United States v. Pothier , 919 F.3d 143 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18–1561
UNITED STATES,
Appellee,
v.
WILLIAM POTHIER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Kayatta, Circuit Judge,
Souter, Associate Justice,
and Selya, Circuit Judge.
S. Amy Spencer, with whom William E. Christie and Shaheen &
Gordon, P.A. were on brief, for appellant.
Seth R. Aframe, Assisted United States Attorney, with whom
Scott W. Murray, United States Attorney, and Cam T. Le, Assistant
United States Attorney, were on brief, for appellee.
March 26, 2019

Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
KAYATTA, Circuit Judge. Police learned that someone
using an IP address1 registered to William Pothier at an apartment
in Exeter, New Hampshire, downloaded child pornography from a peer-
to-peer file-sharing network. They also learned that two people
in addition to Pothier received mail at that residence. While
executing a search warrant, police found in the living room a
laptop computer that was not password-protected. Pothier admitted
that he owned the laptop, which contained a handful of documents
and innocuous chat histories in his name. It also contained child
pornography, i.e., videos of "minor[s] engaging in sexually
explicit conduct." 18 U.S.C.A. § 2252(a)(4)(B)(i). That was more
or less enough for the police and the United States Attorney. In
short order, a grand jury indicted Pothier for "knowingly
possess[ing]" child pornography in violation of 18 U.S.C.
§ 2252(a)(4)(B), and then a jury found him guilty. He now appeals,
claiming that the evidence was insufficient to prove beyond a
reasonable doubt that he -- as opposed to the other people who may
have had access to the computer -- downloaded the pornography.
For the following reasons, we agree and reverse the conviction.
1
"An IP address, or Internet Protocol address, 'is the unique
address assigned to every machine on the internet.'" United States
v. McLellan, 792 F.3d 200, 204 n.1 (1st Cir. 2015) (quoting United
States v. Cameron, 699 F.3d 621, 627 n.1 (1st Cir. 2012)).
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I.
A preliminary investigation revealed that the U.S.
Postal Service delivered mail to three people at the Exeter
residence associated with the IP address registered to Pothier:
Pothier, Josephine Pritchard, and someone named Balis. On
March 30, 2016, police officers executed a warrant to search for
child pornography at the residence. For approximately fifteen
minutes, police officers repeatedly knocked on the door, and called
and texted Pothier's cell phone. Though Pothier was inside the
residence, he did not answer until the fire department arrived and
began to pry open the door. When asked if he had heard the police
outside, he answered that he had, and said that neighbors had told
him that police had been canvassing the area.
The ensuing search surfaced numerous computers and
electronic storage devices, including an Asus laptop found in the
living room. Pothier admitted that he owned the laptop, which was
not password-protected and had a generic "Asus" profile rather
than a user-generated profile. The police were therefore able to
access the computer's contents on-site. Among the applications on
the Asus laptop were a file-sharing program called Shareaza and an
electronic file-shredding program called Evidence Eliminator.
Also on the computer were six videos depicting children engaging
in sexual acts. In addition, the on-site review revealed that a
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Skype user called "wdpothier" had engaged in a few innocuous Skype
chat exchanges in March 2016.
The police later conducted a full forensic investigation
of the Asus laptop. The child pornography discussed above was
saved in a temporary folder associated with the Shareaza
application. In addition, one more video depicting child
pornography was in the laptop's recycle bin. Police also found
that a user had searched on both Google and Shareaza using terms
consistent with child pornography. Finally, police found
thumbnail images that were remnants of child pornography that had
been downloaded and deleted.
The computer contained a handful of documents associated
with two people. First, police found two mortgage interest
statements and a restaurant voucher, all associated with Pothier.
Second, they found personnel and military discharge documents
belonging to Joseph Walko. Walko testified that he worked at the
Federal Aviation Administration in New York with Pothier and that,
at some point, they had neighboring cubicles, but that he had no
idea why his personal documents were on Pothier's computer. So,
the jurors had a basis to conclude that Walko did not have access
to the laptop, notwithstanding the presence of his documents on
it.
The government was able to pin down the exact times and
dates of the illicit downloads and searches. There was no overlap
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between the dates on which Pothier was known to have used the
laptop, the dates on which Walko's documents were saved to the
computer, and the dates of the illicit downloads and searches.
At the close of the government's case, Pothier moved
pursuant to Federal Rule of Criminal Procedure 29 for judgment of
acquittal, arguing that the government failed to prove beyond a
reasonable doubt that he knew that the Asus laptop contained child
pornography. The district court summarily denied the motion.
Pothier neither testified nor presented any evidence in his
defense, and the jury returned a guilty verdict. The district
court then denied Pothier's motion to set aside the verdict,
stating without explanation that a rational jury could find Pothier
guilty beyond a reasonable doubt. At sentencing, the district
court applied -- over Pothier's objection -- a two-level Guidelines
enhancement for "knowingly engag[ing] in distribution" of child
pornography. See U.S.S.G. § 2G2.2(b)(3)(F). The court sentenced
Pothier to six years of imprisonment and twenty years of supervised
release.
Pothier appeals to this court. He challenges both the
sufficiency of the evidence underlying the guilty verdict and the
district court's application of the sentencing enhancement for
knowing distribution of child pornography.
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II.
We turn first to Pothier's claim that the district court
erred in denying his motion for judgment of acquittal. It goes
without saying that the "Constitution prohibits the criminal
conviction of any person except upon proof of guilt beyond a
reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 309 (1979).
We give great deference to juries' application of this standard.
In reviewing Pothier's claim, we must affirm the conviction if
after a de novo review of the evidence, taken in the light most
favorable to the government, we conclude that a rational factfinder
could decide that the government carried its burden beyond a
reasonable doubt. See United States v. Figueroa-Lugo, 793 F.3d
179, 183 (1st Cir. 2015). "In conducting a sufficiency analysis,
however, some degree of intellectual rigor is required; a reviewing
court should not give credence to 'evidentiary interpretations and
illations that are unreasonable, insupportable, or overly
speculative.'" Leftwich v. Maloney, 532 F.3d 20, 23 (1st Cir.
2008) (quoting United States v. Spinney, 65 F.3d 231, 234 (1st
Cir. 1995)); see also United States v. Valerio, 48 F.3d 58, 64
(1st Cir. 1995) ("[W]e are loath to stack inference upon inference
in order to uphold the jury's verdict.").
A.
The record in this case begins like the first chapter of
a detective novel. The criminal act was clear: The laptop
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contained child pornography. Because the laptop was not password-
protected and was found in a common area of the residence, the
possible suspects were three: Pothier, Pritchard, and Balis, all
of whom apparently had access to the residence and, therefore, to
the computer. At that point, the record becomes sketchy and the
evidence sparse. We learn very little about the possible suspects
and just a bit more about the computer.
The sole fact that the record reveals about Balis is
that he or she received mail at the residence. We have no clue
whether Balis lived there, how much time Balis spent there, or
whether Balis was there when the pornography was downloaded. We
know nothing about Balis's relationships with Pritchard or
Pothier. The detective who oversaw the investigation testified
that neither he nor his subordinates ever attempted to learn more
about Balis. As a result, we do not even know Balis's first name.
The trial record discloses only slightly more about
Pritchard. One officer testified that he believed she was
Pothier's "significant other." She was an airline flight
attendant, and she bought the Exeter residence from Pothier. She
showed up at the residence while the police were executing the
warrant, and she followed Pothier's advice not to speak to the
police without a lawyer present. Like Balis, she did not testify.
Even the evidence about Pothier is remarkably scant. We
know that Pothier worked for the Federal Aviation Administration
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and that he spent at least four days a month in New York, where he
maintained an apartment. He also owned property in Newmarket, New
Hampshire, and his vehicle was registered there. He received
"some" but "not a lot" of mail at the Exeter residence, and the
mail he did receive there would sometimes sit in the mailbox for
several days. We don't know whether he left the laptop at the
Exeter residence when he was elsewhere. Although the government
knew the dates and times on which the culprit downloaded the
pornography, it did not investigate -- much less prove -- where
Pothier was on those days or at those times.
Then there is the Asus laptop that belonged to Pothier.
By not establishing a password, Pothier left the contents of the
laptop fully accessible to anyone who might turn it on. He also
left the laptop physically accessible, sitting in the living room
where the police found it. It is undisputed that Pothier used the
computer on at least a handful of occasions. There is no proof
that anyone else either did or did not use the computer.
Importantly, the evidence does not reveal whether an innocent user
of the computer would have been aware that it contained child
pornography. The seven illegal videos contained on the computer
at the time of the search were not filed in conspicuous locations,
but rather in the recycle bin and in a temporary folder only
visible to a user who overrode Microsoft's default setting.
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B.
There is no dispute that the jurors could rationally
conclude that anyone viewing the videos would know that they
depicted child pornography. The question at hand is whether a
rational jury could find beyond a reasonable doubt that Pothier
knew that his laptop contained the videos. The government's sole
theory at trial and on appeal is that Pothier must have known that
the illicit material was on his laptop because he was the only
person who otherwise used the laptop, and therefore must have been
the person who downloaded the pornography. In assessing the extent
to which the evidence supports this argument, we begin by spelling
out the scenario the government's theory necessarily posits:
Pothier downloaded the file-sharing program Shareaza, the file-
shredding program Evidence Eliminator, and child pornography, but
decided to forgo password protection and then left the laptop in
the living room of a residence at which two other people received
mail. Furthermore, during the fifteen or so minutes when he knew
the police were at the door, Pothier did not conceal or destroy
the laptop or run the file-shredding Evidence Eliminator program
that the government presumes he had installed.
A contrary scenario consistent with the limited evidence
is that Pritchard or Balis used the readily available laptop during
Pothier's frequent absences to download the file-sharing and file-
shredding applications and the child pornography. Neither of them
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could have put a password on the computer without alerting Pothier.
And because they were not present when the police came calling,
neither of them could have hidden or destroyed the computer, or
erased the child pornography, when the need to do so arose.
How could jurors rationally decide beyond a reasonable
doubt which scenario describes what happened? In many cases,
jurors rely on their assessments of witnesses' credibility to
select between views of the evidence. Here, though, each competing
scenario presumes the accuracy of the testimony proffered by the
government, so credibility determinations cannot explain the
conviction. Each scenario is plausible, and though one might
debate their relative merits, to settle on one beyond reasonable
doubt would require guesswork. And "[g]uilt beyond a reasonable
doubt cannot be premised on pure conjecture." See Stewart v.
Coalter, 48 F.3d 610, 615 (1st Cir. 1995).
Trying to mine the record for some additional
inculpatory inferences, the government contends that, in addition
to the evidence described above, Pothier's actions at the search
scene demonstrated consciousness of guilt. More particularly, the
government argues that Pothier's lengthy delay in responding to
the police reveals that he had "something to hide." In other
contexts, similar conduct might carry some probative weight. Here,
though, given that Pothier apparently did nothing in the available
fifteen minutes to hide the laptop or shred the evidence, his
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conduct as a whole just as easily suggests obliviousness to the
content on his computer as it does a guilty conscience. At best,
any evidence of consciousness that one can infer from Pothier's
reaction to the police is entirely ambiguous.
The government also points out that Pothier advised
Pritchard not to talk to the police without a lawyer present. But
he had just seen a warrant with Pritchard's name on it. Was he
conscious of her guilt? Of Balis's? Was he just giving sound
legal advice that one could glean any evening from watching network
television? Perhaps not, but we would be guessing.
We acknowledge that Pothier could have filled many of
these evidentiary gaps, and that his decision neither to testify
nor to present any evidence likely struck the jury as suspicious.
But the government bore both the burden of persuasion and the
burden of production for the knowledge element of the crime. See
Jackson, 443 U.S. at 316 ("[N]o person shall be made to suffer the
onus of a criminal conviction except upon sufficient proof --
defined as evidence necessary to convince a trier of fact beyond
a reasonable doubt of the existence of every element of the
offense."); Sandstrom v. Montana, 442 U.S. 510, 516 n.5 (1979)
(explaining that a directed verdict for the defense results from
the government's failure to meet the production burden); see also
U.S. Const. amend. V ("No person . . . shall be compelled in any
criminal case to be a witness against himself . . . ."). So, while
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the absence of defense evidence might explain the jury's verdict,
it cannot justify the verdict in the face of an insufficiently
supported government case.
The Sixth Circuit encountered a remarkably similar case
involving three potential suspects with access to a computer that
was unprotected by password. United States v. Lowe, 795 F.3d 519(6th Cir. 2015). As here, the defendant owned the laptop and kept
it in a shared area of the home. Id. at 523. There as here, the
illicit files were saved in locations where innocent computer users
might not have encountered them. Id. at 524. And there as here,
the pattern of internet activity on the dates in question did not
narrow the field of possible users. Id. at 523. The Sixth Circuit
concluded that "without improperly stacking inferences, no juror
could infer from such limited evidence of ownership and use that
[the laptop owner] knowingly downloaded, possessed, and
distributed the child pornography found on the laptop." Id. at
523; see also United States v. Moreland, 665 F.3d 137, 150 (5th
Cir. 2011) (holding that the government presented insufficient
evidence of knowledge of possession of child pornography where the
computer was shared and the images were saved in unallocated "slack
space" as opposed to folders associated with a particular user).
The government attempts to distinguish both Lowe and
Moreland. It points first to Pothier's behavior when the police
came knocking. We have already explained why that conduct, viewed
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in context, renders speculative any inference that Pothier
manifested consciousness of guilt of the relevant charges.
The government also points out that there exists no
evidence that anyone besides Pothier actually used the laptop. In
Lowe as well, though, there was no proof that the other possible
users did in fact use the laptop. 795 F.3d at 523. We also do
not see the logic in the government's unstated assumption that if
Pritchard or Balis used Pothier's laptop to download the child
pornography, he or she would also likely have used the laptop for
other purposes. One might just as easily presume that they would
avoid other uses so as not to alert Pothier. All in all, just
like the Sixth Circuit in Lowe, we are left with a surprisingly
incomplete record. It generates hunches, but it provides no tools
for rationally confirming any one of the hunches beyond a
reasonable doubt.
Finally, we address the government's warning that a
reversal on sufficiency grounds will thwart future prosecutions
for possession of child pornography. As demonstrated by Lowe, our
ruling does not make new law. Rather, we simply recognize that
Congress criminalized only the knowing possession of child
pornography, and a conviction under that law -- like any other
conviction -- cannot be based on mere guesswork. "[A] society
that values the good name and freedom of every individual should
not condemn a man for commission of a crime when there is
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reasonable doubt about his guilt." In re Winship, 397 U.S. 358,
363–64 (1970). If Pothier is factually innocent, then he has
suffered a great wrong and the guilty person remains free.
Conversely, if Pothier is factually guilty, he goes free only
because the prosecution failed to gather and present readily
accessible evidence. In either event, it is uncharacteristic
prosecutorial torpor -- not undue judicial rigor -- that prevented
justice from being done.
III.
Having concluded that Pothier's conviction rests on
insufficient evidence, we need not reach his sentencing challenge.
For the reasons discussed above, we reverse.
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