United States Court of Appeals

For the First Circuit

No. 20-2143

UNITED STATES OF AMERICA,

Appellee,

v.

GEORGE ROYLE V,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Joseph N. Laplante, U.S. District Judge]

Before

Barron, Chief Judge,

Howard and Thompson, Circuit Judges.

Jonathan G. Mermin, with whom Preti, Flaherty, Beliveau & 

Pachios, LLP was on brief, for appellant.

John M. Pellettieri, Attorney, Appellate Section, Criminal 

Division, U.S. Department of Justice, with whom Darcie N. McElwee, 

United States Attorney, Julia M. Lipez, Assistant United States 

Attorney, Kenneth A. Polite, Jr., Assistant Attorney General, U.S. 

Department of Justice, and Lisa H. Miller, Acting Deputy Assistant 

Attorney General, U.S. Department of Justice, were on brief, for 

appellee.
November 14, 2023
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HOWARD, Circuit Judge. George Royle V (Royle) appeals 

from his conviction by a jury for possession of child pornography, 

in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). 

Specifically, he argues that the district court erred in denying 

his motion to suppress the derivative fruits of a warrantless 

search of his home, and in denying his motion to dismiss the

indictment due to inadequate notice of that search. He also 

contends that the government's trial evidence was insufficient to 

support his conviction. We affirm.

I.

In late June 2015, agents with the Department of Homeland 

Security (DHS) obtained a video depicting suspected child

pornography that had been shared over the internet by a computer 

using an IP address assigned to a home in Portland, Maine. 

Investigators learned that the home was owned and occupied by 

Royle, a local attorney, and that its internet service was 

registered in his name. 

On several occasions beginning July 1, 2015, DHS Special 

Agent David Fife (SA Fife) conducted surveillance outside Royle's 

home. Among other observations, he noted a man matching Royle's 

physical description standing in the driveway and entering the 

house, as well as a car registered to Royle and his ex-wife parked 

near the house. SA Fife also conducted surveillance of Royle's 
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law firm, where he observed this same man and car in the parking 

lot. At one point during his surveillance of the home, SA Fife 

observed Royle "embrace and kiss an unknown white female," who 

then left in a separate vehicle.

While this surveillance was ongoing, SA Fife prepared 

documents to apply for a search warrant for Royle's home. For 

instance, on Monday, July 6, 2015, SA Fife sent a draft search 

warrant affidavit to a federal prosecutor, seeking review and 

feedback. The two discussed edits to the draft over the next two 

days and, on the morning of July 8, planned via email to seek and 

execute a warrant for Royle's home on Monday, July 13. As 

reflected in their emails, this agreed-upon timing was intended to 

accommodate staffing concerns and allow sufficient time for 

internal approval. 

During the evening of July 8, SA Fife and another DHS 

agent continued surveillance of Royle's home. There, they observed 

that the front door and a few windows remained "wide open" for 

several hours, though there was no car in the driveway.

Purportedly concerned about the "unsecured nature of the home," 

agents contacted the Portland Police Department (PPD) to "conduct 

a welfare check." 

Two PPD officers arrived at Royle's house around 

10:30 p.m. Officers reported that they observed a mess through 

the open front door and that no one appeared to be home. After 
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knocking on the screen door without response, the officers entered 

the residence. After "[s]everal minutes" looking around the 

residence, the officers exited. PPD then proceeded to talk to a 

neighbor, inquiring about Royle, and explaining that "[s]omebody 

called in a welfare check" on Royle, "[be]cause the front door was 

wide open, unlocked." 

After PPD exited Royle's house, SA Fife approached the 

PPD cruiser to ask about "what happened." PPD told him that "no 

one was present in the home but that there were no signs of forced 

entry or other suspicious activity beyond the open door." SA Fife 

asked if PPD "s[aw] things there [in the house] that would . . . 

not still be there if the place had been . . . robbed." PPD

responded that they observed "a laptop and several televisions, 

leading them to believe that no one had been in the residence to 

steal or attempt to steal anything." The next day, SA Fife wrote 

up a report about the events of July 8. Royle eventually received 

a copy of this report nearly three years later, in June 2018, in 

connection with pre-indictment talks with the government. This 

pre-indictment disclosure was the first time Royle learned that 

the July 8 search had taken place.

On Monday July 13, 2015, SA Fife obtained a search 

warrant for Royle's home and executed it the next morning at 

approximately 7:40 a.m. At this time, Royle was the only adult 

home. His two children, who were "[q]uite a bit under ten years 
- 6 -

old," were also present. SA Fife asked Royle whether there was 

someone who could pick the children up; Royle said his ex-wife 

could help and provided her phone number to the agents to arrange 

for the pickup. 

During their search, agents discovered and seized a 

MacBook computer in an upstairs room, and that computer was later 

found to contain images depicting child pornography.1 No other 

computers were seized during the search.2 At the time the laptop

was discovered, it was powered on and on top of a desk. Agents 

further determined that the laptop was in the process of running

"a wipe function," which the agents were able to stop by powering 

down the computer.3 Forensic examiners later discovered that the 

1 Child pornography is essentially defined as "any visual 

depiction . . . of sexually explicit conduct" involving a minor, 

with some nuance not relevant here. 18 U.S.C. § 2256(8). Royle 

does not dispute that the images recovered from this laptop fit 

the applicable statutory definition.

2 Agents also seized Royle's phone, though the government did 

not seek to admit at trial any evidence obtained from the phone.

SA Fife testified at Royle's suppression hearing that there was 

also an older computer in the residence -- a laptop that was found 

on the main floor of the house. As SA Fife testified, agents

"ruled it out either because it was a work laptop or because it 

was . . . a very old laptop that had no remnants of anything on it 

that [they] were looking for."

3 According to the testimony, a wipe function performs an 

intensive deletion process. Typically, when a user deletes files, 

these items actually remain in a type of limbo known as 

"unallocated space," and are still recoverable with the help of 

forensic tools. A wipe function permanently deletes these files, 

rendering them unrecoverable. 
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wipe function running on the MacBook had been initiated at around 

6:55 a.m. that day.

In November 2018, Royle was charged with one count of

knowingly possessing and accessing with intent to view child 

pornography, and attempt to do the same, in violation of 18 U.S.C. 

§§ 2252A(a)(5)(B), (b)(2), and 2256(8)(A). In July 2019, Royle 

moved to dismiss the indictment, arguing that SA Fife's failure to 

disclose the existence and details of the July 8 search at any 

time before June 2018 violated his procedural and substantive due 

process rights. In the alternative, he moved to suppress the 

fruits of the July 13 warrant-backed search on the grounds that 

the evidence was derivative of observations made during the 

warrantless search on July 8. Following a hearing in October 2019,

the district court denied Royle's motion to suppress, holding that

the July 8 search was justified under the community caretaking 

exception to the warrant requirement or the good faith exception 

"vis-a-vis the wellness check." The court also ruled that, in any 

event, the evidence obtained from the July 14 search was admissible 

under the independent source doctrine. The district court further

rejected Royle's arguments regarding the failure to give earlier 

notice of the July 8 search. The court explained that Royle's 

analogies to the pre-indictment delay and Speedy Trial Act contexts 

"don't . . . really work here, [and] certainly not in a way that 

would lead me to dismiss the case." The court explained, however, 
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that while it was denying Royle's motion, "if there are ways at 

trial that this failure to disclose has prejudiced [him] in a way 

that I can remedy at trial, I'm open to it." 

Royle was convicted on January 23, 2020, following a 

three-day jury trial. The government's evidence consisted

principally of testimony from special agents Fife, Douglas 

McDonnell, and Seth Plumb, as well as various exhibits reflecting 

images and data recovered from the MacBook. SA Fife testified as 

to the circumstances surrounding the warrant execution at Royle's 

home, as discussed above, and SA McDonnell testified about his 

role as a member of the team that executed the search warrant on

July 14. As will be further detailed below, the forensic evidence 

-- introduced mainly through SA Plumb -- included images of minors 

engaged in sexually explicit conduct, internet browsing history, 

and other tranches of data demonstrating that the laptop recovered 

from Royle's home was used to access child pornography. The 

government argued to the jury that this data, along with other 

circumstantial evidence that will be discussed, proved that Royle 

knowingly possessed and accessed the child pornography found on 

the MacBook.

At the close of the government's evidence, Royle moved 

for an acquittal, arguing that the government failed to prove 

beyond a reasonable doubt that he knowingly used the laptop to 

access child pornography. The district court reserved judgment,
- 9 -

see Fed. R. Crim. P. 29(b), and ultimately denied Royle's renewed 

motion for acquittal in a written order following the verdict. 

This timely appeal followed.

II.

A.

Royle first challenges the district court's denial of 

his motion to suppress. The government argues that the July 8 

search of Royle's home was justified pursuant to the emergencyaid exception to the warrant requirement and, in any event, that

the fruits of the later warrant-backed search were admissible under 

the independent source doctrine. Because we agree with this second 

argument, we need not consider whether the July 8 search was 

justified under the emergency-aid exception. Accordingly, we

assume the July 8 search was in violation of the Fourth Amendment

for the purposes of our analysis, and nevertheless affirm the 

court's denial of Royle's motion.

As a general matter, "[a]s a prophylaxis against 

unreasonable searches," the exclusionary rule prohibits 

introducing the fruits of an unlawful search into evidence. 

United States v. Flores, 888 F.3d 537, 545 (1st Cir. 2018). 

Nonetheless, "under the independent-source doctrine, evidence 

acquired from a lawful source that is independent of any Fourth 

Amendment infraction is admissible," because "the exclusionary 

rule should not put agents 'in a worse position' than if the 
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[initial] constitutional infraction had not happened." United

States v. Ponzo, 853 F.3d 558, 573 (1st Cir. 2017) (quoting 

Nix v. Williams, 467 U.S. 431, 443 (1984)). Thus, when information 

is obtained through an illegal search, then through a later, 

warrant-backed search, "the fruits of that [later] search [are] 

admissible . . . unless (1) 'the agents' decision to seek the 

warrant was prompted by what they had seen during' the initial 

illegal search or (2) 'information obtained during that [illegal 

search] was presented to the Magistrate and affected his decision 

to issue the warrant.'" United States v. Soto, 799 F.3d 68, 82 

(1st Cir. 2015) (quoting Murray v. United States, 487 U.S. 533, 

542 (1988)) (final alteration in original). Here, Royle argues

only that the July 13 warrant was deficient under this first 

consideration, sometimes called the "subjective" prong. So we 

need not consider the second.4

Where, as assumed arguendo here, an unlawful search 

precedes the procurement of a warrant, our "subjective inquiry" 

asks "whether 'the agents' decision to seek the warrant was 

prompted by what they had seen during the initial [illegal] 

4 The warrant contained no information about the July 8 search 

or information that was obtained via the July 8 search. In any 

event, after reviewing the warrant application, we have "little 

doubt that the [non-July 8 related] information was sufficient to 

support the judge's decision to issue the warrant." See United 

States v. Rose, 802 F.3d 114, 124 n.4 (1st Cir. 2015) (explaining 

that this second inquiry is "wholly objective" (quoting United 

States v. Dessesaure, 429 F.3d 359, 369 (1st Cir. 2005))).
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entry.'" United States v. Rose, 802 F.3d 114, 123–24 (1st Cir. 

2015) (quoting United States v. Dessesaure, 429 F.3d 359, 369 (1st 

Cir. 2005)) (alteration original). This inquiry "turns on whether 

the particular officer would have still sought the warrant absent 

the unlawfully-obtained information." Id.; see also United States

v. Siciliano, 578 F.3d 61, 77 (1st Cir. 2009) (explaining that the 

question is "whether the officers would have sought the warrant 

even if the unlawful evidence had not been available"). Although 

this is "a subjective test, . . . it should not be proven by purely 

subjective means." Dessesaure, 429 F.3d at 369. That means that

"the district court is not bound by after-the-fact assurances of 

[the officers'] intent, but instead must assess the totality of 

the attendant circumstances to ascertain whether those assurances 

appear 'implausible.'" Id. (quoting Murray, 487 U.S. at 540 n.2).

We review a district court's determination under the subjective 

prong -- which is a factual finding -- for clear error. Soto, 799 

F.3d at 83.

We conclude that the district court did not clearly err 

in finding that SA Fife's decision to seek a warrant was not 

"prompted" by any information he learned from the July 8 search. 

This finding was amply supported by SA Fife's hearing testimony 

that what he learned on July 8 did "not at all" affect his intent

to get a warrant for Royle's home. Although such "after-the-fact 

assurances" are not controlling, see Dessesaure, 429 F.3d at 369, 
- 12 -

the district court was entitled to credit this testimony in 

examining evidence of SA Fife's preexisting intent, as it 

explicitly did. United States v. Guzmán-Batista, 783 F.3d 930, 

937 (1st Cir. 2015) ("[A] challenge based on a district court's

credibility determination 'can virtually never be clear error.'" 

(quoting Anderson v. City of Bessemer, 470 U.S. 564, 575 (1985)).

Indeed, the plausibility of SA Fife's assurances is 

firmly supported by emails he exchanged with the prosecutor days 

and hours before the July 8 search occurred. As previously 

mentioned, SA Fife had already drafted an affidavit to support a 

search warrant application and sent it to the prosecutor on July 

6. Other emails showed that, several hours before SA Fife returned 

to Royle's home to conduct surveillance on July 8, both he and the 

prosecutor agreed that the contents of that draft were sufficient 

for their purposes and planned to submit it for internal approval. 

They further planned to seek and execute a warrant the following 

week. As the emails show, that decision to wait was prompted by

administrative issues. There was no suggestion that either of 

them believed additional information was needed, and nothing 

presented at the hearing compelled any finding to the contrary. 

We have repeatedly held that such evidence of a pre-existing intent 

to obtain a warrant is sufficient to support application of the 

independent source doctrine. Dessesaure, 429 F.3d at 369 (officers 

not prompted to seek warrant when they were going to apply for one 
- 13 -

prior to warrantless entry); Soto, 799 F.3d at 83 (independent 

source doctrine applied, in part, due to pre-existing 

investigation of the defendant); Flores, 888 F.3d at 546-49

(investigation prior to initial search reflected intent to obtain 

warrant); see, e.g., United States v. Combs, 727 F. App'x 744, 748 

(3d Cir. 2018) (independent source doctrine satisfied when law 

enforcement "already in the process of preparing a search warrant" 

prior to pre-warrant welfare-related search of the home (internal 

quotations omitted)).

Nevertheless, Royle contends that, even assuming SA Fife 

intended to seek a warrant prior to the July 8 search, this intent 

was vitiated when he saw the unsecured house. In other words, his 

concern about a potential break-in at Royle's home -- and the 

prospect that evidence may be stolen -- extinguished his intent to 

follow through with the plan to seek a warrant the following week. 

Royle argues that those concerns were only abated -- and SA Fife's 

intent restored -- after the warrantless search confirmed that a 

laptop was in the home. But he offers nothing more than rank 

conjecture to support this theory, and it is belied by the hearing

testimony. The district court credited SA Fife's assurance that 

the events of July 8 did "not at all" effect his decision to get 

a warrant, and this finding was not clearly wrong. Indeed, SA 

Fife also testified that he had no expectation that the police 

would enter the house to conduct the welfare check. He did not 
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provide them any direction before they did so, let alone request 

that they check that certain items were not missing. This 

testimony was further corroborated by that of the PPD officers who 

performed the search, who confirmed that the choice to enter the 

home was their own decision based on the circumstances.5

Royle further argues that the independent-source rule is 

inapplicable under these circumstances, because PPD officers could 

have discovered something during their search -- i.e., that items

actually had been stolen from the house -- that could have 

diminished SA Fife's intent to execute the warrant. This is a 

nonstarter. As the Supreme Court explained in Murray, the 

independent source doctrine is not concerned with "whether some 

hypothetical illegal search would have aborted the warrant," as 

5 To the extent Royle contends that the independent source 

rule can only apply if the initial search "had no effect on [SA 

Fife's] decision to seek the warrant," he is incorrect. Our cases 

make clear that the doctrine's application turns on whether the 

warrant decision was "prompted by," not merely "influenced by,"

the illegal search. For instance, in Soto we explained that an 

agent's "candid acknowledgment that the [evidence from the initial 

illegal search] was a factor in his initial decision to seek the 

warrant[] does not" affect the independent-source analysis. Soto, 

799 F.3d at 84. Indeed, "[t]he question is not whether the 

evidence [observed during the illegal search] did influence the 

officer's decision[,] . . . but whether the same decision would 

have been made if the evidence had not been known." Id. In any 

event, even if we were to endorse Royle's alternative test, SA

Fife's plausible and credited testimony that the events of July 8 

did "not at all" affect his decision to obtain a search warrant 

would result in the same outcome. 
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going that far would "expand our existing exclusionary rule." See

487 U.S. at 542 n.3.

Royle also contends that this case involves the concerns

implicated in Murray -- the "so-called confirmatory search, 

conducted for the precise reason of making sure it is worth the 

effort to obtain a search warrant." United States v. Restrepo, 

966 F.2d 964, 971-72 (5th Cir. 1992) (quoting LaFave, Search and 

Seizure, § 11.4(f), at 70 (1992 Supp.)) (internal quotations 

omitted). We disagree, for the reasons already discussed. As in 

Murray, this case is not an example of a "'search first, warrant 

later' mentality," as "there is nothing to suggest that [officers] 

went in merely to see if there was anything worth getting a warrant 

for." Murray, 487 U.S. at 540 n.2. As the record demonstrates, 

SA Fife had already determined that there was something in Royle's

home "worth getting a warrant for," based on the link between 

Royle's IP address and child pornography. Indeed, he had already 

gone through the effort of drafting the search warrant affidavit

and felt the contents were adequate for probable cause. Moreover, 

the district court credited SA Fife's claim that his call to PPD 

was for a wellness check, not a confirmatory search, and we see no 

clear error in that finding. 

In sum, the record evidence supports the view that "[t]he 

facts gathered legally, without resort to the facts gathered 

illegally, provided an independent and adequate source for the 
- 16 -

warrant application." Dessesaure, 429 F.3d at 370. The district 

court found that SA Fife would have still sought a warrant absent 

the July 8 search, and our review of the record does not leave us

with "'a definite and firm conviction' that this was a mistake."

Soto, 799 F.3d at 84 (quoting United States v. Brake, 666 F.3d 

800, 804 (1st Cir. 2011)). We have affirmed application of the 

independent source doctrine on less robust showings. See

Dessesaure, 429 F.3d at 369. Accordingly, we affirm the district 

court's denial of Royle's motion to suppress. 

B.

Next, Royle challenges the district court's denial of 

his motion to dismiss the indictment or suppress the fruits of the 

July 13 warrant due to deficient notice. Specifically, he argues 

that the government's years-long delay in notifying him of the 

July 8 search was unreasonable in violation of the Fourth 

Amendment, and also violated his Fifth Amendment due process rights 

by preventing him from investigating the circumstances of the 

search while memories were fresh. Although Royle contends that

these inquiries run together and that his Fourth Amendment claim 

is "rooted in" due process, his argument for dismissal or 

suppression on Fourth Amendment grounds is underdeveloped and 
- 17 -

therefore waived. United States v. Zannino, 895 F.2d 1, 17 (1st 

Cir. 1990).6 

In seeking dismissal on due process grounds, Royle 

compares the government's failure to timely notify him of the 

July 8 search to cases of pre-indictment or pre-trial delay. The 

6 Royle advances this argument in a single sentence of his 

brief, contending that "[w]hile advance notice [of the search] is 

not required, once the search had been completed, [he] was entitled 

to 'constitutionally adequate' notice that it had happened." Royle 

cites Dalia v. United States, 441 U.S. 238, 248 (1979), in support 

of this contention. But that case, confronting a challenge to the 

constitutionality of Title III, stands for the proposition that 

there is no "constitutional rule proscribing all covert entries," 

despite the fact that "covert entries" inherently involve a "lack 

of notice." Id. at 247–48. Royle offers no authority to support 

his contention that timely notice of a warrantless search after it 

has occurred is constitutionally required under the Fourth 

Amendment. 

 Moreover, even if the July 8 search was unreasonable under 

the Fourth Amendment due to delayed notice, and that such a 

violation would be appropriately remedied by operation of the 

exclusionary rule, we do not see why the independent source 

exception to the exclusionary rule would not render the fruits of 

the July 13 warrant admissible. As discussed above, 

the "independent source doctrine acts as a limitation on the 

exclusionary rule of the Fourth Amendment," Dessesaure, 429 F.3d 

at 365 n.6, by permitting "admission of evidence that has been 

discovered by means wholly independent of any constitutional 

violation." Id. (quoting Nix, 467 U.S. at 443). Thus, even if 

the delayed notice provided to Royle rendered the July 8 search 

unlawful, we would conclude that the independent source exception 

to the exclusionary rule applied, and that the district court was 

justified in denying Royle's motion to suppress. See, e.g., United

States v. Freitas, 800 F.2d 1451, 1456-57 (9th Cir. 1986) (finding 

a notice-based defect in the warrant, but explaining that 

suppression was improper because of operation of an exception to 

the exclusionary rule).
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district court determined that Royle had failed to present 

sufficient authority for the proposition that the government had 

an obligation to disclose this information sooner than it did, or 

show that dismissal was warranted. We affirm the district court's 

conclusion that there was no constitutional violation here.

As he did before the district court, Royle argues that 

his due-process claim should be resolved "[i]n keeping with" the 

"principles" of pre-indictment delay and speedy trial cases. We 

think the speedy trial framework is unsuitable to assessing Royle's 

due process claim, as the guarantee of a speedy trial reflects a 

distinct right protected by the Sixth Amendment and the Speedy 

Trial Act, see United States v. Irizarry-Colón, 848 F.3d 61, 67

(1st Cir. 2017), while Royle has unequivocally explained that the 

delayed notice violated the Fifth Amendment.7 

"[E]xcessive pre-indictment delay can sometimes, albeit 

rarely" violate due process, "if the defendant shows both that the

'delay caused substantial prejudice to [defendant's] right to a 

fair trial' and that 'the [g]overnment intentionally 

delayed indictment . . . to gain a tactical advantage.'" IrizarryColón, 848 F.3d at 70 (quoting United States v. Bater, 594 F.3d 

7 The speedy trial analogy is likewise inapposite, given that 

the "right attaches only . . . [after] a defendant is indicted, 

arrested, or otherwise officially accused," United States v.

MacDonald, 456 U.S. 1, 6 (1982); United States v. Handa, 892 F.3d 

95, 101 (1st Cir. 2018), but the delay Royle contests occurred 

pre-indictment.
- 19 -

51, 54 (1st Cir. 2010)) (emphasis original). The second prong 

requires showing "deliberate misconduct by the prosecutor (or at 

least something very close to that)." Bater, 594 F.3d at 54. We 

review the district court's decision not to dismiss an indictment 

for a purported pre-indictment delay due process violation for 

abuse of discretion. Irizarry-Colón, 848 F.3d at 70.

Even if we assume that the "principles" from the preindictment delay context govern Royle's claim, this is not one of 

the rare cases where we would conclude there was a due process 

violation. First, Royle cannot make out the requisite prejudice. 

"With respect to prejudice, a defendant must do more than allege 

that witnesses' memories had faded or that evidence had been lost 

that might have been helpful to him." Id. (quoting United

States v. Muñoz–Franco, 487 F.3d 25, 58 (1st Cir. 2007)). Here, 

all that Royle alleges is that witnesses' memories have faded and 

that evidence that might have been helpful to him was lost. His 

argument fails accordingly.8

8 Despite asking us to view his claim through the preindictment delay lens, at the same time Royle suggests that the 

applicable standard is an imperfect fit under these circumstances. 

In essence, he contends that prejudice under his circumstances 

should be assumed satisfied in his case, because the undisclosed 

information was uniquely and exclusively known to the government. 

With this undisclosed knowledge, he says, the government impeded 

his ability to begin investigating the circumstances of the July 

8 search at an earlier time, which not only prejudiced him but 

also gave the government a leg up. But we fail to see how this 

meaningfully differs from the potential for prejudice in the pre-
- 20 -

Moreover, any argument that "fresher" memories from the 

witnesses would have helped Royle is speculative and based on 

"conjecture." Bater, 594 F.3d at 54. Indeed, if witnesses with 

fresher memories had testified "it is not clear just what [they]

would have said or how much it would have helped [Royle]." Id. at 

55; United States v. McCoy, 977 F.2d 706, 711 (1st Cir. 1992) ("For 

the defendant to carry the heavy burden of proving actual prejudice 

from pre-indictment delay, concrete proof is required; mere 

speculation and bare allegations will not suffice."). Royle 

effectively concedes this very point, noting that "[i]t is 

impossible to know what [the two] PPD witnesses [who testified at 

the suppression hearing] would have said about what Fife was up to 

on July 8" had Royle been notified of the search earlier. Despite 

having access to audio recordings obtained from body microphones 

worn by the officers during the search, Royle offers no evidence 

to suggest that any accounts from the PPD officers closer in time 

to the search would have meaningfully differed from what they 

offered at his suppression hearing. 

indictment delay context. In either case, the government's delay 

in providing notice of information exclusively known to it --

whether it be the circumstances of a search or the fact of an 

impending grand jury indictment -- affects the defendant's ability 

to prepare a defense. United States v. Lovasco, 431 U.S. 783, 796

(1977) (acknowledging that "lapse of time" indicting may have had 

negative impact on defense); United States v. Ciampaglia, 628 F.2d 

632, 639 (1st Cir. 1980) (noting that a delay in indictment delays 

notice to indictee). 
- 21 -

If there was any doubt, Royle has also failed to show 

that "the [g]overnment intentionally delayed [disclosure] . . . to 

gain a tactical advantage." Irizarry-Colón, 848 F.3d at 70 

(quoting Bater, 594 F.3d at 54). As in the pre-indictment context, 

this perhaps could have been shown by evidence that the government

purposefully "[d]elay[ed] [disclosure] in order to deprive [him]

of witnesses." Id. at 71. But, again, Royle's argument that this 

was the case rests on pure conjecture. Thus, "[e]ven if [Royle] 

had demonstrated some degree of prejudice from the delay," this 

appeal would fail, as he has "made no concomitant showing that the 

government intentionally delayed [disclosure] to gain tactical 

advantage." Muñoz-Franco, 487 F.3d at 59; Bater, 594 F.3d at 53-

54 (no violation of due process after four-year preindictment delay, when there was "no evidence that the 

government delayed the indictment to deprive [defendant] of 

[relevant] testimony") (emphasis original).

We acknowledge that the government's delayed disclosure 

was inopportune. "Obviously it is undesirable that [notice] 

be delayed . . . ." Bater, 594 F.3d at 54. However, even assuming 

that we would apply the analysis used in pre-indictment delay 

cases, on these facts there is no showing that Royle was actually 

prejudiced by this late disclosure or that it was in bad faith.
- 22 -

Accordingly, the district court did not abuse its discretion in 

denying Royle's motion to dismiss.9

III.

Finally, Royle challenges the sufficiency of the 

evidence to prove that he "knowingly possess[ed], or knowingly 

access[ed] with intent to view" child pornography found on the 

laptop, as required to sustain his conviction under 18 U.S.C. 

§ 2252A(a)(5)(B). We disagree.

"We review preserved challenges to the sufficiency of 

the evidence de novo, viewing the record in the light most 

favorable to the prosecution and rejecting such challenges if any 

rational jury could have convicted the defendant when considering 

all the evidence, direct and circumstantial, in this way." United

9 We note that applying caselaw from the Brady context would 

also not help Royle. When the government has delayed disclosure 

of exculpatory evidence, we review for abuse of discretion, and 

affirm unless "the delayed disclosure prejudiced the defendant." 

United States v. Montoya, 844 F.3d 63, 71 (1st Cir. 2016). In 

this context, "the test is whether defendant's counsel was 

prevented by the delay from using the disclosed material 

effectively in preparing and presenting the defendant's 

case." United States v. Ingraldi, 793 F.2d 408, 411-12 (1st Cir. 

1986). "[A] court's principal concern must be whether learning 

the information altered the subsequent defense strategy, and 

whether, given timeous disclosure, a more effective strategy would 

likely have resulted." United States v. Devin, 918 F.2d 280, 290 

(1st Cir. 1990). For the same reasons his challenge fails in the 

pre-indictment delay context, he also would not succeed if we used 

the lens of the Brady cases: Royle has not shown prejudice from 

his delayed notice of the search.
- 23 -

States v. Levin, 13 F.4th 96, 99 (1st Cir. 2021). "[T]he issue is 

not whether a jury rationally could have acquitted but whether it 

rationally could have found guilt beyond a reasonable doubt." Id.

at 99–100 (quoting United States v. Breton, 740 F.3d 1, 16 (1st 

Cir. 2014)) (quotation omitted). Because Royle moved for an 

acquittal at the close of the government's case and the district 

court reserved decision, we must "consider only the evidence 

presented in the government's case-in-chief to assess whether 'a 

rational factfinder could find, beyond a reasonable doubt, that 

the prosecution successfully proved the essential elements of the 

crime.'" United States v. Ortiz, 447 F.3d 28, 32 (1st Cir. 2006) 

(quoting United States v. Moran, 312 F.3d 480, 487 (1st Cir. 

2002)); see Fed. R. Crim. P. 29(b). Accordingly, we turn to an 

examination of the evidence introduced by the government.

A.

As discussed above, the government's trial evidence 

consisted of testimony from SA Fife and DHS special agents Douglas 

McDonnell and Seth Plumb, as well as forensic evidence consisting 

of images and other data extracted from the laptop.

To carry its burden on the mens rea element presently at 

issue, the government argued that this circumstantial evidence 

established that Royle was the user responsible for the childpornography-related contents of the laptop. 
- 24 -

This forensic data fit into roughly six related 

categories. First, the government introduced 17 exhibits, showing 

images of child pornography recovered from the laptop's deleted 

files. Some of the images contained superimposed text (i.e., a 

text stamp) depicting the name of a child pornography website.

Second, the government introduced evidence of internetbrowser screenshots recovered from the laptop's deleted files 

containing the images previously discussed. As SA Plumb explained, 

these screenshots depicted what would have been visible in the 

browser at the time the corresponding images were displayed. He 

further explained that certain browsers capture such screenshots 

automatically, in order to show recently viewed webpages when a 

new browser window is subsequently opened. Another explanation he 

offered for how such screenshots could end up on (or deleted from) 

a device is if they were affirmatively taken by a user.

Third, the government produced internet browsing 

history, in chart form, collecting certain browsing activity 

recovered from the laptop's Firefox web-browser application from 

10 dates spanning the period from April 2, 2015 to July 13, 2015.

As SA Plumb explained, the chart was generated using a forensic 

tool and listed the following information: various web addresses 

visited by the browser; the corresponding title or name of each 

address's webpage as displayed therein; the date and time each was 
- 25 -

visited;10 the number of times each was visited;11 and whether or 

not the website was typed into the browser by a user. The chart 

showed visits to video-chat and image-hosting websites that, in SA 

Plumb's investigative experience, were linked to child 

pornography, such as ImageTwist, Omegle, and mrvine.net. 

Moreover, some of the web addresses themselves and titles of the 

webpages used terms associated with child pornography (or 

otherwise suggestive of sexually explicit content involving 

minors), such as "Jailbait Amateur Pictures" and "Teens-posing and 

sex." This included a site displayed as "stickamgfs.com," which 

frequently appeared in the browser history. 

The chart further reflected that many of the visits to 

these websites occurred at late evening hours, and sequentially, 

for periods of time ranging from 20 minutes to an hour. 

Furthermore, SA Plumb identified that some of the web addresses 

visited by the laptop matched the superimposed text, or file names,

reflected in the sexually explicit images recovered from the 

laptop. For example, one image was superimposed with "4947-

pul.avi.," which was embedded in an ImageTwist web address visited 

10 The chart indicated the time in Universal Coordinated Time 

(UTC), and Plumb explained to the jury that this is four or five 

hours ahead of the time in Portland, Maine. Exactly how many hours 

ahead depends on the "time of year."

11 This metric only reflects a hit for a user going "to that 

one page that one time" -- thus, this metric is "precise to [a 

specific] web address." 
- 26 -

on May 7, 2015: "http:imagetwist.com/dbk60c5x4il7/4947-

pul.avi.jpg.html." 

Fourth, the government introduced another chart 

generated by SA Plumb's forensic tools, the "SessionStore 

Artifacts," that contained additional information about the 

laptop's use of the Firefox browser. As SA Plumb explained, the 

SessionStore Artifacts reflected "a record of the most recent use 

of that browser," listed in individual entries containing a "title" 

and web address, but no data as to the date or time the material 

was accessed. In some instances, the "title" reflected search 

terms used in various search engines, including Google and Bing. 

For example, searches discussed during SA Plumb's testimony 

reflected Bing searches for "Young Teens in Swimsuits Candid," 

"Junior High Schools Bikinis," and "Tween Teen Bikinis Candid."

SA Plumb further identified entries showing visits to some of the 

child-pornography-linked sites discussed above, e.g., ImageTwist, 

mrvine.net, and other sexually explicit references to "[j]unior 

[h]igh [s]chool" and "9_or_10_year_old_girl[s]." As with the 

browsing history example, SA Plumb was able to match several 

SessionStore Artifacts entries with file names appearing on the 

child pornography images previously introduced. 

Fifth, the government introduced a third chart 

summarizing "Launch Services Quarantine Events" (LSQ) data

extracted from the laptop and examined by SA Plumb. As SA Plumb 
- 27 -

explained, LSQ data records instances in which a MacBook's user 

attempts to open a file downloaded from the internet. When such 

an attempt is made, the computer automatically provides a "yes" or 

"no" prompt to the user before the file can be opened, and this 

event is recorded. He further pointed out several entries between

2012 to 2013 recording attempts to open files with sexually 

explicit references to minors. 

Finally, Plumb testified regarding a fourth chart 

reflecting extracted "QuickLook Thumbnail Cache" data. He 

explained that the QuickLook feature enables a user to quickly 

view the contents of files held in a folder directory by selecting 

an individual file and hitting the space bar. The data reflected 

in the QuickLook chart show the filenames and pathways for files 

that are prepared to be launched from the QuickLook feature. SA 

Plumb then proceeded to discuss specific entries of this data 

extracted from the MacBook. As he discussed and the jury was 

shown, many of the file names in these entries reflected picture 

and video files with overt references to minors engaged in sex 

acts, previously discussed websites, e.g., Omegle, or terms such 

as "jailbait." These files were all in the "aMule Downloads"

folder.

As SA Plumb explained, aMule is a peer-to-peer file 

sharing program, which allows a user to search for and download 

files from the machines of other users over the internet. A user 
- 28 -

of a peer-to-peer program can locate files of interest by using 

search terms, and can then download any particular file by 

"clicking" on it. With aMule, any such downloaded files will 

populate in an aMule downloads folder on the user's computer, which 

is automatically created by the program. SA Plumb further 

explained that, to his knowledge, a file would have to be clicked 

on by a user in order to be downloaded and populate in such a 

folder. Further evidence captured in the laptop's browsing history 

showed searches suggesting that the aMule program had been 

downloaded to the laptop from the internet, in April 2015. 

Although the aMule program was not installed on the MacBook when 

it was seized, SA Plumb confirmed through additional forensic tools

that it was installed and running on the laptop as of July 9, 2015. 

B.

Royle does not contest that the government sufficiently 

proved that the laptop both contained child pornography and 

reflected visits to websites associated with child pornography. 

Instead, he contends that the government failed to prove that Royle 

downloaded those images or visited those websites. Boiled down, 

his argument is twofold. First, he argues that the evidence failed 

to prove that the child pornography's presence on the laptop was 

a result of knowing human activity, rather than automated computer 

activity. Second, he argues that even if the evidence sufficiently 

established that a person was responsible, no rational jury could
- 29 -

conclude that he was that person without impermissible 

"guesswork." For this second argument, Royle heavily relies on 

our decision in United States v. Pothier, 919 F.3d 143 (1st Cir. 

2019). We address and reject each argument in turn.

1. Human Activity

Royle argues that various non-volitional "automatic 

process[es]" could have caused the pornographic material to end up

on the computer. Specifically, he argues that processes such as

"caching," "pre-fetching," "re-direction," or "malware" could 

explain the presence of illegal material on the laptop.12 He points

to SA Plumb's concession on cross-examination that he could not 

say for certain how the images recovered from the laptop got there 

and that it could have possibly been due to one of those automated 

processes. But a rational jury could have readily found this 

theory implausible, given the volume of evidence showing child

pornography browsing and peer-to-peer downloads, and other 

evidence tending to show that a human accessed the recovered 

images. 

12 Both pre-fetching and caching are processes that allow 

computers to quickly respond to queries from users. As SA Plumb 

testified, pre-fetching refers to a process in which "files that 

[have] previously been accessed are . . . prioritized in a way to 

allow them to be in active memory quicker." Likewise, caching is 

an automatic process in which the browser saves items displayed on 

the screen "to a certain degree within the computer," so if a user 

returns "to that page or . . . want[s] to access that link it will 

be available to [him] more quickly."
- 30 -

First, a reasonable jury could have rejected the notion 

that child pornography inadvertently ended up on the computer 

through these automated processes in light of the considerable 

volume of that data in evidence. For instance, the browsing 

history, reflecting activity from 10 dates spanning April to July 

2015, collectively showed hours of sequential visits to dozens, if 

not hundreds, of webpages associated with child pornography. 

Similarly, the SessionStore Artifacts chart contained over 1,400 

individual entries for webpages recently visited by the laptop's 

browser, many of which very clearly reference child pornography. 

The volume of this activity helps dispel any reasonable doubt about 

whether the data resulted from mistake or the automated processes 

of innocent web browsing. Cf. United States v. Myers, 560 F. App'x 

184, 187 (4th Cir. 2014) (holding that the "plethora of child 

pornography on [defendant's] computer . . . establish[ed] that it 

was not by mistake or error that the files were downloaded").

Second, multiple pieces of evidence showed that the 

laptop was affirmatively manipulated by a human, in at least some 

instances, in connection with child pornography viewing activity. 

For example, the browsing activity evidence, aided by SA Plumb's 

testimony, showed that visits to the sites omegle.com and 

stickamgfs.com were initiated by a person typing those addresses 
- 31 -

into the browser window.13 Omegle.com, which had three typed visits 

logged as of April 2015, was known to SA Plumb through prior child 

exploitation investigations and was superimposed on some of the 

images in the case. Similarly, typing-initiated visits to 

stickamgfs.com on separate days in May 2015 linked to pages with

"Jailbait Videos" in the title. The SessionStore Artifacts 

evidence further supports an inference of human-initiated 

activity, where searches for illicit terms such as "Young Teens in 

Swimsuits Candid" appeared. Cf. Breton, 740 F.3d at 17 (noting 

that a "history of visits to websites with a child pornography 

connection or use of search terms associated with child pornography 

can support a finding that the defendant knew the images he 

retrieved contained child pornography"); United States v. Shiver, 

305 F. App'x 640, 643 (11th Cir. 2008) (rejecting the theory that 

child pornography appeared "on [defendant's] computer without his 

knowledge by a virus or by 'pop-up' windows that appeared on his 

computer screen unbidden," when "the government's computer expert 

testified that Internet searches conducted on [the defendant's]

computer used words and terms that were likely to return

pornographic images of children"). Further evidence reflecting

repeated viewing of specific pornographic videos also cuts against 

13 SA Plumb acknowledged that this search could appear "typed" 

if it had been copied and pasted. This, however, still evidences 

volitional activity. 
- 32 -

a theory that malware or automatic "re-direction" was the real 

perpetrator. See Shiver, 305 F. App'x at 643 (repeated viewing of 

image supports theory of volitional activity). 

Moreover, the contents of the aMule downloads folder 

provide further evidence that a human downloaded the child 

pornography found on the MacBook. SA Plumb testified that any 

downloads from aMule "would have had to have been clicked on and 

downloaded" to end up in that folder. And the content in the aMule 

downloads folder suggests a human used aMule to download child 

pornography, given that the titles in the folder explicitly 

referenced girls ranging from "6Yo" to "15Yo" engaging in sex acts. 

The government did not introduce any of the images or videos from 

the aMule files into evidence. However, as we have previously 

recognized, "[t]he presence of files with names indicative of child 

pornography -- even absent further proof of what, if anything, 

those files contained -- tends to make it more probable that [a 

defendant] knowingly was involved with child pornography." 

Breton, 740 F.3d at 14.14

14 The aMule downloads folder and its files were not actually 

present on the laptop when recovered. However, the government 

sufficiently established that they were, at some time, through SA 

Plumb's explication of the function of the QuickLook Thumbnail 

cache. It further demonstrated that the aMule program was 

apparently removed from the laptop sometime between July 9, when 

it was known to be running, and the July 14 seizure, when it was 

no longer installed. 
- 33 -

Moreover, the pornographic content on the computer was 

consistent across time and across various tranches of data (aMule, 

QuickLook, etc.), suggesting human -- not automated -- activity. 

The aMule file names reflect the same sources of content shown in 

the browsing history (e.g., Omegle and stickam) and use of similar 

terms (e.g., "jailbait"). The computer activity also reflected an 

absorption with certain subject matters: young girls of a specific

age (10 to 15 years old), bikinis, and young girls from Russia. A

rational jury could conclude that a human with particular interests 

was behind these queries and downloads.

In sum, ample evidence supported the conclusion that a 

human being was responsible for the child-pornography-related 

evidence recovered from the laptop.

2. Evidence linking Royle to the Computer

There is also sufficient evidence to support the jury's 

finding that Royle, and not some other person, was behind the child 

pornography activity at issue. While there is no direct evidence 

that Royle knew the images were on the laptop, "[w]e have 

recognized that knowledge of child pornography 'often is shown 

through circumstantial evidence.'" Levin, 13 F.4th at 100 (quoting 

Breton, 740 F.3d at 17). Here, a reasonable jury could infer that 

Royle knowingly possessed the child pornography from 

circumstantial evidence that he used the computer during the period 

that child pornography browsing activity occurred and that he was 
- 34 -

the only plausible person who could have initiated the wipe 

function.

First, the evidence is sufficient to show that Royle was 

the only adult resident of the home where the computer was found.

It was undisputed that Royle owned and resided at the home and 

that the home's internet service was registered in his name. The 

wifi network for the home was titled with Royle's initials. The 

government also established that Royle was observed at the home 

before the warrant was executed, and that only he and his two small 

children were there when agents arrived during the early morning 

hours of July 14. SA Fife further testified that, based on his 

walk-though of the home, it appeared that only one adult was living 

there. He also explained that Royle needed to call someone to 

pick up the children. Moreover, a reasonable jury could conclude 

that the room in which the laptop was found -- where it was open, 

and positioned on a desk -- was an adult's workspace, and therefore 

Royle's.15 Thus, when a computer was seized from the home, and 

from this room, the jury could reasonably infer that it belonged 

to Royle, the home's only adult resident. 

15 Pictures of this room introduced by the government showed 

the MacBook on top of a desk, next to a printer. Other items 

visible on the desk were various papers, sticky notes, and a stack 

of books, including "The Goldfinch" by Donna Tartt and "On 

Immunity" by Eula Biss. A wooden baseball bat appeared beside the 

desk.
- 35 -

Various evidence from the computer itself further 

confirms that Royle used the laptop with some regularity. Indeed, 

Royle admitted to SA Fife that he used the laptop to access "Citrix 

client" for his work. Forensic evidence also showed that Royle 

had stored some personal documents on the computer. For example, 

filenames in the QuickLook Thumbnail Cache included "Royle 

Boys.jpg," "Royle, George 1400010680.pdf," "GEORGE.docx." The 

MacBook also contained tax-related documents, i.e., 

"2014TurboTaxReturn.pdf" and "GRFund 1099." A reasonable jury 

could further find additional filenames were linked to Royle, such 

as "Notes on SM Deposition.docx," given evidence that he was an 

attorney, and "CHILD SUPPORT AFFIDAVIT.pdf," given evidence that 

he was divorced and had young children. 

There was also evidence of innocent browsing activity 

that the jury could have reasonably linked to Royle. For instance, 

evidence showed browsing activity associated with repair 

facilities in Portland, Maine, the local weather, Portland Sea 

Dogs tickets, baseball cards, questions about childcare, and 

activities to do with children. These queries all match up with 

what the jury knew about Royle -- he owned a home in Portland, had 

two young children, and had an interest in baseball.16 From all 

16 The photo shown to the jury of the room that jurors could 

conclude was Royle's showed a baseball bat among his other 

belongings. 
- 36 -

of this evidence, a reasonable jury could find that Royle used the 

laptop with some degree of regularity, which further supports a 

conclusion that he knew about the illicit images beyond a 

reasonable doubt. 

All of this evidence supports a reasonable inference 

that Royle was the only adult living at the home while the laptop 

-- which he indisputably used -- accessed child pornography. A

reasonable jury could have relied on this evidence in concluding

that Royle was the only plausible user behind that activity. 

Indeed, the forensic evidence showed that the child-pornographyrelated browsing often occurred late at night and early in the

morning. As we have recognized, evidence of child pornography

access during times that only a person occupying a room or a home

would be present tends to show that the primary occupant was

responsible for such activity. See United States v. FigueroaLugo, 793 F.3d 179, 188-89 (1st Cir. 2015) (evidence that illicit 

files were downloaded at around 4:00 a.m. onto computer found in 

defendant's bedroom supported jury's rejection of other-user 

defense theory, where there was "no evidence that anyone else slept 

in the room or was present during the early morning hours"); see 

also United States v. Salva-Morales, 660 F.3d 72, 75 (1st Cir. 

2011) (per curiam) (holding that it was reasonable to infer that

owner of shop in which child-pornography-containing computer was 

found was behind access to illicit files accessed around 2:00 a.m. 
- 37 -

and 9:00 a.m., given that he "locked up the shop at night . . . and 

presumably opened it as well in the morning"). This is a commonsense inference. United States v. Williams, 717 F.3d 35, 40 (1st 

Cir. 2013) ("Jurors have the right -- indeed, the obligation -- to 

use their common sense in evaluating and drawing inferences from 

circumstantial evidence."). 

Finally, the fact and timing of the wipe function 

initiated on the laptop was highly probative of Royle's knowledge 

of the child pornography files. First, "evidence that a person 

deliberately deleted or attempted to delete files containing child 

pornography tends to show that the person was aware of the files 

and their illicit nature." Breton, 740 F.3d at 13; United States

v. Glassgow, 682 F.3d 1107, 1109-10 (8th Cir. 2012) (knowledge 

shown, in part, from deletion of images).17

The evidence reasonably supported a finding that Royle 

was the initiator of this wipe. As discussed above, the government

established that the wipe function began at 6:55 a.m., and that 

Royle was the only adult home at 7:40 a.m. when the agents 

discovered the open computer on a desk upstairs. Although it is 

perhaps conceivable that an unknown, overnight or early-morning

17 The facts in Royle's case provide especially compelling 

indicia of guilt, as the computer user here did not simply put 

files in the trash -- the pornographic content had already been 

deleted once, then a wipe function was initiated to further 

eviscerate the files.
- 38 -

guest initiated the wipe and left without trace prior to the 

agents' arrival, a reasonable jury could well find this theory 

implausible, based on the evidence previously discussed. In 

addition to evidence tending to show that Royle was the only adult 

living in the home and that he used the laptop, evidence showed

that the wipe function would take approximately 13 hours to 

complete. Royle's argument that a transitory guest would have 

left the laptop unattended in Royle's home to complete this process 

defies common sense. See, e.g., United States v. Shaw, 670 F.3d 

360, 366 (1st Cir. 2012) ("[J]urors are neither required to divorce 

themselves from their common sense nor to abandon the dictates of 

mature experience" (quoting United States v. Ortiz, 966 F.2d 707, 

712 (1st Cir. 1992))).18 

3. Pothier: Other Plausible Users Theory

Lastly, to the extent Royle argues that our decision in 

Pothier is "materially identical" to his case and compels reversal, 

18 Royle argues that the wipe function was a perfectly innocent 

application to run. But, for the reasons discussed, a reasonable 

jury could supportably conclude that under these circumstances it 

evinced consciousness of guilt, rather than routine maintenance. 

United States v. Ortiz, 966 F.2d 707, 712 (1st Cir. 1992) ("When 

assessing sufficiency challenges in criminal cases, we have 

remarked, time and again, that factfinders may draw 

reasonable inferences from the evidence based on shared 

perceptions and understandings of the habits, practices, and 

inclinations of human beings."). This is particularly so given 

the time-intensive nature of the process, the testimony that many 

files on the computer had already been deleted once, and that the 

wipe function, if completed, would have prevented forensic 

examiners from recovering the data.
- 39 -

he is mistaken. In Pothier, we reversed a child pornography

conviction, holding that the evidence in that case was insufficient 

to support a finding that the defendant knowingly possessed child 

pornography. Pothier, 919 F.3d at 144, 148.

The defendant in that case, William Pothier, owned a 

laptop that was found to contain child pornography. The laptop 

was discovered by police in an Exeter, New Hampshire, apartment

where two adults other than Pothier received mail. Id. at 146-

47. One of these two other people -- Josephine Pritchard -- owned 

the apartment. Id. at 146. There was no additional evidence about 

the third adult. Id. Pothier also had a New York apartment where 

he would spend time, and owned other property in New Hampshire, 

where his car was registered. Id.

Police seized Pothier's laptop after initiating a search 

of the residence. When police arrived to execute the search, they 

repeatedly knocked on the door, and Pothier did not respond to the 

knocking for some time. Id. at 145. After entering the apartment, 

the police found the laptop in the living room of the residence. 

Id. at 144. The owner of the apartment, Pritchard, arrived during 

the search. Id. at 146. 

Like the laptop here, Pothier's computer was not 

password protected. Id. at 145. Although Pothier admitted to 

owning the laptop and indisputably "used [it] on at least a handful 

of occasions," it was unknown "whether he left the laptop at the 
- 40 -

[residence in question] when he was elsewhere." Id. at 146-47. 

At trial, the prosecution's "sole theory" was that "Pothier must 

have known that the illicit material was on his laptop because he 

was the only person who otherwise used [it], and therefore must 

have been the person who downloaded the pornography." Id. at 147.

In reversing Pothier's conviction on that theory, we 

explained that the government's evidence for the "knowing" element 

required "guesswork" between two "plausible" scenarios. Id. at 

147. On the one hand, it was plausible that Pothier downloaded 

the child pornography but "decided to forgo password protection 

and then left the laptop in the living room of a residence at which 

two other people received mail." Id. On the other hand, it was 

also plausible that one of the two other adults "used the readily 

available laptop during Pothier's frequent absences to download 

the . . . child pornography." Id. Without more evidence to 

reasonably support a finding as to "which scenario describe[d] 

what happened," we held that the jury's acceptance of the former 

theory was necessarily based on "guesswork." Id. As we explained, 

"[g]uilt beyond a reasonable doubt cannot be premised on pure 

conjecture." Id. (quoting Stewart v. Coalter, 48 F.3d 610, 615 

(1st Cir. 1995)) (alterations original). But "pure conjecture" is 

not what we have here.

Royle seems to suggest that Pothier created a brightline rule that, where "someone other than the defendant had the 
- 41 -

opportunity to use a [child-pornography-containing] computer," the 

government must affirmatively offer evidence "rul[ing] out" this 

other person or directly prove the defendant was using the computer 

when the illicit material was accessed. Here, Royle contends that 

other plausible "someone[s]" include the computer's automated 

processes, his ex-wife, the "unknown white female" observed 

outside of his house, or a burglar. He contends that Pothier

requires reversal in this case because the government did not 

affirmatively "rule out" these other potential suspects. But Royle 

misreads things. 

Our decision in Pothier created no such rule and 

expressly disclaimed any attempt to "make new law." Pothier, 919 

F.3d at 149. The law remains that "[t]he government need not 

present evidence that precludes every reasonable hypothesis 

inconsistent with guilt in order to sustain a conviction." United

States v. Hernández, 218 F.3d 58, 64 (1st Cir. 2000) (quoting 

United States v. Loder, 23 F.3d 586, 590 (1st Cir. 1994)); United

States v. Naranjo-Rosario, 871 F.3d 86, 92–93 (1st Cir. 2017) ("[We 

need not] be convinced that the government succeeded 

in eliminating every possible theory consistent with the 

defendant's innocence." (quoting United States v. Troy, 583 F.3d 

20, 24 (1st Cir. 2009))). Rather, the government need only prove 

each essential element of a charge beyond a reasonable doubt.

United States v. Rodríguez-Vélez, 597 F.3d 32, 39 (1st Cir. 2010). 
- 42 -

For the reasons already discussed, a reasonable jury could conclude 

that the government did so here. 

Even if we assume, arguendo, that Royle's theories of 

other persons using the laptop to access child pornography are 

"plausible" on their face, the weight of the government's evidence 

here is markedly stronger than the "surprisingly incomplete 

record" in Pothier. See 919 F.3d at 147, 149. Unlike in Pothier, 

here, the government presented evidence that Royle was the only 

adult resident of the house, the laptop was found in a more private 

space than a living room, and the laptop was used to access child

pornography during hours in which a resident of the house would 

presumably be home alone. The wipe-function evidence moves the 

needle to point even further away from a "plausible" coin-toss to 

Royle, and toward beyond a reasonable doubt, given the timing of 

when it was run.19 Indeed, in Pothier, we noted that the absence 

of any similar attempt by the defendant to destroy the laptop's 

19 We note that a rational jury would have been well-supported 

in rejecting alternative theories about the wipe as implausible or 

overly speculative. We refer to our discussion above as to Royle's 

argument that the laptop itself could have been the culprit. The 

notion that a person's ex-wife would briefly show up to his house 

at 6:00 a.m. to initiate a 13-hour wipe-function and then leave is 

implausible. Similarly, the notion that the "unknown white female" 

was behind the wipe, to the extent she was a different person, is 

too speculative to disrupt this verdict. The suggestion that a 

burglar, who periodically entered a dwelling over a period of 

months to download pornography, broke back into that home to delete 

evidence of his activity strains common sense. Although Royle 

does not specifically argue that any of these other potential users 

was behind the wipe function, his argument necessarily implies it.
- 43 -

child pornography -- despite perhaps having the time and means to 

do so -- undermined the sufficiency of the government's scant 

evidence. See Pothier, 919 F.3d at 147-48.20 In sum, the

combination of these factual distinctions removed the jury's task 

from the "guesswork" apparent in Pothier.

We conclude by noting that we agree with the district 

court's observation that "[t]he prosecution could have done more 

to investigate and demonstrate the laptop's provenance, usage, and 

location," and "other adults' access to the house." United States

v. Royle, No. 2:18-cr-165-JNL, 2020 WL 2617133, at *9 (D. Me. May 

22, 2020). However, this perspective alone does not allow us to 

disturb the jury's verdict. See, e.g., Salva-Morales, 660 F.3d at

75. Here, the government did enough. "Viewing the record as a 

whole and using their common sense," a rational jury could have 

found Royle guilty beyond a reasonable doubt. Williams, 717 F.3d 

at 40.

IV.

AFFIRMED.

20 Pothier took about 15 minutes to answer the door to allow 

the police in; we noted that he did not run a wipe function or 

hide the computer during this "lengthy delay." Pothier, 919 F.3d 

at 147-48.