     Case: 10-60786     Document: 00511556361         Page: 1     Date Filed: 07/29/2011




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

                                                                            FILED
                                                                           July 29, 2011
                                     No. 10-60786
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

TIMOTHY RUDOLPH DIAZ

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 3:09-CR-64-1


Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges.
PER CURIAM:*
        Timothy Rudolph Diaz was convicted by a jury of one count of possession
of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). He argues that
the evidence was insufficient to sustain his conviction because the Government
failed to establish the child pornography images moved in interstate commerce
or were produced using materials that moved in interstate or foreign commerce.
Diaz also argues that the district court erred in denying his motion to suppress



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-60786

evidence that law enforcement agents discovered after conducting a warrantless
seizure of his computer.
      Diaz did not preserve a challenge to the sufficiency of the evidence because
he did not renew his motion for a judgment of acquittal at the close of all of the
evidence. Accordingly, review is limited to whether there has been a “manifest
miscarriage of justice,” which occurs when the record is devoid of evidence of
guilt or if the evidence on a key element of the offense is so tenuous that a
conviction would shock the conscience. See United States v. Miller, 576 F.3d 528,
529-30 & n.2 (5th Cir.), cert. denied, 130 S. Ct. 652 (2009); United States v.
Rodriguez-Martinez, 480 F.3d 303, 307 (5th Cir. 2007).
      To convict under § 2252(a)(4)(B), the Government must prove that the
defendant possessed any visual depiction of child pornography that was
transported using any means or facility of interstate or foreign commerce; was
shipped or transported in or affecting interstate or foreign commerce; or was
produced using materials that were transported using any means or facility of
interstate or foreign commerce, including by computer. The transportation-in-
interstate-commerce element can be met by establishing that the defendant
downloaded child pornography from the Internet. See United States v. Runyan,
290 F.3d 223, 239 (5th Cir. 2002).
      The record contains evidence that the images found on Diaz’s computer
moved in interstate commerce or were produced using materials that moved in
interstate commerce. The Government adduced evidence that Diaz admitted
that the images had been transmitted via the Internet and elicited testimony
from a computer forensic analyst that the images bore specific indicia of having
been downloaded from the Internet. See Runyan, 290 F.3d at 239; United States
v. Winkler, 639 F.3d 692, 701 (5th Cir. 2011) . The Government also presented
evidence that the hard drive onto which Diaz downloaded the images was made
in China, which is sufficient to establish that the images were produced using
materials that moved in interstate commerce. Id. Thus, because the record is

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                                   No. 10-60786

not devoid of evidence establishing the transportation-in-interstate commerce
element, and that evidence is not so tenuous that a conviction would shock the
conscience, Diaz has not shown that his conviction was supported by insufficient
evidence. See Miller, 576 F.3d at 529-30 & n.2; Rodriguez-Martinez, 480 F.3d at
307.
       Diaz’s contention that the district court erroneously denied his motion to
suppress also is unavailing. In reviewing the denial of a motion to suppress, the
district court’s factual findings are reviewed for clear error and its legal
conclusions, are reviewed de novo. United States v. Jacquinot, 258 F.3d 423,
427-28 (5th Cir. 2001). A factual finding is not clearly erroneous if it is plausible
in light of the record as a whole. Id. The evidence presented at a suppression
hearing must be viewed in the light most favorable to the prevailing party, in
this case, the Government. Id.
       Here, the evidence adduced at the hearing on Diaz’s motion to suppress
demonstrated that Diaz’s rights under the Fourth Amendment were not violated
because there was probable cause and exigent circumstances that justified the
warrantless seizure of Diaz’s computer. See United States v. Place, 462 U.S. 696,
701 (1983) (noting that law enforcement authorities may conduct a warrantless
seizure of property pending an issuance of a warrant if the seizure is justified by
probable cause and exigent circumstances). The Government presented evidence
that when law enforcement agents went to Diaz’s residence to execute an arrest
warrant on his brother, Michael Diaz (Michael), they were advised by Michael
that he had viewed soft core child pornography on a computer owned by Diaz
and located inside Diaz’s home. When Diaz subsequently denied that he owned
a computer, agents interpreted the conflicting statements as an indication that
Diaz sought to conceal the child pornography that Michael admitted to viewing.
After receiving permission from Diaz to enter the residence, agents observed
Diaz attempting to conceal the computer that he previously denied having. Diaz
ultimately conceded that the computer contained “all kinds of pornography.”

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                                  No. 10-60786

Thus, under the circumstances, agents could have reasonably concluded that
Diaz’s computer contained images of child pornography. See United States v.
Daniel, 982 F.2d 146, 151 (5th Cir. 1993) (noting that probable cause requires
only a showing of the probability of criminal activity).
      The evidence further supports that the seizure was justified by exigent
circumstances. The agents’ questions to Diaz about his ownership of a computer
alerted him that they were aware of the existence of the computer and were
interested in its contents. Diaz’s subsequent behavior (e.g., attempting to cover
the computer) suggested that he sought to hide illicit material on the computer
and to prevent agents from viewing it. His admission that the computer
contained pornography also suggested that he understood the specific contents
in which the agents were interested. The evidence thus supported that Diaz was
aware that agents were “on [the] trail” of his possession of child pornography
and that he intended to prevent discovery of the pornography. See United States
v. Mata, 517 F.3d 279, 287 (5th Cir. 2008).
      Furthermore, the easily destructible nature of the evidence in which the
agents were interested – i.e., digital images of child pornography – supports that
agents could have reasonably concluded under the exigencies of the situation
that the images would not have been protected from destruction while a warrant
was prepared and obtained. See id. Because Diaz was not under arrest when
agents located the computer, the agents justifiably could have reasoned that
leaving the computer with Diaz would render the images subject to deletion and
prevent agents from examining the computer in a controlled setting where
proper forensic expertise and equipment would be available. Thus, because
agents had probable cause to seize the computer and that the seizure was




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                                         No. 10-60786

justified by exigent circumstances, the district court did not err in denying Diaz’s
motion to suppress.1 See Jacquinot, 258 F.3d at 427-28.
       AFFIRMED.




       1
          The clerk received on July 5, 2011, a letter from Diaz requesting that his appointed
counsel be relieved and that this court appoint substitute counsel to file a new appellate brief.
However, Diaz’s motion, which was filed almost four months after appointed counsel filed an
appellate brief, is too late. See United States v. Spykes, 355 F. App’x 864, 865 & n.9 (5th Cir.
2009) (holding that defendant’s motion to substitute counsel or in the alternative to relieve
counsel and proceed pro se was untimely because motion was filed after appellate brief was
filed) (citing United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998)). In any event,
Diaz, who has no Sixth Amendment right to the counsel of his choice, see Yohey v. Collins, 985
F.2d 222, 228 (5th Cir. 1993), has not shown that substitute counsel either is necessitated by
a conflict of interest or other most pressing circumstances or would be in the interest of justice.
Fifth Circuit Plan Under the Criminal Justice Act, § 5(B); 18 U.S.C. § 3006A. His conclusory
assertions regarding counsel’s failure to communicate about appellate issues are not sufficient
to warrant counsel’s removal and the appointment of substitute counsel. See United States
v. Trevino, 992 F.2d 64, 65 (5th Cir. 1993) (finding no reason to accept counsel’s assertion of
conflict with client in the absence of evidence). We therefore deny the motion.


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