UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. WAYNE BENJAMIN WASSON, Defendant - Appellant. No. 20-3029 (D.C. No. 6:18-CR -10156-EFM-1) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HOLMES , LUCERO , and PHILLIPS , Circuit Judges.

________________ _________________ Wayne Wasson appeals his convictions for transporting a nd possessing child pornography in violation of 18 U.S.C. § 2252A(a)(1) and (a)(5)(B). He argues that the government did not present sufficien t evidence to prove the transportation element of these offenses beyond a reas onable doubt. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I In 2018, Yahoo submitted a report to the National Center for Missing & Exploited Children (NCMEC) CyberT ipline identifying a user named

* This order and judgment is not bi nding precedent except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### February 19, 2021 Christopher M. Wolpert Clerk of Court2 “girlwantedlover” for uploading several images of child pornography through the Yahoo Messenger website on two separate occasions. Yahoo also provided law enforcement with the user’s account info rmation, including a verified phone number and IP address, and access to emails which conveyed ch ild pornography to another Yahoo account. Law enforcement traced the IP address to Wasson’s home address and verified that the cell phone number belonged to Wasson. Google later submitted a separa te report to NCMEC identifying “waynehanne0” as having uploaded child por nography onto its servers in 2017. The phone number and IP addre ss associated with this a ccount matched Wasson’s. Google also provided law enforcement with access to the account ’s content, which included images of child pornog raphy and an image of Wasson. Pursuant to a search warrant, law en forcement searched Wasson’s home and found his laptop and flash dr ive. Law enforcement la ter acquired Wasson’s phone during an interview. The la ptop contained images and vi deos of child pornography; the flash drive contained images of child erotica, and his phone contained information for the “waynehanne0” Googl e account and several Yahoo accounts with variations of the username “girlwantedlover.” In later interviews, Wasson admitted that he received child pornography through Skype and other programs. His Sk ype account revealed chats with another user involving the exchange of child pornography. Wasson also acknowledged downloading child pornogr aphy and saving it to his flash drive. However, he stated3 that he did not remember se nding child pornography to others and that if he had sent any, he regretted it. Wasson was indicted on multiple counts of transportation of child pornography and possession of child pornography base d on uploads to Yahoo Messenger on May 29, 2017 (Count 1); uploads to Google on November 27, 2017 (Count 2); emails sent through Yahoo on December 29, 2017 (C ount 3); an upload to Yahoo Messenger on January 6, 2018 (Count 4); and the imag es found on his laptop and flash drive (Count 5). The case went to trial, and, at the close of the governme nt’s case, Wasson moved for a judgment of acquittal under Ru le 29(a), arguing that the government had not presented sufficient evidence that the child pornography was transported in interstate commerce. The court denied the motion, and the jury returned guilty verdicts on all counts. Wasson now appeal s the denial of his motion for a judgment of acquittal, arguing again that there is insufficient eviden ce that the child pornography was transported.
II Sufficiency of the evidence challenges are reviewed de novo. United States v. Isabella, 918 F.3d 816, 830 (10t h Cir. 2019). In determin ing whether the government presented sufficient evidence, this court views all ev idence in the light most favorable to the government and reverses only if no reasonable jury could find the defendant guilty beyond a re asonable doubt. Id.4 A Wasson argues that there was insufficien t evidence to prove the transportation element of the charged offenses. An i ndividual is guilty of transporting child pornography when he “knowingl y mails, or transports or ships [child pornography] using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any mean s, including by computer.” 18 U.S.C. § 2252A(a)(1) (emphasis added). An indi vidual is guilty of possession of child pornography when he “knowingly possesses . . . an image of child pornography that has been mailed, or shipped or transported us ing any means or facil ity of interstate or foreign commerce . . . including by comp uter.” 18 U.S.C. § 2252A(a)(5)(B) (emphasis added). We have not explicitly addressed what “transport” means for purposes of this statute, but our own precedent and case law from other circuits provide clear guidance on this question. In defining “transport” in other contexts, we have consistently applied the term’s ordinary meaning, to “convey from one person or place to another.” United States v. Wr ight, 791 F.2d 133, 137 (10th Cir. 1986) (quotation omitted); see also Atlantic Rich field Co. v. Farm Cr edit Bank of Wichita, 226 F.3d 1138, 1153 (10th Ci r. 2000) (transport means “to ‘transfer or convey’ something from one place to another”); Tran sport, Oxford Englis h Dictionary (2021) (“The action of carrying or conveying a thi ng or person from one pl ace to another.”). Interpreting the statute at issu e, other circuits have held that child pornography is transported when it begins in one location and is uploaded to a different location.5 See United States v. Davis, 859 F.3d 429, 432, 434 (7th Cir. 2017) (images transported when uploaded to an “online photo-sharing website”) ; United States v. Clingman, 521 F. App’x 386, 393, 396 (6th Cir. 2013) (concluding images were transported when uploaded from a computer to Shutterfly). The Fourth Circuit, for example, held that the transport elemen t of the statute was satisfied when an individual uploaded images of child pornog raphy from his laptop onto an online filestorage account because “uploading child pornography to a website constitutes transportation.” United States v. Fall, 955 F.3d 363, 374 (4th Cir. 2020). We follow our sibling circuits and concl ude that to present sufficie nt evidence of transportation involving the uploading of child pornography, a reasonable ju ror must be able to find beyond a reasonable doubt th at the child pornography began in the defendant’s possession and was conveyed to another loca tion or to another person. This burden can be met through evidence that the images were uploaded to a website. The government contends that Congre ss’ recent amendment to § 2252A made it clear that the transportati on element does not require proof that the illicit images were moved from one location to another. However, the amendment to § 2252A did not alter the transportation element; it was limited to the intersta te element. The amendment was made in response to our deci sion in United States v. Schaefer, which held that evidence that the internet wa s used to download child pornography was insufficient to prove the interstate or fo reign commerce element of the offense. 501 F.3d 1197, 1201 (10th Cir. 2007). In li ght of this holding, Congress amended § 2252A to reduce the government’s burden on the interstate comme rce element. See6 United States v. Baum, 542 F. App’x 724, 726-27 (10th Cir. 2013) (unpublished). 1 It added that the element can be proven so long as the act was accomplished “using any means or facility of intersta te or foreign commerce.” § 2252A(a)(1)(B); (a)(5)(B). This amendment did not alter the govern ment’s burden to prove the transport element. Accordingly, we reject the government’s contention that the transport element can be satisfied without proof that illicit images were moved from one location to another.
B Although we disagree with the go vernment’s proposed definition of “transport,” we conclude that the gove rnment presented sufficient evidence concerning all five counts. Counts 1 and 4 alleged that Wasson uploaded images onto Yahoo Messenger on two occasions. In suppor t of these charges, the gove rnment first presented a record custodian for Yahoo. Though the custodian was unable to testify about how Yahoo detects child pornography or the ex act location of Yahoo’s servers, she confirmed that a user na med “girlwantedlover@yahoo. com” had uploaded several illicit images onto Yahoo Messenger. The go vernment also pres ented evidence that the IP address of the account that uploa ded the images was connected to Wasson’s home address and that the account’s veri fied phone number matched Wasson’s. Based on this evidence, a reasonable ju ror could have found beyond a reasonable

1 We may cite an unpublishe d opinion for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.7 doubt that Wasson transpor ted illicit images by uploa ding them from a personal device onto Yahoo messenger. Regarding Count 2, alleging that Wasson uploaded illicit images onto Google’s server, the governme nt presented Google’s report that it intercepted illicit images uploaded by “waynehanne0@gmail.co m.” FBI Special Agent Derek Velazco testified that when he acc essed Wasson’s Google account , he found that Wasson had downloaded the reported images and uploaded them to two separa te folders within his Google account. He also saw the sa me images on Wasson’s laptop. This evidence is sufficien t for a reasonable juror to c onclude beyond a reasonable doubt that the illicit images were transported fro m Wasson’s laptop to a server maintained by Google. Concerning Count 3, alleging Wasson se nt child pornography through a Yahoo email account, the government introduced Yaho o’s report stating th at three emails with attachments including illicit videos ha d been sent from the “girlswantedlover” account to another Yahoo email user. Velazco testified that the videos sent in the emails had been obtained by Wasson from a nother individual thr ough a conversation on Skype, and the government introduced statements by Wasson admitting to using his Skype account to obtain the child pornograp hy. This evidence is sufficient for a reasonable juror to conclude beyond a reasonable doubt that the videos were transported from one of Wasson’s personal devices to another individual through email.8 Finally, regarding Count 5’s allega tion that Wasson possessed child pornography, Wasson admitted that he downloaded child pornography from a server onto his own computer, and the government introduced evidence of chats on Skype in which Wasson obtained illicit images. Furthe r, Velazco testified that he found child pornography when he searched Wasson’s laptop. This is sufficient evidence that Wasson possessed child pornography that had been transported.
III For the foregoing reasons, the judgme nt of the district court is AFFIRMED

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Entered for the Court

Carlos F. Lucero Circuit Judge