Submitted: September 28, 2018
from United States District Court for the Southern District
of Iowa - Des Moines
LOKEN, BENTON, and SHEPHERD, Circuit Judges.
convicted Scott Jacob Smith of Receipt of Visual Depictions
of Minors Engaging in Sexually Explicit Conduct and
Possession of Child Pornography in violation of 18 U.S.C.
§ 2252(a)(2), (a)(4)(B), (b)(1), and (b)(2). The
district court sentenced Smith to concurrent terms of 235
months imprisonment on each count. Smith appeals, arguing the
evidence was insufficient to convict; the jury's general
verdict denied him his right to a unanimous verdict; his
conviction of both receipt and possession violated the Double
Jeopardy Clause as construed in United States v.
Morrissey, 895 F.3d 541 (8th Cir. 2018), and prior child
pornography cases; and the district court erred in imposing a
two-level enhancement for knowing distribution of child
pornography. We agree with the district court's
resolution of complex unanimous verdict and double jeopardy
issues and therefore affirm.
Sufficiency of the Evidence.
March 15, 2013, using the "ARES Roundup" law
enforcement computer program, Department of Homeland Security
Special Agent Aaron Simon downloaded five suspected child
pornography files from a computer he traced to an IP address
in Indianola, Iowa. The registered owner was Scott Jacob
Smith. After confirming the files contained what a federal
prosecutor agreed was child pornography, Agent Simon
conducted a warrant search at the Smith residence, seized a
computer in Smith's office, and conduced a consensual
interview during which Smith wrote a short statement. Smith
said the computer was password protected and used only by
Smith and his wife, admitted he used ARES search terms
related to child pornography but deleted any child images he
saw, and admitted he used a "disc scrubber" program
that can wipe and shred specific computer files.
examination of Smith's computer did not find the files
Agent Simon downloaded in March but recovered the name of a
deleted file that matched the downloads. The examiners
recovered images of prepubescent minors and videos of child
pornography in an ARES "shared folder" in the
computer's "Scott" directory. They also found
records of more than one hundred deleted files with names
indicative of child pornography in the ARES "shared
folder," and hundreds more in the ARES "downloads
folder." The deleted file names contained search terms
unique to child pornography that Smith had admitted using.
was charged with receipt, possession, and distribution of
child pornography. At trial, the government's evidence
included copies of the files downloaded by Agent Simon in
March, three images of prepubescent minors and a video saved
in the ARES "shared folder," the names of 105 child
pornography movie files saved to that folder, the titles of
hundreds of files received in the ARES "download
folder," hundreds of ARES search keywords used to search
for child pornography on the file-sharing program, and the
names of files shared and partially downloaded via ARES.
Smith's wife testified for the defense that the computer
was not password protected and she suspected her teenage son
was accessing child pornography. The jury convicted Smith of
receipt and possession but found him not guilty of the
appeal, Smith argues the evidence was insufficient because
the government failed to prove beyond a reasonable doubt that
he was the user who accessed child pornography; failed to
prove knowing receipt because it did not introduce actual
images from the "downloads" folder containing child
pornography; failed to prove Smith's use of search terms
immediately preceded creation of the images introduced at
trial; and failed to prove Smith knowingly possessed the
images downloaded by Agent Simon but not found on the
computer when it was forensically examined.
review the sufficiency of the evidence de novo. We view the
evidence in the light most favorable to the jury's
verdict, accepting all reasonable inferences that support the
government and resolving conflicts in its favor.
Morrissey, 895 F.3d at 549 (citation omitted).
Reversal is proper "only if no reasonable jury could
have found the defendant guilty beyond a reasonable
doubt." Id. (quotation omitted). Here, we agree
with the government that Smith's contentions on appeal
ignore his admissions to Agent Simon -- that the computer was
password protected, that he was an intermediate-to-advanced
computer user who understood the file-sharing ARES program
and common child pornography search terms, and that his
computer used file deletion programs. Based on these
admissions, the child pornography images introduced at trial,
and the substantial evidence that many other images had been
deleted, a reasonable jury could find that Smith knowingly
attempted to and did receive and possess child pornography.
The Unanimous Verdict Issue.
child pornography receipt and possession offenses impose
penalties on a person who "violates, or attempts or
conspires to violate," the substantive offenses. 18
U.S.C. § 2252(b)(1) and (2). Rule 31(c)(3) of the
Federal Rules of Criminal Procedure provides: "A
defendant may be found guilty of any of the following . . .
(3) an attempt to commit an offense necessarily included in
the offense charged, if the attempt is an offense in its own
Superseding Indictment charged that Smith "did knowingly
receive, and attempt to receive, child pornography"
(Count 2), and "did knowingly possess, and attempt to
possess, at least one matter which contains . . . a visual
depiction of a prepubescent minor and a minor who had not
attained the age of 12 years" (Count 3). The district
court instructed the jury that one element of the charged
receipt and possession offenses was that Smith
"knowingly received" or "knowingly
possessed" visual depictions of minors engaged in
sexually explicit conduct. The instructions further stated
that the jury must "unanimously agree which particular
visual depiction or depictions . . . were received" and
possessed. A separate instruction stated, "The crimes
charged in Counts Two and Three of the Indictment are also
charged as attempts," and then stated, "A person
may be found guilty of an attempt if he intended to commit
the underlying crime . . . and voluntarily and intentionally
carried out some act which was a substantial step toward that
crime." The Verdict Form, signed by all twelve jurors,
stated, "We, the ...