                                                                 [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT  OF APPEALS
                                                                    ELEVENTH CIRCUIT
                                                                     JANUARY 17, 2012
                                            No. 11-12729
                                        Non-Argument Calendar           JOHN LEY
                                                                         CLERK
                                      ________________________

                           D.C. Docket No. 2:10-cr-00006-LGW-JEG-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                                versus

DONALD DUANE SCHAFF,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                              for the Southern District of Georgia
                                 ________________________

                                           (January 17, 2012)

Before TJOFLAT, EDMONDSON and FAY, Circuit Judges.

PER CURIAM:
      Donald Schaff appeals his conviction for receipt of child pornography,

18 U.S.C. §2252A(a)(2). Schaff argues that his conviction must be reversed

because the government failed to prove that he knowingly received child

pornography. He asserts that the images found on his computer were all part of

his internet cache, a collection of temporary internet files automatically

downloaded onto his computer when he viewed certain websites.

He contends that the government failed to prove that he was aware of the

automatic caching process and knew how to access the cached images. Schaff

also argues that the government failed to prove that the images he received

traveled in interstate commerce. For the reasons set forth below, we affirm.

                                          I.

      Schaff was charged in a two-count indictment with possession of child

pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) (Count One), and receipt

of child pornography, in violation of 18 U.S.C. § 2252A(a)(2) (Count Two). At

Schaff’s trial, Special Agent Thomas West testified that he conducted a forensics

examination of Schaff’s laptop and desktop computers. Agent West explained that

he discovered thumbnail images of child pornography in the “My eBooks” and

“My Pictures” folders on Schaff’s laptop. Those folders were associated with an

account called “User,” and the full user name for that account was “Donny.”

                                          2
      Agent West explained that all of the images of child pornography on the

laptop were contained in “thumbs.db” files. A “thumbs.db” file is a database that

is automatically created when a user chooses to view all of the files within a

particular folder in a thumbnail view. A user might do that “to quickly identify

image files or other files inside that folder without having to open up every file

that they come across until they find the one they’re looking for.” Even if a user

deletes all of the images in a folder, the “thumbs.db” file remains unless the folder

itself is deleted. In Agent West’s opinion, the only way that images of child

pornography could have wound up in the “thumbs.db” files was if Schaff had

previously placed images of child pornography in those folders. The “My

eBooks” folder was not a default save folder into which the computer would

automatically save files. Thus, any images in that folder would normally have

been placed there by the user. Some images contained embedded website

addresses, indicating that they had been downloaded from the internet.

      Agent West also testified that he also found 348 images of suspected child

pornography on Schaff’s desktop computer. Eleven of the images were found in

two system files: the pagefile.sys file and the hyberfil.sys file. The pagefile.sys

file stores anything that is in the computer’s memory when the computer shuts

down, and the hyberfil.sys file stores anything that is in the computer’s memory

                                          3
when the computer is placed into hibernation mode. The remaining 337 images

were located in the unallocated space on the computer’s hard drive. Agent West

explained that, when a user deletes a file from his computer, the file actually

remains on the hard drive until it is overwritten by other data. Such files are said

to be in the computer’s unallocated space.

      Paul Petroski testified that he and Schaff were coworkers at the Naval

Submarine Base in Kings Bay, Georgia. In February 2008, Schaff told Petroski

that he had “screwed up big time.” Petroski observed that Schaff’s situation

sounded “pretty serious,” and Schaff replied, “Well, it depends on what they find

on the computers.” Schaff stated that he had “wiped the computers clean,” but he

explained that “they could still get the information off of there.” Schaff remarked

that he didn’t know if it was worse to violate a protective order or to tamper with

evidence. Another coworker, Joseph Carlino, also testified that Schaff had

admitted deleting images from his computer.

      Special Agent Greg Catey of the Federal Bureau of Investigation testified

that he investigated cyber crimes for the agency’s Peoria, Illinois office. He

explained that some of the images found on Schaff’s computers depicted a girl,

“Cindy,” who had been abused by her father. Her father made the images

available over the internet. Dina Susan Koteen, a retired Special Agent from the

                                          4
Florida Department of Law Enforcement, linked other images from Schaff ‘s

computer to the case of a girl known as“Missy” who was abused by her father in

the state of Florida. Missy’s father uploaded images of her onto his computer and

traded them with other predators over the internet.

      The jury convicted Schaff on both counts in the indictment. The district

court later granted Schaff’s motion for a judgment of acquittal with respect to

Count One, the possession charge, after determining that the Double Jeopardy

Clause precluded Schaff from being convicted of both receipt and possession of

child pornography with respect to the same collection of images. The district

court sentenced Schaff to 121 months’ imprisonment on Count Two.

                                         II.

      We review de novo whether the evidence introduced at trial is sufficient to

support a defendant’s conviction. United States v. Pruitt, 638 F.3d 763, 765 (11th

Cir. 2011). We view the evidence in the light most favorable to the government

and make all credibility choices in the government’s favor. Id. Evidence is

sufficient to support a conviction if a reasonable jury could have found the

defendant’s guilt beyond a reasonable doubt. Id. To convict a defendant under

§ 2252A(a)(2), the government must prove that he “knowingly receive[d]” child

pornography. 18 U.S.C. § 2252A(a)(2). “A person ‘knowingly receives’ child

                                         5
pornography . . . . when he intentionally views, acquires, or accepts child

pornography on a computer from an outside source.” Pruitt, 638 F.3d at 766.

      In this case, the government offered sufficient evidence to prove that Schaff

knowingly received images of child pornography. Contrary to Schaff’s assertions,

this is not a case involving files automatically saved to an internet cache. Agent

West explained that he discovered thumbnail images of child pornography in two

user-controlled folders on Schaff’s laptop computer. The government also

presented evidence that Schaff intentionally deleted child pornography from his

desktop computer. Two of Schaff’s coworkers testified that Schaff admitted to

deleting illicit files from his computer, and Agent West discovered images of child

pornography in the computer’s unallocated space, which is the portion of the hard

drive where files are stored if they are deleted by the user. Based on this evidence,

a reasonable jury could have found that Schaff knowingly received child

pornography.

                                         III.

      As noted above, we review the sufficiency of the evidence de novo, viewing

the evidence in the light most favorable to the verdict. Pruitt, 638 F.3d at 765. At

the time of Schaff’s offense, § 2252A(a)(2) required the government to prove that

the images of child pornography were “mailed, or shipped, or transported in

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interstate or foreign commerce by any means, included by computer.” See 18

U.S.C. § 2252A(a)(2) (2007).

       In United States v. Schaefer, 501 F.3d 1197 (10th Cir. 2007), the Tenth

Circuit held that evidence that child pornography was downloaded from the

internet was insufficient to prove that the images moved in interstate commerce.

Schaefer, 501 F.3d at 1200-05. The Tenth Circuit recognized that “in many, if not

most, situations the use of the Internet will involve the movement of

communications or materials between states,” but it noted that the government had

failed to offer any evidence that the specific images in Schaefer’s case had crossed

state lines. Id. at 1201, 1205-06. Therefore, the Tenth Circuit reversed

Schaefer’s convictions. Id. at 1207.1 In contrast to the Tenth Circuit, the First,

Third, and Fifth Circuits all have held that proof of a defendant’s use of the

internet is sufficient to satisfy the interstate commerce requirement of the federal

child pornography statutes. United States v. Carroll, 105 F.3d 740, 742 (1st Cir.

1997); United States v. Lewis, 554 F.3d 208, 214-15 (1st Cir. 2009); United States

       1
        In 2008, Congress effectively abrogated Schaefer by amending § 2252A(a)(2). The new
version of the statute makes it a crime for a person to receive child pornography “that has been
mailed, or using any means or facility of interstate or foreign commerce shipped or transported in
or affecting interstate commerce by any means, including by computer.” 18 U.S.C.
§ 2252A(a)(2)(A). Because the internet is a means or facility of interstate commerce, evidence that
the defendant used the internet to obtain child pornography is sufficient to obtain a conviction under
the new version of the statute, even without proof of an actual interstate transmission. However,
Schaff was indicted under the pre-amendment version of § 2252A(a)(2)(A).

                                                  7
v. Runyan, 290 F.3d 223, 239 (5th Cir. 2002); United States v. MacEwan, 445 F.3d

237, 243-44 (3d Cir. 2006).

      We have not decided in a published opinion whether evidence of a

defendant’s internet use, without more, is sufficient to satisfy the jurisdictional

element in the pre-amendment version of § 2252A(a)(2), or whether, as Shaefer

holds, the government must specifically show that the particular files were

transferred through an interstate internet connection. We need not resolve that

issue here because, in this case, the government was able to establish that some of

the child pornography had been created in Illinois and Florida. To reach Schaff’s

computers in Georgia, those images necessarily had to cross state lines. Thus, the

evidence was sufficient to satisfy the interstate commerce element of

§ 2252A(a)(2).

      In Schaefer, however, the Tenth Circuit also drew a distinction between the

original versions of the images and the “particular images” found on the

defendant’s computer. Schaefer, 501 F.3d at 1206. The Tenth Circuit observed

that there was no indication that the particular images on Schaefer’s computer had

ever traveled in interstate commerce, even if the original images had been

produced in another state. Id. Thus, under the Tenth Circuit’s case law, the

government must prove that the particular electronic image on the defendant’s

                                           8
computer was downloaded through an interstate connection. See id.

      Schaefer’s “particular images” holding has not been adopted by any other

court. Moreover, the Tenth Circuit’s rule does not appear to be supported by the

language of § 2252A(a)(2), which criminalizes the possession of any “child

pornography” that has passed in interstate commerce and does not draw any

distinctions between an original image and an electronic copy of the same image.

See 18 U.S.C. § 2252A(a)(2). Therefore, we reject the “particular images”

approach of Schaefer. Because some of the child pornography on Schaff ‘s

computer was created in other states, a reasonable jury could have concluded that

the images traveled in interstate commerce. Accordingly, we affirm Schaff’s

conviction for receipt of child pornography.

      AFFIRMED.




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