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United States v. Dunning

United States Court of Appeals, Sixth Circuit

May 18, 2017

United States of America, Plaintiff-Appellee,
v.
Bret A. Dunning, Defendant-Appellant.

          Argued: October 20, 2016

         Appeal from the United States District Court for the Eastern District of Kentucky at Pikeville. No. 7:15-cr-00004-Danny C. Reeves, District Judge.

         ARGUED:

          Athanasia N. Lewis, Glenn Martin Hammond Law Office, Pikeville, Kentucky, for Appellant.

          Daniel E. Hancock, United States Attorney's Office, Lexington, Kentucky, for Appellee.

         ON BRIEF:

          Stephen W. Owens, Pikeville, Kentucky, for Appellant.

          Daniel E. Hancock, Charles P. Wisdom Jr., United States Attorney's Office, Lexington, Kentucky, for Appellee.

          Before: MERRITT, BATCHELDER, and ROGERS, Circuit Judges.

          OPINION

          ALICE M. BATCHELDER, Circuit Judge.

          Bret Dunning was indicted for knowingly receiving and possessing child pornography in violation of 18 U.S.C. § 2252(a)(2) and (a)(4)(B). He moved to compel discovery and to suppress evidence that the police seized from his home. After the district court denied his motions and his request for an evidentiary hearing, Dunning entered into a conditional plea agreement, preserving his right to appeal and pleading guilty to one count of knowingly receiving material involving the sexual exploitation of minors in violation of 18 U.S.C. § 2252(a)(2). The district court sentenced him to 165 months' imprisonment.

         Dunning argues on appeal that the district court erred by denying his motion to suppress evidence, that 18 U.S.C. § 2252 is unconstitutionally vague because it provides a stiffer penalty for receipt than for possession of child pornography, and that his sentence is procedurally and substantively unreasonable. We AFFIRM his conviction and sentence.

         I. Facts

         A Kentucky State Police Detective twice used Nordic Mule, a program that is part of a law enforcement software package known as the Child Protection System (CPS), to search for IP addresses that had recently shared child pornography on the peer-to-peer file-sharing network eDonkey (a.k.a. eMule). The software locates specified files on public peer-to-peer networks and records the IP addresses that have downloaded and made available for sharing files containing child sexual exploitation. When the software finds shared materials on these public networks, it logs the "date, time, hash values, filename, and IP address." After the second CPS inquiry and report, the detective obtained a search warrant for Dunning's residence.

         During the execution of the search warrant, the police seized numerous electronic devices, including computers, iPhones, and iPads, which contained over 22, 000 images and videos depicting the sexual exploitation of minors. Some images showed prepubescent children engaged in sexually explicit conduct with adults.

         After his indictment, Dunning moved for discovery, seeking, among other things, the source code for the software that the detective relied on for the search warrant. The court ordered a response to Dunning's motion and the government responded, stating with regard to the software that:

The program [the] Detective [] used when conducting his search for CP images is part of the Child Rescue Coalition, which is a private non-profit organization. The source code and program are proprietary and are not in the possession of the United States. The data base [sic] used in this case evolved from the program formerly known as the Wyoming tool.

         The court then denied without prejudice Dunning's motion for discovery. Dunning also moved to suppress evidence that the police seized from his home, arguing that the warrant application was not supported by probable cause because the detective used software of uncertain reliability and accuracy to obtain the warrant, and that he had a reasonable expectation of privacy in the files stored on his computer. The district court denied Dunning's motion to suppress.

         Dunning then pled guilty to a violation of 18 U.S.C. § 2252(a)(2) for knowingly receiving material involving the sexual exploitation of minors, and the district court sentenced ...


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