Opinion
Criminal Action No. 04-340, Section "R".
May 25, 2005
ORDER AND REASONS
Before the Court is defendant Dustin Cheramie's motion for judgment of acquittal under Federal Rule of Criminal Procedure 29. The Government opposes the motion. For the following reasons, defendant's motion is denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
On February 25, 2005, a federal grand jury returned a superseding three-count felony indictment against Dustin Cheramie, charging him with possession of child pornography (Count 1), receipt and attempted receipt of child pornography (Count 2), and transportation and attempted transportation of child pornography (Count 3). Cheramie pleaded not guilty, and the Court conducted a trial on April 18 and 19, 2005. The jury found Cheramie guilty on all three counts.
Cheramie now moves the Court, under Fed.R.Crim.P. 29, for a judgment of acquittal on Count 2, receipt and attempted receipt of child pornography, and on Count 3, transportation and attempted transportation of child pornography. Cheramie argues that no reasonable juror could have found him guilty beyond a reasonable doubt on these two charges based on the evidence presented at trial. In response, the Government argues that the evidence was more than sufficient to support Cheramie's conviction on both counts.
II. STANDARD OF REVIEW
To decide a motion for a judgment of acquittal under Fed.R.Crim.P. 29, the Court must "determine whether, viewing the evidence in the light most favorable to the verdict, a rational jury could have found the essential elements of the offenses beyond a reasonable doubt." U.S. v. Delgado, 401 F.3d 290, 296 (5th Cir. 2005); United States v. Sneed, 63 F.3d 381, 385 (5th Cir. 1995). Thus, to grant a judgment of acquittal, the Court must conclude, after viewing the evidence in the light most favorable to the Government, that a rational jury would necessarily have had to entertain a reasonable doubt as to the defendant's guilt. See United States v. Burns, 597 F.2d 939, 941 (5th Cir. 1979). The same test applies whether the Government's case depended on direct or entirely circumstantial evidence. See United States v. Lorence, 706 F.2d 512, 518 (5th Cir. 1983). "[A]ll reasonable inferences and credibility choices must be made in favor of the jury verdict." United States v. Deville, 278 F.3d 500, 505 (5th Cir. 2002). Thus, the Court may not, on a motion for judgment of acquittal, "weigh evidence or assess the credibility of witnesses." Id. at 505.
III. DISCUSSION
Cheramie challenges the evidence supporting his convictions for receipt and transportation of child pornography under 18 U.S.C. § 2252(a)(1) and (a)(2). The text of those sections provides that:
(a) Any person who —
(1) knowingly transports or ships in interstate or foreign commerce by any means including by computer or mails, any visual depiction, if —
(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct;
(2) knowingly receives, or distributes, any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution in interstate or foreign commerce or through the mails, if —
(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct; . . .
shall be punished as provided in subsection (b) of this section.18 U.S.C. § 2252(a). Anyone who violates or attempts or conspires to violate these sections is subject to imprisonment for a term of five to 20 years. 18 U.S.C. § 2252(b)(1). To prove that a defendant violated § 2252(a)(1) or (a)(2), the Government must prove that the defendant "knowingly" received or transported a visual depiction that the defendant also knew was of a minor engaged in sexually explicit conduct. See United States v. X-Citement Video, Inc., 513 U.S. 64, 78-79 (1994); United States v. Fabiano, 169 F.3d 1299, 1304 (10th Cir. 1999) ("In X-Citement, the Court held that the `knowingly' scienter requirement in § 2252 applies, not only to `receives,' but also to `the sexually explicit nature of the material and to the age of the performers.'"). In this case, the Court instructed the jury that, before they could find Cheramie guilty, they must find that both the receipt and the transportation of child pornography were done knowingly and that Cheramie knew that the images involved were of minors engaged in sexually explicit activity. The "knowingly" instruction stated that "knowingly" "means that the act was done voluntarily and intentionally, not because of mistake or accident."
Cheramie argues that the evidence at trial did not establish that his actions amounted to either knowing receipt or knowing transportation of child pornography. Cheramie states that he obtained the child pornography computer files through a file-sharing program that allows the exchange of files without conscious effort on the part of the user. Therefore, he contends that the jury had no evidence from which to conclude that he knowingly received or knowingly transported child pornography.
The Court need not reach the issue of whether receiving and sharing computer files through the use of a file-sharing program, without more, constitutes "knowingly" receiving and transporting child pornography under 18 U.S.C. § 2252(a), because the Government presented evidence that Cheramie actively engaged in receiving and transporting child pornography files over the internet.
A. Knowing Receipt of Child Pornography
The Government presented evidence that Cheramie actively sought out and downloaded, or received, child pornography. On July 20, 2004, FBI Special Agent Randall Allen interviewed Cheramie "concerning his use of his computer and his having received or transmitted child pornography." (Trans. of Testimony of Randall Allen, 4/18/05 at 6). Allen testified that, during the interview, Cheramie indicated that "he had, in fact, downloaded child pornography onto his computer." ( Id. at 13). Allen also testified that Cheramie stated that "[h]e would talk with individuals on the messenger services, AOL and Yahoo, and was prompted to go to this particular site or go to this particular file and that file would contain sexually explicit pictures of a minor male." ( Id. at 15). According to Allen, Cheramie admitted that he "would then go to that location that he was directed to and download that material onto his computer." ( Id. at 15-16). Allen's testimony is evidence that Cheramie took active steps to receive child pornography through methods other than use of the file-sharing programs that he contends are passive.
Allen testified that he cautioned Cheramie at the initiation of the interview and throughout its duration that he was inquiring only about child pornography and not about adult pornography. ( Id. at 7, 13).
Cheramie has never challenged the use of his statement against him. Indeed, Cheramie stipulated before and at trial that his statement was voluntary.
Although Cheramie testified at trial that he was interested in receiving only pornography of 18 and 19 year old males and did not intend to receive child pornography ( see Trans. of Testimony of Dustin Cheramie, 4/19/05 at 4), the jury could have found Cheramie's earlier statements to Allen more credible. United States v. Loe, 262 F.3d 427, 432 (5th Cir. 2001) ("A jury is free to choose among reasonable constructions of the evidence . . . And it retains the sole authority to weigh any conflicting evidence and to evaluate the credibility of the witnesses.") (citations omitted); United States v. Lankford, 196 F.3d 563, 575 (5th Cir. 1999) (noting that jury's choice to give more credibility to one witness's testimony than to another's is "exactly the type of decision juries are called upon to make"). The Government also presented evidence that Cheramie used two computers to download over 150 images of child pornography between the fall of 2003 and May of 2004, that he stored the images in file paths he created, and that, after he viewed the images, he did not delete them for that entire period of time, all of which could have suggested to the jury that Cheramie knowingly received the images. Viewing the evidence in the light most favorable to the Government and drawing all credibility choices in its favor, a rational jury could have found beyond a reasonable doubt that Cheramie knowingly received child pornography.
B. Knowing Transportation of Child Pornography
The same reasoning applies to Cheramie's conviction on the charge that he transported child pornography. Agent Allen testified that, when he asked Cheramie whether "he had, in fact, moved these images from his computer system to other persons," Cheramie stated "that he was talking to other individuals via Yahoo and AOL messenger services and he would, in fact, send some of these child pornography images to those persons from his computer to their computers via the internet." ( Id. at 16). When asked to clarify whether Cheramie had "specifically identified child pornography [as] being transported to other people from his computer," Allen affirmed that Cheramie had admitted to doing so. ( Id.). Finally, when asked "what did the defendant say how he transported the child pornography to other parties," Allen stated that Cheramie said that he "would actually take the image, retrieve it from his drive of his computer and then send the image to the person requesting it to their location through the internet service." ( Id. at 17). Allen's testimony is evidence that Cheramie transported child pornography through a method other than a file-sharing program, and the method he used involved his conscious direction of the pornography from his computer to another's. Again, although Cheramie's trial testimony was to the contrary, it is up to the jury to make credibility determinations. Loe, 262 F.3d at 432. Viewing the evidence in the light most favorable to the Government and drawing all credibility choices in its favor, a rational jury could have found beyond a reasonable doubt that Cheramie knowingly transported child pornography.
Because a reasonable jury could have found that Cheramie knowingly received and knowingly transported child pornography based on the evidence presented at trial, defendant's motion for judgment of acquittal must be denied.
IV. CONCLUSION
For the foregoing reasons, the Court DENIES defendant's motion for judgment of acquittal.