U.S. v. Vosburgh, 2010 WL 1542340, April 20, 2010. Vosburgh appealed his conviction following a jury trial of possession and attempted possession of child pornography (18 U.S.C. § 2252). The investigation of Vosburgh began when an IP address linked to his account attempted to download child pornography on the internet. This, in addition to assertions that child pornography collectors maintain materials and rarely dispose of them, was the basis for issuance of a warrant to search Vosburgh’s apartment four months later. In his apartment agents seized an external hard drive which was later found to contain hundreds of images of "child erotica" (defined as sexually suggestive photos not sufficiently lascivious to meet the definition of sexually explicit conduct), and a thumbnail image file which contained two images of child pornography. The two images did not exist as independent picture files on the computer. The government asserted at trial that the existence of the thumbnail files indicated Vosburgh’s "prior possession" and viewing of the full image files, although they had since been deleted.
The Circuit affirmed the conviction in a lengthy opinion, finding that: (1) the warrant to search defendant's apartment, based on use of his IP address to access unlawful internet content four month’s earlier, provided a substantial basis for concluding there was a fair probability that contraband or evidence of an attempt to possess child pornography would be found in defendant's apartment; (2) the government did not constructively amend the indictment as to the count charging defendant with possession of child pornography by impermissibly changing its theory of prosecution, during closing argument, as to which visual depictions of child pornography-thumbnail images or full-size images-defendant unlawfully possessed; indictment did not charge defendant with possessing any particular depiction of child pornography, but with possessing a computer hard drive that contained visual depictions of child pornography, and any variance was not prejudicial as the defense at trial belied any claim of surprise; (3) the evidence was sufficient for the jury to make a finding on the government’s "prior possession" theory, where only thumbnails of files remained on the hard drive, and (4) admission of "child erotica" was not an abuse of discretion, as possession was probative of the defendant's interest in children, the limiting instruction was sufficient.