     Case: 16-41148      Document: 00514057238         Page: 1    Date Filed: 06/30/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                             United States Court of Appeals

                                    No. 16-41148
                                                                                      Fifth Circuit

                                                                                    FILED
                                  Summary Calendar                              June 30, 2017
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk


                                                 Plaintiff-Appellee

v.

CHAD CALHOUN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:15-CR-17-1


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
       After a jury trial, Chad Calhoun was convicted of receipt of child
pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A) and (b)(1), and
possession of child pornography, in violation of § 2252A(a)(5)(B) and (b)(2). On
appeal, Calhoun challenges his conviction on two grounds. First, he argues
that the evidence presented at trial was insufficient to support his convictions
because the Government failed to prove beyond a reasonable doubt that he


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-41148

knowingly received or possessed the child pornography files found on a laptop
seized from the residence he shared with his wife, Katie. Second, he argues
that the district court erred by denying his motion to suppress the laptop, and
all evidence derived therefrom, because the laptop was accessed by an
unknown person two days after it was seized by law enforcement.
      We review a preserved sufficiency challenge such as Calhoun’s de novo.
See United States v. Frye, 489 F.3d 201, 207 (5th Cir. 2007); United States v.
Resio-Trejo, 45 F.3d 907, 910 n.6 (5th Cir. 1995).        However, we view all
evidence and any reasonably inferences that flow therefrom in the light most
favorable to the jury’s verdict. Frye, 489 F.3d at 207.
      The main point of dispute at trial was whether it was Calhoun or
someone else who received and possessed the child pornography files found on
the laptop. “Possession may be either actual or constructive.” United States v.
Moreland, 665 F.3d 137, 149 (5th Cir. 2011). “When the government seeks to
prove constructive possession of contraband found in a jointly occupied
location, it must present additional evidence of the defendant’s knowing
dominion or control of the contraband, besides the mere joint occupancy of the
premises, in order to prove the defendant’s constructive possession.” Id. at 150.
The Government presented a substantial amount of circumstantial evidence
meeting this standard. The approximately 380 child pornography files on the
laptop were associated with the password-protected Windows user account
named “Chad” and had file creation dates spanning from 2009 to 2014.
Forensic analysis showed that the “Chad” user account had searched for and
downloaded numerous child pornography files over a particular peer-to-peer
file sharing network from both Calhoun’s residence and the church where he
was employed as the senior pastor. The pattern and logistical requirements
for downloading those files indicated that the person who downloaded them



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                                 No. 16-41148

had lengthy and consistent access to the laptop and, specifically, the “Chad”
user account. Although several documents apparently authored by Katie were
saved in the “Chad” user account, there were numerous photographs and
documents in that account that were directly related to Calhoun, including an
account of a traffic accident authored by him. The same afternoon someone
used the laptop to download a child pornography file over the course of three
hours, the “Chad” user account was used to access the internet and to open a
document with “Daniel 10” written in the top corner—a possible allusion to a
bible passage. The church secretary testified that she had observed Calhoun
carrying his laptop bag to church every morning and using the laptop in his
office. While she confirmed that Calhoun had an “open-door policy” for his
office, she never observed anyone else working on the laptop.
      Viewing the evidence in the light most favorable to the verdict, we
conclude that the Government provided sufficient circumstantial evidence,
besides the mere joint occupancy of the premises, establishing at least a
plausible inference of Calhoun’s knowing dominion or control of the child
pornography files. See Moreland, 665 F.3d at 150. Although Calhoun argues
that this case is like Moreland, in which we found that there was insufficient
evidence supporting a conviction for possession of child pornography, the files
at issue in Moreland “were not in plain view, but were . . . accessible only to a
knowledgeable person using special computer software, and there was no
circumstantial indicium that established that [the defendant] knew of the
images or had the ability to access them.” Id. at 152. By contrast, child
pornography files with suggestive titles were saved in a folder on the “Chad”
user account’s desktop. Given the evidence linking Calhoun to the “Chad” user
account and the evidence that the “Chad” account was used to search for and
download child pornography files with suggestive names, there was also



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sufficient evidence of Calhoun’s knowing receipt of child pornography. Cf.
United States v. Payne, 341 F.3d 393, 403–04 (5th Cir. 2003).
      Calhoun also contends that the district court erred by denying his motion
to suppress the laptop, and all evidence derived therefrom, because the laptop
was accessed two days after it was seized by law enforcement. In reviewing
the denial of a motion to suppress, this court reviews the district court’s factual
findings for clear error and its conclusions of law de novo. United States v.
Woerner, 709 F.3d 527, 533 (5th Cir. 2013). This court will uphold the district
court’s denial “if there is any reasonable view of the evidence to support it.” Id.
(quoting United States v. Michelletti, 13 F.3d 838, 841 (5th Cir. 1994) (en
banc)). Evidentiary decisions are reviewed for an abuse of discretion. United
States v. Barnes, 803 F.3d 209, 217 (5th Cir. 2015).
      The parties stipulated that the law enforcement officer charged with
logging the laptop into the evidence room was likely the person who accessed
the laptop while it was in law enforcement custody. Although the parties also
stipulated that none of the child pornography files on the laptop were accessed
or altered by that officer, Calhoun sought to suppress the laptop under Federal
Rule of Evidence 901(a) because the Government did not prove that the laptop
was in substantially the same condition as when the crime was committed or
when the laptop was seized.       The district court denied that motion after
determining that the facts established a prima facie showing of authenticity
and questions as to the weight the evidence deserved should be resolved by the
jury. The record supports that the laptop was not changed in any important
respect from its original condition. See United States v. Albert, 595 F.2d 283,
290 (5th Cir. 1979). Thus, the district court properly denied Calhoun’s motion
to suppress.
      AFFIRMED.



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