United States Court of Appeals
For the First Circuit
No. 09-1455
UNITED STATES OF AMERICA,
Appellee,
v.
CANDIDO SALVA-MORALES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Howard, Circuit Judges.
Luis A. Guzmán Dupont, by appointment of the court, for
appellant.
Jenifer Y. Hernandez-Vega, Assistant United States Attorney,
with whom Rosa Emilia Rodriguez-Velez, United States Attorney,
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, and Thomas F. Klumper, Assistant United States
Attorney, were on brief for appellee.
October 31, 2011
Per Curiam. In 2005, federal agents identified an
internet protocol address in Puerto Rico that possessed, and
indicated it would share, videos containing child pornography.
Using this information, an agent determined that Candido Salva-
Morales ("Salva") owned the internet subscription, and that the
listed physical address was a computer shop that he owned and
operated in San Juan.
In a warrant-authorized search of the shop in March 2006,
forensic examiners retrieved two hard drives from Salva's personal
computer, which held respectively 74 and 102 files containing child
pornography. Salva was indicted in March 2007, and tried and
convicted in September 2008 by a jury of knowing possession of
child pornography, 18 U.S.C. § 2252(a)(4)(B) (2006). He was
sentenced to 84 months in prison and now appeals.
On appeal, Salva's first claim is that the evidence did
not support a jury finding on two separate elements required for
conviction and therefore his motion for judgment of acquittal
should have been granted. Review of such a claim is de novo but
"we examine the evidence, both direct and circumstantial, in the
light most favorable to the prosecution and decide whether that
evidence, including all plausible inferences drawn therefrom, would
allow a rational factfinder to conclude beyond a reasonable doubt
that the defendant committed the charged count or crime." United
States v. Cruz-Díaz, 550 F.3d 169, 172 n.3 (1st Cir. 2008).
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A separate jurisdictional element aside, the statute
requires for conviction that the defendant "knowingly possess[]"
one or more of listed items (e.g., films, video tapes) or "other
matter" containing "any visual depiction" where "a minor engaging
in sexually explicit conduct" was involved in producing the
depiction. 18 U.S.C. § 2252(a)(4)(B). Salva's first objection is
that, although his computer hard drives contained child pornography
and he possessed the computer, he was not shown beyond a reasonable
doubt to have knowingly possessed the pornographic files.
Although Salva himself did not testify to either his
actions or his knowledge, he offered multiple witnesses who
affirmed that Salva's own computer was available to and commonly
used by visitors to his shop. In addition, his forensic examiner
testified that data on one hard drive indicated that twenty-two
different users had saved files to it and that it was impossible to
tell conclusively from the forensic data on the drives who had
saved the pornographic files.
The government, however, showed that pornographic files
were recovered only from two of the hard drives associated with
Salva's personal computer and not from other computers in the shop
(which were also searched). Further, the names of many of the
files, going back to some of the earliest (stored in October 2005),
clearly indicated that they contained child pornography. And Salva
was always in the shop when others were present.
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Further, the government presented evidence directly
connecting Salva to several of the downloaded films. One of the
government's forensic examiners testified that several of the
pornographic video files recovered from Salva's hard drive were
created and placed in a "Porno" folder minutes before an image
named "Manuely Evy"--a picture depicting Salva with a female--was
created and saved to another folder ("My Pictures" within the
"Candido M. Salva" user directory) on that hard drive.
There is also evidence that pornographic files were being
accessed while Salva was alone in the shop--although not the
evidence to which the government has directed us.1 Rather, files
downloaded from the internet were accessed between 2 am and 3 am
and between 9 am and 10 am on the day of the search of Salva's
shop; as the owner of the shop who locked up the shop at night
before leaving and presumably opened it as well in the morning, it
is a reasonable inference that Salva was the one accessing the
files at these times.
Salva correctly points out that in many, perhaps most,
cases of this kind, the government presents stronger evidence of
knowing possession (e.g., limited access to the computer, other
1
The government also points to evidence which it says shows
that Salva was alone in his shop when the agents entered and that
some of the computer files had been accessed "right before" the
agents entered. But our own review of the record suggests that
while files had been accessed within that time frame, it is not
clear that they were pornographic films, although some such files
had been accessed some hours earlier.
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forensic evidence connecting the defendant to internet searches for
child pornography). But the question for us is whether a
reasonable jury on this record could rationally conclude beyond a
reasonable doubt that Salva knew that his own computer contained
such files--he need not have downloaded them himself--and we think
that a reasonable jury could so find.
The more difficult question concerns the jurisdictional
element of the statute. The matter containing the visual depiction
described above has either to have been (1) "mailed, or . . .
shipped or transported in interstate or foreign commerce," or (2)
"produced using materials which have been mailed or so shipped or
transported, by any means including by computer . . . ." 18 U.S.C.
§ 2252(a)(4)(B). Here, Salva suggests that there were two flaws in
the government's proof.
First, Salva argues that there is a lack of proof that
the depictions were transported in interstate commerce. But there
was proof--not irrefutable but adequate--that pornography files in
the computer had been downloaded through the internet. That is a
common, comparatively quick and simple method of gaining access to
a great deal of material--as compared, say, to loading material by
hand into the computer through DVD discs or by flash drive.
In any case, the government's forensic experts testified
that peer-to-peer file sharing programs, Kazaa and Shareaza, were
installed on the hard drives--both on one and Shareaza alone on the
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other, and that some of the pornographic files found were located
in folders whose path names indicated they were likely downloaded
through these services. Salva's own expert conceded that some of
these files appeared to be downloaded based on a comparison of the
"file created" and "written" date for each file.
Salva's brief does not directly dispute that the internet
was used, or at least that the jury could so find, but argues that
the statute does not say that--apart from the reference to "mail"--
mere use of a facility of interstate commerce is sufficient. This
court has already held that transmission over the internet is
sufficient to meet almost identically worded jurisdictional
elements in other closely related statutory provisions.2
Salva argues that there is no proof that he knew that
the images had been transmitted from other states or foreign
locations (and might make the same argument as to whether the
internet was used). We have already held--as is not uncommon with
a jurisdictional nexus--that the defendant need not know of the
nexus so long as it exists. United States v. Robinson, 137 F.3d
652, 655 (1st Cir. 1998).
Finally, whether or not required, it also appears that
Salva was specifically aware of some of the downloaded files and
not merely that the drives connected to his computer contained
2
See United States v. Pires, 642 F.3d 1, 9 (1st Cir. 2011) (18
U.S.C. § 2252(a)(2)); United States v. Hilton, 257 F.3d 50, 54 (1st
Cir. 2001) (18 U.S.C. § 2252A(a)(5)(B)).
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child pornography. As already noted, such downloaded files were
accessed on one occasion between 2 am and 3 am and 9 am and 10 am
in the same morning; and, a pornographic file from the "Porno"
folder and one from a Shareaza downloads folder were on another day
accessed within an hour of each other.
The government also points to an alternative basis for
jurisdiction resting on undisputed proof that Salva's hard drives
were both manufactured in Singapore. The statute might arguably be
stretched to include the copying to a hard drive (and thereby the
creation of a new file) of pornographic material.3 However, the
statutory language is convoluted; the issue is significant; and the
question has been briefed only by one side (the government) so we
prefer to reserve it for a case where it is decisive.
Two remaining claims relate to evidentiary rulings that
Salva claimed to warrant a new trial. The first claim is that the
district judge declined to allow into evidence a document
comprising the curriculum vitae of his expert computer witness.
The district judge said that the information was best elicited by
direct examination; Salva' lawyer did elicit it; and the witness
was qualified as an expert in front of the jury. There was no
3
At least some circuits may accept that as sufficient. Cf.
United States v. Angle, 234 F.3d 326, 340-41 (7th Cir. 2000)
(computer diskettes); United States v. Lacy, 119 F.3d 742, 750 (9th
Cir. 1997) (downloading of files). But cf. United States v.
Wilson, 182 F.3d 737, 742-43 (10th Cir. 1999)(reserving the issue).
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abuse of discretion and certainly no prejudice in the refusal to
allow the document itself in evidence.
The second objection also fails. After the expert had
testified that she could not tell who had downloaded the
pornography, defense counsel asked whether anyone could tell for
sure and the judge sustained an objection. But the judge then did
allow more or less the same question based on a rephrasing; and the
expert was permitted to respond: "There is no evidence to say 100
percent who downloaded those files, no." Again, there was no
possible prejudice.
Affirmed.
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