     Case: 12-60988     Document: 00512498513       Page: 1   Date Filed: 01/13/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
                                   No. 12-60988                       January 13, 2014
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk


                                              Plaintiff-Appellant, Cross-Appellee
v.

JAMES WILLIAM SMITH,

                                              Defendant-Appellee, Cross-
                                              Appellant




                Appeals from the United States District Court
                   for the Northern District of Mississippi


Before KING, BENAVIDES, and DENNIS, Circuit Judges.
FORTUNATO P. BENAVIDES, Circuit Judge:
      The United States appeals a Rule 29 judgment of acquittal following
James    William      Smith’s   conviction   for   knowing    possession      of      child
pornography, 18 U.S.C. § 2252A(a)(5)(B). We reverse.
I. Background
      The resolution of this appeal turns on a single question: did prosecutors
present sufficient evidence that Smith was in knowing possession of the child
pornography recovered from his shared computer? At trial, the prosecution
produced uncontroverted evidence that someone intentionally downloaded
videos of child pornography to Smith’s computer during a period when Smith
and two roommates, girlfriend Elizabeth Penix and long-time friend Joshua
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                                  No. 12-60988
Jolly, were the regular and exclusive users of the computer. Employment
records eliminated Penix as a suspect, and Jolly denied any knowledge of the
files or associated software.     Smith did not testify.     Undisputed expert
testimony indicated that the files were intact, that no special skill was required
to download or access them, and that the files were so explicitly named that
the individual downloading them must have known of their content. After
deliberating for a few hours, the jury returned a guilty verdict.
      Following the conviction, Smith filed a timely motion for new trial, FED.
R. CRIM. P. 33, and separate motion for acquittal, FED. R. CRIM. P. 29. The
district court rejected his arguments for a new trial, but entered judgment of
acquittal, finding the evidence insufficient to sustain the verdict. See generally
United States v. Smith, No. 1:11-cr-114, slip op. (N.D. Miss. Nov. 26, 2012),
ECF No. 85. After reviewing the record under the applicable standard, we find
sufficient evidence for the jury to conclude beyond a reasonable doubt that
Smith was in knowing possession of child pornography at the time the files
were downloaded.
II. Sufficiency of the Evidence
      A. Legal Standard
      A district court must enter a judgment of acquittal where “the evidence
is insufficient to sustain a conviction.”    FED. R. CRIM. P. 29.     We review
sufficiency of the evidence de novo. United States v. Williams, 602 F.3d 313,
314–15 (5th Cir. 2010). In determining whether the evidence is sufficient to
sustain a conviction, we examine all evidence in the light most favorable to the
verdict, and consider whether a rational trier of fact “could have found that the
evidence established the essential elements of the offense beyond a reasonable
doubt.” United States v. Moreland, 665 F.3d 137, 148–149 (5th Cir. 2011)
(citation omitted).   In making such a determination, we consider “the
countervailing evidence as well as the evidence that supports the verdict.” Id.
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                                  No. 12-60988
at 149 (citation and internal quotation marks omitted). Nonetheless, we must
remain mindful that the weighing of evidence and the assessment of witness
credibility “is solely within the province of the jury.” United States v. Sanchez,
961 F.2d 1169, 1173 (5th Cir. 1992).
      B. Discussion
      Smith was convicted of knowing possession of child pornography in
violation of 18 U.S.C. § 2252A(a)(5)(B). Accordingly, the evidence is sufficient
to sustain his conviction if a rational juror could find beyond a reasonable doubt
that Smith (1) knowingly (2) possessed (3) material containing an image of
child pornography (4) that was transported in interstate or foreign commerce
by any means. See Moreland, 665 F.3d at 149. Here, Smith argues that the
evidence is insufficient to establish his possession of the files, and that,
regardless, there is no evidence that he knew the files contained child
pornography. The other elements are not in dispute.
      1. Possession
      In cases involving child pornography or other contraband, possession
may be actual or constructive. Moreland, 665 F.3d at 149–150 (citing United
States v. Mergerson, 4 F.3d 337, 348 (5th Cir. 1993)). Actual possession “means
the defendant knowingly has direct physical control over a thing at a given
time.” United States v. Munoz, 150 F.3d 401, 416 (5th Cir. 1998). Where the
contraband consists of computer files, the volitional downloading of those files
entails control sufficient to establish actual possession.      United States v.
Haymond, 672 F.3d 948, 956 (10th Cir. 2012).            Actual possession, like
constructive possession, may be proven by direct or circumstantial evidence.
United States v. Wilson, 657 F.2d 755, 760 (5th Cir. Unit A Sept. 1981); see also
United States v. Tovar, 719 F.3d 376, 389 (5th Cir. 2013) (allowing jury to infer
earlier actual possession where defendant was not in actual possession at the
time of arrest); United States v. Bliss, 491 F. App’x 491, 492 (5th Cir. 2012)
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(unpublished) (allowing use of circumstantial evidence to find that defendant
downloaded files).
      The prosecution’s case is not complicated.          It begins with the
uncontroverted premises that someone used Frostwire software to seek out and
download 26 videos of child pornography to Smith’s computer, that there were
only three possible suspects (Smith, Penix, and Jolly), and that Penix was not
using the computer at the time the files were downloaded. The prosecution
then introduced Jolly’s testimony, in which he denied downloading the files
and indicated that he did not know much about computers. Smith, meanwhile,
did not testify. Taken in the light most favorable to the verdict, and even
inferring nothing from Smith’s decision not to testify, these facts appear to
implicate Smith.
      We must, however, consider countervailing evidence. Although Jolly
testified that he is an auto mechanic and does not know much about computers,
he conceded that he uses the internet often, and forensic analysis revealed that
he had used Smith’s computer regularly.        Uncontroverted testimony from
expert witnesses indicated that the Frostwire software is not difficult to use,
requiring nothing more than entering search terms and selecting videos. This
suggests that, even if Jolly does not know much about computers, he was likely
still capable of using the Frostwire software to download the files. In addition,
Jolly had no explanation whatsoever for where he had been on the dates in
question. Smith, meanwhile, offered an alibi via the testimony of his girlfriend
and his parents. These three witnesses testified that Smith had been at his
parents’ home on dates in question, rendering it impossible for him to have
downloaded the files. They provided various documents in support of this alibi.
The fact that Smith, without even testifying, offered an alibi—while Jolly, who
did testify, offered none—certainly weakens the case against Smith.


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                                  No. 12-60988
      Yet we must remain mindful that it is the sole province of the jury to
assess the credibility of the testimony given at trial, and we must consider all
evidence in the light most favorable to the guilty verdict rendered. Sanchez,
961 F.2d at 1173. With that in mind, it is not unreasonable for the jury to
credit Jolly’s testimony over the testimony of Penix and the Smiths. For
example, the documentation provided in support of the alibi, while generally
corroborating the broad storyline provided by the witnesses, does not actually
indicate that Smith was at his parents’ home when the files were downloaded.
Moreover, the prosecution introduced evidence that Penix had entirely
changed her account of one of the relevant dates, and that Mrs. Smith had
originally made no mention of her son’s visits when questioned by police. The
jury may have been skeptical of the alibi in light of these discrepancies. But
for whatever reason, it is clear from the verdict that the jurors in this case
simply chose to believe Jolly instead of his girlfriend and his parents. It is well
within their discretion to do so. See Sanchez, 961 F.2d at 1175 (upholding
conviction for conspiracy where jury chose to believe the testimony of the
undercover officer in spite of countervailing testimony and the fact that the
testimony was the “sole inculpatory evidence” against defendant).
      The district court, however, acquitted Smith on the basis that “it is just
as likely that Joshua Jolly downloaded the child pornography onto the
computer as Smith did.” Smith, No. 1:11-cr-114, at 11. As a purely theoretical
statement, this may be true. But the question is not whether, in terms of
metaphysical probability, it is “equally likely” that Jolly downloaded the files.
The question is whether this evidence, taken in the light most favorable to the
verdict,   offers   “nearly   equal   circumstantial   support”   for   competing
explanations. United States v. Terrell, 700 F.3d 755, 760 (5th Cir. 2012). For
the reasons already described, we believe that it does not. Moreover, it is well
established that “[t]he evidence need not exclude every reasonable hypothesis
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                                      No. 12-60988
of innocence,” id., and “the jury is free to choose among reasonable
constructions of the evidence,” Bliss, 491 F. App’x at 492. The jury has done
so here, and its verdict must not be disturbed. United States v. Woerner, 709
F.3d 527, 537 (5th Cir. 2013).
       Nonetheless, Smith urges this Court to find, as we did in Moreland, that
there is no evidence to support “knowledge of” or “access to” the child
pornography. Smith Br. at 12, ECF No. 32. The language Smith invokes is a
component of constructive possession analysis. See Mergerson, 4 F.3d at 349.
Constructive possession is “ownership, dominion or control over an illegal item
itself[,] or dominion or control over the premises in which the item is found.”
Id. (citation omitted). When illegal files are recovered from shared computers,
courts permit an inference of constructive possession where the files’ nature
and location are such that computer’s owner must be aware of them. 1 Such an
inference, however, must be supported by evidence that “the defendant had
knowledge of and access to” the files. Moreland, 665 F.3d at 150.
       In the present case, there is no reason to require the knowledge and
access necessary to support an inference of constructive possession, because
the evidence is sufficient for a jury to find actual possession at the time of
download.      As a consequence, we need not address Smith’s arguments
regarding the complex nature of the Windows directory or file paths. Nor must
we determine whether the evidence is sufficient to support an alternate finding
of constructive possession under the assumption that Smith did not download
the files. See Tovar, 719 F.3d at 389 n.14 (declining to “engage in a constructive



       1  See United States v. Patrick, 363 F. App’x 722, 725 (11th Cir. 2010) (unpublished)
(“[S]ignificant evidence suggested that Patrick knew the images were on his computer,
regardless of whether he manually downloaded them . . . .”); United States v. Hao Sun, 354
F. App’x 295, 305 (10th Cir. 2009) (unpublished) (“[A] jury could reasonably conclude . . .
[that] the owner/possessor of the computer would no doubt be aware of at least some of the
800 images on his computer . . . .”).
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                                 No. 12-60988
possession analysis” where evidence was sufficient to support actual
possession); United States v. Patterson, 23 F.3d 1239, 1245 n.6 (7th Cir. 1994)
(“Because we conclude that there was sufficient evidence to support a finding
of actual possession we need not address defendant’s argument’s regarding the
constructive possession instructions.”).
      2. Knowledge
      Before reversing the judgment of acquittal, we must also find sufficient
evidence that Smith knowingly possessed the child pornography. 18 U.S.C.
§ 2252A(a)(5)(B). The knowledge requirement extends both to the age of the
performers and to the pornographic nature of the material. United States v. X-
Citement Video, Inc., 513 U.S. 64, 78 (1994).         Here, undisputed expert
testimony indicates that someone searched for and selected these files for
download. Each file name included an explicit description of the type of sexual
act performed, in addition to the word “child,” “pre-teen,” or the age of the
minor depicted. These file names were presented to the jury, who reasonably
concluded that the person selecting and downloading these files must have
understood the illegal nature of the content. See Woerner, 709 F.3d at 537
(“[T]heir content was evident from their file names, undercutting any potential
argument that they were downloaded by mistake.”). More significantly, 19 of
the 26 files were previewed at the time of download. So it seems clear that the
person downloading the files knew both the age of the performers and the
sexually explicit nature of the material.
      We conclude, therefore, that the prosecution presented sufficient
evidence such that the jury could find, beyond a reasonable doubt, that Smith
downloaded the files and knew what he was downloading. Given that the
nature of the files and the interstate transport are not in dispute, the evidence
is thus sufficient to sustain a conviction of knowing possession of child
pornography under 18 U.S.C. § 2252A(a)(5)(B).
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                                 No. 12-60988
III. Conclusion
      Smith asks that we instruct the district court to consider whether a new
trial is warranted on grounds not previously raised. Smith, however, has
shown no error or abuse of discretion in the district court’s adjudication of his
motion for a new trial, and we find none in the record. Accordingly, we deny
that request. Consequently, and for the reasons stated herein, we REVERSE
the judgment of acquittal and remand for sentencing.




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