     Case: 13-41241   Document: 00513103891       Page: 1   Date Filed: 07/02/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                   No. 13-41241                  United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
UNITED STATES OF AMERICA,                                            July 2, 2015
                                                                   Lyle W. Cayce
             Plaintiff–Appellee,                                        Clerk

v.

DAVID PAUL ROETCISOENDER,

             Defendant–Appellant.




                Appeal from the United States District Court
                     for the Southern District of Texas


Before SMITH, PRADO, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      A jury convicted David Paul Roetcisoender of two counts of distribution
of child pornography and one count of possession of child pornography. On
appeal, Roetcisoender challenges the sufficiency of the evidence supporting his
convictions for distribution, the application of a two-level sentencing
enhancement for use of a computer, and the application of a two-level
sentencing enhancement for distribution. Because the evidence is sufficient to
support his convictions for distribution, and his sentencing arguments are
foreclosed by prior precedent, we affirm.
    Case: 13-41241     Document: 00513103891     Page: 2   Date Filed: 07/02/2015



                                  No. 13-41241
                                        I
      The Pearland, Texas Police Department operates software that monitors
file-sharing programs and detects IP addresses that store files known to
contain child pornography. The software identified an IP address in Pearland,
and Detective Cecil Arnold subpoenaed Comcast, the Internet service provider,
for the account holder’s information. Arnold and other officers obtained and
executed a search warrant for the account holder’s residence, where
Roetcisoender also resided.     When Roetcisoender arrived, he admitted to
having child pornography on his computers. After onsite triage revealed the
presence of child pornography on some of Roetcisoender’s devices, the officers
arrested Roetcisoender and seized two computers and multiple external hard
drives and flash drives for further analysis. Officer Jonathan Cox, a computer
forensic investigation officer, examined the computers and other hardware and
found over 100,000 pornographic images of minors and over 2,000 videos of
child pornography.
      Roetcisoender told the police he had been downloading child
pornography through eMule, a program that facilitates file sharing between
users. Users can search for images and videos using key words and choose
which files to download. The downloaded files go, by default, into a folder titled
“Incoming.” The “Incoming” folder is, by default, available for sharing with
other eMule users online. As part of his analysis, Cox retrieved a file that
documents every file that has been downloaded by the eMule user and every
file that has been uploaded to another eMule user from the original user’s
folder. This file revealed that two child-pornography files were uploaded to
other users from Roetcisoender’s “Incoming” folder.
      Following a jury trial, Roetcisoender was convicted of two counts of
distribution of child pornography under 18 U.S.C. § 2252A(a)(2)(B) and one


                                        2
     Case: 13-41241         Document: 00513103891          Page: 3     Date Filed: 07/02/2015



                                        No. 13-41241
count of possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B). 1 He
was sentenced to 163 months in prison, eight years of supervised release, and
a $300 special assessment.               Roetcisoender appeals his convictions for
distribution of child pornography and his sentence.
                                               II
       When a defendant timely moves for a judgment of acquittal, as
Roetcisoender did, 2 this court reviews de novo a defendant’s challenge to the
sufficiency of the evidence supporting conviction. 3 However, this court’s review
of the sufficiency of the evidence is “highly deferential to the verdict.” 4 “The
jury’s verdict will be affirmed unless no rational jury, viewing the evidence in
the light most favorable to the prosecution, could have found the essential
elements of the offense to be satisfied beyond a reasonable doubt.” 5 This review




       1  18 U.S.C. §§ 2252A(a)(2)(B) (prohibiting “knowing[] recei[pt] or distribut[ion of] . . .
any material that contains child pornography that has been mailed, or using any means or
facility of interstate or foreign commerce shipped or transported in or affecting interstate or
foreign commerce by any means, including by computer”), (a)(5)(B) (prohibiting “knowing[]
possess[ion of] . . . 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”).
       2See United States v. Davis, 690 F.3d 330, 336 (5th Cir. 2012) (“[W]here a defendant
moves for a judgment of acquittal at the end of the Government’s case but, after presenting
evidence, fails to renew that motion, the defendant has forfeited his insufficiency challenge
and our review is for a manifest miscarriage of justice.” (emphasis added) (internal quotation
marks omitted)).
       3   United States v. Beacham, 774 F.3d 267, 272 (5th Cir. 2014).
       4Id. (quoting United States v. Isgar, 739 F.3d 829, 835 (5th Cir. 2014)) (internal
quotation marks omitted).
       5Id. (quoting United States v. Miles, 360 F.3d 472, 476 (5th Cir. 2004)) (internal
quotation marks omitted).
                                                3
     Case: 13-41241        Document: 00513103891         Page: 4       Date Filed: 07/02/2015



                                        No. 13-41241
necessarily requires consideration of evidence that countervails the verdict. 6
This court draws all reasonable inferences in favor of the jury’s verdict. 7
      We review “the district court’s interpretation and application of the
sentencing guidelines de novo and its findings of fact for clear error.” 8
                                              III
      Roetcisoender was convicted under 18 U.S.C. § 2252A(a)(2)(B), which
states:
      (a) Any person who--
          ...
          (2) knowingly receives or distributes--
              ...
              (B) any material that contains child pornography that has
              been mailed, or using any means or facility of interstate or
              foreign commerce shipped or transported in or affecting
              interstate or foreign commerce by any means, including by
              computer;
              ...
      shall be punished . . . . 9
The jury instructions defined “knowingly” as “voluntarily and intentionally,
not because of mistake or accident” and “distribute” as “to deliver or transfer
possession of [something] to someone else with or without any financial
interest in the transaction.” While the statute itself does not define distribute,
this court held in United States v. Richardson that storing files in a shared
folder accessible to others on a file-sharing program constituted distribution




      6   United States v. Davis, 735 F.3d 194, 198 (5th Cir. 2013).
      7   Beacham, 774 F.3d at 272.
      8 United States v. Baker, 742 F.3d 618, 620 (5th Cir. 2014) (citing United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008)).
      9   18 U.S.C. § 2252A(a)(2)(B).
                                               4
     Case: 13-41241           Document: 00513103891       Page: 5   Date Filed: 07/02/2015



                                           No. 13-41241
for purposes of § 2252A(a)(2)(B) under the facts of that case. 10 In Richardson,
the defendant used a peer-to-peer file-sharing program to download child-
pornography videos and stored the videos in a shared folder. 11 The defendant
was a computer technician and admitted he “knew that others could access the
materials stored in his shared folder.” 12
       Roetcisoender argues that his case is distinguishable because although
he stored files in a shared folder, the Government did not adduce any evidence
indicating that Roetcisoender knew the folder was accessible by other users.
Roetcisoender states that he merely downloaded child pornography into the
“Incoming” folder, and because he did not know that this folder was, by default,
accessible by others, he did not change the setting.
       The Government offered into evidence, and the jury heard, a recording
of Detective Arnold’s initial interview of Roetcisoender. Roetcisoender stated
he had been using the eMule program since September 2011, approximately
nine months.
       He explained that to use the eMule program, the user types in a key-
word search and chooses which files to download. When asked where a file
went when Roetcisoender downloaded it, he said it “stays in the e[M]ule option
unless you take it out of there.” He viewed files in the “eMule option,” and he
moved some files from eMule to external hard drives or the computer’s
recycling bin and left other files in eMule. When Roetcisoender stated that he
moved some files from eMule to a folder named “folder 28,” Arnold asked
another officer to tell Cox, who was in another room analyzing the computers,


       10713 F.3d 232, 235-36 (5th Cir. 2013); see also United States v. Chiaradio, 684 F.3d
265, 282 (1st Cir. 2012) (“When an individual consciously makes files available for others to
take and those files are in fact taken, distribution has occurred.”).
       11   Richardson, 713 F.3d at 236.
       12   Id.; see also id. at 234.
                                                5
    Case: 13-41241       Document: 00513103891   Page: 6   Date Filed: 07/02/2015



                                  No. 13-41241
that “some of the stuff [wa]s moved from the share folder into folder 28 on [a]
hard drive.” Roetcisoender did not question or directly respond to Arnold’s
comment regarding a “share folder.” He also stated that eMule did not have a
“good deletion program” and was aware that deleted files remained on his
computer.
      In addition, the Government called two witnesses during trial: Arnold
and Cox. Arnold testified that Roetcisoender told him in a second interview
following his arrest that he had been looking at child pornography since the
1960s, and in the late 1990s, he began to access child pornography online via
“newsgroups,” which led him to eMule before the newsgroups were shut down
by law enforcement.       Arnold also testified that Roetcisoender stated the
majority of his child pornography was on his newest computer because he had
been compiling child pornography from older hard drives and moving the
material to one large hard drive so that his files would be “centralized.” He
further stated that it appeared to him that Roetcisoender understood how the
eMule program worked. Arnold conceded that he did not ask Roetcisoender
about his level of computer knowledge, did not ask him if he knew that the
“Incoming” folder is accessible by others, and did not ask him to explain what
the “eMule option” is.
      Cox testified that eMule is a peer-to-peer file-sharing program and that
this fact is not hidden from users, but Cox conceded he lacked personal
knowledge of Roetcisoender’s own understanding of eMule’s inner workings.
He further testified that downloaded files are stored automatically in the
“Incoming” folder, and the “Incoming” folder is, by default, accessible to others
on the eMule program.         Roetcisoender’s “Incoming” folder had 97 child-
pornography videos in it. In the “Incoming” folder, there was a user-created
folder titled “Young nudists” with 212 child-pornography images in it. There
is no indication that any user other than Roetcisoender created that folder.
                                        6
     Case: 13-41241      Document: 00513103891         Page: 7    Date Filed: 07/02/2015



                                      No. 13-41241
       The files uploaded by other users from Roetcisoender’s “Incoming” folder
had titles with terms associated with child pornography. Cox testified that
this naming system assists other users in searching for and finding child-
pornography files, and Roetcisoender used similar acronyms and phrases in
his search terms.
       Viewing the evidence in the light most favorable to the Government, a
rational jury “could have found the essential elements of the offense to be
satisfied beyond a reasonable doubt.” 13 The Government introduced evidence,
including Roetcisoender’s own statements, establishing that he generally
understood how the eMule program operated, that he had downloaded and
stored over 100,000 images and 2,000 videos depicting child pornography on
two computers, eight external hard drives, and two USB flash drives, that he
knew how to move files between the devices, and that he had used the Internet
to access child pornography for over a decade and had used eMule for about
nine months.        Specifically, Roetcisoender said he knew that when he
downloaded child pornography from eMule, the file “stays in the e[M]ule option
unless you take it out of there.” He created a subfolder titled “Young nudists”
in the shared eMule folder and transferred 212 child pornography images to
that folder. The title “Young nudists” would indicate the contents of the folder
and contained terms that those seeking child pornography might use to search
for files. Yet when Roetcisoender created folders to store child pornography on
the same computer in files that were not shared on eMule, he gave the folders
non-descript titles such as “New Folder” and “28.” Additionally, Roetcisoender
said that he was centralizing his child pornography collection onto his new
computer in a different hard drive that was not part of the “eMule option,” yet



       13 United States v. Beacham, 774 F.3d 267, 272 (5th Cir. 2014) (quoting United States
v. Miles, 360 F.3d 472, 476 (5th Cir. 2004)) (internal quotation marks omitted).
                                             7
     Case: 13-41241         Document: 00513103891        Page: 8     Date Filed: 07/02/2015



                                         No. 13-41241
he created the “Young nudists” folder for the “Incoming” eMule file, not for his
“centralized” collection. A jury could have reasonably drawn an inference from
the evidence that Roetcisoender knew that the child pornography stored in the
“Incoming” folder was available for sharing with other eMule users. 14 The
evidence is sufficient to support Roetcisoender’s convictions for distribution of
child pornography.
                                                IV
       Roetcisoender         also     appeals   the   application     of   two    sentencing
enhancements. The district court applied a two-level enhancement under
U.S.S.G. § 2G2.2(b)(6) because “the offense involved the use of a computer . . .
for the possession, transmission, receipt, or distribution of the material.” 15 At
sentencing, Roetcisoender argued that virtually every child-pornography case
involves the use of a computer, and thus, a two-level enhancement is
inappropriate. On appeal, Roetcisoender argues that the application of this
enhancement to a conviction for possession of child pornography under
18 U.S.C. § 2252A(a)(5)(B) constitutes impermissible double-counting because
“the use of a computer was charged in the indictment and formed an element
of the offense.” The Government contends that Roetcisoender makes a new
argument on appeal and that review is for plain error only. 16
       It is unnecessary to decide whether Roetcisoender preserved the
argument in the district court because Roetcisoender concedes that his



       14See id. (“[W]e draw all reasonable inferences in favor of the jury’s verdict.” (quoting
Miles, 360 F.3d at 477)).
       15   U.S.S.G. § 2G2.2(b)(6).
       16 See United States v. Juarez, 626 F.3d 246, 253-54 (5th Cir. 2010) (stating that when
a defendant presents a new argument on appeal, review is for plain error, and plain error
exists “when (1) there was an error or defect; (2) the legal error was clear or obvious, rather
than subject to reasonable dispute; and (3) the error affected the defendant’s substantial
rights”).
                                                8
    Case: 13-41241          Document: 00513103891        Page: 9    Date Filed: 07/02/2015



                                         No. 13-41241
argument on this issue is foreclosed by this court’s decision in United States v.
Richardson. The Richardson decision held that “[b]ecause § 2G2.2(b)(6) does
not expressly prohibit double-counting, the district court did not err in
applying § 2G2.2(b)(6)” to Richardson’s conviction under 18 U.S.C.
§ 2252A(a)(2)(B) for distribution of child pornography. 17 The court additionally
noted that “the statutory language ‘including by computer’ does not require
computer use to violate the statute: using a computer is just one example of a
manner in which child pornography can be transmitted.” 18 The statutes for
distribution of child pornography and possession of child pornography both
mention computers as an example of a “means or facility” of commerce. 19
Accordingly, while Richardson addressed the double-counting argument in the
context of distribution of child pornography, its holding applies with equal
force in the context of possession of child pornography. The district court did
not err, plainly or otherwise, in applying the two-level enhancement under
§ 2G2.2(b)(6).
      The district court also applied a two-level enhancement under U.S.S.G.
§ 2G2.2(b)(3)(F) because “the offense involved . . . [d]istribution other than
distribution      described     in”     the   other   subsections   of   §   2G2.2(b)(3). 20
Roetcisoender again argues that he did not knowingly distribute child
pornography and that the district court erred in applying the sentencing
enhancement for distribution. Roetcisoender concedes that his argument is
foreclosed by this court’s decision in United States v. Baker. This court held in




      17   Richardson, 713 F.3d at 237 (footnote omitted).
      18   Id.
      19   18 U.S.C. §§ 2252A(a)(2)(B), (a)(5)(B).
      20   U.S.S.G. § 2G2.2(b)(3)(F).
                                                9
   Case: 13-41241         Document: 00513103891         Page: 10       Date Filed: 07/02/2015



                                         No. 13-41241
Baker that U.S.S.G. § 2G2.2(b)(3)(F) does not have a scienter requirement. 21
The district court did not err in applying the enhancement.
                                     *        *         *
     The judgment of the district court is AFFIRMED.




     21   United States v. Baker, 742 F.3d 618, 623 (5th Cir. 2014).
                                             10
