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United States v. McVicker

United States District Court, D. Oregon

October 23, 2013

UNITED STATES OF AMERICA,
v.
KENNETH ROBERT MCVICKER III, Defendant

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For United States: S. Amanda Marshall, U.S. Attorney, and Gary Y. Sussman and Kelly Alexandre Zusman, Assistant U.S. Attorneys, District of Oregon, Portland, OR.

For Defendant: Krista M. Shipsey, Portland, OR; Lynne B. Morgan, Pacific Northwest Law LLP, Portland, OR.

OPINION

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OPINION AND ORDER

Michael H. Simon, United States District Judge.

Kenneth R. McVicker III (" McVicker" or " Defendant" ), a United States citizen, challenges his indictment for producing and transporting child pornography while living abroad. He argues that the statutes for which he has been indicted do not reach conduct that occurs outside the territory of the United States; that venue in the District of Oregon is improper because his conduct was not directed at the district; that his case should be dismissed because the government lacks jurisdiction to prosecute him under the Rule of Specialty; and that statements he made to U.S. officials in Belize after he was arrested by local authorities should be suppressed because they were obtained in violation of his rights under the United States

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Constitution. The Court held an evidentiary hearing on October 22-23, 2013. For the reasons that follow, the Court denies McVicker's motions.

FINDINGS OF FACT

The superseding indictment charges that on or about February 6, 2011, McVicker " having previously been convicted of an offense involving the sexual abuse of a minor, knowingly transported or shipped child pornography . . . using any means or facility of interstate or foreign commerce, or in or affecting interstate or foreign commerce by any means, including by computer, which images of child pornography were accessed and downloaded in the District of Oregon," in violation of 18 U.S.C. § 2252A(a)(1) (the " transporting" charge). Dkt. 19 (Count One). It also charges that McVicker, on or about November 24, 2010, " knowingly and unlawfully employed, used, persuaded, induced, enticed, or coerced" a minor " to engage in sexually explicit conduct . . . for the purpose of producing visual depictions of such conduct" that were then " mailed, shipped, or transported using any means or facility of interstate or foreign commerce, or in or affecting interstate or foreign commerce, and were accessed and downloaded in the District of Oregon," in violation of 18 U.S.C. § 2251(a) (the " producing" charge). Id (Count Two).

Based on the evidentiary hearing held on October 22-23, 2013, the Court makes the following findings of fact:

1. The investigation of McVicker began in December 2010, when Immigration and Customs Enforcement (" ICE" ) agents executed a warrant in Vancouver, Washington to search the residence of Rick Carr (" Carr" ). The ICE agents found that Carr was trading large volumes of child pornography. Because Carr's computer was up and running while the agents executed the search, they discovered that Carr was using a file-sharing program to distribute images of child pornography. ICE agents used the file-sharing program to investigate electronic correspondence and exchanges with another U.S. Citizen, Seth Bekenstein.
2. The federal agents, with Carr's permission, assumed his identity and communicated with Bekenstein. Bekenstein repeatedly sent to an undercover ICE agent in Portland, Oregon links to images that he claimed were child pornography, including images allegedly produced by McVicker. Bekenstein provided passwords to open the encrypted links. Department of Homeland Security (" DHS" ) Special Agent James Mooney accessed and downloaded those images in the District of Oregon.
3. In his communications with the federal agents posing as Carr, Bekenstein identified a man named " Kenny" as one of the producing sources of child pornography, and explained that Kenny lived on the coast in Ecuador, was trusted by the community, taught at a local school, and had relocated to Ecuador after serving time in prison for child molestation charges in Maryland.
4. On one occasion when Bekenstein arrived in Portland, Oregon, he was arrested by ICE agents on charges of transporting and distributing child pornography. Afterwards, with Bekenstein's consent, Agent Mooney assumed Bekenstein's online identity " Seth Laver." Agent Mooney accessed Bekenstein's email accounts, reviewed emails allegedly sent from McVicker, and downloaded

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and discovered in the District of Oregon images of an Ecuadorean boy, approximately five years of age, that depicted child sexual abuse.
5. On February 6, 2011, a contact of Bekenstein's known as " Padrino Padrino" or " Kenny" sent an email to Bekenstein, who was then living in Mexico. Federal agents identified " Padrino Padrino" as the online identity of McVicker. The email contained a link to an internet-based file-storage site, the server for which is located in the Netherlands. In a separate email, McVicker sent Bekenstein the password needed to access those files. The files contained images of child pornography, allegedly produced by McVicker in Ecuador.
6. Bekenstein used an email account through Microsoft Live.com, which is based in Redmond, Washington. His email account is stored on servers in the United States and his emails traveled through servers in the United States, even while Bekenstein was in Mexico.
7. Agent Mooney used emails sent between Bekenstein and McVicker to investigate the location from which the messages from McVicker were sent. In particular, Agent Mooney identified the originating internet protocol (" IP" ) address of an email from McVicker to Bekenstein on February 6, 2011. Thereafter, he used an online tool to " geolocate" the IP address. Agent Mooney discovered that Mcvicker's IP address was assigned to an internet service provider located in Ecuador, but not to a named individual. McVicker's emails were sent through a server located in Israel, which then traveled through several intermediary internet " hops," including servers, routers, and switches, and then eventually to a Microsoft-owned server located in the state of Washington.
8. Agent Mooney separately analyzed the metadata in the photographs allegedly transferred from McVicker to Bekenstein. The metadata within the images provided forensic, such as the type of camera used and the dates and times that the photographs were taken (according to the camera's internal clock). Agent Mooney's analysis established that the photographs were taken with the camera that was later seized from McVicker in Belize.
9. Agent Mooney identified emails in Bekenstein's account containing links to images depicting child sexual abuse. In some of these emails, Bekenstein asked McVicker to identify the name of the child depicted in the images. McVicker identified the male child depicted as " Kevin." In the District of Oregon, Agent Mooney downloaded images from the relevant emails containing hyperlinks to confirm their content and that they contained child pornography.
10. Agent Mooney communicated, using Bekenstein's email account with Bekenstein's consent, with McVicker for several days. During one of these communications, McVicker told Agent Mooney that McVicker was planning to leave Ecuador for Belize to work on a commissioned art project.
11. During the course of McVicker's email communications with Bekenstein and Carr, there is no evidence that McVicker attached to any email ...

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