RICHMOND, Va. – A Fairfax County, Virginia man jailed for possessing child pornography can reexamine computers tied to the case in an effort to show his father was the real collector of the material, a federal judge ruled.
At the time of his 2012 arrest, Robert Fenn lived at home with his parents and a brother, and worked as a special education teacher at the Poplar Tree Elementary School in Chantilly, Virginia.
The charges against him stemmed from a search of his home by the Department of Homeland Security in which suspected child pornography was found on several computers in the home, as well as on two portable hard drives.
During a subsequent interview, Fenn admitted that he downloaded and viewed Hentai images – basically porn featuring animated characters — and images of girls ages nine to 14. But he steadfastly denied any knowledge of child pornography.
Fenn was convicted of one count of receipt of child pornography and one count of possession of child pornography and sentenced to 120 months in prison on each count (to run concurrently), and a 20-year term of supervised relief.
Since then, he has repeatedly appealed his conviction and filed motions for a new trial, all to no avail.
But as time has gone on, Fenn has argued, compelling “evidence” has emerged that suggests his father may have been the individual who downloaded the child porn.
The court documents note that “although agents found the Acer Desktop in Petitioner’s bedroom, other witnesses testified that the Acer Desktop was located in the basement of the residence from 2010 to June of 2012, where the father spent a lot of time alone working on his electronics and HAM radio.”
Then, in February 2014, Fenn claims, he learned that his father “had sexually abused his stepdaughters when they were the same age as the children depicted in the child pornography files at issue in the prosecution.”
Still his motions for a new trial were denied.
But something very different happened with his latest pair of motion – one seeking to vacate, set aside or correct his sentence, and the other an instant motion for discovery.
In his motions, Fenn claimed he received ineffective representation during his first trial, and asked that his new counsel be able to copy, analyze, or otherwise inspect the seized computer equipment.
Fenn argued that such an examination – particularly of the Acer desktop computer is “critical’ because at trial, the Government ‘sought to exclude William and John Fenn as suspects by proving they were elsewhere during the times the Acer indicated that child pornography was accessed.”
Fenn contended that the analysis would also reveal whether anonymous logins were the source of the child pornography. He also sought an examination of his father’s Toshiba laptop, which contained suspected child pornography, “to determined if further evidence exists linking him to the confirmed pornography found on the Acer.”
On June 23, U.S. District Judge James Cacheris held that “Based on these specific allegations, Petitioner has demonstrated good cause for discovery and has given the Court reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is entitled to relief.”
“Petitioner’s ineffective assistance of counsel claim is based, in part, on the allegation that trial counsel failed to secure an independent forensic expert to analyze the computer media at issue … This is not a fishing expedition, as the Government contends,” Cacheris wrote. “Instead, Petitioner’s request is narrowly tailored to a forensic examination of the four computer media at issue.”
The judge concluded: “Ultimately, Petitioner shoulders a heavy burden in seeking to vacate his judgment of conviction. For the foregoing reasons, the Court will grant the motion for limited discovery as to only the computer media at issue.”
Fenn’s appeal is handled by James W. Hundley and Erin L. Blanch of Briglia Hundley of Vienna, Va., who did not immediately respond to a request for comment from Courthouse News.
The U.S. Attorney’s Office declined to comment on the ruling.