Court Rules Deleted Child Pornography May Count Toward Sentencing – U.S. v. Keefer

September 10, 2012 by David S. Seltzer

As a cyber crime criminal defense attorney, I sometimes handle cases that turn on technical issues. The date a file was opened; the presence of a virus; and the locations of files can all make a big difference in a case. In United States v. Allen L. Keefer, a child pornography possession case, the defendant won resentencing because of an important difference in where the files were located -- but then failed in an argument that he had never opened the files. Keefer, of Ohio, was originally sentenced to 17 and a half years in prison for possession of child pornography. However, a previous appeal to the Sixth U.S. Circuit Court of Appeals overturned the sentence, because many of the images were in the unallocated space of his computer. He received a new sentence on remand, but a second appeal did not succeed.

Keefer originally pleaded guilty in 2009 to one count of possession of child pornography and two counts of distribution. His sentence was subject to a five-level enhancement because he was accused of possessing 600 or more images. That number, however, was based on law enforcement’s discovery of 1,215 images in “unallocated space” or “free space,” which is the area where deleted files are kept on a computer. Those files still exist, but will be overwritten when new files are created and saved, and do not appear in the files the user can see. Keefer appealed this sentence, saying only 39 files were on the usable part of his hard drive, and that he did not have any knowledge of the files in the unallocated space. The Sixth Circuit agreed that there was no evidence that he knew of the files, and sent the case back for resentencing.

On remand, the Ohio district court heard evidence from the computer forensic expert who examined his hard drive. That expert testified that digital evidence showed most of the deleted files had been opened on Keefer’s computer at some point or downloaded in their full size and kept in the temporary files of a Web browser. Thus, the expert said, he believed Keefer had known about them and possessed them within the meaning of the law. Keefer was resentenced to 17 and a half years and again appealed. This time, however, the Sixth Circuit did not agree that the sentence was unreasonable. While it ruled in Keefer I that merely having files in unallocated space was not enough proof of possession, it said, the testimony on remand provided the necessary proof. Furthermore, Keefer testified that he opened files long enough to decide whether he liked their contents, showing that he knowingly viewed them. Thus, it upheld the sentence.

As a child pornography possession criminal defense lawyer, I have sympathy for the situation Keefer’s testimony suggests. Taking his testimony as true (though the Sixth Circuit cautioned that he was heavily medicated), it appears that he is being sentenced on the basis of images he opened and rejected as well as images he collected and kept. Though this may seem unfair, the law penalizes defendants based on the number of images they “possess” under the law (including, as we see here, deleted files they knew about), not just the number of images they intended to keep. That’s why an important part of my job as a child pornography defense attorney is establishing exactly what files my client “possessed” and knew about, through testimony as well as digital evidence.

Seltzer Law, P.A., focuses its practice on defending people accused of child pornography possession and other serious cyber crimes. If you or someone you care about is accused of a crime involving technology or the Internet, don’t hesitate to contact us for a free, confidential consultation. You can call us 24 hours a day and seven days a week at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

Similar blog posts:

New York State Appeals Court Rules Viewing Child Pornography Is Not Possessing It – People v. Kent

Oregon High Court Rules Viewing Child Pornography Online Is Not Possessing It

Merely Viewing Child Pornography Online in Florida Can Lead to Possession Charge