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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                             United States Court of Appeals

                                    No. 18-10580
                                                                      Fifth Circuit

                                                                    FILED
                                                              August 15, 2019

UNITED STATES OF AMERICA,                                      Lyle W. Cayce
                                                                    Clerk
             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
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                                No. 18-10580
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,


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                                        No. 18-10580
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.




       1 “Allocated space” is space on a hard drive dedicated to storing files used or saved by
the user so they can be accessed at a later time. After a file is deleted, it is stored in a hard
drive’s “unallocated space” until the hard drive is either permanently wiped using special
software or the files are overwritten by other actions of the user. A user generally cannot
access files in the unallocated space of the hard drive without special software, which Glenn
did not have.
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                                      No. 18-10580
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



         In this context, an image of a hard drive is “an identical copy of [the] hard drive.”
         2

         A Windows update proceeds in two steps: the updates are downloaded onto the
         3

computer either automatically or by the user; and then the user can either install the updates
immediately by restarting the computer or they will automatically install the next time the
computer is restarted. The updates on Glenn’s laptop had automatically downloaded to
Glenn’s computer the day before the execution of the search warrant; however, because Glenn
had not restarted his computer, the updates had not yet been installed. It is undisputed that
the Windows update did not contain images of child pornography.
       4 A “thumb cache” is a database file that “basically stores every picture that you have

knowingly opened on the computer” to help files load faster when they are opened
subsequently. The thumb cache is located in the allocated space on the hard drive.
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                                     No. 18-10580
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 Trial, and Sentencing
      Glenn was charged in a superseding indictment with 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). Count 1 related to the image user
TexPerv uploaded to Chatstep on August 1; Count 2 related to four images
found in Glenn’s thumb cache.


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                                 No. 18-10580
      Glenn moved to suppress the evidence obtained during the search once
it came to light that Mullican’s affidavit incorrectly stated Glenn’s address was
Routh St at the time the image was uploaded to Chatstep. No one contested
that Mullican’s affidavit supporting the warrant contained a false statement,
and the district court judge therefore conducted an evidentiary hearing in
accordance with Franks v. Delaware, 438 U.S. 154 (1978). After asking
Mullican a number of questions, the district court denied the motion to
suppress, finding her testimony credible and concluding that her failure to
state the correct address “simply was a mistake.”
      Glenn also moved to dismiss the indictment “due to prosecutorial
misconduct” because Lehman allowed the computer to reboot in his custody,
which triggered the installation of the Windows update and defrag program,
resulting in at least ten gigabytes of destroyed data. The district court carried
the motion to dismiss with the case so that it could hear live testimony from
both Lehman and Glenn’s computer experts, but it indicated that it was
unlikely to grant the motion.
      During trial, Mullican testified that she found numerous images of child
pornography on Glenn’s computer, including the image uploaded to Chatstep.
Glenn objected, arguing that Mullican was not an expert in “hash values” used
to identify specific images, nor was she an expert in the program used to find
the illicit images on Glenn’s computer. The district court overruled the
objection and admitted the images into evidence. After trial, the district court
denied Glenn’s motion to dismiss. It also denied Glenn’s request for a spoliation
of the evidence instruction because it found that there was “not sufficient
evidence of bad faith.” The jury convicted Glenn on both counts of the
indictment. The district court sentenced Glenn to a total of 360 months of
imprisonment.
      Glenn timely appealed.
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                                  No. 18-10580
                                 II. DISCUSSION
      Glenn raises four issues on appeal to challenge his convictions. He does
not challenge his sentence. We address each of his arguments in turn.
A. Motion to Dismiss for Prosecutorial Misconduct
      Glenn first argues that the district court erred by denying his motion to
dismiss. He bases this argument on two different legal theories: 1) the
Government suppressed exculpatory evidence under Brady v. Maryland, 373
U.S. 83 (1963), and 2) the Government failed to preserve exculpatory evidence
under Arizona v. Youngblood, 488 U.S. 51 (1988). As the Government observes,
each argument is based on the same facts: primarily that while Glenn’s laptop
was in Government custody, the Windows update “destroyed” at least ten
gigabytes of data in the unallocated space, and the Government did not
specifically communicate this fact to Glenn prior to trial. Glenn contends he is
entitled to dismissal of the indictment with prejudice on these bases.
      1. Standard of Review
      “We generally review whether the government violated Brady de novo,
although even when reviewing a Brady claim de novo, we must proceed with
deference   to   the   factual    findings   underlying    the   district   court’s
decision[.]” United States v. Cessa, 861 F.3d 121, 128 (5th Cir. 2017) (quoting
United States v. Brown, 650 F.3d 581, 589 (5th Cir. 2011) (internal quotation
marks and citations omitted)). “We review a district court’s bad-faith
determination for clear error.” United States v. McNealy, 625 F.3d 858, 868–69
(5th Cir. 2010). While this court has not “foreclose[d] the possibility that
governmental ineptitude and carelessness could be so abhorrent as to warrant
a dismissal with prejudice,” United States v. Fulmer, 722 F.2d 1192, 1196 (5th
Cir. 1983), “mere error or oversight is neither gross negligence nor intentional
misconduct.” United States v. Swenson, 894 F.3d 677, 684 (5th Cir.) (quoting


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                                 No. 18-10580
United States v. Fulmer, 722 F.2d 1192, 1195 (5th Cir. 1983) (internal
quotations omitted)), cert. denied, 139 S. Ct. 469 (2018).
      2. Brady Argument
      “To establish a Brady violation, a defendant must show: (1) the evidence
at issue was favorable to the accused, either because it was exculpatory or
impeaching; (2) the evidence was suppressed by the prosecution; and (3) the
evidence was material.” United States v. Dvorin, 817 F.3d 438, 450 (5th Cir.
2016). Bad faith is irrelevant to whether the Government has met its
obligations under Brady. See Youngblood, 488 U.S. at 57. Both Glenn and the
Government discuss all three elements of the Brady analysis; however, we find
that Glenn cannot show the overwritten data was material. Accordingly, we do
not address the first two elements.
      “Evidence is material if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have
been different.” Dvorin, 817 F.3d at 451 (quoting Brown, 650 F.3d at 588
(internal quotation marks omitted)). Stated differently, the favorable evidence
must “put the whole case in such a different light as to undermine confidence
in the verdict.” Banks v. Dretke, 540 U.S. 668, 698 (2004) (quoting Kyles v.
Whitley, 514 U.S. 419, 435 (1995)).
      Glenn cannot show that, had he had access to the overwritten data, the
outcome of the trial would have been different. As for the uploaded image that
was the subject of Count I, Glenn admitted having seen the uploaded image,
and while he told Mullican he did not remember sharing the image, he later
stated, “Umm, I obviously saved [the image] if I sent it out.” Taken together
with the facts that Glenn admitted to being user “TexPerv,” he signed and
dated the back of the image, and that the only other person to have had access
to his computer was confirmed to have been at work on the date of the upload,
there is little likelihood that the overwritten data would have changed the
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                                      No. 18-10580
outcome of this case, even assuming it had some exculpatory or impeachment
value. 5 As to the four images that made up Count II, Glenn’s own expert agreed
that the Windows update would not have moved files in Glenn’s thumb cache.
Moreover, Glenn told Mullican she would find child pornography on his
computer. Consequently, Glenn’s Brady arguments are without merit.
       3. Youngblood Claim
       Unlike Brady, where the good or bad faith of the officer is irrelevant,
Youngblood establishes that “the Due Process Clause requires a different
result when we deal with the failure of the State to preserve evidentiary
material of which no more can be said than that it . . . might have exonerated
the defendant.” Youngblood, 488 U.S. 57 (emphasis added). Glenn states
several times that the overwritten data included metadata that had
“potentially exculpatory” value, but also argues that the “evidence was of
critical importance to the case and had exculpatory value.” We agree that the
overwritten data was at most possibly exculpatory, and therefore Glenn must
show the district court clearly erred in determining the Government did not
engage in bad faith in overwriting the data. See McNealy, 625 F.3d at 868–69
(concluding “potentially available” exculpatory evidence “should be considered
‘potentially useful evidence’ rather than ‘material exculpatory evidence.’”).
       The district court concluded, albeit in the context of a spoliation
instruction, that Lehman’s actions in allowing the Windows update to install
were at most negligent. This is not clear error, especially where the district
court waited to rule on Glenn’s motion until hearing testimony both from
Glenn’s computer expert and from Lehman regarding his actions leading to the
overwritten data. See United States v. Anderson, 755 F.3d 782, 791 (5th Cir.


       5 To the extent Glenn implied at oral argument that the Government may have
intentionally placed the images on Glenn’s computer, there is simply nothing in the record to
support such a contention.
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                                 No. 18-10580
2014) (“[W]e defer to the district court’s credibility determination . . . .”).
Glenn’s Youngblood claim is therefore without merit.
B. Spoliation Instruction
      Glenn next argues that the district court erred by denying his request
for a spoliation instruction regarding Lehman’s failure to stop the Windows
update on his computer. We review the district court’s denial of such an
instruction for abuse of discretion. United States v. Valas, 822 F.3d 228, 239
(5th Cir. 2016).
      To receive a spoliation instruction, Glenn had to show that the
Government acted in bad faith or with bad conduct. Valas, 822 F.3d at 239. As
we noted above, he has not done so. This case is comparable to Valas, where
this court affirmed the denial of a spoliation instruction where a government
technician inadvertently destroyed data on the defendant’s phone by removing
the phone’s data chip after multiple unsuccessful attempts by several officials
to access the data. Valas, 822 F.3d at 239. Here, the overwriting of data
occurred when Lehman, after several failed attempts to image the laptop, tried
a different imaging method and inadvertently triggered an automatic update
that had already been installed on Glenn’s computer, thereby erasing data on
Glenn’s hard drive. We see no meaningful difference between this case and
Valas. Accordingly, the district court did not abuse its discretion in finding no
bad faith, nor did the district court err by deciding the bad faith issue itself
rather than sending it to the jury. See United States v. Wise, 221 F.3d 140, 156
(5th Cir. 2000).
C. Motion to Suppress
      Glenn contends that the district court erred in denying his motion to
suppress Glenn’s statements and the images found on his computer. He argues
the warrant was invalid based on the incorrect address included in Mullican’s
application for the search warrant.
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                                  No. 18-10580
      1. Standard of Review
      We “review[] the ‘[f]actual findings in a ruling on a motion to
suppress . . . for clear error’ and questions of law de novo.” United States v.
Jarman, 847 F.3d 259, 264 (5th Cir. 2017) (quoting United States v. Moore, 847
F.3d 259, 264 (5th Cir. 2017)). “The clearly erroneous standard is particularly
deferential where, as here, ‘denial of a suppression motion is based on live oral
testimony . . . because the judge had the opportunity to observe the demeanor
of the witnesses.” Id. (quoting United States v. Robinson, 741 F.3d 588, 594
(5th Cir. 2014)). We view the evidence in the light most favorable to the
prevailing party. United States v. Moore, 805 F.3d 590, 593 (5th Cir. 2015).
      2. Analysis
      Ordinarily, “[t]he Fourth Amendment’s exclusionary rule will not bar the
admission of evidence obtained with a warrant later found to be invalid so long
as the executing officers acted in reasonable reliance on the warrant.” United
States v. Alvarez, 127 F.3d 372, 373 (5th Cir. 1997). However, “[u]nder the
Supreme Court’s decision in Franks, a search warrant must be voided if the
defendant shows by a preponderance of the evidence that the affidavit
supporting the warrant contained a false statement made intentionally or with
reckless disregard for the truth and, after setting aside the false statement,
the affidavit’s remaining content is insufficient to establish probable cause.”
United States v. Ortega, 854 F.3d 818, 826 (5th Cir. 2017) (citing Franks v.
Delaware, 438 U.S. 154, 155–65 (1978)).
      Here, the district court held an evidentiary hearing in accordance with
Franks. There are three questions in the Franks inquiry: 1) “does the affidavit
contain a false statement?”; 2) “was the false statement made intentionally or
with reckless disregard for the truth?”; and 3) “if the false statement is excised,
does the remaining content fail to establish probable cause?” Ortega, 854 F.3d


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at 826. All three questions must be answered in the affirmative for the motion
to be granted. Id.
      It is undisputed that Mullican’s statement that Routh St was the address
associated with Glenn’s AT&T account on the date of the upload was incorrect. 6
Therefore, Glenn has satisfied the first prong. However, Glenn cannot satisfy
the second prong. Mullican testified at the hearing about her state of mind as
she was completing the affidavit. She expressed she had no doubts as to the
correctness of the Routh Street address as of August 1st and that she made an
effort to get the address correct. The district court found her testimony to be
credible and her mistake to be understandable considering the “relative[ly]
opaque nature of the AT&T records.” The district court even went so far as to
find that Mullican was not “even negligent.” We must view Mullican’s
statements in the light most favorable to the district court’s ruling and give
deference to the district court’s credibility determination; in doing so, we see
no clear error. 7
D. Daubert Challenge
      Glenn’s final argument is that the district court erred in allowing
Mullican to testify regarding the images of child pornography she found on
Glenn’s computer. Glenn raises this as a challenge under Daubert v. Merrell
Dow Pharms., Inc., 509 U.S. 579 (1993), which requires the district court to
assess “whether the reasoning or methodology underlying the testimony is
scientifically valid and . . . whether that reasoning or methodology properly
can be applied to the facts in issue.” Id. at 592–93. According to Glenn,



      6 Mullican’s statement was as follows:
             AT&T responded that during the time the file was uploaded, IP address
             99.8.79.141 was assigned to an account registered to the following
             individual: Michael Glenn, 3500 Routh Street, Dallas, Texas 75219.
             Service dates: 5-18-2016 through the date of legal process.
      7 Because Glenn has not satisfied the second Franks inquiry, we do not reach the third.

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“Mullican was not the proper witness for introduction of the exhibit[s] because
Daubert required the person who ran the program that retrieved the image to
lay the foundation for the exhibit’s admissibility.” Glenn appears to argue that
Lehman should have been the one to testify about the images on Glenn’s
computer because he was the one that imaged the hard drive and could verify
the images actually came from his laptop. Therefore, as Glenn sees it, even if
Mullican properly understood how “hash values” attach to and identify images
based on her experience at the FBI, she could not testify that the hash values
on the images she found were the same as those on Glenn’s hard drive.
         It is not clear to us that Glenn’s argument falls within Daubert, as he
seems to be faulting Mullican’s alleged lack of personal knowledge simply
because she did not run the imaging program. Regardless, our review is for
abuse of discretion. United States v. Valencia, 600 F.3d 389, 423 (5th Cir. 2010)
(“We review the admission or exclusion of expert testimony for an abuse of
discretion.”); United States v. Watkins, 591 F.3d 780, 786 (5th Cir. 2009) (“[W]e
review a district court’s evidentiary rulings for an abuse of discretion.”). We
find no abuse of discretion here, as Glenn has not adequately explained why
Mullican’s personal knowledge is insufficient, nor has he directed us to any
cases supporting his position.
                               III. CONCLUSION
         For the foregoing reasons, we AFFIRM the judgment of the district
court.




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