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United States v. Breton

United States Court of Appeals, First Circuit

January 6, 2014

UNITED STATES, Appellee,
v.
Royce BRETON, Defendant, Appellant.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Timothy E. Zerillo, with whom Amy T. Robidas and Zerillo Law, LLC, were on brief, for appellant.

Margaret D. McGaughey, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.

Before TORRUELLA, DYK,[*] and THOMPSON, Circuit Judges.

THOMPSON, Circuit Judge.

On May 10, 2012, a jury in the District of Maine convicted Royce Breton of producing, possessing, and distributing child pornography. The district judge subsequently sentenced Breton to 340 months of imprisonment, followed by fifteen years of supervised release. Breton now appeals, challenging the admission of certain evidence, the sufficiency of the evidence as to all charges, and the calculation of his sentence. Finding none of his claims persuasive, we affirm both his conviction and his sentence.

I. Facts and Background

Because Breton contests the sufficiency of the evidence, we present the facts in the light most favorable to the verdict. See United States v. Stefanik, 674 F.3d 71, 73 (1st Cir.2012).

A. The Investigation

The unusual trail leading up to this case began on August 16, 2010, when Lewiston Police Officer David Brule, State Police

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Sergeant Glenn Lang, and State Trooper David Armstrong made an unannounced visit to Breton's house in Sanford, Maine to investigate an unrelated computer hacking crime.[1] Breton, a nuclear electronics supervisor at the Portsmouth Naval Shipyard and part-time pre-medical student at the University of New England, shared the home with his then-wife, Amanda Paradis, and their young daughter.

The officers arrived at about 1:00 p.m., while Paradis was at work and Breton, who worked the evening shift, was home alone. When Breton answered the door, the officers asked if they could come in to speak with him about the computer hacking crime. Before they entered, Trooper Armstrong saw a sizable dog in the house and asked Breton to secure it in another room. Breton complied, but he also took advantage of the opportunity to hide the Sony laptop computer (the " laptop" ) that he and Paradis shared in the basement.[2]

A few moments later, Breton let the officers in and responded courteously to their questions. He led them upstairs to his custom-built desktop computer (the " desktop" ) and an old, non-functioning Gateway laptop computer (the " Gateway" ). When asked whether he had used wiping software on those computers, Breton replied he had not and permitted the officers to take them for further inspection.[3] Breton made no mention of another computer squirreled away in the basement.

When Paradis arrived home that evening, Breton told her about the officers' visit and their computer hacking investigation. He said the police had taken the desktop and the Gateway, but they had not taken the laptop because he had put it in the basement. Breton explained to her that " he didn't think [the officers] needed to have [the laptop]," because " [h]e told them everything that they needed to know."

As a result of this conversation, Paradis decided to take the couple's daughter and move in with her parents. She also took the laptop, telling Breton she was worried the police would come back to their house and blame her for concealing it. On August 26, 2010, ten days after the officers' visit and unbeknownst to Breton, Paradis contacted the police and arranged for Officer Brule to retrieve the laptop at her workplace.

About a week later, Breton asked Paradis about the laptop. When she said she had given it to the police, Breton became very distraught, saying she had " screwed everything up" and " he was going to go to jail and lose his job." Later, in a heated text message exchange, Breton again expressed anger at Paradis for turning in the laptop and told her he " should have sh[o]t [her] instead." [4]

On September 8, 2010, Breton called Officer Brule to ask when his computers would be returned. They agreed to meet and discuss the matter on September 20.

In the meantime, Officer Brule examined the laptop and, in doing so, uncovered sexually explicit images of children in a

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hidden file associated with Yahoo Messenger— a chat program that allows users connected over the internet to converse and exchange files, including images or videos— and the username " Shadowwind345." Officer Brule also discovered that wiping software had been installed on the laptop on August 16, 2010 at roughly 2:00 p.m.— i.e., shortly after the officers had left Breton's house.

At their September 20 meeting, when Officer Brule asked Breton why he had not turned over the laptop, Breton answered that it belonged to his wife and contained intimate images of the couple that he did not want others to see. He admitted to installing the wiping software on the laptop but claimed he used it only to remove the private images of him and his wife. He conceded that this might make it look like he was destroying evidence, but he insisted that he knew nothing about the Shadowwind345 account and said he was " completely flabbergasted" when Officer Brule told him about the child pornography images found on the computer.

Yahoo later informed Officer Brule that the Shadowwind345 account was created on June 23, 2001 and was registered to an obviously-fictional " Mr. Nonesuch-ever-was" in Cleveland, Ohio. Although Breton never admitted to creating the account, at trial Breton acknowledged that he often used the combination " 345" in his usernames and passwords. For example, his e-mail address was Breton 345 @ metrocast. net. He also conceded at trial that his dad used to have a cat named Shadow. The Shadowwind345 account was deactivated on September 18, 2010— two days before Breton's appointment with Officer Brule— from an IP address registered to MetroCast (Breton's internet provider) at Breton's home, and associated with Breton's e-mail address.[5] An in-depth investigation followed.

1. The Laptop

Officer Brule and Secret Service Special Agent Matt Fasulo, a computer forensics expert attached to the Maine State Police Computer Crimes Unit, recovered roughly three hundred images of child pornography from the laptop in hidden folders related to the Yahoo Messenger program.[6] Two hundred of these images were identified as portraying known child victims in the National Center for Missing and Exploited Children database.

Of the unidentified images, three were singled out as photographs of a young female child, dubbed " Minor A." Each depicts a close-up of Minor A's genitals. In the photographs, Minor A has a crease in her right thigh, is lying on a patterned quilt, and is wearing a onesie. In one image, an adult hand displays Minor A's vagina.

At some point, Sanford Police Detective Barbara Gagne took over the case from Officer Brule and arranged to meet with Paradis to discuss some of the images found on the computer. She showed Paradis the Minor A photographs and Paradis identified Minor A as her daughter. Paradis said her daughter was " a very chubby baby" who had a visible crease in her right thigh, just like Minor A. She recognized the patterned quilt in the photographs as the quilt her aunt had made for her baby

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shower. She said the onesie Minor A wore in the photographs was the onesie her daughter " wore pretty much every day." Paradis also identified the finger in one of the photographs as Breton's finger based on its appearance and its short, always-bitten-to-the-quick fingernail.

Additionally, Special Agent Fasulo ran tests to determine how the Yahoo Messenger folders containing the child pornographic images were created and whether the images were exchanged.[7] His investigation revealed that the Yahoo Messenger program automatically created a folder whenever a chat took place. Each folder contained all the files that were sent or received during a particular chat. Ordinarily, the folder would be deleted when the user closed the program, but if the program " crashed," or terminated abnormally, the folder would remain on the computer. Furthermore, Special Agent Fasulo could ascertain whether a particular image in a folder had been sent or received based on whether its file name contained a specific sequence of symbols and letters.

Special Agent Fasulo's analysis indicated that at least one of the three Minor A images was sent from the laptop using Yahoo Messenger on April 27, 2009 at 11:42 a.m.; the other two images were either sent or received at roughly the same time.[8] He also found that an iPhone registered to Breton was connected and synchronized with the laptop about forty minutes before these images were exchanged. Other evidence showed that Breton did not report to work that day until 3:30 p.m.

In addition to the images, Special Agent Fasulo discovered registry files on the laptop with names he had encountered in other child pornography investigations, including: " Pthc," meaning " preteen hardcore; " " Lolita," meaning an underage female; and " girl-in-tent-11-YO," meaning " 11-years-old." [9] But he located no corresponding image files on the laptop.

Special Agent Fasulo also came across a program called GigaTribe, which, like Yahoo Messenger, allows users to upload images or files to share on the internet. In a memory folder created by the operating system that stores information in the event of a crash, Special Agent Fasulo found GigaTribe folders associated with the usernames " Royce-$ $-2AOB" and " Shadowwind345B." In those folders, he identified files with names like " ptsc," meaning " preteen softcore," and " kids- teens- women- porno- lolitas- preteens- real- key- movs- r@ y- goldhussyfans- underage- girls- children- pedophilia- pthc." [10] Again, corresponding image files were not found on the laptop.

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Lastly, Special Agent Fasulo discovered a program called Internet Relay Chat, which brings users with similar interests together in chat rooms. The program was saved to the C:Royce directory and associated with the nicknames " Shadow345" and " Shadowwind345," a username " nonesuch," and an e-mail address none@ nowhere. com. The log files of chat rooms visited included names like " young-girl-sex," " dad-and-daughter-sex," " little-boy-sex-chat," " mom-daughter-sex," and " teen-sex-pics." Also spotted in the C:Royce directory was Breton's application to the University of New England.

2. The Desktop

No images or files containing child pornography were recovered from the desktop. However, Special Agent Fasulo's examination of the desktop's three hard drives revealed considerable past interactions with two web-sharing forums: imgsrc.ru (" Image Source Russia" ), a website that allows users to upload images from servers in Russia into albums to share publicly or with password protection; and XNews, a newsgroup website where readers can comment on particular topics. There was evidence of past searches on Image Source Russia for such phrases as " 12YO," " daughter," " naked," " girl," " sex," " 14," and " 14 plus girl," as well as evidence of webpages visited containing albums with titles and keywords like " love Lolita," " children," " young girls," " 14YO topless," and " young nude preteen girls." And although the files themselves were missing, there was evidence of downloads from XNews including, " Pthc 11 YR son eat mom" and " O-R-G-A-S-I-S-M.mpg."

Special Agent Fasulo subsequently accessed the Image Source Russia website and found a user page registered to the user " Shadowwind345" at the e-mail address shadowwind 345@ yahoo. com. There were no images on Shadowwind345's user page. However, there was evidence of activity by this user. On March 6, 2009, Shadowwind345 posted a comment on a page by the username " Hershey" entitled " Young Bride," saying " I'd like to see your daughter pics. Email me at Shadowwind 345@ yahoo. com to trade." On May 24, 2009, Shadowwind345 commented on an album by the username " Low Jack" entitled " my dau," saying " Have more? Love to see more, Shadowwind 345@ yahoo. com if you want my passes or want to see my private daughter stuff."

B. Pre-Trial Skirmishes

Based on this investigation, Breton was charged with three counts involving child pornography: (1) using a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of that conduct, in violation of 18 U.S.C. § 2251(a); (2) knowingly possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B); and (3) knowingly distributing child pornography, in violation of 18 U.S.C. § 2252A(a)(2).

Before trial, the government moved in limine to admit Paradis's testimony regarding, among other things, Breton's aforementioned statements and text messages. Breton opposed, claiming they were covered by the marital communications privilege. Breton also counter-moved to exclude evidence of file and chat room names that were suggestive of child pornography where no ...


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