United States v. Moreland

Case: 09-60566 Document: 00511695314 Page: 1 Date Filed: 12/14/2011

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
December 14, 2011

No. 09-60566 Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee
v.

KEITH MORELAND

Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Mississippi

Before JOLLY, DeMOSS, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
The defendant-appellant, Keith Moreland (“Keith”), was convicted by a
jury of knowing possession of child pornography, 18 U.S.C. § 2252A(a)(5)(B)
(2006), sentenced to 51 months imprisonment and five years of supervision after
release, and ordered to register as a sex offender. At trial, the prosecutor
introduced 112 digital images of alleged child pornography that a Columbus,
Mississippi city police officer found in two home computers that Keith and his
wife, Deanna, owned and kept in their house in Columbus. Because Keith’s
father, George Moreland (“George”), was terminally ill and required assisted
living, he resided with Keith and Deanna off and on during 2007 and until his
death in January 2008. The police obtained possession of the Morelands’ two
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computers on September 28, 2007. During several months prior to September 28,
2007, the two computers had been subject to joint custody, control, and use by
Keith, Deanna, and George. George, who slept in the living room, frequently
used the computers late at night when Keith and Deanna were asleep and
during the day while Keith was at work. George, Keith, and Deanna each had
access to and free use and control of Keith’s username, password, and Yahoo!
account on the computers. The police never interviewed or investigated George
about his use of the computers or pornography. George died in January 2008.
Subsequently, Keith was indicted in May 2008 with knowing possession of child
pornography. He was tried and convicted of that charge by a jury in 2009.
Keith appeals his conviction. He argues that the evidence was insufficient
to rationally support a jury in finding beyond a reasonable doubt that he, rather
than George or another person, knowingly possessed the 112 images found on
the two computers. After viewing all of the evidence in the light most favorable
to the guilty verdict, we conclude that no reasonable jury could find beyond a
reasonable doubt that Keith had (1) knowledge that the 112 images were in the
computers; or (2) possession of the images, that is, the power and ability to
access and exercise dominion or control over them. Thus, we are required to
reverse the district court’s judgment of conviction.

I. Background of Law and Computer Technology
The “exploitive use of children in the production of pornography has
become a serious national problem.” New York v. Ferber, 458 U.S. 747, 749
(1982). In Ferber, the Supreme Court held that child pornography is
distinguishable from other sexually explicit speech. Child pornography is not

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protected by the First Amendment because the State has a “compelling” interest
in safeguarding the well-being of minors. Id. at 756-57. “The prevention of sexual
exploitation and abuse of children constitutes a government objective of
surpassing importance.” Id. at 757; see also Ashcroft v. Free Speech Coalition,
535 U.S. 234, 239 (2002). Therefore, while pornography may warrant First
Amendment protection and can be banned only if it is found to be obscene, see
Miller v. California, 413 U.S. 15 (1973), pornography that depicts minors can be
proscribed whether or not the images are obscene. Ashcroft, 535 U.S. at 240.
Moreover, the Court has held that the State’s interest in protecting children
from exploitation also justifies criminalizing the possession of pornography that
is produced using children. Osborne v. Ohio, 495 U.S. 103, 110-11 (1990); see also
Ashcroft, 535 U.S. at 250 (affirming Osborne while striking down a statutory
provision that outlawed possession of virtual child pornography because real
children were not exploited in its production). “The freedom of speech has its
limits; it does not embrace certain categories of speech, including defamation,
incitement, obscenity, and pornography produced with real children.” Ashcroft,
535 U.S. at 246.
The state’s power to criminalize child pornography and to prosecute
individuals for possession of child pornography is not unlimited. See Ferber, 458
U.S. at 764 (noting that “[t]here are . . . limits on the category of child
pornography which . . . is unprotected by the First Amendment”). “As with
obscenity laws, criminal responsibility [for child pornography] may not be
imposed without some element of scienter on the part of the defendant.” Id. at
765.

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Keith was convicted of the knowing possession of child pornography in
violation of the federal Protection of Children Against Sexual Exploitation Act,
18 U.S.C. § 2252A(a)(5)(B) (2006). At the time that he was charged, the statutory
provision prohibited, in pertinent part, “knowingly possess[ing] . . . any . . .
material that contains an image of child pornography that has been . . .
transported . . . in . . . interstate or foreign commerce by any means, including
by computer.” Id. Child pornography is defined therein as “any visual depiction
. . . involv[ing] the use of a minor engaging in sexually explicit conduct; . . . or .
. . [any] visual depiction [that] has been created, adapted, or modified to appear
that an identifiable minor is engaging in sexually explicit conduct.” 18 U.S.C. §
2256(8). Thus, to secure Keith’s conviction, the government had to prove beyond
a reasonable doubt that Keith knowingly possessed digital visual images of real
children engaging in sexually explicit conduct. The term “knowingly” extends
both to the age of the performers and the sexually explicit nature of the material.
United States v. X-Citement Video, Inc., 513 U.S. 64, 78 (1994).
Although the Supreme Court upheld a prohibition against both possessing
and viewing child pornography, see Osborne, 495 U.S. 103, at the time of Keith’s
offense, the federal statute and the majority of state statutes criminalized
“knowing possession,” but not mere “viewing,” of child pornography.1 The term

1
In 2008, the federal statute was amended to also criminalize “knowingly access[ing
child pornography] with intent to view.” Protection of Children Against Sexual Exploitation
Act, 18 U.S.C. § 2252A(a)(5)(B) (2006). The majority of states do not criminalize viewing child
pornography. See, e.g., Fla. Stat. § 827.071(4)-(6) (2010); La. Rev. Stat. Ann. § 14:81.1 (2006);
Miss. Code Ann. § 97-5-33 (2003); Tex. Penal Code Ann. § 43.26 (West 2011). Some states
criminalize possession or control of child pornography. See, e.g., Colo. Rev. Stat. § 18-6-403
(2009). A small minority of states criminalize viewing child pornography. See Alaska Stat.
§ 11.61.123 (2009); Ark. Code Ann. § 5-27-602 (2010); N.J. Stat. Ann. § 2C:24-4 (2010); Ohio
Rev. Code Ann. § 2907.323 (West 2010); 18 Pa. Cons. Stat. § 6312(d) (2009). The federal
statute also criminalizes knowing receipt of child pornography, see 18 U.S.C. § 2252A(a)(2)

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“knowingly possess” is not defined in the statute. “[I]n interpreting the term,
[federal courts] are guided by its ordinary, everyday meaning.” United States v.
Tucker, 305 F.3d 1193, 1204 (10th Cir. 2002); see also United States v.
Hildenbrand, 527 F.3d 466, 476 (5th Cir. 2008) (“Absent a statutory definition
or definitive clue, the meaning [of a statutory term] must be given its ordinary,
‘everyday meaning.’” (citation omitted)); United States v. Dobbs, 629 F.3d 1199
(10th Cir. 2011) (using ordinary meaning to analyze the term “receives” under
a related statute, 18 U.S.C. § 2252(a)(2)). Possession is defined as “the holding
or having something (material or immaterial) as one’s own, or in one’s control.”
Oxford English Dictionary (2d ed. 1989); see also United States v. Simpson, 94
F.3d 1373, 1380 (10th Cir. 1996) (defining “knowing possession” in the drug
context as encompassing situations in which an individual “knowingly hold[s]
the power and ability to exercise dominion or control” over the narcotics
(quotation omitted)); Webster’s New Collegiate Dictionary (11th ed. 2008)
(defining “possession” as “the act of having or taking into control”).
Child pornography can be distributed digitally over the internet and
personal computers. As child pornographers have become more tech savvy, so
have law enforcement officers and prosecutors. With the assistance of forensic
software, a skilled investigator can recover data from a computer that the user
thought was deleted or never even knew existed. In order for investigators,
prosecutors, and courts to properly analyze such evidence in the context of a
criminal prosecution for the knowing possession of child pornography, they must
have a basic understanding of how individual computers and the internet
interrelate and work. The major parts of a computer that come into play in a

(2006). Keith was not charged with this offense.

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typical case are its cache, its temporary internet files, and its unallocated slack
space.2
When a computer user views a webpage, the computer automatically
stores a copy of that webpage in a folder known as the cache. Ty E. Howard,
Don’t Cache Out Your Case: Child Pornography Possession Laws Based on
Images Located in Temporary Internet Files, 19 Berkeley Tech. L.J. 1227, 1229-
30 (2004). The copy is retained in a file called a temporary internet file. When
the user revisits that webpage, the computer can load the page more quickly by
retrieving the version stored in the cache. Id. at 1230. The computer
automatically deletes temporary internet files when the cache — which has
limited storage space — becomes full. Once full, the computer begins to delete
the files on a “first in, first out” basis. Note, Child Pornography, The Internet,
and the Challenge of Updating Statutory Terms, 122 Harv. L. Rev. 2206, 2212
(2009). Users also may manually delete files from the cache, or use commercial
software to remove the files. Id.
Deleted files are not wholly removed from the computer. A deleted file is
marked as unallocated file space, which allows that file to be overwritten by new
files. See Michele C.S. Lange & Kristin M. Nimsger, Electronic Evidence and
Discovery: What Every Lawyer Should Know Now 208-09, 235-36 (2d ed. 2009).
A computer’s deleted files make up what is known, in this case, as the disk slack
space. A knowledgeable forensic investigator may use forensic software to search

2
Files found in the disk slack space are sometimes called “orphan files,” as it is difficult
or impossible to trace their origin or date of download. See United States v. Kain, 589 F.3d 945,
948 (8th Cir. 2009) (“Orphan files are files that were on the computer somewhere saved but
were subsequently deleted, so the computer doesn’t know exactly where they came from.”
(internal quotation marks omitted)).

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for, recall, and view the contents of the unallocated file space. This process is
known as “restoring” a deleted, but not yet overwritten, file. It requires
sophisticated expertise and special software to restore a deleted file. See, e.g., id.
at 78, 231, 235-36 & fig. 5.8; Howard, supra, at 1234 n.22 (citing Joan E.
Feldman, The Basics of Computer Forensics, 12 Practical Litig. 17, 19-20 (2001);
and Richard Hardy & Susan Kreston, “Computers are like Filing Cabinets . . .”:
Using Analogy to Explain Computer Forensics, 15 Nat’l Ctr. for Prosecution of
Child Abuse Update Newsl. No. 9 (Nat’l Dist. Attorneys Ass’n, Alexandria, Va.),
2002).
Investigators may also utilize index.dat files in prosecuting child
pornography cases. The index.dat file is a record of all visited websites, as well
as the date and time that the site was last visited. Howard, supra, at 1235 n.26.

II. Factual Background
A.
Keith Moreland lived in a house in Columbus, Mississippi with his wife
Deanna and their three children. In 2007, George Moreland, Keith’s father, who
was dying of cancer, stayed at Keith and Deanna’s house for several months, off
and on, sleeping on the living room couch. There were two computers in the
house: a desktop, located in the living room, and a laptop. Keith, Deanna, and
George each had free access to and consistently used both computers. According
to Deanna, George regularly used both computers, including late at night and
at other times when Keith and Deanna were absent or not in the living room.
On September 28, 2007, Deanna was using the desktop computer and
noticed a URL (an internet address) in the web browser’s history which

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contained the words “Teen Topanga.” She testified that she clicked on it and
found what appeared to be a pornographic website, where she saw pictures of
“girls” who “appeared to be underage” and were “dressed, you know, very
provocative” but were not nude. Deanna then found the same URL in the web
browser history on the laptop computer as well.
Deanna was upset and called Keith, who was at work, to tell him what she
had found. Keith was a supervisor at a company called American Eurocopter,
where he regularly worked 10-to-12-hour days and was “responsible for the
planning and outlay of work programs throughout the day,” and had “about 14
to 16” employees working under him. According to Deanna, Keith “didn’t really
seem alarmed at all” and “said, well, you know, I haven’t looked at anything like
that. I don’t know how it got there. We’ll talk about it when I get home.” Keith
worked late that day, as he often did.
After speaking with Keith, Deanna called the sheriff’s department. She
testified that a friend of hers had suggested that she call the police. The deputy
who came to the house asked Deanna to turn the two computers over to the
police, and she did so. She also decided to pack a few things and take the
children to her parents’ house, because she expected to have a heated argument
with Keith when he came home from work, and did not like to argue in front of
the children. Deanna later testified that she was “concerned about what Keith’s
position would be with regards to his father.” When Keith returned home from
work, Deanna and the children had gone to her parents’ house. The following
morning, Keith went to compete in a bass fishing tournament with a friend.
While he was at the tournament, he received another phone call from Deanna,
at which point he walked back home.

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In January 2008, Keith’s father, George, died. Subsequently, on May 27,
2008, Keith was charged with possessing child pornography in violation of 18
U.S.C. § 2252A(a)(5)(B) (2006).3
B.
The trial took place on January 6 and 7, 2009. At trial, the government
introduced and displayed to the jury slide photos of 112 digital images that had
been taken from the hard drives of the Moreland household’s two computers. The
jury was given only 3 to 5 seconds to view each of these images. At the time the
images were shown, the jury had not been given any instruction as to the legal
definition of child pornography. After the jurors were later instructed, they did
not again view the images or expressly determine which images were child
pornography.

3
At the time the defendant was charged, this statutory provision, in pertinent parts,
prohibited “knowingly possess[ing] . . . any . . . material that contains an image of child
pornography that has been . . . transported . . . in . . . interstate or foreign commerce, by any
means, including by computer.” 18 U.S.C. § 2252A(a)(5)(B) (2006). The government, though
it introduced evidence showing that the computers themselves were manufactured in a foreign
country, did not introduce any evidence at trial that the 112 digital images found on the
Morelands’ two home computers had been transported in interstate or foreign commerce. One
federal court of appeals has held that a defendant’s mere connection to the Internet does not
satisfy the requirement of proof that the files or images in question were actually transported
in foreign or interstate commerce. United States v. Flyer, 633 F.3d 911, 918 (9th Cir. 2011)
(citing United States v. Wright, 625 F.3d 583, 595 (9th Cir. 2010)). However, the defendant did
not raise the insufficiency of evidence on this essential element of the crime below or present
argument on it on appeal. The commerce clause nexus element in the statute is not
“jurisdictional” in the sense that a failure of proof would divest the federal courts of
adjudicatory power over the case. See United States v. Ternus, 598 F.3d 1251, 1254 (11th Cir.
2010); see also United States v. Sealed Appellant, 526 F.3d 241, 243 & n.4 (5th Cir. 2008)
(quoting United States v. Martin, 147 F.3d 529, 531-32 (7th Cir. 1998)); United States v.
Lasaga, 328 F.3d 61, 63-64 (2d Cir. 2003); United States v. Robinson, 119 F.3d 1205, 1212 n.4
(5th Cir. 1997). Therefore, we do not consider or decide this issue; nor is it necessary to our
disposition of this appeal.

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The government relied upon Matthew Manley, a Columbus, Mississippi
police officer, to examine the Morelands’ two home computers and testify as to
his findings. He was not offered, qualified, or accepted as an expert in child
pornography or in forensic computer technology. He testified that he had
received 160 hours in computer training and was serving as a computer
investigator for the city police department. Manley said that he could only testify
as to the facts of what he found on the Morelands’ two computers. Because of the
lack of information in the computers, Manley said he could not testify as to
where the images had come from, when they were received or deleted, or who
was operating the computer at those times; also, he testified that he could not
express an opinion as to whether any particular image was child pornography.
Manley testified that he performed a forensic examination of the
computers using software called Forensic Toolkit (FTK). He used FTK to process
the data on the computers’ hard drives, and to look for and recover deleted files.
He recovered “tens of thousands of images,” and flagged only those that he
thought might possibly contain child pornography. The prosecutor then selected
the 112 images to present to the jury and place into evidence. Because a
computer does not save the source or date of a file when the file is deleted,
Manley was unable to recover information pertaining to where the images had
come from or when they entered the computer. He also testified that he was
unable to recover data showing when the images had been deleted. He testified
that “[t]he majority of the [images] that were found on both computers were
found in the disk slack space. They had been deleted and, you know, were not
able to be fully recovered as far as date, time stamps, and things like that to
know when they were deleted, but the images were able to be recovered.” He

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later indicated that a few images had come from other places in the computers,
but he did not explain which ones those were or where he had found them.
Manley also testified that deleted files can continue to exist on a computer’s hard
drive and be recovered: “When [a person] . . . hit[s] the delete button . . . that file
just isn’t immediately scrubbed from [the] hard drive. The way Windows and
most operating systems work is, it just goes in there and delete the first string
of code, which is known as the header, which tells Windows, I now have that
space free in there. It doesn’t mean that it’s automatically deleted off of the
computer. It’s just available for that space.” Thus, Manley testified that he had
recovered most of the 112 digital images that the government introduced at trial
from the computers’ unallocated slack spaces, indicating that they had been
deleted but had not yet been overwritten, and therefore could be recovered.
Manley also testified in respect to the computers’ index.dat files, which
reflected the computers’ internet browsing history. Manley explained that an
index.dat file “basically makes a bread crumb trail of where you’ve been and
what sites you’ve been to and the last time you were there.” Approximately
twenty index.dat files on the laptop were considered to have evidentiary value;
together, the files contained “thousands of pages of listings.” He did not testify
about how far back in time the index.dat files went, what date ranges were
contained in the twenty index.dat files that were found to have evidentiary
value, or how many files were not entered into evidence. Manley initially stated
that, on print-outs of the index.dat files, he “highlighted in pink every web site
that was visited that was pornographic,” but later clarified that he limited his
pink highlighting to “web sites that are still up that were of teen in nature
pornography sites,” and furthermore noted that he highlighted websites that he

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guessed might be pornographic based on the title, but could not verify that they
contained illegal child pornography.4 The government did not introduce into
evidence any images from these websites. Manley admitted on cross-examination
that some such websites advertise themselves suggestively as underage sexually
explicit websites by their names and other features, but, ultimately when they
are inspected, they turn out not to be unlawful child pornography websites but
legal adult pornography websites.
Manley found usage patterns showing that a user of the computers had
visited a website that might have contained child pornography shortly after or
shortly before visiting the Yahoo! website where the user checked email or
played dominoes. As Manley acknowledged, however, this evidence did not
indicate who actually visited those sites. Keith was not the only person who used
the computers prior to Manley’s inspection of them sometime in October 2007.
For several months prior to September 28, 2007, Keith’s father, George, lived in
the Morelands’ living room and used the family’s computers often and as he
pleased. On cross-examination, Manley testified that the data revealed that the
suspected pornographic websites were visited by someone using the computers
in 2007. Thus, as he admitted, Manley could not identify whether it was George,
Deanna, Keith, or another person who was using the computers when the usage
patterns occurred. Specifically, Manley acknowledged that anyone who knew
Keith’s password could log on to the computers and use Keith’s accounts on

4
The federal statutory definition of child pornography, as relevant here, requires a
depiction of “a minor engaging in sexually explicit conduct.” 18 U.S.C. § 2256(8). A minor is
“any person under the age of eighteen years.” 18 U.S.C. § 2256(1). “Teen pornography” is not
defined by law and may involve eighteen- or nineteen-year-old teenagers, which is adult
pornography that is not illegal unless it is obscene. See id.

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them; and that if Keith logged on to one of the computers, put his password in
and got up and left it on, subsequently another person could come and use that
computer in Keith’s name and account.
Manley testified that the laptop computer had only one user account,
which “had the user name of Keith Moreland.” The desktop computer had three
user accounts, in the names of Keith, Deanna, and their son. George did not have
a separate user account on either computer. According to Deanna, Keith “was
always logged on” from both computers to his Yahoo! account on the internet.
Therefore, she testified, she did not need a password to access his account, and
that she used his Yahoo! email account to check and send email. Manley
confirmed that if someone remained logged on to their account, anyone using
that computer could access the account, and that he could not testify as to who
actually was using the computer at any given time. Deanna further explained
that because their household had cable wireless internet, rather than dial-up,
the computers were always logged into the internet, and that Keith was always
logged in to his Yahoo! account. She also testified that Keith “has the same
password for everything,” and that she knew the password.
Deanna testified that she had not looked at child pornography on the
computers and that she had never seen anyone in her home looking at any kind
of pornography. Keith also testified that he had not looked at child pornography
on the computers. According to Deanna and Keith’s uncontradicted testimony
at trial, George often used both computers in the Moreland household while he
was staying at their house. Deanna testified that it was “not uncommon” for
George to use the computers at night when the rest of the family went to bed.
According to Keith, “My father always logged in under my name. My name was

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always up [on the computers], and that’s what he used. . . . [George] didn’t have
an account on my computer. He did everything in my name.” Deanna further
testified that George “was a character that I was very suspicious of,” explaining
that George “was definitely into pornography. He would readily admit it to
anybody that would listen. I always felt he had a guilty conscience, because he
would just put it out there, and it was a little awkward. So that was common
knowledge. Everybody that knew the man knew that.” She also testified that she
told the police that she suspected her father-in-law when she spoke with them
a second time, but that the police did not give her “much of an opportunity to say
anything.”
Eric Moreland, Keith’s brother and George’s son, corroborated Deanna’s
and Keith’s testimony about George. Eric lived with his wife, Kayla, next door
to George’s house in Gatman, Mississippi. He testified that he had known “for
a long time” that George “had an issue with viewing adult material.” Eric
testified that after George learned that Keith’s computers were being
investigated for child pornography, George “contacted me and asked me to bring
his computers to him at the residence he was staying and proceeded to ask me
to destroy it, to take the hard drive out of the machine and get rid of it.”
According to Eric, “I told [George] I wasn’t actually going to do that, but I would
take it apart and let him destroy it hisself. As far as I know, he destroyed it. I
have no idea where it’s at at this point. I just assumed that he got rid of it.”
Kayla, Eric’s wife, also testified that “right after all of this came up” – referring
to the police’s investigation of Keith’s and Deanna’s computers – George called
Eric and asked Eric to pick up George’s computer from George’s house and bring
it to George’s current residence. She stated that Eric brought George his

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computer, and then George “had something done with it.” Eric and Kayla both
testified that after George died, they cleaned out George’s house and found a
large amount of pornographic material, including magazines and videotapes.
With regard to this testimony concerning George’s obsession with
pornography and his destruction of his own computer, the prosecution attempted
to discredit the testimony of Keith, Deanna, Eric, and Kayla on cross-
examination. The prosecution challenged the four witnesses for not informing
the police of George’s conduct. The law enforcement officers who testified at trial
acknowledged that Deanna had mentioned George to them in connection with
their investigation, but denied that she ever specifically informed them that
George had access to the computers. The record does not indicate that the police
ever interviewed George or investigated him in connection with his use of the
computers or with the 112 photographic images found on the two computers in
the Moreland household.
The prosecutor attempted to discredit and show the partiality of Deanna,
Eric, and Kayla through his examination of Deanna — who appeared as both a
government and defense witness — and his cross-examination of the other
Moreland family members. Beyond this, however, the government did not
present any affirmative evidence that called into question those witnesses’
testimony, including their description of George’s affinity for pornography and
his actions to destroy his own computer’s hard drive after the police obtained
custody of Keith’s and Deanna’s home computers. Moreover, the prosecutor
introduced no evidence to dispute Keith’s and Deanna’s testimony that she and
George had used Keith’s password and accounts continually to operate the two
home computers. For instance, the government introduced no evidence to show

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that George had his own separate Yahoo! account that he had used while staying
at Keith and Deanna’s house; or to show that the computers were ever used by
Deanna or George to access any Yahoo! account other than Keith’s. Thus, the
undisputed evidence of record establishes that at least three adults, Keith,
Deanna, and George, had access to the Morelands’ home computers and had
access to Keith’s Yahoo! account prior to September 28, 2007 when Deanna
turned the computers over to the police.

III. Analysis
A. Standard of Review
Keith argues that the evidence was constitutionally insufficient to carry
the government’s burden of proof beyond a reasonable doubt as to two essential
elements of the crime5: first, that the evidence was insufficient to support a
finding beyond a reasonable doubt that Keith, rather than George or another
person, possessed the images that are the basis of the conviction; and second,
that the evidence was insufficient to support a finding beyond a reasonable
doubt that whoever possessed the images had actual knowledge that they were
child pornography. Because Keith properly preserved his argument regarding
the insufficiency of the evidence as to his knowing possession of child

5
We do not address, inter alia, the defendant’s argument that Manley gave expert
testimony about how computers work without being tendered or qualified as an expert,
making his testimony on that subject inadmissible under Fed. R. Evid. 701(c). See United
States v. Garcia, 413 F.3d 201, 215 (2d Cir. 2005). Nor do we address the argument that the
prosecutor deprived the defendant of due process by commenting at trial on his exercising his
right to remain silent after his arrest. See United States v. Laury, 985 F.2d 1293, 1304 (5th
Cir. 1993). We also do not address Keith’s argument that the prosecution failed to prove that
the 112 digital images are actual child pornography and not depictions of youthful-looking
adults or virtual or artificial minor child images.

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No. 09-60566

pornography by moving for a judgment of acquittal after the close of all the
evidence, this court’s review is de novo. See United States v. Williams, 602 F.3d
313, 314-15 (5th Cir.), cert. denied, 131 S. Ct. 597 (2010). We conclude that the
evidence was insufficient to support a finding beyond a reasonable doubt that
Keith knowingly possessed the images in the computers because the evidence
does not sufficiently demonstrate that a rational jury could find beyond a
reasonable doubt that Keith had knowledge that the images were in the
computers or that Keith had the requisite knowledge and ability to access them
and to exercise dominion or control over them.
B. Due Process Requirements
Keith argues that his conviction violated the Due Process Clause of the
Fourteenth Amendment, which forbids conviction “‘except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime with which [the
defendant] is charged.’” Jackson v. Virginia, 443 U.S. 307, 315 (1979) (quoting
In re Winship, 397 U.S. 358, 364 (1970)). This requirement “provides concrete
substance for the presumption of innocence — that bedrock ‘axiomatic and
elementary’ principle whose ‘enforcement lies at the foundation of the
administration of our criminal law.’” Winship, 397 U.S. at 363 (quoting Coffin
v. United States, 156 U.S. 432, 453 (1895)).
Despite the importance of this constitutional principle, judges must be
highly deferential to the jury’s verdict of conviction: courts “view[] the evidence
in the light most favorable to the prosecution.” Jackson, 443 U.S. at 319; see also
United States v. McNealy, 625 F.3d 858, 870 (5th Cir. 2010) (citing United States

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No. 09-60566

v. Harris, 293 F.3d 863, 869 (5th Cir. 2002)).6 Here, “[i]n deciding whether the
evidence was sufficient, we review all evidence in the light most favorable to the
verdict to determine whether a rational trier of fact could have found that the
evidence established the essential elements of the offense beyond a reasonable
doubt.” United States v. Shum, 496 F.3d 390, 391 (5th Cir. 2007).
That said, in viewing the evidence in the light most favorable to the
prosecution, we “consider the countervailing evidence as well as the evidence
that supports the verdict in assessing sufficiency of the evidence.” United States
v. Brown, 186 F.3d 661, 664 (5th Cir. 1999) (internal quotation marks omitted).
We also will draw upon only “reasonable inferences from the evidence to support
the verdict.” United States v. Percel, 553 F.3d 903, 910 (5th Cir. 2008) (quoting
United States v. McDowell, 498 F.3d 308, 312 (5th Cir. 2007)) (internal quotation
marks omitted).“[A] verdict may not rest on mere suspicion, speculation, or
conjecture, or on an overly attenuated piling of inference on inference.” United
States v. Rojas Alvarez, 451 F.3d 320, 333 (5th Cir. 2006) (alteration in original)
(quoting United States v. Pettigrew, 77 F.3d 1500, 1521 (5th Cir. 1996)) (internal
quotation marks omitted); see also United States v. D’Amato, 39 F.3d 1249, 1256
(2d Cir. 1994) (“[A] conviction based on speculation and surmise alone cannot

6
As the Supreme Court recognized in Jackson v. Virginia, “[A] properly instructed jury
may occasionally convict even when it can be said that no rational trier of fact could find guilt
beyond a reasonable doubt . . . . In a federal trial, such an occurrence has traditionally been
deemed to require reversal of conviction.” 443 U.S. at 317. We remain highly deferential to
jury verdicts, but are obligated, as judges, to reverse a conviction where, having viewed all
evidence in the light most favorable to the prosecution, we must conclude that the record
cannot support a conclusion that the prosecution established guilt beyond reasonable doubt.
Id. at 318-19; United States v. Ragan, 24 F.3d 657, 659 (5th Cir. 1994) (“Although the strict
nature of this standard demonstrates our reluctance to interfere with jury verdicts, this case
is an example of why courts of appeal must not completely abdicate responsibility for
reviewing jury verdicts.”).

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stand.”). Courts cannot “credit inferences within the realm of possibility when
those inferences are unreasonable,” United States v. Quattrone, 441 F.3d 153,
169 (2d Cir. 2006). In keeping with this standard, we have held that no
reasonable jury could convict a defendant where the government has done
nothing “more than pile inference upon inference” to prove guilt. McDowell, 498
F.3d at 314; United States v. Maseratti, 1 F.3d 330, 337 (5th Cir. 1993); see also
United States v. Sandlin, 589 F.3d 749, 757-58 (5th Cir. 2009) (reversing a
defendant’s sentencing enhancement because it found that the evidence for
enhancement was supported by “nothing beyond speculation”). The government
must do more to support a conviction. McDowell, 498 F.3d at 314. We also have
held that no reasonable jury could find a defendant guilty of an offense where
the “evidence gives equal or nearly equal circumstantial support to a theory of
guilt, as well as to a theory of innocence.” United States v. Ferguson, 211 F.3d
878, 882-83 (5th Cir. 2000); United States v. Jaramillo, 42 F.3d 920, 923 (5th
Cir. 1995). Convictions based on such evidence must be reversed. Ferguson, 211
F.3d at 882-83. This standard must be applied with explicit reference to the
substantive elements of the criminal offense as defined by law. Jackson, 443 U.S.
at 324 n.16.
C. Sufficiency of the Evidence
1. Joint Custody vs. Constructive Possession
In order to obtain a conviction under 18 U.S.C. § 2252A(a)(5)(B) (2006), the
government must prove beyond a reasonable doubt that Keith knowingly
possessed material that contained an image of child pornography that had been
transported in interstate or foreign commerce by any means, including by
computer. Keith contends that the evidence was insufficient to prove beyond a

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No. 09-60566

reasonable doubt that he possessed any such image of child pornography or that
he did so knowingly.
Possession may be either actual or constructive. United States v.
Mergerson, 4 F.3d 337, 348 (5th Cir. 1993); United States v. McKnight, 953 F.2d
898, 901 (5th Cir. 1992). “Actual possession means the defendant knowingly has
direct physical control over a thing at a given time.” United States v. Munoz, 150
F.3d 401, 416 (5th Cir. 1998). “Constructive possession is the ownership,
dominion or control over an illegal item itself or dominion or control over the
premises in which the item is found.” United States v. De Leon, 170 F.3d 494,
496 (5th Cir. 1999). Because there was no evidence that Keith had direct
physical control of any of the 112 digital images in the computers, the
prosecution tried this case as a “constructive possession” case.
The government may prove constructive possession by circumstantial
evidence. Id.; United States v. Jones, 133 F.3d 358, 362 (5th Cir. 1998).
Dominion, control, and knowledge, in most cases, may be inferred if a defendant
had exclusive possession of the place in which the contraband is found, but this
inference cannot be sustained if the defendant shared joint occupancy of the
place. United States v. Crain, 33 F.3d 480, 486 (5th Cir. 1994); Mergerson, 4 F.3d
at 349. “[W]here . . . a residence is jointly occupied, the mere fact that
contraband is discovered at the residence will not, without more, provide
evidence sufficient to support a conviction based upon constructive possession
against any of the occupants.” Mergerson, 4 F.3d at 349 (second alteration in
original) (internal quotation marks omitted); accord United States v. Mills, 29
F.3d 545, 549 (10th Cir. 1994); United States v. Ford, 993 F.2d 249, 252 (D.C.
Cir. 1993); United States v. Sullivan, 919 F.2d 1403, 1431 (10th Cir. 1990);

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United States v. Reese, 775 F.2d 1066, 1073 (9th Cir. 1985). When the
government seeks to prove constructive possession of contraband found in a
jointly occupied location, it must present additional evidence of the defendant’s
knowing dominion or control of the contraband, besides the mere joint occupancy
of the premises, in order to prove the defendant’s constructive possession.
Mergerson, 4 F.3d at 349. A conviction based upon constructive possession will
be upheld only where the prosecution has proven that there is “something else
(e.g., some circumstantial indicium of possession) . . . besides mere joint
occupancy” that “support[s] at least a plausible inference that the defendant had
knowledge of and access to the . . . contraband.” Id.
Based on our review of the evidence in the light most favorable to the
guilty verdict, we conclude that there was not sufficient evidence for a rational
jury to find beyond a reasonable doubt that Keith knowingly and constructively
had possession of the 112 digital images found in the computers’ slack space.
Because the government attempted to prove that Keith had constructive
possession of the images, and the two computers had been in the joint custody
and use by Keith with George and Deanna, the government was required to
introduce evidence, in addition to the evidence of mere joint custody, to support
a reasonable inference both that Keith knew that the images were in the
computers and that Keith had the knowledge and ability to access the images
and to exercise dominion or control over them. The evidence—both direct and
circumstantial, together with the reasonable inferences to be drawn
therefrom—is sufficient if, when taken in the light most favorable to the
government, a reasonable jury could find the defendant guilty of all of the
essential elements of the crime beyond a reasonable doubt. In this case, however,

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No. 09-60566

the government failed to come forward with sufficient proof to justify a rational
jury in finding a reasonable inference of Keith’s knowledge of, access to, or
dominion or control over the 112 digital images in the computer; thus, the
evidence is not sufficient to support a reasonable jury in finding that Keith had
constructive possession of the images or that he was guilty beyond a reasonable
doubt.
The government’s arguments to the contrary are not persuasive or
meritorious. First, the government argues that Officer Manley’s testimony
provided additional facts that, when considered with the prosecution’s other
evidence, formed the basis for a finding beyond a reasonable doubt that Keith
knowingly exercised dominion or control over the digital images in the
computers’ slack space. We disagree for several reasons.
Manley admitted that he could only testify to the data that he found in the
computers. He further acknowledged that he could not determine from the data
in the computers where the 112 images he found there had come from, when
they had entered the computers, or when they had been deleted and
redesignated as slack spaces on the computers’ hard drives. He also
acknowledged that he could not tell from the data in the computers who, i.e.,
whether Keith, George, Deanna, or another person, was using the computers
when the computers received the 112 images; or when the computers deleted the
images and redesignated them as unallocated slack spaces on the computers’
hard drives; or when the computers visited websites that he suspected of
containing child pornography.7 He did not produce, and the government did not

7
Indeed, Manley highlighted and flagged a portion of the index.dat files that showed
that someone other than Keith, who was using Keith’s user name, accessed Keith’s Yahoo!
accounts within minutes of going to a suspected teenage pornographic website at 5:43 p.m. on

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introduce, any evidence from those websites to prove that they contained child
pornography. Thus, Manley was unable to determine whether any of the 112
images found in the computer came from any of the websites that the index.dat
files indicated the computers had visited. In sum, Manley did not provide any
testimony or evidence from which it could reasonably be inferred that Keith had
ever seen the 112 images; knew that they were in the computers; or that Keith
had the knowledge and ability to access those images or exercise dominion or
control over them. Manley further testified that he could not express an opinion
on whether any particular image found in the computers was child pornography.
We do not reach the issue of whether the images met the statutory definition of
child pornography, however, because the government failed to introduce
sufficient evidence to establish Keith’s culpability beyond a reasonable doubt
even if the 112 images were child pornography.
Second, the government argues that Keith’s statements and conduct after
Deanna called him at work on September 28, 2007 to tell him what she had
found on the computers provides circumstantial evidence besides the mere joint
custody of the computers that furnished the jury with a basis for reasonably

September 28, 2007, Coordinated Universal Time, which was 12:43 p.m. local time. Both
parties agree that Keith was at work at that date and time and could not have been the home
computer operator; instead, it appears most likely that the user of the home computer in that
instance was Deanna. Rather than serving as proof that Keith was the computer user who
accessed the suggestively named websites, this is evidence that persons other than Keith had
access to his Yahoo! accounts and could and did access his account within moments of
accessing a lewd website. Evidence from the index.dat files that someone accessed Keith’s
Yahoo! account around the time that someone accessed suggestively lewd websites does not
provide additional facts beyond mere joint custody, from which it could reasonably be inferred
that Keith had knowledge of the images or the ability to access them and exercise dominion
or control over them, because that evidence does not show that Keith, rather than George or
another member of the household, accessed those websites.

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No. 09-60566

inferring that Keith knew about the 112 images in the computers and that he
had the knowledge and ability to access the images and exercise dominion or
control over them. The linchpin of the government’s argument is its bare
assertion or speculation that if Keith had been ignorant of the images in the
computers, he would have gone home immediately to inspect the computers and
to upbraid his seriously ill father and to throw him out of the house; rather than
replying, as he did, by saying he didn’t know the images were there because he
hadn’t looked at anything like that; and that he would look into the matter when
he got off work. We do not believe the government’s assertion or speculation is
reasonable or supports a plausible inference of Keith’s knowledge of, access to,
or dominion or control over the 112 images. The government does not point to
any facts or evidence in the record to support its assertion or speculation that a
person’s failure to react so drastically and harshly to his dying father under
these circumstances is grounds for a reasonable inference of his guilt of
knowingly possessing child pornography.
In our previous joint occupancy cases, this court has adopted a
“commonsense, fact-specific approach” to determining whether constructive
possession was established. Mergerson, 4 F.3d at 349 (quoting United States v.
Smith, 930 F.2d 1081, 1086 (5th Cir. 1991)) (internal quotation marks omitted).
We have found constructive possession in such cases only when there was some
evidence supporting at least a plausible inference that the defendant had
knowledge of and access to the weapon or contraband. Id. (citing McKnight, 953
F.2d at 902 (upholding conviction where the weapon was found in plain view);
and Smith, 930 F.2d at 1086 (same)). In the instant case, the digital images were
not in plain view, but were in the computers’ unallocated slack spaces, which are

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No. 09-60566

accessible only to a knowledgeable person using special computer software, and
there was no circumstantial indicium that established that Keith knew of the
images or had the ability to access them.
Thus, we hold that the evidence supporting Keith's conviction of knowing
possession of child pornography is constitutionally insufficient.
2. Comparison With Exclusive Possession Cases
The proof deficiency here is underscored by a comparison with other
federal courts of appeals’ decisions holding that, even when the defendant has
exclusive possession of his computer, evidence of storage of child pornography
images in the hard drive of a defendant’s computer, without more, is insufficient
to sustain a conviction or sentence for knowing possession or receipt of child
pornography; and that in exclusive possession cases in which convictions have
been upheld, the government has presented additional evidence of the
defendant’s knowledge, access and control of the child pornographic images.
In United States v. Dobbs, 629 F.3d 1199 (10th Cir. 2011), the Tenth
Circuit concluded that Dobbs’ conviction for receipt and attempted receipt of
internet child pornography must be reversed because the evidence was
insufficient to support the jury’s finding of guilt. Id. at 1209. The prosecution
proved only that two child pornography images were found in the cache of Dobbs’
computer. Id. at 1202. The court found that this evidence was insufficient to
support Dobbs’ conviction because the prosecution failed to demonstrate that
Dobbs knew about his computer’s automatic caching function, had seen the
images, or had any ability to exercise control over them. Id. at 1205, 1207.
Therefore, the Tenth Circuit determined that while a jury could conclude from

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No. 09-60566

that evidence that Dobbs — or at least his computer — received the images, no
reasonable jury could find that he knowingly received the images.
In Dobbs, the court specifically rejected the prosecution’s argument that
proof of Mr. Dobbs’ pattern of seeking out and downloading internet child
pornography was sufficient circumstantial evidence to support Dobbs’ conviction,
because the prosecution could not show that Dobbs conducted a search for child
pornography or visited child pornography websites “immediately prior to the
creation of those two images in the cache.” Id. at 1204. Therefore, proof of illegal
searches was still insufficient where those searches could not be linked to the
pornographic images for which the defendant had been indicted.
The Ninth Circuit also has demanded more than the mere presence of
child pornography images in a computer’s hard drive to prove knowing
possession, when those images are found in an area of the computer that non-
expert users do not know about or cannot access. In United States v. Kuchinski,
469 F.3d 853 (9th Cir. 2006), the defendant appealed his sentence because the
court had taken into account additional images recovered on his computer after
he pleaded guilty to receiving and possessing different child pornography
images. Id. at 857. The court vacated his sentence because the additional images
were found in the cache and the prosecution had offered no evidence to show that
Kuchinski was a “sophisticated” computer user, had ever tried to access the
cache, or “even knew of [its] existence.” Id. at 862. The court therefore found that
“[w]here a defendant lacks knowledge about the cache files, and concomitantly
lacks access to and control over those files, it is not proper to charge him with
possession and control of the child pornography images located in those files,
without some other indication of domination and control over the images. To do

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No. 09-60566

so turns abysmal ignorance into knowledge and a less than valedunarian grasp
into dominion or control.” Id. at 863.
Cases in which we and other circuits have upheld convictions for
possession of digital images of child pornography are as telling as the cases in
which the convictions were overturned. Affirmation of convictions have been
based on substantially more evidence than a defendant’s mere ownership and
custody of the computer. In fact, the evidence introduced in those cases tended,
independently of ownership or custody of the computer, to prove the defendant’s
knowledge and possession of the unlawful images or material concealed in the
computer’s hard drive. When the images are stored in inaccessible areas of a
hard drive or could have been downloaded and retained by a computer’s
automatic processes without the computer owner’s knowledge — such as
temporary internet files or, as here, in the computer’s disk slack space — courts
have treated as determinative whether the defendant had sufficiently expert
computer knowledge to know about and access those files or whether there were
independent facts that showed the defendant’s knowledge and dominion of child
pornography images on the computer.
For example, in United States v. Winkler, 639 F.3d 692 (5th Cir. 2011), this
court upheld a defendant’s conviction for receipt and possession of child
pornography because the government had produced sufficient evidence that
“Winkler himself sought out, downloaded, viewed and had the ability to
manipulate the images at issue in this case.” Id. at 699. The prosecution
produced evidence that illicit videos on Winkler’s computer were “hidden . . .
behind password walls in his . . . user account” or in “unnatural locations in the
computer’s file hierarchy rather than the normal location for downloaded

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material.” Id. It also provided evidence that Winkler paid for members-only
access to a child pornography site and transmitted videos from this site to his
computer. Id.
Similarly, in United States v. Tucker, 305 F.3d 1193 (10th Cir. 2002), the
Tenth Circuit upheld a defendant’s conviction for possession of child
pornography in part because the prosecution presented evidence that Tucker
admitted to the police that he viewed several thousand images of child
pornography and that he intentionally deleted his computer’s cache after
viewing the images. Id. at 1197, 1204. The government also showed that Tucker
paid a user fee to access newsgroups that gave him access to images of child
pornography, and that he possessed the technical ability to access and
manipulate the images stored in the cache. United States v. Tucker, 150 F. Supp.
2d 1263, 1265, 1269 (D.Utah 2001), aff’d, 305 F.3d 1193 (10th Cir. 2002).
In United States v. Sanchez, 59 M.J. 566, 570 (A.F. Ct. Crim. App. 2003),
aff’d in part, rev’d in part on other grounds, 60 M.J. 329 (C.A.A.F. 2004), the U.S.
Air Force Court of Criminal Appeals upheld a conviction for child pornography
possession based on files located in a computer cache and on other files that had
been deleted from the hard drive but were recoverable. In that case, the
prosecution had presented evidence that the defendant was a subscriber of
“numerous e-groups described as nude teen sites,” that the child pornography
images came through emails to an account to which only he had access, and that
the defendant was “relatively sophisticated” in computer matters, such that a
jury could find that he knew that the images were being downloaded. See id. at
570.

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These cases show that courts have refused to find that a defendant
constructively possessed child pornography located on his computer simply
because the defendant exclusively possessed that computer, without additional
evidence of the defendant’s knowledge and dominion or control of the images.
Where a defendant shares custody and control of the computer with other
persons and the prosecution has not produced further evidence of knowledge of
and access to the images, we must conclude that the proof of constructive
possession is deficient for even stronger reasons.

IV. Conclusion
In deciding whether a jury verdict is rationally supported by the evidence,
we are bound to review all evidence and the inferences therefrom in the light
most favorable to the verdict. Shum, 496 F.3d at 391; United States v. Ragan, 24
F.3d 657, 659 (5th Cir. 1994). As we said in Crain, “[a]lthough the strict nature
of this standard demonstrates our reluctance to interfere with jury verdicts, this
case is an example of why courts of appeal must not completely abdicate
responsibility for reviewing jury verdicts.” 33 F.3d at 487 (alteration in original)
(quoting Ragan, 24 F.3d at 659) (internal quotation marks omitted). Because the
evidence presented at trial was insufficient to provide a basis for a rational jury
to find beyond a reasonable doubt that the defendant knowingly possessed child
pornography, we REVERSE the judgment of the district court.

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No. 09-60566

E. GRADY JOLLY, Circuit Judge, dissenting:
The record does not reflect whether the jury box had more than twelve chairs,
but we do know—and we know for sure—that two more jurors are trying to crowd into
the box. I respectfully dissent from the majority opinion, which is little more than a
presentation of the defendant’s case and the substitution of the views of judges for the
views of jurors. The majority refuses to view the evidence, as it should, in the light
most favorable to the verdict, but instead marshals the evidence to support the
defendant’s position, which the jury rejected. Furthermore, the majority examines
each of the key evidentiary items only in isolation and effectively says that none of the
individual items of evidence, standing alone, supports Keith Moreland’s conviction,
while ignoring the totality of the incriminating evidence.
First, and throughout its opinion, the majority embraces the primary defense
argument—placing blame on Keith’s dead father, George, instead of Keith himself—a
credibility choice for the jury to make. Second, the majority molds the testimony of the
government’s computer analyst, Matthew Manley, to suit its purposes, arguing the
testimony’s weak points, while failing properly to accept its strong points, which were
accepted by the jury. Third, the majority insists that no reasonable individual could
have believed that Keith Moreland’s behavior, after his wife discovered pornography
on their computers, indicated his guilt—again, an inference for the jury to make.
I.
It is fundamental that “we view the evidence in the light most favorable to the
verdict and uphold the verdict if, but only if, a rational juror could have found each
element of the offense beyond a reasonable doubt.” See United States v. Brown, 186
F.3d 661, 664 (5th Cir. 1999). After formally acknowledging this standard of review,
the majority disregards it—and not only disregards it, but combs the record to make

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every argument in favor of exoneration. When the proper legal standard is faithfully
applied, it is manifest that we must uphold the jury’s verdict of guilty.1
II.
A.
The majority overturns the conviction on the ground that “there was not
sufficient evidence for a rational jury to find beyond a reasonable doubt that Keith
knowingly and constructively had possession of the 112 digital images found in the
computers’ slack space. ” Majority Op. at 21.2 This conclusion and holding necessarily
require the majority to minimize the incriminating evidence in this case that the jury
heard.
To review: The hard drives on both of the computers, which Keith’s wife turned
over to authorities,3 contained child pornography; pornographic sites with teen themes

1
I also specifically note that this court has recently implied that the evidentiary
threshold in possession of child pornography cases such as this one may not be particularly
high. See United States v. Winkler, 639 F.3d 692, 696 n.2 (5th Cir. 2011).
2
I do not respond in depth to the majority’s implicit point that none of the images are
child pornography because that discussion is dicta. For the same reason, I decline to address
the majority’s implicit point that the government failed to prove that Moreland was aware that
he was viewing child pornography, as opposed to legal pornography.

I briefly respond, however, to one example: the majority implies that the three to five
seconds that jurors were given to examine each image was insufficient for the jury to
determine whether the images were child pornography. As the government explained at oral
argument, however, the jury would have been given additional access to the images during
their deliberations upon request. The jury made no such request, suggesting that the properly
instructed jurors were confident that the images they had earlier viewed were child
pornography.
3
By way of background, the two computers are a desktop and a laptop. The desktop
had three user names, including Keith’s; the only user name on the laptop was Keith’s. Both
computers were turned over to the authorities after Deanna discovered a pornographic site in
the browsing history of both computers. Subsequent investigation showed that Keith’s user
profiles on each computer were the only profiles on either computer that contained
pornographic files.

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were regularly visited while these very same computers were logged in under Keith’s
name; these pornographic sites were on at least some occasions visited within seconds
or minutes of Keith’s Yahoo account being accessed; Keith made no meaningful
attempt to assuage his wife’s concerns immediately after she discovered one of the
pornographic sites on the family computers and left with their children to go to her
parents’ home; and Keith and the defense witnesses waited until the eve of trial, well
after George Moreland’s death, to blame George for the crime. In other words, there
was plenty of evidence to support this conviction if the jury—as indeed it
did—concluded that the “My dead Daddy did it” defense was deceitful and fictional
nonsense.
Before addressing the majority’s specific critiques of the evidence, I note that the
majority employs an improper analysis in assessing the evidence of guilt: it treats
evidentiary items individually and independent of the whole; the analysis should ask
whether all of the evidence, viewed as a whole, supports the conviction. See United
States v. Miller, 146 F.3d 274, 281 (5th Cir. 1998) (“No single piece of circumstantial
evidence need be conclusive when considered in isolation; the question, rather, is
whether the evidence, when considered as a whole, provides a substantial basis for the
jury to find that the defendant's possession was knowing.”). With that said, I now turn
to analyze the majority’s itemization of reasons, notwithstanding the incriminating
evidence of guilt the jury’s verdict, the jury’s resolution of credibility issues, and the
proper standard of review in favor of the jury’s verdict, that the appellate court should
substitute its judgment for that of the jury.
B.
The rationale underlying the majority opinion is that Keith’s father, George
Moreland, was more likely the individual who possessed the pornographic images at
issue. In support of “blaming Daddy”—a “theory” presented to, and rejected by, the
jury—the majority raises several argumentative points.

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First, the majority notes that Keith, along with several of his family members
(all biased witnesses, a fact that the jury apparently understood)—specifically, his wife
Deanna, his brother Eric, and Eric’s wife Kayla—all supported Keith’s “blame Daddy”
defense by testifying that George was a great pornographic fan.4 The majority further
notes that Keith and Deanna testified that George frequently accessed the computers
in Keith’s home under Keith’s user account and accessed his Yahoo account to play
dominoes, among other things. The primary problem with the majority’s reasoning is
that the government demonstrated to the jury that no one—and I mean no one—had
intimated to law enforcement that George might have committed this offense until
trial.5 The jury clearly was made aware of this. Yet, the majority makes no explicit

4
Notably, although Deanna testified that “[e]verybody that knew the man” was aware
that George was a pornography customer, the defense was unable to muster a single
disinterested witness to testify regarding George’s thirst. The jury took note.
5
Deanna’s testimony in this respect is somewhat contradictory. She first testified that
she had told the investigators that George “was a character that I was very suspicious of.” She
also said that she had informed the investigators that George had access to the computers.
She further explained that she had said: “I would like to bring up my father-in-law. . . . [H]e
might be someone of interest.” On the other hand, Deanna also testified that she did not
remember the investigators “specifically asking” whether George had access to the computers.
She then equivocated further, saying “I don’t remember that coming up. It should have.”
Thus, her own testimony as to what she told the investigators about George is ambiguous at
best. The testimony of the investigators, however, paints a clearer picture.

James Burton, an investigator with the Federal Bureau of Investigation, testified that
in his conversations with Deanna, she had indicated that “George Moreland may have had an
inappropriate relationship with . . . Mr. Keith Moreland’s daughter, which would have been
[George’s] . . . granddaughter.” Burton also testified that he did not remember Deanna
mentioning that George had access to the computers. Tony Cooper, an investigator with the
Lowndes County Sheriff’s Department, confirmed that Deanna “never mentioned he [i.e.,
George] used the computers.” He further explained: “[I]n the very beginning, I asked who
had access to these computers. She never mentioned him.” Finally, Matthew Manley, the
computer analyst, testified that he did not remember Deanna mentioning George as a
potential suspect.

Keith testified that his attorneys “advised [him] . . . not to” identify his father as a
potential suspect, but almost immediately equivocated, explaining that “they didn’t necessarily

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attempt to justify this inexplicable delay,6 but does concede, as it must, that the jury
rejected this all too convenient and untimely canard.
Similarly, the majority points to no testimony that specifically indicates that
George viewed pornography on the family computers. If viewed in the light most
favorable to the verdict, the testimony suggests, at most, that George used his own
computer to look at pornography.7 Relevant to this point is the majority’s implausible

tell me not to go to the authorities. I just brought the information to them, and, you know, I
thought I was acting like I was supposed to act.”

The record also reflects that the government did not interview the brother, Eric
Moreland, as part of its investigation. Eric explained, however, that he never made contact
with the police, even after George asked Eric to help him destroy George’s personal computer,
because “it really didn’t cross my mind to be important considering it was my father and he
was not the one on trial.” Similarly, although the government did not interview Eric’s wife
Kayla as part of its investigation, she admitted that she made no attempt to inform the
government that George was worthy of investigation.
6
In the closing argument at trial, Keith’s trial counsel attempted to explain this failure,
arguing that although these witnesses were aware that Keith was the subject of a criminal
investigation, they did not notify law enforcement of their suspicions regarding George because
they did not know the investigation of Keith was a serious matter.

The majority declines to adopt as its own any argument that ordinary adults were
unable to comprehend that a criminal investigation is a serious matter.
7
Deanna testified that George had access to the family computers at times when he
was alone, and that George was a fan of pornography. She specifically admitted, however, that
she “didn’t check up on what he did, but he was certainly into—heavily, heavily into
pornography.” She also admitted that she and Keith discussed whether Keith should log out
of the computers, thereby denying George access, but decided against it. Finally, she stated
that “I knew that he [i.e., George] had looked at pornography. I had never [before this
incident] seen anyone in our home looking at pornography of any kind.”

Eric testified that George had limited access to his own computer: “there was a lot of
folks on it all of the time and stuff, so it was not accessible for whenever he wanted to use it.”
He also appeared to testify, however, that George destroyed the very same computer after
learning that Keith was being investigated. Presumably, the point of this latter testimony was
to imply that George had used his computer to look at illegal pornography and later destroyed
the evidence. The jury may well have found that these two points were inherently

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attempt to shape the evidence in favor of reversal: its observation that someone, likely
Deanna, contemporaneously accessed Keith’s account along with pornographic sites at
a time when Keith was at work on September 28, 2007. See Majority Op. at 22 n.7.
To the majority, this single incident undermines the evidentiary value of the many
other visits to pornographic sites that came on the heels of someone logging into
Keith’s account. The majority reasons that because it was not Keith logged into his
account and looking at pornography on this one occasion, then no rational person could
conclude that it was Keith on other occasions. Yet the jury did so conclude, perhaps
because Deanna’s discovery of pornography on a family computer, call to Keith to
inform him of that discovery, and flight from her home to avoid a confrontation is a
sequence of events that points to Keith, not George, having accessed that pornography.

The majority next turns to attack the testimony of Matthew Manley, a computer
investigator for the city of Columbus who had analyzed the two computers that Deanna
turned over to authorities. Indeed, the majority turns away momentarily from its
assumed role as juror, assumes the role of defense attorney, and cross examines
Manley in an effort to minimize his incriminating testimony before the jury.
Specifically, the majority notes that Manley admitted that an unsophisticated
computer user would not have been aware that the images were on the computer. To
be sure, Manley explained that the images were recovered from the “disk slack space,”
which, in his view, and in the light of his knowledge regarding the way computers
work, indicated that someone had likely viewed the images on the internet and
thereafter deleted the browsing history. Notably, Keith’s trial counsel did not
challenge Manley on this point. Of course, the jury was free to determine that

contradictory; on one hand, Eric says that George could not conveniently access the computer;
on the other hand, he says (implicitly) that George used the computer to look at child
pornography, and further says that George somehow destroyed his computer to which he only
had limited access.

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someone, at some relevant time, knowingly assumed possession of these images.
Indeed, the majority concedes—as it must—that the presence of child pornography on
a computer’s hard drive is evidence of prior possession of that pornography. Majority
Op. at 6 n.2, citing United States v. Kain, 589 F.3d 945, 948 (8th Cir. 2009).
This evidence, when properly viewed in the light most favorable to the jury
verdict—and notwithstanding the majority’s efforts to weaken Manley’s
testimony—enabled the jury reasonably to infer that Keith had attempted to delete
from his computer the pornographic images that he had downloaded (i.e., the images
recovered from the slack space), and that he was simply unaware that the images were
retrievable. The point is this: the majority makes every attempt to minimize and
weaken Keith’s possession of the images on his own computer, by repeatedly
emphasizing that this evidence, standing alone, does not support the conviction. But
the jury heard much more evidence pointing to his guilt.
The majority also attempts to discredit Manley for failing to specify when the
illegal images were downloaded. Manley explained that because the images were
recovered from the slack space, he was able to recover only the images themselves, and
was not able to recover the time stamps. The jury understood this fact, and discredited
the inference that the majority would give to this testimony, concluding instead that
Keith was nevertheless the culprit. If we view this testimony in the light most
favorable to the jury verdict, we should give credence to Manley’s explanation.
Finally, the majority argues that Manley never testified that the pornographic
sites that he had discovered in Keith’s browsing history8 contained child pornography.

8
To review, Manley testified that pornographic sites, many with teen themes, were
visited while Keith's user profile was logged into the computer and, furthermore, that some
such visits occurred within seconds or minutes of Keith's Yahoo account being accessed. The
majority argues that Manley admitted that anyone who knew Keith’s log in password could
have accessed the relevant accounts; the majority further argues that Keith and Deanna
testified that George had access to Keith’s accounts. In other words, the majority refuses to
accept that the jury, after being presented with this evidence, discredited Keith and Deanna,

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No. 09-60566

The majority’s point is that Manley’s testimony that the computer’s browsing history
included pornographic sites, including sites for teen pornography, does not, by itself,
prove that Keith possessed child pornography. Manley’s testimony permitted the jury
to draw a reasonable factual inference that the same person who was frequenting these
pornographic sites was the same person who had downloaded the illegal images. It
seems that the majority misses the point: this browsing history is, at the very least,
circumstantial evidence that someone who was using the same computers that
contained illegal child pornography had an ample appetite for pornography depicting
young women.
The majority next, and finally, focuses its aim on the evidence of Keith’s
purposeful avoidance of Deanna. To better explain this point, I briefly recount the
relevant facts.
As I have earlier said, Deanna was using the desktop computer when she
discovered a domain name in the browsing history that included the words “teen
topanga.” Deanna immediately confirmed that the laptop computer had been used to
access the same site. After making these discoveries, she called Keith, who dismissed
her concerns and remained at work. When Keith returned home that evening, he
found Deanna and the children gone.9 Despite this, he went to a fishing tournament
the next morning; only after receiving a call from Deanna did he return home from the
tournament.

and the jury alone observed the demeanor of these witnesses and their presentation of Keith’s
belated alibis.
9
Deanna explained at trial that she had left because she was anticipating a “heated
argument” with Keith and “didn’t want the children to be present . . . .” She later testified,
however—after the defense had more fully presented its theory that Deanna’s dead father-in-
law was the responsible party—that she had never believed that Keith was the individual
responsible for viewing the pornography: “I couldn’t believe it then, and I don’t—I certainly
don’t believe it now.”

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The majority, assuming its role as juror, airily dismisses Keith’s behavior,
insisting that it fails to support an inference that Keith knowingly possessed child
pornography. Keith’s trial counsel argued just that, even contending that Keith’s
behavior reflected his innocence. Thus, the jury had two choices: it could believe that
Keith’s actions evidenced his innocence, or that his behavior evidenced his guilt. It
decided on the latter. The jury was free to accept the defense’s preferred argument, but
it did not, and we are bound to review the evidence in the light “most favorable to the
verdict[,]” Brown, 186 F.3d at 664, a rule the majority left at the starting gate of its
opinion.
III.
To sum up: The key reasons assigned in the majority opinion for reversal are:
first, George was likely the culprit in this case; second, Matthew Manley did not
determine when the images were deleted, did not determine whether the images came
from any of the pornographic sites he found in the browsing history, and did not testify
that those sites contained child pornography; and third, Keith’s decision to avoid his
wife Deanna after receiving an ominous phone call from her could not be interpreted
as an expression of his guilt.
The majority defers to the defendant’s belated alibi instead of deferring to the
jury verdict. The resulting irony is that the jury of Keith’s peers rejected his story as
made-up nonsense, while the legally sophisticated majority accepted the story as fully
plausible.
More serious than the resulting irony, however, is the majority’s disregard for
the proper standard for a review of the verdict of the jury and its autocratic reversal
of a legally sound conviction.
I respectfully dissent.

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