     Case: 16-20481      Document: 00514129018         Page: 1    Date Filed: 08/23/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                      No. 16-20481                              FILED
                                                                          August 23, 2017

UNITED STATES OF AMERICA,                                                  Lyle W. Cayce
                                                                                Clerk
               Plaintiff - Appellee

v.

TROY RAY TRAWEEK,

               Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:13-CR-712-1


Before HIGGINBOTHAM, GRAVES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Troy Traweek appeals his convictions for two counts of sexual
exploitation or attempted sexual exploitation of children and one count of
distribution of child pornography. Because we conclude that the evidence was
sufficient to support Traweek’s convictions, the judgment of the district court
is affirmed.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-20481
                                               I.
      In October 2013, Homeland Security Investigations received information
from an undercover agent with the Queensland, Australia Police Service
investigating a child pornography sharing website known as Image Source.
Troy Traweek engaged in explicit email chats with the agent and sent him two
photos of nude, prepubescent females that appeared to have been taken by a
hidden camera. One of the photos depicted a full frontal image of a nude
prepubescent female in a bathroom and the other depicted the buttocks of a
female child in a bedroom. Traweek told the agent the children were his eight-
and six-year-old step-daughters 1           (S.J. and B.F., respectively) and sought
advice on how to initiate sexual contact. Traweek also sent the agent a link to
his Image Source account.
      The investigation eventually led to a physical investigative search of
Traweek’s residence in Cypress, Texas on October 16, 2013.                    During this
search, agents located videos of Traweek setting up the hidden cameras.
Agents also located various items, i.e., computer, hard drives, cameras, flash
drives, cellular telephones, etc., containing or used in producing child
pornography and visual depictions of children engaging in sexually explicit
conduct. Forensic investigators identified 77 videos and 143 digital images of
child pornography on Traweek’s computer and telephone. Under U.S.S.G. §
2G2.2, cmt. n.6(B)(ii), each video clip is the equivalent of 75 images, thus, the
total number of images attributed to Traweek was 5,918.                       Agents also
discovered a number of emails between Traweek and other individuals
regarding the trading and/or sharing of child pornography.
      Traweek stipulated to hiding the cameras, knowingly possessing the
equipment, and knowingly producing and possessing the twelve videos and the


      1   The girls were the daughters of Traweek’s live-in girlfriend.
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                                No. 16-20481
still images taken from the videos of S.J. and B.F., that both girls were under
twelve years of age, and that images had been mailed, shipped, or transported
by means of interstate or foreign commerce or had been produced using
material that had been mailed, shipped, or transported by means of interstate
or foreign commerce. Traweek also stipulated that he knew Exhibit 5-3.8 was
contained on his computer hard drive and that it is child pornography, a visual
depiction of a prepubescent female engaging in sexually explicit conduct, i.e.,
performing oral sex on an adult male. Exhibit 5-3.8 was the subject matter of
count four of the indictment. Traweek stipulated that Exhibits 5-3, 5-3.1
through 5-3.67, 6-1 and 6-1.1 through 6-1.65 are child pornography depicting
sexually explicit conduct, but they were admitted over his objections. Traweek
stipulated that all but 19 specific images are child pornography. With regard
to the downloaded images Traweek claimed are not child pornography, it was
established at trial that some of them have previously been identified as child
pornography and used in trials of other defendants. As to the remaining
images he downloaded from the internet of children other than S.J. and B.F.,
he acknowledged that the images are child pornography, but argued they were
not relevant.
      Traweek waived his right to a jury trial and a bench trial was conducted
on August 3, 2015. The government called two witnesses, Deputy Nassar Foty
of the Harris County Precinct 4 Constable’s Office and Special Agent Jeffery
Chappell, a computer forensic analyst assigned to the Cyber Investigation
Group of Homeland Security Investigations. Foty had been assigned to the
High Tech Crime Unit and the Internet Crimes Against Children’s Task Force
as an investigator at the time of the Traweek investigation.
      Traweek did not call any witnesses at trial. Instead, at the close of the
government’s case-in-chief, Traweek moved for a judgment of acquittal on the
production and distribution counts of the indictment under Rule 29 of the
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Federal Rules of Criminal Procedure. The district court denied Traweek’s
motion and entered Findings of Fact and Conclusions of Law pursuant to Rule
23(c) of the Federal Rules of Criminal Procedure.
       The district court’s Findings of Facts and Conclusions of Law detailed
the parties’ four stipulations regarding facts and exhibits, the testimony of the
Government’s two witnesses, Foty and Chappell, and the evidence introduced.
The district court also did a thorough analysis under the applicable law and
determined that some of the images of B.F. and S.J. depicted lascivious
exhibitions of genitalia and did constitute child pornography.                  The court
convicted Traweek of counts one and two, production of child pornography, and
count three, distribution of child pornography.               Traweek had previously
pleaded guilty to count four, possession of child pornography.
       Traweek was sentenced to 180 months’ imprisonment as to counts one,
two and three, and 120 months as to count four, all concurrent, and lifetime
supervised release. Thereafter, Traweek filed this appeal.
                                             II.
       On appeal, Traweek asserts that the district court erred in denying his
motion for judgment of acquittal as to counts one, two and three of the
indictment because the government failed to prove beyond a reasonable doubt
that the cropped still images taken from the surreptitious bathroom videos of
S.J. and B.F. depicted minors engaging in sexually explicit conduct as required
by 18 U.S.C. § 2251(a) and § 2256(8) and did not constitute prohibited child
pornography under §§ 2256(8) and 2252A and Ferber v. New York, 458 U.S.
747, 774 n. 28 (1982). 2


       2Traweek asserts that no sexual abuse of the minors occurred under Ferber so as to
remove First Amendment protection. However, there is no requirement that the minor
affirmatively commit a sexual act or be sexually abused. United States v. Steen, 634 F.3d
822, 826-28 (5th Cir. 2011). Traweek also characterizes that the district court’s decision as
an acquittal in part on counts one through three. While the district court did conclude that
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                                       No. 16-20481
       We review the denial of a motion for judgment of acquittal de novo.
United States v. Steen, 634 F.3d 822, 825 (5th Cir. 2011). A Rule 29 motion for
judgment of acquittal challenges the sufficiency of the evidence of conviction.
United States v. Medina, 161 F.3d 867, 872 (5th Cir. 1998). We will uphold a
conviction following a bench trial if it is supported by substantial evidence.
United States v. Shelton, 325 F.3d 553, 557 (5th Cir. 2003).
       We apply the clear error standard to the district court’s factual findings,
including the determination of whether an image presents a lascivious
exhibition of the genitals of a minor. Steen, 634 F.3d at 826.
       After careful consideration of the record, briefs and applicable legal
authority, we conclude that the district did not err in denying the motion for
judgment of acquittal for essentially the same reasons as set out in the district
court’s Findings of Facts and Conclusions of Law. Further, the evidence is
sufficient to support Traweek’s convictions for sexual exploitation of children
under 18 U.S.C. § 2251(a), in counts one and two of the indictment, and for
distribution of child pornography under 18 U.S.C. § 2252A(a)(2)(B) and (b)(1),
in count three.
                                             III.
       The judgment of the district court is AFFIRMED.




only some of the images constituted lascivious exhibitions of B.F. and S.J.’s genitals and are
child pornography, there is no indication that Traweek was actually acquitted on any counts.
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