United States v. Goff

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 23, 2005
Charles R. Fulbruge III
Clerk
No. 05-50230
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DENNIS LANE GOFF,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:04-CR-31-ALL
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Before REAVLEY, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Dennis Lane Goff appeals his convictions, following a jury
trial, of five counts of shipping or transporting visual
depictions of minors engaging in sexually explicit conduct, nine
counts of receiving such depictions, and one count of possession
of such depictions, in violation of 18 U.S.C. § 2252(a)(1),
(a)(2), and (b)(4)(A). The court sentenced Goff to concurrent
120-month prison terms and concurrent three-year terms of
*
Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 CIR.
R. 47.5.4.
No. 05-50230
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supervised release.
Goff contends that the trial evidence was insufficient
to support any of his convictions. The standard for reviewing a
claim of insufficient evidence is whether, “‘after reviewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found that the evidence
establishes the essential elements of the offense beyond a
reasonable doubt.’” United States v. Bellew, 369 F.3d 450, 452
(5th Cir. 2004) (citing Jackson v. Virginia, 443 U.S. 307, 319
(1979)). Review of the sufficiency of the evidence does not
include review of the weight of the evidence or of the
credibility of the witnesses. United States v. Garcia, 995 F.2d
556, 561 (5th Cir. 1993).
Goff contends that the evidence was insufficient to support
his shipping or transporting convictions. Goff does not deny
that, in 1999 and 2000, e-mails with attachments containing
visual depictions of minors engaging in sexually explicit conduct
were sent from “screen names” registered by Goff to his e-mail
account with America Online (“AOL”). He argues, however, that
because Government agents failed to find such depictions on the
hard drive of his computer, such convictions cannot stand. There
is nothing in the statutory language of 18 U.S.C. § 2252(a)(1) or
in decisional authority addressing either that statute or its
legally identical counterpart, 18 U.S.C. § 2252A, to support such
an evidentiary requirement. As the Government suggests, the
No. 05-50230
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trial evidence was sufficient to support a jury finding that Goff
had received e-mails with attachments containing depictions of
minors engaging in sexually explicit conduct, and that he had
looked at the attachments, closed the attachments, and forwarded
the e-mails to other AOL subscribers. See Bellew, 369 F.3d at
452.
In a similar contention, Goff argues that the evidence was
insufficient to prove that he had received depictions of minor
engaging in sexually explicit conduct. He maintains that the
evidence did not show that he “downloaded” any depictions he
might have received via e-mail onto his hard drive or onto
computer disks. The evidence did show, however, that screen
names registered by Goff received e-mail attachments with such
visual depictions and that such e-mails bore titles and text like
“yngorgy,” “I like young teen fems,” “have plenty keep replying,”
“veryverybarelylegal,” “traders for young,” “young,” and “young
girls only.” We have held that similar evidence, irrespective of
direct evidence that the defendant had actually looked at the
depictions, supported an inference that a defendant knew he was
receiving child pornography. See United States v. Payne, 341
F.3d 393, 403-04 (5th Cir. 2003).
Goff maintains that the evidence was insufficient to support
his conviction of possession of visual depictions of minors
engaging in sexually explicit conduct. Although he acknowledges
that more than 1,000 such depictions were stored on the hard
No. 05-50230
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drive of his computer, he maintains that evidence of the
placement, in May 2003, of a “Sub 7 Trojan” program on his hard
drive meant that anybody could have been using his computer to
store and view such depictions without his knowledge. Goff also
asserts that the stepson and brother of Sherry Hobbs, with whom
Goff lived during 2001 and 2002, had access to his computer.
Although Government witnesses agreed that a computer hacker could
theoretically use the Sub 7 Trojan to control almost all of
Goff’s computer functions, there was no evidence to show that the
Sub 7 Trojan had actually been used. Moreover, it was not
disputed that it was very unlikely that a hacker would choose
Goff’s computer, which had only dial-up Internet access, to
exploit a Sub 7 Trojan, because, in comparison to a computer with
broadband or high-speed access, a dial-up connection was
extremely slow and was available only when the victim logged onto
the Internet. There was no evidence that Sherry Hobbs’s stepson
had access to Goff’s computer, and Hobbs testified that her
brother used the computer only to play Fantasy Football and that
he knew very little about computers. Finally, Goff’s ex-wife,
Patricia Vanderburgh, testified that, shortly after Goff had
visited her home and used her computer on an occasion in early
2004, she discovered that he had forgotten to close his e-mail
account and that the account’s in-box contained e-mails with
child pornography. The evidence was sufficient to support Goff’s
conviction of possession of visual depictions of minors engaging
No. 05-50230
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in sexually explicit conduct. See United States v. Runyan, 290
F.3d 223, 242-43 (5th Cir. 2002).
Goff contends that the district court erred in admitting
prejudicial evidence, in violation of FED. R. EVID. 404(b), that:
(1) he had choked Hobbs on one occasion; (2) he had possessed a
copy of a magazine called “Barely Legal”; and (3) he had once
told Hobbs that a 12-year-old girl who was sleeping on the family
sofa “turned him on.” We review the admission of Rule 404(b)
evidence for abuse of discretion. See United States v. Bentley-
Smith, 2 F.3d 1368, 1377 (5th Cir. 1993). Hobbs’s testimony that
Goff had once choked her was admitted into evidence only after
Goff had “invited” any such error by cross-examining Hobbs about
statements that she had kicked Goff out of her home and never
wanted to see him again. See United States v. Green, 272 F.3d
748, 754 (5th Cir. 2001). Goff’s attempt to show that Hobbs was
biased against him opened the door to the Government to ask Hobbs
about the reasons for any bias. See United States v. Austin, 774
F.3d 99, 102 (5th Cir. 1985).
The admission of testimony that Goff possessed a magazine
called “Barely Legal” was not an abuse of discretion. Bentley-
Smith, 2 F.3d at 1377. Even if such magazine was adult, legal
pornography, it is implicit in the magazine’s title that its
photographic subjects will be as close in age to being “illegal”
as the First Amendment permits, and the magazine was relevant to
showing that Goff had a “knowing interest in child pornography.”
No. 05-50230
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See United States v. Layne, 43 F.3d 127, 134 (5th Cir. 1995)
(upholding admission of “exhibit featur[ing] a woman dressed up
as a child wearing pigtails and roller skates, which was referred
to by the district court as ‘simulated child pornography’”). The
district court did not abuse its discretion in admitting Hobb’s
testimony that Goff had once told her that he was “turned . . .
on” by a sleeping 12-year-old girl in his home. The court
properly contrasted this evidence to the admission of violent and
disturbing “narratives” involving the sexual abuse of children,
which was held to be reversible error in United States v. Grimes,
244 F.3d 375, 383-85 (5th Cir. 2001). In the cases of both the
magazine and story about the sleeping girl, the court issued
careful limiting instructions that minimized the possibility of
prejudice to Goff. See United States v. Willis, 6 F.3d 257, 262-
63 (5th Cir. 1993).
Goff’s convictions are AFFIRMED.