Filed: Dec. 06, 2016
Latest Update: Dec. 06, 2016
Summary: STIPULATIONS REGARDING BENCH TRIAL VINCE CHHABRIA , District Judge . I. INTRODUCTION The parties hereby submit the following stipulations for trial by the Court, pursuant to Federal Rule of Criminal Procedure 23. This trial concerns the unlawful possession of child pornography. On May 7, 2015, the Grand Jury returned an Indictment (ECF No. 7) charging the Defendant with one count of possession of child pornography, in violation of Title 18, United States Code, Section 2252(a)(4)(B). On Se
Summary: STIPULATIONS REGARDING BENCH TRIAL VINCE CHHABRIA , District Judge . I. INTRODUCTION The parties hereby submit the following stipulations for trial by the Court, pursuant to Federal Rule of Criminal Procedure 23. This trial concerns the unlawful possession of child pornography. On May 7, 2015, the Grand Jury returned an Indictment (ECF No. 7) charging the Defendant with one count of possession of child pornography, in violation of Title 18, United States Code, Section 2252(a)(4)(B). On Sep..
More
STIPULATIONS REGARDING BENCH TRIAL
VINCE CHHABRIA, District Judge.
I. INTRODUCTION
The parties hereby submit the following stipulations for trial by the Court, pursuant to Federal Rule of Criminal Procedure 23. This trial concerns the unlawful possession of child pornography.
On May 7, 2015, the Grand Jury returned an Indictment (ECF No. 7) charging the Defendant with one count of possession of child pornography, in violation of Title 18, United States Code, Section 2252(a)(4)(B). On September 13, 2016, the Defendant filed a Motion to Suppress all evidence obtained in the search of his residence, including the seizures and subsequent searches of his electronic devices (ECF No. 77.) The Court denied the Defendant's Motion to Suppress on November 8, 2016 (ECF No. 82).
The parties now agree to a bench trial with stipulations as detailed below. The parties enter these stipulations with the express understanding that the Defendant is not rendering moot his right to appeal the denial of his Motion to Suppress. See United States v. Larson, 302 F.3d 1016, 1020 (9th Cir. 2002) (stating that appeal after a stipulated facts bench trial is not moot if the stipulations merely describe evidence the government intended to introduce at trial).
II. ELEMENTS OF THE OFFENSES
The elements of the charged offense are as follows:
1. The Defendant knowingly possessed matters that the Defendant knew contained visual depictions of minors engaged in sexually explicit conduct;
2. The Defendant knew that each of the visual depictions contained in the matters was of a minor engaged in sexually explicit conduct;
3. The Defendant knew that production of such visual depictions involved the use of a minor in sexually explicit conduct; and
4. Each of the visual depictions had been either transported in interstate or foreign commerce, or produced using material that had been transported in interstate or foreign commerce, or produced using material that had been transported in interstate or foreign commerce by computer or other means.
III. STIPULATIONS FOR TRIAL
The parties stipulate and agree to the following, and further stipulate and agree that the government exhibits referenced herein are authentic and admissible under the Federal Rules of Evidence, subject to Defendant's objections regarding the admissibility of evidence that was subject to the Defendant's Motion to Suppress (including the fruits of evidence that the Defendant contends was seized and/or searched in violation of his Fourth Amendment rights).
1. Defendant, Edward Shia, waives his right to a jury trial, and the United States consents to have the Court conduct the trial in this case.
2. The following electronic devices seized during the April 9, 2015, search of 343 Victoria Street, San Francisco, California, are deemed admitted into evidence for the purpose of this trial:
a. Antec 900 desktop computer, including the 1 Terabyte Western Digital hard drive (Model #WD10EZRX-00A8LB0; Serial Number: WCC1U1412434) located inside the Antec computer tower;
b. 1 Terabyte Western Digital external hard drive (Model #WD10000H1U-00; Serial Number: WCASJ0837365) found connected to the Antec computer; and
c. 32 Gigabyte HP USB drive.
3. The audiotape of Defendant's post-Miranda interview at the scene of the search warrant execution at 343 Victoria Street, San Francisco, California, and the videotape of the Defendant's post-Miranda interview in the Special Victims Unit interview room, both of which were recorded on April 9, 2015, are deemed admitted into evidence for the purpose of the trial as well.
4. San Francisco Police Department Officer Popov #985: If called to testify at trial, Officer Popov would testify as follows: On April 9, 2015, Officer Popov and a team of San Francisco Police Department officers executed a search warrant at 343 Victoria Street. Officer Popov is a forensic examiner from the Silicon Valley Regional Computer Forensics Laboratory (RCFL). In the Defendant's bedroom, Officer Popov saw an Antec 900 desktop computer, which contained a 1 Terabyte Western Digital hard drive (Model #WD10EZRX-00A8LB0; Serial Number: WCC1U1412434) inside the computer tower; a 1 Terabyte Western Digital external hard drive (Model #WD10000H1U-00; Serial Number: WCASJ0837365) that was connected to the Antec computer; and a 32 Gigabyte HP USB drive (collectively, the "Electronic Media"). Officer Popov performed an on-scene preliminary forensic examination and observed approximately eighty-seven (87) child pornography files on the Western Digital external hard drive. Additionally, Shareaza P2P software and indicia for SHIA were found on both the external hard drive and the desktop computer. Officer Popov seized the Electronic Media, which was booked into evidence.
5. San Francisco Police Department Sergeant Christopher Servat #285: If called to testify at trial, Sergeant Servat would testify as follows: On April 9, 2015, following the search warrant execution, Sergeant Servat reviewed a forensic image of the 87 videos identified by Officer Popov and found that they were all depicting prepubescent minors engaged in sexual acts. The following details five of the videos that Sergeant Servat reviewed on the Western Digital external hard drive:
a) File name: [pthc] 7yo Gina #2 (BJ, Cumshot, Pussy Show) ~ hussyfan lolifuck opva 2014 preteen 8y 9y children porn
File path: C\New folder (3)\[pthc] 7yo Gina #2 (BJ, Cumshot, Pussy Show) ~ hussyfan lolifuck opva 2014 preteen 8y 9y children porn.avi
Description: This video depicts a minor female approximately five (5) to seven (7) years old. The minor female is clothed and on her knees in front of an adult male, masturbating his erect penis. The child then performs oral copulation on the adult male's erect penis. The child then removes her lower clothing exposing her vagina. The adult male then ejaculates onto the child's vagina.
(b) File name: (~pthc center~)(opva)(2014) Perfect sucker 2011 Little brown hair 5yo
File path: C\New folder (3)\(~pthc center~)(opva)(2014) Perfect sucker 2011 Little brown hair 5yo.mpg
Description: This video depicts an approximately three (3) to five (5) year old prepubescent female. The child removes her clothes for the camera exposing her undeveloped body. She then performs oral copulation on an erect adult male penis.
(c) File name: !Must get fucking 8yo new 2013 PTHC_HQ_ vol16 CUT
File path: C\New folder (3)\!Must get fucking 8yo new 2013 PTHC_HQ_ vol16 CUT.avi
Description: This video depicts an approximately five (5) to seven (7) year old prepubescent female. The child is naked exposing her undeveloped body. She begins to perform oral copulation on an adult male's erect penis. The adult male then lays the child on her back on a bed and vaginally penetrates the child.
(d) File name: (Kinderkutje) Pthc Pedoland Frifam 2010 Goldberg Trailer-14 - 9Yo Sucking, Trying Vaginal & Anal Fuck, Final Cum Up Ass (24m25S) (Copy)
File path: C\New folder (3)\(Kinderkutje) Pthc Pedoland Frifam 2010 Goldberg Trailer-14 - 9Yo Sucking, Trying Vaginal & Anal Fuck, Final Cum Up Ass (24m25S) (Copy).avi
Description: This video depicts an approximately five (5) to seven (7) year old prepubescent female. The child begins to undress exposing her vagina, and then begins to rub her vagina with a white vibrator/sex toy. The video then shows her on her knees on a bed, completely nude, performing oral copulation on an adult male's erect penis. She is then shown straddling the adult male as vaginally penetrates the child. The adult male then bends the child over on her stomach and anally penetrates the child. The adult male then ejaculates onto the child's buttocks.
(e) File name: (Pthc) Kitty 4Yo 3 — Tastemorecum — Toddler Girl+Man — Babyj-3Yo Agustina Eating Cum 1.Cbaby — Tastemorecum More 3Yo Blowing Dad.opva_233
File path: C\New folder (3)\(Pthc) Kitty 4Yo 3 — Tastemorecum — Toddler Girl+Man — Babyj-3Yo Agustina Eating Cum 1.Cbaby — Tastemorecum More 3Yo Blowing Dad.opva_233.mpg
Description: This video depicts an approximately two (2) to four (4) year old prepubescent female. The child performs oral copulation on an erect male penis, and at the end of the video the adult male ejaculates into the child's mouth.
6. Homeland Security Investigations Special Agent Jason Popper: If called to testify at trial, Agent Popper would testify as follows: Agent Popper has received specialized training and has gained practical experience in the forensic examination of computers and other electronic media to recover evidence, including child pornography. After the on-scene forensic examination, the Electronic Media were transferred from SFPD to HSI custody to permit a more extensive forensic examination. Pursuant to a federal search warrant, Agent Popper created forensic images of the Electronic Media at the Homeland Security Investigations computer laboratory. Agent Popper provided those forensic images to Special Agent Dana Unger for review.
7. Homeland Security Investigations Special Agent Dana Unger: If called to testify at trial, Agent Unger would testify as follows.
a) Agent Unger reviewed the Antec 900 desktop computer and associated internal hard drive. She found 761 image files that depicted children engaging in or performing sex acts with adults. She also found images of Edward Shia on the same computer.
b) Agent Unger also reviewed the external hard drive, and found 101 video files containing child pornography, several of which contained the acronym "PTHC," which is a term commonly used by collectors of child pornography to denote "Pre Teen Hard Core."
c) In addition, Agent Unger reviewed the 32GB HP USB drive, and found 11,780 image files and 38 video files containing child pornography. Many of the videos had numbers indicating the age of the child depicted (i.e., 9yo, 8yo, 11yo, and 7yo), and several had the acronym "PTHC." Agent Unger's review of the deleted files further revealed 81 video files with titles indicative of child pornography. Agent Unger also found an image of Edward Shia on the drive.
d) Of the image files in the Electronic Media, 7,127 images matched hash values for images of child pornography involving known child victims.
e) Among the videos, Agent Unger reviewed a video of "Tara," a known series of child pornography depicting an identified victim. This child victim was abused outside of the state of California (in Georgia) and her abuse took place between the ages of five (5) and nine (9). The video reviewed by Agent Unger depicts a nude prepubescent female wearing a Mardi Gras mask, and performing oral copulation on an adult male's erect penis. The adult male is pushing and forcing the prepubescent female's head harder on his erect penis. At one point the child stops orally copulating the male, she wipes her mouth, and coughs. The child is then shown lying on a bed.
8. San Francisco Police Department Sergeant Nantroup #2351: If called to testify at trial, Sergeant Nantroup would testify as follows.
a) Sergeant Nantroup and San Jose Police Department Detective Sean Pierce interviewed the Defendant in the rear of an unmarked police vehicle at approximately 4:00 p.m. on April 9, 2015, while the search warrant was being executed. The interview was audiotaped. Detective Pierce read the Defendant his Miranda rights, which the Defendant stated that he understood and waived. The Defendant stated that he lives at 343 Victoria Street, and identified his bedroom as the room in the rear of the house where the Electronic Media was found. He stated that the desktop computer tower in his room is his, and that there was child pornography on his external hard drive attached to his desktop tower. He stated that, by the term "child pornography," he meant depictions of children under the age of thirteen years old. He claimed that the youngest age of a child in the child pornography on his external hard drive would be ten years old. He estimated that there would be approximately 30 child pornography videos on his external hard drive. He admitted to knowing the term "PTHC" and that it stands for "Pre-teen hard core." The Defendant stated that the last time he downloaded child pornography onto his computer was a month ago. The Defendant also stated that he had stayed at his brother's house in December to house-sit, had brought his computer tower, and had downloaded child pornography while he was there.
b) Sergeant Nantroup and San Francisco Police Department Sergeant Lewis conducted a further interview of the Defendant in the Special Victims Unit interview room at SFPD later that day at approximately 6:38 p.m. The interview was videotaped. In that interview, the Defendant stated that he had been previously convicted of child pornography charges in 2004 and started downloading child pornography again about a year ago.
9. The parties stipulate that all of the drives described above were manufactured outside of California, were found in California, and therefore traveled in interstate commerce.
10. The parties further stipulate that the images and videos described in the testimony above were of minors who are real human beings. The video described in paragraph 7(e) will be made available for the Court's review at the bench trial.
11. Neither party is aware of any witness who will testify in a manner contrary to the testimony described above.
12. The Defendant waives his right to testify and to call any witness on his own behalf, and he submits this matter for decision by the Court on the basis of the above stipulations.
SO STIPULATED.
