UNITED STATES of America, Plaintiff-Appellee, v. John Ray Edward TERRELL, also known as John Ray Terrell, Defendant-Appellant.
No. 11-50602.
United States Court of Appeals, Fifth Circuit.
Nov. 5, 2012.
700 F.3d 755
AFFIRMED.
Joseph H. Gay, Jr. (argued), Mark Randolph Stelmach, Asst. U.S. Attys., San Antonio, TX, for Plaintiff-Appellee.
Catherine Michelle Ferguson-Gilbert (argued), Howard, Gilbert & Smith, Copperas Cove, TX, for Defendant-Appellant.
Before BENAVIDES, OWEN and SOUTHWICK, Circuit Judges.
PER CURIAM:
FACTUAL AND PROCEDURAL BACKGROUND
On June 12, 2007, a federal indictment charged Defendant-Appellant Terrell with producing child pornography in violation of
Following the initial search, John Terrell went to his father‘s home to hide weapons he knew were on the property. John Terrell had access to his father‘s home because he assisted his father in his father‘s business. In attempting to hide a gun in a concealed compartment, John Terrell discovered a laptop located therein. John Terrell discovered pornographic images of ST on the computer, as well as other child pornography. He informed police, who performed a second search and seized the laptop. John Terrell also provided the police with a second laptop he recovered from a trailer on the property.
In 2005, police learned that Defendant-Appellant Terrell had fled the country. The police located him in Ecuador and he was arrested in September 2010. He was thereafter returned to the United States and placed in the custody of United States marshals at the airport.
At trial, John Terrell identified the location of the photos as Defendant-Appellant Terrell‘s bedroom. He testified that he, John Terrell, had not taken the photographs or put those photographs on the laptop. He further testified that he did not use Defendant-Appellant Terrell‘s laptops prior to discovering them. ST testified about the photographs, identifying herself therein and Defendant-Appellant Terrell as the photographer. She further testified that she had asked Defendant-Appellant Terrell about the photographs
At the close of the prosecution, Defendant-Appellant Terrell moved for a judgment of acquittal, which the district court denied. A jury convicted Defendant-Appellant Terrell on both counts. The district court sentenced Defendant-Appellant Terrell to 360 months of imprisonment on Count One and 120 months of imprisonment on Count Two, the sentences to be served consecutively. This timely appeal followed.
ANALYSIS
Defendant-Appellant Terrell raises a number of challenges to his conviction. First, he argues that the government must, and did not, show that he knew or should have known the laptop which contained the images of ST traveled in interstate commerce. Second, he argues that the district court wrongly denied his motion for acquittal because there was no evidence that he transferred the images of ST to the laptop, and that a jury instruction stating the government did not need to prove the identify of the individual who placed the images on the computer was erroneous. Third, he argues that the government introduced insufficient evidence to show he knowingly possessed child pornography. For the reasons stated below, his arguments are unavailing.
I. Knowledge of Interstate Commerce
First, Defendant-Appellant Terrell argues that the district court erred in denying his motion for acquittal because the government failed to introduce evidence showing that he knew or should have known that the pornographic images of ST were produced on a camera or computer that traveled in interstate commerce. The government argues that it is not necessary to prove knowledge of this particular interstate commerce element under
Under
[(a)] if such person knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce or mailed, [(b)] if that visual depiction was produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer, or
[(c)] if such visual depiction has actually been transported in interstate or foreign commerce or mailed.
Id. The Defendant-Appellant argues that the knowledge element—“knows or has reason to know“—applies to each of the three possible ways that the element can be satisfied.1
Nevertheless, the more natural reading of this statute is that knowledge must be proven only as to the first jurisdictional hook. See Flores-Figueroa v. United States, 556 U.S. 646, 652 (2009) (“The manner in which the courts ordinarily interpret criminal statutes [should be] fully consistent with ordinary English usage.“); see also United States v. Betancourt, 586 F.3d 303, 308-09 (5th Cir. 2009) (applying Flores-Figueroa and adopting a “common-sense, natural reading” of a statute). Here, the statute‘s repetition of “if” indicates that each clause following the “if” is distinct. The phrase “knows or has reason to know” follows the first “if,” implying that the phrase is only to be applied to the first clause and not to the latter two. Finally, the use of the disjunctive “or” further indicates that the “knows or has reason to know” applies only to the first item in the list.
The Defendant-Appellant cites no authority for his argument that the “knowledge” requirement applies to all three jurisdictional elements, and indeed, an identical argument was rejected by the Eleventh Circuit. In United States v. Smith, the Eleventh Circuit stated that the “most natural reading of this provision” is that “[o]nly the first basis for jurisdiction requires any proof of mental state.” See id. at 1289.
Moreover, and importantly, courts have been consistent in not applying the mens rea of statutes to federal jurisdictional elements, unless the language of the statute requires such a result. For example, in United States v. Yermian, in a prosecution for making false statements to a federal officer in violation of
Accordingly,
II. Transferring Images to the Computer (Count One)
Next, Defendant-Appellant Terrell presents a pair of arguments related to his conviction under Count One for sexual exploitation of a child, under
1. Motion for Acquittal
First, the Defendant-Appellant argues that the district court erred in denying his motion for acquittal because there is insufficient evidence showing that he produced or reproduced the images of ST using materials that traveled in interstate commerce. He argues that the government failed to show that the camera used to take the photos traveled in interstate commerce and that the government also failed to prove that he was the person who reproduced the images on his laptop. In response, the government argues that it is unnecessary under
The Court reviews a district court‘s denial of a motion for acquittal de novo. Bennett, 664 F.3d at 1011-12. On motion of a defendant, a court “must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.”
As described above,
[(a)] if such person knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce or mailed, [(b)] if that visual depiction was produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer, or [(c)] if such visual depiction has actually been transported in interstate or foreign commerce or mailed.
Similar to the phrase “knows or has reason to know,” the phrase “such person” appears only in the first clause. Accordingly, the same reading that compels the conclusion that “knows or has reason to know” does not apply to the final two clauses also compels the conclusion that “such person” similarly applies only to the first clause, and not the latter two. Accordingly, the language of the statute indicates that there is no requirement that the individual who directs the minor be the same person who produces the image on the item that has traveled in interstate commerce.
In an unpublished case, the Sixth Circuit adopted a similar position while evaluating
Nevertheless, even under the Defendant-Appellant‘s interpretation of the statute—where the defendant who exploited the child must also be the person who produced the images on the computer—at the time of the defendant‘s motion, a “reasonable trier of fact could have found that the evidence established the essential elements of the crime beyond a reasonable doubt.” Ortega Reyna, 148 F.3d at 543. The Defendant-Appellant does not seriously contest that the government proved that he persuaded and coerced ST into sexually explicit conduct for the purpose of producing visual depictions of that conduct.3 Nor does he dispute that the laptop
Although ownership alone is not sufficient to prove that the Defendant-Appellant transferred the images to the laptop, there is no evidence in the record showing that any other individuals had access to the computer in 2003 when the images of ST were indisputably stored on his computer. Compare United States v. Winkler, 639 F.3d 692, 695-701 (5th Cir. 2011) (affirming conviction for possession of child pornography where there was no evidence of third-party access and where circumstantial evidence supported finding that defendant knowingly possessed images), with United States v. Moreland, 665 F.3d 137, 151-54 (5th Cir. 2011) (reversing conviction for possession of child pornography where evidence showed a third party accessed computer around time of pornography download). It is undisputed that the laptop belonged to Defendant-Appellant Terrell and that it was found hidden under a bookshelf in an area he had control over. The laptop was registered solely to Defendant-Appellant Terrell, and there is no evidence in the record showing that anyone else ever had access to the laptop, aside from John Terrell when he found it and contacted the police. John Terrell also testified that he had seen the Defendant-Appellant using the laptop.
The strongest evidence in favor of the jury‘s verdict is ST‘s testimony, which is corroborated by the forensic evidence. During her testimony, ST stated that the Defendant-Appellant told her soon after he took pictures of her in the summer of 2003 that she should not worry because he had deleted them. According to the forensic examiner, the images of ST were placed in the laptop‘s trash folder on June 7, 2003. Again, the Defendant-Appellant offers no explanation for how the images of ST, which ST testifies that he took, ended up on his laptop computer within days of him taking the photos, and how he would know the items had been deleted, if he had not transferred the photos and deleted them himself. Although John Terrell had access to both laptops during the period between finding them and returning them to the Defendant-Appellant‘s house, the images of ST had been transferred nearly a year earlier. Further, John Terrell testified that he did not take the images of ST or transfer them to the computer, and that he found the images of ST on the computer. It is pure speculation to think that John Terrell put the images on the computer. See Faulkner, 17 F.3d at 768 (stating that the evidence need not exclude every hypothesis of innocence). The jury seemingly rejected this argument in convicting Defendant-Appellant Terrell on Count Two for possession of child pornography, and it would be reasonable to think that the jury would have rejected the argument as to Count One as well. See United States v. Pruitt, 638 F.3d 763, 767 (11th Cir. 2011) (jury free to reject alternative reasons for presence of child pornography on computer); United States v. Kain, 589 F.3d 945, 949-50 (8th Cir. 2009) (affirming conviction although testimony showed that a Trojan virus may have been
Other evidence found on the Defendant-Appellant‘s laptop computers and in his desk supports the conclusion that the Defendant-Appellant transferred the images of ST. As explained later, the evidence supporting Count Two—possession of child pornography—is very strong, and the fact that the Defendant-Appellant transferred those other images of child pornography to his laptops increases the likelihood that he also transferred the images of ST. See United States v. Grimes, 244 F.3d 375, 378-84 (5th Cir. 2001) (stating that other evidence of sexual interest in children is “highly relevant” to guilt in prosecution under Section 2251(a), but denying admission of evidence due to prejudice); United States v. Wilder, 526 F.3d 1, 6-10 (1st Cir. 2008) (discussing how evidence that defendant used computer for other child pornography-related conduct increased likelihood that defendant knowingly possessed images on computer). The first laptop contained an additional 751 images of child pornography, beyond those of ST, and it had also visited 283 websites marketing child pornography. The second laptop also contained 137 images of child pornography and it had visited a large number of websites marketing child pornography. Finally, a floppy disk found in the Defendant-Appellant‘s desk contained letters written by the Defendant-Appellant and files referring to child pornography. Thus, the evidence strongly pointed to the Defendant-Appellant using his computers to store other images of child pornography.
Accordingly, the Court finds that
2. Jury Instructions
Second, the Defendant-Appellant argues that the district court erred by instructing the jury in response to the jury‘s third note (“Jury Note 3“) that the government did not need to prove who produced the images of ST found on the laptop computer. Because the Court finds that the statute does not require that Defendant-Appellant Terrell have produced the images to the laptop, the Court finds no error in the district court‘s response to Jury Note 3.5
Finally, Defendant-Appellant Terrell offers two arguments related to his conviction in Count Two for possession of child pornography, under
1. Motion for Acquittal
Count Two of the indictment charges Defendant-Appellant Terrell with possession of child pornography in violation of
The Defendant-Appellant argues that the district court erred in denying his motion for acquittal on this count. This Court reviews the district court‘s denial of a motion for acquittal de novo, Bennett, 664 F.3d at 1011-12, and “all evidence, whether circumstantial or direct, [is viewed] in the light most favorable to the [g]overnment[,] with all reasonable inferences to be made in support of the jury‘s verdict,” Moser, 123 F.3d at 819.
As to the elements of the crime, first, it is not disputed that the images on the computer were of child pornography, or that a person viewing those images would understand them to be child pornography. Second, Defendant-Appellant Terrell concedes that the government proved the jurisdictional nexus because it showed that the images were downloaded from the internet or were contained on a computer that traveled in interstate commerce. The evidence indicates that many—if not all—of the images (with the exception of those of ST) were downloaded from the internet, which is sufficient to satisfy the jurisdictional requirement. See Runyan, 290 F.3d at 239 (holding that transmission of images over the internet satisfies interstate com-
Therefore, the only disputed element is whether Defendant-Appellant Terrell “knowingly possessed” the images of child pornography that were found on his laptop computers. As explained by this Court in Moreland when analyzing Section 2252(a)(5)(B), the term “knowingly possesses” is interpreted based on its “ordinary, everyday meaning.” See 665 F.3d at 141-42. “Possession [of child pornography] may be either actual or constructive.” Id. at 149. Because the Defendant-Appellant did not have actual possession of the images, the government must show constructive possession. Id. at 150. “Constructive possession is the ownership, dominion or control over an illegal item itself or dominion or control over the premises in which the item is found.” Id. at 150. Where a residence is jointly occupied—as here—the discovery of contraband alone is insufficient to prove possession, and instead, the government “must present additional evidence of the defendant‘s knowing dominion or control of the contraband, besides the mere joint occupancy of the premises, in order to prove the defendant‘s constructive possession.” Id. at 150. Thus, as Moreland explains, “[a] conviction based upon constructive possession will be upheld only where the prosecution has proven that there is something else (e.g., some circumstantial indicium of possession) [] besides mere joint occupancy that supports at least a plausible inference that the defendant had knowledge of and access to the [] contraband.” Id. at 150.
Here, that standard is plainly met. The laptop computers were found in an area over which Defendant-Appellant Terrell had control and a number of pieces of circumstantial evidence indicate that his possession was knowing. The first laptop contained 751 images of child pornography in an encrypted zip folder, four naked photos of ST that had been moved to the trash folder in June 2003, and an internet browser history showing that the computer had visited 283 websites that market or sell child pornography. The second laptop contained 137 images of child pornography, many of which contained website addresses on them, and the internet history on that computer also showed that it had browsed a large number of websites advertising or selling child pornography.
The first laptop was registered only to Defendant-Appellant Terrell and the second laptop was registered to him, to his wife, and to John Terrell (his son). John Terrell testified that both laptops belonged to the Defendant-Appellant and other evidence supported this assertion. John Terrell testified that he had seen the Defendant-Appellant using the first laptop and that he had helped the Defendant-Appellant purchase the second laptop online many years earlier. There is no evidence in the record that other individuals ever used these laptops or exercised any control over them, aside from John Terrell when he discovered them in 2004.
Again, the only factual argument that Defendant-Appellant Terrell offers is speculation that John Terrell actually was responsible for downloading all of the images of child pornography to his computer. He also argues that because John Terrell
John Terrell indisputably had access to both laptops during the period between finding them and the police instructing him to return them to the Defendant-Appellant‘s house. John Terrell testified, however, that he placed no child pornography on the computers and that he did not take the images of ST or transfer them to the computer. Further, he testified that the computers already contained the images of child pornography when he found them, including the images of ST. It is pure speculation that John Terrell put the images on the computers, and the jury was entitled to credit John Terrell‘s testimony that he found the files on the computer. See Sanchez, 961 F.2d at 1173. It seems highly unlikely that John Terrell could have visited hundreds of child pornography websites on the Defendant-Appellant‘s computer, even taking into account of the time the computers were in his possession in 2004. Indeed, it is even more unlikely that he would do so, and then voluntarily turn the laptops into police after the police failed to locate them during their initial search of the property. The jury was free to disregard such a hypothesis.7
Additionally, software had been installed on the first laptop that cloaked the internet history, which shows that Defendant-Appellant Terrell was attempting to prevent other people from seeing his internet activity. Testimony at trial indicated that such software is common among individuals who view child pornography and that it is often available for download on websites that sell child pornography. Similar software has been held to support an inference that a defendant has knowledge of the existence of child pornography on his computer. See United States v. Bass, 411 F.3d 1198, 1202 (10th Cir. 2005) (existence of file scrubbing programs supported conviction); United States v. Koegel, 777 F. Supp. 2d 1014, 1022 (E.D. Va. 2011) (same).8
One of the strongest pieces of evidence is the fact that ST testified that Defendant-Appellant Terrell molested her and took the photos of her that were found on his first laptop. This establishes two important points. First, as discussed above, it is almost impossible to think that the Defendant-Appellant was not responsible for transferring the images to his personal laptop given that ST testified he took them. Second, it establishes that he is sexually interested in children, increasing the likelihood that the other pictures on the laptops were his. Both this Court and others have held that evidence showing that a defendant previously committed sexual crimes against children is relevant in a case where a defendant is charged with a sexual crime against a child. See United States v. Goff, 155 F. App‘x 773, 776 (5th Cir. 2005) (admitting evidence showing defendant had a “knowing interest in child pornography” to support conviction for possession of child pornography due to its probative value); United States v. Julian, 427 F.3d 471, 485-88 (7th Cir. 2005) (admitting evidence of prior sexual assault crimes against minor due to its probative value in sex trafficking prosecution); United States v. Carter, 410 F.3d 1017, 1022 (8th Cir. 2005) (admitting evidence of prior sexual crime against minor in prosecution for sexual assault on a minor); United States v. Bentley, 475 F. Supp. 2d 852, 858 (N.D. Iowa 2007) (explaining that evidence of “sexual interest in children” is highly relevant to determining propensity to commit other sex crimes against children).
Also supporting the verdict was other evidence found in Defendant-Appellant Terrell‘s house. In his desk, police officers found a floppy disk containing a number of business letters written by the Defendant-Appellant, as well as additional files referring to child pornography. This evidence further supports the view that the Defendant-Appellant is sexually interested in children and has an interest in child pornography.
Finally, Defendant-Appellant-Terrell fled the country in 2005, and was not taken into custody until 2010. This Court has previously held that evidence of flight creates an inference of guilt. See United States v. Templeton, 624 F.3d 215, 225 (5th Cir. 2010) (stating that evidence of flight is admissible and probative as to guilt); United States v. Lopez, 979 F.2d 1024, 1030 (5th Cir. 1992) (although flight insufficient alone “to support a guilty verdict, it is relevant and admissible“).
The evidence in this case is much stronger than in Moreland, where this Court found that there was insufficient evidence showing that the defendant had knowledge of the images of pornography found on his computer. In that case there was strong evidence that another individual had accessed the images using the defendant‘s email account, and there, all of the images were deleted and stored in a way that made them inaccessible. See Moreland, 665 F.3d at 151-52 & n. 7. These facts raised the strong possibility that another individual downloaded and deleted the images without the defendant ever knowing of their presence on his computer. See id.; see also United States v. Kuchinski, 469 F.3d 853, 862 (9th Cir. 2006) (overturning conviction where there was no evidence defendant knew images were saved in internet cache). By contrast, the images of ST were in the trash can on the desktop and the other images were stored in an encrypted zip folder. Both of these file types indicate that Defendant-Appellant Terrell was aware of the presence of the images—for example, he would have needed to encrypt the zip file and the images of ST had been manually deleted. See Winkler, 639 F.3d at 699 (ruling that similar evidence of manually hiding pornographic files supported finding that receipt and possession were knowing).
On appeal, we must take all of the facts in a light most favorable to the jury‘s verdict. Moser, 123 F.3d at 819. In light of the facts stated above, there is sufficient evidence of guilt to reject the Defendant-Appellant‘s argument. See United States v. McArthur, 573 F.3d 608, 614-15 (8th Cir. 2009) (holding that a jury‘s verdict should not be disturbed where it chooses one plausible scenario for how child pornography was downloaded onto computer).
2. Jury Instructions
Lastly, the Defendant-Appellant argues that the district court‘s response to Jury Note 3 was an incorrect jury instruction as to Count Two. This argument is meritless. The jury‘s note expressly limited itself to Count One, and the question and district court‘s answer had nothing to do with Count Two. Thus, it is pure specula-
CONCLUSION
For the reasons stated above, the judgment of the district court is
AFFIRMED.
No. 11-60396.
United States Court of Appeals, Fifth Circuit.
Nov. 6, 2012.