NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 09 2011
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES OF AMERICA, No. 10-30089
Plaintiff - Appellee, D.C. No. 2:09-cr-00001-DWM-1
v.
MEMORANDUM *
JAMES DAVID CNOCKAERT,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Submitted May 6, 2011 **
Portland, Oregon
Before: TASHIMA, BEA, and IKUTA, Circuit Judges.
James Cnockaert appeals his conviction, following a one-day bench trial, of
one count of possession of child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B). Legislative Action Pub. L. 110-401, Title III, § 304, Oct. 13,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2008, 122 Stat. 4242 (effective October 13, 2008 to November 30, 2009). We
have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Cnockaert raises two issues as to whether the law is unclear when a
defendant is charged with both receipt and possession of child pornography. These
issues are irrelevant here because the district court vacated the receipt charge and
found Cnockaert guilty of only the lesser included charge of possession. See
United States v. Davenport, 519 F.3d 940, 947 (9th Cir. 2008). Cnockaert does not
question the district court’s authority to vacate the more serious offense of receipt
and to sentence a defendant solely on the less serious offense of possession.
Neither do we.
The evidence showed Cnockaert sought out child pornography on three
different computers. Cnockaert deliberately went to websites containing child
pornography and opened them—some more than once—and viewed the content.
Moreover, the forensic expert testified at trial that the thumbnail cache in the “Jim”
folder of Cnockaert’s home computer could have been created there by the
operating system only if the original images had been placed in that folder through
user action (either downloading the image from the Internet or copying it from the
Internet cache). Cnockaert himself admitted to his supervisors that he was the
person who had viewed “pornography” immediately after being asked if he could
2
explain his use of the worksite computer that had been used to view “child
pornography.” We therefore conclude that a rational trier of fact could have found
the government proved the essential elements of the possession charge beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
AFFIRMED.
3