Calif. Appellate Court Upholds Conviction Over Cached CP Files
Lodi Fire Captain Michael James Tecklenburg was convicted of six counts of knowing possession or control of child porn, but he contended on appeal that there was insufficient evidence to show he knowingly possessed child pornography absent evidence that he knew of the temporary Internet files’ existence.
Tecklenburg was arrested in 2004 after state examiners discovered cached files containing child porn while reviewing the hard drive of Tecklenburg’s workplace computer in conjunction with another probe.
Cached files deleted from a computer are not actually erased from the hard drive but remain in unallocated space until they are overwritten.
When state examiners opened up the cached files on the work computer and others, images contained references to “Lolita,” as well as “Age14SchoolGirls,” “daddy’s babes” and “young Lolita’s shaved.”
In his conviction, the appeal court weighed evidence of child porn involving seized computers: one from his home that had been kept in the kitchen of the defendant’s family and used on various occasions by his wife and several of his five children, one at his workplace at the Lodi Fire Department, and two at the Clements Fire Department, where Tecklenburg volunteered.
No California court had previously considered whether a defendant can be convicted under Penal Code Sec. 311.11(a) absent evidence of knowledge of files in a computer’s cache, so California's 3rd District Court of Appeal turned to a similar case from the 9th U.S. Circuit Court of Appeals, U.S. vs. Kuchinski.
The 9th Circuit in that case held that such a conviction was improper without evidence the defendant had knowledge of the cache files, holding that, “[t]o do so turns abysmal ignorance into knowledge and a less than valetudinarian grasp into dominion and control.”
But the state appellate court wrote that the California statute differed from the federal law in U.S. vs. Kuchinksi, in that California’s statute prohibited the possession of an “image” of child pornography, rather than only the cache in which the image is contained.
Reasoning that California law defines an image of child pornography displayed on a computer screen as an object that may be knowingly possessed or controlled, the appeal court upheld Tecklenburg’s conviction despite his argument that he was unaware of the files’ existence.
Appeal Court Justice Tani Cantil-Sakauye, who wrote the opinion for the court, said she was unswayed and said that the evidence amply supported the jury’s conclusion that Tecklenburg knowingly possessed or controlled images of child pornography, despite the contention that others – family members and dozens of firefighters — may have accessed CP.
“These four computers contained not only websites, images, and Internet search terms similar to those on defendant’s home computer, but some of the same websites and at least one image of the same children as pictured in one of the defendant’s home computer images,” she wrote.
“Defendant apparently would have us believe computer browsing of child pornography is common among firefighters — so much so that it is unreasonable, without forensic examination of the computers of all the other firefighters, to infer from the evidence of child pornography on the fire department computers that it was defendant who was on those computers and his home computer when the child pornography was accessed.”
ASACP’s technology and forensic research director, Tim Henning, told XBIZ that surfers of adult entertainment should take note of the ruling and be cautious of the websites and content they are viewing
“Since it is possible to innocently view content that is child pornography via spam email, mislabeled peer-to-eer content, malicious software and user-generated content sites surfers first need to report immediately to ASACP or the National Center for Missing and Exploited Children anything they have happened upon which is questionable,” he said.
“Also it is prudent to only surf adult sites you trust such as ASACP approved member and sponsor sites; not to view images where the models appear and/or are described as very young; and to be mindful of the text used to describe image, video or website links,” he said. “ASACP would also like to remind the creators of adult entertainment websites be mindful of the terminology they use to describe their sites, images and video.”