USA v. Edward Davi

Filing

Filed opinion of the court by Judge Bauer. AFFIRMED. William J. Bauer, Circuit Judge; Frank H. Easterbrook, Circuit Judge and Jon E. DeGuilio, District Court Judge. [6847123-1] [6847123] [16-3735]

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In the

United States Court of Appeals
For the Seventh Circuit
No. 16-3735
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDWARD J. DAVIS,
Defendant-Appellant.

Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14 CR 00659 — Gary Feinerman, Judge.

ARGUED MARCH 27, 2017 — DECIDED JUNE 12, 2017

Before BAUER and EASTERBROOK, Circuit Judges, and
DEGUILIO,* District Judge.
BAUER, Circuit Judge. On May 25, 2016, a jury found Edward
James Davis guilty of one count of knowingly transporting and
causing to be transported more than 10 images of child
*

Of the Northern District of Indiana, sitting by designation.

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pornography, in violation of 18 U.S.C. § 2252A(a)(1), and one
count of possession of material which contained an image of
child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).
On October 11, 2016, the district court sentenced Davis to 210
months’ imprisonment on each count, to be served concurrently. The court also imposed a $400,000 fine, $2,000 in
restitution, a five-year term of supervised release, and a $200
special assessment. Davis brings this appeal challenging the
sufficiency of the government’s evidence at trial, as well as the
constitutionality and reasonableness of the $400,000 fine.
I. BACKGROUND
In late 2013, FBI agents began investigating pornographic
images that appeared on the online photo-sharing website
Shutterfly. Shutterfly allows individuals to create an account
using an email address, and then upload images to the website.
One Shutterfly feature, called a “share site,” allows users to
post images and then invite other Shutterfly users to view
them, and also upload their own images.
At Davis’ trial, FBI Agent Daniel O’Donnell testified that in
January 2014, he executed a search warrant on a Shutterfly
share site titled “bwbb722.” The site showed that it had
approximately 50 members at that time, one of whom was a
user with the username “Jimmy D.” “Jimmy D” joined
“bwbb722” on August 29, 2013, and posted just over 2,000
images to the site on August 30, 2013. Agent O’Donnell
testified that he determined, based on his experience and
training, that at least 1,000 of these images depicted minors
engaging in sexual intercourse with both minors and adults.

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The remainder were images depicting minors in either sexually
suggestive poses or partially clothed.
The “Jimmy D” username was created using the email
address [e-mail]. That email address was registered
through AOL. In response to a search warrant, AOL provided
the information associated with that address to Agent O’Donnell. The account was registered to “Jim Davis,” with an
address of 10532 West Drummond Place, Melrose Park, Illinois.
Davis had owned the home at that address since 1983. The
AOL account was also registered with a credit card with the
name “James Davis.”
On April 22, 2014, FBI agents and local police executed a
search warrant on the home at 10532 West Drummond Place
and found Davis there alone. There were two bedrooms in the
house, each with one bed. Anthony Stack of the Cook County
Sheriff’s Department, who participated in the search, testified
that only one of the bedrooms appeared to be slept in, while
the other appeared to be used for storage. He testified that
Davis appeared to be the only occupant of the home. During
the search, Officer Stack found and seized two computers—one
laptop and one desktop—in the first floor study.
FBI Special Agent Shannon McDaniel performed the
forensic search of the seized computers. She testified that she
found 350 images of child pornography on the desktop computer’s hard drive and 700 images of child pornography on the
laptop’s hard drive. These images were located in the “carved
space” of the hard drives. FBI Senior Forensic Examiner Jon
Shumway testified that when a user deletes an image from a
computer, it will remain in the carved space on a hard drive,

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even though the typical user may no longer be able to see or
access it. Agent McDaniel testified that, by using forensic
software, she was able to recover the pornographic images
from the carved space on the hard drives seized from Davis’
home.
Over 180 of these images were visual matches for the
images that “Jimmy D” posted on the “bwbb722” Shutterfly
site on August 30, 2013. Agent McDaniel also testified that the
forensic software used to search the hard drives was able to
recover metadata, which provides specific information about
the use and activity of particular images. From the metadata
she recovered, Agent McDaniel confirmed that certain of these
images had been uploaded from these computers to various
Shutterfly share sites using the name “Jimmy D” and the email
address [e-mail]. Over 30 of the 180 matched
images were uploaded to Shutterfly in August 2013, prior to
being posted to “bwbb722.” Session activity obtained from
AOL confirmed that the [e-mail] account was online
during the time frames in which “Jimmy D” posted the images
to “bwbb722” on August 30, 2013.
Agent McDaniel also testified as to other information and
documents she located on the seized computers. The desktop
computer contained a copy of Davis’ passport; two photographs of Davis; a landscaping bill addressed to Davis at his
home address; an anatomical donation form completed with
Davis’ name, address, and phone number; and a reservation
for a trip made in Davis’ name. The laptop computer contained
a photograph of Davis, as well as data recovered from an antivirus program that was registered with the [e-mail]
email address and Davis’ phone number.

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On May 17, 2016, a superseding indictment charged Davis
with one count of transporting more than 10 images of child
pornography on August 30, 2013, and one count of knowingly
possessing an image of child pornography in or around
August 2013. On May 25, 2016, after a three-day trial, at which
Davis called no witnesses, the jury returned guilty verdicts on
both counts. Davis filed a motion for judgment of acquittal, a
motion in arrest of judgment, and a motion for a new trial. He
argued that the evidence at trial was insufficient to support his
convictions, and also made a number of challenges to the
court’s evidentiary rulings. On July 6, 2016, the district court
denied Davis’ motions. On October 11, 2016, the court sentenced Davis to 210 months’ imprisonment, and imposed a
$400,000 fine, $2,000 in restitution, a five-year term of supervised release, and a $200 special assessment. This appeal
followed.
II. DISCUSSION
A. Sufficiency of the Evidence
Davis’ first argument on appeal is that the government
presented insufficient evidence at trial to support his convictions beyond a reasonable doubt. Specifically, he contends that
there was insufficient evidence to establish that he was the
individual who uploaded and posted the images to the
Shutterfly site. He also argues that the government did not
present sufficient evidence to establish that he knowingly
possessed the pornographic images located on the seized
computers.
When reviewing the sufficiency of the evidence, “we view
the evidence in the light most favorable to the prosecution and

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ask whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
United States v. Salinas, 763 F.3d 869, 877 (7th Cir. 2014) (citing
Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This means that a
criminal defendant “faces an uphill battle on appeal.” United
States v. Eads, 729 F.3d 769, 779 (7th Cir. 2013). If the record
presents a reasonable basis for the jury’s verdict, it must stand.
Id. (citation omitted). Additionally, “[i]t is well established that
a jury’s verdict may rest solely upon circumstantial evidence.”
United States v. Robinson, 177 F.3d 643, 648 (7th Cir. 1999).
To sustain a conviction for transportation of child pornography, the government was required to prove that Davis
knowingly transported child pornography using a means or
facility of interstate commerce, and that he knew the material
depicted one or more actual minors engaged in sexually
explicit conduct. See 18 U.S.C. § 2252A(a)(1). Davis’ only
argument as to this conviction is that the government did not
prove that he was, in fact, the person who uploaded and
posted the images from the seized computers. Upon review of
the record, however, there is ample support for the jury’s
conclusion that Davis uploaded and posted the images.
Agent O’Donnell testified that “Jimmy D” was the member
who posted 2,000 images to “bwbb722" on August 30, 2013,
and that “Jimmy D” was registered using an email address
linked to Davis’ name, home address, and phone number. AOL
records showed that the account registered with a credit card
in Davis’ name was online at the times during which the
images were posted to “bwbb722.” Officer Stack testified that
there was no indication that anyone other than Davis lived in

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his home. The only pieces of identifying information located on
either of the seized computers—such as the photographs of
Davis, his passport, the landscaping bill, the trip reservations,
and the software registrations—indicated that they belonged
to and were used only by Davis. This evidence could certainly
lead a reasonable jury to conclude Davis was the user who
knowingly uploaded the pornographic images to Shutterfly
and posted them to the “bwbb722” site on August 30, 2013.
To sustain a conviction for possession of child pornography, the government was required to prove that Davis knowingly possessed material that he knew to be child pornography
that had been transported or produced using materials that
had been transported through interstate commerce. See 18
U.S.C. § 2255A(a)(5)(b). Davis argues that the government’s
evidence failed to prove that he knowingly possessed the
images that were located in the carved space of the computers’
hard drives. He notes that the government presented no
evidence to demonstrate that he had knowledge of the carved
space’s function or location. Without such evidence, he
contends that the jury could not reasonably conclude that he
knew those images existed on his computer.
This argument is unpersuasive and misunderstands both
the evidence and the indictment. As the government points
out, Davis was not charged with knowingly possessing the
images in April 2014, when the computers were seized and
searched. Rather, he was charged with possessing them in or
around August 2013. That is the same month in which the
images were uploaded from his computers to Shutterfly and
posted on “dwbb722” under a username linked to his email
address. Agents Shumway and McDaniel both testified that the

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existence of the images in the carved space indicates that they
were deleted from another location on the hard drive where
they were stored at a previous time. Additionally, as discussed
above, the government’s evidence demonstrated that the
images had been uploaded from Davis’ computers to the
Shutterfly site in August 2013. Because the jury reasonably
determined that Davis knowingly uploaded the images, it also
had a sufficient basis to conclude that he knowingly possessed
those images prior to doing so.
In sum, there was sufficient evidence for the jury to
conclude that Davis uploaded and posted images of child
pornography from his computers to Shutterfly, and that he
knowingly possessed those images prior to doing so.
B. Challenge to Fine
As part of Davis’ sentence, the district court imposed a fine
of $200,000 on each count of conviction, for a total fine of
$400,000. Davis challenges the fine, arguing both that it was
excessive in violation of the Eighth Amendment to the Constitution, and that it was substantively unreasonable.
We review constitutional questions, including challenges to
fines under the Eighth Amendment, de novo. United States v.
Segal, 495 F.3d 826, 840 (7th Cir. 2007). The Eighth Amendment
provides: “Excessive bail should not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.”
U.S. Const. amend. VIII. The Supreme Court has held that,
under the Eighth Amendment, a punitive fine “must bear some
relationship to the gravity of the offense it is designed to
punish.” United States v. Bajakajian, 524 U.S. 321, 334 (1998).

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Thus, a fine “violates the Excessive Fines clause if it is grossly
disproportional to the gravity of a defendant’s offense.” Id.
When determining the proportionality of a fine relative to
the crime, the Supreme Court directs us to consider the
punishments prescribed by statute, emphasizing that “judgments about the appropriate punishment for an offense belong
in the first instance to the legislature.” Id. at 336. Here, based
on Davis’ status as a repeat offender, the relevant statute
contemplates minimum sentences of 15 years’ imprisonment
for transporting child pornography, 18 U.S.C. § 2252A(b)(1),
and 10 years’ imprisonment for possessing child pornography,
id. § 2252A(b)(2). The statutory maximum fine for each of
Davis’ convictions is $250,000. Id. § 3571(b)(3). Moreover, the
fines the district court imposed here fell within the applicable
Guidelines range. See U.S.S.G. § 5E1.2(c)(3). All of this clearly
indicates that Congress and the United States Sentencing
Commission consider these to be quite serious offenses, which,
in turn, indicates that a fine of this size is appropriate. See
United States v. Malewicka, 664 F.3d 1099, 1106 (7th Cir. 2011)
(“There is a strong presumption of constitutionality where the
value of the forfeiture falls within the fine range prescribed by
Congress or the Guidelines.”); see also United States v. Bernitt,
392 F.3d 873, 880–81 (7th Cir. 2004) (citing Bajakajian and
considering statutory penalties and applicable Guidelines in
determining proportionality of fine). The fine imposed by the
district court is not disproportional to Davis’ crimes, and
therefore, does not violate the Eighth Amendment.
Davis also makes a general, albeit brief, argument that the
court’s imposition of the fine was substantively unreasonable.

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We review the reasonableness of a district court’s decision to
impose a fine for clear error. United States v. Ellis, 548 F.3d 539,
546 (7th Cir. 2008). We will find that decision clearly erroneous
only if we are “left with a definite and firm conviction that a
mistake has been committed.” Id. (citation and quotation marks
omitted).
The district court’s Guidelines calculation, which Davis
does not challenge, resulted in an advisory range of $20,000 to
$200,000 for each conviction. Thus, while on the high end, the
$400,000 fine was within the Guidelines range. In considering
the fine, the district court appropriately addressed the factors
set forth in 18 U.S.C. § 3572(a). It noted that Davis had a net
worth of $1.9 million; the lack of expenses that might burden
Davis while incarcerated; the loss inflicted on others by Davis’
offense; that the fine would not impair Davis’ ability to pay
restitution; and that the fine would assist in reimbursing the
government for the cost of his imprisonment. The court also
considered the appropriate factors under 18 U.S.C. § 3553(a),
and Davis does not contend otherwise. Based on its careful
consideration of the relevant statutory factors, and its imposition of a fine within the Guidelines, we cannot say that the
district court clearly erred by imposing a fine of $400,000.
III. CONCLUSION
For the foregoing reasons, Davis’ conviction and sentence
are affirmed.