## Facts

- Stuart Romm used a laptop in a Las Vegas hotel room to access websites containing child pornography.
- As Romm viewed and enlarged images online, the computer automatically stored image files in the internet cache; a forensic exam later found about 40 deleted cache images and two additional deleted images elsewhere on the hard drive.
- Romm kept certain images onscreen for minutes, enlarged them, and later deleted files; he also admitted he knew the images were being stored and described his conduct as “saving” and “downloading.”
- After traveling to Kelowna, British Columbia, Canadian officials detained Romm, reviewed his laptop briefly, saw internet-history evidence of child pornography sites, and denied him entry.
- Canadian authorities returned Romm to the United States; upon arrival in Seattle, U.S. agents examined the laptop at the border and later conducted a more detailed forensic analysis.
- A jury convicted Romm of knowingly receiving child pornography, 18 U.S.C. § 2252A(a)(2), and knowingly possessing child pornography, 18 U.S.C. § 2252A(a)(5)(B); the district court imposed concurrent mandatory minimum sentences and applied sentencing enhancements based on prior convictions.

## Issues

1. Whether the Fourth Amendment permits a warrantless, suspicionless search of a laptop’s contents at the international border (including subsequent forensic review) under the border-search exception.
2. Whether evidence was sufficient to prove knowing receipt and knowing possession when images were stored automatically in an internet cache and later deleted, and the defendant claimed he merely viewed images online.
3. Whether the district court erred by refusing the defendant’s proposed jury instruction on the statutory term “visual depiction.”
4. Whether the jury instructions on knowing possession omitted the required mental-state element, and if so, whether the error warranted reversal under plain-error review.
5. Whether sentencing enhancements based on prior predicate convictions and judge-found facts required resentencing under post-Booker federal sentencing law.

## Decision

- The court held the laptop search at the functional equivalent of the border was a routine border search requiring neither a warrant nor individualized suspicion.
- The court affirmed the convictions, finding sufficient evidence that Romm knowingly received and knowingly possessed child pornography based on cached and deleted images, his manipulation of the images, and his admissions of knowledge and control.
- The court found no reversible error in the refusal to give Romm’s requested “visual depiction” instruction because the instructions as a whole adequately stated the law and permitted argument of the defense theory.
- The court recognized instructional error concerning the mental-state element for knowing possession but, applying plain-error review, concluded the error did not warrant reversal of the conviction on the record presented.
- The court vacated the sentences and remanded for resentencing.

## Legal Principles

- Routine searches at the international border (and its functional equivalents, such as international airports) fall within a border-search exception permitting warrantless and suspicionless searches.
- A person and property that physically cross an international border may be searched upon return even if the traveler was denied entry into the foreign country.
- Knowingly receiving child pornography may be shown where a defendant intentionally causes images to be delivered to and stored on a computer and knows their character.
- Knowingly possessing child pornography may be shown through dominion and control over image files stored on a computer, including images automatically saved to an internet cache when the defendant knowingly views, enlarges, retains, and deletes them.
- A defendant is entitled to accurate and adequate instructions, not to specific wording; refusal of a requested instruction is not error where the charge fairly covers the governing law and allows presentation of the defense theory.
- Unpreserved instructional omissions are reviewed for plain error; relief requires a showing that the error affected substantial rights and seriously affected the fairness, integrity, or public reputation of judicial proceedings.
- Sentences imposed using enhancements dependent on judicial fact-finding under a mandatory-guidelines regime may require resentencing under an advisory-guidelines framework.

## Conclusion

The Ninth Circuit treated the border examination of a laptop as a routine border search permitted without a warrant or individualized suspicion, upheld convictions for knowing receipt and possession based on cached and deleted image files coupled with evidence of knowledge and control, but vacated the sentences and remanded for resentencing under controlling federal sentencing law.


United States v. Romm, 455 F.3d 990 (9th Cir. 2006)