United States v. John Terrell

Case: 11-50602 Document: 00512043586 Page: 1 Date Filed: 11/05/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 5, 2012
No. 11-50602 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JOHN RAY EDWARD TERRELL, also known as John Ray Terrell,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
Before BENAVIDES, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:
Before the Court is Defendant John Ray Edward Terrell’s (“Defendant-
Appellant Terrell”) appeal of his conviction for one count of producing child
pornography and sexually exploiting a child, in violation of 18 U.S.C. § 2251(a)
& (e), and one count of knowingly possessing child pornography, in violation of
18 U.S.C. §§ 2252A(a)(5)(B), 2252A(b)(2), and 2256(8)(A). We AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
On June 12, 2007, a federal indictment charged Defendant-Appellant
Terrell with producing child pornography in violation of 18 U.S.C. § 2251 (a) and
(e) and with knowing possession of child pornography, in violation of 18 U.S.C.
§§ 2252(a)(5)(B), 2252A(b)(2), and 2256(8)(A). The trial testimony established
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the following: The victim was ST, the daughter of Suzanne Terrell and John Ray
Doby Terrell (“John Terrell”). Defendant-Appellant Terrell is John Terrell’s
father and ST’s grandfather. During the summer of 2003, Defendant-Appellant
Terrell took pornographic photos of ST while she was left in his care. When ST
later reported the abuse to her mother, Suzanne Terrell contacted Child
Protective Services. An investigation was launched, and police conducted a
search of Defendant-Appellant Terrell’s property. A floppy disk was recovered
with files related to Defendant-Appellant Terrell’s business, and a file referring
to “Young Strawberry Blondes, Young Lolitas, TV, Underage Models, Preteen X,
[and] Lolita Virgins.”
Following the initial search, John Terrell went to his father’s home to hide
weapons he knew were on the property. John Terrell had access to his father’s
home because he assisted his father in his father’s business. In attempting to
hide a gun in a concealed compartment, John Terrell discovered a laptop located
therein. John Terrell discovered pornographic images of ST on the computer, as
well as other child pornography. He informed police, who performed a second
search and seized the laptop. John Terrell also provided the police with a second
laptop he recovered from a trailer on the property.
In 2005, police learned that Defendant-Appellant Terrell had fled the
country. The police located him in Ecuador and he was arrested in September
2010. He was thereafter returned to the United States and placed in the custody
of United States marshals at the airport.
At trial, John Terrell identified the location of the photos as Defendant-
Appellant Terrell’s bedroom. He testified that he, John Terrell, had not taken
the photographs or put those photographs on the laptop. He further testified
that he did not use Defendant-Appellant Terrell’s laptops prior to discovering
them. ST testified about the photographs, identifying herself therein and
Defendant-Appellant Terrell as the photographer. She further testified that she
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had asked Defendant-Appellant Terrell about the photographs and that he had
informed her that he had deleted them. A Secret Service Agent who had
conducted a forensic examination of the laptops testified that he found the
images of ST in the computer’s “trash can,” and that they had been put there
soon after the photos of ST had been taken. The Agent further testified that, in
addition to the images of ST, he found 751 images of child pornography on the
first laptop, and 137 images of child pornography on the second laptop. The
Agent opined that the images were likely obtained from the internet, and he
testified that the laptops had been used to visit sites that advertised or allowed
users to download child pornography. Evidence also established that the laptops
were manufactured outside of Texas.
At the close of the prosecution, Defendant-Appellant Terrell moved for a
judgment of acquittal, which the district court denied. A jury convicted
Defendant-Appellant Terrell on both counts. The district court sentenced
Defendant-Appellant Terrell to 360 months of imprisonment on Count One and
120 months of imprisonment on Count Two, the sentences to be served
consecutively. This timely appeal followed.
ANALYSIS
Defendant-Appellant Terrell raises a number of challenges to his
conviction. First, he argues that the government must, and did not, show that
he knew or should have known the laptop which contained the images of ST
traveled in interstate commerce. Second, he argues that the district court
wrongly denied his motion for acquittal because there was no evidence that he
transferred the images of ST to the laptop, and that a jury instruction stating
the government did not need to prove the identify of the individual who placed
the images on the computer was erroneous. Third, he argues that the
government introduced insufficient evidence to show he knowingly possessed
child pornography. For the reasons stated below, his arguments are unavailing.
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I. Knowledge of Interstate Commerce
First, Defendant-Appellant Terrell argues that the district court erred in
denying his motion for acquittal because the government failed to introduce
evidence showing that he knew or should have known that the pornographic
images of ST were produced on a camera or computer that traveled in interstate
commerce. The government argues that it is not necessary to prove knowledge
of this particular interstate commerce element under 18 U.S.C. § 2251(a). This
court reviews a district court’s denial of a motion for acquittal de novo. United
States v. Bennett, 664 F.3d 997, 1011–12 (5th Cir. 2011). The Court finds the
government’s reading more persuasive and holds that § 2251(a) does not require
knowledge of the interstate nature of the materials used to produce the images
of ST.
Under 18 U.S.C. § 2251(a), the government must prove that the defendant
(1) employed, used, persuaded, induced, enticed, or coerced a minor to engage in
sexually explicit conduct for the purpose of producing a visual depiction of such
conduct; and (2) a jurisdictional nexus. 18 U.S.C. § 2251(a) (West 2003). As to
the jurisdictional nexus element, it may be satisfied:
[(a)] if such person knows or has reason to know that such visual
depiction will be transported in interstate or foreign commerce or
mailed, [(b)] if that visual depiction was produced using materials
that have been mailed, shipped, or transported in interstate or
foreign commerce by any means, including by computer, or [(c)] if
such visual depiction has actually been transported in interstate or
foreign commerce or mailed.
Id. The Defendant-Appellant argues that the knowledge element—“knows or
has reason to know”—applies to each of the three possible ways that the element
can be satisfied.1
1
Defendant-Appellant Terrell concedes that the evidence demonstrated that the laptop
had indeed traveled in interstate commerce.
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Nevertheless, the more natural reading of this statute is that knowledge
must be proven only as to the first jurisdictional hook. See Flores-Figueroa v.
United States, 556 U.S. 646, 652 (2009) (“The manner in which the courts
ordinarily interpret criminal statutes [should be] fully consistent with . . .
ordinary English usage.”); see also United States v. Betancourt, 586 F.3d 303,
308–09 (5th Cir. 2009) (applying Flores-Figueora and adopting a “common-sense,
natural reading” of a statute). Here, the statute’s repetition of “if” indicates that
each clause following the “if” is distinct. The phrase “knows or has reason to
know” follows the first “if,” implying that the phrase is only to be applied to the
first clause and not to the latter two. Finally, the use of the disjunctive “or”
further indicates that the “knows or has reason to know” applies only to the first
item in the list.
The Defendant-Appellant cites no authority for his argument that the
“knowledge” requirement applies to all three jurisdictional elements, and indeed,
an identical argument was rejected by the Eleventh Circuit. In United States v.
Smith, the Eleventh Circuit stated that the “most natural reading of this
provision” is that “[o]nly the first basis for jurisdiction requires any proof of
mental state.” See 459 F.3d 1276, 1289 (11th Cir. 2009).
Moreover, and importantly, courts have been consistent in not applying
the mens rea of statutes to federal jurisdictional elements, unless the language
of the statute requires such a result. For example, in United States v. Yermian,
in a prosecution for making false statements to a federal officer in violation of
18 U.S.C. § 1001, the Supreme Court held that the “knowingly” and “willfully”
intent requirements did not apply to the federal jurisdictional element—i.e., that
the false statement was made to a federal officer. See 468 U.S. 63, 74–75 (1984);
see also United States v. Feola, 420 U.S. 671, 693–96 (1975) (finding that federal
conspiracy statute did not require knowledge that intended victim of conspiracy
was a federal officer because conduct is not “any less blameworthy . . . because
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the participants are unaware which body of law they intend to violate”). These
holdings have been consistently reaffirmed in a variety of contexts. See, e.g.,
United States v. Jimenez, 256 F.3d 330, 338 n.9 (5th Cir. 2001) (defendant not
required to have knowledge of building’s effect on interstate commerce under
federal arson statute); United States v. Jackson, 978 F.2d 903, 909–11 (5th Cir.
1992) (defendant did not need to know victim was transported across state lines
under federal kidnaping statute); United States v. Dancy, 861 F.2d 77, 81 (5th
Cir. 1988) (in felon in possession of a firearm prosecution, defendant not
required to know that firearm traveled in interstate commerce); United States
v. Driggers, 559 F.3d 1021, 1024–25 (9th Cir. 2009) (mens rea does not apply to
interstate travel element of federal murder for hire statute); United States v.
Campa, 529 F.3d 980, 1006–07 (11th Cir. 2008) (no mens rea for jurisdictional
element in federal conspiracy to murder statute); United States v. Cooper, 482
F.3d 658, 664–65 (4th Cir. 2007) (intent element did not apply to requirement
that pollution be into navigable waters to sustain conviction); United States v.
Wright, 363 F.3d 237, 244 (3d Cir. 2004) (no requirement that defendant know
stolen check crossed state lines); United States v. Quarrell, 310 F.3d 664, 670–74
(10th Cir. 2002) (defendant convicted for digging for archaeological artifacts did
not need to know he was excavating on federal land).
Accordingly, § 2251 does not require that a defendant know the interstate
nature of an instrument on which a depiction of child pornography is produced.
Consequently, the district court did not err in refusing to grant his motion for
acquittal on this ground.
II. Transferring Images to the Computer (Count One)
Next, Defendant-Appellant Terrell presents a pair of arguments related
to his conviction under Count One for sexual exploitation of a child, under 28
U.S.C. § 2251(a), which both turn on the same issue of statutory interpretation.
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1. Motion for Acquittal
First, the Defendant-Appellant argues that the district court erred in
denying his motion for acquittal because there is insufficient evidence showing
that he produced or reproduced the images of ST using materials that traveled
in interstate commerce. He argues that the government failed to show that the
camera used to take the photos traveled in interstate commerce and that the
government also failed to prove that he was the person who reproduced the
images on his laptop. In response, the government argues that it is unnecessary
under 28 U.S.C. § 2251(a) to prove that the Defendant-Appellant personally
transferred the images of ST to the laptop, or alternatively, that there is
sufficient evidence showing that he actually transferred the images.
The Court reviews a district court’s denial of a motion for acquittal de
novo. Bennett, 664 F.3d at 1011–12. On motion of a defendant, a court “must
enter a judgment of acquittal of any offense for which the evidence is insufficient
to sustain a conviction.” FED. R. CRIM. P. 29(a). “When reviewing the sufficiency
of the evidence, this Court views all evidence, whether circumstantial or direct,
in the light most favorable to the [g]overnment[,] with all reasonable inferences
to be made in support of the jury’s verdict.” United States v. Moser, 123 F.3d
813, 819 (5th Cir. 1997). The Court must ask “whether any reasonable trier of
fact could have found that the evidence established the essential elements of the
crime beyond a reasonable doubt.” United States v. Ortega Reyna, 148 F.3d 540,
543 (5th Cir. 1998). 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. United States v. Faulkner, 17 F.3d 745, 768 (5th Cir.
1994). However, where the evidence tends to give “equal or nearly equal
circumstantial support” to guilt and to innocence, reversal is required. United
States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996).
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As described above, § 2251 requires the government to prove that a
defendant (1) employed, used, persuaded, induced, enticed, or coerced a minor
to engage in sexually explicit conduct for the purposes of producing a visual
depiction of such conduct; and (2) a jurisdictional nexus. 18 U.S.C. § 2251(a).
The jurisdictional nexus is satisfied :
[(a)] if such person knows or has reason to know that such visual
depiction will be transported in interstate or foreign commerce or
mailed, [(b)] if that visual depiction was produced using materials
that have been mailed, shipped, or transported in interstate or
foreign commerce by any means, including by computer, or [(c)] if
such visual depiction has actually been transported in interstate or
foreign commerce or mailed.
Id.Similar to the phrase “knows or has reason to know,” the phrase “such
person” appears only in the first clause. Accordingly, the same reading that
compels the conclusion that “knows or has reason to know” does not apply to the
final two clauses also compels the conclusion that “such person” similarly applies
only to the first clause, and not the latter two. Accordingly, the language of the
statute indicates that there is no requirement that the individual who directs the
minor be the same person who produces the image on the item that has traveled
in interstate commerce.
In an unpublished case, the Sixth Circuit adopted a similar position while
evaluating § 2251(a)’s last jurisdictional hook: that the depiction be transported
in interstate commerce. In United States v. Tidwell, while comparing § 2251 and
§ 2252 for purposes of a Blockburger double jeopardy analysis, the court stated
that under § 2251(a) the government need not prove that the defendant who is
charged with production of child pornography also be the same person who
transported it in interstate commerce. See 917 F.2d 1305, at *2 (6th Cir. 1990).2
2
See also United States v. Fuller, 77 F. App’x 371, 380 n.10 (6th Cir. 2003) (restating
holding from Tidwell).
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Nevertheless, even under the Defendant-Appellant’s interpretation of the
statute—where the defendant who exploited the child must also be the person
who produced the images on the computer—at the time of the defendant’s
motion, a “reasonable trier of fact could have found that the evidence established
the essential elements of the crime beyond a reasonable doubt.” Ortega Reyna,
148 F.3d at 543. The Defendant-Appellant does not seriously contest that the
government proved that he persuaded and coerced ST into sexually explicit
conduct for the purpose of producing visual depictions of that conduct.3 Nor does
he dispute that the laptop that contained the images of ST traveled in interstate
commerce. It is also undisputed that production of child pornography for
purposes of this statute includes copying the images onto a computer hard drive
or other digital storage device. See United States v. Dickson, 632 F.3d 186,
188–90 (5th Cir. 2011) (finding that production included copying images onto a
CD in prosecution for possession of child pornography under 18 U.S.C. §
2252(a)(4)(b)). Thus, if the Defendant-Appellant transferred the images onto the
laptop, his conduct satisfies the jurisdictional nexus even under the
interpretation of the statute most favorable to him.
3
He does accuse his son, John Terrell, of actually being the person who molested and
took the photographs of ST, bizarrely in reliance on ST’s statement that she posed with a “one-
legged dog,” which the Defendant-Appellant asserts belonged to John Terrell. Nevertheless,
overwhelming evidence supports the jury’s finding that Defendant-Appellant Terrell took the
photos of ST. ST testified that Defendant-Appellant Terrell persuaded her to take off her
clothing and act in a sexual manner while he photographed her. ST identified the photographs
found on the Defendant-Appellant’s computer as the same photos she remembers him taking
of her. Dr. Ann Sims, a specialist in sexual abuse exams on children who examined ST in
2004, testified that she believed ST’s story was credible and that it did not seem coached or
falsified. In convicting the defendant under Section 2251(a), the jury apparently believed ST’s
testimony about the sexual abuse, a credibility determination that cannot be questioned on
appeal. See United States v. Millsaps, 157 F.3d 989, 994 (5th Cir. 1998) (“[I]t is the sole
province of the jury, and not within the power of this Court, to weigh conflicting evidence and
evaluate the credibility of witnesses.”); United States v. Sanchez, 961 F.2d 1169, 1173 (5th Cir.
1992) (stating that the “assessment of the weight of the evidence and the determination of the
credibility of the witnesses is solely within the province of the jury”).
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Although ownership alone is not sufficient to prove that the Defendant-
Appellant transferred the images to the laptop, there is no evidence in the record
showing that any other individuals had access to the computer in 2003 when the
images of ST were undisputably stored on his computer. Compare United States
v. Winkler, 639 F.3d 692, 695–701 (5th Cir. 2011) (affirming conviction for
possession of child pornography where there was no evidence of third-party
access and where circumstantial evidence supported finding that defendant
knowingly possessed images), with United States v. Moreland, 665 F.3d 137 &
n.7, 151–54 (5th Cir. 2011) (reversing conviction for possession of child
pornography where evidence showed a third party accessed computer around
time of pornography download). It is undisputed that the laptop belonged to
Defendant-Appellant Terrell and that it was found hidden under a bookshelf in
an area he had control over. The laptop was registered solely to Defendant-
Appellant Terrell, and there is no evidence in the record showing that anyone
else ever had access to the laptop, aside from John Terrell when he found it and
contacted the police. John Terrell also testified that he had seen the Defendant-
Appellant using the laptop.
The strongest evidence in favor of the jury’s verdict is ST’s testimony,
which is corroborated by the forensic evidence. During her testimony, ST stated
that the Defendant-Appellant told her soon after he took pictures of her in the
summer of 2003 that she should not worry because he had deleted them.
According to the forensic examiner, the images of ST were placed in the laptop’s
trash folder on June 7, 2003. Again, the Defendant-Appellant offers no
explanation for how the images of ST, which ST testifies that he took, ended up
on his laptop computer within days of him taking the photos, and how he would
know the items had been deleted, if he had not transferred the photos and
deleted them himself. Although John Terrell had access to both laptops during
the period between finding them and returning them to the
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Defendant-Appellant’s house, the images of ST had been transferred nearly a
year earlier. Further, John Terrell testified that he did not take the images of
ST or transfer them to the computer, and that he found the images of ST on the
computer. It is pure speculation to think that John Terrell put the images on
the computer. See Faulkner, 17 F.3d at 768 (stating that the evidence need not
exclude every hypothesis of innocence). The jury seemingly rejected this
argument in convicting Defendant-Appellant Terrell on Count Two for
possession of child pornography, and it would be reasonable to think that the
jury would have rejected the argument as to Count One as well. See United
States v. Pruitt, 638 F.3d 763, 767 (11th Cir. 2011) (jury free to reject alternative
reasons for presence of child pornography on computer); United States v. Kain,
589 F.3d 945, 949–50 (8th Cir. 2009) (affirming conviction although testimony
showed that a Trojan virus may have been responsible for child pornography
files).4
Other evidence found on the Defendant-Appellant’s laptop computers and
in his desk supports the conclusion that the Defendant-Appellant transferred the
images of ST. As explained later, the evidence supporting Count
Two—possession of child pornography—is very strong, and the fact that the
Defendant-Appellant transferred those other images of child pornography to his
laptops increases the likelihood that he also transferred the images of ST. See
United States v. Grimes, 244 F.3d 375, 378–84 (5th Cir. 2001) (stating that other
evidence of sexual interest in children is “highly relevant” to guilt in prosecution
under Section 2251(a), but denying admission of evidence due to prejudice);
United States v. Wilder, 526 F.3d 1, 6–10 (1st Cir. 2008) (discussing how
4
See also Schene, 543 F.3d at 639–40 (affirming conviction for possession of child
pornography where only defendant and his wife had access to computer); United States v.
Irving, 452 F.3d 110, 122 (2d Cir. 2006) (rejecting argument that a third party may have
downloaded images where defendant unable to offer any evidence showing third party had
regular access to computer).
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evidence that defendant used computer for other child pornography-related
conduct increased likelihood that defendant knowingly possessed images on
computer). The first laptop contained an additional 751 images of child
pornography, beyond those of ST, and it had also visited 283 websites marketing
child pornography. The second laptop also contained 137 images of child
pornography and it had visited a large number of websites marketing child
pornography. Finally, a floppy disk found in the Defendant-Appellant’s desk
contained letters written by the Defendant-Appellant and files referring to child
pornography. Thus, the evidence strongly pointed to the Defendant-Appellant
using his computers to store other images of child pornography.
Accordingly, the Court finds that § 2251(a) does not require that the
individual who induces the minor to engage in sexually explicit activities for the
purposes of producing depictions of such be the same individual who produces
the depictions on an item that has traveled in interstate commerce. Further,
even if § 2251(a) did require such unity of person, the government presented
sufficient evidence upon which a jury could find Defendant-Appellant Terrell
produced the depictions of ST on the laptop. Consequently, the Court finds no
error in the district court’s denial of the Defendant-Appellant’s motion for
acquittal on this ground.
2. Jury Instructions
Second, the Defendant-Appellant argues that the district court erred by
instructing the jury in response to the jury’s third note (“Jury Note 3”) that the
government did not need to prove who produced the images of ST found on the
laptop computer. Because the Court finds that the statute does not require that
Defendant-Appellant Terrell have produced the images to the laptop, the Court
finds no error in the district court’s response to Jury Note 3.5
5
In addition, Defendant-Appellant Terrell concedes that he must show plain error in
the district court’s instruction, due to his failure to timely object to the jury instructions. See
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III. Possession of Child Pornography (Count Two)
Finally, Defendant-Appellant Terrell offers two arguments related to his
conviction in Count Two for possession of child pornography, under 18 U.S.C.
§ 2252A(a)(5)(B). First, he argues that there was insufficient evidence presented
at trial showing that he knowingly possessed images of child pornography.
Second, he argues that the district court’s response to Jury Note 3 was an
incorrect statement of the law.
1. Motion for Acquittal
Count Two of the indictment charges Defendant-Appellant Terrell with
possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).
Under this provision, a “person who . . . knowingly possesses any . . . computer
disk . . . that contains an image of child pornography that has been . . .
transported in interstate . . . commerce by any means, including by computer,
or that was produced using materials that have been . . . transported in
interstate . . . commerce by any means, including by computer, . . . shall be
punished . . . .” 18 U.S.C. § 2252A(a)(5)(B) (West 2003). Thus, the government
must prove that a defendant (1) “knowingly possessed material that contained
United States v. Diaz, 637 F.3d 592, 601 (5th Cir. 2011) (“Where a party fails to offer a timely
objection to jury instructions, claims of error are reviewed for plain error.”). He cannot meet
that burden, even if the instruction was erroneous. First, the statute does not clearly require
that same individual induce the minor as produce the depiction to an item in interstate
commerce. See United States v. Carrillo, 660 F.3d 914, 930 (5th Cir. 2011) (potential error,
not plain error where law is unclear). Second, for the reasons stated above, the weight of the
evidence strongly supports an inference that Defendant-Appellant Terrell transferred the
images of ST to the laptop, and thus he cannot show that the purported error “affected the
outcome of the district court proceedings.” See United States v. Mudekunye, 646 F.3d 281, 289
(5th Cir. 2011) (quotation omitted); see also Neder v. United States, 527 U.S. 1, 9-10 (1999)
(“[W]e have recognized that improperly omitting an element from the jury can easily be
analogized to improperly instructing the jury on an element of the offense, an error which is
subject to harmless-error analysis.”). Finally, Defendant-Appellant Terrell’s argument that
the response to the jury note constituted a directed verdict is without merit. See, e.g., United
States v. Simkanin, 420 F.3d 397, 403–09 (5th Cir. 2005) (concluding a response to jury note
is not a directed verdict where the court “did not explicitly direct a verdict on an essential
element of the offense”).
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an image of child pornography” and (2) a jurisdictional nexus. Moreland, 665
F.3d at 149 (stating elements of offense). This jurisdictional nexus may be
shown if the images are contained on materials that traveled in interstate
commerce or if the images themselves were transported in interstate commerce.
18 U.S.C. § 2252A(a)(5)(B); United States v. Runyan, 290 F.3d 223, 239 (5th Cir.
2002).
The Defendant-Appellant argues that the district court erred in denying
his motion for acquittal on this count. This Court reviews the district court’s
denial of a motion for acquittal de novo, Bennett, 664 F.3d at 1011–12, and “all
evidence, whether circumstantial or direct, [is viewed] in the light most
favorable to the [g]overnment[,] with all reasonable inferences to be made in
support of the jury’s verdict,” Moser, 123 F.3d at 819.
As to the elements of the crime, first, it is not disputed that the images on
the computer were of child pornography, or that a person viewing those images
would understand them to be child pornography. Second, Defendant-Appellant
Terrell concedes that the government proved the jurisdictional nexus because
it showed that the images were downloaded from the internet or were contained
on a computer that traveled in interstate commerce. The evidence indicates that
many—if not all—of the images (with the exception of those of ST) were
downloaded from the internet, which is sufficient to satisfy the jurisdictional
requirement. See Runyan, 290 F.3d at 239 (holding that transmission of images
over the internet satisfies interstate commerce element). Additionally, the
images were produced on a computer made in California. As noted earlier, it is
accepted law that production of an image includes copying the image onto a
computer hard drive. See Dickson, 632 F.3d at 188–90. Thus, copying the
images onto the laptops satisfies the interstate commerce requirement as well.
Therefore, the only disputed element is whether Defendant-Appellant
Terrell “knowingly possessed” the images of child pornography that were found
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on his laptop computers. As explained by this Court in Moreland when
analyzing Section 2252(a)(5)(b), the term “knowingly possesses” is interpreted
based on its “ordinary, everyday meaning.” See 665 F.3d at 141–42 (quotation
marks omitted). “Possession [of child pornography] may be either actual or
constructive.” Id. at 149. Because the Defendant-Appellant did not have actual
possession of the images, the government must show constructive possession.
Id. at 150. “Constructive possession is the ownership, dominion or control over
an illegal item itself or dominion or control over the premises in which the item
is found.” Id. at 150 (quotation marks omitted). Where a residence is jointly
occupied—as here—the discovery of contraband alone is insufficient to prove
possession, and instead, the government “must present additional evidence of
the defendant’s knowing dominion or control of the contraband, besides the mere
joint occupancy of the premises, in order to prove the defendant’s constructive
possession.” Id. at 150. Thus, as Moreland explains, “[a] conviction based upon
constructive possession will be upheld only where the prosecution has proven
that there is something else (e.g., some circumstantial indicium of possession)
[ ] besides mere joint occupancy that supports at least a plausible inference that
the defendant had knowledge of and access to the [ ] contraband.” Id. at 150(quotation marks omitted).
Here, that standard is plainly met. The laptop computers were found in
an area over which Defendant-Appellant Terrell had control and a number of
pieces of circumstantial evidence indicate that his possession was knowing. The
first laptop contained 751 images of child pornography in an encrypted zip
folder, four naked photos of ST that had been moved to the trash folder in June
2003, and an internet browser history showing that the computer had visited
283 websites that market or sell child pornography. The second laptop contained
137 images of child pornography, many of which contained website addresses on
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them, and the internet history on that computer also showed that it had browsed
a large number of websites advertising or selling child pornography.
The first laptop was registered only to Defendant-Appellant Terrell and
the second laptop was registered to him, to his wife, and to John Terrell (his
son). John Terrell testified that both laptops belonged to the Defendant-
Appellant and other evidence supported this assertion. John Terrell testified
that he had seen the Defendant-Appellant using the first laptop and that he had
helped the Defendant-Appellant purchase the second laptop online many years
earlier. There is no evidence in the record that other individuals ever used these
laptops or exercised any control over them, aside from John Terrell when he
discovered them in 2004.
Again, the only factual argument that Defendant-Appellant Terrell offers
is speculation that John Terrell actually was responsible for downloading all of
the images of child pornography to his computer. He also argues that because
John Terrell is skilled at computers, his son could have planted the photos.6
John Terrell undisputably had access to both laptops during the period
between finding them and the police instructing him to return them to the
Defendant-Appellant’s house. John Terrell testified, however, that he placed no
child pornography on the computers and that he did not take the images of ST
or transfer them to the computer. Further, he testified that the computers
already contained the images of child pornography when he found them,
including the images of ST. It is pure speculation that John Terrell put the
images on the computers, and the jury was entitled to credit John Terrell’s
testimony that he found the files on the computer. See Sanchez, 961 F.2d at
1173 (the “assessment of the weight of the evidence and the determination of
the credibility of the witnesses is solely within the province of the jury”). It
6
Defendant-Appellant Terrell also argues that his son actually took the photos of ST,
an argument the Court rejects for the reason stated above.
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seems highly unlikely that John Terrell could have visited hundreds of child
pornography websites on the Defendant-Appellant’s computer, even taking into
account of the time the computers were in his possession in 2004. Indeed, it is
even more unlikely that he would do so, and then voluntarily turn the laptops
into police after the police failed to locate them during their initial search of the
property. The jury was free to disregard such a hypothesis.7
Additionally, software had been installed on the first laptop that cloaked
the internet history, which shows that Defendant-Appellant Terrell was
attempting to prevent other people from seeing his internet activity. Testimony
at trial indicated that such software is common among individuals who view
child pornography and that it is often available for download on websites that
sell child pornography. Similar software has been held to support an inference
that a defendant has knowledge of the existence of child pornography on his
computer. See United States v. Bass, 411 F.3d 1198, 1202 (10th Cir. 2005)
(existence of file scrubbing programs supported conviction); United States v.
Koegel, 777 F. Supp.2d 1014, 1022 (E.D. Va. 2011) (same).8
One of the strongest pieces of evidence is the fact that ST testified that
Defendant-Appellant Terrell molested her and took the photos of her that were
found on his first laptop. This establishes two important points. First, as
discussed above, it is almost impossible to think that the Defendant-Appellant
was not responsible for transferring the images to his personal laptop given that
ST testified he took them. Second, it establishes that he is sexually interested
in children, increasing the likelihood that the other pictures on the laptops were
his. Both this Court and others have held that evidence showing that a
7
See Pruitt, 638 F.3d at 767; Kain, 589 F.3d at 949–50; Schene, 543 F.3d at 639–40;
Irving, 452 F.3d at 122 (2d Cir. 2006).
8
Again, the Defendant-Appellant claims his son, John Terrell, downloaded this
software, but he offers absolutely no evidence to support this assertion.
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defendant previously committed sexual crimes against children is relevant in a
case where a defendant is charged with a sexual crime against a child. See
United States v. Goff, 155 F. App’x 773, 776 (5th Cir. 2005) (per curiam)
(admitting evidence showing defendant had a “knowing interest in child
pornography” to support conviction for possession of child pornography due to
its probative value); United States v. Julian, 427 F.3d 471, 485–88 (7th Cir.
2005) (admitting evidence of prior sexual assault crimes against minor due to its
probative value in sex trafficking prosecution); United States v. Carter, 410 F.3d
1017, 1022 (8th Cir. 2005) (admitting evidence of prior sexual crime against
minor in prosecution for sexual assault on a minor); United States v. Bentley, 475
F. Supp. 2d 852, 858 (N.D. Iowa 2007) (explaining that evidence of “sexual
interest in children” is highly relevant to determining propensity to commit
other sex crimes against children).
Also supporting the verdict was other evidence found in Defendant-
Appellant Terrell’s house. In his desk, police officers found a floppy disk
containing a number of business letters written by the Defendant-Appellant, as
well as additional files referring to child pornography. This evidence further
supports the view that the Defendant-Appellant is sexually interested in
children and has an interest in child pornography.
Finally, Defendant-Appellant-Terrell fled the country in 2005, and was
not taken into custody until 2010. This Court has previously held that evidence
of flight creates an inference of guilt. See United States v. Templeton, 624 F.3d
215, 225 (5th Cir. 2010) (stating that evidence of flight is admissible and
probative as to guilt); United States v. Lopez, 979 F.2d 1024, 1030 (5th Cir. 1992)
(although flight insufficient alone “to support a guilty verdict, it is relevant and
admissible”).
The evidence in this case is much stronger than in Moreland, where this
Court found that there was insufficient evidence showing that the defendant had
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knowledge of the images of pornography found on his computer. In that case
there was strong evidence that another individual had accessed the images using
the defendant’s email account, and there, all of the images were deleted and
stored in a way that made them inaccessible. See Moreland, 665 F.3d at 151–52
& n.7. These facts raised the strong possibility that another individual
downloaded and deleted the images without the defendant ever knowing of their
presence on his computer. See id.; see also United States v. Kuchinski, 469 F.3d
853, 862 (9th Cir. 2006) (overturning conviction where there was no evidence
defendant knew images were saved in internet cache). By contrast, the images
of ST were in the trash can on the desktop and the other images were stored in
an encrypted zip folder. Both of these file types indicate that Defendant-
Appellant Terrell was aware of the presence of the images—for example, he
would have needed to encrypt the zip file and the images of ST had been
manually deleted. See Winkler, 639 F.3d at 699 (ruling that similar evidence of
manually hiding pornographic files supported finding that receipt and possession
were knowing).
On appeal, we must take all of the facts in a light most favorable to the
jury’s verdict. Moser, 123 F.3d at 819. In light of the facts stated above, there
is sufficient evidence of guilt to reject the Defendant-Appellant’s argument. See
United States v. McArthur, 573 F.3d 608, 614–15 (8th Cir. 2009) (holding that
a jury’s verdict should not be disturbed where it chooses one plausible scenario
for how child pornography was downloaded onto computer).
2. Jury Instructions
Lastly, the Defendant-Appellant argues that the district court’s response
to Jury Note 3 was an incorrect jury instruction as to Count Two. This
argument is meritless. The jury’s note expressly limited itself to Count One, and
the question and district court’s answer had nothing to do with Count Two.
Thus, it is pure speculation to think that an instruction regarding Count One
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somehow affected the jury’s analysis as to Count Two, especially when the
language of the note indicates that the jury was properly considering the counts
separately. See Simkanin, 420 F.3d at 407 (holding that a district court’s
response to a jury note on good-faith instruction would not affect willfulness
instruction where response did not relate to willfulness).
CONCLUSION
For the reasons stated above, the judgment of the district court is
AFFIRMED.
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