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United States v. Haymond

United States Court of Appeals, Tenth Circuit

August 31, 2017

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
ANDRE RALPH HAYMOND, Defendant-Appellant.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA (D.C. No. 4:08-CR-00201-TCK-1)

          William D. Lunn, Tulsa, Oklahoma, appearing for Appellant.

          Leena Alam, Assistant United States Attorney (Danny C. Williams, Sr., United States Attorney, and Andrew J. Hofland, Assistant United States Attorney, on the brief), Office of the United States Attorney, Tulsa, Oklahoma, appearing for Appellee.

          Before KELLY, BRISCOE, and McHUGH, Circuit Judges.

          BRISCOE, CIRCUIT JUDGE.

         The district court revoked Andre Ralph Haymond's supervised release based in part on a finding that Haymond knowingly possessed thirteen images of child pornography. The district court imposed the mandatory minimum sentence required by 18 U.S.C. § 3583(k). Haymond appeals and argues that the evidence was insufficient to support a finding by a preponderance of the evidence that he possessed child pornography, and that 18 U.S.C. § 3583(k) is unconstitutional because it violates his right to due process.

         We conclude that the evidence was sufficient to support the district court's finding that Haymond violated the conditions of his supervised release, but we agree that 18 U.S.C. § 3583(k) is unconstitutional because it strips the sentencing judge of discretion to impose punishment within the statutorily prescribed range, and it imposes heightened punishment on sex offenders based, not on their original crimes of conviction, but on new conduct for which they have not been convicted by a jury beyond a reasonable doubt. Thus, we affirm the district court's revocation of Haymond's supervised release, but we vacate Haymond's sentence and remand for resentencing.

         I

         On January 21, 2010, Haymond was convicted by a jury of one count of possession and attempted possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). Aplt. App. vol. I, at 29. For this offense, Haymond was sentenced to thirty-eight months of imprisonment, to be followed by ten years of supervised release. Id. at 30-31. Haymond began serving his supervised release on April 24, 2013. Id. at 144.

         On October 22, 2015, at 6:00 am, probation officers conducted a surprise search of Haymond's apartment. Id. at 145. The officers seized a password-protected Samsung cellular Android phone belonging to Haymond, a personal computer belonging to Haymond, a personal computer belonging to Haymond's roommate, and two other computers found in the kitchen area. Id.

         A probation officer conducted a forensic examination of Haymond's phone using a Cellebrite device, which extracts the flash memory of the phone for examination. Id. This examination revealed web history for only October 21, 2015, indicating that all prior history had been deleted. Id. at 146. The web history for October 21 contained numerous websites with titles indicative of sexually explicit material. Id. (listing websites). The forensic examination of Haymond's phone also revealed fifty-nine images that the FBI's Internet Crime Task Force identified as child pornography. Id. at 147.

         Based on these findings, Haymond's probation officer alleged that Haymond had committed five violations of his supervised release: (1) possession of fifty-nine images of child pornography, in violation of the mandatory condition that Haymond not commit another federal, state, or local crime; (2) failure to disclose to the probation office all internet devices he possessed, in violation of a special computer restriction; (3) possession of numerous sexually explicit images on his phone, in violation of a special condition that he not view or possess pornography; (4) failure to install and pay for computer monitoring software, in violation of a special monitoring condition; and (5) failure to attend sex offender treatment on fifteen occasions, in violation of a special condition that he participate in treatment. Id. at 142.

         The district court found, by a preponderance of the evidence, that Haymond had committed all five violations, but, with respect to the first alleged violation, possession of child pornography, the court concluded that Haymond had possessed only the thirteen images located in his phone's gallery cache, not the other forty-six images located in other portions of the phone's cache. Id. Because the possession of child pornography triggered a mandatory minimum sentence of five years' reincarceration, under 18 U.S.C. § 3583(k), the judge sentenced Haymond to five years' reincarceration, to be followed by a five-year term of supervised release. Id. at 191-92, Aplt. App. vol. III, at 152.

         Haymond appeals and challenges only the first of these alleged violations. He argues: (1) that the presence of images in his phone cache was insufficient to show by a preponderance of the evidence that he knowingly possessed child pornography, and (2) that 18 U.S.C. § 3583(k) is unconstitutional because it deprives him of due process. Aplt. Br. at 2-4.

         II

         "We review the district court's decision to revoke supervised release for abuse of discretion." United States v. Jones, 818 F.3d 1091, 1097 (10th Cir. 2016) (quoting United States v. LeCompte, 800 F.3d 1209, 1215 (10th Cir. 2015)). "A district court abuses its discretion when it relies on an incorrect conclusion of law or a clearly erroneous finding of fact." United States v. Battle, 706 F.3d 1313, 1317 (10th Cir. 2013). "A finding of fact is clearly erroneous if it is without factual support in the record or if, after reviewing all of the evidence, we are left with the definite and firm conviction that a mistake has been made." United States v. Hernandez, 847 F.3d 1257, 1263 (10th Cir. 2017) (quoting In re Vaughn, 765 F.3d 1174, 1180 (10th Cir. 2014)).

         Here, the district court abused its discretion by relying on a clearly erroneous finding of fact that "Haymond knowingly took some volitional act related to the Gallery Images that resulted in the images being on his phone in a manner consistent with knowing possession." Aplt. App. vol. I, at 164. Nonetheless, the remaining evidence in the record was sufficient to support a finding, by a preponderance of the evidence, that Haymond knowingly possessed the thirteen images of child pornography located in the Gallery cache of his smart phone.

         The only expert testimony regarding the Gallery cache function on Haymond's smart phone came from David Penrod, who testified as an expert for Haymond; the prosecution did not provide any expert testimony. Id. at 166. With respect to all fifty-nine images, Penrod testified that the presence of the images in the phone's cache did not indicate whether or not the user had viewed the images or knew of their existence. Aplt. App. vol. II, at 128 ("With Internet cache databases, all that information is automatically downloaded in the background without the user's knowledge."); id. at 163-64 (A user may not know images in the Gallery cache exist "because the Gallery3D cache database contains images from all over the phone, not just from one particular folder on the phone."); id. at 140 ("[T]he fact [the apk file is] still sitting there in the download folder is very strong evidence that the user had no knowledge that this file was there."). Further, Penrod testified that all the images were thumbnails, indicating that the user had not clicked on them because, if the user had viewed an enlarged image, that enlarged image would also appear in the cache. Id. at 130-32. The images did not include any metadata, so it was impossible to determine when the images came to be on the phone, except to say "that they arrived in the cache file of the phone at some point prior to seizure." Aplt. App. vol. I, at 149; Aplt. App. vol. II, at 135-36.

         Penrod also testified that Android smart phone users can easily access their photo gallery through the Gallery3D application and can look through the photos in that application. Aplt. App. vol. II, at 158. He was then asked this question: "So a cached file from the Gallery indicates that, just the same way as for the Samsung browser, that at one point an image that corresponded to that cached file was present in that application?" Id. at 159. He responded, "Correct." Id.

         Further, Penrod's testimony makes clear that images can appear in the Gallery3D application without a user taking any volitional action to place them there. Penrod testified that "the gallery cache functions in the same way that the browser cache does: it's a cached database and it contains thumbnails." Id. at 163. He stated that the Gallery3D application searches the phone for all images on the phone. Id. ("[I]t's going to go out and look for actual images throughout the phone."). Therefore, he testified that a user might not know about all the images in the Gallery cache. Id. at 163-64.

         After recounting this testimony, the district court concluded, "[b]ased on this testimony and other circumstantial evidence, " that it was "more likely than not that Haymond knowingly possessed the Gallery Images at a point in time prior to search of the phone." Aplt. App. vol. I, at 163. Specifically, the court made the following findings:

• "Haymond had nearly exclusive use and possession of his password-protected phone, " id. at 163-64;
• Only Haymond "possessed the phone at relevant times, " id. at 164;
• "[O]nly those images actually 'on the phone' (and not images merely accessed or viewed on the phone using a browser application) would have a "gallery 3d" path when found in the cache, " id. (quoting Aplt. App. vol. II, at 168);
• "[O]n the phone" means "saved, downloaded, or otherwise accessible on the phone in some application for viewing at the user's discretion, " id. (emphasis added);
• "Haymond knowingly took some volitional act related to the Gallery Images that resulted in the images being on his phone in a manner consistent with knowing possession, " id. (emphasis added);
• "[T]hese 13 images previously resided in an accessible area of Haymond's phone and were under his control, " id.; C "[T]he path demonstrates that Haymond took prior volitional actions with regard to the Gallery Images, " id. (emphasis added);
• Unlike the Browser Images or the APK Images, "the 13 Gallery Images depict sexual acts between young boys or between boys and adult males, " which is "consistent with images forming the basis of Haymond's original conviction, " id. at 165.

         The portions in italics are clearly erroneous because the district court expressly relied on Penrod's testimony as support, but these findings are actually contradicted by Penrod's testimony. We agree with the district court that "[s]aving, downloading, or otherwise placing the image in an application on the phone is a similar volitional act" to the "volitional downloads from Limewire" that supported Haymond's original conviction. See id. at 164. But Penrod's testimony supports only a finding that the images were at some point accessible on Haymond's phone, not that Haymond necessarily saved, downloaded, or otherwise placed them there. Penrod's testimony cannot be construed to indicate either that Haymond knew the images were in the Gallery3D application, or that he took any volitional action to cause them to be there.

         Even if this was not clear from Penrod's testimony at the hearing, Haymond submitted a letter from Penrod clarifying that, "[w]ithout additional information about them, the most one can say about the photographs linked to thumbnail images in the Gallery3D cache database is that they were on the phone at one time." Id. at 186. Penrod gave five examples of ways the images might have arrived on Haymond's phone without Haymond's knowledge or volitional acts, including as zip file attachments to emails, as text messages sent without Haymond's consent, as attachments to messages on social media sites, as part of a mass file transfer from a computer, or downloaded from the internet as part of a set. Id. According to Penrod, "[o]pening the transferred archives, folders, or sets would have launched the phone's Gallery3D service. The service would have automatically scanned the contents of the new directories, extracted thumbnail images from all the photos within them, and stored the thumbnails in the Gallery3D cache database." Id. Penrod stated unequivocally:

The mere fact that these thumbnail images are in the Gallery3D cache database does not mean, however, that Mr. Haymond had viewed their full size counterparts or even knew of their existence. The thumbnails in the cache database also do not mean that Mr. ...

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