United States v. Harvey Pelland ( 2012 )

Case: 11-10929 Document: 00512023191 Page: 1 Date Filed: 10/17/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 17, 2012
No. 11-10929 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
HARVEY JAMES PELLAND,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:10-CR-42-1
Before KING, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Harvey James Pelland appeals his convictions on one
count of possessing child pornography and five counts of receiving visual
depictions of a minor engaging in sexually explicit conduct. He argues that the
government offered insufficient evidence to sustain these convictions, that the
possession conviction was based on erroneously decided circuit precedent, and
that the receipt convictions were multiplicitous. For the reasons that follow, we
AFFIRM.
*
Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in 5TH
CIRCUIT RULE 47.5.4.
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I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant-Appellant Harvey James Pelland is a seventy-seven-year-old
Canadian native. In March 2007, he was convicted in British Columbia of
making or publishing child pornography and possessing child pornography. After
serving a prison sentence for these convictions, Pelland moved to the United
States in violation of his parole conditions. While living in Arizona in early 2008,
Pelland met Patsy Poisson in an Internet chat room aimed at users over age
fifty-five. The two later met face-to-face, and continued to have contact via
telephone and the Internet. Because Poisson was to undergo hip surgery in
August 2008, Pelland agreed to house-sit at her home in Odessa, Texas. After
Poisson returned in November 2008, the two became roommates, moving into a
rented house in Big Spring, Texas.
Poisson and Pelland had separate bedrooms in the Big Spring house.
Pelland kept in his bedroom a laptop computer he had owned before moving in,
as well as a Compaq desktop computer that Poisson gave to him after they
moved in. Nobody but Pelland used the desktop computer after Poisson gave it
to him. Poisson also gave Pelland a thumb drive, which she had previously used
only to store music files. Pelland and Poisson each had Internet access in his or
her bedroom.
After law enforcement learned of Pelland’s whereabouts, Big Spring Police
obtained an arrest warrant for Pelland for failing to register as a sex offender.
They arrested him at his and Poisson’s home on April 6, 2009. A federal grand
jury later charged Pelland with multiple child pornography offenses. Although
the district court dismissed the initial indictment without prejudice based on a
Speedy Trial Act violation, the government filed a new criminal complaint
against Pelland. The grand jury then returned a superseding indictment,
charging Pelland with possessing child pornography in violation of 18 U.S.C. §
2252A(a)(5)(B) (Counts 1 and 4), and receiving visual depictions of a minor
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engaging in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2)
(Counts 2–3 and 5–7).
At trial, Big Spring Police Officer Thad Thomas and I.D. Technician
Wayne Jones testified that, following Pelland’s arrest, police searched his
bedroom with his verbal and written consent. They removed, inter alia, the
desktop computer and thumb drive that Poisson had given to him, Pelland’s
laptop, and about thirty-five DVDs. Big Spring Police turned these devices over
to Immigration and Customs Enforcement computer forensics agent James Paul
Cummings, Jr., for investigation and analysis. Cummings testified that he found
over one hundred images of nude children on the desktop’s hard drive, over
thirty such images on the thumb drive, and a video on the thumb drive depicting
a minor engaging in sexually explicit conduct. The parties stipulated that the
visual depictions for which Pelland was charged included actual minors under
age eighteen. Cummings found no sexually explicit files on Pelland’s laptop or
the DVDs.
Testifying as an expert on computer investigations and analysis,
Cummings explained the technical aspects of his findings. Many of the child
pornography files in the desktop and thumb drive included information
respecting their “creation dates.” A creation date can be either the date a file is
transferred onto a new storage device, or a static date showing when a file was
originally created (for example, by being downloaded from the Internet). The
creation dates for the ten files set out in the superseding indictment were six
separate dates between March 18 and 31, 2009.
Cummings verified that the desktop computer’s date and time settings
were correct. Department of Homeland Security (“DHS”) investigator Michael
Brunet testified that Pelland admitted in a post-arrest interview to using the
desktop computer during the period covering the charged files’ creation dates.
Pelland further stated in this interview that he was responsible for any
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pornographic images found on the computers or thumb drive. Although Pelland
was charged only for possessing or receiving files with March 2009 creation
dates, some of the child pornography files that Cummings found had creation
dates as early as May 6, 2008.
Cummings testified that although the image set out in Count 4 was found
in the desktop computer’s “temporary internet files” folder—indicating this
image was downloaded from the Internet—the remaining files set out in the
superseding indictment were in different file paths that did not necessarily
indicate Internet viewing or downloading.
Cummings also testified as to Pelland’s use of “Internet relay chats”
(“IRCs”)—Internet chat rooms that permit users to send electronic messages to
one another. Pelland frequented IRCs related to sexual exploitation of children.
Users in these IRCs asked where they could find child pornography, directed
others to websites where child pornography could be downloaded, and arranged
to exchange child pornography via e-mail or file-sharing programs. Pelland’s
desktop computer automatically generated logs showing the date and time
Pelland entered a child pornography IRC, as well as the explicitly named
“channels” he accessed in these IRCs. Cummings recovered these logs, which
showed IRC log-in dates ranging from February 22 to April 3, 2009. In a trial
exhibit, the government set out the sixteen dates in the period from March 10
to April 3, 2009 on which Pelland accessed at least one IRC. The creation dates
of the ten files for which Pelland was charged each corresponded to an IRC log-in
date.
Pelland confirmed to DHS investigator Brunet that he had used IRCs to
obtain links to child pornography websites, and that he had viewed child
pornography on these websites. Cummings determined that a sexually explicit
website had been accessed from the desktop computer, albeit on a date that does
not match the creation date of any file for which Pelland was charged. Pelland’s
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descriptions to Brunet of the images he had viewed on the Internet were
consistent with the images set out in the superseding indictment.
Cummings also found file-deletion software on the desktop’s hard drive,
which is used to wipe files from a data storage device. Using a computer
operating system’s built-in “delete” function does not completely remove a file;
doing so merely removes the computer’s ability to find the file, and permits the
computer to overwrite the file with new files. Cummings determined that the
file-deletion software had been used, and Brunet testified that Pelland expressed
surprise when Brunet described files Pelland thought he had deleted from the
thumb drive. Poisson testified that she had not installed this software, and that
nobody but Pelland had used the desktop from the time Poisson gave it to him
until police seized it. Pelland’s statements to Brunet corroborated this testimony.
Pelland made an oral motion for a judgment of acquittal at the close of the
government’s case, which the district court denied. Pelland presented no
evidence. The jury found him guilty on all counts, and the district court
sentenced him to concurrent terms of 151 months’ imprisonment on each of the
five receipt convictions and 120 months’ imprisonment—the statutory
maximum—on each of the two possession convictions.
II. DISCUSSION
A. Evidentiary Sufficiency
Because he moved for a judgment of acquittal after the government rested,
and presented no evidence in his defense, Pelland properly preserved his
evidentiary sufficiency argument. United States v. Resio-Trejo, 45 F.3d 907, 910
n.6 (5th Cir. 1995). A challenge to the sufficiency of evidence supporting a
conviction is reviewed de novo. United States v. McDowell, 498 F.3d 308, 312
(5th Cir. 2007). “When reviewing the sufficiency of the evidence, this Court views
all evidence, whether circumstantial or direct, in the light most favorable to the
Government with all reasonable inferences to be made in support of the jury’s
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verdict.” United States v. Moser, 123 F.3d 813, 819 (5th Cir. 1997). “[W]e
consider whether ‘any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” United States v. Jara-Favela,
686 F.3d 289, 301 (5th Cir. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)). “The evidence need not exclude every reasonable hypothesis of innocence
or be completely inconsistent with every conclusion except guilt, so long as a
reasonable trier of fact could find that the evidence established guilt beyond a
reasonable doubt.” Moser, 123 F.3d at 819.
Pelland was charged in Counts 2–3 and 5–7 with violating 18 U.S.C. §
2252(a)(2), which provides punishment for:
Any person who knowingly receives, or distributes, any visual
depiction using any means or facility of interstate or foreign
commerce . . . or which contains materials which have been mailed
or so shipped or transported, by any means including by computer
. . . if the producing of such visual depiction involves the use of a
minor engaging in sexually explicit conduct; and such visual
depiction is of such conduct . . . .
Pelland argues that the government failed to prove each count’s interstate
commerce element because it offered insufficient evidence to show that he
obtained the charged files from the Internet, as alleged in the superseding
indictment. He applies the same argument to the § 2252A(a)(5)(B) possession
offense charged in Count 1, which also includes an interstate commerce element
that can be satisfied by obtaining child pornography from the Internet. Pelland
does not challenge his possession conviction under Count 4.
In reviewing a § 2252A(a)(5)(B) conviction, we have held that the
government must sustain its burden of proof by “independently link[ing] each
image to interstate commerce.” United States v. Henriques, 234 F.3d 263, 266
(5th Cir. 2000). “This standard limits the government’s ability to build a case on
inferences, e.g., by analogizing that since one image was downloaded from the
Internet, the rest of the images must also be connected to the Internet.” Id. The
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Henriques court further held that the presence of child pornography images on
a computer that is connected to the Internet does not by itself establish that the
images were obtained from the Internet. Id. at 266–67.
We subsequently held in United States v. Runyan, 290 F.3d 223, 242 (5th
Cir. 2002), that “circumstantial evidence linking a particular image to the
Internet . . . can be sufficient evidence of interstate transportation to support a
conviction under § 2252A.”
In the instant matter, the trial evidence permitted a “rational trier of fact”
to find beyond a reasonable doubt that Pelland obtained the files in Counts 1–3
and 5–7 from the Internet. See Jackson, 443 U.S. at 319; Henriques, 234 F.3d at
266. This evidence was as follows:
• Pelland admitted to Brunet that he used the Internet to view
and download child pornography;
• Corroborating this admission, Cummings found on Pelland’s
hard drive a URL associated with child pornography, and
found the image set out in Count 4 in the hard drive’s
“temporary internet files” folder;
• Pelland described to Brunet the images and videos he had
viewed on the Internet; Brunet testified that these
descriptions were consistent with the child pornography
images and video for which Pelland was charged;
• Brunet testified that Pelland admitted to visiting Internet
chat rooms focused on child exploitation, and to using them to
obtain links to child pornography websites;
• Cummings testified that he found automatically generated
logs showing the dates on which Pelland logged into these
chat rooms; he further testified that the creation date of each
of the ten files set out in the superseding indictment
corresponded to a log-in date; and
• When discussing with Pelland the images Pelland had
“viewed” on the Internet, Brunet described images from the
video on the thumb drive (charged in Count 6); Brunet
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testified that Pelland “identified those as ones he had viewed,”
implying he had watched the video on the Internet.
We must view all evidence and make all reasonable inferences in support
of the jury’s verdict. Moser, 123 F.3d at 819. The image underlying Count
4—which Pelland concedes came from the Internet—was created on Pelland’s
hard drive on the same day he visited one of the chat rooms from which he
routinely obtained links to child pornography websites. The jury thus could have
reasonably inferred that he downloaded this image from a website he learned of
in the chat room. Based on this strong inference, the jury also could have
reasonably inferred that Pelland obtained the remaining charged files from the
Internet because all were created on days that Pelland visited child pornography
chat rooms. This inference is supported by the unlikelihood that all nine of these
files only coincidentally were created on the sixteen days falling between March
10 and April 3, 2009 on which Pelland accessed IRCs. Although the government
did not show that Pelland downloaded child pornography every day he visited
a chat room, the jury could have reasonably concluded that Pelland’s use of file-
deletion software explained this inconsistency. Brunet’s testimony—that
Pelland’s descriptions of images and videos he had viewed on the Internet were
consistent with the images and video for which he was charged—further
supported an independent link between each charged file and the Internet.
Finally, as we will explain, the jury could have eliminated all non-Internet
sources of child pornography potentially available to Pelland.
Case law in this circuit and others supports upholding Pelland’s
convictions based on this circumstantial evidence. In Runyan, 290 F.3d at242–43, the presence of website addresses and Internet-related advertising
language embedded in the pornographic images was enough for the jury to find
an interstate nexus. In United States v. Hilton, 257 F.3d 50, 54–55 (1st Cir.
2001), the jury permissibly found an interstate nexus when expert testimony
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established that the charged files were located in a subdirectory “contain[ing]
software used in conjunction with Internet chat rooms,” and “the time and date
features of each of the image files were ‘indicative’ of files that had been
transmitted via modem.” In non-pornography cases, evidence that certain events
occurred around the same time has supported criminal convictions. See United
States v. Heron, 323 F. App’x 150, 155 (3d Cir. 2009) (unpublished) (defendant’s
sale of stock on same day that co-conspirator possessed negative information
about company supported securities fraud conspiracy conviction); United States
v. McDermott, 245 F.3d 133, 136, 138–39 (2d Cir. 2001) (evidence consisting
almost entirely of stock trades that correlated to timing of phone calls supported
insider trading conviction).
Relying on Henriques, Pelland incorrectly contends that the government
proved only that he had an Internet connection, and that this does not establish
Internet downloading of the charged files. In Henriques, 234 F.3d at 267–68,
there was no evidence independently linking an explicit image to the Internet.
As we have discussed, there was sufficient circumstantial evidence in the instant
matter to prove that Pelland obtained each file from the Internet.
Pelland also erroneously suggests that the government was required to
prove that he could not have obtained the charged files from non-Internet
sources. He ignores that “[t]he evidence need not exclude every reasonable
hypothesis of innocence.” Moser, 123 F.3d at 819. In any event, the jury could
have reasonably concluded that the Internet was the only plausible source of the
charged files.
The only non-Internet sources suggested at trial were Pelland’s desktop
and laptop computers, the thumb drive, the DVDs, and the computer and disks
in Poisson’s room—all but the last of which were seized in an apparently
thorough search of the Big Spring house. The jury could have ruled out each of
these alternative sources.
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The jury could have found that Poisson’s computer and disks contained no
pornography because Pelland told Brunet that she “was too religious to look at
stuff like that.” Further, Cummings testified that it was highly unlikely that
Poisson accidentally downloaded pornography onto the computer or thumb drive
she gave to Pelland.
Although Pelland could have transferred existing files from his DVDs or
laptop onto the thumb drive and desktop, Cummings testified that he found no
pornography on the DVDs or laptop. Because the most recently created file in
the superseding indictment had a March 31, 2009 creation date—one week
before Pelland was arrested—the jury could have reasonably concluded that
Pelland did not transfer the charged files to the thumb drive and desktop and
then destroy any files on his DVDs and laptop just before the unexpected arrest.
The jury had additional reasons to rule out possible alternative sources.
Pelland’s child pornography files—both charged and uncharged—had creation
dates ranging from May 2008 to March 31, 2009. As Cummings testified, a
creation date can be the date a file was downloaded from the Internet or the date
it was transferred from another device. Pelland contends that the creation dates
reflect the dates on which he transferred pre-existing files onto the thumb drive
and desktop, not the dates on which they were originally downloaded. The jury
could have reasonably concluded, however, that Pelland would not have
transferred the files in a piecemeal fashion on many separate dates, and that
Internet downloading on separate dates was more plausible.
If, as Pelland urges, creation dates reflected the dates that pre-existing
files were transferred (and not download dates), none of the files on the thumb
drive or desktop could have had creation dates earlier than November 2008—the
date Poisson gave these devices to Pelland, and thus the earliest date he could
have transferred files onto them. Because some of the uncharged files have
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creation dates going back to May 2008, however, the jury could have reasonably
inferred that the creation dates reflected download dates, not file transfer dates.
The jury also could have ruled out the possibility that Pelland obtained the
files from in-person exchanges with others. First, no evidence suggested Pelland
sought out such exchanges. See United States v. Wollet, 164 F. App’x 672, 676
(10th Cir. 2006) (unpublished) (“The evidence contains no inference that
someone else gave [the defendant] the diskettes, nor that the pornographic
images traveled any alternative path to his doorstep.”). Second, Pelland had
admitted to viewing child pornography on the Internet, and to obtaining links
to child pornography websites from the chat rooms he frequented. The jury could
have reasonably inferred that because Pelland was already using the
Internet—which he could conveniently access from his own home—he would not
have gone out of his way to obtain child pornography files in person.
In view of these deductions, the jury could have reasonably concluded that
Pelland’s only plausible source of child pornography files was the Internet. See
Jackson, 443 U.S. at 319. Because this and other circumstantial evidence
established an independent link between each charged file and the Internet, we
will not disturb the jury’s verdict as to Counts 1–3 and 5–7. Runyan, 290 F.3d
at 242; Henriques, 234 F.3d at 266.
B. Alternate Interstate Commerce Theory
Pelland also challenges the government’s alternate interstate commerce
theory as to Count 1. He was charged in this count with violating 18 U.S.C. §
2252A(a)(5)(B), which provides punishment for:
Any person who . . . knowingly possesses, or knowingly accesses
with intent to view, any . . . material that contains an image of child
pornography . . . that was produced using materials that have been
mailed, or shipped or transported in or affecting interstate or
foreign commerce by any means . . . .
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Pelland concedes that the government proved the interstate commerce
element of this charge. This court has held that “producing” includes copying an
existing file by saving it onto a storage device. United States v. Dickson, 632 F.3d
186, 189–90 (5th Cir.), cert. denied, 131 S. Ct. 2947 (2011). Because the two
images underlying Count 1 were saved onto a Chinese-manufactured thumb
drive, they were “produced using materials that have been mailed, or shipped
or transported in or affecting interstate or foreign commerce.” 18 U.S.C. §
2252A(a)(5)(B) (emphasis added). Pelland argues, however, that the Dickson
court incorrectly defined the term “produced.” Under the correct definition, he
contends, an offender must “direct, manufacture, issue, publish, or advertise” the
pornographic image, none of which he is alleged to have done.
Pelland’s argument respecting the definition of “produced” is moot
because, as we have discussed, the trial evidence was sufficient to prove the
government’s primary interstate commerce theory—that Pelland obtained the
Count 1 images from the Internet. In any event, because Dickson has not been
overruled or superseded by a decision of the Supreme Court or this court sitting
en banc, we cannot overturn it. Burge v. Parish of St. Tammany, 187 F.3d 452,
466 (5th Cir. 1999). Pelland recognizes that we must follow Dickson, and raises
this argument only to preserve it for further review.
C. Multiplicity
Pelland argues that his five receipt convictions are multiplicitous.
“Convictions are multiplicitous when the prosecution charges a single offense in
more than one count.” United States v. Buchanan, 485 F.3d 274, 278 (5th Cir.
2007) (citation and internal quotations omitted). “Where a multipart transaction
raises the prospect of multiplicity under a single statute, the question becomes
whether separate and distinct prohibited acts, made punishable by law, have
been committed.” United States v. Reedy, 304 F.3d 358, 363–64 (5th Cir. 2002)
(citation and internal quotations omitted).
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The government argues that Pelland has waived a multiplicity challenge
to the receipt charges because he did not allege this defect before trial or show
cause for failing to do so. Fed. R. Crim. P. 12(b)(3), (e); United States v. Soape,
169 F.3d 257, 265 (5th Cir. 1999). But see 1A Charles Alan Wright & Andrew D.
Leipold, Federal Practice and Procedure § 193 (4th ed. 2008) (noting circuit
split). The government concedes, however, that a defendant may appeal
otherwise concurrent sentences on multiplicity grounds if, as here, separate
monetary assessments have been imposed as to each conviction. United States
v. Galvan, 949 F.2d 777, 781 (5th Cir. 1991). Pelland appears to challenge his
sentences, and thus has not waived his multiplicity argument.
Because Pelland challenges multiplicitous sentences for the first time on
appeal, plain-error review applies. United States v. Spurlin, 664 F.3d 954, 965
(5th Cir. 2011). Under this standard, he must show that “(1) there is error; (2)
the error was clear and obvious, not subject to reasonable dispute; and (3) the
error affected his substantial rights. United States v. Hebron, 684 F.3d 554, 558
(5th Cir. 2012). If he makes this showing, we may “remedy the error, but only if
it seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id.Pelland relies on Buchanan, 485 F.3d at 277–78, in which the defendant’s
four receipt convictions were based on four child pornography images found on
one compact disc. We held that the convictions were multiplicitous because the
trial evidence did not establish that the defendant “took more than one action
to receive” the images—for instance, by downloading the images in four separate
transactions from the same website, or by accessing separate websites from
which each image was received. Id. at 282.
As we have discussed, the jury could have reasonably concluded from the
matching file creation dates and chat room log-in dates that Pelland received
each charged file from an Internet link he obtained from a chat room. Because
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the creation dates of the files underlying each of the five challenged convictions
reflect five separate download dates, these convictions are based on five
“separate and distinct prohibited acts.” Reedy, 304 F.3d at 363–64. Accordingly,
the district court’s imposition of a separate sentence as to each receipt conviction
was not error, much less plain error.
III. CONCLUSION
For the foregoing reasons, the district court’s judgment is AFFIRMED.
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