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State v. Franco

Court of Appeals of New Mexico

June 13, 2019

STATE OF NEW MEXICO, Plaintiff-Appellee,
MANUEL FRANCO, Defendant-Appellant.


          Hector H. Balderas, Attorney General Maris Veidemanis, Assistant Attorney General Santa Fe, NM for Appellee

          Bennett J. Baur, Chief Public Defender Kimberly M. Chavez-Cook, Assistant Appellate Defender Santa Fe, NM for Appellant



         {¶1} Defendant appeals his conviction, following a bench trial, of eight counts of sexual exploitation of children (distribution), contrary to NMSA 1978, Section 30-6A-3(B) (2007, amended 2016), [1] a crime commonly referred to as distribution of child pornography. On appeal, Defendant advances two arguments: (1) there was insufficient evidence to support his convictions for distribution; and (2) his convictions of multiple counts of distribution violate double jeopardy. Agreeing with Defendant's double jeopardy argument, we remand to the district court to vacate seven of the eight counts of distribution. We otherwise affirm.


         {¶2} Defendant's charges stem from his use of Ares, a peer-to-peer, file-sharing network, to access child pornography. The evidence at trial established the following. Peer-to-peer, file-sharing networks allow people to share files with others on the same network. Most of these networks, including Ares, operate on the same protocols and principles. As one of the State's witnesses testified, "To get, you have to give." While anything can be shared on these networks, they are also used to access child pornography because the networks, historically, have been subject to little oversight. More recently, law enforcement has developed software to monitor the networks.

         {¶3} Qualified as an expert in peer-to-peer investigations, Special Agent Owen Peña with the New Mexico Internet Crimes Against Children Task Force testified that he uses Roundup, a software program, in the course of his investigations. Within the Roundup program, there are different tools that monitor different networks. The program identifies Internet Protocol (IP) addresses that have files of interest, which are suspected to contain child pornography, saved in their shared folders. The files of interest are identified by hash values, [2] which are equivalent to digital fingerprints in the sense that no two files can have the same hash value. Once an IP address with a shared folder containing a file of interest is identified, the Roundup program automatically attempts to connect to the IP address. Once it connects, the program browses and downloads all files contained in the shared folder. Unlike a typical peer-to-peer program that downloads a file from multiple sources at the same time, the Roundup program used by Agent Peña only downloads from a single source-the identified IP address.

         {¶4} On August 10, 2013, Agent Peña's program identified an IP address that had files of interest in its shared folder, and the program downloaded eight files from the identified IP address. Upon review, Agent Peña confirmed the downloaded files contained child pornography. Agent Peña created a disk containing the downloaded files and all files generated by his program. Agent Peña determined that the physical address associated with the IP address was located in Loving, New Mexico, and that the internet service at that IP address was being paid for by a "Manuel Franco." {5} Agent Peña contacted Detective Sergeant Blaine Rennie with the Carlsbad Police Department to advise him of the physical address associated with the IP address. Agent Peña also sent Sergeant Rennie the disk he created. Sergeant Rennie confirmed that the identified physical address was within his jurisdiction and that the images appearing on the disk contained child pornography. Sergeant Rennie then obtained a search warrant for the physical address. {6} When law enforcement officers executed the search warrant at the residence associated with the IP address, Defendant and his mother were present. Law enforcement seized multiple items, including a desktop computer, laptop computer, and hard drive, which were sent to the Regional Computer Forensics Lab for analysis.

         {¶7} Forensic analysis revealed that more than one of the seized items contained files that matched the hash values provided by Agent Peña. Between 250 and 300 other files that matched hash values for known child pornography were identified on the items taken from the residence. The forensic analysis also identified a folder containing Ares, the peer-to-peer, file-sharing network that Agent Peña's program connected through, as well as a number of other peer-to-peer, file-sharing networks. After the forensic analysis found thousands of images consistent with child pornography, Sergeant Rennie advised that it was not necessary to identify any more images. On several of the seized items, the registered owner was identified as "Manny" and the Windows Registry for one of the items showed "Manny Franco." The defense stipulated that the identified files were child pornography and that the files came from Defendant's computers.

         {¶8} During the search pursuant to the warrant, Defendant indicated he believed the search warrant was "for pictures[, ]" and agreed to go to the police station to discuss the matter further. At the police station, Defendant expressed familiarity with peer-to-peer networks and reported he had been searching for child pornography for over five years. Defendant admitted to possessing child pornography in his shared file, but denied distributing child pornography. Defendant stated, "But, when I'm on there, when I'm connected, it's not for days or whatever. It's more like an hour or two or whatever. Then I turn it off." Defendant explained, "I'm not trying to distribute, but I'm sharing."

         {¶9} Defendant did not testify at trial, but the defense did present a witness qualified as an expert in computer forensics, Thomas Blog. Mr. Blog testified that, in preparing for this matter, he focused on the operation of the Ares program from the user's perspective. Mr. Blog reported that there are two settings that are especially relevant: (1) a default setting to start Ares when Windows starts; and (2) a default setting to not exit Ares when the program's close button is clicked. Mr. Blog explained that although an Ares user can turn off sharing, it does no good because the program automatically defaults back to sharing when it restarts. {10} Defendant argued that the passive act of not changing settings to turn off sharing was insufficient for the fact-finder to conclude, beyond a reasonable doubt, that he "intentionally distributed" child pornography as required by Section 30-6A-3(B).[3] Unpersuaded, the district court found Defendant guilty of all charged counts.


         I. Substantial Evidence Supported Defendant's Convictions for Intentional ...

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