United States v. Salva-Morales

• Decision Date: 31 October 2011
• Docket Number: No. 09–1455.,09–1455.
• Parties: UNITED STATES of America, Appellee, v. Candido SALVA–MORALES, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

660 F.3d 72

UNITED STATES of America, Appellee,

v.Candido SALVA–MORALES, Defendant, Appellant.

No. 09–1455.

United States Court of Appeals, First Circuit.

Heard Sept. 8, 2010.Decided Oct. 31, 2011.

Luis A. Guzmán Dupont, by appointment of the court, for appellant.

Jenifer Y. Hernandez–Vega, Assistant United States Attorney, with whom Rosa Emilia Rodriguez–Velez, United States Attorney, Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, were on brief for appellee.

Before LYNCH, Chief Judge, BOUDIN and HOWARD, Circuit Judges.

PER CURIAM.

In 2005, federal agents identified an internet protocol address in Puerto Rico that possessed, and indicated it would share, videos containing child pornography. Using this information, an agent determined that Candido Salva–Morales (“Salva”) owned the internet subscription, and that the listed physical address was a computer shop that he owned and operated in San Juan.

In a warrant-authorized search of the shop in March 2006, forensic examiners retrieved two hard drives from Salva's personal computer, which held respectively 74 and 102 files containing child pornography. Salva was indicted in March 2007, and tried and convicted in September 2008 by a jury of knowing possession of child pornography, 18 U.S.C. § 2252(a)(4)(B) (2006). He was sentenced to 84 months in prison and now appeals.

On appeal, Salva's first claim is that the evidence did not support a jury finding on two separate elements required for conviction and therefore his motion for judgment of acquittal should have been granted. Review of such a claim is de novo but “we examine the evidence, both direct and circumstantial, in the light most favorable to the prosecution and decide whether that evidence, including all plausible inferences drawn therefrom, would allow a rational factfinder to conclude beyond a reasonable doubt that the defendant committed the charged count or crime.” United States v. Cruz–Díaz, 550 F.3d 169, 172 n. 3 (1st Cir.2008).

A separate jurisdictional element aside, the statute requires for conviction that the defendant “knowingly possess[ ]” one or more of listed items ( e.g., films, video tapes) or “other matter” containing “any visual depiction” where “a minor engaging in sexually explicit conduct” was involved in producing the depiction. 18 U.S.C. § 2252(a)(4)(B). Salva's first objection is that, although his computer hard drives contained child pornography and he possessed the computer, he was not shown beyond a reasonable doubt to have knowingly possessed the pornographic files.

Although Salva himself did not testify to either his actions or his knowledge, he offered multiple witnesses who affirmed that Salva's own computer was available to and commonly used by visitors to his shop. In addition, his forensic examiner testified that data on one hard drive indicated that twenty-two different users had saved files to it and that it was impossible to tell conclusively from the forensic data on the drives who had saved the pornographic files.

The government, however, showed that pornographic files were recovered only from two of the hard drives associated with Salva's personal computer and not from other computers in the shop (which were also searched). Further, the names of many of the files, going back to some of the earliest (stored in October 2005), clearly indicated that they contained child pornography. And Salva was always in the shop when others were present.

Further, the government presented evidence directly connecting Salva to several of the downloaded films. One of the government's forensic examiners testified that several of the pornographic video files recovered from Salva's hard drive were created and placed in a “Porno” folder minutes before an image named “Manuel y Evy”—a picture depicting Salva with a female—was created and saved to another folder (“My Pictures” within the “Candido M. Salva” user directory) on that hard drive.

There is also evidence that pornographic files were being accessed while Salva was alone in the shop—although not the evidence to which the government has directed us.¹ Rather, files downloaded from the internet were accessed between 2 am and 3 am and between 9 am and 10 am on the day of the search of Salva's shop; as the owner of the shop who locked up the shop at night before leaving and presumably opened it as well in the morning, it is a reasonable inference that Salva was the one accessing the files at these times.

Salva correctly points out that in many, perhaps most, cases of this kind, the government presents stronger evidence of knowing possession ( e.g., limited access to the computer, other forensic evidence connecting the defendant to internet searches for child pornography). But the question for us is whether a reasonable jury on this record could rationally conclude beyond a reasonable doubt that Salva knew that his own computer contained such files—he need not have downloaded them himself—and we think that a reasonable jury could so find.

The more difficult question concerns the jurisdictional element of the statute. The matter containing the visual depiction described above has either to have been (1) “mailed, or ... shipped or transported in interstate or foreign commerce,” or (2) “produced using materials which have been mailed or so shipped or transported, by any means including by computer....” 18 U.S.C. § 2252(a)(4)(B). Here, Salva...