IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-60988

UNITED STATES OF AMERICA,

Plaintiff-Appellant, Cross-Appellee

v.

JAMES WILLIAM SMITH,

Defendant-Appellee, CrossAppellant

Appeals from the United States District Court

for the Northern District of Mississippi

Before KING, BENAVIDES, and DENNIS, Circuit Judges.

FORTUNATO P. BENAVIDES, Circuit Judge:

The United States appeals a Rule 29 judgment of acquittal following 

James William Smith’s conviction for knowing possession of child 

pornography, 18 U.S.C. § 2252A(a)(5)(B). We reverse.

I. Background

The resolution of this appeal turns on a single question: did prosecutors

present sufficient evidence that Smith was in knowing possession of the child 

pornography recovered from his shared computer? At trial, the prosecution 

produced uncontroverted evidence that someone intentionally downloaded 

videos of child pornography to Smith’s computer during a period when Smith 

and two roommates, girlfriend Elizabeth Penix and long-time friend Joshua 

United States Court of Appeals

Fifth Circuit

FILED

January 13, 2014

Lyle W. Cayce

Clerk

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No. 12-60988

Jolly, were the regular and exclusive users of the computer. Employment 

records eliminated Penix as a suspect, and Jolly denied any knowledge of the 

files or associated software. Smith did not testify. Undisputed expert 

testimony indicated that the files were intact, that no special skill was required 

to download or access them, and that the files were so explicitly named that 

the individual downloading them must have known of their content. After 

deliberating for a few hours, the jury returned a guilty verdict.

Following the conviction, Smith filed a timely motion for new trial, FED.

R. CRIM. P. 33, and separate motion for acquittal, FED. R. CRIM. P. 29. The 

district court rejected his arguments for a new trial, but entered judgment of 

acquittal, finding the evidence insufficient to sustain the verdict. See generally 

United States v. Smith, No. 1:11-cr-114, slip op. (N.D. Miss. Nov. 26, 2012), 

ECF No. 85. After reviewing the record under the applicable standard, we find 

sufficient evidence for the jury to conclude beyond a reasonable doubt that 

Smith was in knowing possession of child pornography at the time the files 

were downloaded. 

II. Sufficiency of the Evidence

A. Legal Standard

A district court must enter a judgment of acquittal where “the evidence

is insufficient to sustain a conviction.” FED. R. CRIM. P. 29. We review 

sufficiency of the evidence de novo. United States v. Williams, 602 F.3d 313, 

314–15 (5th Cir. 2010). In determining whether the evidence is sufficient to 

sustain a conviction, we examine all evidence in the light most favorable to the 

verdict, and consider whether a rational trier of fact “could have found that the 

evidence established the essential elements of the offense beyond a reasonable 

doubt.” United States v. Moreland, 665 F.3d 137, 148–149 (5th Cir. 2011)

(citation omitted). In making such a determination, we consider “the 

countervailing evidence as well as the evidence that supports the verdict.” Id. 

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at 149 (citation and internal quotation marks omitted). Nonetheless, we must

remain mindful that the weighing of evidence and the assessment of witness 

credibility “is solely within the province of the jury.” United States v. Sanchez, 

961 F.2d 1169, 1173 (5th Cir. 1992). 

B. Discussion

Smith was convicted of knowing possession of child pornography in 

violation of 18 U.S.C. § 2252A(a)(5)(B). Accordingly, the evidence is sufficient 

to sustain his conviction if a rational juror could find beyond a reasonable doubt 

that Smith (1) knowingly (2) possessed (3) material containing an image of 

child pornography (4) that was transported in interstate or foreign commerce 

by any means. See Moreland, 665 F.3d at 149. Here, Smith argues that the 

evidence is insufficient to establish his possession of the files, and that, 

regardless, there is no evidence that he knew the files contained child 

pornography. The other elements are not in dispute.

1. Possession

In cases involving child pornography or other contraband, possession 

may be actual or constructive. Moreland, 665 F.3d at 149–150 (citing United 

States v. Mergerson, 4 F.3d 337, 348 (5th Cir. 1993)). Actual possession “means 

the defendant knowingly has direct physical control over a thing at a given 

time.” United States v. Munoz, 150 F.3d 401, 416 (5th Cir. 1998). Where the 

contraband consists of computer files, the volitional downloading of those files 

entails control sufficient to establish actual possession. United States v. 

Haymond, 672 F.3d 948, 956 (10th Cir. 2012). Actual possession, like 

constructive possession, may be proven by direct or circumstantial evidence. 

United States v. Wilson, 657 F.2d 755, 760 (5th Cir. Unit A Sept. 1981); see also 

United States v. Tovar, 719 F.3d 376, 389 (5th Cir. 2013) (allowing jury to infer 

earlier actual possession where defendant was not in actual possession at the 

time of arrest); United States v. Bliss, 491 F. App’x 491, 492 (5th Cir. 2012) 

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(unpublished) (allowing use of circumstantial evidence to find that defendant 

downloaded files). 

The prosecution’s case is not complicated. It begins with the 

uncontroverted premises that someone used Frostwire software to seek out and 

download 26 videos of child pornography to Smith’s computer, that there were 

only three possible suspects (Smith, Penix, and Jolly), and that Penix was not 

using the computer at the time the files were downloaded. The prosecution 

then introduced Jolly’s testimony, in which he denied downloading the files 

and indicated that he did not know much about computers. Smith, meanwhile, 

did not testify. Taken in the light most favorable to the verdict, and even 

inferring nothing from Smith’s decision not to testify, these facts appear to 

implicate Smith. 

We must, however, consider countervailing evidence. Although Jolly 

testified that he is an auto mechanic and does not know much about computers, 

he conceded that he uses the internet often, and forensic analysis revealed that 

he had used Smith’s computer regularly. Uncontroverted testimony from 

expert witnesses indicated that the Frostwire software is not difficult to use, 

requiring nothing more than entering search terms and selecting videos. This 

suggests that, even if Jolly does not know much about computers, he was likely 

still capable of using the Frostwire software to download the files. In addition, 

Jolly had no explanation whatsoever for where he had been on the dates in 

question. Smith, meanwhile, offered an alibi via the testimony of his girlfriend

and his parents. These three witnesses testified that Smith had been at his 

parents’ home on dates in question, rendering it impossible for him to have 

downloaded the files. They provided various documents in support of this alibi. 

The fact that Smith, without even testifying, offered an alibi—while Jolly, who 

did testify, offered none—certainly weakens the case against Smith. 

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Yet we must remain mindful that it is the sole province of the jury to 

assess the credibility of the testimony given at trial, and we must consider all 

evidence in the light most favorable to the guilty verdict rendered. Sanchez, 

961 F.2d at 1173. With that in mind, it is not unreasonable for the jury to 

credit Jolly’s testimony over the testimony of Penix and the Smiths. For 

example, the documentation provided in support of the alibi, while generally 

corroborating the broad storyline provided by the witnesses, does not actually 

indicate that Smith was at his parents’ home when the files were downloaded. 

Moreover, the prosecution introduced evidence that Penix had entirely 

changed her account of one of the relevant dates, and that Mrs. Smith had 

originally made no mention of her son’s visits when questioned by police. The 

jury may have been skeptical of the alibi in light of these discrepancies. But 

for whatever reason, it is clear from the verdict that the jurors in this case

simply chose to believe Jolly instead of his girlfriend and his parents. It is well 

within their discretion to do so. See Sanchez, 961 F.2d at 1175 (upholding 

conviction for conspiracy where jury chose to believe the testimony of the 

undercover officer in spite of countervailing testimony and the fact that the 

testimony was the “sole inculpatory evidence” against defendant). 

The district court, however, acquitted Smith on the basis that “it is just 

as likely that Joshua Jolly downloaded the child pornography onto the 

computer as Smith did.” Smith, No. 1:11-cr-114, at 11. As a purely theoretical 

statement, this may be true. But the question is not whether, in terms of 

metaphysical probability, it is “equally likely” that Jolly downloaded the files. 

The question is whether this evidence, taken in the light most favorable to the 

verdict, offers “nearly equal circumstantial support” for competing 

explanations. United States v. Terrell, 700 F.3d 755, 760 (5th Cir. 2012). For 

the reasons already described, we believe that it does not. Moreover, it is well 

established that “[t]he evidence need not exclude every reasonable hypothesis 

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of innocence,” id., and “the jury is free to choose among reasonable 

constructions of the evidence,” Bliss, 491 F. App’x at 492. The jury has done 

so here, and its verdict must not be disturbed. United States v. Woerner, 709 

F.3d 527, 537 (5th Cir. 2013).

Nonetheless, Smith urges this Court to find, as we did in Moreland, that 

there is no evidence to support “knowledge of” or “access to” the child 

pornography. Smith Br. at 12, ECF No. 32. The language Smith invokes is a 

component of constructive possession analysis. See Mergerson, 4 F.3d at 349. 

Constructive possession is “ownership, dominion or control over an illegal item 

itself[,] or dominion or control over the premises in which the item is found.” 

Id. (citation omitted). When illegal files are recovered from shared computers, 

courts permit an inference of constructive possession where the files’ nature 

and location are such that computer’s owner must be aware of them.1 Such an 

inference, however, must be supported by evidence that “the defendant had 

knowledge of and access to” the files. Moreland, 665 F.3d at 150. 

In the present case, there is no reason to require the knowledge and 

access necessary to support an inference of constructive possession, because

the evidence is sufficient for a jury to find actual possession at the time of 

download. As a consequence, we need not address Smith’s arguments 

regarding the complex nature of the Windows directory or file paths. Nor must 

we determine whether the evidence is sufficient to support an alternate finding 

of constructive possession under the assumption that Smith did not download 

the files. See Tovar, 719 F.3d at 389 n.14 (declining to “engage in a constructive 

1 See United States v. Patrick, 363 F. App’x 722, 725 (11th Cir. 2010) (unpublished) 

(“[S]ignificant evidence suggested that Patrick knew the images were on his computer, 

regardless of whether he manually downloaded them . . . .”); United States v. Hao Sun, 354 

F. App’x 295, 305 (10th Cir. 2009) (unpublished) (“[A] jury could reasonably conclude . . . 

[that] the owner/possessor of the computer would no doubt be aware of at least some of the 

800 images on his computer . . . .”). 

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possession analysis” where evidence was sufficient to support actual 

possession); United States v. Patterson, 23 F.3d 1239, 1245 n.6 (7th Cir. 1994)

(“Because we conclude that there was sufficient evidence to support a finding 

of actual possession we need not address defendant’s argument’s regarding the 

constructive possession instructions.”).

2. Knowledge

Before reversing the judgment of acquittal, we must also find sufficient 

evidence that Smith knowingly possessed the child pornography. 18 U.S.C. 

§ 2252A(a)(5)(B). The knowledge requirement extends both to the age of the 

performers and to the pornographic nature of the material. United States v. XCitement Video, Inc., 513 U.S. 64, 78 (1994). Here, undisputed expert 

testimony indicates that someone searched for and selected these files for 

download. Each file name included an explicit description of the type of sexual 

act performed, in addition to the word “child,” “pre-teen,” or the age of the 

minor depicted. These file names were presented to the jury, who reasonably 

concluded that the person selecting and downloading these files must have 

understood the illegal nature of the content. See Woerner, 709 F.3d at 537 

(“[T]heir content was evident from their file names, undercutting any potential 

argument that they were downloaded by mistake.”). More significantly, 19 of 

the 26 files were previewed at the time of download. So it seems clear that the 

person downloading the files knew both the age of the performers and the 

sexually explicit nature of the material. 

We conclude, therefore, that the prosecution presented sufficient 

evidence such that the jury could find, beyond a reasonable doubt, that Smith 

downloaded the files and knew what he was downloading. Given that the 

nature of the files and the interstate transport are not in dispute, the evidence 

is thus sufficient to sustain a conviction of knowing possession of child 

pornography under 18 U.S.C. § 2252A(a)(5)(B).

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III. Conclusion

Smith asks that we instruct the district court to consider whether a new 

trial is warranted on grounds not previously raised. Smith, however, has 

shown no error or abuse of discretion in the district court’s adjudication of his

motion for a new trial, and we find none in the record. Accordingly, we deny 

that request. Consequently, and for the reasons stated herein, we REVERSE 

the judgment of acquittal and remand for sentencing.

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