from the United States District Court for the Northern
District of Texas
HAYNES, GRAVES, and DUNCAN, Circuit Judges.
E. GRAVES, JR., CIRCUIT JUDGE.
Michael Glenn appeals his conviction for one count of
transporting and shipping child pornography in violation of
18 U.S.C. §2252A(a)(1) and one count of accessing child
pornography with intent to view it in violation of 18 U.S.C.
§ 2252(a)(4). Finding no error in the proceedings below,
Government Obtains a Warrant and Seizes Glenn's
about August 30, 2016, the Dallas Police Department
("DPD") received a "cyber tip" from the
National Center for Missing and Exploited Children
("NCMEC"). NCMEC informed the DPD that Chatstep,
"an anonymous online chatting platform," had
reported that someone with the username "TexPerv"
uploaded an image of a prepubescent male exposed in a lewd
and lascivious manner to its site on August 1, 2016.
According to Chatstep, the user had also accessed several
chat rooms with names signaling a sexual interest in
children, including "UdnreraegAvction,"
"byyyrooom," and "UdneraegHvmiliation."
Detective Chris De Leon issued an administrative subpoena to
AT&T for the subscriber information linked to the IP
address in the cyber tip. AT&T's records showed Hugh
Michael Glenn as the subscriber for the designated IP
address. After running a search on Glenn's telephone
number, DeLeon found Glenn listed as a registered sex
offender with a prior federal conviction for transporting and
shipping child pornography. DeLeon began surveilling the
address listed on the sex offender registry and the AT&T
documents; in doing so, he observed a UPS package on the
doorstep addressed to Hugh Glenn.
about September 8, 2016, DeLeon contacted Agent Jennifer
Mullican, a member of the FBI's Child Exploitation Task
Force, for assistance. Based on the information Mullican
collected from DeLeon, including the AT&T records,
Mullican sought a warrant to search the residence of 3500
Routh for computer equipment and electronic material. In her
affidavit in support of the warrant, Mullican listed 3500
Routh St as the address where Glenn was receiving internet
service on August 1, 2016, the date the child pornography
image was uploaded to Chatstep. However, the AT&T
documents actually showed Glenn was receiving internet
service at 3025 West Forest on August 1st; he transferred his
billing address to 3500 Routh St on August 2nd and began
service at Routh St on August 9th. Because Chatstep reported
the pornography was uploaded on August 1st, Glenn could not
have uploaded the picture from 3500 Routh, as Mullican's
affidavit stated. Accordingly, Mullican's statement in
the affidavit about where the upload likely occurred was
mistake went unnoticed and the magistrate judge issued a
warrant to search the Routh St address. Officers executed the
search warrant on September 14, 2016. Glenn was present at
the time of the search and agreed to speak with law
enforcement, waiving his Miranda rights. During this
interview, Glenn admitted that he visited Chatstep, that he
was user TexPerv, and that he had downloaded and uploaded
child pornography. He also acknowledged that the officers
would find child pornography on his laptop. Glenn admitted he
had seen the specific image referenced in the cyber tip, and
although he said he did not remember sharing the image, he
also stated, "Umm, I obviously saved [the image] if I
sent it out." Glenn signed and dated the back of the
Mullican was interviewing Glenn, FBI computer scientist
Anthony Lehman performed an initial triage of Glenn's
laptop to determine if the computer was encrypted and to see
if he could uncover any information helpful to the officers
as they interviewed Glenn. Lehman used a software program
"to do a quick analysis" of the computer's
"allocated space," and he used a different program
to recover deleted files from the hard drive's
"unallocated space." These searches were consistent
with FBI protocol. Lehman's searches of Glenn's
computer at the scene recovered many images of child
pornography in both the allocated and unallocated spaces.
Glenn's Computer Installs Update in Government
back at the laboratory after the execution of the search
warrant, Lehman attempted to create an
"image" of the hard drive before the agents
searched it further. In accordance with FBI procedures,
Lehman removed the hard drive from the computer and tried to
image it. However, the hard drive had a
"non-standard" connector that was proprietary to
its manufacturer and Lehman ran into several issues,
requiring multiple attempts to image the drive.
sought help from his colleagues, but nobody had "seen
this type of hard drive." He tried again using a
different software program, but that attempt also failed.
Lehman then tried two more times, once from a CD and once
from a USB drive. Importantly, when Lehman attempted to run a
program from the USB drive, the computer "didn't
boot to the USB" as Lehman expected it would. Instead,
"it tried to start up Windows," and Lehman
"powered off the machine."
Glenn's computer "tried to start up Windows,"
updates installed automatically onto the hard
drive. Although the update did not affect the
"thumb cache" of the computer-which contained
numerous images of child pornography-one of the updates was a
defrag.exe process that reallocated information on the drive
so that data could be written more efficiently. Lehman
testified that the defrag did not "completely actually
run" and he "did not purposefully execute
defrag.exe." Glenn contends that the update destroyed at
least ten gigabytes of data in the unallocated space of his
Lehman was able to image the hard drive. All of the
information about Lehman's attempts to image Glenn's
hard drive, including the Windows update, was logged in the
computer's registry. Lehman was supposed to write a
"302 report" summarizing his efforts to image
Glenn's hard drive, but Lehman failed to make his 302
report until about five months before trial. Lehman testified
that this delay was an "oversight" because he
"thought that [he] had written it" earlier.
computer expert, Brian Ingram, was so disturbed by
Lehman's failures that he brought them to the attention
of the FBI. However, Ingram confirmed that he had no reason
to doubt that 2, 000 images of child pornography were on
Glenn's computer before the FBI took custody of the
computer. Additionally, Tom Petrowski, Division Counsel for
the FBI, testified that Ingram said he thought Glenn was
"guilty as sin."
the hard drive was imaged, Mullican reviewed it. She located
numerous images of child pornography-including the image
referenced in the cyber tip-on Glenn's hard drive.
Mullican also found explicit stories on the hard drive that
depicted "the sexual exploitation of minor boys."
Pretrial Proceedings, the ...