United States v. McGarity

23 Fla. L. Weekly Fed. C 748

669 F.3d 1218

UNITED STATES of America, Plaintiff–Appellee,

v.Neville McGARITY, a.k.a. Wraith, Daniel Castleman, a.k.a. Chingachgook, Gary Lakey, a.k.a. Eggplant, Marvin Lambert, a.k.a. Methuselah, Ronald White, a.k.a. Roadkill, James Freeman, a.k.a. Mystikal, Warren Mumpower, a.k.a. Lizzard, Defendants–Appellants.

No. 09–12070.

United States Court of Appeals, Eleventh Circuit.

Feb. 6, 2012.

Patrick L. Jackson (Court–Appointed), Chase, Quinnell & Jackson, P.A., Stephen E. Sutherland (Court–Appointed), Stephen E. Sutherland, P.A., Clinton A. Couch (Court–Appointed), Clinton A. Couch, P.A., Pensacola, FL, William Mallory Kent, Law Office of William Mallory Kent, Jacksonville, FL, Ryan Thomas Truskoski (Court–Appointed), Robert Godfrey, Donna Lee Eim, Fed. Pub. Defenders, Orlando, FL, Gary Lee Printy (Court–Appointed), Tallahassee, FL, for Defendants–Appellants.

Robert G. Davies, David L. Goldberg, U.S. Atty., Pensacola, FL, E. Bryan Wilson, Tallahassee, FL, for Plaintiff–Appellee.

Margaret Garvin, Alison Wilkinson, National Crime Victim Law Institute, Portland, OR, for Amici Curiae.Appeals from the United States District Court for the Northern District of Florida.Before HULL and FAY, Circuit Judges, and VINSON,^* District Judge.FAY, Circuit Judge:

If “[a]ll the world's a stage” as Shakespeare wrote,¹ this case demonstrates just how much the dimensions of that stage are shrinking with the advent of the internet, at least in regards to child pornography. We are concerned here with the fruits of a cooperative, multi-national criminal investigation directed at tracking a sprawling international child pornography ring, comprised of as many as 64 known individuals sharing more than 400,000 images and 1,000 videos of child pornography across at least six countries. Ultimately, a joint task force arrested fourteen members of the ring and charged them with offenses relating to child pornography, although we have before us only the appeals of the following seven defendants: Neville McGarity, Daniel Castleman, Gary Lakey, Marvin Lambert, Ronald White, James Freeman, and Warren Mumpower.²

Faced with a 40–count Superseding Indictment, each defendant was tried and convicted of engaging in a child exploitation enterprise (“CEE”), in violation of 18 U.S.C. § 2252A(g); conspiring to advertise, transport/ship,³ receive, and possess child pornography, and to obstruct an official proceeding, in violation of 18 U.S.C. §§ 371, 1512(k), 2251(d)(1) and (e), and 2252A(a)(1); receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2); and obstructing justice, in violation of 18 U.S.C. § 1512(c). Furthermore, all defendants but one, Ronald White, were tried and convicted of advertising the exchange of child pornography, in violation of 18 U.S.C. § 2251(d)(1) and (2); and knowingly transporting and shipping child pornography, in violation of 18 U.S.C. § 2252A(a)(1). Lastly, to compensate for harm to one victim depicted in the child pornography found in the defendants' possession, the sentencing judge ordered restitution against only one of the defendants, James Freeman, in the amount of $3,263,758.⁴

The defendants raise numerous issues on appeal,⁵ although many require no discussion.⁶ In relevant part, the defendants challenge the constitutionality of the CEE statute; the sufficiency of the Superseding Indictment in regards to Count One and Count Forty; certain errors the district court purportedly made both pretrial and during trial, including the district court's purported failure to issue a “unanimity” instruction regarding the CEE charge; the sufficiency of the evidence regarding Count Twenty and Count Forty; and an alleged Double Jeopardy violation based on the defendants' convictions under Counts One and Two.⁷ The defendants also challenge their sentences.

After review of the record and having had the benefit of oral argument, we vacate Ronald White's CEE conviction under Count One; vacate the other six defendants' convictions for conspiracy under Count Two; and vacate all of the defendants' convictions for statutory obstruction of justice under Count Forty. We also vacate the restitution award against Freeman and remand for further proceedings. In all other regards, we affirm.

I.

We delineate below both the relevant factual and procedural background. As we must, we consider the factual background in the light most favorable to the Government. See United States v. Glen–Archila, 677 F.2d 809, 812 (11th Cir.1982).

A.

Discovery and Infiltration of Child Pornography Ring

In 2005, an informant notified an Australian constable, Brenden Power, and others of the Queensland Police Service of the existence of a computer ring of child pornography users, which operated exclusively through internet newsgroups.⁸ The informant further notified Constable Power of which newsgroups the ring was using, the ring's encryption method,⁹ and the informant's own nickname within the ring, all of which permitted Constable Power to infiltrate the ring.

When he began monitoring the ring, Constable Power discovered the sophisticated nature of the ring's operations, both in its day-to-day operations and in its recruitment of new members. As to the former, the ring had a hierarchy in place, in which a “core” of leaders—“Yardbird,” “Helen,” “Soft,” and “Tex”—managed the ring, its operations, and its members. To assist the core leadership, the ring also had officers tasked with specific roles, like security and administration.

Additionally, the ring had a formal process in place for gaining new members. The most involved leader, Yardbird, would identify potential members based on their online history of posting child pornography. He would subsequently invite those prospective members into the group upon completion of certain tests designed to weed out potential law enforcement infiltrators. For example, most invitees were required to find and post certain electronic files of child pornography, as well as pass a timed child pornography test that provided 48 hours for completion.¹⁰ Once accepted as a member, an invitee was provided with the accoutrements of membership: a PGP key that allowed him to decrypt group postings; several documents pertaining to membership;¹¹ and an introduction, via online post, to the other group members.

Perhaps the most telling proof of the ring's sophistication, though, came from Constable Power's investigation of the ring's communications. The members utilized a maze of rotating newsgroups and parallel newsgroup postings not only to communicate with one another but also to hide their communications from outsiders. As noted above, members of the ring were given separate keys for encryption of newsgroup text posts and for binary uploads containing the images and videos. The encryption keys were subject to change at Yardbird's discretion. Using those keys, the ring members employed a two-step process in communicating with one another and posting child pornography. First, a member would upload scrambled and encrypted binary files of child pornography to a newsgroup location determined by Yardbird.¹² Each such file was posted under a specified subject line and attributed to the newsgroup nickname associated with the poster. The uploader would then text an encrypted message to another newsgroup in which the ring was active, advising of the upload, its location, and providing pertinent instructions. The recipient members could then download the encrypted message, decrypt and read it, and then follow the instructions contained therein to locate and download the files containing child pornography. The ring also employed other means of avoiding detection, like masking their headings when posting messages or files,¹³ or changing the nicknames by which they were known to each other.¹⁴

Ultimately, the international reach of the child pornography ring became apparent to Constable Power. An analysis of unmasked newsgroup posts in conjunction with information obtained from corresponding NSPs enabled Constable Power to determine just how far the ring reached: at its peak it had as many as 64 known members operating in at least six different countries. Therefore, in August 2006, Constable Power came to the United States, where he continued his investigation in conjunction with the Federal Bureau of Investigation's Innocent Images Unit. The joint investigation continued for over one year. During that time, law enforcement identified 22 members of the child pornography ring, fourteen of whom became people of special interest. In all, the joint investigation detected the upload by ring members of over 400,000 images and more than 1,000 videos from August 31, 2006 through December 15, 2007.¹⁵ Although not all of those images and videos portrayed child pornography, many depicted the sexual abuse of minors in graphic and grotesque detail.

Arrest of Members of Child Pornography Ring

On or about February 28, 2008, law enforcement agents simultaneously executed search warrants at the defendants' respective residences. Each search warrant was carried out with alacrity with but one exception: when agents sought to execute the warrant for Daniel Castleman by “knocking and announcing,” he ignored their request for approximately thirty minutes. When they finally gained entrance to Castleman's home with the assistance of a locksmith, law enforcement agents found him in his living room, running a destructive “wipe” program on his computer. All the defendants except Castleman confessed their involvement with child pornography and with the child pornography sharing ring in question.¹⁶ PGP encryption keys of the type used by Constable Power to access the pertinent newsgroup postings were found in possession of every defendant except Neville McGarity.¹⁷ After being taken into custody and being incarcerated together, six of the seven also admitted to one another their membership in the child pornography ring.¹⁸

B.

O...