                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-1401
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
       v.                               * District Court for the
                                        * Eastern District of Missouri.
Edward M. Stulock,                      *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: September 10, 2002

                                  Filed: October 25, 2002
                                   ___________

Before WOLLMAN, HEANEY, and BYE, Circuit Judges.
                         ___________

WOLLMAN, Circuit Judge.

       After Edward M. Stulock was convicted on one count of knowingly receiving
child pornography, the district court1 sentenced him to a term of imprisonment of 72
months. Stulock appeals his sentence, arguing that the court erred when it assessed
enhancements under the sentencing guidelines for use of a computer in connection
with the transmission or advertisement of child pornography, for obstruction of
justice, and for possession of child pornography depicting violence. We affirm.

      1
       The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.
                                            I.

        In 1999, federal and state law enforcement officers raided a company engaged
in distributing child pornography on the internet. Using a list of customer names and
email addresses recovered from that company, the agents emailed offers to sell
pornographic materials to Stulock and many other individuals included in the list.
Stulock responded to the offer with a request for a list of materials containing “mostly
girls, age 7-14, hardcore.” After receiving a list of videos, Stulock mailed a personal
check in payment for a videotape entitled “No Way,” described as “Daddy fucks 10
year old daughter.” Federal agents made a controlled delivery of the tape and shortly
thereafter executed a search warrant. During the search of Stulock’s home, the agents
found the tape hidden in a bedroom closet and seized a personal computer.

       Examination of Stulock’s computer revealed evidence of his involvement with
child pornography. Numerous images of children younger than 18 engaged in sexual
acts were recovered from several locations on the computer. In addition, the web
browser history indicated that Stulock had visited several web sites having names
associated with child pornography, including www.hairless-lolita.com,
www.preteenlinks.com, www.littlepussy.com, www.peachfuz.com, and
www.lolitahardcore.com.

       The agent who examined the computer explained to the district court that when
a computer file is deleted, the contents of the file are not irretrievably lost. The space
occupied by the file is flagged as available, and until new data is stored in that
location the deleted file can be recovered using an undelete tool. In addition to the
contents of the file, information about when the file was created, last modified, and
last accessed can be recovered. Thousands of previously deleted files were recovered
from the temp directory on Stulock’s primary hard disk and from a secondary hard
disk designated by the computer as the F drive. The temp directory is where a

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program such as an image viewer or a word processor will store a duplicate of a file
that is opened for use. Any changes are made to the copy and only applied to the
original when the user saves the file. The copy in the temp directory is deleted when
the user closes the file. More than 3,000 deleted files were recovered from the temp
directory, including numerous examples of child pornography. Stulock’s computer
was configured to use the temp directory as the location where downloaded files that
had been packaged in the ZIP file format would be stored. A ZIP file can contain
hundreds of images or other files, thus allowing a user to download many files
without having to save each one individually. Thus, the presence of an image in the
temp directory indicated that Stulock had either purposely downloaded the image in
a ZIP file or had opened an image stored elsewhere on the disk using a viewer that
created a temporary copy. Among the 1,007 deleted files recovered from the F drive
were three identified as portraying a minor female in bondage. Three images were
located in the internet browser cache. The browser cache contains images
automatically stored by the computer when a web site is visited so that upon future
visits the images need not be downloaded again, thereby improving the response time.
Unlike the other files recovered, the images in the browser cache had not been deleted
and then recovered.

       Stulock was charged with knowingly receiving child pornography in violation
of 18 U.S.C. § 2252A(a)(2) and knowingly possessing child pornography in violation
of § 2252A(a)(5)(B). After a bench trial, Stulock was convicted of knowingly
receiving the child pornography videotape, but he was acquitted on the charge of
knowingly possessing child pornography. The possession charge specified only the
images found in the browser cache. The district court explained that one cannot be
guilty of possession for simply having viewed an image on a web site, thereby
causing the image to be automatically stored in the browser’s cache, without having
purposely saved or downloaded the image.




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                                            II.

       In sentencing guidelines cases, we review the district court’s findings of fact
for clear error and its interpretation of the guidelines and their application to the facts
de novo. United States v. Hunt, 171 F.3d 1192, 1195-96 (8th Cir. 1999). The district
court applied three sentencing enhancements resulting in a combined increase of 8
levels. Stulock appeals the application of each of these enhancements.

       First, Stulock argues that the enhancement for use of a computer in connection
with the transmission or advertisement of child pornography was improper because
his use of a computer was peripheral to his receipt of a video in the mail. U.S.S.G.
§ 2G2.2(b)(5) provides for a two-level enhancement “[i]f a computer was used for the
transmission of the material or a notice or advertisement of the material.” Stulock
argues that the enhancement does not apply because he used his computer to receive
rather than to send a “notice or advertisement.” We find the analysis in United States
v. Richardson persuasive. 238 F.3d 837 (7th Cir.), cert. denied, 532 U.S. 1057
(2001). The Richardson court noted that the guidelines provide increased punishment
for use of the internet in the child pornography trade because the increased efficiency
and anonymity make both senders and receivers of this material more dangerous. Id.
at 842. Section 2G2.2(b)(5) is not limited to computer use by the defendant, as is the
section governing possession of child pornography, § 2G2.4(b)(3). Id. at 841. Like
the Richardson court, we conclude that § 2G2.2(b)(5) applies to a defendant who
receives child pornography that he received a notice or advertisement of through his
use of a computer as well as to a defendant who uses a computer to advertise child
pornography.

      An undercover officer used a computer to transmit an advertisement of the
material to Stulock. Stulock received this advertisement via computer. All details
of the transaction were negotiated through email. Only the final payment and
delivery were, of necessity, accomplished through the postal service. Accordingly,

                                           -4-
we find no error in the district court’s findings of fact or its application of §
2G2.2(b)(5).

       Second, Stulock argues that the district court erred in applying a two-level
enhancement for obstruction of justice. An obstruction of justice enhancement for
perjury is a finding of fact that we review for clear error. Hunt, 171 F.3d at 1196. A
defendant who willfully gives false testimony under oath regarding a material matter
has committed perjury and is subject to a § 3C1.1 enhancement. United States v.
Titlbach, 300 F.3d 919, 923-24 (8th Cir. 2002). After a review of the evidence, the
district court must make an “independent finding, by a preponderance of the
evidence, of perjury.” United States v. Thomas, 93 F.3d 479, 489 (8th Cir. 1996).
The district court found that Stulock perjured himself when he testified under oath
that although he had ordered child pornography, specifically asking for girls aged 7
to 14, he did not believe that he would receive child pornography. Stulock testified
that in his experience searching the internet for pornography, his use of terms
describing minor females often returned the material he sought, material involving
younger adult women and somewhat older men. Characterizing Stulock’s answers
as “clearly phony,” the district court stated specifically: “I believe the defendant was
committing perjury.” Given the weight of evidence against Stulock and the district
court’s superior position from which to judge credibility, we hold that the district
court did not clearly err in finding that Stulock had committed perjury.

       Finally, the district court applied a four-level relevant conduct enhancement
pursuant to U.S.S.G. §§ 1B1.3 and 2G2.2(b)(3) based upon Stulock’s possession of
child pornography images depicting violence. Among the thousands of images of
child pornography recovered from Stulock’s computer, three of the files recovered
portrayed a minor female in bondage held against a nude male who was holding a
whip. Stulock does not dispute that these images are violent within the scope of §
2G2.2(b)(3). He contends that his possession of these images was not in the same
course of conduct as his receipt of the video, the offense of which he was convicted.

                                          -5-
The Seventh Circuit considered and rejected a similar challenge in United States v.
Ellison, 113 F.3d 77 (7th Cir. 1997), in which the defendant’s sentence for receipt of
a video containing child pornography was enhanced due to his contemporaneous
possession of magazines containing violent child pornography. “Specific offense
characteristics” as used in § 2G2.2(b) include “all acts and omissions committed . . .
by the defendant . . . that occurred during the commission of the offense of
conviction.” U.S.S.G. § 1B1.3(a); Ellison, 113 F.3d at 83.

       The agent who examined Stulock’s computer testified that the files he
recovered had modification dates between August 2000 and November 2000. Stulock
received the initial email from the undercover agent in July 2000 and placed his order
for the videotape on November 22, 2000. Stulock presented evidence regarding
aggressive internet porn sites that use pop-ups and other techniques to place material
on a computer without the user’s knowledge or consent. Although this could account
for some of the material, viewing the evidence as a whole, we cannot say it was clear
error to find that Stulock’s possession of images containing violent child pornography
was an act committed during his search for and receipt of the child pornography video
that was the basis of the charged offense.

      Affirmed.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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