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United States v. Furman

United States Court of Appeals, Eighth Circuit

August 14, 2017

United States of America Plaintiff- Appellee
Rex Lee Furman Defendant-Appellant

          Submitted: June 7, 2017

         Appeal from United States District Court for the District of Minnesota - St. Paul

          Before WOLLMAN, ARNOLD, and GRUENDER, Circuit Judges.

          WOLLMAN, Circuit Judge.

         A jury convicted Rex Lee Furman of thirteen counts of producing child pornography, in violation of 18 U.S.C. §§ 2, 2251(a), 2251(e), and 3559(e); two counts of distributing child pornography, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1); one count of receiving child pornography, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1); one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2); and one count of commission of a felony offense involving a minor when required to register as a sex offender, in violation of 18 U.S.C. § 2260A. The district court[1] sentenced Furman to life imprisonment, as well as to a 120-month consecutive sentence. Furman appeals, arguing that the district court erred in denying his motion for judgment of acquittal on the production and distribution counts and in admitting evidence of his 1999 conviction of first-degree criminal sexual conduct. He also contends that his sentence violates the Eighth Amendment's prohibition on cruel and unusual punishment. We affirm.

         In 1981, when Furman was eighteen years old, he sexually abused his five-year-old stepsister. He pleaded guilty in Wright County, Minnesota, in November 1981 to criminal sexual conduct in the fourth degree. He admitted that he had touched the victim's genitals for the purpose of his own sexual gratification.

         In 1998, Furman sexually assaulted his ten-year-old daughter, R.F., by inserting his finger into her vagina and by forcing her to perform oral sex on him. He was found guilty in Hennepin County, Minnesota, in January 1999 of engaging in criminal sexual conduct in the first degree. Furman was thereafter required to register as a sex offender.

         Upon his release from prison in November 2011, Furman moved into a house on his brother's property, where he had access to the Internet. Furman brought R.F.'s three-year-old daughter, A.Z., to live with him in August 2012. In September or October 2012, R.F. and her three other children-a baby boy, a five-year-old girl named S.Z., and a seven-year-old boy named N.Z.-also moved in with Furman. The children were removed from Furman's home in March 2013.

         Furman used peer-to-peer file-sharing networks to download hundreds of images of child pornography. From at least December 2012 through August 2013, Furman used Ares 2.1.9 file-sharing software to access the Ares file-sharing network from his eMachines computer. From at least October 2013 through February 2014, Furman used LimeShare Pro 2.5 and 2.6 file-sharing software to access the Gnutella file-sharing network from his HP computer.

         When he installed the LimeShare Pro 2.6 software, Furman was prompted to answer questions regarding sharing his files with other users. One prompt required him to choose a folder in which his files would be downloaded. The prompt stated, "This folder will also be shared with other [G]nutella users by default." Furman chose to download files into and share files from the software's default folder called "Shared." Whenever his computer was running the LimeShare Pro program, Gnutella users could download files from Furman's shared folder.

         Special Agent David Giguere worked in the predatory crimes unit of the Minnesota Bureau of Criminal Apprehension. On August 23, 2013, Giguere used law enforcement software to identify computer users who were making child-pornography files available for others to download on the Ares file-sharing network. Giguere downloaded two child-pornography videos from the IP address associated with Furman, including one entitled "1(2)(3)(2).mpg."

         Minneapolis Police Officer Dale Hanson was assigned to the Federal Bureau of Investigation's child exploitation task force. From October 2013 through January 2014, Hanson used law enforcement software to search file-sharing networks for child pornography. During that time, Hanson used the Gnutella file-sharing network to download eighteen images of child pornography from the shared folder on Furman's HP computer. Among the files Hanson downloaded was one entitled, "Private Daughter Mellony stolen pedo lolita pthc hussyfan preteen nude (10yo) 01(1).jpg" (Private Daughter Mellony.jpg).[2]

         On February 13, 2014, law enforcement officers executed a search warrant at Furman's residence and seized his eMachines and HP computers, as well as his computer storage devices. Giguere interviewed Furman, who immediately made the following assertions: "I'm not trying to do anything illegal, " "[m]ost of it is art, " and "I don't distribute." Furman admitted that he possessed child pornography and that he had downloaded it using a file-sharing network. He explained how file sharing worked, saying, "[Y]ou got a share file . . . on the program. When you download if you don't take it outta the share file[, ] it shares it back . . . to other people." Furman expressed his belief that possessing child pornography was lawful and maintained throughout the interview that he was not distributing it, explaining that he moved or deleted files from his shared folder soon after he downloaded the files from other users. He claimed, "I don't leave it in the shared folder long enough . . . I cut everybody off usually." Furman also claimed that he did not know that his files could be downloaded after he "g[o]t out of the file."

         As the officers were leaving the residence, Furman told them that they would find photos or a video of Furman and R.F. applying medication to his granddaughters, A.Z. and S.Z., for a yeast infection. When the images were not found on the seized storage devices, Giguere stopped by Furman's home on September 19, 2014, to ask about them. Furman indicated that the discs containing the images were taken during the search. He explained that he or R.F. took the photos and the video of the girls and that the images were taken in his bedroom shortly after A.Z. began staying with him. According to Furman, the images were "straight shot[s]" of A.Z.'s and S.Z.'s vaginas to "prove that nothing was wrong with [the girls]." Furman said that the images did not show any application of medicine, but rather they were taken "before anything had happened up here." Furman explained that he and R.F. had taken the girls to the clinic and that he "told the doctor [that N.Z.'s] been after 'em, " indicating that ...

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