United States District Court, D. Nebraska
MEMORANDUM AND ORDER
JOSEPH F. BATAILLON, District Judge.
This matter is before on the parties' post-trial briefing, Filing Nos. 418, 419 and 423 in 8:13CR107 and Filing Nos. 36, 37 and 40 in 8:15CR44, and on the defendant's motion for acquittal or for a new trial, Filing No. 424 in 8:13CR107 and Filing No. 41 in 8:15CR44; and on the defendant's motion to vacate, Filing No. 42 in 8:15CR44. This is a criminal prosecution for child pornography offenses. The action was tried to a jury from March 2, 2015, to March 6, 2015.
Defendant Michael Huyck was charged in two separate indictments, the first was a two-count second superseding indictment in Case No. 8:13CR107 (hereinafter, "the first case") with: 1) receipt/attempted receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2) and (b)(1) (Count I); and 2) accessing with intent to view child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) (Count II) "[o]n or about between November 16, 2012, and December 2, 2012." See United States v. Huyck, No. 8:13CR107, Filing No. 110, Second Superseding Indictment at 8-10. Later, he was charged in a second indictment, Case No. 8:15CR44 ("the second case") with three counts: 1) receipt/attempted receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2) and (b)(1), "[o]n or about between August 20, 2010, and October 1, 2010" (Count I); 2) possession of child pornography contained on a Hitachi computer hard drive, in violation of 18 U.S.C. § 2252A(a)(5)(B), "on or about between August 20, 2010, and April 9, 2013" (Count II); and 3) possession of child pornography contained on a 2TB G-Technology computer external storage device, in violation of 18 U.S.C. § 2252A(a)(5)(B), "[o]n or about between November 20, 2012, and April 9, 2013" (Count III). See United States v. Huyck, No. 8:15-CR-44, Filing No. 1, Indictment at 1-2. The cases were consolidated for trial. See id., Filing No. 7, text minute entry.
The distinctions between the respective charges against the defendant are that a conviction for receiving child pornography under § 2252A(a)(2) carries a five-year statutory minimum sentence, and a maximum sentence of 20 years (for a first offense), whereas a conviction for either possessing or accessing with intent to view pornography under § 2252A(b)(5) has no mandatory minimum sentence and a maximum sentence of 10 years in most circumstances. See 18 U.S.C. § 2252A(b)(1); § 2252A(a)(5)(B). In the context of the two indictments the government essentially charged one mandatory minimum crime with with two lesser included charges.
The evidence adduced at trial showed that the charges in the first case pertained to Huyck's access to and receipt of child pornography from the Tor-network-based Pedoboard website in late 2012. The charges in the second case related to child pornography found on computer storage devices (a Hitachi hard drive and a G-Technology external storage device or "thumb drive") that were seized in a search of the defendant's home on April 9, 2013. There was evidence that some equipment had been "wiped" or "cleaned" shortly before the equipment was seized.
At the close of evidence, the court sustained, in part, the defendant's motion for a judgment of acquittal. The court dismissed Count III of the second case, which related to an image found on the G-Technology thumb drive. The court found the government had not sustained its burden of proving that the person depicted in the image was under age eighteen. It found the image depicted a female of indeterminate, though post-pubescent, age. Accordingly, there was insufficient evidence that the image at issue in Count III was child pornography, rather than adult pornography.
The jury was instructed on the elements of the remaining substantive charges. See Filing No. 405, Initial Jury Instructions, Instruction No. 12 (8:15CR44-Receipt - Essential Elements); Instruction No. 13 (8:13CR107-Receipt-Essential Elements); Instruction No. 15 (8:13CR107-Access-Essential Elements); Instruction No. 16 (8:15CR44-Possession-Essential Elements). The jury was also instructed on the elements of attempt with respect to both cases. Id., Instruction No. 14. The jury was provided a verdict form that had separate entries for the two theories (receipt and attempted receipt) charged under Count I in each of the cases.
During its deliberations, the jury submitted several questions to the court. After consultation with counsel, the court provided the following answers to the jury's inquiries:
Question No. 2:
We are especially interested in the differences required for intent and action for these charges.
The definition of "knowingly" is found in Instruction #18. Further, an act is done knowingly if the defendant is aware of the act and does not act or fail to act through ignorance, mistake, or accident. You may consider evidence of the defendant's words, acts, or omissions, along with all the other evidence, in deciding whether the defendant acted knowingly.
The definition of receiving is defined in Instruction #28.
The elements of attempting to receive are in Instruction #14. A substantial step, as used in Instruction #14, must be something more than mere preparation, yet may be less than the last act necessary before the actual commission of the substantial crime. In order for behavior to be punishable as an attempt, it need not be incompatible with innocence, yet of such a nature that a reasonable observer, viewing it in context could conclude beyond a reasonable doubt that it was undertaken in accordance with a design to violate the statute. 
The word "accessed" in the context of Instruction #15 means to obtain or retrieve data.
Filing No. 27, Jury Question #2 to the Court and Court's Answers to the Jury (emphasis added).
Question No. 3:
On Count II of 8:15cr44, is the count that the defendant knowingly had a computer, computer disk, and other material (to with the 160 GB Hitachi hard drive) that had child pornography, or that the defendant would only be guilty if he knowingly possesses child pornography on a computer drive.
In essence, is the defendant guilty even if he doesn't know the content or only if ...