FALL 2007

Computer Law

Course No.  9200 711 001
Th 6:30 - 9:30 p.m.
Room W-214
Professor Jay Dratler, Jr.
Room 231D (IP Alcove)
(330) 972-7972
dratler@uakron.edu, dratler@neo.rr.com
Copyright © 2000, 2001, 2002, 2004, 2007   Jay Dratler, Jr.   For permission, see CMI.

United States v. Tank

200 F.3d 627 (9th Cir. 2000)

Before: Harry Pregerson and Charles Wiggins, Circuit Judges, and David O. Carter,* District Judge. Opinion by Judge Pregerson.

*The Honorable David O. Carter, United States District Judge for the Central District of California, sitting by designation.

[*629] PREGERSON, Circuit Judge:

Appellant David Vernon Tank appeals his conviction and sentence for conspiring to sexually exploit a child for the purpose of producing a sexually explicit visual depiction in violation of 18 U.S.C. § § 2251(a) and (d); conspiring to engage in the receipt and distribution of sexually explicit images of children in violation of 18 U.S.C. § § 2252(a) and (b)(1); and distributing sexually explicit images of a child to another person in violation of 18 U.S.C. § 2252(a).

Specifically, Tank appeals the district court's decisions regarding: (1) the sufficiency of the foundation for admission into evidence of chat
room (1) log printouts; (2) (2) the legality of the seizure under the Fourth Amendment of a Zip disk found in his car; (3) the sufficiency of the evidence to support his convictions; and (4) the application of the Sentencing Guidelines. We affirm Tank's convictions and remand for resentencing.



Tank belonged to a sixteen-member Internet chat room called the Orchid Club. (3) Members of the Orchid Club discussed, traded, and
produced child pornography. While online in the chat room, Orchid Club members traded digital pornographic images of children.

Ronald Riva, another member of the Orchid Club, was arrested on a child molestation charge. A search of Riva's home and computer files revealed thousands of pornographic pictures of children. The search also revealed computer text files containing "recorded" online chat room discussions that took place among members of the Orchid Club. Riva's computer was programmed to save all of the conversations among Orchid Club members as text files whenever he was online. Before any Orchid Club member was investigated or arrested, Riva had deleted from his computer nonsexual conversations and extraneous material, such as date and time stamps, to decrease the size of the text files and free space on his hard drive. These text files constitute the chat room logs at issue. The evidence seized from Riva implicated other Orchid Club members, including Tank.

Based on this evidence, U.S. Customs agents obtained and executed an arrest warrant for Tank and a search warrant for his home. The search warrant did not include Tank's car. Tank was apprehended in his car less than a block from his house and placed under arrest for
computer-related child pornography offenses. Within minutes of the arrest, the officer drove Tank's car back to Tank's house, searched the car, and found a Zip disk [*630] inside a backpack. The Zip disk was later shown to contain pornographic images of children that Tank had distributed to other Orchid Club members online.

At an evidentiary hearing, Tank argued that the district court should not admit the chat room logs into evidence because the government had laid an insufficient foundation. Tank objected that there was no foundation for admission of the chat room log printouts into evidence because: (1) they were not complete, and (2) undetectable "material alterations," such as changes in either the substance or the names appearing in the chat room logs, could have been made by Riva. The district court ruled that Tank's objection went to the evidentiary weight of the logs rather than to their admissibility, and allowed the logs into evidence.

Tank also moved to suppress the Zip disk found in his car on the ground that it was illegally seized under the Fourth Amendment. The district court denied the motion to suppress because it found that the car search was conducted incident to Tank's arrest.

The jury convicted Tank on all three counts, and the district court sentenced Tank to 235 months of imprisonment.



We review a district court's finding that evidence is supported by a proper foundation for an abuse of discretion. See United States v.
Santiago, 46 F.3d 885, 888 (9th Cir. 1995). The foundational "requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Fed. R. Evid.
901(a); see also United States v. Harrington, 923 F.2d 1371, 1374 (9th Cir. 1991). "The government need only make a prima facie showing of authenticity, as 'the rule requires only that the court admit evidence if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification.'" United States v. Black, 767 F.2d 1334, 1342 (9th Cir. 1985) (quoting 5 J. Weinstein & M.Berger, Weinstein's Evidence ¶ 901(a)[01], at 901-16 to -17 (1983)). The government must also establish a connection between the proffered evidence and the defendant.

The government made a prima facie showing of authenticity because it presented evidence sufficient to allow a reasonable juror to find that the chat room log printouts were authenticated. In testimony at the evidentiary hearing and at trial, Riva explained how he created the logs with hiscomputer and stated that the printouts, which did not contain the deleted material, appeared to be an accurate representation of the chat room conversations among members of the Orchid Club. See United States v. Catabran, 836 F.2d 453, 458 (9th Cir. 1988) ("Any question as to the accuracy of the printouts . . . would have affected only the weight of the printouts, not their admissibility.").

Furthermore, the parties vigorously argued the issue of completeness of the chat room log evidence to the jury. See United States v. Soulard, 730 F.2d 1292, 1298 (9th Cir. 1984) ("Once adequate foundational showings of authenticity and relevancy have been made, the issue of completeness then bears on the Government's burden of proof and is an issue for the jury to resolve.").

The government also established a connection between Tank and the chat room log printouts. There is no question that the chat room log
printouts were relevant to prove the conspiracy charge in the indictment and Tank's participation in the conspiracy. Tank admitted that he used the screen name "Cessna" when he participated in one of the conversations recorded in the chat room log printouts. Additionally, several co-conspirators testified that Tank used the chat room screen name "Cessna" that appeared throughout the printouts. They further testified that [*631] when they arranged a meeting with the person who used the screen name "Cessna," it was Tank who showed up.

On the record before us, it is clear that the government made an adequate foundational showing of the relevance and the authenticity of the chat room log printouts. Thus, we cannot say that the district court abused its discretion by admitting the printouts into evidence and allowing the jury to decide what weight to give that evidence. (4)



Tank moved to suppress the Zip disk found in his car as the fruit of an illegal search. The district court properly denied the motion, finding that: (1) the car search was incident to Tank's arrest, and (2) it made no difference that the Zip disk was inside a backpack, which was in plain view in the car. (5)

We review a motion to suppress de novo and any factual findings made at the suppression hearing for clear error. . . . We have unequivocally held that the standard for a valid "search incident to arrest" is: "given a lawful arrest, it is enough that the search [of the car]be roughly contemporaneous with the arrest." United States v. Moorehead, 57 F.3d 875, 878 (9th Cir. 1995).

It is undisputed that Tank was lawfully arrested. As was the case in Moorehead, the agents had an arrest warrant. The only other requirement for a valid "search incident to arrest" is that the search be "roughly contemporaneous" with the arrest. Here, the arresting officer searched the car within minutes of the arrest, thereby satisfying the requirement that a search incident to a lawful arrest be conducted roughly contemporaneously with the arrest. (6) Because the lawful arrest [*632] and the search were "roughly contemporaneous," the seizure of the Zip disk comported with the Fourth Amendment under the "search incident to arrest" exception.



Tank challenges the sufficiency of the evidence supporting his convictions. (7)

Because Tank failed to move for acquittal at trial, we may only review the sufficiency of the evidence for plain error. . . .

The facts do not support a claim of plain error. In fact, the evidence is more than sufficient to sustain his convictions. Therefore, we cannot reverse Tank's convictions for insufficient evidence.

* * *

[The court's discussion of sentencing and application of the Sentencing Guidelines is omitted.]

On the basis of the foregoing, we AFFIRM Tank's convictions. We REVERSE Tank's sentence in part and REMAND for resentencing
consistent with this opinion.

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1. [court's footnote 2] A "chat room" is a public or private Internet site that allows people to send "real time" typed messages to others who are simultaneously connected to that Internet site.

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2. [court's footnote 3] The only evidentiary issue raised by Tank concerning the chat room log printouts is whether a proper foundation was laid for the district court to admit the logs into evidence. Tank did not argue on appeal that the logs were inadmissible under Fed. R. Evid. 403 (unfair prejudice or misleading to the jury), 801(d)(2) (party or co-conspirator admission), 802 (hearsay), 1002 (best evidence), or any other rule.

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3. [court's footnote 4] The Orchid Club was a private, password protected chat room. We have already summarized the Orchid Club's activities in deciding an appeal by another of Tank's co-conspirators. See United States v. Laney, 189 F.3d 954, 957-58 (9th Cir. 1999).

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4. [court's footnote 5] Tank also argues that this court should apply the same criteria used to determine the admissibility of audiotapes produced and proffered by the government to determine whether Riva's hard drive was properly authenticated. However, even in the context of audiotapes, the criteria for admissibility are only guidelines that can be useful when the government produced the recording. . . . Tank's main argument is that the government should be required to attempt recovery of deleted data from computer disks (a technological possibility) to ensure that the files were not materially altered. But any deletions from Riva's hard drive were made by Riva himself, not by the government. Therefore, the deletions go to the weight of the evidence, not to its admissibility. Cf. Soulard, 730 F.2d at 1298 (the issue of completeness bears on the government's burden of proof). Nothing prevented Tank from recovering the deleted data to show that "material alterations," if any, were made to the chat room logs. Tank cannot complain that the governmentoffered into evidence only the relevant and not the irrelevant portions of the chat room logs. Tank "had ample opportunity, before and during trial, to examine the [hard drive] to point out 'missing' [data], yet he declined to make this examination." Id. at 1298 n.4.

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5. [court's footnote 6] Law enforcement officers are permitted to search the entire passenger compartment of a car, including the inside of containers, during a "search incident to arrest." United States v. Ramos-Oseguera, 120 F.3d 1028, 1036 (9th Cir. 1997) (citing New York v. Belton, 453 U.S. 454, 460-61, 69 L.Ed. 2d 768, 101 S.Ct. 2860 (1981)). Since the search of Tank's car was a legitimate "search incident to arrest," it was permissible for the agent to search the backpack and seize the Zip disk.

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6. [court's footnote 7] Tank relies on United States v. Ramos-Oseguera, for the proposition that the search of his car was not incident to his arrest because the search was not "roughly contemporaneous" with the arrest. In Ramos-Oseguera, we held that the search was not incident to the arrest because it was not "contemporaneous to the arrest." Ramos-Oseguera does not indicate how much time elapsed between the arrest and the search, but the only reasonable inference is that considerably more time passed between the search and arrest in Ramos-Oseguera than in this case. While we surely meant to describe the amount of time that elapsed between the search and the arrest rather than to list dispositive facts, we stated in Ramos-Oseguera that the "search occurred after the car was moved [to the police station], the defendants were inside the police station, and the police decided to have the car towed." Tank attempts to analogize his case to each of these facts, but his arguments miss the mark. The proper inquiry is whether the arrest was "roughly contemporaneous" with the search. . . . Here, the search occurred within minutes of the arrest, immediately after Tank's car was moved less than a block to the carport of his house; no additional time elapsed between the arrest and the search.

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7. [court's footnote 8] Tank also challenges his conviction under 18 U.S.C. § 2252 because, he contends, no evidence supports this conviction other than the Zip disk and chat room logs. However, this argument is vitiated by our determination that the Zip disk and chat room logs were properly admitted into evidence.

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