United States v. Royle ( 2023 )

United States Court of Appeals
For the First Circuit
No. 20-2143
UNITED STATES OF AMERICA,
Appellee,
v.
GEORGE ROYLE V,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Joseph N. Laplante, U.S. District Judge]
Before
Barron, Chief Judge,
Howard and Thompson, Circuit Judges.
Jonathan G. Mermin, with whom Preti, Flaherty, Beliveau &
Pachios, LLP was on brief, for appellant.
John M. Pellettieri, Attorney, Appellate Section, Criminal
Division, U.S. Department of Justice, with whom Darcie N. McElwee,
United States Attorney, Julia M. Lipez, Assistant United States
Attorney, Kenneth A. Polite, Jr., Assistant Attorney General, U.S.
Department of Justice, and Lisa H. Miller, Acting Deputy Assistant
Attorney General, U.S. Department of Justice, were on brief, for
appellee.
November 14, 2023
HOWARD, Circuit Judge. George Royle V (Royle) appeals
from his conviction by a jury for possession of child pornography,
in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2).
Specifically, he argues that the district court erred in denying
his motion to suppress the derivative fruits of a warrantless
search of his home, and in denying his motion to dismiss the
indictment due to inadequate notice of that search. He also
contends that the government's trial evidence was insufficient to
support his conviction. We affirm.
I.
In late June 2015, agents with the Department of Homeland
Security (DHS) obtained a video depicting suspected child
pornography that had been shared over the internet by a computer
using an IP address assigned to a home in Portland, Maine.
Investigators learned that the home was owned and occupied by
Royle, a local attorney, and that its internet service was
registered in his name.
On several occasions beginning July 1, 2015, DHS Special
Agent David Fife (SA Fife) conducted surveillance outside Royle's
home. Among other observations, he noted a man matching Royle's
physical description standing in the driveway and entering the
house, as well as a car registered to Royle and his ex-wife parked
near the house. SA Fife also conducted surveillance of Royle's
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law firm, where he observed this same man and car in the parking
lot. At one point during his surveillance of the home, SA Fife
observed Royle "embrace and kiss an unknown white female," who
then left in a separate vehicle.
While this surveillance was ongoing, SA Fife prepared
documents to apply for a search warrant for Royle's home. For
instance, on Monday, July 6, 2015, SA Fife sent a draft search
warrant affidavit to a federal prosecutor, seeking review and
feedback. The two discussed edits to the draft over the next two
days and, on the morning of July 8, planned via email to seek and
execute a warrant for Royle's home on Monday, July 13. As
reflected in their emails, this agreed-upon timing was intended to
accommodate staffing concerns and allow sufficient time for
internal approval.
During the evening of July 8, SA Fife and another DHS
agent continued surveillance of Royle's home. There, they observed
that the front door and a few windows remained "wide open" for
several hours, though there was no car in the driveway.
Purportedly concerned about the "unsecured nature of the home,"
agents contacted the Portland Police Department (PPD) to "conduct
a welfare check."
Two PPD officers arrived at Royle's house around
10:30 p.m. Officers reported that they observed a mess through
the open front door and that no one appeared to be home. After
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knocking on the screen door without response, the officers entered
the residence. After "[s]everal minutes" looking around the
residence, the officers exited. PPD then proceeded to talk to a
neighbor, inquiring about Royle, and explaining that "[s]omebody
called in a welfare check" on Royle, "[be]cause the front door was
wide open, unlocked."
After PPD exited Royle's house, SA Fife approached the
PPD cruiser to ask about "what happened." PPD told him that "no
one was present in the home but that there were no signs of forced
entry or other suspicious activity beyond the open door." SA Fife
asked if PPD "s[aw] things there [in the house] that would . . .
not still be there if the place had been . . . robbed." PPD
responded that they observed "a laptop and several televisions,
leading them to believe that no one had been in the residence to
steal or attempt to steal anything." The next day, SA Fife wrote
up a report about the events of July 8. Royle eventually received
a copy of this report nearly three years later, in June 2018, in
connection with pre-indictment talks with the government. This
pre-indictment disclosure was the first time Royle learned that
the July 8 search had taken place.
On Monday July 13, 2015, SA Fife obtained a search
warrant for Royle's home and executed it the next morning at
approximately 7:40 a.m. At this time, Royle was the only adult
home. His two children, who were "[q]uite a bit under ten years
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old," were also present. SA Fife asked Royle whether there was
someone who could pick the children up; Royle said his ex-wife
could help and provided her phone number to the agents to arrange
for the pickup.
During their search, agents discovered and seized a
MacBook computer in an upstairs room, and that computer was later
found to contain images depicting child pornography.1 No other
computers were seized during the search.2 At the time the laptop
was discovered, it was powered on and on top of a desk. Agents
further determined that the laptop was in the process of running
"a wipe function," which the agents were able to stop by powering
down the computer.3 Forensic examiners later discovered that the
1 Child pornography is essentially defined as "any visual
depiction . . . of sexually explicit conduct" involving a minor,
with some nuance not relevant here. 18 U.S.C. § 2256(8). Royle
does not dispute that the images recovered from this laptop fit
the applicable statutory definition.
2 Agents also seized Royle's phone, though the government did
not seek to admit at trial any evidence obtained from the phone.
SA Fife testified at Royle's suppression hearing that there was
also an older computer in the residence -- a laptop that was found
on the main floor of the house. As SA Fife testified, agents
"ruled it out either because it was a work laptop or because it
was . . . a very old laptop that had no remnants of anything on it
that [they] were looking for."
3 According to the testimony, a wipe function performs an
intensive deletion process. Typically, when a user deletes files,
these items actually remain in a type of limbo known as
"unallocated space," and are still recoverable with the help of
forensic tools. A wipe function permanently deletes these files,
rendering them unrecoverable.
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wipe function running on the MacBook had been initiated at around
6:55 a.m. that day.
In November 2018, Royle was charged with one count of
knowingly possessing and accessing with intent to view child
pornography, and attempt to do the same, in violation of 18 U.S.C.
§§ 2252A(a)(5)(B), (b)(2), and 2256(8)(A). In July 2019, Royle
moved to dismiss the indictment, arguing that SA Fife's failure to
disclose the existence and details of the July 8 search at any
time before June 2018 violated his procedural and substantive due
process rights. In the alternative, he moved to suppress the
fruits of the July 13 warrant-backed search on the grounds that
the evidence was derivative of observations made during the
warrantless search on July 8. Following a hearing in October 2019,
the district court denied Royle's motion to suppress, holding that
the July 8 search was justified under the community caretaking
exception to the warrant requirement or the good faith exception
"vis-a-vis the wellness check." The court also ruled that, in any
event, the evidence obtained from the July 14 search was admissible
under the independent source doctrine. The district court further
rejected Royle's arguments regarding the failure to give earlier
notice of the July 8 search. The court explained that Royle's
analogies to the pre-indictment delay and Speedy Trial Act contexts
"don't . . . really work here, [and] certainly not in a way that
would lead me to dismiss the case." The court explained, however,
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that while it was denying Royle's motion, "if there are ways at
trial that this failure to disclose has prejudiced [him] in a way
that I can remedy at trial, I'm open to it."
Royle was convicted on January 23, 2020, following a
three-day jury trial. The government's evidence consisted
principally of testimony from special agents Fife, Douglas
McDonnell, and Seth Plumb, as well as various exhibits reflecting
images and data recovered from the MacBook. SA Fife testified as
to the circumstances surrounding the warrant execution at Royle's
home, as discussed above, and SA McDonnell testified about his
role as a member of the team that executed the search warrant on
July 14. As will be further detailed below, the forensic evidence
-- introduced mainly through SA Plumb -- included images of minors
engaged in sexually explicit conduct, internet browsing history,
and other tranches of data demonstrating that the laptop recovered
from Royle's home was used to access child pornography. The
government argued to the jury that this data, along with other
circumstantial evidence that will be discussed, proved that Royle
knowingly possessed and accessed the child pornography found on
the MacBook.
At the close of the government's evidence, Royle moved
for an acquittal, arguing that the government failed to prove
beyond a reasonable doubt that he knowingly used the laptop to
access child pornography. The district court reserved judgment,
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see Fed. R. Crim. P. 29(b), and ultimately denied Royle's renewed
motion for acquittal in a written order following the verdict.
This timely appeal followed.
II.
A.
Royle first challenges the district court's denial of
his motion to suppress. The government argues that the July 8
search of Royle's home was justified pursuant to the emergency-
aid exception to the warrant requirement and, in any event, that
the fruits of the later warrant-backed search were admissible under
the independent source doctrine. Because we agree with this second
argument, we need not consider whether the July 8 search was
justified under the emergency-aid exception. Accordingly, we
assume the July 8 search was in violation of the Fourth Amendment
for the purposes of our analysis, and nevertheless affirm the
court's denial of Royle's motion.
As a general matter, "[a]s a prophylaxis against
unreasonable searches," the exclusionary rule prohibits
introducing the fruits of an unlawful search into evidence.
United States v. Flores, 888 F.3d 537, 545 (1st Cir. 2018).
Nonetheless, "under the independent-source doctrine, evidence
acquired from a lawful source that is independent of any Fourth
Amendment infraction is admissible," because "the exclusionary
rule should not put agents 'in a worse position' than if the
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[initial] constitutional infraction had not happened." United
States v. Ponzo, 853 F.3d 558, 573 (1st Cir. 2017) (quoting
Nix v. Williams, 467 U.S. 431, 443 (1984)). Thus, when information
is obtained through an illegal search, then through a later,
warrant-backed search, "the fruits of that [later] search [are]
admissible . . . unless (1) 'the agents' decision to seek the
warrant was prompted by what they had seen during' the initial
illegal search or (2) 'information obtained during that [illegal
search] was presented to the Magistrate and affected his decision
to issue the warrant.'" United States v. Soto, 799 F.3d 68, 82
(1st Cir. 2015) (quoting Murray v. United States, 487 U.S. 533,
542 (1988)) (final alteration in original). Here, Royle argues
only that the July 13 warrant was deficient under this first
consideration, sometimes called the "subjective" prong. So we
need not consider the second.4
Where, as assumed arguendo here, an unlawful search
precedes the procurement of a warrant, our "subjective inquiry"
asks "whether 'the agents' decision to seek the warrant was
prompted by what they had seen during the initial [illegal]
4The warrant contained no information about the July 8 search
or information that was obtained via the July 8 search. In any
event, after reviewing the warrant application, we have "little
doubt that the [non-July 8 related] information was sufficient to
support the judge's decision to issue the warrant." See United
States v. Rose, 802 F.3d 114, 124 n.4 (1st Cir. 2015) (explaining
that this second inquiry is "wholly objective" (quoting United
States v. Dessesaure, 429 F.3d 359, 369 (1st Cir. 2005))).
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entry.'" United States v. Rose, 802 F.3d 114, 123–24 (1st Cir.
2015) (quoting United States v. Dessesaure, 429 F.3d 359, 369 (1st
Cir. 2005)) (alteration original). This inquiry "turns on whether
the particular officer would have still sought the warrant absent
the unlawfully-obtained information." Id.; see also United States
v. Siciliano, 578 F.3d 61, 77 (1st Cir. 2009) (explaining that the
question is "whether the officers would have sought the warrant
even if the unlawful evidence had not been available"). Although
this is "a subjective test, . . . it should not be proven by purely
subjective means." Dessesaure, 429 F.3d at 369. That means that
"the district court is not bound by after-the-fact assurances of
[the officers'] intent, but instead must assess the totality of
the attendant circumstances to ascertain whether those assurances
appear 'implausible.'" Id. (quoting Murray, 487 U.S. at 540 n.2).
We review a district court's determination under the subjective
prong -- which is a factual finding -- for clear error. Soto, 799
F.3d at 83.
We conclude that the district court did not clearly err
in finding that SA Fife's decision to seek a warrant was not
"prompted" by any information he learned from the July 8 search.
This finding was amply supported by SA Fife's hearing testimony
that what he learned on July 8 did "not at all" affect his intent
to get a warrant for Royle's home. Although such "after-the-fact
assurances" are not controlling, see Dessesaure, 429 F.3d at 369,
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the district court was entitled to credit this testimony in
examining evidence of SA Fife's preexisting intent, as it
explicitly did. United States v. Guzmán-Batista, 783 F.3d 930,
937 (1st Cir. 2015) ("[A] challenge based on a district court's
credibility determination 'can virtually never be clear error.'"
(quoting Anderson v. City of Bessemer, 470 U.S. 564, 575 (1985)).
Indeed, the plausibility of SA Fife's assurances is
firmly supported by emails he exchanged with the prosecutor days
and hours before the July 8 search occurred. As previously
mentioned, SA Fife had already drafted an affidavit to support a
search warrant application and sent it to the prosecutor on July
6. Other emails showed that, several hours before SA Fife returned
to Royle's home to conduct surveillance on July 8, both he and the
prosecutor agreed that the contents of that draft were sufficient
for their purposes and planned to submit it for internal approval.
They further planned to seek and execute a warrant the following
week. As the emails show, that decision to wait was prompted by
administrative issues. There was no suggestion that either of
them believed additional information was needed, and nothing
presented at the hearing compelled any finding to the contrary.
We have repeatedly held that such evidence of a pre-existing intent
to obtain a warrant is sufficient to support application of the
independent source doctrine. Dessesaure, 429 F.3d at 369 (officers
not prompted to seek warrant when they were going to apply for one
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prior to warrantless entry); Soto, 799 F.3d at 83 (independent
source doctrine applied, in part, due to pre-existing
investigation of the defendant); Flores, 888 F.3d at 546-49(investigation prior to initial search reflected intent to obtain
warrant); see, e.g., United States v. Combs, 727 F. App'x 744, 748
(3d Cir. 2018) (independent source doctrine satisfied when law
enforcement "already in the process of preparing a search warrant"
prior to pre-warrant welfare-related search of the home (internal
quotations omitted)).
Nevertheless, Royle contends that, even assuming SA Fife
intended to seek a warrant prior to the July 8 search, this intent
was vitiated when he saw the unsecured house. In other words, his
concern about a potential break-in at Royle's home -- and the
prospect that evidence may be stolen -- extinguished his intent to
follow through with the plan to seek a warrant the following week.
Royle argues that those concerns were only abated -- and SA Fife's
intent restored -- after the warrantless search confirmed that a
laptop was in the home. But he offers nothing more than rank
conjecture to support this theory, and it is belied by the hearing
testimony. The district court credited SA Fife's assurance that
the events of July 8 did "not at all" effect his decision to get
a warrant, and this finding was not clearly wrong. Indeed, SA
Fife also testified that he had no expectation that the police
would enter the house to conduct the welfare check. He did not
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provide them any direction before they did so, let alone request
that they check that certain items were not missing. This
testimony was further corroborated by that of the PPD officers who
performed the search, who confirmed that the choice to enter the
home was their own decision based on the circumstances.5
Royle further argues that the independent-source rule is
inapplicable under these circumstances, because PPD officers could
have discovered something during their search -- i.e., that items
actually had been stolen from the house -- that could have
diminished SA Fife's intent to execute the warrant. This is a
nonstarter. As the Supreme Court explained in Murray, the
independent source doctrine is not concerned with "whether some
hypothetical illegal search would have aborted the warrant," as
To the extent Royle contends that the independent source
5
rule can only apply if the initial search "had no effect on [SA
Fife's] decision to seek the warrant," he is incorrect. Our cases
make clear that the doctrine's application turns on whether the
warrant decision was "prompted by," not merely "influenced by,"
the illegal search. For instance, in Soto we explained that an
agent's "candid acknowledgment that the [evidence from the initial
illegal search] was a factor in his initial decision to seek the
warrant[] does not" affect the independent-source analysis. Soto,
799 F.3d at 84. Indeed, "[t]he question is not whether the
evidence [observed during the illegal search] did influence the
officer's decision[,] . . . but whether the same decision would
have been made if the evidence had not been known." Id. In any
event, even if we were to endorse Royle's alternative test, SA
Fife's plausible and credited testimony that the events of July 8
did "not at all" affect his decision to obtain a search warrant
would result in the same outcome.
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going that far would "expand our existing exclusionary rule." See
487 U.S. at 542 n.3.
Royle also contends that this case involves the concerns
implicated in Murray -- the "so-called confirmatory search,
conducted for the precise reason of making sure it is worth the
effort to obtain a search warrant." United States v. Restrepo,
966 F.2d 964, 971-72 (5th Cir. 1992) (quoting LaFave, Search and
Seizure, § 11.4(f), at 70 (1992 Supp.)) (internal quotations
omitted). We disagree, for the reasons already discussed. As in
Murray, this case is not an example of a "'search first, warrant
later' mentality," as "there is nothing to suggest that [officers]
went in merely to see if there was anything worth getting a warrant
for." Murray, 487 U.S. at 540 n.2. As the record demonstrates,
SA Fife had already determined that there was something in Royle's
home "worth getting a warrant for," based on the link between
Royle's IP address and child pornography. Indeed, he had already
gone through the effort of drafting the search warrant affidavit
and felt the contents were adequate for probable cause. Moreover,
the district court credited SA Fife's claim that his call to PPD
was for a wellness check, not a confirmatory search, and we see no
clear error in that finding.
In sum, the record evidence supports the view that "[t]he
facts gathered legally, without resort to the facts gathered
illegally, provided an independent and adequate source for the
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warrant application." Dessesaure, 429 F.3d at 370. The district
court found that SA Fife would have still sought a warrant absent
the July 8 search, and our review of the record does not leave us
with "'a definite and firm conviction' that this was a mistake."
Soto, 799 F.3d at 84 (quoting United States v. Brake, 666 F.3d
800, 804 (1st Cir. 2011)). We have affirmed application of the
independent source doctrine on less robust showings. See
Dessesaure, 429 F.3d at 369. Accordingly, we affirm the district
court's denial of Royle's motion to suppress.
B.
Next, Royle challenges the district court's denial of
his motion to dismiss the indictment or suppress the fruits of the
July 13 warrant due to deficient notice. Specifically, he argues
that the government's years-long delay in notifying him of the
July 8 search was unreasonable in violation of the Fourth
Amendment, and also violated his Fifth Amendment due process rights
by preventing him from investigating the circumstances of the
search while memories were fresh. Although Royle contends that
these inquiries run together and that his Fourth Amendment claim
is "rooted in" due process, his argument for dismissal or
suppression on Fourth Amendment grounds is underdeveloped and
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therefore waived. United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990).6
In seeking dismissal on due process grounds, Royle
compares the government's failure to timely notify him of the
July 8 search to cases of pre-indictment or pre-trial delay. The
6 Royle advances this argument in a single sentence of his
brief, contending that "[w]hile advance notice [of the search] is
not required, once the search had been completed, [he] was entitled
to 'constitutionally adequate' notice that it had happened." Royle
cites Dalia v. United States, 441 U.S. 238, 248 (1979), in support
of this contention. But that case, confronting a challenge to the
constitutionality of Title III, stands for the proposition that
there is no "constitutional rule proscribing all covert entries,"
despite the fact that "covert entries" inherently involve a "lack
of notice." Id. at 247–48. Royle offers no authority to support
his contention that timely notice of a warrantless search after it
has occurred is constitutionally required under the Fourth
Amendment.
Moreover, even if the July 8 search was unreasonable under
the Fourth Amendment due to delayed notice, and that such a
violation would be appropriately remedied by operation of the
exclusionary rule, we do not see why the independent source
exception to the exclusionary rule would not render the fruits of
the July 13 warrant admissible. As discussed above,
the "independent source doctrine acts as a limitation on the
exclusionary rule of the Fourth Amendment," Dessesaure, 429 F.3d
at 365 n.6, by permitting "admission of evidence that has been
discovered by means wholly independent of any constitutional
violation." Id. (quoting Nix, 467 U.S. at 443). Thus, even if
the delayed notice provided to Royle rendered the July 8 search
unlawful, we would conclude that the independent source exception
to the exclusionary rule applied, and that the district court was
justified in denying Royle's motion to suppress. See, e.g., United
States v. Freitas, 800 F.2d 1451, 1456-57 (9th Cir. 1986) (finding
a notice-based defect in the warrant, but explaining that
suppression was improper because of operation of an exception to
the exclusionary rule).
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district court determined that Royle had failed to present
sufficient authority for the proposition that the government had
an obligation to disclose this information sooner than it did, or
show that dismissal was warranted. We affirm the district court's
conclusion that there was no constitutional violation here.
As he did before the district court, Royle argues that
his due-process claim should be resolved "[i]n keeping with" the
"principles" of pre-indictment delay and speedy trial cases. We
think the speedy trial framework is unsuitable to assessing Royle's
due process claim, as the guarantee of a speedy trial reflects a
distinct right protected by the Sixth Amendment and the Speedy
Trial Act, see United States v. Irizarry-Colón, 848 F.3d 61, 67
(1st Cir. 2017), while Royle has unequivocally explained that the
delayed notice violated the Fifth Amendment.7
"[E]xcessive pre-indictment delay can sometimes, albeit
rarely" violate due process, "if the defendant shows both that the
'delay caused substantial prejudice to [defendant's] right to a
fair trial' and that 'the [g]overnment intentionally
delayed indictment . . . to gain a tactical advantage.'" Irizarry-
Colón, 848 F.3d at 70 (quoting United States v. Bater, 594 F.3d
The speedy trial analogy is likewise inapposite, given that
7
the "right attaches only . . . [after] a defendant is indicted,
arrested, or otherwise officially accused," United States v.
MacDonald, 456 U.S. 1, 6 (1982); United States v. Handa, 892 F.3d
95, 101 (1st Cir. 2018), but the delay Royle contests occurred
pre-indictment.
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51, 54 (1st Cir. 2010)) (emphasis original). The second prong
requires showing "deliberate misconduct by the prosecutor (or at
least something very close to that)." Bater, 594 F.3d at 54. We
review the district court's decision not to dismiss an indictment
for a purported pre-indictment delay due process violation for
abuse of discretion. Irizarry-Colón, 848 F.3d at 70.
Even if we assume that the "principles" from the pre-
indictment delay context govern Royle's claim, this is not one of
the rare cases where we would conclude there was a due process
violation. First, Royle cannot make out the requisite prejudice.
"With respect to prejudice, a defendant must do more than allege
that witnesses' memories had faded or that evidence had been lost
that might have been helpful to him." Id. (quoting United
States v. Muñoz–Franco, 487 F.3d 25, 58 (1st Cir. 2007)). Here,
all that Royle alleges is that witnesses' memories have faded and
that evidence that might have been helpful to him was lost. His
argument fails accordingly.8
Despite asking us to view his claim through the pre-
8
indictment delay lens, at the same time Royle suggests that the
applicable standard is an imperfect fit under these circumstances.
In essence, he contends that prejudice under his circumstances
should be assumed satisfied in his case, because the undisclosed
information was uniquely and exclusively known to the government.
With this undisclosed knowledge, he says, the government impeded
his ability to begin investigating the circumstances of the July
8 search at an earlier time, which not only prejudiced him but
also gave the government a leg up. But we fail to see how this
meaningfully differs from the potential for prejudice in the pre-
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Moreover, any argument that "fresher" memories from the
witnesses would have helped Royle is speculative and based on
"conjecture." Bater, 594 F.3d at 54. Indeed, if witnesses with
fresher memories had testified "it is not clear just what [they]
would have said or how much it would have helped [Royle]." Id. at
55; United States v. McCoy, 977 F.2d 706, 711 (1st Cir. 1992) ("For
the defendant to carry the heavy burden of proving actual prejudice
from pre-indictment delay, concrete proof is required; mere
speculation and bare allegations will not suffice."). Royle
effectively concedes this very point, noting that "[i]t is
impossible to know what [the two] PPD witnesses [who testified at
the suppression hearing] would have said about what Fife was up to
on July 8" had Royle been notified of the search earlier. Despite
having access to audio recordings obtained from body microphones
worn by the officers during the search, Royle offers no evidence
to suggest that any accounts from the PPD officers closer in time
to the search would have meaningfully differed from what they
offered at his suppression hearing.
indictment delay context. In either case, the government's delay
in providing notice of information exclusively known to it --
whether it be the circumstances of a search or the fact of an
impending grand jury indictment -- affects the defendant's ability
to prepare a defense. United States v. Lovasco, 431 U.S. 783, 796
(1977) (acknowledging that "lapse of time" indicting may have had
negative impact on defense); United States v. Ciampaglia, 628 F.2d
632, 639 (1st Cir. 1980) (noting that a delay in indictment delays
notice to indictee).
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If there was any doubt, Royle has also failed to show
that "the [g]overnment intentionally delayed [disclosure] . . . to
gain a tactical advantage." Irizarry-Colón, 848 F.3d at 70(quoting Bater, 594 F.3d at 54). As in the pre-indictment context,
this perhaps could have been shown by evidence that the government
purposefully "[d]elay[ed] [disclosure] in order to deprive [him]
of witnesses." Id. at 71. But, again, Royle's argument that this
was the case rests on pure conjecture. Thus, "[e]ven if [Royle]
had demonstrated some degree of prejudice from the delay," this
appeal would fail, as he has "made no concomitant showing that the
government intentionally delayed [disclosure] to gain tactical
advantage." Muñoz-Franco, 487 F.3d at 59; Bater, 594 F.3d at 53-
54 (no violation of due process after four-year pre-
indictment delay, when there was "no evidence that the
government delayed the indictment to deprive [defendant] of
[relevant] testimony") (emphasis original).
We acknowledge that the government's delayed disclosure
was inopportune. "Obviously it is undesirable that [notice]
be delayed . . . ." Bater, 594 F.3d at 54. However, even assuming
that we would apply the analysis used in pre-indictment delay
cases, on these facts there is no showing that Royle was actually
prejudiced by this late disclosure or that it was in bad faith.
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Accordingly, the district court did not abuse its discretion in
denying Royle's motion to dismiss.9
III.
Finally, Royle challenges the sufficiency of the
evidence to prove that he "knowingly possess[ed], or knowingly
access[ed] with intent to view" child pornography found on the
laptop, as required to sustain his conviction under 18 U.S.C.
§ 2252A(a)(5)(B). We disagree.
"We review preserved challenges to the sufficiency of
the evidence de novo, viewing the record in the light most
favorable to the prosecution and rejecting such challenges if any
rational jury could have convicted the defendant when considering
all the evidence, direct and circumstantial, in this way." United
9We note that applying caselaw from the Brady context would
also not help Royle. When the government has delayed disclosure
of exculpatory evidence, we review for abuse of discretion, and
affirm unless "the delayed disclosure prejudiced the defendant."
United States v. Montoya, 844 F.3d 63, 71 (1st Cir. 2016). In
this context, "the test is whether defendant's counsel was
prevented by the delay from using the disclosed material
effectively in preparing and presenting the defendant's
case." United States v. Ingraldi, 793 F.2d 408, 411-12 (1st Cir.
1986). "[A] court's principal concern must be whether learning
the information altered the subsequent defense strategy, and
whether, given timeous disclosure, a more effective strategy would
likely have resulted." United States v. Devin, 918 F.2d 280, 290
(1st Cir. 1990). For the same reasons his challenge fails in the
pre-indictment delay context, he also would not succeed if we used
the lens of the Brady cases: Royle has not shown prejudice from
his delayed notice of the search.
- 22 -
States v. Levin, 13 F.4th 96, 99 (1st Cir. 2021). "[T]he issue is
not whether a jury rationally could have acquitted but whether it
rationally could have found guilt beyond a reasonable doubt." Id.at 99–100 (quoting United States v. Breton, 740 F.3d 1, 16 (1st
Cir. 2014)) (quotation omitted). Because Royle moved for an
acquittal at the close of the government's case and the district
court reserved decision, we must "consider only the evidence
presented in the government's case-in-chief to assess whether 'a
rational factfinder could find, beyond a reasonable doubt, that
the prosecution successfully proved the essential elements of the
crime.'" United States v. Ortiz, 447 F.3d 28, 32 (1st Cir. 2006)
(quoting United States v. Moran, 312 F.3d 480, 487 (1st Cir.
2002)); see Fed. R. Crim. P. 29(b). Accordingly, we turn to an
examination of the evidence introduced by the government.
A.
As discussed above, the government's trial evidence
consisted of testimony from SA Fife and DHS special agents Douglas
McDonnell and Seth Plumb, as well as forensic evidence consisting
of images and other data extracted from the laptop.
To carry its burden on the mens rea element presently at
issue, the government argued that this circumstantial evidence
established that Royle was the user responsible for the child-
pornography-related contents of the laptop.
- 23 -
This forensic data fit into roughly six related
categories. First, the government introduced 17 exhibits, showing
images of child pornography recovered from the laptop's deleted
files. Some of the images contained superimposed text (i.e., a
text stamp) depicting the name of a child pornography website.
Second, the government introduced evidence of internet-
browser screenshots recovered from the laptop's deleted files
containing the images previously discussed. As SA Plumb explained,
these screenshots depicted what would have been visible in the
browser at the time the corresponding images were displayed. He
further explained that certain browsers capture such screenshots
automatically, in order to show recently viewed webpages when a
new browser window is subsequently opened. Another explanation he
offered for how such screenshots could end up on (or deleted from)
a device is if they were affirmatively taken by a user.
Third, the government produced internet browsing
history, in chart form, collecting certain browsing activity
recovered from the laptop's Firefox web-browser application from
10 dates spanning the period from April 2, 2015 to July 13, 2015.
As SA Plumb explained, the chart was generated using a forensic
tool and listed the following information: various web addresses
visited by the browser; the corresponding title or name of each
address's webpage as displayed therein; the date and time each was
- 24 -
visited;10 the number of times each was visited;11 and whether or
not the website was typed into the browser by a user. The chart
showed visits to video-chat and image-hosting websites that, in SA
Plumb's investigative experience, were linked to child
pornography, such as ImageTwist, Omegle, and mrvine.net.
Moreover, some of the web addresses themselves and titles of the
webpages used terms associated with child pornography (or
otherwise suggestive of sexually explicit content involving
minors), such as "Jailbait Amateur Pictures" and "Teens-posing and
sex." This included a site displayed as "stickamgfs.com," which
frequently appeared in the browser history.
The chart further reflected that many of the visits to
these websites occurred at late evening hours, and sequentially,
for periods of time ranging from 20 minutes to an hour.
Furthermore, SA Plumb identified that some of the web addresses
visited by the laptop matched the superimposed text, or file names,
reflected in the sexually explicit images recovered from the
laptop. For example, one image was superimposed with "4947-
pul.avi.," which was embedded in an ImageTwist web address visited
The chart indicated the time in Universal Coordinated Time
10
(UTC), and Plumb explained to the jury that this is four or five
hours ahead of the time in Portland, Maine. Exactly how many hours
ahead depends on the "time of year."
This metric only reflects a hit for a user going "to that
11
one page that one time" -- thus, this metric is "precise to [a
specific] web address."
- 25 -
on May 7, 2015: "http:imagetwist.com/dbk60c5x4il7/4947-
pul.avi.jpg.html."
Fourth, the government introduced another chart
generated by SA Plumb's forensic tools, the "SessionStore
Artifacts," that contained additional information about the
laptop's use of the Firefox browser. As SA Plumb explained, the
SessionStore Artifacts reflected "a record of the most recent use
of that browser," listed in individual entries containing a "title"
and web address, but no data as to the date or time the material
was accessed. In some instances, the "title" reflected search
terms used in various search engines, including Google and Bing.
For example, searches discussed during SA Plumb's testimony
reflected Bing searches for "Young Teens in Swimsuits Candid,"
"Junior High Schools Bikinis," and "Tween Teen Bikinis Candid."
SA Plumb further identified entries showing visits to some of the
child-pornography-linked sites discussed above, e.g., ImageTwist,
mrvine.net, and other sexually explicit references to "[j]unior
[h]igh [s]chool" and "9_or_10_year_old_girl[s]." As with the
browsing history example, SA Plumb was able to match several
SessionStore Artifacts entries with file names appearing on the
child pornography images previously introduced.
Fifth, the government introduced a third chart
summarizing "Launch Services Quarantine Events" (LSQ) data
extracted from the laptop and examined by SA Plumb. As SA Plumb
- 26 -
explained, LSQ data records instances in which a MacBook's user
attempts to open a file downloaded from the internet. When such
an attempt is made, the computer automatically provides a "yes" or
"no" prompt to the user before the file can be opened, and this
event is recorded. He further pointed out several entries between
2012 to 2013 recording attempts to open files with sexually
explicit references to minors.
Finally, Plumb testified regarding a fourth chart
reflecting extracted "QuickLook Thumbnail Cache" data. He
explained that the QuickLook feature enables a user to quickly
view the contents of files held in a folder directory by selecting
an individual file and hitting the space bar. The data reflected
in the QuickLook chart show the filenames and pathways for files
that are prepared to be launched from the QuickLook feature. SA
Plumb then proceeded to discuss specific entries of this data
extracted from the MacBook. As he discussed and the jury was
shown, many of the file names in these entries reflected picture
and video files with overt references to minors engaged in sex
acts, previously discussed websites, e.g., Omegle, or terms such
as "jailbait." These files were all in the "aMule Downloads"
folder.
As SA Plumb explained, aMule is a peer-to-peer file
sharing program, which allows a user to search for and download
files from the machines of other users over the internet. A user
- 27 -
of a peer-to-peer program can locate files of interest by using
search terms, and can then download any particular file by
"clicking" on it. With aMule, any such downloaded files will
populate in an aMule downloads folder on the user's computer, which
is automatically created by the program. SA Plumb further
explained that, to his knowledge, a file would have to be clicked
on by a user in order to be downloaded and populate in such a
folder. Further evidence captured in the laptop's browsing history
showed searches suggesting that the aMule program had been
downloaded to the laptop from the internet, in April 2015.
Although the aMule program was not installed on the MacBook when
it was seized, SA Plumb confirmed through additional forensic tools
that it was installed and running on the laptop as of July 9, 2015.
B.
Royle does not contest that the government sufficiently
proved that the laptop both contained child pornography and
reflected visits to websites associated with child pornography.
Instead, he contends that the government failed to prove that Royle
downloaded those images or visited those websites. Boiled down,
his argument is twofold. First, he argues that the evidence failed
to prove that the child pornography's presence on the laptop was
a result of knowing human activity, rather than automated computer
activity. Second, he argues that even if the evidence sufficiently
established that a person was responsible, no rational jury could
- 28 -
conclude that he was that person without impermissible
"guesswork." For this second argument, Royle heavily relies on
our decision in United States v. Pothier, 919 F.3d 143 (1st Cir.
2019). We address and reject each argument in turn.
1. Human Activity
Royle argues that various non-volitional "automatic
process[es]" could have caused the pornographic material to end up
on the computer. Specifically, he argues that processes such as
"caching," "pre-fetching," "re-direction," or "malware" could
explain the presence of illegal material on the laptop.12 He points
to SA Plumb's concession on cross-examination that he could not
say for certain how the images recovered from the laptop got there
and that it could have possibly been due to one of those automated
processes. But a rational jury could have readily found this
theory implausible, given the volume of evidence showing child
pornography browsing and peer-to-peer downloads, and other
evidence tending to show that a human accessed the recovered
images.
12 Both pre-fetching and caching are processes that allow
computers to quickly respond to queries from users. As SA Plumb
testified, pre-fetching refers to a process in which "files that
[have] previously been accessed are . . . prioritized in a way to
allow them to be in active memory quicker." Likewise, caching is
an automatic process in which the browser saves items displayed on
the screen "to a certain degree within the computer," so if a user
returns "to that page or . . . want[s] to access that link it will
be available to [him] more quickly."
- 29 -
First, a reasonable jury could have rejected the notion
that child pornography inadvertently ended up on the computer
through these automated processes in light of the considerable
volume of that data in evidence. For instance, the browsing
history, reflecting activity from 10 dates spanning April to July
2015, collectively showed hours of sequential visits to dozens, if
not hundreds, of webpages associated with child pornography.
Similarly, the SessionStore Artifacts chart contained over 1,400
individual entries for webpages recently visited by the laptop's
browser, many of which very clearly reference child pornography.
The volume of this activity helps dispel any reasonable doubt about
whether the data resulted from mistake or the automated processes
of innocent web browsing. Cf. United States v. Myers, 560 F. App'x
184, 187 (4th Cir. 2014) (holding that the "plethora of child
pornography on [defendant's] computer . . . establish[ed] that it
was not by mistake or error that the files were downloaded").
Second, multiple pieces of evidence showed that the
laptop was affirmatively manipulated by a human, in at least some
instances, in connection with child pornography viewing activity.
For example, the browsing activity evidence, aided by SA Plumb's
testimony, showed that visits to the sites omegle.com and
stickamgfs.com were initiated by a person typing those addresses
- 30 -
into the browser window.13 Omegle.com, which had three typed visits
logged as of April 2015, was known to SA Plumb through prior child
exploitation investigations and was superimposed on some of the
images in the case. Similarly, typing-initiated visits to
stickamgfs.com on separate days in May 2015 linked to pages with
"Jailbait Videos" in the title. The SessionStore Artifacts
evidence further supports an inference of human-initiated
activity, where searches for illicit terms such as "Young Teens in
Swimsuits Candid" appeared. Cf. Breton, 740 F.3d at 17 (noting
that a "history of visits to websites with a child pornography
connection or use of search terms associated with child pornography
can support a finding that the defendant knew the images he
retrieved contained child pornography"); United States v. Shiver,
305 F. App'x 640, 643 (11th Cir. 2008) (rejecting the theory that
child pornography appeared "on [defendant's] computer without his
knowledge by a virus or by 'pop-up' windows that appeared on his
computer screen unbidden," when "the government's computer expert
testified that Internet searches conducted on [the defendant's]
computer used words and terms that were likely to return
pornographic images of children"). Further evidence reflecting
repeated viewing of specific pornographic videos also cuts against
13SA Plumb acknowledged that this search could appear "typed"
if it had been copied and pasted. This, however, still evidences
volitional activity.
- 31 -
a theory that malware or automatic "re-direction" was the real
perpetrator. See Shiver, 305 F. App'x at 643 (repeated viewing of
image supports theory of volitional activity).
Moreover, the contents of the aMule downloads folder
provide further evidence that a human downloaded the child
pornography found on the MacBook. SA Plumb testified that any
downloads from aMule "would have had to have been clicked on and
downloaded" to end up in that folder. And the content in the aMule
downloads folder suggests a human used aMule to download child
pornography, given that the titles in the folder explicitly
referenced girls ranging from "6Yo" to "15Yo" engaging in sex acts.
The government did not introduce any of the images or videos from
the aMule files into evidence. However, as we have previously
recognized, "[t]he presence of files with names indicative of child
pornography -- even absent further proof of what, if anything,
those files contained -- tends to make it more probable that [a
defendant] knowingly was involved with child pornography."
Breton, 740 F.3d at 14.14
14 TheaMule downloads folder and its files were not actually
present on the laptop when recovered. However, the government
sufficiently established that they were, at some time, through SA
Plumb's explication of the function of the QuickLook Thumbnail
cache. It further demonstrated that the aMule program was
apparently removed from the laptop sometime between July 9, when
it was known to be running, and the July 14 seizure, when it was
no longer installed.
- 32 -
Moreover, the pornographic content on the computer was
consistent across time and across various tranches of data (aMule,
QuickLook, etc.), suggesting human -- not automated -- activity.
The aMule file names reflect the same sources of content shown in
the browsing history (e.g., Omegle and stickam) and use of similar
terms (e.g., "jailbait"). The computer activity also reflected an
absorption with certain subject matters: young girls of a specific
age (10 to 15 years old), bikinis, and young girls from Russia. A
rational jury could conclude that a human with particular interests
was behind these queries and downloads.
In sum, ample evidence supported the conclusion that a
human being was responsible for the child-pornography-related
evidence recovered from the laptop.
2. Evidence linking Royle to the Computer
There is also sufficient evidence to support the jury's
finding that Royle, and not some other person, was behind the child
pornography activity at issue. While there is no direct evidence
that Royle knew the images were on the laptop, "[w]e have
recognized that knowledge of child pornography 'often is shown
through circumstantial evidence.'" Levin, 13 F.4th at 100 (quoting
Breton, 740 F.3d at 17). Here, a reasonable jury could infer that
Royle knowingly possessed the child pornography from
circumstantial evidence that he used the computer during the period
that child pornography browsing activity occurred and that he was
- 33 -
the only plausible person who could have initiated the wipe
function.
First, the evidence is sufficient to show that Royle was
the only adult resident of the home where the computer was found.
It was undisputed that Royle owned and resided at the home and
that the home's internet service was registered in his name. The
wifi network for the home was titled with Royle's initials. The
government also established that Royle was observed at the home
before the warrant was executed, and that only he and his two small
children were there when agents arrived during the early morning
hours of July 14. SA Fife further testified that, based on his
walk-though of the home, it appeared that only one adult was living
there. He also explained that Royle needed to call someone to
pick up the children. Moreover, a reasonable jury could conclude
that the room in which the laptop was found -- where it was open,
and positioned on a desk -- was an adult's workspace, and therefore
Royle's.15 Thus, when a computer was seized from the home, and
from this room, the jury could reasonably infer that it belonged
to Royle, the home's only adult resident.
15Pictures of this room introduced by the government showed
the MacBook on top of a desk, next to a printer. Other items
visible on the desk were various papers, sticky notes, and a stack
of books, including "The Goldfinch" by Donna Tartt and "On
Immunity" by Eula Biss. A wooden baseball bat appeared beside the
desk.
- 34 -
Various evidence from the computer itself further
confirms that Royle used the laptop with some regularity. Indeed,
Royle admitted to SA Fife that he used the laptop to access "Citrix
client" for his work. Forensic evidence also showed that Royle
had stored some personal documents on the computer. For example,
filenames in the QuickLook Thumbnail Cache included "Royle
Boys.jpg," "Royle, George 1400010680.pdf," "GEORGE.docx." The
MacBook also contained tax-related documents, i.e.,
"2014TurboTaxReturn.pdf" and "GRFund 1099." A reasonable jury
could further find additional filenames were linked to Royle, such
as "Notes on SM Deposition.docx," given evidence that he was an
attorney, and "CHILD SUPPORT AFFIDAVIT.pdf," given evidence that
he was divorced and had young children.
There was also evidence of innocent browsing activity
that the jury could have reasonably linked to Royle. For instance,
evidence showed browsing activity associated with repair
facilities in Portland, Maine, the local weather, Portland Sea
Dogs tickets, baseball cards, questions about childcare, and
activities to do with children. These queries all match up with
what the jury knew about Royle -- he owned a home in Portland, had
two young children, and had an interest in baseball.16 From all
The photo shown to the jury of the room that jurors could
16
conclude was Royle's showed a baseball bat among his other
belongings.
- 35 -
of this evidence, a reasonable jury could find that Royle used the
laptop with some degree of regularity, which further supports a
conclusion that he knew about the illicit images beyond a
reasonable doubt.
All of this evidence supports a reasonable inference
that Royle was the only adult living at the home while the laptop
-- which he indisputably used -- accessed child pornography. A
reasonable jury could have relied on this evidence in concluding
that Royle was the only plausible user behind that activity.
Indeed, the forensic evidence showed that the child-pornography-
related browsing often occurred late at night and early in the
morning. As we have recognized, evidence of child pornography
access during times that only a person occupying a room or a home
would be present tends to show that the primary occupant was
responsible for such activity. See United States v. Figueroa-
Lugo, 793 F.3d 179, 188-89 (1st Cir. 2015) (evidence that illicit
files were downloaded at around 4:00 a.m. onto computer found in
defendant's bedroom supported jury's rejection of other-user
defense theory, where there was "no evidence that anyone else slept
in the room or was present during the early morning hours"); see
also United States v. Salva-Morales, 660 F.3d 72, 75 (1st Cir.
2011) (per curiam) (holding that it was reasonable to infer that
owner of shop in which child-pornography-containing computer was
found was behind access to illicit files accessed around 2:00 a.m.
- 36 -
and 9:00 a.m., given that he "locked up the shop at night . . . and
presumably opened it as well in the morning"). This is a common-
sense inference. United States v. Williams, 717 F.3d 35, 40 (1st
Cir. 2013) ("Jurors have the right -- indeed, the obligation -- to
use their common sense in evaluating and drawing inferences from
circumstantial evidence.").
Finally, the fact and timing of the wipe function
initiated on the laptop was highly probative of Royle's knowledge
of the child pornography files. First, "evidence that a person
deliberately deleted or attempted to delete files containing child
pornography tends to show that the person was aware of the files
and their illicit nature." Breton, 740 F.3d at 13; United States
v. Glassgow, 682 F.3d 1107, 1109-10 (8th Cir. 2012) (knowledge
shown, in part, from deletion of images).17
The evidence reasonably supported a finding that Royle
was the initiator of this wipe. As discussed above, the government
established that the wipe function began at 6:55 a.m., and that
Royle was the only adult home at 7:40 a.m. when the agents
discovered the open computer on a desk upstairs. Although it is
perhaps conceivable that an unknown, overnight or early-morning
17 Thefacts in Royle's case provide especially compelling
indicia of guilt, as the computer user here did not simply put
files in the trash -- the pornographic content had already been
deleted once, then a wipe function was initiated to further
eviscerate the files.
- 37 -
guest initiated the wipe and left without trace prior to the
agents' arrival, a reasonable jury could well find this theory
implausible, based on the evidence previously discussed. In
addition to evidence tending to show that Royle was the only adult
living in the home and that he used the laptop, evidence showed
that the wipe function would take approximately 13 hours to
complete. Royle's argument that a transitory guest would have
left the laptop unattended in Royle's home to complete this process
defies common sense. See, e.g., United States v. Shaw, 670 F.3d
360, 366 (1st Cir. 2012) ("[J]urors are neither required to divorce
themselves from their common sense nor to abandon the dictates of
mature experience" (quoting United States v. Ortiz, 966 F.2d 707,
712 (1st Cir. 1992))).18
3. Pothier: Other Plausible Users Theory
Lastly, to the extent Royle argues that our decision in
Pothier is "materially identical" to his case and compels reversal,
18 Royle argues that the wipe function was a perfectly innocent
application to run. But, for the reasons discussed, a reasonable
jury could supportably conclude that under these circumstances it
evinced consciousness of guilt, rather than routine maintenance.
United States v. Ortiz, 966 F.2d 707, 712 (1st Cir. 1992) ("When
assessing sufficiency challenges in criminal cases, we have
remarked, time and again, that factfinders may draw
reasonable inferences from the evidence based on shared
perceptions and understandings of the habits, practices, and
inclinations of human beings."). This is particularly so given
the time-intensive nature of the process, the testimony that many
files on the computer had already been deleted once, and that the
wipe function, if completed, would have prevented forensic
examiners from recovering the data.
- 38 -
he is mistaken. In Pothier, we reversed a child pornography
conviction, holding that the evidence in that case was insufficient
to support a finding that the defendant knowingly possessed child
pornography. Pothier, 919 F.3d at 144, 148.
The defendant in that case, William Pothier, owned a
laptop that was found to contain child pornography. The laptop
was discovered by police in an Exeter, New Hampshire, apartment
where two adults other than Pothier received mail. Id. at 146-
47. One of these two other people -- Josephine Pritchard -- owned
the apartment. Id. at 146. There was no additional evidence about
the third adult. Id. Pothier also had a New York apartment where
he would spend time, and owned other property in New Hampshire,
where his car was registered. Id.Police seized Pothier's laptop after initiating a search
of the residence. When police arrived to execute the search, they
repeatedly knocked on the door, and Pothier did not respond to the
knocking for some time. Id. at 145. After entering the apartment,
the police found the laptop in the living room of the residence.
Id. at 144. The owner of the apartment, Pritchard, arrived during
the search. Id. at 146.
Like the laptop here, Pothier's computer was not
password protected. Id. at 145. Although Pothier admitted to
owning the laptop and indisputably "used [it] on at least a handful
of occasions," it was unknown "whether he left the laptop at the
- 39 -
[residence in question] when he was elsewhere." Id. at 146-47.
At trial, the prosecution's "sole theory" was that "Pothier must
have known that the illicit material was on his laptop because he
was the only person who otherwise used [it], and therefore must
have been the person who downloaded the pornography." Id. at 147.
In reversing Pothier's conviction on that theory, we
explained that the government's evidence for the "knowing" element
required "guesswork" between two "plausible" scenarios. Id. at
147. On the one hand, it was plausible that Pothier downloaded
the 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." Id. On the other hand, it was
also plausible that one of the two other adults "used the readily
available laptop during Pothier's frequent absences to download
the . . . child pornography." Id. Without more evidence to
reasonably support a finding as to "which scenario describe[d]
what happened," we held that the jury's acceptance of the former
theory was necessarily based on "guesswork." Id. As we explained,
"[g]uilt beyond a reasonable doubt cannot be premised on pure
conjecture." Id. (quoting Stewart v. Coalter, 48 F.3d 610, 615
(1st Cir. 1995)) (alterations original). But "pure conjecture" is
not what we have here.
Royle seems to suggest that Pothier created a bright-
line rule that, where "someone other than the defendant had the
- 40 -
opportunity to use a [child-pornography-containing] computer," the
government must affirmatively offer evidence "rul[ing] out" this
other person or directly prove the defendant was using the computer
when the illicit material was accessed. Here, Royle contends that
other plausible "someone[s]" include the computer's automated
processes, his ex-wife, the "unknown white female" observed
outside of his house, or a burglar. He contends that Pothier
requires reversal in this case because the government did not
affirmatively "rule out" these other potential suspects. But Royle
misreads things.
Our decision in Pothier created no such rule and
expressly disclaimed any attempt to "make new law." Pothier, 919
F.3d at 149. The law remains that "[t]he government need not
present evidence that precludes every reasonable hypothesis
inconsistent with guilt in order to sustain a conviction." United
States v. Hernández, 218 F.3d 58, 64 (1st Cir. 2000) (quoting
United States v. Loder, 23 F.3d 586, 590 (1st Cir. 1994)); United
States v. Naranjo-Rosario, 871 F.3d 86, 92–93 (1st Cir. 2017) ("[We
need not] be convinced that the government succeeded
in eliminating every possible theory consistent with the
defendant's innocence." (quoting United States v. Troy, 583 F.3d
20, 24 (1st Cir. 2009))). Rather, the government need only prove
each essential element of a charge beyond a reasonable doubt.
United States v. Rodríguez-Vélez, 597 F.3d 32, 39 (1st Cir. 2010).
- 41 -
For the reasons already discussed, a reasonable jury could conclude
that the government did so here.
Even if we assume, arguendo, that Royle's theories of
other persons using the laptop to access child pornography are
"plausible" on their face, the weight of the government's evidence
here is markedly stronger than the "surprisingly incomplete
record" in Pothier. See 919 F.3d at 147, 149. Unlike in Pothier,
here, the government presented evidence that Royle was the only
adult resident of the house, the laptop was found in a more private
space than a living room, and the laptop was used to access child
pornography during hours in which a resident of the house would
presumably be home alone. The wipe-function evidence moves the
needle to point even further away from a "plausible" coin-toss to
Royle, and toward beyond a reasonable doubt, given the timing of
when it was run.19 Indeed, in Pothier, we noted that the absence
of any similar attempt by the defendant to destroy the laptop's
We note that a rational jury would have been well-supported
19
in rejecting alternative theories about the wipe as implausible or
overly speculative. We refer to our discussion above as to Royle's
argument that the laptop itself could have been the culprit. The
notion that a person's ex-wife would briefly show up to his house
at 6:00 a.m. to initiate a 13-hour wipe-function and then leave is
implausible. Similarly, the notion that the "unknown white female"
was behind the wipe, to the extent she was a different person, is
too speculative to disrupt this verdict. The suggestion that a
burglar, who periodically entered a dwelling over a period of
months to download pornography, broke back into that home to delete
evidence of his activity strains common sense. Although Royle
does not specifically argue that any of these other potential users
was behind the wipe function, his argument necessarily implies it.
- 42 -
child pornography -- despite perhaps having the time and means to
do so -- undermined the sufficiency of the government's scant
evidence. See Pothier, 919 F.3d at 147-48.20 In sum, the
combination of these factual distinctions removed the jury's task
from the "guesswork" apparent in Pothier.
We conclude by noting that we agree with the district
court's observation that "[t]he prosecution could have done more
to investigate and demonstrate the laptop's provenance, usage, and
location," and "other adults' access to the house." United States
v. Royle, No. 2:18-cr-165-JNL, 2020 WL 2617133, at *9 (D. Me. May
22, 2020). However, this perspective alone does not allow us to
disturb the jury's verdict. See, e.g., Salva-Morales, 660 F.3d at
75. Here, the government did enough. "Viewing the record as a
whole and using their common sense," a rational jury could have
found Royle guilty beyond a reasonable doubt. Williams, 717 F.3d
at 40.
IV.
AFFIRMED.
Pothier took about 15 minutes to answer the door to allow
20
the police in; we noted that he did not run a wipe function or
hide the computer during this "lengthy delay." Pothier, 919 F.3d
at 147-48.
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