UNITED STATES оf America, Plaintiff-Appellee, v. Keith MORELAND, Defendant-Appellant.
No. 09-60566
United States Court of Appeals, Fifth Circuit
Dec. 14, 2011
665 F.3d 137
Under plain error review, we have previously held a supervised release condition precluding the possession of “sexually oriented or sexually stimulating materials” was not impermissibly vague.116 We stated that “a commonsense reading of the special condition” “compels us to disagree with defendants’ suggestion that the condition could apply to newspapers and magazines that contain lingerie advertisements or even to the ‘Song of Solomon.‘”117 That commonsense reading would be required even if we reviewed a preserved objection. As we noted in United States v. Paul, reviewing for abuse of discretion, “categorical terms can provide adequate notice of prohibited conduct when there is a commonsense understanding of what activities the categories encompass.”118 Indeed, “while a probationer ‘is entitled to notice of what behavior will result in a violation, so that he may guide his actions accordingly . . . [c]onditions of probation ‘may afford fair warning even if they are not precise to the point of pedantry.‘”119
Even were there no precedent in this circuit to guide us, we cannot say that the law in this area is clear when we consider decisions of other circuit courts.120 The district court did not plainly err in imposing the challenged condition.
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We AFFIRM.
Julie Ann Epps (argued), Canton, MS, for Defendant-Appellant.
Before JOLLY, DeMOSS and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
The defendant-appellant, Keith Moreland (“Keith“), was convicted by a jury of knowing possession of child pornography,
Keith appeals his conviction. He argues that the evidence was insufficient to rationally support a jury in finding beyond a reasonable doubt that he, rather than George or another person, knowingly possessed the 112 images found on the two computers. After viewing all of the evidence in the light most favorable to the guilty verdict, we conclude that no reasonable jury could find beyond a reasonable doubt that Keith had (1) knowledge that the 112 images were in the computers; or (2) possession of the images, that is, the power and ability to access and exercise dominion or control over them. Thus, we are required to reverse the district court‘s judgment of conviction.
I. Background of Law and Computer Technology
The “exploitive use of children in the production of pornography has become a serious national problem.” New York v. Ferber, 458 U.S. 747, 749 (1982). In Ferber, the Supreme Court held that child pornography is distinguishable from other sexually explicit speech. Child pornography is not protected by the First Amendment because the State has a “compelling” interest in safeguarding the well-being of minоrs. Id. at 756-57. “The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.” Id. at 757,
The state‘s power to criminalize child pornography and to prosecute individuals for possession of child pornography is not unlimited. See Ferber, 458 U.S. at 764 (noting that “[t]here are . . . limits on the category of child pornography which . . . is unprotected by the First Amendment“). “As with obscenity laws, criminal responsibility [for child pornography] may not be imposed without some element of scienter on the part of the defendant.” Id. at 765.
Keith was convicted of the knowing possession of child pornography in violation of the federal Protection of Children Against Sexual Exploitation Act,
Although the Supreme Court upheld a prohibition against both possessing and viewing child pornography, see Osborne, 495 U.S. at 110, at the time of Keith‘s offense, the federal statute and the majority of state statutes criminalized “knowing possession,” but not mere “viewing,” of child pornography.1 The term
Child pornography can be distributed digitally over the internet and personal computers. As child pornographers have become more tech savvy, so have law enforcement officers and prosecutors. With the assistance of forensic software, a skilled investigator can recover data from a computer that the user thought was deleted or never even knew existed. In order for investigators, prosecutors, and courts to properly analyze such evidence in the context of a criminal prosecution for the knowing possession of child pornography, they must have a basic understanding of how individual computers and the internet interrelate and work. The major parts of a computer that come into play in a typical case are its cache, its temporary internet files, and its unallocated slack spacе.2
When a computer user views a webpage, the computer automatically stores a copy of that webpage in a folder known as the cache. Ty E. Howard, Don‘t Cache Out Your Case: Child Pornography Possession Laws Based on Images Located in Temporary Internet Files, 19 Berkeley Tech. L.J. 1227, 1229-30 (2004). The copy is retained in a file called a temporary internet file. When the user revisits that webpage, the computer can load the page more quickly by retrieving the version stored in the cache. Id. at 1230. The computer automatically deletes temporary internet files when the cache—which has limited storage space—becomes full. Once full, the computer begins to delete the files on a “first in, first out” basis. Note, Child Pornography, The Internet, and the Challenge of Updating Statutory Terms, 122 Harv. L.Rev. 2206, 2212 (2009). Users also may manually delete files from the cache, or use commercial software to remove the files. Id.
Deleted files are not wholly removed from the computer. A deleted file is
Investigators may also utilize index.dat files in prosecuting child pornography cases. The index.dat file is a record of all visited websites, as well as the date and time that the site was last visited. Howard, supra, at 1235 n. 26.
II. Factual Background
A.
Keith Moreland lived in a house in Columbus, Mississippi with his wife Deanna and their three children. In 2007, George Moreland, Keith‘s father, who was dying of cancer, stayed at Keith and Deanna‘s house for several months, off and on, sleeping on the living room couch. There were two computers in the house: a desktop, located in the living room, and a laptop. Keith, Deanna, and George each had free access to and consistently used both computers. According to Deanna, George regularly used both computers, including late at night and at other times when Keith and Deanna were absent or not in the living room.
On September 28, 2007, Deanna was using the desktop computer and noticed a URL (an internet address) in the web browser‘s history which contained the words “Teen Topanga.” She testified that she clicked on it and found what appeared to be a pornographic website, where she saw pictures of “girls” who “appeared to be underage” and were “dressed, you know, very provocative” but were not nude. Deanna then found the same URL in the web browser history on the laptop computer as well.
Deanna was upset and called Keith, who was at work, to tell him what she had found. Keith was a supervisor at a company called American Eurocopter, where he regularly worked 10-to-12-hour days and was “responsible for the planning and outlay of work programs throughout the day,” and had “about 14 to 16” employees working under him. According to Deanna, Keith “didn‘t really seem alarmed at all” and “said, well, you know, I haven‘t looked at anything like that. I don‘t know how it got there. We‘ll talk about it when I get home.” Keith worked late that day, as he often did.
After speaking with Keith, Deanna called the sheriff‘s department. She testified that a friend of hers had suggested that she call the police. The deputy who came to the house asked Deanna to turn the two computers over to the police, and she did so. She also decided to pack a few things and take the children to her parents’ house, because she expected to have a heated argument with Keith when he came home from work, and did not like to argue in front of the children. Deanna
In January 2008, Keith‘s father, George, died. Subsequently, on May 27, 2008, Keith was charged with possessing child pornography in violation of
B.
The trial took place on January 6 and 7, 2009. At trial, the government introduced and displayed to the jury slide photos of 112 digital images that had been taken from the hard drives of the Moreland household‘s two computers. The jury was given only 3 to 5 seconds to view each of these images. At the time the images were shown, the jury had not been given any instruction as to the legal definition of child pornography. After the jurors were later instructed, they did not again view the images or expressly determine which images were child pornography.
The government relied upon Matthew Manley, a Columbus, Mississippi police officer, to examine the Morelands’ two home computers and testify as to his findings. He was not offered, qualified, or accepted as an expert in child pornography or in forensic computer technology. He testified that he had received 160 hours in computer training and was serving as a computer investigator for the city police department. Manley said that hе could only testify as to the facts of what he found on the Morelands’ two computers. Because of the lack of information in the computers, Manley said he could not testify as to where the images had come from, when they were received or deleted, or who was operating the computer at those times; also, he testified that he could not express an opinion as to whether any particular image was child pornography.
Manley testified that he performed a forensic examination of the computers using software called Forensic Toolkit (FTK). He used FTK to process the data on the computers’ hard drives, and to look for and recover deleted files. He recov-
Manley also testified in respect to the computers’ index.dat files, which reflected the computers’ internet browsing history. Manley explained that an index.dat file “basically makes a bread crumb trail of where you‘ve been and what sites you‘ve been to and thе last time you were there.” Approximately twenty index.dat files on the laptop were considered to have evidentiary value; together, the files contained “thousands of pages of listings.” He did not testify about how far back in time the index.dat files went, what date ranges were contained in the twenty index.dat files that were found to have evidentiary value, or how many files were not entered into evidence. Manley initially stated that, on print-outs of the index.dat files, he “highlighted in pink every web site that was visited that was pornographic,” but later clarified that he limited his pink highlighting to “web sites that are still up that were of teen in nature pornography sites,” and furthermore noted that he highlighted websites that he guessed might be pornographic based on the title, but could not verify that they contained illegal child pornography.4 The government did not introduce into evidence any images from these websites. Manley admitted on cross-examination that some such websites advertise themselves suggestively as underage sexually explicit websites by their names and other features, but, ultimately when they are inspected, they turn out not to be unlawful child pornography websites but legal adult pornography websites.
Manley found usage patterns showing that a user of the computers had visited a
Manley testified that the laptop computer had only one user account, which “had the user name of Keith Moreland.” The desktop computer had three user accounts, in the names of Keith, Deanna, and their son. George did not have a separate user account on either computer. According to Deanna, Kеith “was always logged on” from both computers to his Yahoo! account on the internet. Therefore, she testified, she did not need a password to access his account, and that she used his Yahoo! email account to check and send email. Manley confirmed that if someone remained logged on to their account, anyone using that computer could access the account, and that he could not testify as to who actually was using the computer at any given time. Deanna further explained that because their household had cable wireless internet, rather than dial-up, the computers were always logged into the internet, and that Keith was always logged in to his Yahoo! account. She also testified that Keith “has the same password for everything,” and that she knew the password.
Deanna testified that she had not looked at child pornography on the computers and that she had never seen anyone in her home looking at any kind of pornography. Keith also testified that he had not looked at child pornography on the computers. According to Deanna and Keith‘s uncontradicted testimony at trial, George often used both computers in the Moreland household while he was staying at their house. Deanna testified that it was “not uncommon” for George to use the computers at night when the rest of the family went to bed. According to Keith, “My father always loggеd in under my name. My name was always up [on the computers], and that‘s what he used. . . . [George] didn‘t have an account on my computer. He did everything in my name.” Deanna further testified that George “was a character that I was very suspicious of,” explaining that George “was definitely into pornography. He would readily admit it to anybody that would listen. I always felt he had a guilty conscience, because he would just put it out there, and it was a little awkward. So that was common knowledge. Everybody that knew the man knew that.” She also testified that she told the police that she suspected her father-in-law when she spoke with them a second time, but that the police did not give her “much of an opportunity to say anything.”
Eric Moreland, Keith‘s brother and George‘s son, corroborated Deanna‘s and
With regard to this testimony concerning George‘s obsession with pornography and his destruction of his own computer, the prosecution attempted to discredit the testimony of Keith, Deanna, Eric, and Kayla on cross-examination. The prosecution challenged the four witnesses for not informing the police of George‘s conduct. The law enforcement officers who testified at trial acknowledged that Deanna had mentioned George to them in connection with their investigation, but denied that she ever specifically informed them that George had access to the computers. The record does not indicate that the police ever interviewed George or investigated him in connection with his use of the computers or with the 112 photographic images found on the two computers in the Moreland household.
The prosecutor attempted to discredit and show the partiality of Deanna, Eric, and Kayla through his examination of Deanna—who appeared as both a government and defense witness—and his cross-examination of the other Moreland family members. Beyond this, however, the government did not present any affirmative evidence that called into question those witnesses’ testimony, including their description of George‘s affinity for pornography and his actions to destroy his own computer‘s hard drive after the police obtained custody of Keith‘s and Deanna‘s home computers. Moreover, the prosecutor introduced no evidence to dispute Keith‘s and Deanna‘s testimony that she and George had used Keith‘s password and accounts continually to operate the two home computers. For instance, the government introduced no evidence to show that George had his own separate Yahoo! account that he had used while staying at Keith and Deanna‘s house; or to show that the computers were ever used by Deanna or George to access any Yahoo! account other than Keith‘s. Thus, the undisputed evidence of record establishes that at least three adults, Keith, Deanna, and George, had access to the Morelands’ home computers and had access tо Keith‘s Yahoo! account prior to September 28, 2007 when Deanna turned the computers over to the police.
III. Analysis
A. Standard of Review
Keith argues that the evidence was constitutionally insufficient to carry the
B. Due Process Requirements
Keith argues that his conviction violated the Due Process Clause of the
Despite the importance of this constitutional principle, judges must be highly deferential to the jury‘s verdict of conviction: courts “view[] the evidence in the light most favorable to the prosecution.” Jackson, 443 U.S. at 319; see also United States v. McNealy, 625 F.3d 858, 870 (5th Cir.2010) (citing United States v. Harris, 293 F.3d 863, 869 (5th Cir.2002)).6 Here, “[i]n deciding
That said, in viewing the evidence in the light most favorable to the prosecution, we “consider the countervailing evidence as well as the evidence that supports the verdict in assessing sufficiency of the evidence.” United States v. Brown, 186 F.3d 661, 664 (5th Cir.1999) (internal quotation marks omitted). We also will draw upon only “reasonable inferences from the evidence to support the verdict.” United States v. Percel, 553 F.3d 903, 910 (5th Cir.2008) (quoting United States v. McDowell, 498 F.3d 308, 312 (5th Cir.2007)) (internal quotation marks omitted). “[A] verdict mаy not rest on mere suspicion, speculation, or conjecture, or on an overly attenuated piling of inference on inference.” United States v. Rojas Alvarez, 451 F.3d 320, 333 (5th Cir.2006) (alteration in original) (quoting United States v. Pettigrew, 77 F.3d 1500, 1521 (5th Cir.1996)) (internal quotation marks omitted); see also United States v. D‘Amato, 39 F.3d 1249, 1256 (2d Cir.1994) (“[A] conviction based on speculation and surmise alone cannot stand.“). Courts cannot “credit inferences within the realm of possibility when those inferences are unreasonable,” United States v. Quattrone, 441 F.3d 153, 169 (2d Cir.2006). In keeping with this standard, we have held that no reasonable jury could convict a defendant where the government has done nothing “more than pile inference upon inference” to prove guilt. McDowell, 498 F.3d at 314; United States v. Maseratti, 1 F.3d 330, 337 (5th Cir.1993); see also United States v. Sandlin, 589 F.3d 749, 757-58 (5th Cir.2009) (reversing a defendant‘s sentencing enhancement because it found that the evidence for enhancement was supported by “nothing beyond speculation“). The government must do more to support a conviction. McDowell, 498 F.3d at 314. We also have held that no reasonable jury could find a defendant guilty of an offense where the “evidence gives equal or nearly equal circumstantial support to a theory of guilt, as well as to a theory of innocence.” United States v. Ferguson, 211 F.3d 878, 882-83 (5th Cir.2000); United States v. Jaramillo, 42 F.3d 920, 923 (5th Cir.1995). Convictions based on such evidence must be reversed. Ferguson, 211 F.3d at 882-83. This standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by law. Jackson, 443 U.S. at 324 n. 16.
C. Sufficiency of the Evidence
1. Joint Custody vs. Constructive Possession
In order to obtain a conviction under
Possession may be either actual or constructive. United States v. Mergerson,
The government may prove constructive possession by circumstantial evidence. Id.; United States v. Jones, 133 F.3d 358, 362 (5th Cir.1998). Dominion, control, and knowledge, in most cases, may be inferred if a defendant had exclusive possession of the place in which the contraband is found, but this inference cannot be sustained if the defendant shared joint occupancy of the place. United States v. Crain, 33 F.3d 480, 486 (5th Cir.1994); Mergerson, 4 F.3d at 349. “[W]here . . . a residence is jointly occupied, the mere fact that contraband is discovered at the residence will not, without more, provide evidence sufficient to support a conviction based upon constructive possession against any of the occupants.” Mergerson, 4 F.3d at 349 (second alteration in original) (internal quotation marks omitted); accord United States v. Mills, 29 F.3d 545, 549 (10th Cir.1994); United States v. Ford, 993 F.2d 249, 252 (D.C.Cir.1993); United States v. Sullivan, 919 F.2d 1403, 1431 (10th Cir.1990); United States v. Reese, 775 F.2d 1066, 1073 (9th Cir.1985). When the government seeks to prove constructive possession of cоntraband found in a jointly occupied location, it 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. Mergerson, 4 F.3d at 349. 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 “support[s] at least a plausible inference that the defendant had knowledge of and access to the . . . contraband.” Id.
Based on our review of the evidence in the light most favorable to the guilty verdict, we conclude that there was not sufficient evidence for a rational jury to find beyond a reasonable doubt that Keith knowingly and constructively had possession of the 112 digital images found in the computers’ slack space. Because the government attempted to prove that Keith had constructive possession of the images, and the two computers had been in the joint custody and use by Keith with George and Deanna, the government was required to introduce evidence, in addition to the evidence of mere joint custody, to support a reasonable inference both that Keith knew that the images were in the computers and that Keith had the knowledgе and ability to access the images and to exercise dominion or control over them. The evidence—both direct and circumstantial, together with the reasonable inferences to be drawn therefrom—is sufficient if, when taken in the light most favorable to the government, a reasonable jury could find the defendant guilty of all of the essential elements of the crime beyond a reasonable doubt. In this case, however, the government failed to come forward with sufficient proof to justify a rational jury in finding a reasonable inference of Keith‘s knowledge of, access to, or domin-
The government‘s arguments to the contrary are not persuasive or meritorious. First, the government argues that Officer Manley‘s testimony provided additional facts that, when considered with the prosecution‘s other evidence, formed the basis for a finding beyond a reasonable doubt that Keith knowingly exercised dominion or control over the digital images in the computers’ slack space. We disagree for several reasons.
Manley admitted that he could only testify to the data that he found in the computers. He further acknowledged that he could not determine from the data in the computers where the 112 images he found there had come from, when they had entered the computers, or when they had been deleted and redesignated as slack spaces on the computers’ hard drives. He also acknowledged that he could not tell from the data in the computers who, i.e., whether Keith, George, Deanna, or another person, was using the computers when the computers received the 112 images; or when the computers deleted the images and redesignated them as unallocated slack spaces on the computers’ hard drives; or when the computers visited websites that he suspected of containing child pornography.7 He did not produce, and the government did not introduce, any evidence from those websites to prove that they contained child pornography. Thus, Manley was unable to determine whether any of the 112 images found in the computer came from any of the websites that the index.dat files indicated the computers had visited. In sum, Manley did not provide any testimony or evidence from which it could reasonably be inferred that Keith had ever seen the 112 images; knew that they were in the computers; or that Keith had the knowledge and ability to access those images or exercise dominion or control over them. Manley further testified that he could not express an opinion on whether any particular image found in the computers was child pornography. We do not reach the issue of whether the images met the statutory definition of child pornography, however, because the government failed to introduce sufficient evidence to establish Keith‘s culpability beyond a reasonable doubt even if the 112 images were child pornography.
Second, the government argues that Keith‘s statements and conduct after Deanna called him at work on September 28,
In our previous joint occupancy cases, this court has adopted a “commonsense, fact-specific approach” to determining whether constructive possession was established. Mergerson, 4 F.3d at 349 (quoting United States v. Smith, 930 F.2d 1081, 1086 (5th Cir.1991)) (internal quotation marks omitted). We have found constructive possession in such cases only when there was some evidence supporting at least a plausible inference that the defendant had knowledge of and access to the weapon or contraband. Id. (citing McKnight, 953 F.2d at 902 (upholding conviction where the weapon was found in plain view); and Smith, 930 F.2d at 1086 (same)). In the instant case, the digital images were not in plain view, but were in the computers’ unallocated slack spaces, which are accessible only to a knowledgeable person using special computer software, and there was no circumstantial indicium that established that Keith knew of the images or had the ability to access them.
Thus, we hold that the evidence supporting Keith‘s conviction of knowing possession of child pornography is constitutionally insufficient.
2. Comparison With Exclusive Possession Cases
The proof deficiency here is underscored by a comparison with other federal courts of appeals’ decisions holding that, even when the defendant has exclusive possession of his computer, evidence of storage of child pornography images in the hard drive of a defendant‘s computer, without more, is insufficient to sustain a conviction or sentence for knowing possession or receipt of child pornography; and that in exclusive possession cases in which convictions have been upheld, the government has presented additional evidence of the defendant‘s knowledge, access and control of the child pornographic images.
In United States v. Dobbs, 629 F.3d 1199 (10th Cir.2011), the Tenth Circuit concluded that Dobbs’ conviction for receipt and attempted receipt of internet child pornography must be reversed because the evidence was insufficient to support the jury‘s finding of guilt. Id. at 1209. The prosecution proved only that two child pornography images were found in the cache of Dobbs’ computer. Id. at 1202. The court found that this evidence was insufficient to support Dobbs’ conviction because the
In Dobbs, the court specifically rejected the prosecution‘s argument that proof of Mr. Dobbs’ pattern of seeking out and downloading internet child pornography was sufficient circumstantial evidence to support Dobbs’ conviction, because the prosecution could not show that Dobbs conducted a search for child pornography or visited child pornography websites “immediately prior to the creation of those two images in the cache.” Id. at 1204. Therefore, proof of illegal searches was still insufficient where those searches could not be linked to the pornographic images for which the defendant had been indicted.
The Ninth Circuit also has demanded more than the mere presence of child pornography images in a computer‘s hard drive to prove knowing possession, when those images are found in an area of the computer that non-expert users do not know about or cannot access. In United States v. Kuchinski, 469 F.3d 853 (9th Cir.2006), the defendant appealed his sentence because the court had taken into account additional images recovered on his computer after he pleaded guilty to receiving and possessing different child pornography images. Id. at 857. The court vacated his sentence because thе additional images were found in the cache and the prosecution had offered no evidence to show that Kuchinski was a “sophisticated” computer user, had ever tried to access the cache, or “even knew of [its] existence.” Id. at 862. The court therefore found that “[w]here a defendant lacks knowledge about the cache files, and concomitantly lacks access to and control over those files, it is not proper to charge him with possession and control of the child pornography images located in those files, without some other indication of domination and control over the images. To do so turns abysmal ignorance into knowledge and a less than valedunarian grasp into dominion or control.” Id. at 863.
Cases in which we and other circuits have upheld convictions for possession of digital images of child pornography are as telling as the cases in which the convictions were overturned. Affirmation of convictions have been based on substantially more evidence than a defendant‘s mere ownership and custody of the computer. In fact, the evidence introduced in those cases tended, independently of ownership or custody of the computer, to prove the defendant‘s knowledge and possession of the unlawful images or material concealed in the computer‘s hard drive. When the images are stored in inaccessible areas of a hard drive or could have been downloaded and retained by a computer‘s automatic processes without the computer owner‘s knowledge—such as temporary internet files or, as here, in the computer‘s disk slack space—courts have treated as determinative whether the defendant had sufficiently expert computer knowledge to know about and access those files or whether there were independent facts that showed the defendant‘s knowledge and dominion of child pornography images on the computer.
For example, in United States v. Winkler, 639 F.3d 692 (5th Cir.2011), this court upheld a defendant‘s conviction for receipt and possession of child pornography because the government had produced sufficient evidence that “Winkler himself
Similarly, in United States v. Tucker, 305 F.3d 1193 (10th Cir.2002), the Tenth Circuit upheld a defendant‘s conviction for possession of child pornography in part because the prоsecution presented evidence that Tucker admitted to the police that he viewed several thousand images of child pornography and that he intentionally deleted his computer‘s cache after viewing the images. Id. at 1197, 1204. The government also showed that Tucker paid a user fee to access newsgroups that gave him access to images of child pornography, and that he possessed the technical ability to access and manipulate the images stored in the cache. United States v. Tucker, 150 F.Supp.2d 1263, 1265, 1269 (D.Utah 2001), aff‘d, 305 F.3d 1193 (10th Cir.2002).
In United States v. Sanchez, 59 M.J. 566, 570 (A.F.Ct.Crim.App.2003), aff‘d in part, rev‘d in part on other grounds, 60 M.J. 329 (C.A.A.F.2004), the U.S. Air Force Court of Criminal Appeals upheld a conviction for child pornography possession based on files located in a computer cache and on other files that had been deleted from the hard drive but were recoverable. In that case, the prosecution had presented evidence that the defendant was a subscriber of “numerous e-groups described as nude teen sites,” that the child pornography images came through emails to an account to which only he had access, and that the defendant was “relatively sophisticated” in computer matters, such that a jury could find that he knew that the images were being downloaded. See id. at 570.
These cases show that courts have refused to find that a defendant constructively possessed child pornography located on his computer simply because the defendant exclusively possеssed that computer, without additional evidence of the defendant‘s knowledge and dominion or control of the images. Where a defendant shares custody and control of the computer with other persons and the prosecution has not produced further evidence of knowledge of and access to the images, we must conclude that the proof of constructive possession is deficient for even stronger reasons.
IV. Conclusion
In deciding whether a jury verdict is rationally supported by the evidence, we are bound to review all evidence and the inferences therefrom in the light most favorable to the verdict. Shum, 496 F.3d at 391; United States v. Ragan, 24 F.3d 657, 659 (5th Cir.1994). As we said in Crain, “[a]lthough the strict nature of this standard demonstrates our reluctance to interfere with jury verdicts, this case is an example of why courts of appeal must not completely abdicate responsibility for reviewing jury verdicts.” 33 F.3d at 487 (alteration in original) (quoting Ragan, 24 F.3d at 659) (internal quotation marks omitted). Because the evidence presented at trial was insufficient to provide a basis for a rational jury to find beyond a reasonable doubt that the defendant knowingly possessed child pornography, we REVERSE the judgment of the district court.
E. GRADY JOLLY, Circuit Judge, dissenting:
The record does not reflect whether the jury box had more than twelve chairs, but
First, and throughout its opinion, the majority embraces the primary defense argument—placing blame on Keith‘s dead father, George, instead of Keith himself—a credibility choice for the jury to make. Second, the majority molds the testimony of the government‘s computer analyst, Matthew Manley, to suit its purposes, arguing the testimony‘s weak points, while failing properly to accept its strong points, which were accepted by the jury. Third, the majority insists that no reasonable individual could have believed that Keith Moreland‘s behavior, after his wife discovered pornography on their computers, indicated his guilt—again, an inference for the jury to make.
I.
It is fundamental that “we view the evidence in the light most favorable to the verdict and uphold the verdict if, but only if, a rational juror could have found each element of the offense beyond a reasonable doubt.” See United States v. Brown, 186 F.3d 661, 664 (5th Cir.1999). After formally acknowledging this standard of review, the majority disregards it—and not only disregards it, but combs the record to make every argument in favor of exoneration. When the proper legal standard is faithfully applied, it is manifest that we must uphold the jury‘s verdict of guilty.1
II.
A.
The majority overturns the conviction on the ground that “there was not sufficient evidence for a rational jury to find beyond a reasonable doubt that Keith knowingly and constructively had possession of the 112 digital images found in the computers’ slack space.” Majority Op. at 150.2 This conclusion and holding necessarily require the majority to minimize the incriminating evidence in this case that the jury heard. I briefly respond, however, to one example: the majority implies that the three to five seconds that jurors were given to examine each image was insufficient for the jury to determine whether the images were child pornography. As the government explained at oral argument, however, the jury would have been given additional access to the images during their deliberations upon request. The jury made no such request, suggesting that the properly instructed jurors were confident that the images they had earlier viewed were child pornography.
Before addressing the majority‘s specific critiques of the evidence, I note that the majority employs an improper analysis in assessing the evidence of guilt: it treats evidentiary items individually and independent of the whole; the analysis should ask whether all of the evidence, viewed as a whole, supports the conviction. See United States v. Miller, 146 F.3d 274, 281 (5th Cir.1998) (“No single piece of circumstantial evidence need be conclusive when considered in isolation; the question, rather, is whether the evidence, when considered as a whole, provides a substantial basis for the jury to find that the defendant‘s possession was knowing.“).3 With that said, I now turn to analyze the majority‘s itemization of reasons, notwithstanding the incriminating evidence of guilt the jury‘s verdict, the jury‘s resolution of credibility issues, and the рroper standard of review in favor of the jury‘s verdict, that the appellate court should substitute its judgment for that of the jury.
B.
The rationale underlying the majority opinion is that Keith‘s father, George Moreland, was more likely the individual who possessed the pornographic images at issue. In support of “blaming Daddy“—a “theory” presented to, and rejected by, the jury—the majority raises several argumentative points.
First, the majority notes that Keith, along with several of his family members (all biased witnesses, a fact that the jury apparently understood)—specifically, his wife Deanna, his brother Eric, and Eric‘s wife Kayla—all supported Keith‘s “blame Daddy” defense by testifying that George was a great pornographic fan.4 The majority further notes that Keith and Deanna testified that George frequently accessed the computers in Keith‘s home under Keith‘s user account and accessed his Yahoo account to play dominoes, among other things. The primary problem with the majority‘s reasoning is that the government demonstrated to the jury that no one—and I mean no one—had intimated to law enforcement that George might have
Similarly, the majority points to no testimony that specifically indicates that George viewed pornography on the family computers. If viewed in the light most favorable to the verdict, the testimony suggests, at most, that George used his own computer to look at pornography.7 Relevant to this point is the majority‘s implau-
The majority next turns to attack the testimony of Matthew Manley, a computer investigator for the city of Columbus who had analyzed the two computers that Deanna turned over to authorities. Indeed, the majority turns away momentarily from its assumed role as juror, assumes the role of defense attorney, and cross examines Manley in an effort to minimize his incriminating testimony before the jury.
Specifically, the majority notes that Manley admitted that an unsophisticated computer user would not have been aware that the images were on the computer. To be sure, Manley explained that the images were recovered from the “disk slack space,” which, in his view, and in the light of his knowledge regarding the way computers work, indicated that someone had likely viewed the images on the internet and thereafter deleted the browsing history. Notably, Keith‘s trial counsel did not challenge Manley on this point. Of course, the jury was free to determine that someone, at some relevant time, knowingly assumed possession of these images. Indeed, the majority concedes—as it must—that the presence of child pornography on a computer‘s hard drive is evidence of prior possession of that pornography. Majority Op. at 142 n. 2, citing United States v. Kain, 589 F.3d 945, 948 (8th Cir.2009).
This evidence, when properly viewed in the light most favorable to the jury verdict—and notwithstanding the majority‘s efforts to weaken Manley‘s testimony—enabled the jury reasonably to infer that Keith had attempted to delete from his computer the pornographic images that he had downloaded (i.e., the images recovered from the slack space), and that hе was simply unaware that the images were retrievable. The point is this: the majority makes every attempt to minimize and weaken Keith‘s possession of the images on his own computer, by repeatedly emphasizing that this evidence, standing alone, does not support the conviction. But the jury heard much more evidence pointing to his guilt.
The majority also attempts to discredit Manley for failing to specify when the illegal images were downloaded. Manley explained that because the images were recovered from the slack space, he was able to recover only the images themselves, and was not able to recover the
Finally, the majority argues that Manley never testified that the pornographic sites that he had discovered in Keith‘s browsing history8 contained child pornography. The majority‘s point is that Manley‘s testimony that the computer‘s browsing history included pornographic sites, including sites for teen pornography, does not, by itself, prove that Keith possessed child pornography. Manley‘s testimony permitted the jury to draw a reasonable factual inference that the same person who was frеquenting these pornographic sites was the same person who had downloaded the illegal images. It seems that the majority misses the point: this browsing history is, at the very least, circumstantial evidence that someone who was using the same computers that contained illegal child pornography had an ample appetite for pornography depicting young women.
The majority next, and finally, focuses its aim on the evidence of Keith‘s purposeful avoidance of Deanna. To better explain this point, I briefly recount the relevant facts.
As I have earlier said, Deanna was using the desktop computer when she discovered a domain name in the browsing history that included the words “teen topanga.” Deanna immediately confirmed that the laptop computer had been used to access the same site. After making these discoveries, she called Keith, who dismissed her concerns and remained at work. When Keith returned home that evening, he found Deanna and the children gone.9 Despite this, he went to a fishing tournament the next morning; only after receiving a call from Deanna did he return home from the tournament.
The majority, assuming its role as juror, airily dismisses Keith‘s behavior, insisting that it fails to support an inference that Keith knowingly possessed child pornography. Keith‘s trial counsel argued just that, even contending that Keith‘s behavior reflected his innocence. Thus, the jury had two choices: it сould believe that Keith‘s actions evidenced his innocence, or that his behavior evidenced his guilt. It decided on the latter. The jury was free to accept the defense‘s preferred argument, but it did not, and we are bound to review the evidence in the light “most favorable to the verdict[,]” Brown, 186 F.3d at 664, a rule the majority left at the starting gate of its opinion.
To sum up: The key reasons assigned in the majority opinion for reversal are: first, George was likely the culprit in this case; second, Matthew Manley did not determine when the images were deleted, did not determine whether the images came from any of the pornographic sites he found in the browsing history, and did not testify that those sites contained child pornography; and third, Keith‘s decision to avoid his wife Deanna after receiving an ominous phone call from her could not be interpreted as an expression of his guilt.
The majority defers to the defendant‘s belated alibi instead of deferring to the jury verdict. The resulting irony is that the jury of Keith‘s peers rejected his story as made-up nonsense, while the legally sophisticated majority accepted the story as fully plausible.
More serious than the resulting irony, however, is the majority‘s disregard for the proper standard for a review of the verdict of the jury and its autocratic reversal of a legally sound conviction.
I respectfully dissent.
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UNITED STATES of America, Plaintiff-Appellee, v. Armarcion D. HENDERSON, Defendant-Appellant.
No. 10-30571
United States Court of Appeals, Fifth Circuit
Dec. 15, 2011
Rehearing En Banc Denied Dec. 15, 2011
665 F.3d 160
Patricia Ann Gilley, Gilley & Gilley, Shreveport, LA, for Defendant-Appellant.
ON PETITION FOR REHEARING EN BANC
Before SMITH, SOUTHWICK and GRAVES, Circuit Judges.
PER CURIAM:
The court having been polled at the request of one of the members of the court, and a majority of the judges who are in regular active service and not disqualified not having voted in favor (
In the en banc poll, 7 judges voted in favor of rehearing (Stewart, Dennis, Elrod, Southwick, Haynes, Graves, and Higginson), and 10 judges voted against rehearing (Jones, King, Jolly, Davis, Smith, Garza, Benavides, Clement, Prado, and Owen).
HAYNES, Circuit Judge, joined by DENNIS, Circuit Judge, dissenting:
I respectfully dissent from the court‘s decision to deny rehearing en banc. Two issues raised by the panel‘s opinion merit the full court‘s attention: (1) the nature of the error that can be corrected under
I.
On the first issue, while the panel cites the appropriate standard—“errors which