IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-30039

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

COLUMBUS MOORE

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 1:09-CR-14-1

Before GARZA, STEWART, and HAYNES, Circuit Judges.

PER CURIAM:

*

A jury convicted Defendant-Appellant Columbus J. Moore (“Moore”) of

receiving and possessing child pornography in violation of 18 U.S.C.

§§ 2252A(a)(2) and (a)(5)(B). Moore appeals the conviction, arguing that the

government failed to prove the jurisdictional element of the crime and that the

district court made reversible errors with the admission of certain evidence and

jury instructions. For reasons discussed below, we AFFIRM the district court

and uphold Moore’s conviction.

United States Court of Appeals

Fifth Circuit

F I L E D

May 13, 2011

Lyle W. Cayce

Clerk

 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.

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I

Troopers with the Louisiana State Police arrested Moore in November

2008 during an undercover investigation of individuals who shared child

pornography via LimeWire, a peer-to-peer network. As part of the

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investigation, Trooper Chad Gremillion obtained information that a LimeWire

account registered to Moore had downloaded or shared child pornography.

Gremillion obtained a search warrant for Moore’s home and when Gremillion

and two other troopers arrived at the residence, Moore allowed the officers to

enter the house. The troopers separated Moore from his wife and children, and

asked Moore’s wife to leave the home with the children.

The troopers searched the home and advised Moore, verbally and in

writing, of his Miranda rights. Moore waived his rights and the troopers

interviewed Moore. Initially, Moore denied that child pornography was on the

computer. When Moore finally acknowledged that the child pornography was

on the machine, he claimed that other family members had downloaded the files.

Eventually, Moore confessed to downloading the images. The search revealed

that Moore had downloaded twenty-five child pornography movies. All the files

were downloaded from the Internet. Specifically, Moore had obtained them

using LimeWire, which share files via the Internet.

Before trial, the government notified Moore that prosecutors would call his

stepdaughter as a witness. The government wanted the girl to testify about two

incidents in which Moore had molested her when she was twelve. Moore moved

to suppress the testimony. The district court ruled that the evidence was

admissible under Rules 414 and 403 of the Federal Rules of Evidence and

overruled the motion in limine. At trial, after the girl had testified, the court

issued limiting instructions to jurors that explained Moore had not been charged

A peer-to-peer network is a file-sharing system in which Internet users share files 1

with other users on a specific network.

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with the crime of molestation. The court instructed the jurors to consider the

testimony for the limited purpose of determining Moore’s propensity to download

child pornography and whether he was correctly charged.

The jury convicted Moore on one count of knowingly receiving child

pornography transported in interstate commerce, a violation of 18 U.S.C.

§ 2252A(a)(2), and one count of possession of images of child pornography

transported in interstate commerce, a violation of 18 U.S.C. § 2252A(a)(5)(B).

Before sentencing, Moore objected to the pre-sentence report’s recommendation

that the trial court should enhance his criminal history category for a theft

charge that he pled guilty to in Louisiana state court. The state criminal record

did not contain sentencing information and Moore argued that this meant the

conviction was not final. The district court relied on the state conviction,

nonetheless, and enhanced Moore’s criminal history category by one level. With

a criminal history category of IV and an offense level of 37, Moore’s guidelines

sentencing range was 292 to 365 months. The court sentenced Moore to the

statutory maximum term for each count—240 months for the receiving charge

and 120 months for the possession charge—and ordered that the terms be served

concurrently.

Moore appealed his conviction and sentence, challenging the sufficiency

of the evidence presented at trial, several of the district court’s evidentiary

decisions, and the trial court’s calculation of his criminal history score.

II

A

We review the district court’s denial of a motion for judgment of acquittal

de novo and we will affirm the jury’s verdict if “‘a reasonable trier of fact could

conclude from the evidence that the elements of the offense were established

beyond a reasonable doubt, viewing the evidence in the light most favorable to

the verdict and drawing all reasonable inferences from the evidence to support

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the verdict.’” United States v. York, 600 F.3d 347, 352 (5th Cir. 2010) (quoting

United States v. Floyd, 343 F.3d 363, 370 (5th Cir. 2003)). A review of evidence

for sufficiency “‘does not include a review of the weight of the evidence or of the

credibility of the witnesses.’” Id.

Moore argues generally that the district court erred by denying his motion

for judgment of acquittal because prosecutors failed to prove that the

downloaded child pornography had crossed state lines. Specifically, Moore first

alleges that the district court erred when it relied on United States v. Runyan,

290 F.3d 223 (5th Cir. 2002), to conclude that mere use of the Internet to

download images satisfied the jurisdictional elements of the crimes.

We have held that transmission of photographs via the Internet “is

tantamount to moving photographs across state lines” and constitutes

transportation via interstate commerce. Runyan, 290 F.3d at 239; see also

United States v. Venson, 82 F. App’x 330 (5th Cir. 2003) (“The evidence

indicating that Venson took these images from the internet provided the jury

with sufficient evidence to find that [the images] moved in interstate

commerce.”); see also United States v. Hilton, 257 F.3d 50, 54 (1st Cir. 2001).

The government must make a specific connection between the Internet and the

images in question to satisfy the interstate commerce requirement. Runyan, 290

F.3d at 242. But, circumstantial evidence, such as a website address linking the

image to the Internet, will suffice to make that connection. Id. (citing United

States v. Henriques, 234 F.3d 263, 267 (5th Cir. 2000)).

Moore argues next that instead of relying on Runyan and Venson, the trial

court should have relied on United States v. Schaefer, which held that to satisfy

the interstate commerce element of § 2252A, the government must prove that

each image had moved across state lines. 501 F.3d 1197, 1203–05 (10th Cir.

2007). In Schaefer, proof of Internet usage alone was insufficient to prove the

jurisdictional element. Id. at 1198. Moore’s argument fails because we have

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consistently rejected the analysis used in Schaefer. See Runyan, 290 F.3d at

239.

Moore also asserts that the government failed to prove the photos were

transported in interstate commerce because LimeWire does not have a central

server for the transmission or storing of files. According to Moore, this lack of

a central server means the government could not prove the images were

transmitted across state lines. Moore’s argument is without merit because we

do not require proof of Internet transmission across state lines. See Runyan, 290

F.3d at 242. Rather, we have held that the mere transmission of images via the

Internet is “‘tantamount to moving photographs across state lines and thus

constitutes transport in interstate commerce.’” Id. at 239 (quoting United States

v. Carroll, 105 F.3d 740, 742 (1st Cir. 1997)). Trooper Gremillion testified that

the images located on Moore’s computer were downloaded using LimeWire and

that to download files from LimeWire an individual must use the Internet.

Given this evidence, a reasonable trier of fact could conclude that the

prosecution had established the jurisdictional element of the crime beyond a

reasonable doubt.

Finally, Moore challenges the district court’s jury instruction about the

crime’s jurisdictional element. The district court’s instruction for this element

directly quoted our holding in Runyan. Thus, the district court did not abuse its

discretion by issuing this jury instruction, which accurately interpreted and

applied binding precedent.

B

We evaluate the district court’s decision to admit or exclude evidence

under an abuse of discretion standard. United States v. Guidry, 456 F.3d 493,

501 (5th Cir. 2006). We consider a district court’s decision under Rule 403 of the

Federal Rules of Evidence for an abuse of discretion with “an especially high

level of deference to the district court, with reversal called for only rarely and

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only when there has been a clear abuse of discretion.” United States v. Dillon,

532 F.3d 379, 387 (5th Cir. 2008) (internal quotations omitted).

Moore argues that the district court erred by admitting evidence of the

uncharged conduct because under Rule 414, his touching of the girl’s clothed

buttocks did not constitute “an offense of child molestation.” In addition, Moore

asserts that the district court should have excluded this evidence under Rule

403, because the testimony was unfairly prejudicial and substantially

outweighed its probative value.

Rule 414 states, in pertinent part, that child molestation constitutes “any

conduct proscribed by chapter 110 of title 18, United States Code;” or, “contact

between any part of the defendant’s body or an object and the genitals or anus

of a child.” FED. R. EVID. 414(d)(2), (3). Moore argues that the “plain meaning

of the statute” does not include the “touching of clothed buttocks.” Moore,

however, offers no authority for his interpretation. Prior to trial, when Moore

moved to exclude the testimony, the trial court analyzed the stepdaughter’s

diary in which she had described what occurred. Under Rule 414(d)(2), the

2

district court then considered 18 U.S.C. § 2244, which prohibits abusive sexual

contact, which is defined in 18 U.S.C. § 2246 as the “intentional touching, either

directly or through the clothing, of the . . . buttocks of any person with an intent

to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any

person.” The court concluded that the testimony was admissible because it

3

described acts outlawed in §§ 2244 and 2246, which qualify the act as an offense

of child molestation under Rule 414(d)(2). The record shows that the district

court considered the stepdaughter’s allegations and correctly determined that

Evidence of similar crimes in child molestation cases is admissible if the “offense of 2

child molestation means a crime under Federal law . . . that involved any conduct proscribed

by chapter 110 of title 18, United States Code.” FED. R. EVID. 414(d)(2).

 Sections 2244 and 2246 are both within chapter 110 of Title 18 of the U.S.C. 3

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they fell within the statutory definition of “child molestation.” Furthermore, the

context of Moore entering the bedroom at night to touch the girl’s clothed

buttocks distinguished this situation from one in which the touching could have

been inadvertent or accidental. Thus, the district court did not abuse its

discretion.

In cases involving the molestation of children, Rule 414 permits the

admission of evidence of other acts constituting child molestation when this

evidence has “bearing on any matter to which it is relevant.” FED. R. EVID.

414(a). The relevant evidence, however, “may be excluded if [the evidence’s]

probative value is substantially outweighed by the danger of unfair prejudice.”

FED. R. EVID. 403. Moore asserts that the district court erred by concluding that

the testimony’s probative value outweighed the danger of unfair prejudice. In

cases such as this, we have held that evidence of other sexual offenses committed

by the defendant does not need to be similar in every respect to the charged

offense. Rather, the evidence only needs to be probative as to some element of

the charged offense. Dillon, 532 F.3d at 389; see also United States v. Caldwell,

586 F.3d 338, 345–46 (5th Cir. 2009) (holding that trial court did not abuse its

discretion by allowing the jury to see excerpt of bestiality video from defendant’s

computer when defendant had argued he had not known the video was on his

computer); United States v. Goff, 155 F. App’x 774, 776 (5th Cir. 2005)

(upholding admission of testimony about defendant’s possession of “Barely

Legal” pornography magazine because testimony demonstrated defendant’s

“knowing interest” in child pornography).

Here, the government sought to prove Moore’s sexual interest in children

with the testimony and diary excerpts of his stepdaughter, who alleged that

Moore had molested her when she was twelve. The record demonstrates that the

district court considered whether the probative value of the evidence was

substantially outweighed by an unfairly prejudicial effect. First, the court

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considered the testimony and concluded that the allegations could help jurors

determine whether Moore was correctly charged with child pornography

offenses. Then, the court considered the prejudice that could arise from the

stepdaughter’s testimony. The court concluded that the prejudicial effect was

limited because of the similarities between the alleged molestation and the

downloading of child pornography: both acts involved similar mental states. In

addition, the court considered whether the proposed testimony was graphic or

extensive and concluded that the testimony was neither. Additionally, the court

noted that the testimony would be subject to cross-examination and Moore could

present rebuttal witnesses. Based on this evidence, we hold that the trial court

did not abuse its discretion.

On appeal, for the first time, Moore argues that he was unfairly prejudiced

by the district court’s admission of his stepdaughter’s testimony. Moore asserts

that the acts described in the testimony did not correspond to the allegations of

molestation made by the Government during opening statements. At trial,

however, Moore did not object to his stepdaughter’s testimony or the

Government’s opening statement. Rather, after his stepdaughter testified, Moore

objected to the Government’s desire to admit a redacted copy of his

stepdaughter’s diary as evidence. In addition, Moore failed move for a mistrial

on the basis of the Government’s opening statements. Therefore, we decline to

reach Moore’s assertions about this matter because he did not properly preserve

this issue for appeal.

4

 Furthermore, we will not address Moore’s argument on this issue because his brief

4

fails to cite to legal authority. Alameda Films SA de CV v. Authors Rights Restoration Corp.,

Inc., 331 F.3d 472, 483 & n.34 (5th Cir. 2003).

Moore also contends that the district court erred by issuing flawed jury instructions

about his stepdaughter’s testimony and that the district court should not have permitted the

girl to testify “wrapped in a blanket.” We decline to reach the merits of these assertions

because, like his assertion about his stepdaughter’s testimony, Moore’s briefing lacks citations

to any legal authority for these issues. Id. at 483 & n.34.

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C

Moore also contests the validity of his confession. We review this type of

challenge by conducting a de novo review of the defendant’s Miranda rights

waiver, considering the voluntariness of the statement under the totality of the

circumstances that surround the confession. United States v. Cardenas, 410

F.3d 287, 292 (5th Cir. 2005). We consider the district court’s finding of facts

under a clearly erroneous standard. Id. at 293. Under this standard, if the

record “supports more than one permissible interpretation of the facts,” we

“accept the district court’s choice between them, absence clear error.” United

States v. Santiago, 410 F.3d 193, 197 (5th Cir. 2005); see also United States v.

Gibbs, 421 F.3d 352, 357 (5th Cir. 2005). Here, because the district court based

its decision on the magistrate’s report and recommendation, we defer to that

court’s “acceptance of the magistrate judge’s credibility recommendations, based

on his having heard live testimony.” Gibbs, 421 F.3d at 357

Moore argues that the district court erred by failing to suppress his

confession because the statement was not voluntary. The district court adopted

the magistrate’s report, which relied on the testimony of three Louisiana

troopers to conclude that Moore’s confession was voluntary. The magistrate’s

report and recommendation detailed how all three troopers offered similar

testimony about Moore’s interrogation and confession. The troopers all testified

that they had advised Moore of his Miranda rights verbally and in writing. And,

the troopers stated that Moore had waived his Miranda rights before he

answered questions and signed a written confession. Moore, on the other hand,

testified that he had confessed because the troopers sought to arrest Moore’s wife

and give his children to social services. Although the troopers’ accounts of

events contained slight differences, none of the troopers recalled hearing threats

to Moore about his wife or children. Based on the record, it does not appear that

the magistrate committed any obvious errors in his credibility assessment, nor

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does the evidence permit for a different interpretation of the testimony.

Therefore, the district court did not err by concluding that testimony failed to

show Moore’s confession was coerced.

D

Moore argues that the district court erred in calculating his criminal

history category because that court considered Moore’s state theft conviction,

which did not contain sentencing information. When a defendant preserves his

objection to the district court’s Sentencing Guidelines interpretation, we consider

whether the district court committed significant procedural errors. Gall v.

United States, 552 U.S. 38, 51 (2078). “A procedural error during sentencing is

harmless if the error did not affect the district court’s selection of the sentence

imposed.” United States v. Delgado-Martinez, 564 F.3d 750, 753 (5th Cir. 2009)

(internal quotations omitted). If no procedural error has occurred, or if a

procedural error was harmless, we then consider the sentence for substantive

reasonableness. Id.

Moore only contests a procedural aspect of his sentencing, arguing that the

district court erred by relying on Moore’s theft conviction, which did not contain

sentencing information, to enhance his criminal history category. The district

5

court adopted the conclusion of the pre-sentence investigation report and

determined that under the Guidelines, Moore had a total offense level of 37 and

a criminal history category of IV. This meant Moore had a term of imprisonment

range of 292 to 365 months under the Sentencing Guidelines. If the district

court had not relied on the contested conviction, Moore’s criminal history

category would have been III and his imprisonment term would have been 262

to 327 months. But, the district court did not sentence Moore within the

Guideline’s range for category III or IV. Instead, the court imposed the statutory

 The conviction stems from Moore’s 1998 guilty plea to a theft charge for an offense

5

committed in Red River Parish, Louisiana.

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maximum sentence for each charge pursuant to U.S.S.G. § 5G1.1(a), which

states that “[w]here the statutorily authorized maximum sentence is less than

the minimum of the applicable guideline range, the statutorily authorized

maximum sentence shall be the guideline sentence.” Moore’s argument fails

because the district court did not rely on Moore’s criminal history category to

impose a sentence. Furthermore, even if the district court had procedurally

erred, such an error was harmless because Moore’s sentence is below the

Guideline’s range for either criminal history category.

III

For the foregoing reasons, we AFFIRM the judgment of the district

court in all respects.

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