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Law enforcement secured a search warrant for Marmon's residence in Williston, North Dakota. During the execution of the warrant, law enforcement examined twenty devices, two computers, and an external hard drive, and ultimately seized Marmon's desktop computer and a laptop from the residence. Officers also interviewed Marmon, and he admitted that he had downloaded and viewed child pornography. A forensic examination revealed that Marmon's computers did in fact download many of the same files the law-enforcement software recorded them downloading from the P2P networks. In June 2014, a grand jury indicted Marmon on one count of receipt of materials involving the sexual exploitation of minors in violation of 18 U.S.C. 2252(a)(2) and 2252(b)(1).
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During the four-day jury trial, the United States introduced, over Marmon's objection, a compilation of portions of videos ostensibly found on Marmon's computers. Marmon contends that the Government failed to establish that the material was in fact found on his computers, and that the district court erred in allowing the jury to view the videos. Marmon also argues that the evidence adduced at trial was insufficient to convict him.
Marmon first argues that the evidence was insufficient to convict him of knowing receipt of child pornography, contending instead that the evidence established, at most, possession of child pornography. But the jury heard evidence that Marmon admitted to investigators that he had downloaded child pornography. Testimony from the investigator regarding Marmon's computer searches and the images found on Marmon's computers corroborated this confession. See United States v. Bagola, 796 F.3d 903, 907 (8th Cir. 2015) (finding that confession supported by corroborating evidence is sufficient to support a conviction). The evidence at trial was more than sufficient to support the jury's determination.
Nor did the district court err in admitting evidence of child-pornography materials found in the unallocated space on Marmon's computers. Although Marmon argues that he could not have accessed this unallocated space without specialized software, the Government's evidence established that these materials resided in the unallocated space because Marmon had tried to delete the materials from his computers before the search warrant's execution. The district court did not abuse its discretion admitting these materials.
Finally, the district court did not abuse its discretion in allowing the jurors to view a compilation of the child-pornography video excerpts found on Marmon's computers. Marmon argues that the evidence was unfairly prejudicial. But this contention, without a showing that the district court failed to weigh Rule 403's requirements, is insufficient to allow us to conclude that the admission of this evidence constituted an abuse of discretion. United States v. McCourt, 468 F.3d 1088, 1092 (8th Cir. 2006). There is no doubt that child pornography videos are inherently disturbing. But Rule 403 precludes unfairly prejudicial evidence, not merely any evidence that is detrimental to a defendant's case. United States v. Johnson, 463 F.3d 803, 809 (8th Cir. 2006). Merely because the evidence is disturbing is not reason to exclude it. McCourt, 468 F.3d at 1092. Marmon has failed to establish that the district court abused its discretion in allowing this evidence to be published to the jury.
In the summer of 2014, investigators in the Kane County Sheriff's Office discovered that an IP address was using specialized peer-to-peer software to share child pornography over the internet. They gave this information to special agents in the Department of Homeland Security, who in turn identified Bruce Niggemann as the owner of the IP address. The agents obtained and executed a search warrant at Niggemann's home in West Dundee, Illinois, seizing a laptop and a desktop computer. Both contained child pornography.
A grand jury indicted Niggemann for receipt and possession of child pornography in violation of 18 U.S.C. 2252A(a)(2)(A) and (a)(5)(B). A district judge found him guilty after a bench trial. Because he had a prior conviction for sexual abuse of a minor, Niggemann faced a mandatory minimum sentence of 15 years in prison. 18 U.S.C. 2252A(b)(1). The Sentencing Guidelines recommended a much longer term of 235 to 293 months. The judge imposed a sentence of 182 months, far below the guidelines range but slightly above the mandatory minimum.
A grand jury returned a two-count indictment charging Niggemann with receiving child pornography and possessing child pornography in violation of 2252A(a)(2)(A) and (a)(5)(B). Niggemann waived his right to a jury, and the case proceeded to a bench trial.
Niggemann argues that his sentence is grossly disproportionate because his prior sexual-abuse conviction was nearly two decades old, the present crimes involve receipt and possession of child pornography rather than active distribution, and his age means that the sentence of 15 years and two months is tantamount to a life sentence.
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