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United States v. Glenn

United States Court of Appeals, Fifth Circuit

August 15, 2019

UNITED STATES OF AMERICA, Plaintiff-Appellee
v.
HUGH MICHAEL GLENN, Defendant-Appellant

          Appeal from the United States District Court for the Northern District of Texas

          Before HAYNES, GRAVES, and DUNCAN, Circuit Judges.

          JAMES E. GRAVES, JR., CIRCUIT JUDGE.

         Hugh 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, we affirm.

         I. BACKGROUND

         A. Government Obtains a Warrant and Seizes Glenn's Computer

         On or 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."

         DPD 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.

         On or 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 incorrect.

         The 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 image.

         While 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."[1] 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.

         B. Glenn's Computer Installs Update in Government Custody

         While back at the laboratory after the execution of the search warrant, Lehman attempted to create an "image"[2] 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.

         Lehman 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."

         When Glenn's computer "tried to start up Windows," updates installed automatically onto the hard drive.[3] Although the update did not affect the "thumb cache"[4] 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 hard drive.

         Eventually, 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.

         Glenn's 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."

         After 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."

         C. Pretrial Proceedings, the ...


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