     Case: 15-60894      Document: 00513641683         Page: 1    Date Filed: 08/17/2016




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

                                    No. 15-60894
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                         August 17, 2016
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


                                                 Plaintiff-Appellee

v.

STEVEN RUSSELL,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 1:14-CR-145-1


Before JOLLY, DAVIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Steven Russell was convicted by a jury of five counts of distributing child
pornography, in violation of 18 U.S.C. § 2252A(a)(2), and one count of
possessing child pornography, in violation of § 2252A(a)(5)(B).                       He was
sentenced to an aggregate sentence of 210 months in prison, to be followed by
a five-year term of supervised release. As a special condition of supervised
release, the district court stated that Russell was banned from possessing a


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-60894

computer or another device capable of connecting to the internet, although he
could obtain permission from his probation officer to use a computer or the
internet in conjunction with his pursuit of authorized employment.
      On appeal, Russell asserts that the evidence is insufficient to support his
convictions because there was no eyewitness evidence establishing that he was
the individual who had distributed e-mails containing child pornography or
that he had placed the possessed images of pornography on his computer. In
addition, he contends that there was insufficient evidence to support two of the
distribution counts because evidence was admitted to show that Russell
attempted to e-mail a video containing child pornography to a third party but
was unable to do so. We “view[] all evidence, whether circumstantial or direct,
in the light most favorable to the Government with all reasonable inferences
to be made in support of the jury’s verdict.” United States v. Moser, 123 F.3d
813, 819 (5th Cir. 1997).
      Typically, the Government lacks direct evidence of distribution or
possession “because child pornography is not something people tend to
download, possess, or distribute in the company of others.” United States v.
Woerner, 709 F.3d 527, 537 (5th Cir. 2013). The evidence at trial reflected that
an individual using an e-mail address registered to Russell, who referred to
himself as “Steve R,” had sent e-mails with child pornography attachments to
third parties and had uploaded videos containing child pornography to a
Shutterfly album that others could view. A search of Russell’s home revealed
images of child pornography on a computer that was in plain view; Russell was
the only individual in the home at the time of the search, and there was no
evidence that anyone else lived at the residence. There was no evidence of the
use of a computer program that would allow a remote user to place child
pornography on the computer in Russell’s home. The evidence was sufficient



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                                  No. 15-60894

to support Russell’s convictions even in the absence of direct eyewitness
testimony that he had distributed or possessed the images. See id. at 538;
United States v. Moreland, 665 F.3d 137, 149 (5th Cir. 2011). As for the
argument that evidence showed he had been unable to e-mail a video to a third
party, the evidence that Russell had been the one who originally uploaded the
video to the shared album was sufficient to constitute evidence of distribution.
See United States v. Richardson, 713 F.3d 232, 236 (5th Cir. 2013).
      In addition, Russell asserts the ban on his access to a computer or
internet access for the duration of his supervised release term is greater than
is reasonably necessary. Because he did not object to this condition in the
district court, we review this argument for plain error only. See United States
v. Ellis, 720 F.3d 220, 224–25 (5th Cir. 2013). To prevail on plain error review,
Russell must show a forfeited error that is clear or obvious and that affected
his substantial rights. See id. If these requirements are met, this court has
the discretion to correct the error, but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
      A ban on computer or internet use in a child pornography case must be
“narrowly tailored either by scope or by duration.” United States v. Duke, 788
F.3d 392, 399 (5th Cir. 2015). Russell’s condition is temporally limited by the
five-year length of his supervised release term. See United States v. Paul, 274
F.3d 155, 159–60, 167–70 (5th Cir. 2001) (upholding absolute three-year ban
on computers and the internet). In addition, Russell may petition his probation
officer to be allowed access to the internet for work purposes. See United States
v. Miller, 665 F.3d 114, 116, 126–34 (5th Cir. 2011) (upholding 25-year ban on
computers and internet access devices, although the probation officer could
authorize access to such items). Russell contends that his advanced age at the
time he begins his supervised release term means the temporally limited



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                                No. 15-60894

supervised release term should be construed as an effective lifetime ban. See
Duke, 788 F.3d at 399–401 (striking down an absolute lifetime ban on
computer or internet access); but see Ellis, 720 F.3d at 223–25 (upholding
lifetime ban because the defendant could seek permission from the court to
modify).   Russell has not shown that the district court’s imposition of a
temporally-limited internet prohibition, from which he could seek exceptions,
constitutes a clear or obvious error. See Ellis, 720 F.3d at 224–25; Duke, 788
F.3d at 399.
      AFFIRMED.




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