                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0264n.06

                                           No. 18-1408

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                   FILED
                                                                                 May 23, 2019
UNITED STATES OF AMERICA,                     )                              DEBORAH S. HUNT, Clerk
                                              )
       Plaintiff-Appellee,                    )
                                              )        ON APPEAL FROM THE
v.                                            )        UNITED STATES DISTRICT
                                              )        COURT FOR THE EASTERN
HERBERT BERNARD JOHNSON,                      )        DISTRICT OF MICHIGAN
                                              )
       Defendant-Appellant.                   )        OPINION
                                              )

BEFORE: NORRIS, DAUGHTREY, and LARSEN, Circuit Judges.

       ALAN E. NORRIS, Circuit Judge. Defendant Herbert Bernard Johnson was convicted

following a jury trial of attempted coercion and enticement of a minor, travel with intent to engage

in illicit sexual activity, and possession of child pornography. Johnson appeals, alleging that the

evidence introduced by the government at trial was not sufficient to support conviction on any of

the charges. For the reasons that follow, we affirm.

                                                  I.

       On August 25, 2015, law enforcement discovered an advertisement posted on Craigslist

for the Detroit, Michigan, area seeking a young male, nineteen or younger, to be on the receiving

end of very aggressive sexual acts. In addition to the explicit description of what was sought, the

advertisement contained pornographic images of young males portraying sexual acts similar to

those described. That same day, FBI Agent Ray Nichols responded to the advertisement posing as

a fifteen-year-old boy named Jason. Defendant later admitted to law enforcement that he created
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                                                                                        No. 18-1408
and posted the advertisement and engaged in the subsequent email and text conversations with

Jason.

         After Jason emailed defendant in response to the advertisement, defendant confirmed that

the advertisement was real and asked Jason to describe himself. Jason told defendant he was fifteen

years old, described his height and weight, and explained that he had never been with a man

sexually but was curious about it. Defendant asked for a picture of Jason’s body and inquired

whether Jason was able to travel. Jason asked defendant to send a picture first, and in response

defendant sent two pictures that he claimed were of him: one picture was of a nude torso from

approximately the chin to the thighs, and the other was a close-up of an erect adult penis. In

response, Jason sent a torso picture of a youthful looking male FBI agent in his underwear.

Conversations between defendant and Jason continued for a couple days, but then paused for a few

days after defendant told Jason that he would be unavailable for a while.

         On September 1st, defendant emailed Jason asking him whether he could travel to Troy,

Michigan, and asking Jason for more details about what sort of experiences he was hoping to have.

Jason responded that he would not have a car until he turned sixteen, but that he could probably

get a ride somewhere. He also explained that he was looking to experiment sexually with a man,

including the activities described in defendant’s Craigslist advertisement. Jason stated that he had

little sexual experience and needed someone to take the lead. On September 4th, defendant emailed

Jason about where he lived and suggested they could meet to talk about Jason’s expectations for

engaging in sexual activity with defendant, but defendant did not confirm that he was willing to

engage in sexual activity with Jason.

         Defendant and Jason switched from communicating by email to using text messages on

September 5th, and defendant flew into Michigan on September 6th. Jason and defendant texted



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for almost twelve hours on September 8th. Towards the end of the day, defendant asked Jason

about his sexual experience with girls, to which Jason replied that he had been with a girl only

once, and since then he has been more attracted to men.

       The two arranged to meet at a public park the evening of September 9th. Jason said he

would ride his bicycle to the park and meet defendant there. Defendant asked Jason what they

would do with his bicycle, but Jason said he could lock it up at the park or, if he had enough

advance notice of the meeting time, he could walk to the park instead.

       To prepare for the meeting, Agent Nichols assembled approximately fifteen law

enforcement officers who were members of the Southeast Michigan Trafficking Exploitation

Crimes Task Force. Some officers were tasked with surveillance, some were assigned to the arrest

team, and one male officer with a youthful appearance agreed to pretend to be Jason in-person.

       When defendant arrived at the park, he pulled into the parking lot but not a parking space.

Jason texted defendant and asked him to flash his headlights to identify himself, which he did. The

officer posing as in-person Jason walked up to the passenger side of defendant’s car. All the while,

Agent Nichols was texting with defendant and communicating with the officer engaging defendant

as Jason. The officer posing as Jason confirmed with defendant that he was “the guy from

Craigslist.” Defendant told Jason to get in the car, but instead the officer signaled for law

enforcement to move in and arrest defendant. As several officers ran toward defendant’s car, he

attempted to flee the parking lot by driving over the curb, but police blocked his path and defendant

was arrested.

       Defendant later told authorities that he lives in Colorado but frequently travels for work,

including to the Detroit metropolitan area. Law enforcement officers were able to determine that

the Craigslist post Nichols responded to had been renewed several times, and defendant had made



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136 posts on Craigslist from November 29, 2014, to August 25, 2015, including some identical to

the post described above and others with similar sexually oriented objectives. Defendant admitted

to making the Craigslist posts to find sexual partners, and he admitted communicating with Jason

and seeking to meet him in the park, but defendant denied that his intention was to have sex with

Jason.

         Law enforcement searched defendant’s hotel room, which revealed a small video recorder,

Viagra pills, condoms, a bottle of personal lubricant commonly used for sex, a pair of underwear

suitable for a young girl, a box of latex gloves, enemas, and a black mask. Agents also seized a

laptop computer, a portable hard drive, and a thumb drive. The video recorder contained footage

that appeared to be defendant testing different configurations for the camera, so it would record a

good video but be hidden from view.

         The laptop computer had a “virtual machine” installed, which means a specialized piece of

software that allows a user of the physical computer to install and operate a software version of

another, wholly separate computer. Officers found thirty-six images of verified child pornography

on defendant’s virtual machine, including two images with an infant or toddler victim and twenty-

nine others with pre-pubescent victims. The images were cached thumbnail-sized images that

appeared to be remnants of video files that were stored on an encrypted external drive plugged into

the laptop to view the videos on the virtual machine. A search of defendant’s residence in Colorado

turned up approximately thirty additional pieces of additional electronic media, including multiple

hard drives, computers, laptops, and servers. All of these items, as well as the portable hard drive

and thumb drive recovered from defendant’s hotel room, were protected by sophisticated

encryption. Law enforcement was unable to decrypt any of the media for analysis.




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       The government charged defendant and his trial lasted four days. The jury returned a

verdict of guilty on Count 1: Attempted Coercion and Enticement of a Minor, in violation of 18

U.S.C. § 2422(b); Count 2: Travel With Intent to Engage in Illicit Sexual Activity, in violation of

18 U.S.C. § 2423(b); and Count 4: Possession of Child Pornography, in violation of 18 U.S.C.

§ 2252A(a)(5)(B) and (b)(2). The jury acquitted defendant on Count 3: Transportation of Child

Pornography, in violation of 18 U.S.C. § 2252A(a)(1). At the end of the trial, defendant moved the

district court for a judgment of acquittal under Federal Rule of Criminal Procedure 29, which the

district court denied. The sentencing guidelines’ suggested imprisonment range was 121 to 151

months; the district court sentenced defendant to 121 months. Defendant filed a timely appeal

claiming that the evidence was insufficient to support any of his three convictions.

                                                II.

       We review de novo a district court’s denial of a motion for a judgment of acquittal

notwithstanding the verdict. United States v. Vichitvongsa, 819 F.3d 260, 270 (6th Cir. 2016).

When, as here, the appeal is based on insufficiency of the evidence, the defendant “bears a very

heavy burden.” United States v. Callahan, 801 F.3d 606, 616 (6th Cir. 2015). The relevant question

before us is “whether, after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “In so doing, we draw ‘all reasonable

inferences in support of the jury’s verdict and will reverse a judgment for insufficient evidence

only if the judgment is not supported by substantial and competent evidence upon the record as a

whole.’” Vichitvongsa, 819 F.3d at 270 (quoting United States v. Stewart, 729 F.3d 517, 526 (6th

Cir. 2013)). “Circumstantial evidence alone is sufficient to sustain a conviction and such evidence




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need not remove every reasonable hypothesis except that of guilt.” United States v. Lowe, 795 F.3d

519, 522-23 (6th Cir. 2015) (quotation omitted).

                                                 A.

       There is significant overlap in the evidence pertinent to defendant’s first two convictions—

attempted coercion and enticement of a minor, and travel with intent to engage in illicit sexual

activity. Therefore, we will review defendant’s appeal of those convictions together.

       Because Jason was actually FBI Agent Nichols, defendant was charged with attempted

coercion and enticement of a minor. “Criminal attempt requires that the defendant intended to

commit the crime and that the defendant took a substantial step towards committing the crime,

beyond mere preparation.” United States v. Evans, 699 F.3d 858, 867 (6th Cir. 2012) (citation

omitted). The elements of coercion and enticement of a minor are that (1) defendant used a facility

or means of interstate commerce in an attempt to knowingly persuade, induce, entice, or coerce an

individual under the age of eighteen to engage in sexual activity; (2) defendant believed the person

was under eighteen; and (3) that if sexual activity had occurred, the defendant could have been

charged with a criminal offense under state law. 18 U.S.C. § 2422(b); United States v. Roman,

795 F.3d 511, 515-16 (6th Cir. 2015) (citing United States v. Hart, 635 F.3d 850, 855 (6th Cir.

2011)). Coercion and enticement of a minor “does not require proof of a specific intent to actually

engage in sexual activity” and instead was “designed to protect children from the act of solicitation

itself.” United States v. Hughes, 632 F.3d 956, 961 (6th Cir. 2011) (citation omitted).

       On the other hand, a conviction for traveling with intent to engage in illicit sexual conduct

requires that the government prove that (1) defendant traveled in interstate commerce, and

(2) defendant did so with the intent to engage in illicit sexual conduct. See 18 U.S.C. § 2423(b);

United States v. Lay, 583 F.3d 436, 440 (6th Cir. 2009). Illicit sexual conduct need not be



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defendant’s only purpose for travel, or even his dominant purpose. See United States v. Harris,

480 F.2d 601, 602 (6th Cir. 1973); United States v. Goodwin, 719 F.3d 857, 862 (8th Cir. 2013)

(“The illicit behavior must be one of the purposes motivating the interstate transportation, but need

not be the dominant purpose.”) (quotation and alterations omitted).

       Defendant does not dispute that he posted the Craigslist advertisement in the Detroit area

and traveled there after establishing contact with Jason. The record suggests that defendant had

work obligations in Detroit, so meeting Jason likely was not his sole, or perhaps even dominant

purpose, but it was a purpose. If defendant intended to have sex with fifteen-year-old Jason, which

defendant disputes, it would undoubtedly be illicit sexual activity.

       The gist of defendant’s appeal on both counts is that he was not trying to entice Jason into

sexual conduct, and in fact had no intent to engage in any sexual activity with Jason. More

specifically, defendant asserts that the government did not introduce enough evidence at trial so

that a rational juror could be convinced of his guilt beyond a reasonable doubt.

       Defendant points out a number of alleged weaknesses in the government’s case. For

instance, while defendant readily admits that his Craigslist advertisement was posted for the

purpose of finding a sexual partner, he points out that the Craigslist terms of use require users to

be at least eighteen, and his post sought sexual encounters with young looking men aged nineteen

or younger (which of course encompasses those aged eighteen and nineteen, who are legally

capable of consent).

       Defendant also points out that in none of the emails or text messages exchanged with Jason

did defendant explicitly agree to or request any specific sexual activity with Jason. Defendant

emailed Jason and asked what Jason hoped to experience. Jason responded that he was interested

in experiencing sex with a man, including those sexual experiences described by defendant in his



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                                                                                      No. 18-1408
Craigslist advertisement. Defendant asked where Jason lived and suggested they meet to talk about

Jason’s expectations, but offered “no promises” about following through.

       Despite the lack of explicit references to sex, all of the interactions between defendant and

Jason must be viewed in the context of defendant’s sexually graphic and explicit Craigslist

advertisement that marked the beginning of their relationship. Defendant admits that he designed

and posted his Craigslist advertisement to find sexual partners. The advertisement purported to be

a “daddy looking for a smooth y[ou]ng son” and referenced “looking for a real situation” and

“pervy y[ou]ng incest taboo all good.” Agent Nichols testified at trial that in his experience those

are code words often used by those with a sexual interest in children. The advertisement included

several pornographic images which appeared to portray small, young males engaged in graphic

sex acts with older, larger men.

       Early in their first conversation, Jason told defendant that he was fifteen years old.

Defendant’s almost immediate reaction was to ask for a picture of Jason’s body and to send him

two nude pictures of an adult male—a torso picture and a close-up picture of an erect penis.

Defendant claimed he was the man in both pictures. After Jason indicated that he was interested

in experimenting sexually with defendant, defendant sought to meet with Jason and to keep it

secret from Jason’s mother. In conversation, while trying to set up a meeting, defendant asked

Jason about his “experience with girls.” Jason and defendant settled on a plan whereby Jason would

lie to his mother and make his way to a public park where defendant would pick him up.

       Defendant claims that the evidence at most suggests that he intended to have a conversation

with Jason about his sexual experiences at the public park. But other parts of the record support

the government’s contention that defendant had plans to pick Jason up and take him back to

defendant’s hotel room for sex. First, defendant expressed concern to Jason about what they will



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                                                                                        No. 18-1408
do with his bicycle if he rode it to the park, supporting the idea that defendant had every intention

to pick Jason up at the park and go elsewhere, not stay at the park and talk. Next, when defendant

arrived at the park he pulled into the parking lot and left the car running, instead of pulling into a

parking spot and turning off the car. When Jason asked, defendant identified himself by flashing

his lights. A local police officer acting as Jason approached the car, and asked defendant if he was

“the Craigslist guy.” Defendant answered yes and told “Jason” to “get in the car.” Once law

enforcement officers identified themselves and moved in, defendant attempted to flee but officers

took him into custody.

       Searching defendant’s hotel room, officers discovered his work laptop with sophisticated

software installed that allowed a virtual machine—essentially a software version of a second

computer—to run within his laptop. The password for the virtual machine was “sexyperv.” Along

with the laptop, officers seized a mini HD video recorder with tripod, an encrypted portable hard

drive, and an encrypted flash drive. Review of the video camera revealed footage of defendant

trying to set up the camera for recording so that it was hidden from view. In addition to the

electronics gear, agents found Viagra pills, condoms, a bottle of personal lubricant designed for

sexual activity, a pair of little girls’ underwear, a box of latex gloves, enemas, and a black mask.

At defendant’s residence, law enforcement seized approximately thirty additional media items,

including multiple hard drives, computers, laptops, and two servers, all of which were encrypted.

       Undoubtedly, the government’s case against defendant would have been stronger had

defendant made more explicit sexual requests or overtures in his email and text conversations with

Jason. The government argued that defendant’s careful wording in his email and text

communications, coupled with the sophisticated virtual machine and encryption technology,




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suggested that defendant knew his conduct was illegal and sought to keep it hidden from law

enforcement.

       After a careful review of the entire record, we conclude that there was substantial and

competent evidence of defendant’s guilt and that evidence was more than sufficient for a rational

juror to reach a guilty verdict on both counts. The jury did so here, and we affirm the district court’s

denial of defendant’s motion for a judgment of acquittal on these counts.

                                                  B.

       After his arrest, law enforcement interviewed defendant and, among other things, asked

him about child pornography. Defendant stated that he had never intentionally sought child

pornography, but he allowed that there might be some either in his email or on his computer.

Defendant’s hotel room contained a portable hard drive and thumb drive, both encrypted in a way

that prevented law enforcement from analyzing them. A search of his residence revealed several

other forms of media, again all encrypted in a way that prevented law enforcement analysis.

However, when law enforcement searched the virtual machine installed on his work laptop, agents

found thirty-six images of verified child pornography, including two images that contained an

infant or toddler victim, and twenty-nine images that contained pre-pubescent victims. These were

not full-sized images, but rather thumbnail images that were saved to the system’s cache folder

when someone using the computer viewed video files of child pornography from an encrypted

external drive.

       The government’s theory is that defendant knowingly possessed child pornography on the

encrypted external media and plugged the external devices into the computer to view it. The

thumbnail files show that they were created on the system the same day defendant arrived in

Detroit and checked into his hotel. Despite this plausible theory, the burden rests with the



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government to show that (1) defendant knowingly possessed material that contained an image of

child pornography; (2) defendant knew the material contained child pornography; and (3) the

image of child pornography had been shipped or transported using any means or facility of

interstate or foreign commerce. 18 U.S.C. § 2252A(a)(5)(B); see also United States v. Kniffley,

729 F. App’x 406, 410 (6th Cir. 2018).

       When images are only recovered from a computer system’s cache, rather than organized

on a hard drive or other storage media in a more intentional manner, it is sometimes more difficult

for the government to show that a defendant knowingly possessed the child pornography. See, e.g.,

United States v. Kuchinski, 469 F.3d 853, 863 (9th Cir. 2006) (holding that sentencing

enhancement was erroneous without proof defendant knew about or controlled child pornography

found in internet cache). Nevertheless, with sufficient proof of knowledge, cached thumbnail

images can be the basis of conviction. See United States v. Huyck, 849 F.3d 432, 443 (8th Cir.

2017) (upholding conviction based on cached thumbnails present on an external hard drive). And

circumstantial evidence of knowledge may be sufficient to support a jury’s guilty verdict. Id.; see

also United States v. Breton, 740 F.3d 1, 17 (1st Cir. 2014).

       Here, defendant admitted that the laptop was his work computer, and that he installed and

password protected the software-based virtual machine on the laptop. The government asserts that

the internet search history on the virtual machine included many search terms that are indicative

of someone with a sexual interest in children. When “[s]earch terms specific to child pornography”

are found on a computer, it is persuasive circumstantial evidence that the user “knowingly

possessed child pornography.” United States v. Gray, 641 F. App’x 462, 468 (6th Cir. 2016).

       In addition to the search terms and defendant’s exclusive control of the laptop, the jury was

free to consider the surrounding evidence of defendant’s sexual interest in children: the Craigslist



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advertisement, the presence of myriad encrypted media devices, the items in his hotel room

including little girls’ underwear, and defendant’s own statement to law enforcement that they

might find child pornography when they searched his email or computer.

       In this case, defendant offers no alternative explanation for his possession of the

pornographic images of children, and the evidence supporting defendant’s guilt is copious. A

rational juror could conclude from the evidence that defendant was guilty of possession of child

pornography. Therefore, we affirm the district court’s denial of defendant’s motion for judgment

of acquittal on the charge of possession of child pornography.

                                               III.

       The judgment of the district court is affirmed.




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