### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-50602

UNITED STATES OF AMERICA, Plaintiff - Appellee
v. JOHN RAY EDWARD TERRELL, also known as John Ray Terrell, Defendant - Appellant

Appeal from the United States District Court for the Western District of Texas

Before BENAVIDES, OWEN, and SOUTHWICK, Circuit Judges. PER CURIAM: Before the Court is Defendant John Ra y E dward Terrell’s (“DefendantAppellant Terrell”) appeal of his conviction for one count of p r o d u c ing child pornography and sexually exploiting a child, in violation of 18 U.S.C. § 2251(a) & (e), and one count of knowingly possessing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B), 2252A(b)(2), and 2256(8)(A). We AFFIRM.

FA C T UA L AN D P R O C E D U R A L BA C K G R O U N D On June 12, 2007, a federal indictment charged Defendant-Appellant Terrell with producing child pornography in violation of 18 U.S.C. § 2251 (a) and (e) and with knowing possession of child pornography, in violation of 18 U.S.C. §§ 2252(a)(5)(B), 2252A(b)(2), and 2256(8)(A). The trial tes t i m o ny established U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Novembe r 5, 2 012 Lyle W . Cayce Clerk Case: 11-50602 Document: 00512043586 Page: 1 Date Filed: 11/05/2012No. 11-50602

the following: The victim was ST, the daughter of Suzanne Terrell and John Ray Doby Terrell (“John Terrell”). Defen d a n t-Appellant Terrell is John Terrell’s father and ST’s grandfather. During the summer of 2003, Defendant-Appellant Terrell took pornographic photos of ST while she was left in his care. When ST later reported the abu s e t o her mother, Suzanne Terrell contacted Child Protective Services. An i nv e s t igation was launched, and police conducted a search of Defendant-Appellant Terrell’s property. A floppy disk was recovered with files related to Defendant-Appellant Terrell’s business, and a file referring to “Young Strawberry Blondes, Young Lolitas, TV, Underage Models, Preteen X, [and] Lolita Virgins.” Following the initial search, John Terrell went to his father’s home to hide
weapons he knew were on the property. John Terrell had access to his father’s h o me because he assisted his father in his father’s business. In attempti n g t o hide a gun in a concealed compartment, John Terrell discovered a laptop located therein. John Terrell discovered pornographic images of ST on the computer, as well as o t h er child pornography. He informed police, who performed a second search and seized the laptop. John Terrell also provided the police with a second laptop he recovered from a trailer on the property. In 2005, police learned that Defendant-Appellant Terrell had fled the country. The police located him in Ecuador and he was arrested in September 2010. He was thereafter returned to the United States and placed in the custody of United States marshals at the airport. At trial, John T e rr e l l identified the location of the photos as DefendantAppellant Terrell’s bedroom. He testified that he, John Terrell, had not taken the photographs or put th o s e p h otographs on the laptop. He further testified that he did not use Defendant-Appellant Terrell’s laptops prior to discovering them. ST testified about the photographs, identifying herself therein and Defendant-Appellant Terrell as the photographer. She further testified that she

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had asked Defendant-Appellant Terrell about the photographs and that he had informed her that he had deleted them. A Secret Servi c e Agent who had conducted a forensic examination of the laptops testified that he f o u n d the images of S T i n t h e computer’s “trash can,” and that they had been put there

soon after the photos of ST had been taken. The Agent further testified that, in addition to the images of ST, he found 751 images of child pornography on the first laptop, and 137 images of child pornography on the s e c o n d l a p top. The Agent opined that the images were likely obtained from the internet, and he testified that the laptops had been used to visit sites that advertised or allowed

users to download child pornogr aphy. Evidence also established that the laptops were manufactured outside of Texas. At the close of the prosecution, Defendant-Appellant Terrell moved for a j u d g m e n t o f acquittal, which the district court denied. A jury convicted Defendant-Appellant Terrell on both counts. The di s t rict court sentenced Defendant-Appellant Terrell to 360 months of imprisonment on Count One and 120 months o f imprisonment on Count Two, the sentences to be served consecutively. This timely appeal followed. ANA LY S I S Defendant-Ap p e l l a nt Terrell raises a number of challenges to his conviction. First, he argues that the government must, and did not, show that he knew or shou l d h av e known the laptop which contained the images of ST traveled in interstate commerce. Second, he argues that the distric t court wrongly denied his motion for acquittal because there was no evidence that he transferred t h e i m ages of ST to the laptop, and that a jury instruction stating the government did not need to prove the identify of the individual who placed the images on the computer was erroneous. Thir d , h e a rgues that the government introduced insufficient evidence to show he knowingly posse s sed child pornography. For the reasons stated below, his arguments are unavailing.

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I. Knowledge of Interstate Commerce First, Defendant-Appellant Terrell argues that the district court erred in denying his motion for acquit t al because the government failed to introduce

e vi dence showing that he knew or should have known that the pornographic images of ST were produced on a camera or computer that traveled in interstate

commerce. The government argues that it is not necessary to prove knowledge of this particular interstate commerce element under 18 U.S.C. § 2251(a). This court reviews a district court’s denial of a motion for acquittal de novo. United States v. Bennett , 664 F.3d 997, 1 0 1 1

– 1 2 ( 5 th Cir. 2011). The Court finds the government’s reading more persuasive and holds that § 2251(a) does not require knowledge of the interstate nature of the materials used to produce the images of ST. Under 18 U.S.C. § 2251(a), the government must prove that the defendant (1) employed, used, persuaded, induced, enticed, or coerced a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct; and (2) a jurisdictional nexus. 18 U.S.C. § 2251(a) (West 2003). As to the jurisdictional nexus element, it may be satisfied: [(a)] if s u c h p e rson knows or has reason to know that such visual d e p iction will be transported in interstate or foreign commerce o r mailed, [(b)] if that visual depiction was produce d u s i n g materials that have been mailed, s h i pped, or transported in interstate or forei gn commerce by any means, including by computer, or [(c)] if such visual depiction has actually been transported in interstate or foreign commerce or mailed.
I d

. The Defendant-Appellant argues that the knowledge element—“knows or has reason to know”—applies to each of the three possible ways that the element can be satisfied. 1

De fen dant -Ap pel lant Terr ell conc ede s that the evide nce dem ons tra ted that the lapt op 1 had inde ed traveledininter st ate com me rce . 4 Case: 11-50602 Document: 00512043586 Page: 4 Date Filed: 11/05/2012No. 11-50602

Nevertheless, the more natural reading of this statute is that knowledge must be proven only as to the first jurisdicti o n a l h o o k

. See Flores-Figueroa v. United States , 556 U.S. 6 4 6 , 6 5 2 (2009) (“The manner in which the courts ordi n a ri l y interpret criminal statutes [should be] fully consistent with

. . . ordinary English usage.”); see also United S t a tes v. Betancourt , 586 F.3d 303, 308

–0 9 ( 5 th C ir . 2 0 0 9) (ap p lyin g F lo res-Figueora and adopting a “common-sense, natural reading” of a statute). Here, the statute’s repetition of “if” indicates that each clause following the “if” is distinct. T h e p h r a s e “knows or has reason to know” follows the first “if,” implying that the phrase is only to be applied to the first clause and not to the latter two. Fi n a l l y, the use of the disjunctive “or” further indicates that the “knows or has reason to know” applies only to the first item in the list. The Defendant-Ap pellant cites no authority for his argument that the “knowl e d ge” r e quir e m e nt ap p li e s to all thr e e j urisdictional elements, and indeed,

an identical argument was rejected by the Eleventh Circuit. In United States v. Smith , the Eleventh Circuit stated that th e “ m o s t natural reading of this provision” is that “[o] n l y t h e f irst basis for jurisdiction requires any proof of mental state.” See459 F.3d 1276, 1289 (11th Cir. 2009). Moreover, and importantly , c o urts have been consistent in not applying the mens rea of statutes to federal jurisdictional elements, unless the language of the statute requires such a result. For example, in United States v. Yermian , in a prosecution for making false statements to a federal officer in violation of 18 U.S.C. § 1001, the Supreme Court held that the “knowingly” and “willfully” intent requirement s di d not ap p ly to the federal jurisdictional element— i.e. , that the false statement was made to a federal officer. See 468 U.S. 63, 74–75 (1984);

see also United States v. Feola , 420 U.S. 671, 693–96 (1975) (finding that federal conspiracy statute did not require knowledge that intended victim of conspiracy

was a federal officer because conduct is not “any less blameworthy

. . . because

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the participants are unaware which body of law they intend to violate”). These holdings have been consistently reaffirmed in a v ariety of contexts

. See, e.g. , United States v. Jimenez , 256 F.3d 330, 338 n .9 (5th Cir. 2001) ( defendant not required to have knowledge of building’s effect on i n t e r s t ate commerce under federal arson statute); United States v. Jackson , 978 F.2d 903, 909–11 (5th Cir. 1992) (defendant did not need to know victim was transported across state lines under federal kidnaping statute); United States v. Dancy , 861 F.2d 77, 81 (5th Cir. 1988) (in felon in possession of a firearm prosecution, d e f e n dant not required to know that firearm traveled in interstate commerce); United States

v. Driggers , 559 F.3d 1021, 1024–25 (9th Cir. 2009) ( mens rea does not apply to i n t e r s tate travel element of federal murder for hire statute); United States v . Campa , 529 F.3d 980, 1006–07 (11th Cir. 2008) (no mens rea for jurisdictional element in federal conspiracy to murder s tatute); United States v. Cooper , 482 F.3d 658, 664–65 (4th Cir. 2007) (intent element di d n o t apply to requirement that pollution b e into navigable waters to sustain conviction); United States v. Wright , 363 F.3d 237, 244 (3d Cir. 2004) (no requirement that defendant know stolen check crossed state lines); United States v. Quarrell , 310 F.3d 664, 670–74 (10th Cir. 2002) (defendant convicted for digging for archaeological artifacts did not need to know he was excavating on federal land). Accordingly, § 2251 does not require that a defendant know the interstate nature of an instrument on which a depiction of child pornography is produced. Consequently, th e district court did not err in refusing to grant his motion for acquittal on this ground. II. Transferring Images to the Computer (Count One) Next , Defendant-Appellant Terrell presents a pair of arguments related to his conviction under Count One for sexual exploitation of a c h i l d , under 28 U.S.C. § 2251(a), which both turn on the same issue of statutory interpretation.

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1. Motion for Acquittal First, the Defe n d a nt-Appellant argues that the district court erred in denying his motion for acquittal because there is insufficient evidence showing that he produced or reproduced the images of ST using materials that traveled in interstate commerce. He argues that the government failed to show that the

camera us e d to take the photos traveled in interstate commerce and that the government also failed to prove that he was t h e p erson who reproduced the images on his laptop. In response, the government argues that it is unnecessary under 28 U.S.C. § 2251(a) to p r o v e that the Defendant-Appellant personally transferred the images of ST to t h e laptop, or alternatively, that there is sufficient evidence showing that he actually transferred the images. The Court reviews a district court’s denial of a motion for acquittal de

n o v o . Be nnett , 664 F.3d at 1011–12. On motion of a defendant, a court “ m u s t enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.” F E D

. R. C R I M

. P. 29(a). “When reviewing the sufficiency of the evidence, this Court views all evidence, whether circumstantial or direct, in the light most favorable to the [g]overnment[,] with all reasonable inferences to b e m a d e in support of the jury’s verdict.” United States v. Moser , 123 F.3d 813, 819 (5th Cir. 1997). The Court must ask “whether any reasonable trier of fact could have found that the evidence established the essential elements of the crime beyond a reasonable doubt.” United States v. Ortega Reyna , 148 F.3d 540, 543 (5th Cir. 1998). The evidence need not exclude every reasonable hypothesis of innocence or be completely inconsistent with every conclusion except guilt, so l o n g as a reasonable trier of fact could find that the evidence established gu i l t beyond a reasonable doubt. United States v. Faulkner , 17 F.3d 745, 768 (5th Cir. 1994). However , where the evidence tends to give “equal or nearly equal circumstantial support” to guilt and to innocence, reversal is required. United States v. Lopez , 74 F.3d 575, 577 (5th Cir. 1996).

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As described above, § 2251 requires th e government to prove that a defendant (1) employed , used, persuaded, induced, enticed, or coerced a minor to engage in sexually explicit conduct for the purposes of producing a visual depiction of such conduct; and ( 2 ) a j u ri s dictional nexus. 18 U.S.C. § 2251(a). The jurisdictional nexus is satisfied : [(a)] if such person kno w s o r h as reason to know that such visual depiction will be transported in interstate or f o r e i gn commerce or mai l e d , [ (b)] if that visual depiction was produced using materials th a t have been mailed, shipped, or transported in interstate or foreign commerce by a n y means, including by computer, or [(c)] if such visual depiction has actually been transported in interstate or foreign commerce or mailed. Id. Similar to the phrase “knows or has reaso n t o know,” the phrase “such person” appears only in the first clause. Accordingly, the same reading t hat compels the conclusion that “knows or has reason to know” does not apply to the final two clauses also compels the conclusion that “such person” s i mil arly applies only to the first clause, and not the latter two. Accordingly, the language of the statute indicates that there is no requirem e nt th at the individual who directs the minor be the same person who produces the image on the item that has traveled in interstate commerce. In an unpublished case, the Sixth Circuit adopted a similar position while evaluating § 2251(a)’s last jurisdictional hook: that the depiction be transported in interstate commerce. In United States v. Tidwell , while comparing § 2251 and § 2252 for purposes of a Blockburger double jeopardy analysis, the court stated that under § 2251(a) the government need not prove that the defendant who is charged with production of child por n o gr aphy also be the same person who transported it in interstate commerce. See 917 F.2d 1305, at *2 (6th Cir. 1990). 2

See also Uni ted Sta tes v. Fulle r , 77 F. App ’x 371, 380 n. 10 ( 6th Cir. 200 3) (r es tat ing 2 holding f

rom Ti dw el l). 8 Case: 11-50602 Document: 00512043586 Page: 8 Date Filed: 11/05/2012No. 11-50602

Nevertheless, even under the Defendant-Appellant’s interpretation of the statute—where the defendant who exploited the child must also be the person who produced the images on the computer—at the time of the defendant’s motion, a “reasonable trier of fact could have found that the evidence established the essential elements of the crime beyond a reasonable doubt.” Ortega Reyna , 148 F.3d at 543. The Defend a n t

- Ap p e l lant does not seriously contest that the government proved that he persuaded and coerc e d S T into sexually explicit conduct for the purpose of producing visual depictions of that conduct. Nor does 3 he dispute that the laptop that contained the images of ST traveled in interstate

commerce. It is also undisputed that produ c tion of child pornography for
purposes of this statute includes copying the images onto a computer hard drive

or other digital storage device. Se e United States v. Dickson , 632 F.3d 186, 188–90 (5th Cir. 2011) (finding that production included copying images onto a CD in prosecution for possession of child porno gr a p h y under 18 U.S.C. § 2252(a)(4)(b)). Thus, if the Defen d ant

- Ap p ellant transferred the images onto the laptop, his conduct satisfies the jurisdictional nexus ev e n u n d e r the interpretation of the statute most favorable to him.

He do esaccus e his s on, John Terr ell, of actually being the pers on wh o mo les ted and 3 too k the phot ograp hs of ST, bizarr ely in reli ance on ST’s st atem ent that she pos ed wi th a “one

leggedd og,” w hich the De fen dant -Ap pel lant ass ert s belon ged to John Ter rell

. Never thel es s, overw helm ing evide nce sup por ts the jury’s find ing that De fen dant -Ap pel lant Terr ell too k the phot os of ST. ST tes tif ied that De fen dant -Ap pel lant Terr ell p e r s u ade d her to tak e off her clot hing and act in a se xual man ner wh ile he phot ograp hed her. ST ide ntif ied the phot ograp hs fou nd on the De fen dant -Ap pel lant’ s com put er as the sam e phot os she rem embers him tak ing of her. Dr

. Ann Sim s, a sp ecialis t in se xual abus e exam s on child ren wh o exam ined ST in 2004, tes tif

ied that she belie ved ST’s st ory wa s cr e d ible and that it did not se em coac hed or fal sif ied

. In convic ting the def enda nt unde r Sec tio n 2251( a), the jury app arently belie ved ST’s tes tim o ny ab o u t the se xual abus e, a cre dibi lity det erm inati on that canno t be ques tio ned on app eal. See Uni ted States v. Mi llsa ps , 157 F.3d 989, 994 (5t h Cir. 1998) (“ [I ] t i s t h e so le pr ovince of the jury, and not wi thin the pow er of this Court , to we igh conf lict ing evide nce and evaluat e the cre dibility of wi tnes se s. ”) ; Uni ted States v. Sanc hez , 961 F.2d 1169, 1173 (5t h Cir. 1992) (s tat ing that the “as se ss me nt of the we ight of the evide nce and the det erm inati on of the cre dibi lity of the wi tnes se s is so lely wi thin the pr ovinceof t he jury”)

.
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Although owner s h i p alone is not sufficient to prove that the DefendantAppellant transferred the images to the laptop, there is no evidence in the record showing that any other individuals had access to the computer in 2003 when the images of ST were undisputably stored on his computer. Compare United States

v. Winkler , 639 F.3d 692, 695–701 (5th Cir. 2011) (affirming conviction for possession of child pornography where ther e w as no evidence of third-party

access and where circumstantial evidence suppor t ed finding that defendant knowingly possessed images), with United States v. Moreland , 665 F.3d 137 &

n . 7 , 151–54 (5th Cir. 2011) (reversing conviction for possession of ch i l d pornography where evidence showed a third party accessed computer around time of pornography download). It is u n di sputed that the laptop belonged to Defendant-Appellant Terrell and that it was found hidden under a bookshelf in

an area he had control over. The laptop was r e gistered solely to DefendantAppellant Terrell, and there is no evid e n c e i n the record showing that anyone else ever had access to the laptop, aside from John Terrell when he found it and contacted the police. John Terrell also testified that he had seen the DefendantAppellant using the laptop. The strongest evidence in favor of the jury’s verdict is ST’s testimony, which is corroborated by the forensic evidence. During her testimony, ST stated that the Defendant-Appellant told her soon after he took pictures of her in the

summer of 2003 that she should not worry because he had dele t e d t h e m. According to the forensic examiner, the images of ST were placed in the laptop’s trash folder on June 7, 2003. Again, the Defendant-Appellant offers no explanation for how the images of ST, which ST testifies that he took, ended up

on his laptop computer within days of him taking the photos, and how he would kn o w t h e i tems had been deleted, if he had not transferred the photos and deleted them himself. Although John Terrell had access to both laptops during t h e p e r i o d b e t w e e n f i n d i n g t h e m a n d r e t u r n i n g t h e m t o t h e

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Defendant-Appella n t’s house, the images of ST had been transferred nearly a year earlier. Further, John Terrell testified that he did not take the images of ST or transfer them to the computer, and that he found the images of ST on the

c o m p u t e r . It is pure speculation to think that John Terrell put the images on the computer. See Faulkner , 17 F.3d at 768 (stating that the evidence need not

e x clude every hypothesis of innocence). The jury seemingly rejected th i s argument in convicting Defendant-Appellant Terrell on Count Two for possession of child pornograph y , a n d i t would be reasonable to think that the jury would have rejected the a r gu m e n t as to Count One as well. See United States v. Pruitt , 638 F.3d 763, 767 (11th Cir. 2011) (jury free to reject alternative

reasons for presence of child pornography on computer); United States v. Kain , 589 F.3d 945, 949–50 (8th Cir. 2009) ( affirming conviction although testimony showed that a Trojan virus may have been responsible for child porno gr a p h y files). 4 Other evidence found on the Defendant-Appellant’s laptop computers and in his desk supports the conclusion that th e D ef e n d ant

- Ap p ell ant tr an s f erred the images of ST. As explained later, the evi d e n c e s upporting Count Two—possession of child pornography—is very strong, and the f a ct that the Defendant-Appellant transferred those other images of child pornography to his laptops increases the likelihood that he also transferred the images of ST. See United States v. Grimes , 244 F.3d 375, 378–84 (5th Cir. 2001) (stating that other evidence of sexual interest in children is “highly relevant” to guilt in prosecution under Section 2251(a), but denying admission of evidence due to prejudice); United States v. Wilder , 526 F.3d 1, 6–10 (1st Cir. 2008) ( di s c u s sing how

See also Schen e , 543 F.3 d a t 639–40 (af fir mi ng convic tio n for pos se ss ion of child 4 por nograp hy wh er e o n ly def enda nt and his wi fe had acc es s to com put er) ; Uni ted States v. Irvi ng, 452 F.3d 110, 122 (2d Cir. 2006) (r eject ing argu me nt that a thir d par ty may have dow nload ed im ages wh ere def enda nt unable to off

er any evide nce sho wi ng thir d party had regula r acc es s to com put er)

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evidence that defendant used computer for other child pornography-related conduct increased likelihood that defendant knowingly possessed images on computer). The first l a ptop contained an additional 751 images of child pornography, beyond those of ST, and it had also visited 283 websites marketing child pornography. The second laptop also contain e d 1 3 7 images of child
p o rnography and it had visited a large number of websites marketing c h i l d pornography. Finally, a floppy disk found in the Defendant-Appellant’s desk contained letters written by the Defendant-Appellant and files referring to child pornography. Thus, the evidence strongly pointed to the Defendant-Appellant using his computers to store other images of child pornography. Accordingly, the Court finds that § 2251(a) does not r equire that the individual who induces the minor to engage in sexually explicit activities for the
purposes of producing depictions of such b e t h e same individual who produces the depictions on an item that has t r av e l ed in interstate commerce. Further,

even if § 2251(a) did require such unity of perso n , t h e government presented sufficient evi d e nce upon which a jury could find Defendant-Appellant Terrell produced the depictions of ST on the laptop. Consequently, the Court finds no

error in the district c o u r t’s denial of the Defendant-Appellant’s motion for acquittal on this ground. 2. Jury Instructions Second, the Defendant-Appellant argues that the di s t ri c t court erred by instructing the jury in response to the jury’s third note (“Jury Note 3”) that the government did not need to prove who produced the images of ST found on the laptop computer. Because the Court finds that the statute does not require that Defendant-Appellant Terrell have produced the images to the laptop, the Court finds no error in the district court’s response to Jury Note 3. 5

In add itio n, D efe ndant -Ap pel lant Ter rellconce des that he mus t sho w p lain err or in 5 the dis tri ct court’s ins tru cti on, due to his fail ure to tim ely objec t to the jury ins tru cti ons . See 12 Case: 11-50602 Document: 00512043586 Page: 12 Date Filed: 11/05/2012No. 11-50602

III. Possession of Child Pornography (Count Two) Finally, Defendant-Appellant Terrell offers two arguments related to his convict i o n in Count Two for possession of child pornography, under 18 U.S.C. § 2252A(a)(5)(B). First, he argues that there was insufficient evide nce presented at trial showing that h e knowingly possessed images of child pornography. Second, he argues that the district cou r t ’ s response to Jury Note 3 was an incorrect statement of the law. 1. Motion for Acquittal Count Two of the indictment charges Defendant-Appell a nt Terrell with possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Under this provision, a “person who

. . . knowingly possesses any . . . computer disk

. . . that c o n t ai n s a n i mage of child pornography that has been

. . . transported in interstate

. . . commerce by any means, including by comp u t e r,

o r that was produced using materials that have been

. . . trans p o r t e d i n i n t e r s t a t e . . . commerce by any means, including by computer,

. . . shall b e punished

. . . .” 18 U.S.C. § 2252A(a)(5)(B) (West 2003). Thus, the government must prove that a defendant (1) “knowingly possessed material that contained

Uni ted States v. Di az , 637 F.3d 592, 601 (5t h Cir. 2011) (“Wher e a par ty fails to off er a tim ely objec tio n to j ury ins tru cti ons , clai ms of error are review ed for plai n err or. ”)

. He canno t me et that burd en, even if the ins tru cti on wa s err oneo us. Firs t, the st atut e doe s not clea rly requ ire that sam e individual indu ce the m i nor as pr oduc e the dep ict ion to an ite m in inte rs tat e com me rce . See Uni ted States v. Carr il lo , 660 F.3d 914, 930 (5t h Cir. 2 0 1 1 ) (p ote ntial err or, not plai n err or wh ere law is uncle ar)

. Sec ond, for the reas ons st ated above, the we ight of the evide nce st rongly sup por ts an infe renc e that D e f e n d ant- App ellant Terr ell tra nsf err ed the im ages of ST to the lapt op, and t h us he canno t sho w that the pur ported err or “af fec ted the outc om e of the dis tri ct court pr oce edi ngs. ” See Uni ted States v. Mude kunye , 646 F.3d 281, 289 (5t h Cir. 2011) (quo tat ion om itt ed) ; see also Neder v. Uni ted States , 5 2 7 U .S

. 1, 9-10 (199 9) (“ [W] e have rec ognized that im pr ope rly om itt ing an elem ent fr om the jury can eas ily be analogize d to im pr ope rly ins tru cti ng the jury on an eleme nt of the off ens e, an err or w hich is subjectt o h arm les s- err or analys is. ”)

. Finally, De fen dant -Ap pel lant Terr ell’ s argum ent that the res pons e to the jury note cons tit uted a dir ect ed verdict is wi thou t me rit

. See, e. g. , Uni ted States v

. Sim kani n , 420 F.3d 397, 403–09 (5th Cir. 2005) (c oncl udin g a res pons e to jury note is not a dir ect ed v e r dic t wh ere the cour t “did not expli cit ly dir ect a verdict on an es se ntial elem ent of the off

ens e”)

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an image of child pornography” and (2) a jurisdictional nexus . Moreland , 665 F.3d at 149 (stating elements of offense). This jurisdictional nexus may be shown if the images are contained on materials that t r av e l e d in interstate

commerce or if the images themselves were transported in interstate commerce. 18 U.S.C. § 2252A(a)(5)(B); United States v. Runyan , 290 F.3d 223, 239 (5th Cir. 2002). The Defendant-Appellant argues that the district court erred in denying his motio n for acquittal on this count. This Court reviews the district court’s denial of a motion for acquittal de novo, Bennett , 664 F.3d at 1011–12, and “all evidence, whether circumstantial or direct, [i s vi e w ed] in the light most f avorable to the [g]overnment[,] with all reasonable inferences to be made i n support of the jury’s verdict,” Moser , 123 F.3d at 819. As to the elements of the crime, first, it is not disputed that the images on the computer were of child pornography, or that a person viewing those images would understand them to be child pornography. Second, Defendant-Appellant Terrell concedes tha t t h e government proved the jurisdictional nexus because it showed that the images were downloaded from the internet or were contained

on a computer that traveled in interstate commerce. The evidence indicates that many—if not all—of th e i m a g e s (with the exception of those of ST) were d o w nloaded from the internet, which is sufficient to satisfy the jurisdictio n a l requirement. See Runyan , 290 F.3d at 239 (holding that transmission of images

over the internet satisfies interstate comm erce element). Additionally, the images were produced on a computer made in California. As noted earlier, it is accepted law that production of an image includes co p ying the image onto a computer hard drive. See Dicks o n , 6 3 2 F.3d at 188–90. Thus, copying the images onto the laptops satisfies the interstate commerce requirement as well. Therefore, the only disputed eleme n t i s whether Defendant-Appellant Terrell “knowingly possessed” the images of child pornography that were found

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on his laptop computers. As explained by this Cour t i n M o reland when analy z i n g Section 2252(a)(5)(b), the term “knowingly possesses” is interpreted based on its “ordinary, everyday meaning.” See665 F.3d at 141–42 (quotation

m a rks omitted). “Possession [of child pornography] may be either actual or constructive.” Id. at 149. Because the Defendant-Appellant did not have actual possession of th e i mages, the government must show constructive possession. Id. at 150. “Constructive possession is the ownership, dominion or control over

an illegal item itself or dominion or control over the premises in which the item is f o u nd.” Id. at 150 (quotation marks omitted). Where a residence is jointly occupied—as here—the discovery of contrab a n d a l o ne is insufficient to prove possession, and instead, the government “m u s t present additional evidence of the defendant’s knowing dominion or control of the contraband, besides the mere joint occupancy of the premises, in order to prove the defendant’s c o n s t ructive possession.” Id. at 150. Thus, as Moreland explains, “[a] conviction based upon constructive possession will be upheld only where the pros e c u t i on has proven that there is something else (e.g., some circumstantial indicium of possession) [ ] besides mere joint occupancy that supports at least a plausible inference that the defendant had knowledge of and access to the [ ] contraband.” Id. at 150 (quotation marks omitted). Here, that standard is plainly met. The laptop computers were found in

an area over which Defendant-Appellant Terrell had control and a n u m b e r o f pieces of circumstantial evidence indicate that his possession was knowing. The first lap t o p contained 751 images of child pornography in an encrypted zip folder, four naked photos of ST that had been moved to the trash folder in June 2003, and an internet b r o w s e r history showing that the computer had visited 283 websites that market or sell child pornography. The sec o n d l ap top contained 137 images of child pornography, many of which contained website addresses on

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them, and the internet history on that computer also showed that it had browsed a large number of websites advertising or selling child pornography. The first laptop was registered only to Defend a nt

- Appellant Terrell and t h e s e c ond laptop was registered to him, to his wife, and to John Terrell (his son). John Terrell testified that both laptops belonged to the Defe n d a n tAppellant and other evidence supported this ass e r t i o n . John Terrell testified that he had seen the Defendant-Appellant using the first laptop and that he had helped the Defendant-Appellant purchase the second laptop online many years earlier. There is no evidence in the record that other individuals ever used these laptops or exercised any control o v e r t h e m , aside from John Terrell when he discovered them in 2004. Again, the only factual argument that Defendant-Appellant Terrell offers is speculation that John Terrell actually was responsible for downloading all of the images of child pornography to his computer. He also argues that because John Terrell is skilled at computers, his son could have planted the photos. 6 John Terrell undisputably had access to both laptops during the period between f

i n di n g t hem and the police instructing him to return them to the Defendant-Appellant’s house. John Terrell testified, however, that he placed no child pornography on the computers and that he did not take the images of ST

or transfe r t hem to the computer. Further, he testified that the computers already contained the images of child pornography when h e found them, including the images of ST. It is pure sp e c u l a t i o n that John Terrell put the i m a g e s on the computers, and the jury was entitled to credit John Terrell’ s testimony that he found the files on the co m p u ter. See Sanchez , 961 F.2d at 1173 (th e “ a s s e ssment of the weight of the evidence and the determination of the credibility of the witnesses is solely within the pr o vi nce of the jury”). It

De fen dant -Ap pel lant Terrell als o argues that his so n act ually too k the phot os of ST, 6
an a rgum ent the Courtr eject s fort he reas on st atedabo ve. 16 Case: 11-50602 Document: 00512043586 Page: 16 Date Filed: 11/05/2012No. 11-50602

s e e m s h ighly unlikely that John Terrell could have visited hundreds of child pornography websites on the Defendant-Appellant’s computer, even taking into account of the time the computers were in his possession in 2004. Indeed, it is

even more unlikely that h e w ould do so, and then voluntarily turn the laptops into police after the police failed to locate them during their initial search of the property. The jury was free to disregard such a hypothesis. 7 Additionally, software had been installed on the first laptop that cloaked the internet history, which shows that Defendant-Appella n t Terrell was attempting to prevent other people from seeing his internet activity. Testimony

a t t rial indicated that such software is common among individuals who vie w child pornography and that it is often available for download on websites that sell child pornography. Similar software has been held to support an inference that a defenda n t has knowledge of the existence of child pornography on his computer. See United States v. Bas s , 411 F.3d 1198, 1202 (10th Cir. 2005) ( e xi s t e nce of file scrubbing programs supported conviction); United States v . Koegel , 777 F. Supp.2d 1014, 1022 (E.D. Va. 2011) (same). 8 One of the strongest piece s of evidence is the fact that ST testified that Defendant-Appellant Terrell molested her and took the photos of her that were found o n h i s f

irst laptop. This establishes two important points. First, as discussed above, it is almost impossible to think that the Defendant-Appellant

was not responsible for transferring the images to his personal laptop given that ST testified he took them. Second, it establishes that he is sexually interested in children, increasing the likelihood that the other pictures on the laptops were h i s . Both this Court and others have held that evidence showing th a t a

See Prui tt , 638 F.3d at 767; Kai n , 589 F.3d at 9 4 9

– 5 0; Schen e , 543 F.3d at 639–40; 7 Irvi ng, 452 F.3dat122 ( 2d Cir. 200 6).

Again, the De fen dant -Ap pel l a n t c laim s his so n, John Terr ell, dow nload ed this 8
so ft wa re, butheof

fer s abs olut ely no evide nce to sup por t this as se rti on. 17 Case: 11-50602 Document: 00512043586 Page: 17 Date Filed: 11/05/2012No. 11-50602

defendant previously committed sexual crimes against children is relevant in a

case where a defendant is charged with a sexual crime against a c h ild. See United States v. Goff , 155 F. App’x 773, 776 (5th Cir. 2005) (per curiam) (admitting evidence showing defendant had a “knowing interest in child pornography” to support conviction for possession of child pornogra p hy d u e to its probative value); United S t a t e s v . Julian , 427 F.3d 471, 485–88 (7th Cir. 2005) (admitting evidence of prior sexual assault crimes against minor due to its probative value in sex trafficking prosecution); United States v. Carter , 410 F.3d 1017, 1022 (8th Cir. 2005) (admitt ing evidence of prior sexual crime against minor in prosecution for sexual assault on a minor); United States v. Bentley , 475 F. Supp. 2d 852, 858 (N.D. Iowa 2007) (explaining th a t evidence of “sexual interest i n children” is highly relevant to determining propensity to commit other sex crimes against children). Also supporting the verdict was other evidence found i n D e fendantAppellant Terrell’s house. In his desk, police officers f o u n d a floppy disk containing a number of business letters written by the Defendant-Appellant, as well as additional files referring to child pornogr a p h y . This evidence further supports the view that the Defendant-Appellant is sex u a l ly interested in children and has an interest in child pornography. Finall y, Defendant-Appellant-Terrell fled the country in 2005, and was not taken into custody until 2010. This Court has previously held that evidence of flight creates an inference of guilt. See United States v. Templeton , 624 F.3d 215, 225 ( 5 t h C i r . 2010) (stating that evidence of flight is admissible and probative as to guilt); United States v. Lopez , 979 F.2d 1024, 1030 (5th Cir. 1992) (although flight insufficient alone “to support a guilty verdict, it is relevant and admissible”). The evidence in this case is much stronger than in Moreland , where this Court found that there was insufficient evidence s howin g that the defendant had

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knowledge of the i m a g e s o f p ornography found on his computer. In that case th ere was strong evidence that another individual had accessed th e i m a ge s u s in g the defendant’s email account, and there, all of the images were deleted and stored in a way that made them inaccessible. See Moreland , 665 F.3d at 151–52 & n.7. These facts rai s ed the strong possibility that another individual downloaded and deleted the images without the defendant ever knowing of their
presence on his computer. See id. ; see also United States v. Kuchinski , 469 F.3d 853, 862 (9th Cir. 2006) (overturning conviction where there was n o e vi dence defendant knew images were saved in internet cache). By contrast, the images of ST were in the trash can on the desktop and the other images were stored in

an encrypted zip folder. Both of these file types indicate that DefendantAppellant Terrell was aware of the presence of the images—for exa m p l e , he would have needed to encrypt the zip file and the images of ST had been manually deleted. See Winkler , 639 F.3d at 699 (ruling that similar evidence of

manually hi din g p orno gr ap hic f il e s s up p ort e d f

in din g that receipt and possession were knowing). On appeal, w e m u s t take all of the facts in a light most favorable to the jury’s verdict. Moser , 123 F.3d at 819. In light of the facts stated ab ove, there is sufficient evidence of guilt to reject the Defendant-Appellant’s argument. See United States v. McArthur , 573 F.3d 608, 614–15 ( 8 t h C i r . 2009) (holding that

a jury’s verdict should not be disturbed where it chooses one plausible scenario for how child pornography was downloaded onto computer). 2. Jury Instructions Lastly, the Defendant-Appellant argues that the district court’s response to Jury Note 3 was an incorrect jury instruction as to Count Two. This argument is meritless. The jury’s note expressly limited itself to Count One, and the question and district court’s answer h a d n o t h i n g to do with Count Two. Thus, it is pure speculation to think that an instruction r e g a r ding Count One

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somehow affected the jury’s analysis as to Count Two, especially when the language of the note indicates that the jury was properly considering the counts separately. See Simkanin , 420 F.3d at 407 (holding that a district court’s

re s p o n se to a jury note on good-faith instruction would not affect willfulness instruction where response did not relate to willfulness). C O N C L U S I O N For the reasons stated above, the judgment o f the district court is AFFIRMED.

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