     Case: 19-40009      Document: 00515026925         Page: 1    Date Filed: 07/09/2019




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

                                                                                FILED
                                      No. 19-40009                           July 9, 2019
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


              Plaintiff - Appellee

v.

WILLIE LAMPLEY,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:18-CR-20-1


Before KING, ELROD, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Willie Lampley appeals his convictions for receipt and possession of child
pornography. He argues that the district court erred in allowing the
Government to display several minutes of child-pornography videos located on
his laptop to the jury at his trial and that, in any event, there was insufficient
evidence to support the convictions. For reasons set forth below, we AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                        No. 19-40009
                                                I.
       In fall 2017, Jeffrey Curl, a Beaumont Police Department detective and
child-exploitation task-force officer for the U.S. Department of Homeland
Security, located an internet protocol (“IP”) address that was sharing child
pornography. Curl successfully traced the IP address to a home in Beaumont,
Texas, where defendant Willie Lampley resided with his sister and niece.
Pursuant to a search warrant, Curl, together with federal agents and local
police officers, searched Lampley’s residence for electronic devices. Curl located
and seized a laptop computer, a cellphone, and handwritten notes. Lampley
told officers that the computer was his, that his sister purchased it for him at
a pawn shop, and that no other males in the house had used it. Department of
Homeland Security agent Jeff Fuselier testified that he asked Lampley, “if
child pornography is found on your computer, whose child pornography is it?”
According to Fuselier, Lampley replied, “I guess it’s mine.” 1
       Officers also questioned Lampley about his use of the laptop. Lampley
explained to officers that he used the internet to “search[] for houses in videos”
and denied that he had any adult pornography on his computer. He also stated
that he had no peer-to-peer file-sharing software on his computer. 2
       A search of the computer revealed a large quantity of videos and images
depicting young females—some under the age of ten—engaging in sexual acts.
The video files were located in folders found under the “Owner” account, which
was password protected. In all, there were 376 videos and 137 images
identified by officers as child pornography.



       1  Fuselier acknowledged in his testimony that this was not an admission that Lampley
knowingly possessed child pornography.
        2 File sharing is a means of sending and receiving digital files (containing, for example,

images, videos, or documents) to and from different computers. The specific technology used
in this case, BitTorrent, enables users to download pieces of files from multiple computers
(known as “peers”) at the same time.
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                                 No. 19-40009
      Additionally, contrary to Lampley’s remarks to officers, the Owner
account also contained folders for Shareaza, a peer-to-peer file-sharing
program used to download and share torrents. Lampley’s internet search
history also indicated that, on the day he received the laptop, he used it to
search for peer-to-peer file-sharing software.
      Officers also reviewed handwritten notes found in Lampley’s bedroom,
which Lampley admitted were in his handwriting. The notes contained
references to several of Lampley’s interests, including sports gambling and
cryptocurrency. The notes also contained terms that are commonly associated
with child pornography, many of which appeared in the file names for the
videos and images of child pornography located on Lampley’s computer.
Similarly, the search history on Lampley’s computer reflected queries for these
terms.
      Lampley’s cellphone also contained relevant evidence. The cellphone’s
search browser history reflected searches for many of the child-pornography
search terms found in Lampley’s notes. Although the cellphone did not itself
contain child pornography, it did contain “child erotica”—sexually suggestive
images of partially clothed minors.
      Sometime after searching Lampley’s devices, Curl and Fuselier returned
to Lampley’s house. When they informed him that child pornography had been
discovered on his computer, Lampley denied ever downloading child
pornography or any torrent or file-sharing software. Lampley claimed that the
content was downloaded by a hacker using a remote-access Trojan virus. He
offered the same explanation for the child-erotica images and child-
pornography search terms found on his cellphone. Officers scanned Lampley’s
devices for viruses. On Lampley’s laptop, officers detected a “Bitcoin adder,” a
Trojan virus that uses the accessed computer to perform a discrete task related
to the cryptocurrency Bitcoin. However, Curl explained at trial that such a
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                                 No. 19-40009
virus is not a “full control” virus, and therefore would not enable its user to
remotely access a computer to perform a task like downloading child
pornography. Curl also explained that he had never, in the 250 child-
pornography cases he had worked on, encountered a situation in which a
computer had been hacked via a Trojan virus in order to install child
pornography on a computer. Officers did not locate any viruses on Lampley’s
cellphone.
      A grand jury charged Lampley with one count of knowingly receiving
child pornography and one count of knowingly possessing child pornography,
in violation of 18 U.S.C. § 2252A(a)(2)(A) and § 2252A(a)(5)(B), respectively.
The indictment specifically names four files located on Lampley’s computer,
with descriptions of each video. Each file name clearly denotes sex acts
involving children, uses graphic language, and contains several of the child-
pornography terms found in Lampley’s notes. Similarly, the descriptions
explain that the videos depict minors engaging in sexual acts.
      At trial, the Government sought to introduce into evidence compact discs
of the videos described in the indictment. In lieu of showing these videos to the
jury, Lampley offered to stipulate that each exhibit contained child
pornography as defined under federal law. The Government declined this offer.
Analyzing Lampley’s offer under Federal Rule of Evidence 403, the court
denied Lampley’s motion to stipulate. Ultimately, the Government showed
jurors around 8 minutes of the video described in count one of the indictment,
fast-forwarding through portions of the (roughly) 22 total minutes of video. At
the close of evidence, Lampley filed a motion for judgment of acquittal, which
the court denied. The jury thereafter convicted Lampley on both counts. The
court sentenced Lampley to 210 months in prison as to count one and 120
months as to count two, with the terms to run concurrently. Lampley appeals.


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                                  No. 19-40009
                                        II.
                                        A.
      Lampley argues that the district court abused its discretion in refusing
his offer to stipulate that the videos introduced contained child pornography.
“This court reviews a district court’s evidentiary rulings for an abuse of
discretion.” United States v. Caldwell, 586 F.3d 338, 341 (5th Cir. 2009). A
district court “abuses its discretion when it bases its decision on an erroneous
view of the law or a clearly erroneous assessment of the evidence.” Id. This
court’s review of evidentiary determinations is subject to the rule of harmless
error, whereby reversal is only warranted if there is a “reasonable possibility
that the improperly admitted evidence contributed to the conviction.” United
States v. Yanez Sosa, 513 F.3d 194, 201 (5th Cir. 2008) (quoting United States
v. Mendoza-Medina, 346 F.3d 121, 127 (5th Cir. 2003)).
      Under Federal Rule of Evidence 403, relevant evidence may be excluded
“if its probative value is substantially outweighed by a danger of . . . unfair
prejudice.” The admissibility of evidence under Rule 403 when the defendant
has offered a stipulation is governed by the Supreme Court’s decision in Old
Chief v. United States, 519 U.S. 172 (1997). In that case, the Supreme Court
determined that Rule 403 barred the admission of the full record of a prior
judgment of conviction in a felon-in-possession-of-a-firearm prosecution
because the defendant had already offered to stipulate to that prior conviction.
Id. at 190-92. In reaching its conclusion, the Court weighed the prejudicial
effect of introducing evidence of the prior conviction against the prosecution’s
interest in “prov[ing] its case by evidence of its own choice.” Id. at 186. Allowing
a defendant to stipulate to any fact that the Government sought to prove by
conventional evidence would “rob the [prosecution’s] evidence of much of its
fair and legitimate weight.” Id. at 187 (quoting Parr v. United States, 255 F.2d
86, 88 (5th Cir. 1958)). Moreover, the introduction of a stipulation in lieu of
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                                 No. 19-40009
hard evidence may upset jurors’ expectations, thereby leading them to “wonder
what they are being kept from knowing.” Id. at 189. Nonetheless, the Court
found that these interests had “virtually no application when the point at issue
is a defendant’s legal status, dependent on some judgment rendered wholly
independently of the concrete events of later criminal behavior charged against
him.” Id. at 190. Therefore, given the potential prejudice associated with the
defendant’s record, and given the defendant’s offer to stipulate, the Court
concluded that Rule 403 barred admission of the record. Id. at 190-92.
      This court has already addressed the application of Old Chief to child-
pornography cases. In Caldwell, the prosecution sought to show the jury three
short clips of child pornography found on the defendant’s computer. 586 F.3d
at 342. The defendant stipulated that these videos contained visual depictions
of minors engaging in sexually explicit conduct, and this stipulation was read
to the jury. Id. Despite the defendant’s stipulation, the trial court allowed the
Government to publish the three clips. Id. This court affirmed. Looking to the
principle espoused in Old Chief that the prosecution is entitled to try a case by
evidence of its own choice, the panel held that the substitution of a stipulation
would detract from the evidentiary force of the prosecution’s case and diverge
from jurors’ expectations. Id. at 343. Moreover, the videos’ publication helped
establish the likelihood that the defendant “knew that the video depicted child
pornography (which knowledge the stipulation did not mention).” Id.
      Caldwell controls here. Lampley seeks to distinguish Caldwell, noting
that Caldwell involved only the publication of “two 20 second clips from a total
of five videos in question,” while in this case the jury viewed around eight
minutes of video. But nothing in Caldwell suggests that the duration of the
clips informed the court’s holding. Instead, Caldwell proceeds from the premise
that, unlike the record of prior conviction at issue in Old Chief, “child
pornography is graphic evidence that has force beyond simple linear schemes
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                                  No. 19-40009
of reasoning,” which “comes together with the remaining evidence to form a
narrative to gain momentum to support jurors’ inferences regarding the
defendant’s guilt [and] provides the flesh and blood for the jury to see the
exploitation of children.” Id. at 343.
      Whatever the length of the videos at issue, failing to introduce them will
detract from the narrative strength of the prosecution’s case and potentially
upset jurors’ expectations. Put another way, such videos are of significant
probative value regardless of their duration. To be sure, the length of a video
will increase the risk of prejudice, but the appropriate remedy to such prejudice
is to shorten the clips, not to substitute a stipulation. Lampley never requested
such paring down before the district court, nor does he do so before this court.
Accordingly, when it comes to the evidentiary alternatives as they were
presented below and on appeal—hard evidence of illicit material or a
stipulation—Caldwell makes clear that a district court does not abuse its
discretion in denying a defendant’s offer to stipulate. Id. at 343; see also United
States v. Blank, 701 F.3d 1084, 1092 (5th Cir. 2012) (“Blank’s final contention
is that the district court abused its discretion by admitting two exhibits of child
pornography after Blank offered to stipulate that the material was child
pornography. That claim is foreclosed by this court’s decision in [Caldwell].”
(footnote omitted)). Thus, the district court did not abuse its discretion in
allowing the Government to display clips from the videos located on Lampley’s
computer to the jury.
                                         B.
      Lampley next argues that there was insufficient evidence to support his
conviction. Because Lampley raised his sufficiency-of-the-evidence challenge
below, this court reviews the issue de novo. United States v. Moreland, 665
F.3d 137, 148 (5th Cir. 2011). In conducting this review, we view the evidence
in the light most favorable to the jury verdict. United States v. Winkler, 639
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                                  No. 19-40009
F.3d 692, 696 (5th Cir. 2011). This court “must affirm if a rational trier of fact
could have found that the evidence established the essential elements of the
offense beyond a reasonable doubt.” Id. (quoting United States v. Lopez, 74 F.3d
575, 577 (5th Cir. 1996)).
      Lampley was convicted under 18 U.S.C. § 2252A(a)(2)(A) and (a)(5)(B).
The former provision prohibits the knowing receipt or distribution of “any child
pornography using any means or facility of interstate or foreign commerce or
that has been mailed, or has been shipped or transported in or affecting
interstate or foreign commerce by any means, including by computer.”
§ 2252A(a)(2)(A). The latter provision punishes anyone who
      knowingly possesses, or knowingly accesses with intent to view,
      any book, magazine, periodical, film, videotape, computer disk, or
      any other material that contains an image of child pornography
      that has been mailed, or shipped or transported using any means
      or facility of interstate or foreign commerce or in or affecting
      interstate or foreign commerce by any means, including by
      computer, or that was produced using materials that have been
      mailed, or shipped or transported in or affecting interstate or
      foreign commerce by any means, including by computer.

§ 2252A(a)(5)(B). Lampley does not dispute that the images and videos located
on his computer contained child pornography. Nor does he dispute the
connection between the materials and interstate commerce. The only issue in
dispute on appeal is whether Lampley knowingly received or possessed the
materials.
      In knowing-possession prosecutions, the Government may make its case
for the possession element by proving direct possession (i.e., physical control
over the contraband) or by proving constructive possession, defined as “the
ownership, dominion or control over an illegal item itself or dominion or control
over the premises in which the item is found.” Moreland, 665 F.3d at 150. “The
government may prove constructive possession by circumstantial evidence.” Id.

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                                 No. 19-40009
In most cases, constructive possession may be inferred “if a defendant had
exclusive possession of the place in which the contraband is found.” Id. Where
there is no exclusive possession—i.e., when child pornography is found on a
shared computer—“the government must introduce some evidence, in addition
to the evidence of shared use, to support a reasonable jury inference that the
defendant knew that the images existed and had the knowledge and ability to
access and exercise dominion and control over them.” United States v. Woerner,
709 F.3d 527, 536 (5th Cir. 2013).
      Applying this framework, we conclude that Lampley’s conviction was
supported by sufficient evidence. Even assuming arguendo that Lampley did
not have exclusive possession of the computer (in which case constructive
possession may not be automatically inferred), the Government still met its
burden under the standard for cases of joint occupancy. First, the Government
established that Lampley had the knowledge and ability to access the images
and videos: Lampley knew the password for the account on which the videos
were stored, and Lampley makes no argument that he lacked the knowhow to
locate and open the folders where the images and videos were stored. Second,
there is ample circumstantial evidence to suggest that Lampley knew the
images and videos existed. As discussed, his handwritten notes match many of
the terms located in the videos. Lampley protests that he merely wrote the
terms down because he noticed them in his search browser, but some of the
entries in Lampley’s notebook are wholly inconsistent with this (already
questionable) account. For example, in one page of his notes where illicit terms
appear, Lampley lists certain products and websites that do not relate to child
pornography with an accompanying checkmark followed by “out,” suggesting
an interest in “checking out” such items (e.g., “[checkmark] out 4G mobile
broadband cheap”). Right alongside these benign items is an entry that reads
“[checkmark] out Ms. Teen Delaware porn scene.” In light of this entry, it is
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                                 No. 19-40009
difficult to credit Lampley’s claim that he merely saw the search terms and
wrote them down out of concern that he had been hacked. In any event, the
inference that the notes reflect Lampley’s intent to download child
pornography was sufficiently plausible that the jury was not required to draw
the contrary inference that Lampley merely wrote down the terms after seeing
them in his browser.
      The evidence located on Lampley’s cellphone further supports the
Government’s account. The search terms on Lampley’s mobile browser closely
match the terms in Lampley’s notes as well as the file names for the videos.
Additionally, Lampley’s cellphone contained child erotica, which Curl testified
is a common companion to child pornography. There is no evidence (other than
Lampley’s testimony) that Lampley’s cellphone had a virus or was otherwise
hacked, nor is there evidence that Lampley allowed anyone else to browse the
web on his cellphone. The confluence of Lampley’s handwritten notes, together
with the search terms and child erotica on his cellphone, make it highly likely
that Lampley downloaded and was aware of the child pornography found on
his computer.
      In light of this evidence, the jury was not required to accept Lampley’s
contrary testimony that a hacker had downloaded the files to his computer.
Moreover, there is hardly any evidence in support of that theory. Although a
virus was located on Lampley’s computer, Curl testified that the specific type
of virus he discovered would not allow a hacker to remotely access a computer
in order to download child pornography. Curl also testified that he had never,
in the 250 child-pornography cases he had worked on, come across a case where
a hacker had remotely downloaded child pornography to someone’s computer
via a Trojan virus. The jury was therefore free to reject Lampley’s account that
the child pornography had been downloaded by a hacker.


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                                 No. 19-40009
      This conclusion is unaltered by the two cases Lampley cites in which this
and another court reversed child-pornography convictions due to insufficient
evidence. In both cases, the defense put forward affirmative evidence tying the
child pornography to another user of the computer. In Moreland, for example,
the defendant shared his computer with his terminally ill father, and the
defense had presented evidence suggesting that the material belonged to the
father. 665 F.3d at 146-47 (alluding to evidence that father frequently viewed
adult pornography and had requested defendant’s brother destroy his
computers after learning of child-pornography investigation into defendant).
In addition, the Government in Moreland failed to put forward any evidence
suggesting it was the defendant, rather than the father or some other user,
who viewed the child pornography. Id. at 151-52. For that reason, this court
reversed, finding insufficient evidence of knowing possession. Id. at 152; see
also State v. Myrland, 681 N.W.2d 415, 420 (Minn. Ct. App. 2004) (finding
evidence insufficient to show defendant used computer to view child
pornography when “uncontroverted evidence” showed that “potentially
hundreds of people” could have accessed same computer). Here, by contrast,
Lampley’s notes and cellphone searches tie the videos to him, and Lampley
does not argue that any person with whom he shared his laptop accessed the
pornography or even had the password to the user account on which the
pornography was stored. Rather, he pins it all on an unknown hacker, a theory
that, for reasons stated above, lacks significant evidentiary support. Thus, the
Government put forward sufficient evidence of knowing possession to support
a guilty verdict in this case.
      Lampley’s attack on his knowing-receipt conviction fails for similar
reasons. As discussed above, jurors were permitted to discount Lampley’s
theory that his computer had been hacked. It follows, then, that they were
similarly justified in concluding that it was Lampley—the only other person
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                                No. 19-40009
alleged to have had access to the specific user account on which the files were
found—who had downloaded the files. Given the highly graphic file names
attached to the illicit images and videos, Lampley cannot plausibly argue that
he downloaded the files but somehow did not know what they were. Nor does
Lampley argue or put forward any evidence to support a claim that he
somehow received the files by accident, save for his naked assertion that the
files were downloaded by a hacker. Finally, Lampley does not argue that some
other party, such as someone with whom he shared the computer, downloaded
the material. Accordingly, the Government presented sufficient evidence to
establish that Lampley knowingly received child pornography.
                                     III.
      For the reasons set forth above, the judgment of the district court is
AFFIRMED.




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