Most cases involving computer evidence require the involvement of a computer forensics expert. For example, the United States District Court, E.D. Virginia, Richmond Division in a case that could potentially involve computer expert testimony in Virginia, denied a defendant’s (Mathew James Russo) Motion for Judgment of Acquittal, or, in the Alternative, Motion for New Trial (Docket No. 22). For the reasons set forth below, the motion will be denied. In that case an Agent for Immigration and Customs Enforcement (“ICE”) conducted an investigation into a foreign child pornography website, “Illegal.cp,” which, for $79.99, offered 21 days of access to material containing child pornography. When a user purchased such a 21-day membership, the charge to his credit card was discretely labeled “AdSoft.”
Matthew Russo came to ICE’s attention during an investigation of the Illegal.cp website. Based on ICE’s investigative findings, two ICE agents conducted a “knock and talk” with Mr. Russo at his residence. Although the conversation was at first light and civil, the atmosphere intensified when the agents asked Mr. Russo about charges to his debit card. At that point, Mr. Russo said something to the effect of, “what are you here for-Guns? Child Porn? Money?,” without the agents having first mentioned the subject of child pornography. The agents then examined Russo’s debit card and seized two computers from the household.
An ICE Forensic Expert examined the two computers, one of which was found to contain several items of evidence. First, hundreds of child pornographic images were found in the AOL cache folder, having been downloaded to that folder between February and September 2007, based on the internet browsing of an AOL user with the username “rdendron.” Second, hundreds more images were found in the unallocated space of the computer’s hard drive. The ICE Forensic Expert testified that the computer’s operating system automatically transferred these images from folders such as the cache folder. Third, dozens of sites, with names advertising child pornographic content, were bookmarked as “favorites” on the rdendron profile. Fourth, the Internet Explorer web browser’s history revealed that several such child-pornographically named sites had been visited by a user on that computer.
In this case there was no defense computer forensics expert, which was a mistake. Russo called no witnesses; however, he vigorously questioned the sufficiency of the Government’s evidence at trial. He successfully argued for excluding some significant items of the Government’s evidence. He also presented alternative theories of how the hundreds of images and dozens of websites appeared on his computer. The court found that the Evidence that the Defendant attempted to access the illegal cp site was sufficient to sustain the verdict and that the additional evidence presented to and considered by the grand jury was also sufficient to sustain the verdict.
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