     Case: 10-30039 Document: 00511477811 Page: 1 Date Filed: 05/13/2011




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

                                                 FILED
                                                                            May 13, 2011

                                       No. 10-30039                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

COLUMBUS MOORE

                                                   Defendant-Appellant




                    Appeal from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 1:09-CR-14-1


Before GARZA, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
       A jury convicted Defendant-Appellant Columbus J. Moore (“Moore”) of
receiving and possessing child pornography in violation of 18 U.S.C.
§§ 2252A(a)(2) and (a)(5)(B). Moore appeals the conviction, arguing that the
government failed to prove the jurisdictional element of the crime and that the
district court made reversible errors with the admission of certain evidence and
jury instructions. For reasons discussed below, we AFFIRM the district court
and uphold Moore’s conviction.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                             I
       Troopers with the Louisiana State Police arrested Moore in November
2008 during an undercover investigation of individuals who shared child
pornography via LimeWire, a peer-to-peer network.1                     As part of the
investigation, Trooper Chad Gremillion obtained information that a LimeWire
account registered to Moore had downloaded or shared child pornography.
Gremillion obtained a search warrant for Moore’s home and when Gremillion
and two other troopers arrived at the residence, Moore allowed the officers to
enter the house. The troopers separated Moore from his wife and children, and
asked Moore’s wife to leave the home with the children.
       The troopers searched the home and advised Moore, verbally and in
writing, of his Miranda rights.         Moore waived his rights and the troopers
interviewed Moore. Initially, Moore denied that child pornography was on the
computer. When Moore finally acknowledged that the child pornography was
on the machine, he claimed that other family members had downloaded the files.
Eventually, Moore confessed to downloading the images. The search revealed
that Moore had downloaded twenty-five child pornography movies. All the files
were downloaded from the Internet. Specifically, Moore had obtained them
using LimeWire, which share files via the Internet.
       Before trial, the government notified Moore that prosecutors would call his
stepdaughter as a witness. The government wanted the girl to testify about two
incidents in which Moore had molested her when she was twelve. Moore moved
to suppress the testimony.        The district court ruled that the evidence was
admissible under Rules 414 and 403 of the Federal Rules of Evidence and
overruled the motion in limine. At trial, after the girl had testified, the court
issued limiting instructions to jurors that explained Moore had not been charged

       1
         A peer-to-peer network is a file-sharing system in which Internet users share files
with other users on a specific network.

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with the crime of molestation. The court instructed the jurors to consider the
testimony for the limited purpose of determining Moore’s propensity to download
child pornography and whether he was correctly charged.
      The jury convicted Moore on one count of knowingly receiving child
pornography transported in interstate commerce, a violation of 18 U.S.C.
§ 2252A(a)(2), and one count of possession of images of child pornography
transported in interstate commerce, a violation of 18 U.S.C. § 2252A(a)(5)(B).
Before sentencing, Moore objected to the pre-sentence report’s recommendation
that the trial court should enhance his criminal history category for a theft
charge that he pled guilty to in Louisiana state court. The state criminal record
did not contain sentencing information and Moore argued that this meant the
conviction was not final.    The district court relied on the state conviction,
nonetheless, and enhanced Moore’s criminal history category by one level. With
a criminal history category of IV and an offense level of 37, Moore’s guidelines
sentencing range was 292 to 365 months. The court sentenced Moore to the
statutory maximum term for each count—240 months for the receiving charge
and 120 months for the possession charge—and ordered that the terms be served
concurrently.
      Moore appealed his conviction and sentence, challenging the sufficiency
of the evidence presented at trial, several of the district court’s evidentiary
decisions, and the trial court’s calculation of his criminal history score.
                                        II
                                        A
      We review the district court’s denial of a motion for judgment of acquittal
de novo and we will affirm the jury’s verdict if “‘a reasonable trier of fact could
conclude from the evidence that the elements of the offense were established
beyond a reasonable doubt, viewing the evidence in the light most favorable to
the verdict and drawing all reasonable inferences from the evidence to support

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the verdict.’” United States v. York, 600 F.3d 347, 352 (5th Cir. 2010) (quoting
United States v. Floyd, 343 F.3d 363, 370 (5th Cir. 2003)). A review of evidence
for sufficiency “‘does not include a review of the weight of the evidence or of the
credibility of the witnesses.’” Id.
      Moore argues generally that the district court erred by denying his motion
for judgment of acquittal because prosecutors failed to prove that the
downloaded child pornography had crossed state lines. Specifically, Moore first
alleges that the district court erred when it relied on United States v. Runyan,
290 F.3d 223 (5th Cir. 2002), to conclude that mere use of the Internet to
download images satisfied the jurisdictional elements of the crimes.
      We have held that transmission of photographs via the Internet “is
tantamount to moving photographs across state lines” and constitutes
transportation via interstate commerce. Runyan, 290 F.3d at 239; see also
United States v. Venson, 82 F. App’x 330 (5th Cir. 2003) (“The evidence
indicating that Venson took these images from the internet provided the jury
with sufficient evidence to find that [the images] moved in interstate
commerce.”); see also United States v. Hilton, 257 F.3d 50, 54 (1st Cir. 2001).
The government must make a specific connection between the Internet and the
images in question to satisfy the interstate commerce requirement. Runyan, 290
F.3d at 242. But, circumstantial evidence, such as a website address linking the
image to the Internet, will suffice to make that connection. Id. (citing United
States v. Henriques, 234 F.3d 263, 267 (5th Cir. 2000)).
      Moore argues next that instead of relying on Runyan and Venson, the trial
court should have relied on United States v. Schaefer, which held that to satisfy
the interstate commerce element of § 2252A, the government must prove that
each image had moved across state lines. 501 F.3d 1197, 1203–05 (10th Cir.
2007). In Schaefer, proof of Internet usage alone was insufficient to prove the
jurisdictional element. Id. at 1198. Moore’s argument fails because we have

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consistently rejected the analysis used in Schaefer. See Runyan, 290 F.3d at
239.
        Moore also asserts that the government failed to prove the photos were
transported in interstate commerce because LimeWire does not have a central
server for the transmission or storing of files. According to Moore, this lack of
a central server means the government could not prove the images were
transmitted across state lines. Moore’s argument is without merit because we
do not require proof of Internet transmission across state lines. See Runyan, 290
F.3d at 242. Rather, we have held that the mere transmission of images via the
Internet is “‘tantamount to moving photographs across state lines and thus
constitutes transport in interstate commerce.’” Id. at 239 (quoting United States
v. Carroll, 105 F.3d 740, 742 (1st Cir. 1997)). Trooper Gremillion testified that
the images located on Moore’s computer were downloaded using LimeWire and
that to download files from LimeWire an individual must use the Internet.
Given this evidence, a reasonable trier of fact could conclude that the
prosecution had established the jurisdictional element of the crime beyond a
reasonable doubt.
        Finally, Moore challenges the district court’s jury instruction about the
crime’s jurisdictional element. The district court’s instruction for this element
directly quoted our holding in Runyan. Thus, the district court did not abuse its
discretion by issuing this jury instruction, which accurately interpreted and
applied binding precedent.
                                        B
        We evaluate the district court’s decision to admit or exclude evidence
under an abuse of discretion standard. United States v. Guidry, 456 F.3d 493,
501 (5th Cir. 2006). We consider a district court’s decision under Rule 403 of the
Federal Rules of Evidence for an abuse of discretion with “an especially high
level of deference to the district court, with reversal called for only rarely and

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only when there has been a clear abuse of discretion.” United States v. Dillon,
532 F.3d 379, 387 (5th Cir. 2008) (internal quotations omitted).
       Moore argues that the district court erred by admitting evidence of the
uncharged conduct because under Rule 414, his touching of the girl’s clothed
buttocks did not constitute “an offense of child molestation.” In addition, Moore
asserts that the district court should have excluded this evidence under Rule
403, because the testimony was unfairly prejudicial and substantially
outweighed its probative value.
       Rule 414 states, in pertinent part, that child molestation constitutes “any
conduct proscribed by chapter 110 of title 18, United States Code;” or, “contact
between any part of the defendant’s body or an object and the genitals or anus
of a child.” F ED. R. E VID. 414(d)(2), (3). Moore argues that the “plain meaning
of the statute” does not include the “touching of clothed buttocks.” Moore,
however, offers no authority for his interpretation. Prior to trial, when Moore
moved to exclude the testimony, the trial court analyzed the stepdaughter’s
diary in which she had described what occurred. Under Rule 414(d)(2),2 the
district court then considered 18 U.S.C. § 2244, which prohibits abusive sexual
contact, which is defined in 18 U.S.C. § 2246 as the “intentional touching, either
directly or through the clothing, of the . . . buttocks of any person with an intent
to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any
person.”3 The court concluded that the testimony was admissible because it
described acts outlawed in §§ 2244 and 2246, which qualify the act as an offense
of child molestation under Rule 414(d)(2). The record shows that the district
court considered the stepdaughter’s allegations and correctly determined that


       2
         Evidence of similar crimes in child molestation cases is admissible if the “offense of
child molestation means a crime under Federal law . . . that involved any conduct proscribed
by chapter 110 of title 18, United States Code.” FED . R. EVID . 414(d)(2).
       3
           Sections 2244 and 2246 are both within chapter 110 of Title 18 of the U.S.C.

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they fell within the statutory definition of “child molestation.” Furthermore, the
context of Moore entering the bedroom at night to touch the girl’s clothed
buttocks distinguished this situation from one in which the touching could have
been inadvertent or accidental.     Thus, the district court did not abuse its
discretion.
      In cases involving the molestation of children, Rule 414 permits the
admission of evidence of other acts constituting child molestation when this
evidence has “bearing on any matter to which it is relevant.” F ED. R. E VID.
414(a). The relevant evidence, however, “may be excluded if [the evidence’s]
probative value is substantially outweighed by the danger of unfair prejudice.”
F ED. R. E VID. 403. Moore asserts that the district court erred by concluding that
the testimony’s probative value outweighed the danger of unfair prejudice. In
cases such as this, we have held that evidence of other sexual offenses committed
by the defendant does not need to be similar in every respect to the charged
offense. Rather, the evidence only needs to be probative as to some element of
the charged offense. Dillon, 532 F.3d at 389; see also United States v. Caldwell,
586 F.3d 338, 345–46 (5th Cir. 2009) (holding that trial court did not abuse its
discretion by allowing the jury to see excerpt of bestiality video from defendant’s
computer when defendant had argued he had not known the video was on his
computer); United States v. Goff, 155 F. App’x 774, 776 (5th Cir. 2005)
(upholding admission of testimony about defendant’s possession of “Barely
Legal” pornography magazine because testimony demonstrated defendant’s
“knowing interest” in child pornography).
      Here, the government sought to prove Moore’s sexual interest in children
with the testimony and diary excerpts of his stepdaughter, who alleged that
Moore had molested her when she was twelve. The record demonstrates that the
district court considered whether the probative value of the evidence was
substantially outweighed by an unfairly prejudicial effect. First, the court

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considered the testimony and concluded that the allegations could help jurors
determine whether Moore was correctly charged with child pornography
offenses. Then, the court considered the prejudice that could arise from the
stepdaughter’s testimony. The court concluded that the prejudicial effect was
limited because of the similarities between the alleged molestation and the
downloading of child pornography: both acts involved similar mental states. In
addition, the court considered whether the proposed testimony was graphic or
extensive and concluded that the testimony was neither. Additionally, the court
noted that the testimony would be subject to cross-examination and Moore could
present rebuttal witnesses. Based on this evidence, we hold that the trial court
did not abuse its discretion.
       On appeal, for the first time, Moore argues that he was unfairly prejudiced
by the district court’s admission of his stepdaughter’s testimony. Moore asserts
that the acts described in the testimony did not correspond to the allegations of
molestation made by the Government during opening statements. At trial,
however, Moore did not object to his stepdaughter’s testimony or the
Government’s opening statement. Rather, after his stepdaughter testified, Moore
objected to the Government’s desire to admit a redacted copy of his
stepdaughter’s diary as evidence. In addition, Moore failed move for a mistrial
on the basis of the Government’s opening statements. Therefore, we decline to
reach Moore’s assertions about this matter because he did not properly preserve
this issue for appeal.4



       4
           Furthermore, we will not address Moore’s argument on this issue because his brief
fails to cite to legal authority. Alameda Films SA de CV v. Authors Rights Restoration Corp.,
Inc., 331 F.3d 472, 483 & n.34 (5th Cir. 2003).
         Moore also contends that the district court erred by issuing flawed jury instructions
about his stepdaughter’s testimony and that the district court should not have permitted the
girl to testify “wrapped in a blanket.” We decline to reach the merits of these assertions
because, like his assertion about his stepdaughter’s testimony, Moore’s briefing lacks citations
to any legal authority for these issues. Id. at 483 & n.34.

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                                        C
      Moore also contests the validity of his confession. We review this type of
challenge by conducting a de novo review of the defendant’s Miranda rights
waiver, considering the voluntariness of the statement under the totality of the
circumstances that surround the confession. United States v. Cardenas, 410
F.3d 287, 292 (5th Cir. 2005). We consider the district court’s finding of facts
under a clearly erroneous standard. Id. at 293. Under this standard, if the
record “supports more than one permissible interpretation of the facts,” we
“accept the district court’s choice between them, absence clear error.” United
States v. Santiago, 410 F.3d 193, 197 (5th Cir. 2005); see also United States v.
Gibbs, 421 F.3d 352, 357 (5th Cir. 2005). Here, because the district court based
its decision on the magistrate’s report and recommendation, we defer to that
court’s “acceptance of the magistrate judge’s credibility recommendations, based
on his having heard live testimony.” Gibbs, 421 F.3d at 357
      Moore argues that the district court erred by failing to suppress his
confession because the statement was not voluntary. The district court adopted
the magistrate’s report, which relied on the testimony of three Louisiana
troopers to conclude that Moore’s confession was voluntary. The magistrate’s
report and recommendation detailed how all three troopers offered similar
testimony about Moore’s interrogation and confession. The troopers all testified
that they had advised Moore of his Miranda rights verbally and in writing. And,
the troopers stated that Moore had waived his Miranda rights before he
answered questions and signed a written confession. Moore, on the other hand,
testified that he had confessed because the troopers sought to arrest Moore’s wife
and give his children to social services. Although the troopers’ accounts of
events contained slight differences, none of the troopers recalled hearing threats
to Moore about his wife or children. Based on the record, it does not appear that
the magistrate committed any obvious errors in his credibility assessment, nor

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does the evidence permit for a different interpretation of the testimony.
Therefore, the district court did not err by concluding that testimony failed to
show Moore’s confession was coerced.
                                            D
       Moore argues that the district court erred in calculating his criminal
history category because that court considered Moore’s state theft conviction,
which did not contain sentencing information. When a defendant preserves his
objection to the district court’s Sentencing Guidelines interpretation, we consider
whether the district court committed significant procedural errors. Gall v.
United States, 552 U.S. 38, 51 (2078). “A procedural error during sentencing is
harmless if the error did not affect the district court’s selection of the sentence
imposed.” United States v. Delgado-Martinez, 564 F.3d 750, 753 (5th Cir. 2009)
(internal quotations omitted).        If no procedural error has occurred, or if a
procedural error was harmless, we then consider the sentence for substantive
reasonableness. Id.
       Moore only contests a procedural aspect of his sentencing, arguing that the
district court erred by relying on Moore’s theft conviction, which did not contain
sentencing information, to enhance his criminal history category.5 The district
court adopted the conclusion of the pre-sentence investigation report and
determined that under the Guidelines, Moore had a total offense level of 37 and
a criminal history category of IV. This meant Moore had a term of imprisonment
range of 292 to 365 months under the Sentencing Guidelines. If the district
court had not relied on the contested conviction, Moore’s criminal history
category would have been III and his imprisonment term would have been 262
to 327 months.      But, the district court did not sentence Moore within the
Guideline’s range for category III or IV. Instead, the court imposed the statutory

      5
        The conviction stems from Moore’s 1998 guilty plea to a theft charge for an offense
committed in Red River Parish, Louisiana.

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maximum sentence for each charge pursuant to U.S.S.G. § 5G1.1(a), which
states that “[w]here the statutorily authorized maximum sentence is less than
the minimum of the applicable guideline range, the statutorily authorized
maximum sentence shall be the guideline sentence.” Moore’s argument fails
because the district court did not rely on Moore’s criminal history category to
impose a sentence. Furthermore, even if the district court had procedurally
erred, such an error was harmless because Moore’s sentence is below the
Guideline’s range for either criminal history category.


                                      III
      For the foregoing reasons, we AFFIRM the judgment of the district
court in all respects.




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