Picture this: as a defense to an accusation of knowing possession of child pornography, a defendant claims, "Honestly, your honor, I had no idea those pictures were on my computer! I thought I had deleted them along with the 2,300 other child pornography pictures." Laughable, right? Apparently the defendant in this case didn't think so.
On April 10, 2008, the FBI, amidst a child pornography investigation, went to the home of David Ferguson. Officers asked Ferguson if they could search the hard drives from his computer, to which David consented. Forensic tests revealed that 2,300 images of child pornography had been deleted from the computer, but 14 images of child pornography still remained on the computer. Ferguson was arrested and later indicted in October 2008 by the grand jury for one count of knowing possession of child pornography "from on or about October 1, 2007 - on or around April 10th, 2008." On June 10, 2010 a superseding indictment was entered against Ferguson for one count of knowing possession of child pornography on or about April 10th, 2008. The reason for the superseding indictment, according to the prosecution, was to condense the indictment down to the actual images possessed on the computer on the day Ferguson consented to the search. Further, they explained that they could not prove that Ferguson knowingly intended to possess the deleted images on the date of the search.
At trial, Ferguson's defense was that he couldn't have knowingly possessed the 14 images because he thought he had deleted them with the other 2,300 images. Forensic analysis proved that the last time all the images were accessed was the night of April 4th, six days before the search occurred. The district court found Ferguson guilty and reasoned that since the images were deleted on April 4th, Ferguson knowingly possessed the pictures up until that day. It further reasoned that knowingly possessing the pictures on April 4th is close enough in time to April 10th to be included in the "on or about April 10th" language on the superseding indictment.
On appeal, Ferguson challenged the superseding indictment and conviction, stating that he was convicted of a different crime than he was indicted. He argued that the superseding indictment did not include the crime he was convicted of. Specifically, he argued that knowingly possessing the 14 images before he deleted all the other images is a different act or crime than knowingly possessing the 14 images after he deleted the 2,300 images. To prevail on this, the court explained, Ferguson would have had to prove that the grand jury indicted him only for knowingly possessing the 14 undeleted images after deleting the other images on April 4th. The 6th circuit held that he had not proven this. Specifically, the court cited a rule which states, "when 'on or about' language is used in an indictment, proof of the exact date of an offense is not required as long as a date reasonably near that time is established." According to the court, April 4th is reasonably close in time to the indictment date of April 10th. The court affirmed the district court's acceptance of the superseding indictment and affirmed the conviction.
Moral of the story: It probably would have been wise of Ferguson to double check his hard drive for more pictures after he deleted the 2,300 others.
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