                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 08-3396
                                     ___________

United States of America,                 *
                                          *
      Plaintiff - Appellee,               *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Eastern District of Missouri.
Andrew Charles Kain,                      *
                                          *
      Defendant - Appellant.              *
                                     ___________

                    Submitted: September 25, 2009
                       Filed: December 22, 2009 (corrected December 31, 2009)
                                  ___________

Before LOKEN, Chief Judge, WOLLMAN and SHEPHERD, Circuit Judges.
                             ___________

LOKEN, Chief Judge.

       Andrew Charles Kain was convicted after a bench trial of possessing marijuana
with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 860(a), and
possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The
district court1 sentenced Kain to concurrent 78-month prison sentences on each count.
He appeals the child pornography conviction, arguing the government failed to prove
essential elements of the charge and the district court erred in admitting testimony that
one image depicted a minor child, and raising one sentencing issue. We affirm.

      1
       The HONORABLE RODNEY W. SIPPEL, United States District Judge for
the Eastern District of Missouri.
                          I. Sufficiency of the Evidence

       A. The Relevant Statute. In the Child Pornography Prevention Act of 1996,
Congress found that “prohibiting the possession and viewing of child pornography”
will help “to protect the victims of child pornography and to eliminate the market for
the sexual exploitative use of children.” Pub. L. No. 104-208, Tit. I, § 121, subsec.
1(12), 110 Stat. 3009-27 (1996). The Act added 18 U.S.C. § 2252A to the arsenal of
federal statutes prohibiting the sexual exploitation and abuse of children. Kain was
convicted of violating § 2252A(a)(5)(B), which as amended provides that any person
who “knowingly possesses, or knowingly accesses with intent to view, any . . .
computer disk, or any other material that contains an image of child pornography” that
has been transported or produced in interstate commerce “by any means, including by
computer,” shall be fined or imprisoned not more than ten years.2

       “Child pornography” includes a “visual depiction” whose production “involves
the use of a minor engaging in sexually explicit conduct.” 18 U.S.C. § 2256(8)(A).
“Visual depiction” includes “data stored on computer disk or by electronic means
which is capable of conversion into a visual image.” § 2256(5). “Sexually explicit
conduct” includes the “lascivious exhibition of the genitals or pubic area of any
person.” § 2256(2)(A)(v). A “minor” is “any person under the age of eighteen years.”
§ 2256(1). Kain asserts, and the government does not contest, that a defendant to be
convicted under § 2252A(a)(5)(B) must know both that the material viewed is
sexually explicit, and that the individuals depicted are actual minors. Cf. United
States v. X-Citement Video, 513 U.S. 64, 78 (1994).

      B. Background. Police seized Kain’s laptop computer during a warrant search
of his home for evidence of marijuana trafficking. Officers obtained a separate


      2
       Congress amended § 2252A(a)(5)(B) in 2008. Although Kain’s offense
predated the amendment, his brief on appeal quotes the current version.

                                         -2-
warrant to search the computer, made an exact copy of the hard drive, conducted a
forensic examination, and found one hundred or more images of suspected child
pornography. Count II of the indictment charged Kain with knowing possession of
child pornography, beginning at a time unknown and including the date on which the
computer was seized. Count II individually identified twenty-seven images of alleged
child pornography. After a bench trial, the district court’s verdict found Kain “guilty
of the offense of possession of child pornography” charged in Count II.

       On appeal, Kain argues that the government failed to prove (i) that he
knowingly possessed images of child pornography found on his computer; (ii) that the
images depicted actual children under the age of eighteen, and that he knew those
facts; and (iii) that twenty-two of the twenty-seven images depicted lascivious
exhibition of the genitals, and that Kain knew that any of the images were child
pornography. We review the sufficiency of the evidence after a bench trial in the light
most favorable to the verdict, upholding the verdict if a reasonable factfinder could
find the offense proved beyond a reasonable doubt, even if the evidence “rationally
supports two conflicting hypotheses.” United States v. McArthur, 573 F.3d 608, 614
(8th Cir. 2009) (quotation omitted). Kain’s conviction for violating 18 U.S.C.
§ 2252A(a)(5)(B) must be upheld if the government proved all the elements of the
offense as to any one of the twenty-seven images. See United States v. Wallenfang,
568 F.3d 649, 658 (8th Cir. 2009).

       C. The Knowing Possession Element. At trial, narcotics detective Darryl
Balleydier testified that he obtained and executed a warrant to search Kain’s house
and seized a laptop computer. Two days later, Kain called an investigator and said he
wanted to get his computer back and “clean it out.” Detective Brian Mize testified
that he received the computer, made an exact copy of the hard drive, and conducted
a forensic examination. One desktop icon was a folder labeled “Y,” which contained
twenty-one of the images specifically described in Count II of the indictment. Based
on his experience as a father and child pornography investigator, Detective Mize

                                         -3-
opined that the images depicted prepubescent females. He found the other six images
described in Count II in the computer’s “temporary internet” and “orphan” files.
These images included prepubescent females engaged in sexual intercourse with,
performing oral sex on, and masturbating adult males. Detective Mize described
“temporary internet” files as locations where the computer temporarily stores web
pages that were previously viewed “so they can be viewed on the computer itself.”3
“Orphan” files are files “that were on the computer somewhere saved” but were
subsequently deleted, “so the computer doesn’t know exactly where they came from.”

        Detective Mize testified that he ran a virus scan on the hard drive and located
several “Trojan” programs.4 However, based on the location of many images in a
desktop folder, Kain’s knowledge of the images in that folder, and the presence of an
updated virus scanner, Mize opined that the images charged in Count II were not
placed on the hard drive by a Trojan. Mize also examined the computer’s Internet
Explorer browsing history, which evidenced repeated accessing of sites such as
“/lolita_kds.html,” “Underground-love.com,” and “XXX-Land.com.”

       FBI Agent Patrick Cunningham testified that, when arrested, Kain admitted he
owned the computer and had used it to download 40-50 images of child pornography
to the “Y” file. When told investigators found 405 images, Kain responded, “[i]f they


      3
       Other cases have considered images found in a computer’s “cache files,”
described as images the Web browser automatically saves to “allow visits to these
pages to be processed much faster.” United States v. Tucker, 305 F.3d 1193, 1197 n.7
(10th Cir. 2002), cert. denied, 537 U.S. 1223 (2003). See Microsoft Computer
Dictionary 81 (5th ed. 2002) (a computer “cache” is a “special memory subsystem in
which frequently used data values are duplicated for quick access”).
      4
       Trojans, also known as “Trojan horses,” are “destructive program[s] disguised
as a game, utility, or application,” that, when run, “do[] something harmful to the
computer system while appearing to do something useful.” Microsoft Computer
Dictionary at 530.

                                         -4-
found 405 images, then there were 405 images on the computer.” Sergeant William
Cawthon of the Texas Rangers testified that he interviewed a nine-year-old girl during
an unrelated investigation who was the minor female in one of the images.

       In defense, computer forensic examiner Joshua Restivo opined, based on
Detective Mize’s report, that the “likely cause” of all the images shown in court being
found in the hard drive of Kain’s computer was that they were placed there by Trojan
viruses. Restivo also testified that the temporary internet and orphan files were in
“user inaccessible space,” and that it was not possible to determine from Detective
Mize’s report whether the twenty-seven images depicted real children.

      After receiving extensive post-trial briefs, the district court issued its written
verdict, finding with respect to Count II:

             There was expert testimony where the internet history of the hard
      drive was examined and showed that web sites associated with the
      pictures that were found had been visited by that computer . . . . Mr.
      Kain was the only one to use that computer . . . therefore, the
      Government established that he exercised the dominion and control over
      the computer and the child pornography found thereon.

The court reviewed the testimony of defense expert Restivo and found it “not
credible.” While Restivo’s opinion that no one could say whether or not Kain or the
Trojans had downloaded the child pornography “might have been somewhat
persuasive,” the court found that Restivo “destroyed his own credibility” by opining
that more likely than not Trojans put the child pornography on the computer. “[Y]ou
can’t have it both ways,” the court observed, further noting that Restivo’s opinion was
contrary to Kain’s admissions to the investigating officers.

      On appeal, relying heavily on the testimony of defense expert Restivo, Kain
argues that the government (i) failed to prove knowing possession of the child

                                          -5-
pornography images found in the “Y” folder because Detective Mize’s virus scan
found powerful Trojans that, when executed, can take over an infected computer and
place a child pornography folder on the computer’s desktop, and (ii) failed to prove
knowing possession of the images found in “temporary internet” and “orphan” files
because they were in user inaccessible space outside Kain’s control.

       The presence of Trojan viruses and the location of child pornography in
inaccessible internet and orphan files can raise serious issues of inadvertent or
unknowing possession. See United States v. Romm, 455 F.3d 990, 998-1001 (9th Cir.
2006); United States v. Shiver, 305 Fed. App’x 640, 642-43 & n.4 (11th Cir. 2008);
Howard, Don’t Cache Out Your Case: Prosecuting Child Pornography Possession
Laws Based on Images Located in Temporary Internet Files, 19 Berkeley Tech. L.J.
1227 (2004). But these are issues of fact, not of law. “[A]ctual or constructive
possession is a finding of fact we review for clear error.” United States v. Denis, 560
F.3d 872, 873 (8th Cir. 2009). The presence of child pornography in temporary
internet and orphan files on a computer’s hard drive is evidence of prior possession
of that pornography, though of course it is not conclusive evidence of knowing
possession and control of the images, just as mere presence in a car from which the
police recover contraband does not, without more, establish actual or constructive
possession of the contraband by a passenger. See United States v. Payne, 377 F.3d
811, 815 (8th Cir. 2004).

        Here, the district court expressly found Restivo “not credible,” a finding that
is “virtually unassailable on appeal.” United States v. Sicaros-Quintero, 557 F.3d 579,
582 (8th Cir. 2009). Kain’s admissions and Detective Mize’s testimony explaining
his forensic examination of Kain’s computer provided ample support for the district
court’s finding that Kain knowingly possessed the images of child pornography found
on his computer. As we have said in another context, “[c]onstructive possession of
contraband is established when a person has ownership, dominion or control over the
contraband itself, or dominion over the premises in which the contraband is

                                         -6-
concealed.” United States v. Cortez, 935 F.2d 135, 143 (8th Cir. 1991) (quotation
omitted).

       A computer user who intentionally accesses child pornography images on a web
site gains actual control over the images, just as a person who intentionally browses
child pornography in a print magazine “knowingly possesses” those images, even if
he later puts the magazine down without purchasing it. Congress in enacting and later
clarifying § 2252A(a)(5)(B) made clear its intent to prohibit the viewing of child
pornography in order to protect its child victims. Viewed in the light most favorable
to the verdict, the evidence was sufficient for the district court to reasonably find,
beyond a reasonable doubt, that Kain knowingly possessed the images of child
pornography found on his computer.

       D. The Actual Minor Children Element. Child pornography is defined, for
purposes of § 2252A(a)(5)(B), as a visual depiction of a minor engaging in sexually
explicit conduct. 18 U.S.C. § 2256(8)(A) and (C). We construed that term as
referring to depictions of actual children in United States v. Vig, 167 F.3d 443, 449-50
(8th Cir.), cert. denied, 528 U.S. 859 (1999), a construction no doubt mandated by the
Supreme Court’s subsequent decision in Ashcroft v. Free Speech Coalition, 535 U.S.
234 (2002). But the government is not required to introduce evidence other than the
images themselves to prove they depict real rather than computer-generated children.
Vig, 167 F.3d at 449; accord United States v. Deaton, 328 F.3d 454, 455 (8th Cir.
2003).

       Defense expert Restivo testified that, based on Detective Mize’s report, one
cannot know whether the twenty-seven images are composite, “nonauthentic” images
of real children (he admitted they did not appear to be computer-generated images).
Relying on that testimony, Kain argues the government produced insufficient evidence
that the images on his computer depicted actual children under the age of 18. We
disagree. The government’s evidence included the twenty seven images, Detective

                                          -7-
Mize’s opinion the depicted females were prepubescent minors based on their physical
features, and testimony by Texas Ranger William Cawthon that the girl depicted in
one image was about nine years old when he interviewed her some years after the
photograph was taken. Putting aside whether a real child depicted in a composite
image may fall within the definition of “identifiable minor” in 18 U.S.C. § 2256(9),
in which case the visual depiction would be child pornography under § 2256(8)(C),
the evidence here was more than sufficient to support the district court’s finding that
the images depicted real minors. Compare United States v. Rayl, 270 F.3d 709, 714
(8th Cir. 2001) (upholding a jury verdict).

      Kain further argues the evidence was insufficient to prove that he knew the
images depicted actual minors. It is likely that Kain’s knowing possession of so many
images of child pornography satisfied the government’s burden on this element. But
in any event, Kain’s admissions when arrested remove all reasonable doubt.

       E. The Lascivious Exhibition of Genitals Element. Kain argues that the
government presented insufficient proof that twenty-two of the images included a
“lascivious exhibition of the genitals or pubic area of any person,” one definition of
sexually explicit conduct. See 18 U.S.C. § 2256(2)(A)(v). “A depiction of a child is
a lascivious exhibition of the genitals when ‘the child is nude or partially clothed,
when the focus of the depiction is the child’s genitals or pubic area, and when the
image is intended to elicit a sexual response in the viewer.’” Rayl, 270 F.3d at 714,
quoting United States v. Horn, 187 F.3d 781, 789 (8th Cir. 1999), cert. denied, 529
U.S. 1029 (2000). The other five images depict sexual intercourse or masturbation,
which are explicitly included in the definition of sexually explicit conduct. 18 U.S.C.
§ 2256(2)(A)(i) and (iii). Kain argues the government failed to prove he knew that
any of the twenty-seven images depicted sexually explicit conduct because these five
were in user inaccessible space.




                                         -8-
       We have reviewed the twenty-seven images. The government argues the
district court reasonably found that all depict lascivious exhibition of the genitals or
pubic area of minor females. At least as to most of the twenty-two images challenged
by Kain on appeal, we agree. They depict nude or partially clothed prepubescent girls
and focus on the child’s genitals or pubic area in a way that is “designed to appeal to
the sexual appetite.” Wallenfang, 568 F.3d at 658 (quotation omitted). We have
cautioned that, in a jury trial, the district court should make a preliminary review of
whether materials offered by the government depict sexually explicit conduct as a
matter of law, to avoid the potential prejudice of submitting to the jury a large volume
of prurient materials that could not properly be found to be child pornography. But
there is no such risk in a court trial. We conclude that the district court reasonably
found that one or more of the twenty-seven images depicted sexually explicit conduct
as defined in § 2256(2)(A), and that Kain knew that fact based on his knowing
possession of the images and his admissions when arrested.

                        II. The Texas Ranger’s Testimony

      Texas Ranger William Cawthon testified on direct examination, without
objection, that he met the girl depicted in one of the twenty-seven images as part of
an unrelated child pornography investigation, and that the girl was born in 1990 and
was “approximately five years old” when the photograph was taken. On cross-
examination, Cawthon stated that his testimony as to her age was based on reviewing
the child’s birth certificate and on the child telling Cawthon, “That’s me in the
photograph.” Defense counsel then said, “Judge, it’s not personal knowledge, and I
move to strike it on grounds of hearsay and Sixth Amendment confrontation.”
Government counsel responded that Cawthon “recognize[d] the girl from the
photograph as the girl that he met.” Therefore, the government argued, Kain’s
objection “goes to the weight” of that testimony. The district court then overruled
Kain’s objection. Cawthon testified on further cross examination that his ability to



                                          -9-
recognize the girl he interviewed as the girl in the photograph was based “in part” on
her saying, “That’s me in the photograph.”

        On appeal, Kain argues that “None of Ranger Cawthon’s testimony should have
been admitted in the face of [Kain’s] timely hearsay objection” and the resulting
Confrontation Clause violation. Like the district court, we disagree. Kain made no
contemporaneous objection to Cawthon’s testimony on direct exam -- that he met the
girl in the photograph and determined she was the young child depicted in the photo.
Nor would an objection have been well founded. See Fed. R. Evid. 701(a) (a lay
witness may express an opinion “rationally based on the perception of the witness”);
United States v. Oliver, 908 F.2d 260, 263 (8th Cir. 1990).

       On cross exam, Cawthon testified that his opinion was based in part on what the
child told him -- “That’s me in the photograph.” That testimony was hearsay, and an
objection limited to that testimony might well have been sustained. But of course, that
was not the objection made, because it would have left Cawthon’s testimony on direct
exam unimpeached. Instead, the objection was to strike all of Cawthon’s testimony
because it was based in part on hearsay by a declarant not shown to be unavailable
who Kain did not have a prior opportunity to cross-examine. See generally Crawford
v. United States, 541 U.S. 36, 52-54 (2004). Government counsel argued, correctly
in our view, that Kain’s objection simply went to the weight of Cawthon’s opinion
that the young girl he interviewed was the girl in the photograph. Therefore, the
motion to strike was properly denied because Cawthon’s opinion based on his
personal comparison of the girl and the photograph was still admissible. The district
court did not abuse its substantial discretion in denying Kain’s motion to strike all of
Cawthon’s testimony.




                                         -10-
                              III. A Sentencing Issue

       Kain argues that the district court committed procedural error at sentencing by
imposing a two-level increase on the ground that the child pornography offense
involved “at least 10 images, but fewer than 150.” U.S.S.G. § 2G2.2(b)(7)(A). The
government must prove the facts needed to support a sentencing enhancement by a
preponderance of the evidence, and we review the district court’s fact findings for
clear error. See United States v. Hansel, 524 F.3d 841, 847 (8th Cir. 2008). At
sentencing, the district court overruled this objection based upon its verdict “beyond
a reasonable doubt that these were depictions of child pornography.” Based on our
review of the twenty-seven images, there was no clear error.

      The judgment of the district court is affirmed.
                     ______________________________




                                        -11-
