10-4802-cr
United States v. Ramos


                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT


                              August Term 2011

Argued:      January 31, 2012                      Decided:     July 2, 2012

                           Docket No. 10-4802-cr

                         ________________________________

                          UNITED STATES     OF   AMERICA,

                                                    Appellee,

                                       v.

                                 JAMES RAMOS,

                                                    Defendant-Appellant.
                          ________________________________


Before:
                WINTER, RAGGI, and CHIN, Circuit Judges.

             Appeal from a judgment of the United States

District Court for the Northern District of New York (David

N. Hurd, J.) convicting defendant-appellant, following a

jury trial, of receiving and possessing child pornography.

             AFFIRMED.
                  ________________________________

                   BRENDA K. SANNES, Assistant United States
                   Attorney, of counsel, for Richard S.
                   Hartunian, United States Attorney for the
                   Northern District of New York, Syracuse,
                   New York, for Appellee.

                   VIVIAN SHEVITZ, Brooklyn, New York, for
                   Defendant-Appellant.
                  ________________________________

CHIN, Circuit Judge:

         Defendant-appellant James Ramos appeals a judgment

of the United States District Court for the Northern

District of New York convicting him of receiving and

possessing child pornography in violation of 18 U.S.C. §§

2252A(a)(2)(A), 2252A(a)(5)(B), 2256(8)(A), and 2256(8)(C).

He argues, inter alia, that (1) his Fifth Amendment right

against self-incrimination was violated because he was

compelled as a parolee to make self-incriminating statements

during a mandatory polygraph examination, and (2) the

government failed to present sufficient evidence to prove he

received or possessed child pornography in violation of

federal law.

         We AFFIRM.


                               - 2 -
                       STATEMENT OF THE CASE

A.   The Facts

          Except as indicated, the following facts, drawn

primarily from the evidence presented at the suppression

hearing and the trial below, are not in dispute.

     1.   Background

          In 1990, Ramos was convicted in state court in

Saratoga Springs, New York, of sexually abusing two sisters,

ages ten and thirteen.     After serving approximately fourteen

years in prison, he applied in February 2003 for release on

parole.   In his application, he agreed to certain conditions

of supervision, including permitting his parole officer to

visit and search his residence and person, replying

"promptly, fully and truthfully" to any inquiries from his

parole officer, and "fully" complying with any instructions

from his parole officer.     He also agreed to refrain from

"possess[ing], seek[ing] access to or remain[ing] near any

pornographic materials."     The application was granted, and

Ramos was released from custody to the supervision of the

New York State Division of Parole in May 2003.


                               - 3 -
         On March 5, 2008, Ramos's parole officer told him

that two new conditions -- polygraph testing and GPS

monitoring -- were being added to his conditions of

supervision because of changes in the procedures for sex

offenders on parole.   Ramos complained to his parole officer

that the addition of the conditions "violated his rights."

Ramos spoke with his parole officer several more times after

March 5, 2008, and eventually agreed to participate in the

polygraph examination, despite his initial reservations.

    2.   The Statements

         On April 4, 2008, Ramos went to the Probation

Office for a polygraph test.    He first signed several forms.

In one, he agreed that "failure to answer questions

regarding my conformance to parole . . . conditions, in the

discretion of the Parole Office and Polygraph Examiner, may

be deemed as a failure to participate in a meaningful way

and be submitted . . . as a parole . . . violation."     In

another, he stated:    "I will participate in the Division of

Parole's polygraph program as directed by my P.O.    I

understand this will include periodic polygraph sessions


                             - 4 -
. . . .   I will answer all questions fully and truthfully as

well as comply w/ any directives given to me by the

polygraph examiner."   In yet a third he acknowledged that:

          5.   Failure to fully cooperate and participate in
               any aspect of the polygraph examination
               session, including refusal to answer questions
               during the examination, may be grounds for
               violations of my parole.

          6.   Answers to questions during the polygraph
               examination session may be used in determining
               appropriate sanctions to be implemented by the
               Division of Parole, including a parole
               violation hearing. Additionally, admissions
               to criminal behavior will result in referral
               to appropriate law enforcement authorities for
               investigation and possible prosecution.

          7.   Any admission to criminal behavior during the
               polygraph session may be used against me in a
               court of law.

(Appellee's App. at 137 (emphases omitted)).

          In an interview before the test was administered,

Ramos told the polygraph examiner that he had viewed both

pornography and child pornography on his computer via the

internet, "at least somewhere between twelve and eighteen

times since his release to parole supervision."   Ramos took

the test, and the results were inconclusive.   Afterwards,

Ramos signed an "Admissions Form" in which he confirmed that
                            - 5 -
he had viewed pornography and child pornography "on at least

12 to 18 different occasions," on the internet in his home.

Ramos's parole officer immediately imposed a new condition

of parole forbidding Ramos from owning or operating a

computer and using the internet.

    3.   The Computers

         After Ramos left, the parole officer reported

Ramos's admissions to U.S. Immigration and Customs

Enforcement ("ICE") agents.    The same day, April 4, 2008,

two ICE agents went to Ramos's residence, a trailer home.

They found him outside the trailer.    They introduced

themselves and said that they had information there might be

child pornography on his computer.    Ramos agreed to talk to

them inside.   The agents did not place Ramos under arrest,

nor did they handcuff him.    They asked him questions, and he

admitted that he had a computer in his residence, he used

the computer to access the Internet, he had searched for and

viewed child pornography on the computer, and thus they

would probably find child pornography on the computer.




                              - 6 -
            At some point during the interview, the agents

read Ramos his Miranda rights.1       He signed two consent

forms, one to a search of his residence and one to a search

of his computer equipment.    He refused to sign a third

document.    The agents then conducted a search and seized a

desktop computer.    As a forensic examination would later

reveal, Ramos had used the computer to visit child

pornography websites and view images of child pornography.

One of the hard drives had deleted "cookie" files from

websites with names indicative of sexual interest in minors.

There were two deleted web pages with images that were not

recoverable, but that bore the names "Lolita Photos" and "9-

12yr Pics."    The hard drive had been used to conduct a

Google search using words such as "twink," which suggested a

search for child pornography.     One of the hard drives

contained software called "Smart Protector Pro" that enabled



    1
          At the suppression hearing, Ramos denied receiving
Miranda warnings at his home on April 4, 2008, although he
testified that he was shown a piece of paper that "could have
been" Miranda warnings. The district court found, however, that
Ramos was not in custody and that, in any event, Miranda warnings
were given to him.

                              - 7 -
a user to delete his browser history.     There were some 140

images of child pornography in deleted space; the file names

indicated these had been temporary internet files that had

been deleted.

         On November 20, 2008, a grand jury in the Northern

District of New York indicted Ramos for knowingly receiving

and possessing child pornography.      The next day, ICE agents

and two parole officers returned to Ramos's residence to

arrest him.   Again, he was outside the trailer.    The

officers asked him to step inside so that they could talk to

him, and he agreed.    Inside, the officers advised Ramos he

was being arrested and handcuffed him.      The parole officers

conducted a sweep of the trailer to determine whether anyone

else was present and to look for evidence of any parole

violation.    They saw computer equipment lying in plain view

and discovered beneath the sheet of Ramos's bed a laptop

computer that was halfway open.      The parole officers opened

the laptop, clicked on an icon, and found images of what

appeared to be child pornography.      The officers seized the

laptop and obtained a warrant to search it further.


                             - 8 -
            The laptop was manufactured in Korea and its hard

drive was manufactured in Thailand.    The hard drive had on

it computer software called "Microsoft Picture It," which

permitted a user to alter images.     The laptop contained

images modified to appear as if children were engaged in

sexually explicit acts.    The original, unaltered images of

two young girls, panties, and a penis -- which had been used

to create the altered image -- were also found on the

computer.

B.   Proceedings Below

            On March 13, 2009, a grand jury in the Northern

District of New York returned a superseding indictment

against Ramos charging him with two counts of receiving

child pornography, in violation of 18 U.S.C. §§

2252A(a)(2)(A) and 2256(8)(A), and two counts of possession

of child pornography, in violation of 18 U.S.C. §§

2252A(a)(5)(B), 2256(8)(A), and 2256(8)(C).     The two sets of

possession and receipt charges referred, respectively, to

the two computers seized on April 4 and November 21, 2008.




                              - 9 -
           In September 2009, Ramos moved to suppress his

statements to parole officers and the evidence seized during

the searches resulting from his statements.     The district

court denied the motions from the bench on April 5, 2010,

following an evidentiary hearing.     With respect to Ramos's

statements made during the polygraph examination, the

district court held that the statements were admissible

because Ramos was not in custody.2

           Ramos proceeded to trial pro se, with advisory

counsel.   Following a three-day trial, the jury

convicted Ramos on three counts of receiving and possessing

child pornography.3


     2
          Although Ramos had argued generally to the district
court that his Fifth Amendment rights were violated by the
"coercive" circumstances of the polygraph examination, he did not
invoke the Murphy line of cases discussed below. See Minnesota
v. Murphy, 465 U.S. 420 (1984). The government contends,
therefore, that Ramos's Murphy argument is waived. We disagree,
as we conclude that Ramos preserved the issue by arguing in the
district court that he was forced to participate in the polygraph
examination and that this compulsion was coercive in violation of
the Fifth Amendment.
     3
          One of the counts was dismissed at the government's
request at the start of the trial. Ramos was convicted on Count
1, which charged receipt of child pornography in connection with
the computer seized on April 4, 2008, in violation of 18 U.S.C.
§§ 2252A(a)(2)(A) and 2256(8)(A); Count 2, which charged

                             - 10 -
          Ramos was sentenced on November 23, 2010.     Because

Ramos had previously been convicted of sexually abusing

children, he was subject to a mandatory minimum sentence of

imprisonment of fifteen years.    See 18 U.S.C. § 2252A(b)(1).

The district court sentenced Ramos to the statutory minimum:

a term of 180 months' imprisonment on each of the three

counts, to be served concurrently.

          This appeal followed.

                           DISCUSSION

          Two principal issues are presented:     (1) whether

Ramos was compelled to incriminate himself during the

polygraph examination in violation of his rights under the

Fifth Amendment, and (2) whether the government presented

sufficient evidence at trial to support Ramos's convictions

for knowing receipt and possession of child pornography.




possession of child pornography, in connection with the computer
seized on April 4, 2008, in violation of 18 U.S.C. §§
2252A(a)(5)(B) and 2256(8)(A); and Count 4 (redesignated Count 3
at trial), which charged possession of child pornography, in
connection with the laptop computer seized on November 21, 2008,
in violation of 18 U.S.C. §§ 2252A(a)(5)(B), 2256(8)(A), and
2256(8)(C).

                             - 11 -
I.   The Right Against Self-Incrimination

     A.     Applicable Law

            The Fifth Amendment provides that no person "shall

be compelled in any criminal case to be a witness against

himself."    U.S. Const. amend. V.       The privilege permits a

person to refuse to answer questions, in formal or informal

proceedings, where the answers might be used to incriminate

him in future criminal proceedings.         Minnesota v. Murphy,

465 U.S. 420, 426 (1984); accord United States v. Jennings,

652 F.3d 290, 303 (2d Cir. 2011).         In the supervision

context, we have held that a condition requiring polygraph

tests for defendants convicted of sex crimes does not

violate the right against self-incrimination as long as the

supervisee retains the right to challenge in a court of law

the use of incriminating statements as violations of his

Fifth Amendment rights.       See United States v. Johnson, 446

F.3d 272, 278-80 (2d Cir. 2006) (citing Asherman v. Meachum,

957 F.2d 978 (2d Cir. 1992) (en banc)).

            As a general matter, the Fifth Amendment privilege

is not self-executing.       Murphy, 465 U.S. at 425; Jennings,


                                - 12 -
652 F.3d at 303-04.   Rather, the privilege must be invoked:

an individual must claim the privilege to be protected by

it.   An individual who makes self-incriminating statements

without claiming the privilege is deemed not to have been

"compelled" but to have spoken voluntarily.   See Murphy, 465

U.S. at 429; Jennings, 652 F.3d at 303-04.

          One exception exists for the "so-called 'penalty'

cases," where the government compels an individual "to forgo

the Fifth Amendment privilege by threatening to impose

economic or other sanctions 'capable of forcing . . .

self-incrimination.'"   Murphy, 465 U.S. at 434 (quoting

Lefkowitz v. Cunningham, 431 U.S. 801, 806 (1977)).     Where

the government compels an individual to speak by threatening

him with a substantial penalty for exercising his Fifth

Amendment right to remain silent, the privilege is self-

executing.   Id. at 434-35.

          In the supervision context, if a probation or

parole officer tells a supervisee, explicitly or implicitly,

that invocation of the privilege would lead to revocation of

supervision, the supervisee is deemed to have been compelled


                              - 13 -
to speak and his failure to assert the privilege would be

excused.   Id. at 435 (describing this scenario as "the

classic penalty situation").      The penalty exception does not

apply, however, merely because the terms of probation

require a probationer to appear before his probation officer

and tell the truth "in all matters."      Id. at 433-39.

Rather, a supervisee is deemed to have been compelled to

speak only where he is required by the government "to choose

between making incriminating statements and jeopardizing his

conditional liberty by remaining silent."      Id. at 436.   In

determining whether a person's incriminating statements were

compelled in such a "penalty case," we examine the totality

of the circumstances.   See United States v. Roberts, 660

F.3d 149, 156 (2d Cir. 2011), cert. denied, 132 S. Ct. 1640

(2012).

           In Murphy, the probationer was required by his

terms of probation to be truthful with his probation officer

"in all matters."   Id. at 422.     He was informed that failure

to comply with his conditions of probation "could result in

his return to the sentencing court for a probation


                             - 14 -
revocation hearing."   Id.   Indeed, Murphy understood that

"revocation of his probation was threatened if he was

untruthful with his probation officer."     Id. at 434.

          Nonetheless, the Court held that the probationer

was not compelled to incriminate himself when he admitted to

his probation officer that he had committed a rape and

murder.   Id. at 424, 439.   The Court noted that the

probationer had not been told that his "assertion of the

privilege would result in the imposition of a penalty."       Id.

at 438 (emphasis added).     The Court held further that even

if the probationer did believe that his probation might be

revoked if he claimed the privilege, "that belief would not

have been reasonable" because the state could not

"constitutionally carry out a threat to revoke probation for

the legitimate exercise of the Fifth Amendment privilege."

Id.   But see Garrity v. New Jersey, 385 U.S. 493, 496-98

(1967) (holding that statements were compelled where

defendants were expressly informed that a refusal to answer

questions about possible criminal conduct would result in

loss of their jobs).   In other words, "[s]o long as [a]


                              - 15 -
probationer has not been told that he would lose his freedom

if he invoked his Fifth Amendment privilege," his answers to

his probation officer's questions are not deemed compelled.

Jennings, 652 F.3d at 304.

         On appeal from the district court's denial of a

motion to suppress, we review its conclusions of law de novo

and its factual findings for clear error, viewing the

evidence in the light most favorable to the government.

United States v. Garcia, 339 F.3d 116, 118-19 (2d Cir.

2003).

    B.   Application

         Here, Ramos's participation in the required

polygraph examination is not itself the basis for the

claimed constitutional violation.     Rather, the question

presented is whether the incriminating statements Ramos made

during the course of that examination were admissible under

the Fifth Amendment.   As Ramos did not invoke his Fifth

Amendment right against self-incrimination when he was




                             - 16 -
interviewed for the polygraph examination on April 4, 2008,4

that question thus turns on whether his incriminatory

statements were compelled as contemplated by Murphy.      We

conclude they were not.

          First, Ramos was not "told that he would lose his

freedom if he invoked his Fifth Amendment privilege."

Jennings, 652 F.3d at 304 (emphasis added); see Murphy, 465

U.S. at 435 ("[I]f the state, either expressly or by

implication, asserts that invocation of the privilege would

lead to revocation of probation, it would [create] the

classic penalty situation . . . .") (emphasis added)).

Rather, the consent forms he signed warned him only that his

failure to fully and truthfully answer all questions put to


     4
          Although Ramos protested on March 5, 2008, that the
imposition of the two new conditions of parole "violated his
rights," that statement was not sufficient to invoke the
privilege. Even liberally construed, in "'the entire context in
which the claimant spoke,'" the passing remark was too vague and
too far removed in time to be considered an invocation of his
Fifth Amendment rights for his interview on April 4, 2008.
Bradley v. Meachum, 918 F.2d 338, 342 (2d Cir. 1990) (quoting
United States v. Goodwin, 470 F.2d 893, 902 (5th Cir. 1972)). At
the very least, we cannot say that, when the evidence is taken in
the light most favorable to the government, the district court
clearly erred in not finding that Ramos asserted his Fifth
Amendment rights by objecting on March 5, 2008. See Garcia, 339
F.3d at 118-19.

                             - 17 -
him by his parole officer could lead to the initiation of

violation proceedings or the revocation of his parole.5

This was precisely the situation faced by the probationer in

Murphy, who was told that his failure to be truthful in all

matters "could result in revocation of probation."      465 U.S.

at 436 (emphasis added).    Yet, the Court held that the

probationer in Murphy was not compelled to speak.      Id. at

436-39.

          Second, there is no evidence that Ramos

subjectively felt compelled to answer incriminating

questions during the polygraph examination or the ICE

agents' later investigation.    See id. at 437-38 (concluding

there was no Fifth Amendment violation because, among other

factors, there was no direct evidence of subjective


     5
          See Appellant's App. at 35 (Consent for Polygraph
Examination: "failure to answer questions regarding my
conformance to parole . . . conditions, in the discretion of the
Parole Office and Polygraph Examiner, may be deemed as a failure
to participate in a meaningful way and be submitted . . . as a
parole . . . violation"); Appellee's App. at 137 (Notice of
Polygraph Examination Requirements and Procedures: "Failure to
fully cooperate and participate in any aspect of the polygraph
examination session, including refusal to answer questions during
the examination, may be grounds for violations of my parole."
(emphasis omitted)).

                             - 18 -
compulsion).   During the suppression hearing, Ramos was

questioned about forms he signed granting the ICE agents

consent to search his home on April 4, 2008, and testified:

"If I did not sign those documents, there was no doubt in my

mind that I would go to prison.      I would be violated on

parole and be sent back to prison."      Ramos, however, offered

no such testimony regarding his consent to the polygraph

examination or to answering the ICE agents' questions.

Rather, the record shows that Ramos eventually agreed to

participate in the polygraph examination without expressing

any reservations, and that he was capable of declining the

ICE agents' requests for information as illustrated by his

refusal to provide a written statement.      Thus, the record

does not support a finding of subjective compulsion.

         Third, Ramos could not have reasonably believed

that his parole would be revoked for exercising his Fifth

Amendment rights.   As explained in the Supreme Court's

decision in Murphy, the State of New York could not have

constitutionally carried out a threat to revoke Ramos's

parole because he invoked his Fifth Amendment right to


                            - 19 -
remain silent.   See id. at 438.      Indeed, the New York courts

have held that "the State may not punish a parolee for

invoking his Fifth Amendment privilege by revoking his

parole."   People v. Dyla, 536 N.Y.S.2d 799, 811-12 (App.

Div. 2d Dep't 1988) (citing Murphy, 465 U.S. at 438-40).

           We conclude, therefore, that the circumstances of

Ramos's polygraph examination on April 4, 2008, did not

create a penalty situation such that his Fifth Amendment

privilege against self-incrimination became self-executing.

The district court did not err in denying Ramos's motion to

suppress his incriminating statements and the physical

evidence obtained thereafter.6


     6
          Ramos also argues on appeal that the searches of his
home and seizure of the computers on both April 4, 2008, and
November 21, 2008, violated his rights under the Fourth
Amendment. We reject the arguments.
          First, the district court did not clearly err in
finding that Ramos voluntarily consented to the April 4, 2008,
search and seizure. See United States v. Snype, 441 F.3d 119,
131 (2d Cir. 2006). Although Ramos testified that he felt
compelled to sign the consent forms, he also stated that he was
capable of refusing the ICE agents' requests for information.
Further, Ramos's claim of compulsion is contradicted by the ICE
agents' testimony that Ramos was cooperative during the April 4,
2008, home visit. See Ceraso v. Motiva Enters., LLC, 326 F.3d
303, 316 (2d Cir. 2003) ("In reviewing findings for clear error,
we are not allowed to second-guess either the trial court's
credibility assessments or its choice between permissible

                             - 20 -
II. Sufficiency of Evidence

          In considering a defendant's challenge to the

sufficiency of the evidence, we "view the evidence presented

in the light most favorable to the government, and . . .

draw all reasonable inferences in its favor, affirming the

jury verdict unless no rational trier of fact could have

found all of the elements of the crime beyond a reasonable

doubt."   United States v. Desinor, 525 F.3d 193, 203 (2d

Cir. 2008) (citation and internal quotation marks omitted)

(omission in original); accord United States v. Adekanbi,

675 F.3d 178, 182 n.3 (2d Cir. 2012).     A jury's verdict must

be upheld if "any rational trier of fact could have found


competing inferences.").
          Second, the parole officers' warrantless search of
Ramos's home on November 21, 2008, was consistent with the Fourth
Amendment because it was "rationally and reasonably related to
the performance of the parole officer[s'] duty." United States
v. Grimes, 225 F.3d 254, 258-29 & n.4 (2d Cir. 2000) (citation
and internal quotation marks omitted); accord United States v.
Barner, 666 F.3d 79, 84-85 (2d Cir. 2012). Specifically, the
officers searched Ramos's trailer in accordance with the
conditions of Ramos's parole, which permitted them to search and
inspect his home without any suspicion. See United States v.
Reyes, 283 F.3d 446, 462 (2d Cir. 2002). Further, the parole
officers' search of Ramos's bedroom was justified by the need to
investigate whether Ramos had committed any new parole
violations. See Barner, 666 F.3d at 85.


                             - 21 -
the essential elements of the crime beyond a reasonable

doubt."   Jackson v. Virginia, 443 U.S. 307, 319 (1979).

          Two sufficiency issues are presented: first,

whether viewing images in temporary internet files

constitutes receipt or possession of child pornography, and,

second, whether using computer equipment manufactured abroad

to create "morphed" images of child pornography meets the

interstate or foreign commerce element of the crimes of

conviction.

    A.    Temporary Internet Files

          Ramos argues, with respect to the computer seized

on April 4, 2008, that the evidence failed to prove that he

knowingly received or possessed images from the internet

because the evidence showed only that he viewed images in

temporary internet or "cache" files (without saving them)

and that the mere viewing of child pornography stored in

temporary internet files was insufficient to sustain a

conviction under the statute as it then existed.




                            - 22 -
         Ramos was charged with receipt of child

pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) and

possession of child pornography in violation of 18 U.S.C. §

2252A(a)(5)(B).   At the time Ramos committed the acts in

question, the statute provided in pertinent part:

         (a) Any person who --

             (2) knowingly receives . . . (A)
             any child pornography that has
             been mailed, or shipped or
             transported in interstate or
             foreign commerce by any means,
             including by computer, . . .

             [or]

             (5) . . . (B) knowingly
             possesses any book, magazine,
             periodical, film, videotape,
             computer disk, or any other
             material that contains an image
             of child pornography that has
             been mailed, or shipped or
             transported in interstate or
             foreign commerce by any means,
             including by computer, or that
             was produced using materials
             that have been mailed, or
             shipped or transported in
             interstate or foreign commerce,
             including by computer, . . .

             [commits a crime].



                            - 23 -
18 U.S.C. § 2252A(a)(2)(A), (5)(B) (effective July 27, 2006

to October 7, 2008).7

          The statute does not define receipt or possession,

and courts have given these terms their plain meaning.      See,

e.g., United States v. Pruitt, 638 F.3d 763, 766 (11th Cir.

2011) (per curiam) ("The ordinary meaning of 'receive' is

'to knowingly accept'; 'to take possession or delivery of';

or 'to take in through the mind or senses.'" (quoting

Webster's Third New International Dictionary: Unabridged

1894 (1993)), cert. denied, 132 S. Ct. 113 (2011)); United

States v. Romm, 455 F.3d 990, 998-1000 (9th Cir. 2006)

("'Possession' is '[t]he fact of having or holding property


     7
          On October 8, 2008 -- after the seizure of Ramos's
desktop computer on April 4, 2008, but before the seizure of
Ramos's laptop on November 21, 2008 -- Congress amended §
2252A(a)(5)(B) to add the words "or knowingly accesses with
intent to view," to make clear that accessing child pornography
to view it was proscribed. See Enhancing the Effective Child
Pornography Prosecution Act of 2007, Pub. L. No. 110-358, §
203(b), 122 Stat. 4001, 4003 (2008). A Senate report explained
that the amendment "fills a gap in existing law that has led some
courts to overturn convictions of possessors of child
pornography. It amends the child pornography possession offense
to clarify that it also covers knowingly accessing child
pornography on the Internet with intent to view child
pornography." S. Rep. No. 110-332, at 5 (2008), available at
2008 WL 1885750 (2008).


                             - 24 -
in one's power; the exercise of dominion over property.'"

(quoting Black's Law Dictionary 1183 (7th ed. 1999))

(alteration in original)); United States v. Tucker, 305 F.3d

1193, 1204 (10th Cir. 2002) ("Possession is defined as 'the

holding or having something (material or immaterial) as

one's own, or in one's control.'" (quoting Oxford English

Dictionary (2d ed. 1989))).

            This Court has not yet decided whether viewing

images stored in temporary internet files is sufficient to

establish knowing receipt or possession of child

pornography.    See United States v. Falso, 544 F.3d 110, 121

n.13 (2d Cir. 2008); United States v. Martin, 426 F.3d 68,

77 (2d Cir. 2005) (whether "viewing" child pornography on

internet is legal is "an open question").    Other Circuits,

however, have upheld child pornography receipt and

possession convictions where a defendant viewed child

pornography stored in temporary internet files on a

computer.    See, e.g., Pruitt, 638 F.3d at 766-67 ("A person

'knowingly receives' child pornography under 18 U.S.C. §




                              - 25 -
2252A(a)(2) when he intentionally views, acquires, or

accepts child pornography on a computer from an outside

source," whether or not he "acts to save the images to a

hard drive, to edit them, or otherwise to exert more control

over them."); United States v. Kain, 589 F.3d 945, 948-50

(8th Cir. 2009) ("The presence of child pornography in

temporary internet and orphan files on a computer's hard

drive is evidence[, although not conclusive,] of prior

possession of that pornography . . . ."); Romm, 455 F.3d at

998, 1002 (concluding that knowingly taking possession of

files in internet cache, by accessing and manipulating them,

constituted knowing receipt of those files); United States

v. Bass, 411 F.3d 1198, 1201-02 (10th Cir. 2005) (affirming

conviction for knowing possession where child pornography

files viewed on internet were automatically saved to hard

drive).   But see United States v. Flyer, 633 F.3d 911, 918-

20 (9th Cir. 2011) (vacating conviction for possession under

§ 2252(a)(4)(B) and (b)(2) where images were located in

"unallocated space" for deleted data on defendant's




                            - 26 -
computer's hard drive and government presented no evidence

that defendant could or did access files).

            In the circumstances here, we hold that the

evidence was sufficient to prove that Ramos was guilty of

knowingly receiving and possessing child pornography under

the statute as it was worded in April 2008, even assuming he

viewed the images in question only in temporary internet

files and did not save them onto his hard drive.

            First, giving the words their plain meaning, Ramos

clearly "receive[d]" and "possesse[d]" the images, even

though they were only in his temporary internet files.    As

the evidence showed below, Ramos had some control over the

images even without saving them -- he could view them on his

screen, he could leave them on his screen for as long as he

kept his computer on, he could copy and attach them to an

email and send them to someone, he could print them, and he

could (with the right software) move the images from a

cached file to other files and then view or manipulate them

off-line.    See Romm, 455 F.3d at 998 (relying on witness's




                              - 27 -
testimony as to what could be done with cached files);

Tucker, 305 F.3d at 1204-05 (relying on witness's testimony

as to what could be done with cached files).   Hence, as the

evidence showed below, an individual who views images on the

internet accepts them onto his computer, and he can still

exercise dominion and control over them, even though they

are in cache files.   In other words, he receives and

possesses them.

         Second, here there was ample evidence that Ramos

intentionally searched for images of child pornography,

found them, and knowingly accepted them onto his computer,

albeit temporarily.   The browsing history on his desktop

computer showed that Ramos intentionally searched for child

pornography on the internet.   See, e.g., Pruitt, 638 F.3d at

767 (upholding defendant's conviction where "investigators

found a record of internet searches using terms related to

child pornography . . . and a record of visits to websites

with a child-pornography connection"); Kain, 589 F.3d at

949-50 (finding sufficient evidence for knowing possession




                            - 28 -
where defendant's browsing history showed repeated accessing

of child pornography websites).        In fact, he viewed some 140

images of child pornography, which were stored on the

computer in temporary internet files.       He knew that these

images would be found on his computer, as he told the ICE

agents that they would probably find child pornography

there.   Further, he had also attempted to delete the

temporary internet files and browsing history from his

computer.    See Bass, 411 F.3d at 1202 ("[T]he jury here

reasonably could have inferred that Bass knew child

pornography was automatically saved to his mother's computer

based on evidence that Bass attempted to remove the

images.").

            Accordingly, we conclude that there was sufficient

evidence from which a rational trier of fact could have

found that Ramos knowingly received and possessed child

pornography on the computer seized on April 4, 2008.




                              - 29 -
     B.    Interstate or Foreign Commerce

           The laptop seized on November 21, 2008, contained

"morphed images" -- images digitally altered to depict

children apparently engaging in sexual activity.        Ramos

argues that the government failed to establish that the

original or "source" images came through the internet or

otherwise traveled in interstate and foreign commerce.          He

further argues that the government failed to show that the

images were produced using materials that had traveled in

interstate or foreign commerce.       See 18 U.S.C. §

2252A(a)(5)(B).    Hence, he contends, there was insufficient

evidence of a nexus to interstate or foreign commerce.

           This Court has rejected the argument that a

similar statute, 18 U.S.C. § 2251, is unconstitutional when

applied to child pornography that has not crossed state

lines.    United States v. Holston, 343 F.3d 83, 90 (2d Cir.

2003).    For our purposes here, there is no meaningful

distinction between § 2251 and § 2252A.8      We held in Holston


     8
          Section 2251(a) criminalizes sexual exploitation of
children and, employing language virtually identical to the


                             - 30 -
that even child pornography created entirely intrastate had

a significant impact on interstate commerce because the

producer of the pornography supplied the interstate market,

and we rejected a Commerce Clause challenge to the federal

child pornography laws.    See id. at 88-91; accord United

States v. Harris, 358 F.3d 221, 222 (2d Cir. 2004).      Hence,

we consider here the specific question of whether the

interstate commerce nexus is established by a defendant's

use of a foreign-manufactured computer to produce child

pornography.

          This Court has not considered the issue in a

published decision.9    Other Circuits, however, have held

that a defendant's use of non-American-made computers or

digital equipment to produce child pornography satisfies the



language of § 2252A, bars producing a "visual depiction" of
sexually explicit conduct involving a minor using materials
shipped or transported in interstate or foreign commerce. 18
U.S.C. § 2251(a).
     9
          But see United States v. Porter, 184 F. App'x 112, 114
(2d Cir. 2006) (summary order) (holding, in rejecting challenge
to sufficiency of evidence as to interstate commerce nexus,
"government may satisfy this element by showing that the computer
that produced the images has traveled in interstate commerce").


                             - 31 -
interstate or foreign commerce element.   See United States

v. Schene, 543 F.3d 627, 639 (10th Cir. 2008) (finding

sufficient evidence of interstate or foreign nexus under §

2252A(a)(5)(B) where government's evidence showed "each

'image of child pornography' had been copied or downloaded

to Schene's [Singapore-manufactured] hard drive in one

capacity or another"); United States v. Mugan, 441 F.3d 622,

628-30 (8th Cir. 2006) (holding interstate commerce element

of § 2252A fulfilled where child pornography stored on

digital memory card transported in interstate and foreign

commerce); United States v. Anderson, 280 F.3d 1121, 1123-25

(7th Cir. 2002) (holding jurisdictional prong was met where

government proved defendant downloaded or copied images of

child pornography onto hard drive manufactured in Malaysia

and refurbished in Singapore); United States v. Guagliardo,

278 F.3d 868, 871 (9th Cir. 2002) (holding jurisdictional

prong was met where government proved defendant copied

images onto computer disks manufactured abroad).   We agree

with these decisions, and hold that the act of using




                           - 32 -
computer equipment manufactured outside the United States to

produce child pornography meets the jurisdictional

requirement of § 2252A(a)(5)(B).10

         The morphed images at issue here were found on

Ramos's laptop, which was manufactured in Korea.      Its hard

drive was manufactured in Thailand.     Both pieces of

equipment were thus materials that had been "shipped or

transported in interstate or foreign commerce" under §

2252A(a)(5)(B).   The government also offered into evidence

two "innocent" images found on the laptop that were the

sources for the morphed pornography as well as evidence that

Ramos's laptop contained Microsoft Picture It, an image

editing program that the jury could infer Ramos used to


    10
          Some courts have held that the mere copying or
downloading of an image is "production" for purposes of the
federal child pornography statutes. See, e.g., United States v.
Dickson, 632 F.3d 186, 189 (5th Cir. 2011); Schene, 543 F.3d at
638-39; United States v. Maxwell, 386 F.3d 1042, 1052 (11th Cir.
2004), vacated on other grounds, 546 U.S. 801 (2005); Anderson,
280 F.3d at 1125 ("Computerized images are produced when computer
equipment is used to copy or download the images." (citing United
States v. Angle, 234 F.3d 326, 341 (7th Cir. 2000))); Guagliardo,
278 F.3d at 871. We need not decide the issue, as Ramos did far
more than simply copy or download images here: the evidence
showed that he altered innocent images and created "morphed"
images, thereby producing child pornography.


                             - 33 -
create the morphed images.   A reasonable juror easily could

have concluded that Ramos knowingly possessed "an image of

child pornography . . . that [he] produced using materials

. . . shipped or transported in interstate or foreign

commerce," namely, a computer manufactured in Korea and a

hard drive manufactured in Thailand.   18 U.S.C. §

2252A(a)(5)(B).

         Finally, Ramos argues that the statute is

unconstitutional as applied to him because the evidence

could only show that he created the images "alone in his

trailer," engaging in "private conduct on his laptop," using

images that could only have been his "personal family

photos" that never traveled across the internet, without any

evidence suggesting he intended to distribute the morphed

images to anyone else.   This argument fails.   As we

explained in Holston, "Congress understood that much of the

pornographic material involving minors that feeds the

[national] market is locally produced, and this local or

'homegrown' production supports demand in the national




                             - 34 -
market and is essential to its existence."      Holston, 343

F.3d at 90.   "[W]hen Congress regulates a class of

activities that substantially affect interstate commerce,"

the fact that particular activities within that class do not

have a substantial effect on interstate commerce is

"'irrelevant.'"   Id. at 90 (quoting Proyect v. United

States, 101 F.3d 11, 14 (2d Cir. 1996) (per curiam)).     "The

government need not demonstrate a nexus to interstate

commerce in every prosecution."      Holston, 343 F.3d at 91.

As § 2252A clearly lies within Congress's powers under the

Commerce Clause, the fact that Ramos "neither shipped [his

images] interstate nor intended to benefit commercially from

[them] is of no moment."   Id.

         We conclude that the jury's verdict convicting

Ramos of possession of child pornography under §

2252A(a)(5)(B) was sufficiently supported by the evidence.




                            - 35 -
                          CONCLUSION

         We have considered Ramos's remaining arguments and

conclude that they are without merit.11   For the foregoing

reasons, the judgment of the district court is AFFIRMED.




    11
          Our decision in United States v. Hotaling precludes
Ramos's argument that the application of 18 U.S.C. §§ 2252A and
2256 to morphed pornography violates the First Amendment. United
States v. Hotaling, 634 F.3d 725, 728-30 (2d Cir. 2011) (holding
that child pornography created by digitally altering images of
real children is not protected expressive speech under the First
Amendment), cert. denied, 132 S. Ct. 843 (2011); see United
States v. Stevens, 130 S. Ct. 1577, 1586 (2010) (noting that
child pornography is a category of speech "fully outside the
protection of the First Amendment" (citing New York v. Ferber,
458 U.S. 747, 763 (1982))); United States v. Bach, 400 F.3d 622,
632 (8th Cir. 2005) (holding that creation of a "lasting record"
of an "identifiable minor child, seemingly engaged in sexually
explicit activity," would victimize child and thus was properly
considered child pornography). Likewise, we reject Ramos's
Eighth Amendment challenge to his sentence. The district court
acted well within its discretion in imposing the statutory
mandatory minimum of 180 months' imprisonment, a sentence that
was well below the Guidelines range of 324-405 months, and that
was reasonable under all the circumstances. See United States v.
Rivera, 546 F.3d 245, 254-55 (2d Cir. 2008); United States v.
MacEwan, 445 F.3d 237, 248-50 (3d Cir. 2006); see also United
States v. Yousef, 327 F.3d 56, 163 (2d Cir. 2003) ("[L]engthy
prison sentences . . . do not violate the Eighth Amendment's
prohibition against cruel and unusual punishment when based on
proper application of the Sentencing Guidelines or statutorily
mandated . . . terms.").


                             - 36 -
