* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

November 23, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 05-50230

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DENNIS LANE GOFF,

Defendant-Appellant.

- - - - - - - - - -

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:04-CR-31-ALL

- - - - - - - - - -

Before REAVLEY, DAVIS, and PRADO, Circuit Judges.

PER CURIAM:*

Dennis Lane Goff appeals his convictions, following a jury

trial, of five counts of shipping or transporting visual

depictions of minors engaging in sexually explicit conduct, nine

counts of receiving such depictions, and one count of possession

of such depictions, in violation of 18 U.S.C. § 2252(a)(1),

(a)(2), and (b)(4)(A). The court sentenced Goff to concurrent

120-month prison terms and concurrent three-year terms of
No. 05-50230

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supervised release. 

Goff contends that the trial evidence was insufficient

to support any of his convictions. The standard for reviewing a

claim of insufficient evidence is whether, “‘after reviewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found that the evidence

establishes the essential elements of the offense beyond a

reasonable doubt.’” United States v. Bellew, 369 F.3d 450, 452

(5th Cir. 2004) (citing Jackson v. Virginia, 443 U.S. 307, 319

(1979)). Review of the sufficiency of the evidence does not

include review of the weight of the evidence or of the

credibility of the witnesses. United States v. Garcia, 995 F.2d

556, 561 (5th Cir. 1993). 

Goff contends that the evidence was insufficient to support

his shipping or transporting convictions. Goff does not deny

that, in 1999 and 2000, e-mails with attachments containing

visual depictions of minors engaging in sexually explicit conduct

were sent from “screen names” registered by Goff to his e-mail

account with America Online (“AOL”). He argues, however, that

because Government agents failed to find such depictions on the

hard drive of his computer, such convictions cannot stand. There

is nothing in the statutory language of 18 U.S.C. § 2252(a)(1) or

in decisional authority addressing either that statute or its

legally identical counterpart, 18 U.S.C. § 2252A, to support such

an evidentiary requirement. As the Government suggests, the
No. 05-50230

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trial evidence was sufficient to support a jury finding that Goff

had received e-mails with attachments containing depictions of

minors engaging in sexually explicit conduct, and that he had

looked at the attachments, closed the attachments, and forwarded

the e-mails to other AOL subscribers. See Bellew, 369 F.3d at

452.

In a similar contention, Goff argues that the evidence was

insufficient to prove that he had received depictions of minor

engaging in sexually explicit conduct. He maintains that the

evidence did not show that he “downloaded” any depictions he

might have received via e-mail onto his hard drive or onto

computer disks. The evidence did show, however, that screen

names registered by Goff received e-mail attachments with such

visual depictions and that such e-mails bore titles and text like

“yngorgy,” “I like young teen fems,” “have plenty keep replying,”

“veryverybarelylegal,” “traders for young,” “young,” and “young

girls only.” We have held that similar evidence, irrespective of

direct evidence that the defendant had actually looked at the

depictions, supported an inference that a defendant knew he was

receiving child pornography. See United States v. Payne, 341

F.3d 393, 403-04 (5th Cir. 2003).

Goff maintains that the evidence was insufficient to support

his conviction of possession of visual depictions of minors

engaging in sexually explicit conduct. Although he acknowledges

that more than 1,000 such depictions were stored on the hard
No. 05-50230

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drive of his computer, he maintains that evidence of the

placement, in May 2003, of a “Sub 7 Trojan” program on his hard

drive meant that anybody could have been using his computer to

store and view such depictions without his knowledge. Goff also

asserts that the stepson and brother of Sherry Hobbs, with whom

Goff lived during 2001 and 2002, had access to his computer. 

Although Government witnesses agreed that a computer hacker could

theoretically use the Sub 7 Trojan to control almost all of

Goff’s computer functions, there was no evidence to show that the

Sub 7 Trojan had actually been used. Moreover, it was not

disputed that it was very unlikely that a hacker would choose

Goff’s computer, which had only dial-up Internet access, to

exploit a Sub 7 Trojan, because, in comparison to a computer with

broadband or high-speed access, a dial-up connection was

extremely slow and was available only when the victim logged onto

the Internet. There was no evidence that Sherry Hobbs’s stepson

had access to Goff’s computer, and Hobbs testified that her

brother used the computer only to play Fantasy Football and that

he knew very little about computers. Finally, Goff’s ex-wife,

Patricia Vanderburgh, testified that, shortly after Goff had

visited her home and used her computer on an occasion in early

2004, she discovered that he had forgotten to close his e-mail

account and that the account’s in-box contained e-mails with

child pornography. The evidence was sufficient to support Goff’s

conviction of possession of visual depictions of minors engaging
No. 05-50230

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in sexually explicit conduct. See United States v. Runyan, 290

F.3d 223, 242-43 (5th Cir. 2002). 

Goff contends that the district court erred in admitting

prejudicial evidence, in violation of FED. R. EVID. 404(b), that:

(1) he had choked Hobbs on one occasion; (2) he had possessed a

copy of a magazine called “Barely Legal”; and (3) he had once

told Hobbs that a 12-year-old girl who was sleeping on the family

sofa “turned him on.” We review the admission of Rule 404(b)

evidence for abuse of discretion. See United States v. BentleySmith, 2 F.3d 1368, 1377 (5th Cir. 1993). Hobbs’s testimony that

Goff had once choked her was admitted into evidence only after

Goff had “invited” any such error by cross-examining Hobbs about

statements that she had kicked Goff out of her home and never

wanted to see him again. See United States v. Green, 272 F.3d

748, 754 (5th Cir. 2001). Goff’s attempt to show that Hobbs was

biased against him opened the door to the Government to ask Hobbs

about the reasons for any bias. See United States v. Austin, 774

F.3d 99, 102 (5th Cir. 1985).

The admission of testimony that Goff possessed a magazine

called “Barely Legal” was not an abuse of discretion. BentleySmith, 2 F.3d at 1377. Even if such magazine was adult, legal

pornography, it is implicit in the magazine’s title that its

photographic subjects will be as close in age to being “illegal”

as the First Amendment permits, and the magazine was relevant to

showing that Goff had a “knowing interest in child pornography.” 
No. 05-50230

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See United States v. Layne, 43 F.3d 127, 134 (5th Cir. 1995)

(upholding admission of “exhibit featur[ing] a woman dressed up

as a child wearing pigtails and roller skates, which was referred

to by the district court as ‘simulated child pornography’”). The

district court did not abuse its discretion in admitting Hobb’s

testimony that Goff had once told her that he was “turned . . .

on” by a sleeping 12-year-old girl in his home. The court

properly contrasted this evidence to the admission of violent and

disturbing “narratives” involving the sexual abuse of children,

which was held to be reversible error in United States v. Grimes,

244 F.3d 375, 383-85 (5th Cir. 2001). In the cases of both the

magazine and story about the sleeping girl, the court issued

careful limiting instructions that minimized the possibility of

prejudice to Goff. See United States v. Willis, 6 F.3d 257, 262-

63 (5th Cir. 1993).

Goff’s convictions are AFFIRMED.