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United States v. Smith

United States Court of Appeals, Eighth Circuit

December 11, 2018

United States of America Plaintiff- Appellee
Scott Jacob Smith Defendant-Appellant

          Submitted: September 28, 2018

          Appeal from United States District Court for the Southern District of Iowa - Des Moines

          Before LOKEN, BENTON, and SHEPHERD, Circuit Judges.

          LOKEN, Circuit Judge.

         A jury 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[1] 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.

         I. Sufficiency of the Evidence.

         On 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.

         Forensic 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.

         Smith 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 distribution charge.

         On 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.

         We 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.

         II. The Unanimous Verdict Issue.

         The 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 right."

         The 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 ...

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