On Tuesday, March 6, 2012, the Tenth Circuit Court of Appeals issued its opinion in United States v. Hammond.
Defendant was convicted of possession or attempted possession of child pornography as a result of an undercover online investigation. He appealed three aspects of his conviction.
First, defendant argued the evidence was insufficient to support his conviction. Specifically, he argued the government failed to establish that he “knowingly possessed” child pornography as required by 18 U.S.C. § 2252(a)(4)(B), alleging he inadvertently downloaded the specifically charged files to his computer. To “knowingly possess” child pornography, the government was required to prove defendant knew of and also controlled (or had the ability to control) the images that formed the basis of the conviction.
The Court found there was ample evidence for a jury to infer Mr. Haymond knowingly possessed the charged images on his computer because he searched for and downloaded child pornography from LimeWire, a file-sharing program. Defendant also admitted in an interview that was addicted to child pornography and used LimeWire to search for and download such images. Viewing the evidence in the most favorable light, the Court determined a reasonable jury could find the defendant guilty beyond a reasonable doubt of having knowingly possessed the charged images. United States v. Ramos-Arenas, 596 F.3d 783 (10th Cir. 2010).
Defendant also contended the evidence was insufficient to establish he knew the charged images depicted minors engaged in sexually explicit conduct. While defendant was correct that the “knowledge” requirement of the statute requires more than establishing he knowingly possessed them, the jury was presented with sufficient evidence from which to conclude that Mr. Haymond used search terms associated with child pornography to download the charged images. That defendant used such search terms established beyond a reasonable doubt that he knew those images contained child pornography.
In arguing the evidence was insufficient to support his conviction, defendant also argued the images had insufficient connection with interstate commerce as required by the statute. To convict a defendant of possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B), “the Government was required to prove the visual depictions had been mailed, shipped or transported in interstate or foreign commerce.” United States v. Sturm, 09-1386, ___ F.3d ___ (10th Cir. Feb. 24, 2012) (en banc). The government “can meet its burden of proving the jurisdictional [interstate commerce] element . . . by introducing evidence from which a reasonable jury could conclude the substance of an image of child pornography was made in a state and/or country other than the one in which the defendant resides.” Id. at 24. Government witness Agent Jackson testified that he discovered the photographs originated in Florida. The 10th Circuit Court concluded the government met its burden.
Second, defendant argued the district court erred in denying his motion to suppress evidence obtained as a result of a search of his home. The Court concluded that, under the totality of the circumstances presented in the affidavit, probable cause existed to issue the warrant based on the affidavit of the investigator who conducted the online investigation.
Lastly, defendant argued Dr. Passmore should not have been permitted to testify as an expert under Daubert. During trial, Dr. Passmore, a board-certified pediatrician, testified about the ages of the children depicted in the charged images. Because the government provided sufficiently strong evidence to convict defendant without the testimony of Dr. Passmore, the Court did not decide this issue.
Affirmed on all three points.