United States v. Payne

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS July 31, 2003
For the Fifth Circuit
Charles R. Fulbruge III
Clerk

No. 01-50351

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

LONNIE JEARL PAYNE,

Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Texas

Before DUHÉ, EMILIO M. GARZA, and DeMOSS, Circuit Judges.

DUHÉ, Circuit Judge:

Defendant Lonnie Jearl Payne (Payne) appeals his convictions

for knowingly receiving child pornography in violation of 18 U.S.C.

§ 2252A and for possessing a firearm in violation of 18 U.S.C. §

922(g)(1). Specifically, Payne appeals the district court’s denial

of his motion to suppress and contends that he was prejudiced by

duplicity in Count Three of his indictment. Payne also challenges

the sufficiency of the evidence supporting his conviction for

receiving child pornography. We affirm.
I. FACTUAL AND PROCEDURAL HISTORY

The events leading to Payne’s arrest began with the interview

of seventeen-year-old Starla Nickels by Investigator Reba Beam of

the Midland County Sheriff’s Office. During the interview, Nickels

reported that she had been bonded out of jail by Lonnie Payne, the

owner of Midland Bail Bonds. Because she had no money, Payne

required Nickels to pose for nude pictures and have sex with him in

lieu of the bond fee. Payne later told Nickels he had posted the

nude pictures of her on a sexually explicit website. During

another encounter, Payne displayed on his office computer sexually

explicit pictures of women and advised Nickels that she should

imitate the women’s poses the next time he photographed her. Payne

also tried to convince Nickels to work in a strip club, offering

her alcohol to overcome her reluctance, and explaining that he

could get her a job at the club despite her being underage because

he knew the owners.

Investigator Beam pursued the investigation with FBI Special

Agent David Sutherland and Detective Sheldon Johnson, the primary

child pornography investigator for Midland. The investigators

searched the trash outside Payne’s bail bond office and discovered

photographs of unidentified adult women, one of whom was in a

“sexy” pose. They interviewed Tracy Massingill, who had introduced

Nickels to Payne, and who reported that she, too, had sex with

Payne in exchange for a bail bond.

Agent Sutherland was the FBI agent assigned to investigate

2
child pornography and sexual exploitation cases in Midland;

however, this case was his first experience investigating child

sexual exploitation. He used a form supplied by Detective Johnson,

who was experienced in child pornography investigations, to draft

the affidavit supporting his request for a search warrant.1

1
The affidavit, written and signed by Agent Sutherland,
stated:

I, David M. Sutherland, Special Agent of the Federal Bureau
of Investigation (FBI), being duly sworn, depose and state:

1. I have been employed as a Special Agent with the FBI
since March 1999. I am assigned to the Midland, Texas Resident
Agency and tasked with the responsibility of investigating child
pornography and the sexual exploitation of children. I am
currently assigned to the investigation of Lonnie Jearl Payne on
the accusation that he has engaged in, received, promoted,
produced, and distributed child pornography in violation of Title
18, United States Code, section 2251, Sexual Exploitation of
Children and Title 18, United States Code, Section 2252 and
2252(a), Certain Activities Related to Material Involving the
Sexual Exploitation of Minors.

2. The information contained herein is based upon my own
investigation and the investigation of the Midland County
Sheriff’s department and the Midland police department.

3. Starla Kay Nickels, age 17, was arrested for credit card
abuse by the Midland County Sheriff’s Office on 19 April 2000 and
was held on a $2000 bond. While in being (sic) detained at the
Midland County Detention Center, Nickels spoke with Tracy Lynn
Massingill. Nickels told Massingill that Nickels had no money or
family to supply the bond. Massingill told Nickels that Payne
could get Nickels her bond but that Nickels would probably have
to engage in sexual relations with Payne. Massingill called
Payne from the Midland County Detention Center and introduced
Nickels to Payne over the telephone.

4. Massingill had previously used Payne’s bond service in
October 1997. At the time of her release Payne brought
Massingill to his offices at 1301 East Front Street, Midland,
Texas and engaged in sexual intercourse with Payne. Payne did
not charge Massingill any fee for her bond.

3
 5. Massingill had learned of Payne while in jail from
another female inmate who told Massingill that Payne would get
her out if Massingill would have sex with Payne. That female
inmate called Payne and introduced Massingill to Payne over the
telephone.

6. On 05 May 2000 Payne arranged for Nickels release and
transportation to his office at 705 #3 West Indiana, Midland,
Texas. Payne had Nickels undress in his office and took sexually
explicit photographs of Nickels on a blue couch in the office.
While taking the photographs, Payne fondled Nickels’ breasts,
nipples, and genitals. After taking the photographs Payne had
Nickels engage in sexual intercourse with Payne.

7. Payne transported Nickels to and paid $150 for one week
at the Desert Inn, Room 68, 1003 South Midkiff, Midland, Texas in
a 1985 white Toyota Forerunner, Texas Licence XV9-037. Payne
gave Nickels $60 cash. Payne arranged for Nickels to work 12
P.M. to 3 P.M. at his office. During this time period Payne
asked Nickels if her parents had Internet access. Payne told
Nickels that he had posted the photographs he had taken of her on
the Internet under a web page entitled . . . [sexually explicit].

8. On one occasion, while Nickels was working at the office,
Payne had shown Nickels a number of computer disks. Payne
inserted these disks into a computer and access them showing
Nickels a series of sexually explicit photographs on the computer
screen. Payne stated that the next time Nickels posed for more
photographs she was to imitate the women depicted in these
computer images.

9. On other occasions, while Nickels was working at the
office, Payne suggested that Nickels could earn $75 by allowing
other men to take sexual explicit photographs of her.

10. While working for Payne, Nickels learned that the
computer in the office had Internet access and the Payne had a
computer with Internet access at his home, 3000 South County
Road, 1210, Space One, Midland Texas. [This paragraph included
the following handwritten modification, which was initialed by
the issuing magistrate: 3000 South County is the previous address
of Payne. 6800 FM 307, Greenwood, Texas is Payne’s current
address.]

11. Some time around 26 or 27 May 2000 Payne met Nickels at
a friend’s apartment. Payne and Nickels drove in a read
Chevrolet Camaro towards a strip club called “The Forrest” in

4
Ector County, Texas. Payne wanted Nickels to strip on stage at
“The Forrest.” Payne offered Nickels alcohol in an attempt to
entice her to perform or accompany Payne to “The Forrest.”
Nickels reminded Payne that Nickels was under aged. Payne stated
that he did not care, he knew the owners of “The Forrest” and
could get Nickels a job there.

12. On May 28 2000 Payne gave Nickels $150 to pay for
another hotel stay at the Days Inn, Room 3027, 4714 West Highway
80, Midland, Texas. Nickels had a friend, Dejaun Andrews,
register for the room because she was underage.

13. On 12 July 2000 law enforcement officers conducted a
“trash cover” at the office of 705 West Indiana, Midland, Texas.
In the trash, determined to be from Payne’s bond service,
computer image printouts were found which depicted the front face
picture of an Hispanic woman. These images were approximately 1
½ by 2 inches in size. Another image, approximately 6 by 9
inches in size depicted an Hispanic woman in a “sexy” pose.
These images appear to have been made with a digital camera. A
computer printed page also was found which had been cut in such a
way as to remove the computer image.

14. On 13 May 2000 Midland County Deputies served civil
papers on Payne’s office. Deputies reported that the background
of the computer printed images appeared to be Payne’s office.
The deputies also reported that there was a blue couch in the
back part of the office.

15. These Midland County Deputies [remainder of sentence is
handwritten and initialed by the Magistrate] reported that Tamara
and Bridget Wickerman stated that they could sleep with Payne to
get out of jail.

16. Investigation into Payne’s history showed that Payne was
fired by Midland Police Department 16 years ago after being
charged with rape. Midland Police records indicate that Payne
was stalking a former secretary and had record her to pose for
sexually explicit photographs. Payne reportedly dispersed copies
of these photographs in the parking lot of her employer to defame
her when she quit working for him.

17. Based on my training, knowledge and experience I have
found that persons engaged in sexual exploitation of children
often keep evidence relating to this exploitation in their homes,
offices, and vehicles. This evidence and the related records of
child exploitation are produced and maintained by:

5
 After drafting the affidavit, Agent Sutherland consulted with

Detective Johnson, Inspector Beam, and a prosecutor with the U.S.

Attorney’s Office to be sure that the affidavit demonstrated

probable cause. All agreed it did. The morning that Agent

Sutherland was to present the affidavit to a magistrate, two

deputies reported to him that they had received statements from two

more women that the women could have sex with Payne to get out of

Digital cameras, Tapes, Cassettes, Cartridges, Streaming tape,
Commercial software and hardware, computer disks, disk drives,
Monitors, Computer Printers, Modems, Tape drives, Disk
application programs, Data disks, System disk operating systems,
Magnetic media, Floppy disks, Scanner, Video camera, Tape systems
and hard drive, and other computer related operations equipment,
Computer photographs, Graphic interchange formats, Video Tapes,
Photographs, Slides or other visual depictions of child
pornography, child erotica, Information pertaining to the sexual
interest in child pornography, sexual activity with children or
the distribution, possession, transmissions of receipt of child
pornography, child erotica, or information to the sexual interest
in child pornography.

The Internet and Internet Service Providers are used to
disseminate child pornography. As previously mentioned, Payne
informed one of the minor victims that he disseminated explicit
photographs of her over the Internet.

Based upon the statements and investigation there in
probable cause to believe that Lonnie Jearl Payne has knowingly
employed, used persuaded, induced, enticed and coerced a minor to
engage in sexually explicit conduct for the purpose of producing
a visual depiction of such conduct and had reason to know that
the image was that such visual depiction would be transported in
interstate commerce, and such visual depiction was produced using
materials that have been mailed, shipped, or transported in
interstate commerce in violation of Title 18, United States Code,
section 2251, Sexual Exploitation of Children and title 18,
United States Code, Section 2252 and 2252(a), Certain Activities
Relating to Material Involving the Sexual Exploitation of Minors
and that evidence of such trafficking may be found in his
possession.

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jail. Agent Sutherland handwrote this additional allegation, as

well as a correction of Payne’s address, on the affidavit. He then

presented it to the magistrate, who initialed the handwritten

material to validate its inclusion in the affidavit, and, finding

probable cause, issued warrants authorizing searches of Payne’s

home, office, and vehicle.

The search of Payne’s home yielded a computer, computer disks,

and other items, such as videotapes and undeveloped film. Officers

also found several firearms, which they did not seize; instead,

they obtained a second warrant for the firearms based on their

observation of them during execution of the first warrant. The

disks and computer revealed many images of pornography, some of

which depicted teenaged children and young children. A disk in the

home computer’s A drive revealed sexually explicit images of Starla

Nickels.

Payne was arrested and indicted in four counts, which charged

him with violations of (1) 18 U.S.C. § 2251 (enticing a minor to

engage in sexually explicit conduct); (2) 18 U.S.C. § 2252

(producing and transporting through interstate commerce a visual

depiction of a minor engaged in sexually explicit conduct); (3) 18

U.S.C. 2252A (knowingly receiving child pornography and knowingly

possessing child pornography); (4) and 18 U.S.C. §§ 922(g)(1)

(felon in possession of a firearm).

Payne moved to suppress the evidence obtained from his home,

arguing that the warrant was issued without probable cause. The

7
district court found both that probable cause supported the warrant

and that, even if probable cause were absent, the evidence would be

admissible under the good-faith exception to the exclusionary rule.

During the trial, Payne objected to duplicity in Count Three

of the indictment. The district court determined that Payne had

waived his objection by failing to raise it before trial. Fed. R

Crim. Pro. 12(b). After reviewing the indictment to determine the

potential prejudice to Payne, the court instructed the jury that

Count Three charged two separate offenses and provided the jury a

verdict form that allowed for a verdict on each offense. After the

close of the government’s evidence, the court acquitted Payne of

Count Two based on insufficient evidence. The jury acquitted Payne

of Count One and convicted him of both offenses charged in Count

Three. Payne pled guilty to Count Four.

Payne now asserts that the rulings on his motion to suppress

and his objection to the indictment were error. He also challenges

sufficiency of the evidence supporting his conviction on Count

Three.

II. MOTION TO SUPPRESS

Payne contends that the evidence from home must be suppressed,

arguing that (1) the first warrant was issued without probable

cause as to his home because the supporting affidavit provided no

nexus between the alleged criminal activity and his home; and (2)

probable cause for the second warrant was developed during the

first, invalid search, therefore requiring suppression of any

8
evidence seized as fruit of the poisonous tree.

When the district court denies a motion to suppress, we review

factual findings for clear error and conclusions of law de novo.

United States v. Cherna, 184 F.3d 403, 406-07 (5th Cir. 1999). For

purposes of the good-faith exception, we review the district

court’s evaluation of officers’ objective reasonableness de novo.

Id. at 1130 and n.10 (internal quotations omitted).

We consider probable cause questions in two stages. First we

determine whether the good-faith exception to the exclusionary

rule, announced in United States v. Leon, 468 U.S. 897, 104 S. Ct.

3405 (1984), applies. See United States v. Pena-Rodriquez, 110

F.3d 1120, 1129-30 (5th Cir. 1997). If it does, we need not reach

the question of probable cause for the warrant unless it presents

a “novel question of law,” resolution of which is “necessary to

guide future action by law enforcement officers and magistrates,”

Id. (citations omitted). We conclude that this case presents no

such novel question.

Under the good-faith exception, evidence obtained during the

execution of a warrant later determined to be deficient is

admissible nonetheless, so long as the executing officers’ reliance

on the warrant was objectively reasonable and in good faith. Leon,

468 U.S. at 921-25. “[T]he officer’s reliance on the magistrate’s

probable-cause determination and on the technical sufficiency of

the warrant he issues must be objectively reasonable, and it is

clear that in some circumstances the officer will have no

9
reasonable grounds for believing that the warrant was properly

issued.” Id. at 922-23 (citations omitted). The good faith

exception cannot apply if one of four circumstances is present:

“(1) If the issuing magistrate/judge was misled by information in

an affidavit that the affiant knew was false or would have known

except for reckless disregard of the truth; (2) where the issuing

magistrate/judge wholly abandoned his or her judicial role; (3)

where the warrant is based on an affidavit so lacking in indicia of

probable cause as to render official belief in its existence

entirely unreasonable; and (4) where the warrant is so facially

deficient in failing to particularize the place to be searched or

the things to be seized that the executing officers cannot

reasonably presume it to be valid.” United States v. Webster, 960

F.2d 1301, 1307 n.4 (5th Cir. 1992).

In considering whether the good-faith exception applies, we do

not attempt an “expedition into the minds of police officers” to

determine their subjective belief regarding the validity of the

warrant. Leon, 468 U.S. at 922 n.23 (internal quotations omitted).

Rather, our inquiry is “confined to the objectively ascertainable

question whether a reasonably well trained officer would have known

that the search was illegal despite the magistrate's

authorization.” Id. Whether the exception applies “will ordinarily

depend on an examination of the affidavit by the reviewing court,”

United States v. Gant, 759 F.2d 484, 487-88 (5th Cir. 1985), but

“all of the circumstances [surrounding issuance of the warrant] may

10
be considered.” Leon, 468 U.S. at 922 n.23.

Payne argues that the affidavit is “so lacking in indicia of

probable cause as to render official belief in its existence

entirely unreasonable.” While conceding that the affidavit

supported probable cause that evidence of a practice of exchanging

bail bonds for sex would be found at his office, Payne argues that

it fails to demonstrate any likelihood that child pornography would

be found in his home.

Facts in the affidavit must establish a nexus between the

house to be searched and the evidence sought. United States v.

Freeman, 685 F.2d 942, 949 (5th Cir. 1982). The nexus may be

established through direct observation or through “normal

inferences as to where the articles sought would be located.” Id.

The affidavit contains two allegations concerning Payne’s

home: first, it asserts generally that “persons engaged in sexual

exploitation of children often keep evidence relating to this

exploitation in their homes, offices, and vehicles”; second, it

states that Nickels learned while working for Payne that he had

Internet access both at home and at the office.

Payne, emphasizing the fact that this was Agent Sutherland’s

first child sexual exploitation investigation, urges us to

disregard the so-called boilerplate language of the affidavit

asserting that evidence of child sexual exploitation is often kept

in the home of the perpetrator. This generalization stated what

Agent Sutherland learned in training and what more experienced

11
officers assisting him had learned in practice.2 Agent

Sutherland’s training taught him that people who sexually exploit

children tend to be “collectors” who keep evidence of the

exploitation at home, in their vehicles, and at their workplaces.

Generalizations in an affidavit regarding the likely location of

evidence will not undermine the reasonableness of reliance on the

warrant. See United States v. Broussard, 80 F.3d 1025, 1034 (5th

Cir. 1996). While the generalization alone might be insufficient

to render official reliance reasonable, other facts in the

affidavit taken together with generalizations founded upon training

and experience could support reasonable reliance. See id. at 1034-

35.

Other facts in the affidavit lend support to the inference

that evidence of child sexual exploitation might be discovered in

Payne’s home. The affidavit alleged that Payne had taken sexually

explicit photographs of a minor, had sexual intercourse with the

minor, told the minor that he posted the photographs of her on a

sexually explicit site on the Internet, and sought to engage the

minor in further sexually exploitative activity, even offering her

alcohol to overcome her inhibitions. The allegation that Payne

demanded sex from Nickels in exchange for bail bonds was

corroborated by other women who, though not minors, had similar

2
The affidavit states, and Agent Sutherland testified, that
he relied on his own training as well as the expertise of more
experienced officers in investigating Nickels's allegations and
drafting the affidavit.

12
experiences with Payne. The allegation that Payne photographed

Nickels was corroborated by photographs discovered in the trash

outside Payne’s office. The decision to credit seventeen-year-old

Starla Nickels’s story based on this corroboration, which we

conclude would be a reasonable choice, warrants the further

inference that Payne engaged in the sexual exploitation of a child.

The warrant alleged also that Payne had a computer with

Internet access at home. The facility of transmission and receipt

of digital photographs over the Internet, Payne’s conduct toward

Nickels and his statement that he posted nude photographs of her on

the Internet, and the fact of Payne’s Internet access at home all

support the inference that a search of the home might produce

evidence of child exploitation.

Agent Sutherland, Investigator Beam, and Detective Johnson–a

quite experienced investigator–all agreed that probable cause

existed, as did the U.S. Attorney with whom Agent Sutherland

consulted, as did the magistrate. Given the facts in Agent

Sutherland’s affidavit, a reasonably well-trained officer would be

entitled to accept the magistrate’s determination that “the facts

and circumstances described in the affidavit would warrant a man of

reasonable caution to believe that the articles sought” could be

located in Payne’s home. United States v. Maestas, 546 F.2d 1177,

1180 (5th Cir. 1977)(internal quotations omitted). As we have

stated, “few places are more convenient than one’s residence for

use in planning criminal activities and hiding fruits of a crime.”

13
United States v. Green, 634 F.2d 222, 226 (5th Cir. Unit B Jan.

1981). Although this notion does “not provide carte blanche for

searching a home when one is suspected of illegal activity,” United

States v. Pace, 955 F.2d 270, 277 (5th Cir. 1992), the inference

before us requires no such unfettered discretion.

Payne urges that the allegation that he had Internet access at

home is conclusory and should be disregarded. If the veracity of

an informant’s statement can otherwise be determined, the basis for

the informant’s knowledge need not necessarily accompany every fact

reported by the informant, See United States v. Kolodziej, 712 F.2d

975, 977 (5th Cir. 1983)(citing Illinois v. Gates, 462 U.S. 213,

103 S. Ct. 2317, 76 L.Ed.2d 527 (1983)), especially if the

informant is a victim or witness rather than a professional

confidential informant, see, e.g., United States v. Blount, 123

F.3d 831, 836 (5th Cir. 1997)(en banc)(whether subsequent

corroboration is necessary depends on totality of the

circumstances); United States v. Fooladi, 703 F.2d 180, 183 (5th

Cir. 1983)(police should be able to depend on reliability of

average citizen absent special circumstances); United States v.

Bell, 457 F.2d 1231, 1238 (5th Cir.1972)(reliability of informant

who is identified victim-witness to a crime need not be established

in the officer's affidavit).

Nickels, the victim of alleged exploitation by Payne, was a

non-professional informant. We recognize, however, that her arrest

for credit card abuse arguably casts doubt on her credibility. As

14
we discussed above, the affidavit described police investigation

that led to corroboration of Nickels’s account, including the

statements of other women who had similar knowledge of or

experience with Payne, and digital photographs discovered in the

trash outside Payne’s office. Nickels was a non-professional

informant who gave a detailed statement and whose allegations were

corroborated in part by police investigation. Official reliance on

her statements in the affidavit is not unreasonable.

In sum, we reject Payne’s contention that the affidavit was

"so lacking in indicia of probable cause as to render official

belief in its existence entirely unreasonable." Leon, 468 U.S. at

923. We conclude, considering the affidavit and the circumstances

surrounding issuance of the warrant, that the good faith exception

applies. Because the first search of Payne’s home was valid, the

second warrant prompted by weapons observed during the first search

was likewise valid.

III. DUPLICITY OF THE INDICTMENT

Payne argues that he was prejudiced by duplicity in Count

Three of his indictment.3 The government points out that Payne

3
An indictment is duplicitous when two separate offenses
are charged in a single count. § 2252A names receiving and
possessing child pornography, which were both charged in Count
Three of Payne’s indictment, as separate offenses:

a) Any person who--
* * *

(2) knowingly receives or distributes--

15
waived this objection because he failed to raise it before trial.4

Because Payne objected to the indictment only after the trial

began, the Rule 12(e) waiver applies.5 Our only question, then, is

whether the district court properly exercised its discretion in

(A) any child pornography that has been mailed, or
shipped or transported in interstate or foreign
commerce by any means, including by computer; or

(B) any material that contains child pornography that
has been mailed, or shipped or transported in
interstate or foreign commerce by any means, including
by computer;

* * *
(5) either--

(B) knowingly possesses any book, magazine, periodical,
film, videotape, computer disk, or any other material
that contains an image of child pornography that has
been mailed, or shipped or transported in interstate or
foreign commerce by any means, including by computer,
or that was produced using materials that have been
mailed, or shipped or transported in interstate or
foreign commerce by any means, including by computer;

* * *

shall be punished as provided in subsection (b).

18 U.S.C. § 2252A.
4
Rule 12(b)(3) provides: Motions That Must Be Made Before
Trial. The following must be raised before trial:
* * *
(B) a motion alleging a defect in the indictment or
information--but at any time while the case is pending, the court
may hear a claim that the indictment or information fails to
invoke the court's jurisdiction or to state an offense....

5
At oral argument counsel for Payne cited United States v.
Winters, 105 F.3d 200 (5th Cir. 1997), as holding that plain
error review applies despite a defendant’s waiver. Winters does
not stand for that proposition.

16
refusing to grant Payne relief from waiver. See United States v.

Elam, 678 F.2d 1234, 1251 (5th Cir. 1982).

The district court was well within its discretion. The judge

instructed the jury that Count Three comprised two offenses and

listed the elements of each offense. The verdict form

distinguished clearly between the two offenses charged in Count

Three and required the jurors to return a verdict for each

offense.6 Finally, after the jurors returned verdicts of guilty on

both offenses in Count Three, the court dismissed one offense and

sentenced only based on the remaining offense. Payne, having

waived his objection to the indictment, cannot now argue that the

district court should have granted the particular remedy of forcing

the government to elect one offense or the other.

Payne also objects to the absence of a definition for the word

“receiving” in the jury instructions. Payne failed to object to

the instruction at trial; therefore, we review for plain error,

which “occurs only when [the] instruction, considered as a whole,

6
The verdict form read in part:

Count Three

Do you find by proof beyond a reasonable doubt that:

1. Defendant is guilty/ not guilty Of each and every
element of Count Three as to knowingly receiving child
pornography?

2. Defendant is guilty/ not guilty Of each and every
element of Count Three as to knowingly possessing child
pornography?

17
was so clearly erroneous as to result in the likelihood of a grave

miscarriage of justice.” United States v. Davis, 19 F.3d 166, 169

(5th Cir. 1994). Payne asserts that, left without a definition of

“receiving,” the jury could do nothing but convict him based on the

definition given them of the word “possessing.” This argument

defies common sense. It stands to reason that the jury, given no

definition of “receiving,” would apply the word in its everyday

sense, thus differentiating between receiving and possessing.

Payne has failed to demonstrate that the instruction was so

erroneous as to result in a miscarriage of justice.

IV. SUFFICIENCY OF THE EVIDENCE

Payne challenges the sufficiency of the evidence supporting

his conviction for knowingly receiving child pornography.

Sufficiency of the evidence in a criminal case turns on whether a

reasonable trier of fact could have found that the evidence

established guilt beyond a reasonable doubt. United States v.

Smith, 296 F.3d 344, 346 (5th Cir. 2002)(citations omitted). We

view all evidence and all reasonable inferences drawn from it in

the light most favorable to the verdict. Id.

Payne’s sufficiency of the evidence challenge focuses on

whether the evidence supports a finding that he knowingly–i.e.,

voluntarily and intentionally–received child pornography. Payne

admitted to downloading the profusion of pornographic images

discovered on disks and the computer in his home, including the

images of child pornography. He testified, however, that he did

18
not know that he was receiving child pornography because most of

the photographs were downloaded using America Online 3.0, and he

could not view the photographs until after he had downloaded them

to computer disks.

The record illustrates that the content of many of the child

pornography images was evident from their file names.7 When asked

whether, given the volume of photographs in his possession, he did

not realize at some point what he was receiving, Payne responded:

“I knew that I was receiving child pornography and other

pornography but most of them disks were downloaded back when I had

the 3.0 and I couldn’t see the picture until after it was

downloaded.”

We conclude that the number of images in Payne’s possession,8

taken together with the suggestive titles of the photographs and

Payne’s testimony that he knew he was receiving child pornography,

supports the jury’s inference that Payne knew he was receiving

child pornography.

VI. CONCLUSION

7
For example, Detective Sheldon Johnson testified that some
of the child pornography images bore names such as “help mom,”
“nude Deb,” “four teen,” “12 F K,” “11 pose,” “mom teach,” and
“10 on dad.” R.6 197-200.
8
Payne argues that the jury could not have used the fact
of his possession to infer that he knowingly received child
pornography. We disagree. The jury was entitled to infer that
Payne’s past experiences downloading pictures of child
pornography at some point enabled him to predict the content of
child pornography images bearing suggestive labels.

19
 The officers who searched Payne’s home did so in objectively

reasonable good faith reliance on the search warrant. Thus, the

district court was correct to deny Payne’s motion to suppress. The

weapons seized in the second search deriving from the first were

likewise admissible. Payne waived his objection to duplicity in

his indictment, and the district court properly exercised its

discretion in refusing to grant Payne relief from the waiver.

Finally, we conclude that the record is sufficient to support

Payne’s conviction for knowingly receiving child pornography. We

affirm the judgment of the district court.

AFFIRMED.

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