                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-27-2008

USA v. Donton
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1326




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Recommended Citation
"USA v. Donton" (2008). 2008 Decisions. Paper 1516.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1516


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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                  Case No: 07-1326

                          UNITED STATES OF AMERICA

                                           v.

                                SCOTT K DONTON,
                                            Appellant


                   On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                              Criminal No. 05-cr-00416
                   District Judge: The Honorable Edwin M. Kosik


                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 February 15, 2008

                  Before: SLOVITER AND SMITH, Circuit Judges,
                           and DIAMOND, District Judge*

                              (Filed: February 27, 2008)


                                      OPINION


DIAMOND, District Judge.




      *
       The Honorable Gustave Diamond, Senior District Judge for the Western District
of Pennsylvania, sitting by designation.

                                          1
Scott K Donton was convicted by a jury on both counts of a superseding indictment

charging him with receipt of child pornography and possession of child pornography in

violation of 18 U.S.C. §§2252A(a)(2)(B) and 2252A(a)(5)(B). He subsequently was

sentenced by the District Court to concurrent terms of 60 months’ imprisonment. Donton

appeals only his conviction arguing insufficiency of the evidence. For the reasons set

forth below, we will affirm.

       Because we write only for the parties we need only summarize the evidence

presented at trial, with which both parties are familiar. After Donton’s name appeared on

business records seized during the execution of a search warrant at the offices of an

internet business offering child pornography online, a sting operation was initiated

whereby an undercover business based in Maryland sent Donton a form letter containing

a checklist of sexual interests. Donton completed the form with his name, signature,

mailing address, and e-mail address, and checked numerous boxes indicating his interest

in, inter alia, child pornography. He mailed the completed form to the Maryland address.

       Upon receipt of Donton’s completed form, agents sent Donton a second mailing

offering for sale various videotapes depicting child pornography. Donton responded to

this mailing by completing an order form for four videotapes, all of which were described

in the mailing as featuring pre-teenage children engaged in sexual activity. Donton

signed the form, included his correct mailing address and e-mail address, enclosed a

signed money order in the amount of $85, and mailed it.

       After receiving Donton’s order form, agents arranged a controlled delivery to

                                             2
Donton’s residence of the four ordered videotapes containing child pornography that had

been seized in prior investigations. Donton’s regular postal carrier delivered the package

and Donton signed two receipts for it. Shortly thereafter, agents converged on Donton’s

residence to execute a search warrant. Donton had already taken one video from the

package and had begun to play it by the time the agents arrived. Child pornography also

was discovered on a computer seized during the execution of the search warrant. While

the search was in progress, Donton admitted that he had received the initial mailing and

completed the form inquiring as to his sexual interests and that he had completed and sent

in the order form and money order for the four videotapes, but indicated that he thought it

was “some kind of joke.” He further admitted that he had used his credit card to access

internet sites that might contain child pornography.

       At trial, Donton denied that the signature on the order forms or money order was

his. He suggested that his postal carrier forced him to sign for the package and that he

was unaware of what was on the tapes. As to his admissions, he stated that he only told

the agents “what they wanted to hear” so they would leave his home. Donton also

attempted to deflect blame for the child pornography found on the computer onto others

in the residence who he testified had greater access to that computer, including his

brother, with whom he had an ongoing feud. Donton’s father also testified that his sons

did not get along.

       We have appellate jurisdiction in this case under 28 U.S.C. §1291. While our

review of the sufficiency of the evidence is plenary, we must “view the evidence in the

                                             3
light most favorable to the government, and will sustain the verdict if any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.”

United States v. Leahy, 445 F.3d 634, 657 (3d Cir. 2006) (citation omitted). “‘[A] claim

of insufficiency of the evidence places a very heavy burden on the appellant,’” id., a

burden Donton clearly has failed to meet here. Rather, the evidence in this case as

outlined above, viewed in the light most favorable to the government, was more than

sufficient to sustain the jury’s guilty verdict on both counts as any rational trier of fact

could have found Donton guilty beyond a reasonable doubt of all the elements of both

receipt and possession of child pornography3 based upon that evidence.

       On appeal, Donton contends that his own trial testimony, along with that of his

father, as well as the absence from the record of other evidence which he suggests the

government neglected to proffer, was sufficient to cast doubt upon the credibility of the

government’s witnesses and to create a reasonable doubt as to Donton’s guilt. However,

it is not for us to weigh the evidence or to determine the credibility of the witnesses.

United States v. Dent, 149 F.3d, 180 187 (3d Cir. 1998). Instead, we look solely to the

evidence presented and view that evidence in the light most favorable to the government.


       3
          The offense of receipt of child pornography requires proof that a defendant
“knowingly receives . . . any material that contains child pornography that has been
mailed, or shipped or transported in interstate or foreign commerce by any means,
including by computer.” 18 U.S.C. §2252A(a)(2)(B). The offense of possession of child
pornography requires proof that a defendant “knowingly possesses any . . . 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 . . . .” 18 U.S.C.
§2252A(a)(5)(B).

                                               4
Because that evidence was sufficient for any rational trier of fact to find Donton guilty

beyond a reasonable doubt on both counts with which he was charged, the jury’s verdict

must be sustained.

       Accordingly, we will affirm the judgment of the District Court.




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