United States v. Moreland

• Citation: 665 F.3d 137
• Decision Date: 14 December 2011
• Docket Number: No. 09–60566.,09–60566.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Keith MORELAND, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

665 F.3d 137

UNITED STATES of America, Plaintiff–Appellee,

v.Keith MORELAND, Defendant–Appellant.

No. 09–60566.

United States Court of Appeals, Fifth Circuit.

Dec. 14, 2011.

Paul David Roberts, Asst. U.S. Atty. (argued), Oxford, MS, for Plaintiff–Appellee.

Julie Ann Epps (argued), Canton, MS, for Defendant–Appellant.

Appeal from the United States District Court for the Northern District of Mississippi.

Before JOLLY, DeMOSS and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

The defendant-appellant, Keith Moreland (“Keith”), was convicted by a jury of knowing possession of child pornography, 18 U.S.C. § 2252A(a)(5)(B) (2006), sentenced to 51 months imprisonment and five years of supervision after release, and ordered to register as a sex offender. At trial, the prosecutor introduced 112 digital images of alleged child pornography that a Columbus, Mississippi city police officer found in two home computers that Keith and his wife, Deanna, owned and kept in their house in Columbus. Because Keith's father, George Moreland (“George”), was terminally ill and required assisted living, he resided with Keith and Deanna off and on during 2007 and until his death in January 2008. The police obtained possession of the Morelands' two computers on September 28, 2007. During several months prior to September 28, 2007, the two computers had been subject to joint custody, control, and use by Keith, Deanna, and George. George, who slept in the living room, frequently used the computers late at night when Keith and Deanna were asleep and during the day while Keith was at work. George, Keith, and Deanna each had access to and free use and control of Keith's username, password, and Yahoo! account on the computers. The police never interviewed or investigated George about his use of the computers or pornography. George died in January 2008. Subsequently, Keith was indicted in May 2008 with knowing possession of child pornography. He was tried and convicted of that charge by a jury in 2009.

Keith appeals his conviction. He argues that the evidence was insufficient to rationally support a jury in finding beyond a reasonable doubt that he, rather than George or another person, knowingly possessed the 112 images found on the two computers. After viewing all of the evidence in the light most favorable to the guilty verdict, we conclude that no reasonable jury could find beyond a reasonable doubt that Keith had (1) knowledge that the 112 images were in the computers; or (2) possession of the images, that is, the power and ability to access and exercise dominion or control over them. Thus, we are required to reverse the district court's judgment of conviction.

I. Background of Law and Computer Technology

The “exploitive use of children in the production of pornography has become a serious national problem.” New York v. Ferber, 458 U.S. 747, 749, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). In Ferber, the Supreme Court held that child pornography is distinguishable from other sexually explicit speech. Child pornography is not protected by the First Amendment because the State has a “compelling” interest in safeguarding the well-being of minors. Id. at 756–57, 102 S.Ct. 3348. “The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.” Id. at 757, 102 S.Ct. 3348; see also Ashcroft v. Free Speech Coalition, 535 U.S. 234, 239, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). Therefore, while pornography may warrant First Amendment protection and can be banned only if it is found to be obscene, see Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), pornography that depicts minors can be proscribed whether or not the images are obscene. Ashcroft, 535 U.S. at 240, 122 S.Ct. 1389. Moreover, the Court has held that the State's interest in protecting children from exploitation also justifies criminalizing the possession of pornography that is produced using children. Osborne v. Ohio, 495 U.S. 103, 110–11, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990); see also Ashcroft, 535 U.S. at 250, 122 S.Ct. 1389 (affirming Osborne while striking down a statutory provision that outlawed possession of virtual child pornography because real children were not exploited in its production). “The freedom of speech has its limits; it does not embrace certain categories of speech, including defamation, incitement, obscenity, and pornography produced with real children.” Ashcroft, 535 U.S. at 246, 122 S.Ct. 1389.

The state's power to criminalize child pornography and to prosecute individuals for possession of child pornography is not unlimited. See Ferber, 458 U.S. at 764, 102 S.Ct. 3348 (noting that “[t]here are ... limits on the category of child pornography which ... is unprotected by the First Amendment”). “As with obscenity laws, criminal responsibility [for child pornography] may not be imposed without some element of scienter on the part of the defendant.” Id. at 765, 102 S.Ct. 3348.

Keith was convicted of the knowing possession of child pornography in violation of the federal Protection of Children Against Sexual Exploitation Act, 18 U.S.C. § 2252A(a)(5)(B) (2006). At the time that he was charged, the statutory provision prohibited, in pertinent part, “knowingly possess [ing] ... any ... material that contains an image of child pornography that has been ... transported ... in ... interstate or foreign commerce by any means, including by computer.” Id. Child pornography is defined therein as “any visual depiction ... involv[ing] the use of a minor engaging in sexually explicit conduct; ... or ... [any] visual depiction [that] has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.” 18 U.S.C. § 2256(8). Thus, to secure Keith's conviction, the government had to prove beyond a reasonable doubt that Keith knowingly possessed digital visual images of real children engaging in sexually explicit conduct. The term “knowingly” extends both to the age of the performers and the sexually explicit nature of the material. United States v. X–Citement Video, Inc., 513 U.S. 64, 78, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994).

Although the Supreme Court upheld a prohibition against both possessing and viewing child pornography, see Osborne, 495 U.S. 103, 110 S.Ct. 1691, at the time of Keith's offense, the federal statute and the majority of state statutes criminalized “knowing possession,” but not mere “viewing,” of child pornography.¹ The term “knowingly possess” is not defined in the statute. “[I]n interpreting the term, [federal courts] are guided by its ordinary, everyday meaning.” United States v. Tucker, 305 F.3d 1193, 1204 (10th Cir.2002); see also United States v. Hildenbrand, 527 F.3d 466, 476 (5th Cir.2008) (“Absent a statutory definition or definitive clue, the meaning [of a statutory term] must be given its ordinary, ‘everyday meaning.’ ” (citation omitted)); United States v. Dobbs, 629 F.3d 1199 (10th Cir.2011) (using ordinary meaning to analyze the term “receives” under a related statute, 18 U.S.C. § 2252(a)(2)). Possession is defined as “the holding or having something (material or immaterial) as one's own, or in one's control.” Oxford English Dictionary (2d ed.1989); see also United States v. Simpson, 94 F.3d 1373, 1380 (10th Cir.1996) (defining “knowing possession” in the drug context as encompassing situations in which an individual “knowingly hold[s] the power and ability to exercise dominion or control” over the narcotics (quotation omitted)); Webster's New Collegiate Dictionary (11th ed.2008) (defining “possession” as “the act of having or taking into control”).

Child pornography can be distributed digitally over the internet and personal computers. As child pornographers have become more tech savvy, so have law enforcement officers and prosecutors. With the assistance of forensic software, a skilled investigator can recover data from a computer that the user thought was deleted or never even knew existed. In order for investigators, prosecutors, and courts to properly analyze such evidence in the context of a criminal prosecution for the knowing possession of child pornography, they must have a basic understanding of how individual computers and the internet interrelate and work. The major parts of a computer that come into play in a typical case are its cache, its temporary internet files, and its unallocated slack space.²

When a computer user views a webpage, the computer automatically stores a copy of that webpage in a folder known as the cache. Ty E. Howard, Don't Cache Out Your Case: Child Pornography Possession Laws Based on Images Located in Temporary Internet Files, 19 Berkeley Tech. L.J. 1227, 1229–30 (2004). The copy is retained in a file called a temporary internet file. When the user revisits that webpage, the computer can load the page more quickly by retrieving the version stored in the cache. Id. at 1230. The computer automatically deletes temporary internet files when the cache—which has limited storage space—becomes full. Once full, the computer begins to delete the files on a “first in, first out” basis. Note, Child Pornography, The Internet, and the Challenge of Updating Statutory Terms, 122 Harv. L.Rev. 2206, 2212 (2009). Users also may manually delete files from the cache, or use commercial software to remove the files. Id.

Deleted files are not wholly removed from the computer. A deleted file is marked as unallocated file space, which allows that file to be overwritten by new files. See Michele C.S. Lange & Kristin M. Nimsger, Electronic Evidence and Discovery: What Every Lawyer Should Know Now 208–09, 235–36 (2d ed.2009). A computer's deleted files make up what is known, in this case, as the disk slack space. A knowledgeable forensic investigator may use forensic software to search for, recall, and view the contents of the unallocated file space. This process is known as “restoring” a deleted,...