            United States Court of Appeals
                        For the First Circuit

No. 18–1561

                            UNITED STATES,

                              Appellee,

                                  v.

                           WILLIAM POTHIER,

                        Defendant, Appellant.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF NEW HAMPSHIRE

         [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]


                                Before

                       Kayatta, Circuit Judge,
                     Souter, Associate Justice,
                      and Selya, Circuit Judge.


     S. Amy Spencer, with whom William E. Christie and Shaheen &
Gordon, P.A. were on brief, for appellant.
     Seth R. Aframe, Assisted United States Attorney, with whom
Scott W. Murray, United States Attorney, and Cam T. Le, Assistant
United States Attorney, were on brief, for appellee.


                            March 26, 2019




     
       Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
               KAYATTA, Circuit Judge.            Police learned that someone

using an IP address1 registered to William Pothier at an apartment

in Exeter, New Hampshire, downloaded child pornography from a peer-

to-peer file-sharing network.               They also learned that two people

in addition to Pothier received mail at that residence.                          While

executing a search warrant,              police found in the living room a

laptop computer that was not password-protected.                   Pothier admitted

that he owned the laptop, which contained a handful of documents

and innocuous chat histories in his name.                It also contained child

pornography,         i.e.,    videos   of    "minor[s]    engaging       in    sexually

explicit conduct."           18 U.S.C.A. § 2252(a)(4)(B)(i).          That was more

or less enough for the police and the United States Attorney.                       In

short       order,    a   grand   jury      indicted    Pothier    for    "knowingly

possess[ing]"         child    pornography       in    violation    of    18    U.S.C.

§ 2252(a)(4)(B), and then a jury found him guilty. He now appeals,

claiming that the evidence was insufficient to prove beyond a

reasonable doubt that he -- as opposed to the other people who may

have had access to the computer -- downloaded the pornography.

For the following reasons, we agree and reverse the conviction.




        1
       "An IP address, or Internet Protocol address, 'is the unique
address assigned to every machine on the internet.'" United States
v. McLellan, 792 F.3d 200, 204 n.1 (1st Cir. 2015) (quoting United
States v. Cameron, 699 F.3d 621, 627 n.1 (1st Cir. 2012)).


                                         - 2 -
                                        I.

             A    preliminary   investigation       revealed   that   the    U.S.

Postal Service delivered mail to three people at the Exeter

residence associated with the IP address registered to Pothier:

Pothier,   Josephine      Pritchard,     and     someone   named    Balis.    On

March 30, 2016, police officers executed a warrant to search for

child pornography at the residence.               For approximately fifteen

minutes, police officers repeatedly knocked on the door, and called

and texted Pothier's cell phone.               Though Pothier was inside the

residence, he did not answer until the fire department arrived and

began to pry open the door.       When asked if he had heard the police

outside, he answered that he had, and said that neighbors had told

him that police had been canvassing the area.

             The    ensuing   search    surfaced    numerous   computers     and

electronic storage devices, including an Asus laptop found in the

living room.       Pothier admitted that he owned the laptop, which was

not password-protected and had a generic "Asus" profile rather

than a user-generated profile.          The police were therefore able to

access the computer's contents on-site.            Among the applications on

the Asus laptop were a file-sharing program called Shareaza and an

electronic       file-shredding   program       called   Evidence   Eliminator.

Also on the computer were six videos depicting children engaging

in sexual acts.       In addition, the on-site review revealed that a




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Skype user called "wdpothier" had engaged in a few innocuous Skype

chat exchanges in March 2016.

             The police later conducted a full forensic investigation

of the Asus laptop.         The child pornography discussed above was

saved   in    a   temporary     folder   associated     with    the   Shareaza

application.       In    addition,   one     more   video    depicting   child

pornography was in the laptop's recycle bin.                Police also found

that a user had searched on both Google and Shareaza using terms

consistent     with     child   pornography.        Finally,    police   found

thumbnail images that were remnants of child pornography that had

been downloaded and deleted.

             The computer contained a handful of documents associated

with two people.          First, police found two mortgage interest

statements and a restaurant voucher, all associated with Pothier.

Second, they found personnel and military discharge documents

belonging to Joseph Walko.        Walko testified that he worked at the

Federal Aviation Administration in New York with Pothier and that,

at some point, they had neighboring cubicles, but that he had no

idea why his personal documents were on Pothier's computer.               So,

the jurors had a basis to conclude that Walko did not have access

to the laptop, notwithstanding the presence of his documents on

it.

             The government was able to pin down the exact times and

dates of the illicit downloads and searches.           There was no overlap


                                     - 4 -
between the dates on which Pothier was known to have used the

laptop, the dates on which Walko's documents were saved to the

computer, and the dates of the illicit downloads and searches.

            At the close of the government's case, Pothier moved

pursuant to Federal Rule of Criminal Procedure 29 for judgment of

acquittal, arguing that the government failed to prove beyond a

reasonable doubt that he knew that the Asus laptop contained child

pornography.     The district court summarily denied the motion.

Pothier    neither   testified   nor   presented    any   evidence   in   his

defense, and the jury returned a guilty verdict.              The district

court then denied Pothier's motion to set aside the verdict,

stating without explanation that a rational jury could find Pothier

guilty beyond a reasonable doubt.         At sentencing, the district

court applied -- over Pothier's objection -- a two-level Guidelines

enhancement for "knowingly engag[ing] in distribution" of child

pornography.    See U.S.S.G. § 2G2.2(b)(3)(F).        The court sentenced

Pothier to six years of imprisonment and twenty years of supervised

release.

            Pothier appeals to this court.         He challenges both the

sufficiency of the evidence underlying the guilty verdict and the

district court's application of the sentencing enhancement for

knowing distribution of child pornography.




                                  - 5 -
                                     II.

            We turn first to Pothier's claim that the district court

erred in denying his motion for judgment of acquittal.              It goes

without   saying    that   the   "Constitution   prohibits   the    criminal

conviction of any person except upon proof of guilt beyond a

reasonable doubt."     Jackson v. Virginia, 443 U.S. 307, 309 (1979).

We give great deference to juries' application of this standard.

In reviewing Pothier's claim, we must affirm the conviction if

after a de novo review of the evidence, taken in the light most

favorable to the government, we conclude that a rational factfinder

could decide that the government carried its burden beyond a

reasonable doubt.      See United States v. Figueroa-Lugo, 793 F.3d

179, 183 (1st Cir. 2015).        "In conducting a sufficiency analysis,

however, some degree of intellectual rigor is required; a reviewing

court should not give credence to 'evidentiary interpretations and

illations    that    are   unreasonable,    insupportable,     or    overly

speculative.'"      Leftwich v. Maloney, 532 F.3d 20, 23 (1st Cir.

2008) (quoting United States v. Spinney, 65 F.3d 231, 234 (1st

Cir. 1995)); see also United States v. Valerio, 48 F.3d 58, 64

(1st Cir. 1995) ("[W]e are loath to stack inference upon inference

in order to uphold the jury's verdict.").

                                     A.

            The record in this case begins like the first chapter of

a detective novel.         The criminal act was clear:         The laptop


                                    - 6 -
contained child pornography.         Because the laptop was not password-

protected and was found in a common area of the residence, the

possible suspects were three:         Pothier, Pritchard, and Balis, all

of whom apparently had access to the residence and, therefore, to

the computer.     At that point, the record becomes sketchy and the

evidence sparse.       We learn very little about the possible suspects

and just a bit more about the computer.

            The sole fact that the record reveals about Balis is

that he or she received mail at the residence.                 We have no clue

whether Balis lived there, how much time Balis spent there, or

whether Balis was there when the pornography was downloaded.                      We

know   nothing    about    Balis's    relationships       with    Pritchard       or

Pothier.     The detective who oversaw the investigation testified

that neither he nor his subordinates ever attempted to learn more

about Balis.     As a result, we do not even know Balis's first name.

            The trial record discloses only slightly more about

Pritchard.       One   officer   testified    that   he    believed        she   was

Pothier's    "significant     other."        She   was    an     airline    flight

attendant, and she bought the Exeter residence from Pothier.                     She

showed up at the residence while the police were executing the

warrant, and she followed Pothier's advice not to speak to the

police without a lawyer present.        Like Balis, she did not testify.

            Even the evidence about Pothier is remarkably scant.                  We

know that Pothier worked for the Federal Aviation Administration


                                     - 7 -
and that he spent at least four days a month in New York, where he

maintained an apartment.    He also owned property in Newmarket, New

Hampshire, and his vehicle was registered there.               He received

"some" but "not a lot" of mail at the Exeter residence, and the

mail he did receive there would sometimes sit in the mailbox for

several days.    We don't know whether he left the laptop at the

Exeter residence when he was elsewhere.          Although the government

knew the dates and times on which the culprit downloaded the

pornography, it did not investigate -- much less prove -- where

Pothier was on those days or at those times.

           Then there is the Asus laptop that belonged to Pothier.

By not establishing a password, Pothier left the contents of the

laptop fully accessible to anyone who might turn it on.             He also

left the laptop physically accessible, sitting in the living room

where the police found it.      It is undisputed that Pothier used the

computer on at least a handful of occasions.            There is no proof

that   anyone   else   either   did   or   did   not   use   the   computer.

Importantly, the evidence does not reveal whether an innocent user

of the computer would have been aware that it contained child

pornography.    The seven illegal videos contained on the computer

at the time of the search were not filed in conspicuous locations,

but rather in the recycle bin and in a temporary folder only

visible to a user who overrode Microsoft's default setting.




                                  - 8 -
                                    B.

            There is no dispute that the jurors could rationally

conclude that anyone viewing the videos would know that they

depicted child pornography.        The question at hand is whether a

rational jury could find beyond a reasonable doubt that Pothier

knew that his laptop contained the videos.           The government's sole

theory at trial and on appeal is that Pothier must have known that

the illicit material was on his laptop because he was the only

person who otherwise used the laptop, and therefore must have been

the person who downloaded the pornography. In assessing the extent

to which the evidence supports this argument, we begin by spelling

out   the   scenario   the   government's   theory    necessarily   posits:

Pothier downloaded the file-sharing program Shareaza, the file-

shredding program Evidence Eliminator, and child pornography, but

decided to forgo password protection and then left the laptop in

the living room of a residence at which two other people received

mail.   Furthermore, during the fifteen or so minutes when he knew

the police were at the door, Pothier did not conceal or destroy

the laptop or run the file-shredding Evidence Eliminator program

that the government presumes he had installed.

            A contrary scenario consistent with the limited evidence

is that Pritchard or Balis used the readily available laptop during

Pothier's frequent absences to download the file-sharing and file-

shredding applications and the child pornography.          Neither of them


                                   - 9 -
could have put a password on the computer without alerting Pothier.

And because they were not present when the police came calling,

neither of them could have hidden or destroyed the computer, or

erased the child pornography, when the need to do so arose.

          How could jurors rationally decide beyond a reasonable

doubt which scenario describes what happened?            In many cases,

jurors rely on their assessments of witnesses' credibility to

select between views of the evidence. Here, though, each competing

scenario presumes the accuracy of the testimony proffered by the

government,   so   credibility   determinations     cannot     explain   the

conviction.    Each scenario is plausible, and though one might

debate their relative merits, to settle on one beyond reasonable

doubt would require guesswork.         And "[g]uilt beyond a reasonable

doubt cannot be premised on pure conjecture."            See Stewart v.

Coalter, 48 F.3d 610, 615 (1st Cir. 1995).

          Trying    to   mine    the     record   for   some    additional

inculpatory inferences, the government contends that, in addition

to the evidence described above, Pothier's actions at the search

scene demonstrated consciousness of guilt.        More particularly, the

government argues that Pothier's lengthy delay in responding to

the police reveals that he had "something to hide."               In other

contexts, similar conduct might carry some probative weight. Here,

though, given that Pothier apparently did nothing in the available

fifteen minutes to hide the laptop or shred the evidence, his


                                 - 10 -
conduct as a whole just as easily suggests obliviousness to the

content on his computer as it does a guilty conscience.   At best,

any evidence of consciousness that one can infer from Pothier's

reaction to the police is entirely ambiguous.

          The government also points out that Pothier advised

Pritchard not to talk to the police without a lawyer present.   But

he had just seen a warrant with Pritchard's name on it.     Was he

conscious of her guilt?    Of Balis's?   Was he just giving sound

legal advice that one could glean any evening from watching network

television?   Perhaps not, but we would be guessing.

          We acknowledge that Pothier could have filled many of

these evidentiary gaps, and that his decision neither to testify

nor to present any evidence likely struck the jury as suspicious.

But the government bore both the burden of persuasion and the

burden of production for the knowledge element of the crime.    See

Jackson, 443 U.S. at 316 ("[N]o person shall be made to suffer the

onus of a criminal conviction except upon sufficient proof --

defined as evidence necessary to convince a trier of fact beyond

a reasonable doubt of the existence of every element of the

offense."); Sandstrom v. Montana, 442 U.S. 510, 516 n.5 (1979)

(explaining that a directed verdict for the defense results from

the government's failure to meet the production burden); see also

U.S. Const. amend. V ("No person . . . shall be compelled in any

criminal case to be a witness against himself . . . ."). So, while


                              - 11 -
the absence of defense evidence might explain the jury's verdict,

it cannot justify the verdict in the face of an insufficiently

supported government case.

            The Sixth Circuit encountered a remarkably similar case

involving three potential suspects with access to a computer that

was unprotected by password.   United States v. Lowe, 795 F.3d 519

(6th Cir. 2015).   As here, the defendant owned the laptop and kept

it in a shared area of the home.      Id. at 523.     There as here, the

illicit files were saved in locations where innocent computer users

might not have encountered them.      Id. at 524.     And there as here,

the pattern of internet activity on the dates in question did not

narrow the field of possible users.     Id. at 523.    The Sixth Circuit

concluded that "without improperly stacking inferences, no juror

could infer from such limited evidence of ownership and use that

[the   laptop    owner]   knowingly     downloaded,     possessed,   and

distributed the child pornography found on the laptop."          Id. at

523; see also United States v. Moreland, 665 F.3d 137, 150 (5th

Cir. 2011) (holding that the government presented insufficient

evidence of knowledge of possession of child pornography where the

computer was shared and the images were saved in unallocated "slack

space" as opposed to folders associated with a particular user).

            The government attempts to distinguish both Lowe and

Moreland.    It points first to Pothier's behavior when the police

came knocking.   We have already explained why that conduct, viewed


                               - 12 -
in    context,   renders      speculative         any       inference     that     Pothier

manifested consciousness of guilt of the relevant charges.

            The government also points out that there exists no

evidence that anyone besides Pothier actually used the laptop.                            In

Lowe as well, though, there was no proof that the other possible

users did in fact use the laptop.                 795 F.3d at 523.              We also do

not see the logic in the government's unstated assumption that if

Pritchard or Balis used Pothier's laptop to download the child

pornography, he or she would also likely have used the laptop for

other purposes.      One might just as easily presume that they would

avoid other uses so as not to alert Pothier.                           All in all, just

like the Sixth Circuit in Lowe, we are left with a surprisingly

incomplete record.         It generates hunches, but it provides no tools

for   rationally     confirming          any    one    of       the   hunches    beyond   a

reasonable doubt.

            Finally, we address the government's warning that a

reversal on sufficiency grounds will thwart future prosecutions

for possession of child pornography.                  As demonstrated by Lowe, our

ruling does not make new law.                  Rather, we simply recognize that

Congress   criminalized           only    the    knowing         possession      of   child

pornography, and a conviction under that law -- like any other

conviction -- cannot be based on mere guesswork.                           "[A] society

that values the good name and freedom of every individual should

not   condemn    a   man    for    commission         of    a    crime   when    there    is


                                         - 13 -
reasonable doubt about his guilt."            In re Winship, 397 U.S. 358,

363–64 (1970).     If Pothier is factually innocent, then he has

suffered   a   great   wrong   and    the     guilty   person   remains   free.

Conversely, if Pothier is factually guilty, he goes free only

because the prosecution failed to gather and present readily

accessible evidence.       In either event, it is uncharacteristic

prosecutorial torpor -- not undue judicial rigor -- that prevented

justice from being done.

                                      III.

           Having concluded that Pothier's conviction rests on

insufficient evidence, we need not reach his sentencing challenge.

For the reasons discussed above, we reverse.




                                     - 14 -
