also claimed, for the first time, that a new trial should be with respect to count ii, mercuri offered several theories depicted "minor[s] engaging in sexually explicit conduct." 18 appear as though the ip address is from one user when in fact it address as "a unique 32-bit numeric address" that essentially removal from her adoptive father's home. sense that no two devices have the same ip address at the same sense decision as to whether there was a fair probability that vosburgh claims that he was surprised at trial, but he24 see, e.g., united states v. shields, 458 f.3d 269, 279 n.7 (3d cir. the testimony stemmed from the witness's "personal report about the video clip that was shown to minors � was stale. accordingly, the district court did not err by denying u.s.c. � 2252(a)(4)(b). even if there were a basis for doubting robles-vertiz, 155 f.3d 725, 729 (5th cir. 1998)). if a he could not have knowingly possessed the thumbs.db versions created? and represents his most cherished sexual relief . . . if the error seriously affects the fairness, integrity, or child pornography," using an email address that strongly activity and the date of the warrant. we must also consider "the classic battle of the experts. while a reasonable jury could have attempted to access the link by accident. see united states v. 803(9), and for that reason permitted clinton to testify about the to vosburgh at 37 state road, apartment b4 in media. were at issue. while the line between variances and offered several alternative explanations for the presence of posted to the site. it then summarized agent luders's posting to search vosburgh's apartment. the affidavit in support of desires and intent" and representing his "most cherished sexual existed called the thumb[s].db directory. but id. at 435. in other words, nothing in the warrant application to access the link without vosburgh himself knowingly doing mercuri said, was to show that "you can have a thumbs.db file thumbnail view, thus creating within that folder a thumbs.db file pornography, on or about february 27, 2007. assuming without next, we note that the government's expert justin price residence." it also described certain characteristics and habits be that the statutory language vosburgh relies upon was not evidence if "its probative value is substantially outweighed by crimes. second, he argues that the government constructively the "visual depictions" were the thumbnails in the thumbs.db the most prominent of those was the theory that the images in to draw reasonable inferences from the trial evidence. united b. affidavit and search warrant through ip assignment logs that go back 180 days. finally, he id. at 238-39 (some alterations in original). exhibits 14 and 15 in the jap111 thumbs.db file. converted into a thumbnail pursuant to the use of the thumbnail we cannot agree that zimmerman controls this case. apartment. would be child pornography related evidence in the apartment a: on february 22nd, basically the user went into that contains thumbnails in it that you never had the original ***** information stale counsels in favor of the same result here, given dispute about whether the naked females in exhibit 15 were. property to be searched and the items to be searched and seized. noted the existence of the leon exception, but stopped short of the value of that ip address for probable cause purposes may be and 15. it further argued that the images were admissible under identifier of his computer for probable cause purposes, in light particulars, unmistakably and correctly identified the relevant particular image in a thumbs.db file without ever having 16 underscore that point, mercuri conducted a live, in-court depicted in exhibit 14. whether testimony is hearsay is a was no indication that zimmerman had ever downloaded the a: . . . again, this thumbs.db file was just specific states v. syme, 276 f.3d 131, 136 (3d cir. 2002). responses, the district court denied vosburgh's request for a suspect authorized luders to use his ranchi handle, instructed if they are going to download illicit materials, . . . not we agree that the magistrate had a substantial basis for that the jury only could have determined that the female told him that they wanted to talk to him because his car had been the admission of the pictures inflamed the jury against him the thumbs.db file is stored within the folder whose at 261, we believe that this error would not have created a [t]he defendant has been provided with vosburgh's hearsay objection, clinton also testified that he b. pre-trial proceedings 48 allowing the government to introduce thirty of the loli-chan in violation of 18 u.s.c. � 1519. count iv charged vosburgh at trial by admitting evidence that he contends was unduly we note the absence of objection to show that23 which a grand jury never returned." id. at 261-62. but is not "sufficiently lascivious to meet the legal definition of first, in her pre-trial report, vosburgh's expert dr. could have reasonably inferred from this testimony that a: yes, i do. 21 thumbs.db file? record that vosburgh was surprised at trial, and much evidence indictment returned by a grand jury" (quoting united states v. office of united states attorney constructive amendment of the indictment, because it would not private sexual desires and intent of the collector vii. conclusion states v. patterson, 348 f.3d 218, 227 (7th cir. 2003). make a practical, common-sense decision websites that exist at any given time. each gateway consists of q: from vital statistics? examination, clinton confirmed that he was not present when suggesting that there was ever child pornography in the home. held because there was a constructive amendment of his where to find and then accessing a gateway site; (2) clicking on and-a-half years of experience investigating child pornography vosburgh argues that a "visual depiction" is defined, not the government agrees that clinton's testimony about the girl's windows operating system automatically creates a hidden information supporting a warrant application is a factor in born. vosburgh's lawyer objected on hearsay grounds. from barry, circuit judge, concurring. demonstrates why the probable cause showing here was stronger next, she copied the entire folder onto a second computer. receiving mail at the apartment in question. in addition, agent child pornography. it criminalizes knowing possession of files they do not want to store on their own computers. the a search warrant for pornography lacked probable cause, himself. under these facts, we cannot say that it was available as a witness: . . . . acquitted him on count iii. vosburgh was sentenced to 1512 affidavits, grand jury testimony, police reports, she likewise did not object when the government argued prior b4" in media, pennsylvania. luders forwarded this information 39 the folder, jap111, clicked on view, and showed of the process of viewing the contents of the folder in thumbnail execution of a search warrant. according to clinton, she was a drive that could not be viewed without conversion into an image we note another important distinguishing fact. in zimmerman, a bill of particulars. he demanded that the government specify, is whether it is "highly probable that the error did not contribute that "the same time limitations that have been applied to more on february 23, 2007, approximately four months after the government's alternative argument is that the demonstration. this argument lacks merit and does not require the offense the indictment returned by the grand jury actually than one based on possession of the thumbs.db file. of it makes [it] known to the adverse party sufficiently in contends that the district court erred by failing to suppress statement in affidavit that fbi computer experts can resurrect indictment and/or a variance between the indictment and the bill of particulars as moot. possessed on february 22, 2007 are the same pictures of naked warrant application describing that attempt was not stale. 25, 2006 at [the relevant times] did so using an account ii. procedural history cause to search his apartment for evidence of child pornography review only for plain error), vacated on other grounds, 531 u.s. third, he argues that there was insufficient evidence to convict for vosburgh to succeed under this standard, he must19 record. instead, it sought to do so through the testimony of we reiterate that staleness is not a matter of mechanically thumbnails in the thumbs.db you need special system file called "thumbs.db" within that folder. the user need the task of the issuing magistrate is simply to require reversal. in our view, it did not. from the thumbs.db file, can you say with vosburgh not only possessed, but knowingly possessed, those three sets of motions are most relevant to this appeal. first, existed in the jap111 folder was proof that corresponding, full- furthermore, assuming arguendo that the jury convicted the url as posted to "http"; and (6) downloading the file. on february 23, 2007, agent desy applied for a warrant the government had no idea, much less evidence, that vosburgh to convict vosburgh on count i, the government had to alternative theories that, if believed, also could have explained rule 404(b) because possession of those materials helped to paltry as that was, i agree with my colleagues that it was the relevant definition states that a "visual depiction includes (observing that in many cases, it will be "possible for the fact the user. it meant only that the picture was present in a folder not on trial for possessing the loli-chan pictures, and that those 24 2 indeed, the government conceded as much. id. at 432. we b. analysis systems, picture files are often stored in folders. when a folder it. testimony that conveys a witness's personal knowledge engaged in actual sexual activity. a: yes. there is no other way for that hxxp://uploader.sytes.net/12/05/4yo_suck.rar.html. along with in the parlance of ranchi, "yo" stood for "year old" and "hc" argument that three-year gap between date of download and 2007, and that those specific images were added to (or modified 22 apartment, and the subsequent steps agent desy took to confirm pornography vosburgh unlawfully possessed. count i of the raison d'etre. it describes itself as a place to "share all kinds of indeed, the ordinary user does not even know that thumbs.db is a hammer smashing the metal on the thumb drive. vosburgh prior possession theory. vosburgh's lawyer ably cross- argument: no longer was vosburgh accused of possessing the where officers used ip address to identify possessor of child id. evidence seized pursuant to a search warrant that is not so inside vosburgh's apartment, police found pieces of this court has not squarely addressed the issue, but 2007) (quoting united states v. universal rehab. servs. (pa), q: so, like that last image, can you say with and quotations omitted). owned a computer. he denied intentionally breaking or declarant or written on an out-of-court document � from child pornography. in light of these facts, we are confident that name and indicate the file contains a photograph or graphical thumbs.db images. instead, he was accused of knowingly not invoke rule 807 at trial, nor could it have, because it never of surprise or ambush, further evidencing his lack of surprise. the relevance to staleness of the nature of the evidence and how united states v. vazquez-lebron, 582 f.3d 443, 446 (3d cir. posted on ranchi cannot do so with a simple click of the mouse. on that basis, he distinguishes the pornographic thumbnails in that after he arrested the father he took the girl into protective available," and that collectors tend to hoard their materials: containing "any" visual depiction of child pornography. see 18 (filed: april 20, 2010) any risk of unfair prejudice. see, e.g., united states v. givan, on ordinary computers running windows operating custody. both of those facts suggested that the female in hearing, the district court denied vosburgh's motion to that both involve "variations between the charges in an the jury could have convicted vosburgh solely for possession one piece of information suggesting that adult pornography described repeated, deliberate attempts to access the link � not require proof beyond a reasonable doubt"). materials and "rarely, if ever" dispose of them. we must decide earlier, a video clip of adult pornography was shown to minors remains of that same hard drive were found on a bookshelf in existed on vosburgh's hard drive in the jap111 folder. argument. and the protection of the defendant's right to notice of the according to the government, vosburgh knowingly possessed a: 21st. on view and showed these pictures in thumbnail view." while q: what does that mean? facilitated the spread of child pornography. it explained what ip materially different from those alleged in the government's evidence at trial. the district court denied vosburgh's motion about february 27, 2007." (a. 45.) vosburgh's arguments rest conviction that vosburgh was not prejudiced by clinton's a visual image . . . ." 18 u.s.c. � 2256(5). appeal, we rejected shields's probable cause challenge. shields sexually explicit conduct" under 18 u.s.c. � 2256. see also vosburgh's attorney did not object to this statement as any sort question was a minor. in addition, clinton testified that he question of law over which we exercise plenary review. united of the link, how his computer logged the ip addresses of users opinion 30 thumbs.db pornographic images and the full-sized originals probability that contraband or evidence of a crime united states v. gourde, 440 f.3d 1065, 1068 (9th cir. 2006) the affidavit address "whether adult pornography is typically f.3d 626, 629 (4th cir. 2007) (explaining that "[e]ach computer variance requiring a new trial. objection"); united states v. hughes, 213 f.3d 323, 328 n.7 (7th those attempts already possessed some quantity of child thumbnail to open it and view a full-sized version of the picture. a: no, you would not. residence); united states v. hay, 231 f.3d 630, 635-36 (9th cir. the body of case law concerning staleness in the context of child 2006, luders posted six links to what purported to be child a: they were last modified on the 22nd which is the full-sized .jpegs of those images never did. this was a "http," to make it less likely that the links will be detected by not all variances constitute reversible error. a variance circumstances, and in light of the "broad discretion" we afford addresses are, and how "[l]aw enforcement entities, in "records" said about the girl's date of birth was impermissible 359 f.3d 194, 208 (3d cir. 2004)). when considering a claim and attempted possession of child pornography in violation of may have convicted the defendant for an offense differing from tower in the kitchen. the computer's panel had been forcibly 3. justin price suggesting that pornography could be found at the home � the it was not recovered. relevant date of possession. warrant application rendered information stale, in light of "visual depiction," the statute also encompasses matter that on february 22nd of '07. "an indictment is constructively amended when, in the 440 f.3d 1065, 1071 (9th cir. 2006) (en banc); see also united cause where suspect was identified as a member of child vosburgh's apartment on february 27. when agent desy rueter issued this warrant on march 1, agents returned to in question is accomplished through the use of a computer. as was born? public reputation of judicial proceedings." id. (internal citations rule 803 provides that "[t]he following are not26 so. mercuri speculated that an unknown user could have arrested and the girl was taken into protective custody. over 12 type of property that is usually quickly or continuously depictions" of child pornography, in violation of 18 u.s.c. � discard it. zimmerman, 277 f.3d at 434. vosburgh argues that told the jury: expert, dr. mercuri, came to trial prepared to refute the prior (en banc) (citing fbi affidavit describing child erotica as personal knowledge, because "[m]ost knowledge has its roots in defendant's residence using ip address); united states v. "piggyback" search warrant to return to vosburgh's apartment. vosburgh claims that zimmerman, in which we held that guerrero, 803 f.2d 783, 785 (3d cir. 1986). we will not who posts pictures of herself on imageboards and implicated in this appeal. trial began on october 31, 2007 and lasted for four days. process by which he obtained the search warrant for vosburgh's could have been infected with malicious software that turned it external hard drive that contained visual depictions" of child apparently, the district court viewed clinton's testimony as across ranchi through an unfortunate google search. because rendered the information in the affidavit stale. the "[a]ge of the has anymore, please post. simmons, 773 f.2d 1455, 1460-61 (4th cir. 1985) (concluding itself moves around the internet on a weekly basis. it is highly four-month gap between the warrant application and the the indictment." mckee, 506 f.3d at 231 n.7. if the thumbs.db determining probable cause." united states v. harvey, 2 f.3d containing exhibits 14 and 15 was created on february 21, for the eastern district of pennsylvania the prior possession theory, daraio, 445 f.3d at 262, is flatly other secure location such as their vehicle(s), where it is readily by the danger of unfair prejudice, and therefore they should have acquired through others may still be personal knowledge"). child pornography and the corresponding full-sized pictures are child pornography); united states v. lacy, 119 f.3d 742, 745 there would be no inconsistency between the indictment and the pornography. eventually, both groups were shut down and the ardmore, pa 19003 was reason to believe those attempts originated from search the defendant's home for adult and child pornography, q [the court]: do you know the date of birth of pornography. see, e.g., united states v. morales-aldahondo, tends to increase. id. at 433-34. the physical address to which that account was registered. q: so if you have a photo, like we do in this case, we apply the same standard the district court was required to [vosburgh's] hard drive." at trial, she likewise fiercely (1983): hearing. and, finally, after the superseding since he was "misled [and] surprised at trial" about the exact way of the link generated only gibberish on the recipient's attempted to lure vosburgh out of his apartment with a ruse. loli-chan is the name given to a 13-year old girl vosburgh could have been, or was, unfairly surprised when the post the necessary password, but never did. emphasized that there was no information suggesting that the nature of the crime and the type of evidence" involved. id. search of his apartment on february 27; this explained why the it is accessible through the use of any one of three "gateway" recognized the female in exhibit 14 because he had been in her possessed one external hard drive that contained visual choose view, it has to be there and he viewed certainty that that original photo once existed on existence of exhibits 14 and 15 in the thumbs.db file did not for acquittal or a new trial on this basis will therefore be denied. created a thumbnail. and he did this on february therefore, the passage of weeks or months here is less important the link. on the facts before us, and in light of our precedents, that the gap here was only four months. we therefore hold that evidence that such mischief had actually occurred. window on his web browser; (5) changing the letters "hxxp" in that the female in exhibit 14 was a minor, there was and is no own theory about how the thumbs.db file containing the deemed stale. see, e.g., shields, 458 f.3d at 279 n.7. see also rule 807 exception must give pretrial notice of its intention to of the computer equipment. moreover, defendant states v. somers, 496 f.2d 723, 744 (3d cir. 1974)). defense counsel the two images found on agency. removed and its internal hard drive was missing. part of an vosburgh contends that the district court erred by "result[s] in a reversible error only if it is likely to have "hard core" generally denotes depictions of children2 thumbs.db. he contends that after the trial evidence proved that 645, 650 n.2 (6th cir. 2008) (upholding probable cause in child cross-examination that the presence of a picture within a folder vi. evidentiary issues at trial the fourth amendment to the united states constitution about which clinton had acquired personal knowledge through "you will also hear evidence that [exhibits 14 deciding that vosburgh is correct that the thumbs.db images of did not necessarily mean that the image was actually viewed by the thumbs.db images but not the corresponding originals if he described how he confirmed where vosburgh lived and the n.2 (noting that an ip address "is unique to a specific austin, 420 f.3d 366, 370 n.6 (5th cir. 2005) (describing an ip further held that there was no probable cause to search for adult full-sized pictures approximately five days earlier. as a result, f.2d 706, 712 (9th cir. 1985) (concluding that testimony defendant was convicted of the same conduct for which he was roderick vosburgh appeals his conviction for possession 2252(a)(4)(b), "on or about february 27, 2007." this charge image in the folder jap111 computer? of persons interested in child pornography. it noted that "[c]hild 54 created in that folder but also after the full-sized versions of contained a layer of hearsay unaccounted for by the rules of under pennsylvania law for sexually abusing children and vosburgh argues that even if the ip address established a task force investigating the production and distribution of eighteen-page affidavit supporting the warrant application with mischief. in those cases where officers know or ought to know, pool; at the shower, starting to undress from her demonstration attempting to show that a person can possess a nature of thumbs.db is critical to resolution of the issues raised 33 (9) records of vital statistics. conjunction with internet service providers, have the ability to which, as the affidavit explained, was advertised as hard core "young girls as sexual objects or in a sexually suggestive way," inter alia, the time and date that he allegedly "downloaded the clinton testified that after the search of the house, the father was and 15] . . . ever existed as individual .jpeg files at any time on [vosburgh] viewed [the pictures] on february q: so what happened, if you know, to the original represent the identity of a user or the source of a transmission, the issue may not be as simple as the parties portray27 some of the illegal pornographic materials that agents had found appellant [and various other vulgar, non-sensical phrases]. ranchi message board. the gateway sites change approximately for long periods of time. see shields, 458 f.3d at 279 n.7;18 directs users to where it can be found elsewhere on the internet. 10 43 image." united states v. andrus, 483 f.3d 711, 714 n.2 (10th circumstances" outlined in agent desy's affidavit, gates, 462 vosburgh's motion to suppress was properly denied. whether these averments provided a "substantial basis" for the although the thumbs.db images and the full-sized .jpegs district court's error was harmless. the test for harmless error constructive amendments is not easily drawn, daraio, 445 f.3d on his interpretation of the statutory term "visual depiction." gateways, through postings on other child pornography websites. was a child pornography collector. we disagree. the affidavit fantasies, the collector rarely, if ever, disposes of agents obtained a search warrant for shields's home, where they full-sized .jpegs of those images recovered anywhere else on the computer, she showed that this thumbs.db file contained four connected to the internet is assigned a unique numerical [ip] knew the girl's date of birth to be august 25, 1992. on cross- vosburgh filed a post-trial motion for judgment of is opened, the user has several options for displaying the clinton testified that he recognized the girl in exhibit 14 address 69.136.100.151 was assigned to an account registered not simply an open forum in which some posts happen to be states v. lopez, 340 f.3d 169, 175 (3d cir. 2003). to the extent of a reviewing court is simply to ensure that the ("ip addresses") of every user who attempted to access the3 explicitly and exclusively dedicated to such pornography � accepted vosburgh's explanation of the evidence, there was 2009). to show that an error affected his substantial rights, he such pictures but then deleted them at some point before the turned into zombies to send spam emails, or as a place to store possession of "one external hard drive" (what � 2252(a)(4)(b) he ordered child pornography by mistake less probable). may not be admitted under this exception unless the proponent to fbi special agent david desy in philadelphia. possessed a full-sized .jpeg of that same image on his hard drive. constructive amendment and variance arguments until his post- one of the officers present that day testified that when5 60 and probable cause may no longer exist." zimmerman, 277 f.3d the computer room of a house, with one leg propped up do so. see fed. r. evid. 807 (stating in part that "a statement image files contained in the folder. it contains a miniature, the date that it captures. amended count i of the indictment by changing its theory of acquittal, or in the alternative, for a new trial. he claimed that "instrumentalities or evidence" of that criminal activity � such pornography case involving a five-month gap). surprised by the government's change of course during closing road, and both times observed a vehicle in the parking lot dornhofer, 859 f.2d 1195, 1199 (4th cir. 1988) (upholding the originals? will be found in a particular place. and the duty eighteen-month gap between the warrant application and the effects. u.s. const. amend. iv. to that end, it generally prejudicial variances exists to ensure "the fairness of the trial view. thumbs.db is not a collection of many image files; it is a sensible, but it does not account for the use of the word statutory term is correct. demonstration by his expert, dr. rebecca mercuri. he also are not changed but when the evidence at the trial proves facts substantial right." daraio, 445 f.3d at 262. "a variance does pictures were not illegal. this limiting instruction minimized pictures. vosburgh's expert dr. mercuri advanced several government exhibit 14 at trial, and we will refer to it as such. `certainty' or `evidence of guilt beyond a reasonable doubt'"); jurisdiction under 28 u.s.c. � 1291 and 18 u.s.c. � 3742(a). of relevant evidence in response to an objection under rule recovered within this file were once in that considerable motion practice preceded vosburgh's trial. considerable deference on the part of the reviewing court to the defendant argued that the images should have been suppressed trial motion for a judgment of acquittal. if he really had been cir. 2005) (smith, j., concurring in the judgment) (discussing lengthy discussion. when evaluating a sufficiency of the against constructive amendments arises under the fifth q [prosecutor]: do you know the date that girl merely serving as evidence of his knowing possession of those a variance occurs "where the charging terms of the indictment rule 403 challenge because the trial court's instructions would the thumbs.db file on vosburgh's external hard drive was one of 18 u.s.c. � 2252(b)(2), in connection with vosburgh's attempts at the center of this case is an underground internet a: from records we obtained from the � conclusively that the female in exhibit 14 was a minor, and united states of america affidavit was stale. in zimmerman, police obtained a warrant to photograph to be inside the thumbs.db file no information whatsoever in the affidavit to suggest that prejudicial, and it is only prejudicial if it "prejudiced some vosburgh claims, the prosecution "invited conviction for most favorable to the government and must sustain the jury's crime. see 18 u.s.c. � 2252(b)(2). therefore, the attempts to thumbnails alone. therefore, it changed course at closing retained" in the same manner as child pornography. id. at 435 in such a way that there is a substantial likelihood that the jury before: scirica, chief judge, barry, and smith, were not illegal, and claims that they had no tendency to prove as to how vosburgh's ip address could appear to have attempted his review of "vital statistics." because both parties take the the danger of unfair prejudice[.]" fed. r. evid. 403. we review for example, the following exchanges occurred between price apartment came a sound of "metal on metal" that sounded like show vosburgh's intent to possess child pornography. of the total lack of record evidence that he was the victim of any a sexual interest in children, and tended to disprove any no. 08-4702 clip; it could just as easily have been "located in cyberspace." is generated, the thumbnails are generated, those exists the possibility of mischief and mistake with ip addresses. a variance between the indictment and the evidence, the record attempted to access the link was a user at the ip address on a presentment or indictment of a grand jury[.]" u.s. const. 18 u.s.c. � 2252(b)(2). we will affirm. who has gained some notoriety by posting suggestive photos of possessing, on or around february 22, the full-sized .jpeg possession theory. she conducted a lengthy, in-court computer opportunity to prepare to meet it[.]"). here, the government did of a motion to suppress. zimmerman, 277 f.3d at 432. "thus, links to images and videos of child pornography. ranchi is1 2006) (holding that twenty-two month old information in imprecisely identified the exact "visual depictions"� essentially, sunset, and winter. she opened the folder and selected the suppress because officers lacked probable cause to search his his application incorporated by reference the affidavit used to testified extensively in support of the prior possession theory. assigns a unique ip number to each customer on a dynamic against him so that he may prepare his defense and not be misled 18 probable cause determination, gates, 462 u.s. at 236, but we not do so by introducing her birth certificate or some similar the numerous ways in which those fantasies can be turned into 46 hard drive contained thumbs.db versions of exhibits 14 and 15, ***** this link, luders posted the following description: most dogged pursuers of child pornography, and why it was that the superseding indictment materially misidentified the to have accessed the link. claimed that the metallic sound was the sound of him unloading often store their material and rarely discard it"); harvey, 2 f.3d possession of the thumbnails in the thumbs.db file, not q: and exhibit 14 and 15, the images, the pictures contained therein. one option is the "thumbnail" view. destroying the computer's internal hard drive; he claimed that he vosburgh was charged, 18 u.s.c. � 2252(a)(4)(b), does not standard for probable cause "clearly is something less than perrine, 518 f.3d 1196, 1205-06 (10th cir. 2008) (upholding 807. this argument is plainly wrong. the party invoking the by those thumbnails. as support for this claim, he cites the the district court's conclusions of law also10 seize all originals, copies, and negatives of any visual depictions application was ever located at the defendant's home. there the external hard drive contained a folder with hundreds out the facts specific to vosburgh. it noted that an individual constructively amended the indictment. in the alternative, he u.s. at 238, we think it was fairly probable that cir. 2008) (stating that "every computer or server connected to pornography. it was a dummy link which led only to agent "visual depictions," and in that sense may be "below the level of the jury found vosburgh guilty on counts i and ii, and established in united states v. leon, 468 u.s. 897 (1984). it completed. see, e.g., gourde, 440 f.3d at 1071 (crediting search for child pornography, because there was no information hearsay testimony. first, the jury viewed exhibit 14 for itself. these requirements are met, we may, at our discretion, grant a: well, what it would show you is the files of of exhibits 14 and 15, the government realized that it would not 13 23 that it was. the difficult line-drawing that might have been appeared in the jap111 folder was not proof that full-sized .jpegs confident that vosburgh's ip address was a fairly reliable a: yes. according to the date and time attributes 56 mercuri was vosburgh's forensic computer expert, and (8th cir. 2009) (holding that probable cause supported warrant for obvious reasons, chiefly among them a desire to evade law provided the requisite pre-trial notice. in an interview with agent desy, vosburgh manufacturing plant within the state); united states v. steel, 759 link would have done so by accident. finally, the affidavit laid4 amendment of the indictment. the statute under which government. amend. v. because of this constitutional guarantee, "a court times. he testified that when he arrived at her house, she because he had conducted a search of her house and arrested her whether, given all the circumstances set forth in might not, in the ordinary sense of the term, be thought of as a distinct collection of bytes of data. all. because it does not alter our disposition of the case, we will trial evidence. the government does not advance this argument; the same. according to mercuri, vosburgh could have gotten u.s.c. � 2252(a)(4)(b). to that end, the government sought to with four .jpegs depicting natural scenery: pond, blue hill, united states v. brandao, 539 f.3d 44, 57 (1st cir. 2008) have "limit[ed] any possible prejudice"). under these groups explicitly dedicated to the exchange of child that person? 29 787 (upholding admission of threat evidence against defendant's special software, and that there was no evidence that vosburgh material." ranchi allows its users access to a wide range of knocked, vosburgh opened the door. he told officers that he with attempted possession of child pornography in violation of agents luders and desy testified about the events that show "that the variance prejudiced some substantial right." id. through in order to access materials posted to the board, and the single pornographic video clip referenced in the warrant in july 2006, fbi special agent wade luders learned of vosburgh then filed a timely notice of appeal. we have evidence" could find guilt beyond a reasonable doubt. syme, residence. id. at 740. the court noted that although it was the racking of a gun. alarmed, officers remained outside of the apartment, officers learned that vosburgh lawfully owned more analyze a claim of staleness, we must do more than simply count demonstrates that vosburgh prepared a strong defense that disputed the prior possession theory. according to mercuri, the the measures ranchi has taken to conceal itself from all but the sized originals must have also existed within that folder and on any of the elements of the charges against him. he argues that 5. dr. rebecca mercuri luders's secure fbi computer. the "video" downloaded by hard drive. additional findings are as follows . . . ." the collector gets his hands on such material he will not be quick to advance of the trial . . . to provide the adverse party with a fair some connection to the physical location of his apartment, the the "4yo_suck" link (hereinafter the "link") was, in month delay rendered the affidavit's information stale. the case her testimony formed the bulk of vosburgh's defense. mercuri retired postal inspector clinton. the affidavit before him, . . . there is a fair in summary, we hold that the search warrant was d. post-trial admitting hearsay testimony concerning the age of the girl and found several images of the latter. 277 f.3d at 429. the17 price, an information technology specialist for the fbi, it was added or modified into that thumbs.db file froman, 355 f.3d 882, 890-91 (5th cir. 2004))).16 a: yes, sir. to access the link. count iii charged that vosburgh knowingly u.s.c. � 2256(1). investigating the transmission, production, and distribution of argument that he unknowingly possessed exhibits 14 and 15, or cannot permit a defendant to be tried on charges that are not vosburgh's apartment at the time of the search. gates, 462 u.s. refer to this theory throughout our opinion as the government's external hard drives that a user may not know it crimes with the fbi. he described his investigations of ranchi zimmerman which, although not directly relevant to staleness, interest in children and tended to disprove that vosburgh did not identify a user's ip address to a specific household or disturb the district court's ruling unless it was "arbitrary or second, on june 19, 2007, vosburgh filed a request for never explains what he would have done differently had he been 320 f.3d 452, 461-62 (3d cir. 2003) (noting that the court's affidavit explained, and as we have long recognized, persons enjoys hearing from her older male fans. in these government opposed vosburgh's request on the ground that miniatures is called a "thumbnail." the user can click on the to use their own ip address, they have to use some other ip agent desy took steps to confirm that vosburgh lived at "spoof" the ip addresses of others. in this case, we are 59 conducted the same day revealed the same information. on the number of the days between the date of the alleged criminal will be recognized by the browser. only then can the file be introduced any birth or adoption records into the trial record. it staleness inquiry requires us to consider the "type of evidence" described in the warrant."10 unreasonable for officers to infer that the person responsible for united states v. roderick s. vosburgh, no. 08-4702 home in new kensington, pennsylvania in 2003, during the precise date of birth of the female in exhibit 14 did not argues that there was a prejudicial variance requiring a new trial. 57 co., 879 f.2d 1518, 1523 (7th cir. 1989) ("[k]nowledge suppress the fruits of the search, concluding that the magistrate "had a substantial basis for finding probable cause that there folder when the government seized the hard drive. nor were officers collected the internal hard drive and the pieces of the of constructive amendment, the "key inquiry is whether the constructive amendment deprives a defendant of his fifth that which appeared in the indictment." united states v. mckee, prejudicial and inadmissible hearsay. 36 vosburgh vigorously contested the prior possession than 11 years old when he met her in new kensington. castro, 776 f.2d 1118, 1122 (3d cir. 1985) (quoting united about a matter is not hearsay. see, e.g., united states v. thumbnail images of the girls, when [were those] the ruling before us was not an abuse of discretion. the statistics about the girl's age would not have been excluded by vosburgh's next argument is that there was insufficient response to vosburgh's request for a bill of particulars. the 276 f.3d at 156. we must also recognize that the jury is entitled establish error that was plain and affected his substantial rights. what you will also hear is that in order to get indictment, government counsel identified for the relevant testimony is summarized below. therefore, we will review for plain error only. see united19 vosburgh's final claim is that the district court erred by 524 f.3d 115, 119 (1st cir. 2008) (rejecting defendant's theory. he contended at trial, and now contends on appeal, that prosecution during closing argument. in the alternative, he "obvious" to him that the "metal on metal" sound that officers conclusion in shields that a nine-month gap did not render the absence of a formal amendment, the evidence and jury 8 those steps would have done so inadvertently. the central factual issues at trial. the government contended contradicted by the record. vosburgh did not raise his 17 a: to view the files within the thumbs.db, yes. inc., 205 f.3d 657, 665 (3d cir. 2000) (en banc)). the only purpose of those many pages of boilerplate was, internal drive was found in a trash bag in the kitchen, and the it would be more accurate to say that any error present defendant had ever possessed child pornography in his home. had discarded it two or three weeks earlier because it was saved with the `.jpg' extension appended to the computer file for example, the trial evidence showed that proxy servers can be pornographic images could have gotten onto vosburgh's hard other and with adults. ranchi explicitly warns that the smith, circuit judge. original form on the external hard drive? offered a great deal of other testimony that established nearly evidence of a crime that was beyond the scope of the indictment. pictures are added into this particular file. accidentally. finally, he testified to the steps users had to go argues that the district court should have granted his motion to pornography websites through an ip address assigned to his led to vosburgh's arrest. agent luders testified to his three- evidence challenge, "we must view the evidence in the light mercuri concluded that "there is absolutely no evidence that the 45 been excluded under rule 403 of the federal rules of evidence. that became exhibits 14 and 15. count ii charged vosburgh q: so separate days? 52 50 rittenhouse place in .jpeg format and a file called thumbs.db which itself9 will not simply "rubber stamp" it. zimmerman, 277 f.3d at 432. single file, which can be thought of as a visual catalog of all the (emphasis added). largely for that reason, we held that the six- conclud[ing]" that probable cause existed. 1 "capable of conversion" into that image. id. (emphasis added). case involving ten-month gap); united states v. terry, 522 f.3d that contained adult pornography, and a thumb drive that with an interest in child pornography tend to hoard their child erotica by defining the latter as material that depicts address provided "a substantial basis to conclude that evidence they knocked on his door, identified themselves as police, and thumbnails, one corresponding to each of the .jpegs that 22nd. that is what the forensics showed. he day in question, the relevant ip address was assigned to a the url from that gateway to ranchi; (3) finding a hyperlink on indictment and the evidence at trial." daraio, 445 f.3d at 259. subscribed to by rod vosburgh, residing at 37 state rd., apt. only two files that [the] prosecution claims are child a variance that sufficiently informs the defendant of the charges message board known as ranchi. ranchi allows users to post than it might be in a case involving more fungible or ephemeral 27 cir. 2007). particulars. there, the government stated that it had "identified boilerplate went into considerable detail describing, for example, "prior possession" theory. admission of child erotica evidence against rule 403 challenge 15 a: we don't know what happened to it, because subscribers. he explained that comcast's automated system are, for all intents and purposes, the same pictures. in that case, 4 review only for an abuse of discretion. united states v. saada, evidence of criminal activity � including possession or even district court no. 2-07-cr-00171-001 notably, these two images did not exist as full-sized, (slip op. at 35.) 69.136.100.151 attempted to download a video that purported to iii. probable cause 32 january 31, 2007, through query of the u.s. postal service, 2006, someone using a computer with an ip address of the external hard drive; vosburgh sought to exclude it. the wagers, 452 f.3d 534, 539 (6th cir. 2006) (upholding probable another user and used to do things that the owner does not know described the nature of ranchi, with graphic descriptions of vosburgh offered none to the contrary. clinton described the haven't seen her on the board before � if anyone vosburgh was not surprised at trial, not to imply any government sought to admit much of the child erotica found on incident described in the affidavit that suggested possession of pornography either, because the only piece of information the district court dismissed count iv at the close of12 pursuant to requirements of law. contraband or evidence of a crime [would] be found" in her date of birth. there was enough other evidence that the see also united states v. stults, 575 f.3d 834, 843-4413 "includes . . . data stored on computer disk . . . which is capable the investigation of a matter within the jurisdiction of the fbi, back to shields. nine months after the groups were shut down, evidence to convict him on count i because the prior possession of these were pictures of a young asian girl known as loli-chan a web page that contains nothing but a hyperlink to the actual finder to decide the issue of age in a child pornography case vandalized. vosburgh did not answer the door, but from the district court has broad discretion to determine the admissibility pornography, because he had "voluntarily registered for two e- vosburgh knew exactly what that theory was well before closing exhibits 14 and 15 had been deleted. the illegal "images" he was charged with possessing, and the price, the fact that the thumbs.db images of exhibits 14 and 15 zimmerman, 277 f.3d 426, 438 (3d cir. 2002). vosburgh 5 louder each time. they also called vosburgh's telephone after the thumbs.db was created on the 21st. 22, basically the user went into the [jap111] folder . . . clicked of prosecution as to which "visual depictions" of child concluded that the information in the affidavit was not stale, pennsylvania returned a four-count superseding indictment "there is absolutely no evidence that the [images in exhibits 14 because clinton's testimony about the girl's age would have iv. constructive amendment and variance forensics expert justin price.6 exhibits 14 and 15 migrated onto vosburgh's computer as part agent desy testified about the steps he took once he have recognized, ip addresses are fairly "unique" identifiers.14 that it is doing. hackers may use computers that have been moreover, this statement disproves vosburgh's claim that the q: and how do you know it? [h]ere is one of my favs � 4yo hc with dad encountered the female in exhibit 14 through his leadership of charged only of knowingly possessing the thumbnails in through use of a password. undoubtedly criminal activity. considering the "totality of the left for another day. altered or destroyed tangible objects with the intent to obstruct testimony at trial. officers undertook the search for adult pornography17 "spoofed" vosburgh's ip address, or that vosburgh's computer versions of exhibits 14 and 15, with his possession of the charges against her and her opportunity to be heard." id. thus, "google your own porn," "kock swurve is gay," of conversion into a visual image") (emphasis added). it could (and should not inform this court's staleness analysis) because any prejudicial effect" of that evidence); guerrero, 803 f.2d at of child pornography." seizing on this reference to the "two vehicle records confirmed that vosburgh resided at 37 state viewed them on february 22nd. he went to his 2 planted on the computer through websites, through email, or girl is holding signs that read "i'm thirteen," 212 f.3d 210, 220 (3d cir. 2000). had downloaded the jap111 folder after the thumbs.db file was probative value of the loli-chan pictures was not insignificant. within the thumbs.db file in the jap111 folder. because the task force. he was asked whether he knew when the girl was visually depict child pornography, store information pertaining were among the pictures in the folder at that time. the jury the girl in exhibit 14 25 district judge: the honorable timothy j. savage pornography in this case [i.e., exhibits 14 and 15] . . . ever we will state the facts relevant to ranchi in the present1 his home. therefore, the hoarding presumption applicable to fantasies involving children," and into graphic detail describing vosburgh's apparent attempts to access the link. that warrant constructively amended through "evidence, arguments, or the exhibit 14 and 15 had to be viewed either on or to demonstrate prejudice from a variance, the defendant must with their legs spread to expose their genitalia. this became 151. but any notion that vosburgh was "surprised at trial" by "images that are not themselves child pornography but still fuel the fact remains that both of those "visual depictions" were related to child pornography; child pornography is ranchi's of that customer from time warner. a search of that address "affected the outcome of the district court proceedings." id. "if accessed and downloaded. even after downloading, files cannot q: now . . . can you say when the image of the not instruct windows to do so; it happens automatically as part zimmerman was a child pornography collector. the affidavit suite 1250 f.2d 1114, 1117-18 (3d cir. 1983)); see also agnellino v. new 53 and .jpeg images were in fact different "visual depictions" of 6. closing argument although variances and constructive amendments are20 "jap111." this folder contained twenty pictures of adult women did not argue staleness, but we raised the issue sua sponte and was definitive proof that the original, full-sized version of that the contents of the thumbs.db file in the jap111 folder. vosburgh raises four challenges to his conviction. first, he contradicting the government's theory of prosecution shows that additionally, because the case originated by district court specifically instructed the jury that vosburgh was 49 or subscribed to websites containing child pornography supports know that he possessed the pornographic pictures in exhibits 14 754, 774 (3d cir. 2005) (quoting united states v. tehfe, 722 this material can range from non-nude cuties to hard core baby this "hoarding" principle had no place in agent desy's affidavit knowledge that the business in question had never had a here created a variance. a variance occurs when the evidence had ever possessed child pornography. all it knew was that during his guns "so there would not be any trouble." second, the prosecutor raised the prior possession theory a: august 25th of 1992. at 238. we answer that question in the affirmative. vosburgh already knew everything he was entitled to know: groups. id. at 279 n.7. the affidavit established no basis for concluding that vosburgh "includes." see 18 u.s.c. � 2256(5) (a visual depiction most often, if not always, accessed by way of the gateway sites. was executed on february 27, 2007. before they arrived at his roderick s. vosburgh, reality, including the sexual gratification a collector may derive verdict if a reasonable jury believing the government's evidence for the jury to find that vosburgh knew there was an the defense at least contemplated a theory of prosecution other these pictures in thumbnail view. and once that that vosburgh actually lived there. it also described in detail the bill of particulars appears to conflate the terms "images" and 58 defendant's external hard drive that comprise the the ninth circuit observed in one child pornography case, address"); white buffalo ventures, llc v. univ. of texas at a: again, on the same date and time, february concerned when information and innuendo as serious as that seen long shelf life. it has not been, and should not be, quickly examined price about his testimony, but never objected to it as generated a log file containing the internet protocol addresses v. ineffectiveness on the part of vosburgh's counsel. certainty that those thumbnails that were that staleness is about more than simply counting days, however, and risky to obtain. presumably, once a child pornography possession or attempted possession long after the crime has been colleagues that, although there was not even an allegation that "books, magazines, periodicals, films, video tapes, or other mercuri testified that "spoofing is a way of making it11 b. admission of testimony concerning the age of vosburgh argues that clinton's testimony about what the one particular "visual depiction" of child pornography, but with examine the case agent at his probable cause apartment. see section ii.c.5, supra. we think the fact that vosburgh's made in the indictment against him." stirone v. united states, testimony from the "government's knowledgeable witness" that charges for the possession of child pornography. anna m. durbin we say "fairly" unique because there undoubtedly14 indictment charged that vosburgh "knowingly possessed one with violating 18 u.s.c. � 2232 by knowingly destroying every three months, but regardless of their location, they always software? ranchi does not itself host child pornography; instead, it prejudiced the defense," daraio, 445 f.3d at 262, so as to united states court of appeals physical address is insufficient to establish probable cause." id. and forensic examiners can often uncover evidence of clothed on a toilet. in many of these images, the 7 relevant because they suggested that vosburgh had a sexual government advanced the prior possession theory during closing ten and a half years old at the time he met her and initiated her into a "zombie." she admitted, however, that she had no11 criminal attempt to access child pornography was fairly was evidence that corresponding full-sized picture files once established any nexus between the pornography and the the thumbs.db file created on the first computer. using special several courts of appeals have held that evidence that the user 739 (1st cir. 1982). see also agfa-gevaert, a.g. v. a.b. dick did not answer sooner because he had been in the bathroom. was not hearsay because it reflected the witness's personal it remained likely that the source of the transmissions was inside at issue, zimmerman, 277 f.3d at 434, and we think it obvious when the user selects the thumbnail view, a miniature version 361 u.s. 212, 217 (1960). from this rule comes the general he walked into the apartment and saw the hammer, it became agent desy's affidavit explained that on october 25, vosburgh's next claim is that the government magistrate had a "substantial basis for . . . for defense counsel the two images found on defendant's content it reflects, along with the picture files themselves. but who attempted to access the link, and why it was unlikely that argument. a variance is only grounds for reversal if it is thumbnail view on february 22nd, and that exhibits 14 and 15 been admissible under the residual hearsay exception of fre are "per se reversible under harmless error review, [and] are malicious programs used to perform these activities can be 4. thomas clinton vosburgh's apartment. pornography, in violation of 18 u.s.c. � 2252(a)(4)(b), "on or calls "other matter") that contained visual depictions of child miller, 471 u.s. 130, 140 (1985))). ranchi's existence from a suspect apprehended in an probability" requires that the court possess a "sure conviction believe the government instead. 38 protects the "right of the people to be secure" in their homes and there. at trial, the government's expert justin price confirmed the living room. the destroyed internal hard drive was argument. the result, he maintains, was either a constructive uncovered child pornography. id. at 738. on appeal, the the collection. the collection may be culled and surprised or has otherwise prejudiced the defense." id. at 262. asserted that child pornography collectors tend to hoard their pictures found on his external hard drive. he argues that the i. factual background price testified that vosburgh viewed the jap111 folder in statute criminalizing the possession of an external hard drive magistrate's conclusion that there was a "fair probability that price testified that the presence of an image in the thumbs.db the government argues that there was neither a 975 (2000). female that he recognized in exhibit 14 as a "young girl" several storing electronic photographic images. jpeg files are usually depicted therein was a minor based on clinton's testimony as to view them in a thumbnail view, and it computer screen. meanwhile, agent luders's computer images of child pornography can be easily duplicated and . . . traced to defendant using an ip address). 50 amendment right "to be tried only on charges presented in an acknowledged that he lived alone in the apartment and that he deaths, or marriages, if the report unlikely that anyone would have stumbled across the board that opening the thumbs.db file to view its contents requires address to comcast cable communications. in response to a despite the nine-month gap between the warrant application and prohibition against constructive amendments. see united states of constructive amendment in a post-trial motion for a new trial, ranchi moves so frequently and has cumbersome urls, it is finally, and most tellingly, we note that vosburgh's counsel for appellant when she opened that folder on the second computer, it vosburgh ever possessed child pornography, there was reason to visual depiction of an image � such as data stored on a hard their own, permanent ("static") addresses, in general an ip address assigned to vosburgh on october 25 made his attempts pornographic pose. in fact, it does little to engage vosburgh's statutory argument at amendment, and protects the "constitutionally guaranteed role cause determination where images of child pornography were the magistrate's task was to make a practical, common- warrant application contained no information suggesting that 51 materials from his computer's hard drive, law enforcement can apply," i.e., "whether the magistrate who issued the warrant had "zombie" when it is remotely and surreptitiously hijacked by the ranchi board; (4) copying and pasting that link into a new store them in a file folder called japs111, had to a: yes, i do, your honor. of minors engaging in sexually explicit conduct; "[a]ny and all computer equipment. neither count iii nor count iv is q: now, you testified that to see one of these vosburgh's hard drive. he testified that the thumbs.db file similar errors, the rules against each serve different purposes technically possible that the offending emails "originated the district court's ruling was based on a permissible seize much more than computer equipment. it allowed them to external hard drive that comprise the charges for the possession (applying plain error review when constructive amendment was information to suggest that vosburgh could be a collector of government exhibit 15. court did not abuse its discretion by permitting the government he traced that ip address to vosburgh. he also testified about exchange occurred: the internet has a unique ip address"); perrine, 518 f.3d at 1199 the ordinary user cannot view the contents of thumbs.db. children, those pictures are two different "visual depictions" female in exhibit 14 was a minor that we can hold a sure of each picture in the folder is displayed. each of those pornography collectors almost always maintain and possess their jersey, 493 f.2d 714, 727 (3d cir. 1974) (stating that the greatly diminished, if not reduced to zero. swimsuit; in a mini-mouse outfit; in a school the information in agent desy's affidavit was not stale. as the meanwhile, the risk of unfair prejudice was low. the martin, 426 f.3d 68, 77 (2d cir. 2005), and united states v. (toddler, some oral, some anal) � supercute! even if they are sold or traded . . . . have an infinite life span."). required if the government had not conceded this point can be it is not disputed that when it applied for the search warrant, "jpeg" stands for joint photographic experts group9 a "minor" is any person less than 18 years old. 1825 evidence found in his apartment, because there was no probable hands-on judgment of the trial judge." united states v. view. the indictment, there is no constructive amendment. united there is another distinction between this case and18 government raised the prior possession theory for the first time the conclusion that he has likely downloaded, kept, and the search warrant authorized agents to search for and15 had conducted her own forensic examination of the external consider evidence of defendant's prior convictions "minimiz[ed] impermissibly changed its theory of prosecution during closing link three times in a two-minute period between 11:46 and a `substantial basis' for determining that probable cause first raised in the district court in an unsuccessful post-trial denise s. wolf (argued) adoptive father as part of his work on an anti-child pornography referenced the good-faith exception to the exclusionary rule district court's jury instructions," if they "effectively amend the indictment sufficiently informs the defendant of the charges possession of those pictures suggested that vosburgh harbored scope of the warrant. vosburgh's apartment four months after he attempted to access 28 22, 2007. and in order to do this, you have to using the ip address 69.136.100.151 attempted to access the the hearsay rule, but points out that the government never prove that vosburgh ever knowingly possessed the full-sized the indictment, vosburgh is charged, not with possession of any to introduce some of the loli-chan pictures found on when the user selects the thumbnail viewing option, the existed." id. we owe "great deference" to the magistrate's 506 f.3d 225, 229 (3d cir. 2007) (quoting united states v. lee, was the government's expert witness. he conducted the is coming from another." she explained that "people are they also found a hammer and a pair of scissors outside of the 9 documents . . . pertaining to" the possession of child apartment � computers and/or computer equipment � is not the in her opening statement. she said: (including images and documents on the external any possible participation by shields in the child pornography there, the court took over questioning and the following attract attention. he then re-posted the "4yo_suck" link and different "visual depictions" within the meaning of the statute,22 viewed in thumbnail. why it was unlikely that anyone who had undertaken each of according to vosburgh, he was charged only with believe he was nonetheless a "collector" or, at least, he "could be." unnaturally to expose her genitalia. this image became forensic examination of vosburgh's external hard drive. he at 739. the fifth circuit disagreed, concluding that the ip anyone who attempted to download the video promised by the we agree with the reasoning in perez. as many courts the hard drive? any form, of births, fetal deaths, i have nothing against boilerplate per se. but i am deeply b. analysis child pornography. one depicted a naked prepubescent girl in of exhibits 14 and 15 once existed on the hard drive. to nevertheless, the government gave a few specific responses to in sum, there is no indication in the trial record that individual utilizing the ip address 69.136.100.151 on october groups that were devoted principally to sharing and collecting uniform sitting on the floor barefoot; and sitting thumbs.db files as in the previous exhibit. united states v. paull, 551 f.3d 516, 522 (6th cir. 2009) (noting may not be renewed. he further explained that comcast can against vosburgh. count i charged that vosburgh "knowingly search engines. therefore, a user interested in that link must one nude girl [exhibit 14] . . . . entered the in this appeal, it is necessary to recount the record evidence argues that this inconsistency created a prejudicial variance, 34 matter which contain any visual depiction" of child on the basis of exhibit 14, it is not the case, as vosburgh claims, hearsay. he concedes that under rule 803(9), records of vital refined over time, but the size of the collection search warrant were set forth in illinois v. gates, 462 u.s. 213 q: let's look at the next one. image of four nude 6 february 22, 2007? the link, and explained why, based on comcast's records, there at least in my view, to assure that the warrant issued, which compatible with the tower in the kitchen. unable to recover anything from either. they also took the at trial. he did not. in fact, there is little to no indication in the girl's date of birth. clinton went on to testify that the girl was26 without opinion. enforcement to match ip addresses to individual comcast in detailed fashion, of the basis of the underlying possession of the .jpegs whose earlier existence was evidenced as a particular image, but as the collection of bytes that is he conclusively disproved the theory with an in-court those records. therefore, vosburgh argues, clinton's testimony any error in admitting clinton's hearsay testimony about the than the showing in zimmerman. in zimmerman, we shields, 458 f.3d at 272. they traced one of those addresses used to mask ip addresses, and that knowledgeable users can enforcement, ranchi operates in the far recesses of cyberspace. approximately 6-8 days. at the expiration of that lease period, district court admitted some but not all of this evidence. it pornography on a file-sharing network); united states v. vosburgh argues that the government changed its theory found hundreds of images of child pornography. id. at 273. on v. navarro, 145 f.3d 580, 585 (3d cir. 1998) (stating that a supported by probable cause. the ip address connected to a related to his possession of the hard drive containing the images material especially for all the kiddy lovers around the world. affidavit in support of warrant to search for child pornography possessed such software or was otherwise capable of viewing excluded by the hearsay rule, even though the declarant is 40 see, e.g., united states v. forrester, 512 f.3d 500, 510 n.5 (9th 20 . . . sexual fantasies involving children"). hard drive and images. at most, the government's response at 434. "age alone," however, is not determinative. id. to see united states v. katz, 178 f.3d 368, 373 (5th cir. 1999) misled or surprised at trial does not prejudice the defendant's would be found at the home: a report that six to ten months point to the most recent location of the ranchi board, which 262.21 q: would you need that special software to view probable cause analysis here must account for the accepted fact reflecting contact with minors. vosburgh does not challenge the supported may be suppressed. see, e.g., united states v. zimmerman possessed child pornography in his home, and only the significance of the presence of exhibits 14 and 15 in 14 that child pornography collectors tend to hoard their materials child pornography. therefore, unlike in zimmerman, the we are confident that there was no constructive the government's response to vosburgh's request for a short, a trap. it did not direct the user to actual child and similar websites, and the nature of the child pornography claims of constructive amendment or variance. united states v. copy it from the board, paste it into the address bar of a web of child pornography in violation of 18 u.s.c. � 2252(a)(4)(b) link, and the date and time of each attempt. among those who united states v. jones, 566 f.3d 353, 362 (3d cir. 2009). "a might be considered the same "visual depictions," since they raised these claims for the first time in his post-trial motion. (6th cir. 2006) (noting that "evidence that a person has visited be able to convict him based on his possession of those a: that is correct. that residence." id. (emphasis added). road, apartment b4 in media, and a choicepoint query vosburgh's hard drive. presumptively prejudicial under plain error review." united testimony that recounts what was spoken by an out-of-court external hard drive. the indictment, when read in tandem with the physical premises linked to that ip address. see, e.g., united two visual depictions" which formed the basis for count i. the offensive email, and from its records identified that user's ip have concluded that the female in exhibit 14 was a minor. deciding whether it applied to the search of vosburgh's external hard drive. rather, they existed only as miniatures that the error did not prejudice the defendant." id. we hold that traceable to vosburgh's apartment, and the information in the perez, 484 f.3d at 740 (recognizing that "[p]robable cause does expert came to trial prepared with a powerful demonstration computers have "long memor[ies]." united states v. gourde, computer"); peterson v. nat'l telecomm. & inform. admin., 478 bathroom door. they found a screwdriver next to a computer5 the "collection" of the "collector" as revealing his "private sexual third, vosburgh moved to suppress the external hard child pornography collectors "do not quickly dispose of their of pictures of what the government calls "child erotica." many7 link, how his computer logged vosburgh's ip address, and how outside of the residence to which the ip address was assigned, the government's case-in-chief because there was insufficient unlikely that an innocent user of the internet would stumble picture to be generated from the computer system. 69.136.100.151. that individual attempted to download the error review where the defendant failed to object at trial to the during the search and from the adoption at closing. they knocked at least three times, with the knocks getting lollipop; in a bathroom wearing a robe and substantial discovery, including reports of vosburgh's interpretation of the statutory text is22 child pornography throughout the country. he testified that he probable cause where pornographic images were traced to without hearing any expert testimony"). second, clinton defendant even took the opportunity to cross- interested persons often learn of ranchi, and where to find the required, is more of a due process rule than is the flat fifth only to make clear that, in addition to the ordinary meaning of obtain the february 27 warrant. after magistrate judge thomas subpoena, comcast informed the government that "the a. ranchi that its theory of prosecution was consistent from start to finish, cf. shields, 458 f.3d at 278 (finding it fairly probable16 degraded version of every image in the folder that has been before us is different. as we have explained, there was ample the trial court to the subtleties of the particular situation, and a two-minute period of time on one day in vosburgh's life, he to the sexual interest in child pornography, or to distribute, q: so the thumbs.db was created february 21st. allowed forty-six non-pornographic images of prepubescent defendant is convicted of the same offense that was charged in testified in support of the prior possession theory. according to of a computer employing a particular ip address possessed or 55 retired u.s. postal inspector thomas clinton testified the similar "nature of the crime[s]" involved, id., and the fact and 15] were found in part of the computer type of evidence that rapidly dissipates or degrades. nor is it the email address. yahoo! identified the user who sent the