United States v. Wilder ( 2008 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 06-2213
    UNITED STATES,
    Appellee,
    v.
    DARREN F. WILDER,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. George A. O'Toole, Jr., U.S. District Judge]
    Before
    Lynch, Circuit Judge,
    Campbell and Stahl, Senior Circuit Judges.
    Judith H. Mizner, Assistant Federal Public Defender, was on
    brief for appellant.
    Dana Gershengorn, Assistant United States Attorney, with whom
    Michael J. Sullivan, United States Attorney, and Kayla Bakshi,
    Trial Attorney, United States Department of Justice, were on brief
    for appellee.
    May 12, 2008
    CAMPBELL, Senior Circuit Judge.                     Appellant-defendant
    Darren Wilder appeals from his conviction after a jury trial for
    possession, transmission and receipt of child pornography, in
    violation of 
    18 U.S.C. §§ 2252
    (a)(1), (2) and (b)(1) and § 2252(a)(4)(B)
    in    the   United     States       District         Court    for    the   District    of
    Massachusetts.        He challenges his conviction on five grounds: (1)
    that the warrant permitting seizure of materials from his home was
    issued without probable cause; (2) that the evidence at trial was
    insufficient to establish knowing receipt of child pornography as
    required by 
    18 U.S.C. § 2252
    (a)(2); (3) that the evidence was
    insufficient to establish the knowing possession required by 
    18 U.S.C. § 2252
    (a)(4)(B); (4) that the evidence was insufficient to
    support     a     finding    that    the   images       alleged       to   evidence   the
    transportation and receipt of child pornography in Counts One and
    Two   depicted       real    children;     and       (5)     that    the   evidence   was
    insufficient to support a finding that the images listed in Count
    One   of    the    indictment       depicted     a    minor    engaging     in   sexually
    explicit conduct.           We affirm the conviction.
    Background and Facts
    A three-count superceding indictment charged Wilder with
    knowingly transporting pornography involving minors, in violation
    of 
    18 U.S.C. § 2252
    (a)(1) (Count One); knowingly receiving and
    attempting to receive pornography involving minors, in violation of
    
    18 U.S.C. §§ 2252
    (a)(2) and (b)(1) (Count Two); and knowingly
    -2-
    possessing pornography involving minors, in violation of 
    18 U.S.C. § 2252
    (a)(4)(B) (Count Three).           The district court denied Wilder's
    motion to suppress the evidence that was obtained pursuant to the
    search warrant, ruling that the affidavit that had accompanied the
    warrant application provided probable cause to issue the warrant.
    After a week-long trial, the jury convicted Wilder on all three
    counts in the indictment.           The district court sentenced him to
    fifteen     years   in   prison,    followed    by   five   years'    supervised
    release.
    The following facts are not in dispute.                 In 2002-03,
    federal agents investigating online child pornography found a pay-
    for-membership website called "Lust Gallery:                 A Secret Lolitas
    Archive."     A preview page through which users visited the website
    showed naked female children who were identified on the page as
    being under fourteen years old.          Some of the children were shown in
    the   act   of   urinating.        The   page   also   noted   that    "everyone
    understands there are reasons not to reveal everything right here."
    An undercover investigator, John Johnson, joined the Lust Gallery
    website.     After entering contact and credit card information, he
    received a confirmation email and a password from the site.                  The
    charge on his credit card bill for the membership was from a
    company called "Iserve."       Johnson entered the site and saw several
    photo galleries, each of which held 80-100 images of nude women in
    different poses.         Another investigator accessed the site and
    -3-
    observed thousands of pictures of children in sexually explicit
    activity or states of undress.
    During their investigation, the agents identified Wilder
    as being among the subscribers to Lust Gallery.               In March 2003,
    Wilder bought a one-month subscription to the site for $57.90. His
    credit   card   bills   also   showed   entries   from    a   company    called
    "Iserve." Wilder had a previous conviction for possession of child
    pornography and was still on supervised release when investigators
    uncovered his subscription to Lust Gallery.              When his house was
    searched in connection with the earlier offense, investigators had
    found fourteen computer disks containing child pornography.
    The agents obtained and on January 15, 2004 executed a
    warrant to search Wilder's home in Dracut, Massachusetts.                Wilder
    was not at home when agents arrived, but agent Colleen Forgetta
    called him, and he returned to the house.         After being advised of
    the search warrant, Wilder agreed to speak with agents.                 He told
    the agents, inter alia, that he "liked teenage girls" and that he
    was "enticed by certain websites."           When he was asked if had
    subscribed to any child pornography websites, he said he had and
    that he thought the name of the site was Lust Gallery.                    Asked
    whether he thought agents would discover child pornography on his
    computer, he responded, "Well, you're here so you must think there
    is."
    -4-
    Wilder initially told agents he had only an office
    computer in his house.         He later admitted, though, that he kept a
    second computer in the basement.         Agents took both computers and a
    number of handwritten notes from Wilder's residence.            One of these
    notes contained an email address which was the same address used by
    Wilder to subscribe to Lust Gallery.           Other notes contained, inter
    alia, a list, marked "downloaded," of 24 file names, including "pedo
    raygold,10yofuck+cum in pussy," "childlover little collection videos
    0154," "pthc open-f09," and "raygold 12yo daughter gets fucked," and
    the   names    of   websites   related   to   child   pornography,    including
    "www.lolita-photo.com,"          "www.youngxlolita,"        "pre-12     host,"
    "lolitabuffet.com/index.html," "alt.binaries.pictures.erotica.young,"
    and "www.preteendigest.net."         Government witnesses testified that
    "pthc" was an abbreviation for "pre-teen hard core," that "pedo" was
    short for "pedophile," and that "r@ygold" referred to a "set of videos
    of child pornography out on the Internet."            Another note listed the
    site, "www.evidence-eliminator.com/product."
    All the files and programs on Wilder's office computer
    were examined, and agents used software tools to discover what
    files the computer user had deleted.          The investigation revealed a
    posting that had appeared on a newsgroup called "alt.sex.young."1
    The posting was from the email address springbegins@hotmail.com and
    1
    A newsgroup is similar to a virtual bulletin board on the
    Internet which is arranged by topic and on which a user can post
    messages and images.
    -5-
    stated, "I have many pics of my 12 yr old daughter in the shower
    and dressing.          I am looking for more of the same.       Send me your
    private pics and I'll send mine."             Wilder had responded to the
    posting with an email titled "trade pics."            The posting contained
    four explicit photos of child pornography and the statement, "Now
    it's       your    turn."     Investigators   found   six   images   of   child
    pornography showing a very young child located in the newsgroup
    folder on the computer, nine images of child pornography which had
    been downloaded from different websites, and several other child
    pornography images, some of which were current and some of which
    had been deleted.           Several were images that had been posted on the
    Lust Gallery website.2            About 14,000 images had been downloaded
    from the newsgroup "Youth and Beauty" and thousands from one called
    "Hussy."          Some child pornography images from "Hussy" were charged
    in the indictment.
    Investigators also found a number of child pornography
    video files, some of which had the same titles as those written on
    the handwritten list found in Wilder's home.            At least one video,
    called "pedo r@ygold - 10-year-old fuck and cum in pussy1.mpg" had
    been accessed from a CD-ROM in a drive of the computer.               Also on
    2
    The government's expert testified that the images which had
    been on the Lust Gallery website were downloaded to the computer in
    December 2003, suggesting that Wilder had not downloaded them from
    the site as part of his subscription but rather that they had come
    from another source, perhaps a newsgroup.
    -6-
    the computer was an email from Wilder to the support section of a
    site to which he wrote,
    Why is it each time I try and access your site I keep
    getting put over to other adult sites with content I do
    not wish to see. I joined to see Anya and her friends.
    I have seen no videos and am quite disappointed. I want
    to make sure I will not be rebilled. I have a platinum
    member for 60 days.      Why is your site so hard to
    navigate and why do you have so many links to adult
    content sites?
    Investigators   found   on    Wilder's    computer   an   image   called
    "luda+anya092.jpg" showing three nude prepubescent children engaged
    in sexually explicit conduct. The websites saved on Wilder's
    computer as "favorites" included "Lolita Buffet free youngest girls
    on the net galleries.url" and other sites with analogous names.
    Discussion
    I.   Probable Cause to Issue the Search Warrant
    Wilder argues that the district court erred in denying
    his motion to suppress the evidence found at his home because the
    42-page affidavit submitted to the magistrate judge in support of
    the search warrant application did not provide probable cause.       We
    disagree and conclude that the district court did not err in
    denying the motion to suppress.          We apply a mixed standard of
    review to the district court's denial of a motion to suppress,
    reviewing findings of fact for clear error and its conclusions of
    law, including whether a particular set of facts constitutes
    probable cause, de novo.     United States v. Dickerson, 
    514 F.3d 60
    ,
    -7-
    65-66 (1st Cir. 2008) (citing United States v. Woodbury, 
    511 F.3d 93
    , 95 (1st Cir. 2007)).
    The     affidavit      summarized      the    investigation       that   had
    resulted in the identification of Wilder, explaining that the
    investigators had found information identifying individuals who had
    purchased    memberships           to   websites       known    to   contain      child
    pornography.        Investigators learned that Wilder had purchased a
    one-month    subscription          to   Lust    Gallery    in   March   2003.        The
    affidavit contained information about the content of the website,
    describing in detail six images showing one or more prepubescent
    females with their genital areas exposed.                       The affidavit also
    detailed the appearance of the website's "preview page," which
    suggested that child pornography would be available on the site.
    The   description      of    the    preview     page     included    the   fact      that
    thumbnail images featuring unclothed minors were displayed across
    the width of the page.                  Some images focused on the minor's
    genitalia.     The top of the preview page read, "LUST GALLERY - a
    Secret Lolitas Archive."            The affidavit quoted text on the preview
    page which stated,
    All models inside are 14 or younger, every image shows at
    least 2 or 3 girls, every gallery is at least 50
    images.....Created by real young model lovers for real
    young model lovers.     Lust Gallery is truly an elite
    product. We guarantee you complete satisfaction for a
    truly unforgettable experience.
    The affidavit also stated that Wilder had been convicted for
    possession     of    child     pornography        and     described     the    earlier
    -8-
    investigation leading to that conviction. Using a computer, Wilder
    had arranged through a website to buy a video of child pornography.
    The tape had been advertised on the site as child pornography
    involving a 12-year-old girl.        Police officers searched Wilder's
    residence with a warrant when the tape arrived.               The search
    revealed fourteen computer disks containing child pornography.
    During that investigation, Wilder admitted that he had collected
    child pornography from the Internet over several years.                 The
    affidavit    concluded   with   a   discussion   of   characteristics   of
    individuals "involved in the receipt and collection of child
    pornography," stating that such collectors retained their materials
    in many different media and for a lengthy period of time for
    viewing.    The affidavit described Wilder as a collector, given his
    history and his recent purchase of the Lust Gallery membership.
    At the hearing on the motion to suppress, the district
    court concluded that the affidavit demonstrated probable cause to
    support the issuance of the warrant.        It wrote in a May 6, 2005
    memorandum and order that it was "fairly inferable" from Wilder's
    previous acquisition and retention of child pornography that he
    would still desire to acquire it, and that his subscription to Lust
    Gallery indicated this was indeed the case.           The district court
    also found that the magistrate could have reasonably inferred from
    Wilder's past connection to child pornography and the affidavit's
    information about the habits of child pornography collectors that
    -9-
    he   would   have   used   his   subscription   not   just   to   view    child
    pornography but also to download and retain it.              The court noted
    that Wilder had admitted in connection with his previous offense
    that he had downloaded the images that had been found on fourteen
    computer disks. In response to Wilder's argument that the evidence
    against him was "stale," because the prior conviction was some
    years earlier (2000) and the Lust Gallery subscription had expired,
    the court ruled that the affidavit gave a basis sufficient for the
    conclusion that Wilder was trying to obtain and preserve child
    pornography images and that they would accordingly be discovered at
    his residence, stating that "the inference that a search in January
    2004 would yield evidence of images from Wilder's March 2003 access
    to the lust-gallery website was, in the circumstances, a fair one."
    We affirm the district court's analysis.         Probable cause
    for the issuance of a warrant based on an affidavit "exists where
    information in the affidavit reveals 'a fair probability that
    contraband or evidence of a crime will be found in a particular
    place.   Probability is the touchstone' of this inquiry."                United
    States v. Baldyga, 
    233 F.3d 674
    , 683 (1st Cir. 2000) (quoting
    United States v. Khounsavanh, 
    113 F.3d 279
    , 283 (1st Cir. 1997)).
    "The standard of probable cause requires a probability, not a prima
    facie showing, of criminal activity."       United States v. Burke, 
    999 F.2d 596
    , 599 (1st Cir. 1993).        The magistrate judge's assessment
    -10-
    "should be paid great deference." Illinois v. Gates, 
    462 U.S. 213
    ,
    236 (1983) (quotation omitted).
    Wilder argues the affidavit did not provide a basis for
    believing that he was actually downloading and preserving child
    pornography.     He contends the affidavit showed only that he had
    subscribed to a website which included, among other types of
    material, child pornography, and that such a subscription did not
    provide "fair probability" that child pornography had been accessed
    and might be found kept at his home.
    But it was a fair inference from his subscription to the
    Lust   Gallery   website,    as   described       in     the   affidavit,      that
    downloading    and   preservation     in   his    home    of   images   of   child
    pornography might very well follow.               The entrance page of the
    website, as described, was plainly designed and written to attract
    persons interested in viewing child pornography.                As the district
    court observed, "The affidavit establishes that before subscribing,
    a viewer is tantalized by the advertisement of the availability of
    child pornography through the subscription.              That other material,
    not child pornography, may also be available is not important.
    First, other material is not featured in the way that child
    pornography    is.    The   preview    page      said,   in    essence,   if    you
    subscribe, we'll provide you with images of child pornography."
    The affidavit went on to state, moreover, that Wilder had been
    convicted of, and was still on supervised release for, possessing
    -11-
    child pornography.     The affidavit noted that at the time of the
    earlier conviction, he had admitted to collecting child pornography
    for several years and had obtained the images associated with that
    previous conviction over the Internet.        Hence the reasonable
    inference that someone subscribing to the Lust Gallery site would
    have an interest in, and would likely download, child pornography
    images was reinforced by the further evidence that defendant had
    previously engaged in precisely such behavior.
    Wilder fails in his attempts to distinguish relevant
    precedent.     In United States v. Gourde, 
    440 F.3d 1065
    , 1071 (9th
    Cir. 2007), cert. denied, 
    127 S. Ct. 578
     (2006), the Ninth Circuit
    held that defendant's subscription to a child pornography website
    was sufficient to establish probable cause to search his residence.
    The court held that the "reasonable inference that Gourde had
    received or downloaded images easily meets the 'fair probability'
    test."   
    Id.
         Given especially the content of the Lust Gallery
    preview page, as described in the affidavit, we see little merit in
    Wilder's attempted distinguishing of that case on the grounds that
    the site in Gourde was admitted by its owner to be a child
    pornography site and Gourde's membership in the site continued
    until it was shut down by authorities.    See also United States v.
    Wagers, 
    452 F.3d 534
    , 539 (6th Cir.), cert. denied, 
    127 S. Ct. 596
    (2006) (probable cause existed where defendant previously had been
    convicted for child pornography and had subscriptions to three
    -12-
    websites containing child pornography, even if the websites may not
    have contained only illegal images). Wilder cites various cases as
    supporting his probable cause challenge, but we find all of them
    factually distinguishable.
    Finally, Wilder relies on Collazo-Leon v. United States
    Bureau of Prisons, 
    51 F.3d 315
    , 318 (1st Cir. 1995), which was not
    a case about probable cause, for the proposition that previous
    criminal activity alone should not lead to an assumption of future
    criminal activity.   But we need not address that point since the
    instant case involved evidence not only that Wilder had a prior
    child pornography conviction but also that he had since joined a
    website featuring the dissemination of such pornography.          See
    United States v. Taylor, 
    985 F.2d 3
    , 6 (1st Cir. 1993) ("An
    affiant's knowledge of the target's prior criminal activity or
    record clearly is material to the probable cause determination.").
    Here,   given   Wilder's    history,   including   a   prior
    conviction for possession of child pornography for which he was
    still on supervised release and his recent paid subscription to the
    Lust Gallery, the entry page of which vividly indicated that child
    pornography was a featured product, the district court did not err
    in holding there was probable cause for the magistrate judge to
    issue a warrant to search Wilder's residence for illegal child
    pornography materials.
    -13-
    II.   Sufficiency of the Evidence Regarding Knowing Receipt
    Wilder argues that the jury did not have sufficient
    evidence      to    conclude     beyond   a   reasonable     doubt    that    he   had
    knowingly received child pornography, as required to convict him of
    a violation of 
    18 U.S.C. § 2252
    (a)(2).3                We review a sufficiency
    claim de novo, "affirm[ing] the conviction if, after assaying all
    the evidence in the light most amiable to the government, and
    taking      all     reasonable     inferences     in   its   favor,    a     rational
    factfinder         could   find,   beyond     a   reasonable   doubt,      that    the
    prosecution successfully proved the elements of the crime."
    United States v. Connolly, 
    341 F.3d 16
    , 22 (1st Cir. 2003) (quoting
    United States v. Boulerice, 
    325 F.3d 75
    , 79 (1st Cir. 2003))
    (internal quotation marks omitted).                "[I]t is not the appellate
    3
    The statute states, in relevant part:
    Any person who . . . knowingly receives, or distributes,
    any visual depiction that has been mailed, or has been
    shipped or transported in interstate or foreign commerce,
    or which contains materials which have been mailed or so
    shipped and transported, by any means including by a
    computer, or knowingly reproduces any visual depiction
    for distribution in interstate or foreign commerce or
    through the mails, if--
    (A) the producing of such visual depiction involves
    the use of a minor engaging in sexually explicit conduct;
    and
    (B) such visual depiction is of such conduct; . . .
    shall be punished as provided in subsection (b) of this
    section [discussing penalties].
    
    18 U.S.C. § 2252
    (a)(2).
    -14-
    court's   function   to   weigh   the   evidence    or    make   credibility
    judgments.    Rather, it is for the jury to choose between varying
    interpretations of the evidence." United States v. Ortiz, 
    966 F.2d 707
    , 711 (1st Cir. 1992) (citation omitted).         Therefore, we "ought
    not to disturb, on the ground of insufficient evidence, a jury
    verdict that is supported by a plausible rendition of the record."
    
    Id.
    Wilder moved for a judgment of acquittal at the close of
    the government's evidence and renewed it at the close of all
    evidence.    He argued at trial that the evidence could lead to one
    of two equally plausible conclusions:         that Wilder had used his
    computer to access child pornography, or that when he saw the
    material on his computer, he deleted it.                 On appeal, Wilder
    contends that the foregoing was tantamount to his urging the
    district court that there was insufficient evidence of knowing
    receipt for the jury to convict and thus that he has preserved the
    sufficiency claim for appellate review.            We need not determine
    whether the claim was preserved.         Even assuming arguendo that it
    was, our de novo examination convinces us that, in any event, there
    was sufficient evidence for the jury to convict Wilder of the
    charged offense.
    The government's evidence relating to knowing receipt
    included evidence that Wilder used Internet newsgroups to collect
    child pornography.   Expert testimony supported the conclusion that
    -15-
    Wilder downloaded child pornography, viewed it, and deleted it,
    only to repeat the process again and again.            The government's
    computer expert, Lam Nguyen, testified that the computer user had
    set his newsgroup software to download child pornography. He caused
    the newsgroup software to go repeatedly to a newsgroup, "hussy,"
    and download child pornography.         Nguyen described the evidence
    which showed that the computer user regularly entered the folder of
    "hussy" downloads to access the images.           Some of the images of
    child pornography that were viewed were not deleted.
    Nguyen also testified to having found an email sent to a
    pay-to-view website on Wilder's computer, quoted supra, in which
    Wilder   expressed   consternation   at   being   transferred   to   adult
    content sites when, he said, he joined the site, "to see Anya and
    her friends . . . . Why is your site so hard to navigate and why do
    you have so many links to adult content sites?"          The government
    introduced a photo of "Anya" into evidence that showed three pre-
    pubescent girls engaged in sexually explicit conduct and which
    Nguyen testified he had printed off from Wilder's computer.4           The
    4
    On appeal, Wilder notes that there was no evidence introduced
    expressly linking the "Anya" image to the email. As for the image
    itself, there was a conflict in testimony between the government's
    expert and the defense expert regarding the discovery of the "Anya"
    photo. Government expert Nguyen testified that he found the photo
    on the defendant's hard drive, while defense expert Eric Cole
    testified that he was unable to find the photo on the copy of the
    hard drive he reviewed. A conflict in evidence is for the trier of
    fact, in this case the jury, to resolve. United States v. Escobar-
    de Jesus, 
    187 F.3d 148
    , 172 (1st Cir. 1999).
    -16-
    jury also saw evidence of the websites "bookmarked" on Wilder's
    computer, which included "Lolita Buffet free youngest girls on the
    net galleries.url," "Youngest Girls Everyday," "Youngest 69," and
    "Sexy Teen Club."      Wilder argues that both government and defense
    experts testified that the list could have been created without
    conscious saving of individual websites by the user because the
    bookmarking    of   one    site   would    have   prompted    the   automatic
    bookmarking of the others.        Evidence was introduced of a piece of
    paper noting one of the websites, lolitabuffet.com, included on the
    list of favorites.        The government also presented evidence of a
    piece of paper seized from Wilder's home on which was written
    "members.i-lola.info" and a numbers and letter combination which
    the government's expert testified was "typically how a username and
    password looks."       The jury could have inferred from this evidence
    that Wilder had joined or intended to join a Lolita site.5                The
    jury was also entitled to consider the evidence related to Count
    One that Wilder had responded to a posting seeking photos of young
    girls by sending four images of child pornography and writing, "Now
    its   your    turn."      While   this     evidence   was    not    introduced
    specifically as bearing on Count Two also, the jury was entitled to
    considered it relative to both counts.
    5
    Wilder notes that there was no testimony that the computer
    contained evidence of the joining of any of the listed Lolita
    sites.
    -17-
    Wilder points to United States v. Myers, 
    355 F.3d 1040
    ,
    1042 (7th Cir. 2004), for the principle that a defendant who "seeks
    out only adult pornography, but without his knowledge is sent a mix
    of adult and child pornography" cannot be convicted for knowing
    receipt. That case is inapposite, as there was ample evidence here
    that Wilder was looking for, and received, child pornography.
    III.       Sufficiency of the Evidence Regarding Knowing Possession
    Wilder challenges the sufficiency of the evidence that he
    knowingly possessed child pornography, a required element for
    conviction       under   
    18 U.S.C. § 2252
    (a)(4)(B).6   The   government
    asserts, as it did in connection with the previously described
    knowing receipt charge, that the defendant did not adequately
    preserve this argument, but, as there, we find the evidence more
    6
    The statute states, in relevant part:
    Any person who . . . knowingly possesses one or more
    books, magazines, periodicals, films, video tapes or
    other matter which contain any visual depiction that has
    been mailed, or has been shipped or transported in
    interstate or foreign commerce, or which was produced
    using materials which have been mailed or so shipped or
    transported, by any means including a computer, if--
    (i) the producing of such visual depiction involves
    the use of a minor engaging in sexually explicit conduct;
    and
    (ii) such visual depiction is of such conduct;
    shall be punished as provided in subsection (b) of this
    section [discussing penalties].
    
    18 U.S.C. § 2252
    (a)(4)(B).
    -18-
    than sufficient, hence need not determine whether the argument was
    sufficiently preserved.
    The    indictment    in   Count    Three   alleged   that     Wilder
    knowingly possessed nine listed images and three movies containing
    child pornography.      Nguyen testified that each of the images had
    been saved individually from a website. He stated, "There's really
    no other way to save files like this . . . . I'm confident that
    this is information stored--saved from a web site."                  He further
    noted on redirect that the nine images had been saved on one date
    and then accessed again on a later date.              On cross-examination,
    Nguyen also testified that those images could have been posted to
    a   newsgroup    and   then   downloaded     onto   the   computer    from   the
    newsgroup.      The defense's expert testified that the saved images
    could have come from the web, a newsgroup, or an email.               On cross-
    examination, however, the defense's expert acknowledged that the
    file names of the images suggested they were saved through Internet
    Explorer or Microsoft Outlook and were not listed in the log of
    automatic downloads from the newsgroup, suggesting they had been
    individually saved by a user.         From the opinion testimony of the
    two experts, the jury was entitled reasonably to infer that the
    images had been knowingly accessed, saved, and viewed by Wilder.
    The three video files included in the count had been
    downloaded from a website which advertised a variety of videos.
    There was evidence suggesting that Wilder knew their contents,
    -19-
    including a handwritten piece of paper found in Wilder's home which
    listed almost all the video files on display in the website
    advertisement.     This list was headed "Downloaded" and contained
    notations of check marks, circles, and the note next to one file
    name, "same as above but longer version."        Almost all the videos on
    the list were recovered or partially recovered from Wilder's
    computer.     Nguyen testified that one of the videos, "pedo r@ygold
    10 yo fuck and cum in pussy" had been viewed on the computer from
    a CD, though that CD was never found in Wilder's house.              Nguyen
    testified that evidence on Wilder's computer showed that Wilder
    accessed that video file through a CD-ROM.            From that testimony,
    the jury could also have inferred that Wilder deleted his child
    pornography from his computer and stored it on removable media.
    Wilder contests this point in his reply brief by arguing that
    Nguyen's analysis was based on the assumption that a reference to
    an "E" drive was a reference to a CD-ROM drive, an assumption that
    was not supported in any further detail.         But the jury was free to
    accept Nguyen's expert testimony as to what had happened.
    Wilder argues that the images at issue were downloaded
    from   a   newsgroup   and   arrived   with   their   content   unknown   and
    likewise that the movies could not be viewed until after being
    downloaded.     He relies on United States v. Samad, 
    754 F.2d 1091
    ,
    1096 n.11 (4th Cir. 1984), in which the Fourth Circuit held that a
    defendant could be held responsible for the contents of a drug
    -20-
    package only if he opened it and, upon seeing that drugs were
    inside, "appropriated it for his own use."          Wilder argues that he
    would have been unaware of the contents of the newsgroup downloads,
    but he does not address the distinction between the two cases--
    namely that here, the government introduced testimony that the
    images had been individually saved and that the videos had been
    downloaded, at least one had been saved on a CD, and he had made a
    list of video names that corresponded to files found on his
    computer.     From this and other evidence, the jury could reasonably
    have inferred that Wilder sought out child pornography and that it
    was in his possession knowingly.
    IV. Sufficiency of the Evidence as to Whether Children Depicted
    Were Real
    Wilder argues that the evidence was insufficient for the
    jury to find beyond a reasonable doubt that the photographs on
    which the convictions were based depicted real children. At trial,
    the government introduced, besides the photographs, the testimony
    of Dr. Celeste Wilson, a pediatric physician at Boston's Children's
    Hospital.        She testified that based on her examination of the
    images at issue, keeping in mind factors such as facial features
    and physical characteristics of sexual development, she believed
    the children depicted were real and under the age of 18.                   When
    asked    by   the   defense,   Dr.   Wilson   admitted   she   did   not   have
    experience with computer technology.          Wilson argues on appeal that
    the     expert    testimony    was   insufficient   because     it   did   not
    -21-
    specifically exclude the possibility that the children in the
    images had been computer-generated, and the government "presents no
    meaningful criteria for the jury to use in making an independent
    determination that the image . . . is of a real child."            Wilder did
    not introduce any evidence during his defense that the children
    were in fact computer-generated.
    The difficulty with Wilder's contention is that this
    court has previously determined that the government is not required
    to produce a technologically expert witness in order to prove that
    an image contains real children.            United States v. Rodriguez-
    Pacheco, 
    475 F.3d 434
    , 439 (1st Cir. 2007) (noting that this
    circuit has "rejected a per se rule that the government must
    produce expert testimony in addition to the images themselves, in
    order to prove beyond a reasonable doubt that the images depicted
    are   of   real   children").      Wilder   acknowledges   our     holding   in
    Rodriguez-Pacheco     but     contends   nonetheless   that     "[i]f   virtual
    images cannot be readily distinguished from real images, and an
    expert can testify only that images are consistent with those of a
    real child, a lay jury cannot reasonably find beyond a reasonable
    doubt[] that the images are of real children."                We held to the
    contrary,    however,    in     Rodriguez-Pacheco,     saying    that   "[t]he
    question of whether or not a particular image is of a virtual child
    or a real child is an issue of fact, to be determined by the trier
    of fact."    
    Id. at 438
    .
    -22-
    Wilder attempts to distinguish Rodriguez-Pacheco on the
    grounds    that   in    that   case,   the    government's    expert     provided
    criteria    to    distinguish    between      real    children    and   computer-
    generated children.        But as noted, Rodriguez-Pacheco held that the
    government need not provide expert testimony.                
    Id. at 439
    .     The
    panel is bound by stare decisis in our circuit, except, of course,
    if the Supreme Court or our circuit en banc rules otherwise.                  
    Id. at 441
    .7
    The question is one of the sufficiency of the evidence.
    Here, the jury had before it the images themselves as well as the
    testimony of the medical expert that the anatomical detail in the
    images was "extraordinary" and was medically consistent with the
    images being of real children.           Dr. Wilson focused on the facial
    features, physical characteristics of sexual development (including
    absence    of    breast   development    and    sparsity     of    pubic   hair),
    proportions of the body, anatomy and musculature of the positioned
    body, and indications of genital development of children of a
    particular age.        The only evidence from defendant was the doctor's
    statement that she had no experience with computer photo imagery.
    We cannot reverse a jury verdict on these facts merely because the
    doctor's    expertise      did   not   extend    to    distinguishing,      as   a
    photography expert, between a virtual image and a real image.                    A
    7
    All circuits to have addressed this issue have reached a
    similar result. See United States v. Salcido, 
    506 F.3d 729
    , 733-34
    (9th Cir. 2007) (per curiam) (collecting cases).
    -23-
    rational jury could on this record find the government had met its
    burden of proof beyond a reasonable doubt.             The anatomical detail
    testified to by the doctor was extraordinary.                  See Rodriguez-
    Pacheco, 
    475 F.3d at 445
    .
    V. Whether Images Listed in Count One Depicted a Minor Engaged in
    Sexually Explicit Conduct
    Wilder argues that we should find that the evidence
    presented to the jury was insufficient to establish that the four
    images listed in Count One depicted a minor engaged in sexually
    explicit conduct.       Wilder's argument in his initial brief is so
    undeveloped   as   to   prompt   a     consideration    of    waiver,   but   the
    argument fails even if we treat the issue as having been preserved.
    As previously noted, we review a sufficiency claim de novo and
    determine   whether     a   rational    jury   could   have    found    beyond   a
    reasonable doubt that the evidence met the legal standard.                United
    States v. Capozzi, 
    486 F.3d 711
    , 725 (1st Cir. 2007).
    Under United States v. Frabizio, 
    459 F.3d 80
     (1st Cir.
    2006), this court held that it was "up to the jury to determine
    whether the images . . . constitute visual depictions of 'sexually
    explicit conduct.'"         
    Id. at 85
     (emphasis in original).                 The
    question for our determination on appellate review -- to be sure,
    a sensitive one which we will examine with care given the First
    Amendment implications -- is whether a reasonable jury could have
    reached the conclusion that the images were of sexually explicit
    conduct.    Certainly a jury could have done so on the facts here.
    -24-
    
    Id. at 86
    ; see also United States v. Hilton, 
    257 F.3d 50
    , 57 (1st
    Cir. 2001); United States v. Amirault, 
    173 F.3d 28
    , 32 (1st Cir.
    1999).   The focal point of each image is the child's genital area,
    and each child is placed on either a bed or a couch.   Three of the
    images show a child with her legs spread apart.    In one image, the
    child is holding a sexual device in the shape of a male penis in a
    sexually suggestive way; in another, she is shown inserting the
    device into her vaginal area.   In each image, the child is largely
    unclothed, and the clothing she is wearing is limited to black
    thigh-high stockings, a white garter, and a white lacy hat.     Her
    chest and genital area are unclothed.   In each image, the child is
    posed in a way that suggests a willingness to engage in sexual
    activity.    The jury was plainly entitled to find that each of the
    four images in Count One depicted a minor engaged in sexually
    explicit conduct.
    Affirmed.
    -Concurring Opinion follows-
    -25-
    STAHL, Senior Circuit Judge, concurring in the judgment.
    I agree with the majority's result, which is required by
    precedent, and much of its reasoning.      I write separately to
    express my dissatisfaction with our current evidentiary standard,
    as set forth in United States v. Rodriguez-Pacheco, 
    475 F.3d 434
    (1st Cir. 2007), and applied in this case, for determining whether
    the government has sufficiently proven that the photographs on
    which the defendant's conviction was based depicted real children.
    I.
    The federal prohibition against child pornography cannot
    extend to images that do not depict an actual child without running
    afoul of the First Amendment.   Ashcroft v. Free Speech Coalition,
    
    535 U.S. 234
     (2002).    Thus, "in order to establish guilt," the
    government "must prove beyond a reasonable doubt" that the images
    providing the basis for a child pornography prosecution depict
    real, as opposed to virtual, children. Rodriguez-Pacheco, 
    475 F.3d at 439
    .   The Supreme Court has warned that this burden cannot be
    lightly shifted onto the defendant:
    [t]he Government raises serious constitutional
    difficulties by seeking to impose on the
    defendant the burden of proving his speech is
    not unlawful. . . . [T]he evidentiary burden
    is not trivial. Where the defendant is not the
    producer of the work, he may have no way of
    establishing the identity, or even the
    existence, of the actors. If the evidentiary
    issue is a serious problem for the Government,
    as it asserts, it will be at least as
    difficult for the innocent possessor.
    -26-
    Free Speech Coalition, 
    535 U.S. at 255-56
    .
    This circuit, following in the footsteps of a number of
    other circuits, has refused to interpret Free Speech Coalition as
    "lay[ing]   down   'the   absolute     requirement   that,   absent   direct
    evidence of identity, expert testimony is required to prove that
    the   prohibited   images   are   of   real,   not   virtual,   children.'"
    Rodriguez-Pacheco, 
    475 F.3d at 441
     (quoting United States v.
    Kimler, 
    335 F.3d 1132
    , 1142 (10th Cir. 2003)); see also United
    States v. Irving, 
    452 F.3d 110
    , 121 (2d Cir. 2006)8; United States
    v. Slanina, 
    359 F.3d 356
    , 357 (5th Cir. 2004)(per curiam); United
    8
    The Irving prosecution was brought on the basis of video
    files, not still photographs. The Irving court clearly restricted
    its holding to "cases involving video images or MPEGs," reasoning
    that "it does not appear that video technology is so far advanced
    that a jury is incapable of determining whether a real child was
    used to make a video." 452 F.3d at 121-22. This logic certainly
    does not hold true with respect to photographs, as discussed below.
    Indeed, it is far from clear that the Second Circuit's
    understanding of video images truly reflects the current state of
    that technology.     Movie studios, at least, do possess video
    technology so far advanced that they can conjure up a realistic
    replica of practically any image desired. The movie Wag the Dog
    (New Line Cinema 1997), for example, satirically depicts the
    extremely convincing fabrication of an entire war out of whole
    cloth by a conniving Washington spin-doctor seeking to distract the
    electorate from a Presidential sex scandal. The recent HBO mini-
    series John Adams (HBO Films 2008) featured feats of make-up and
    other special effects that produced a depiction of 18th century
    America unparalleled in its authenticity. See HBO Films: John
    Adams, http://www.hbo.com/films/johnadams (follow "Making John
    Adams" hyperlink)(last visited Apr. 25, 2008) (describing how
    visual effects were used to create entirely digitized sets and
    characters, indistinguishable from the real thing). Whether such
    technology is readily available to the average child pornographer
    is a question of fact that a court is not competent to answer on
    its own.
    -27-
    States v. Deaton, 
    328 F.3d 454
    , 455 (8th Cir. 2003)(per curiam).
    Nevertheless, we have emphasized that "[t]he burden of proof
    remains on the government to prove the pornographic image is of a
    real child."    Rodriguez-Pacheco, 
    475 F.3d at 444
    ; United States v.
    Hilton, 
    386 F.3d 13
    , 18 (1st Cir. 2004)("It bears repeating that
    the government is not released from its burden of proof by a
    defendant's    failure    to     argue,   or    by    an   absence      of   evidence
    otherwise suggesting, the artificiality of the children portrayed.
    That the children in the images are real amounts to an element of
    the crime which the government must prove, the burden of which
    should   not   be    displaced    to   the     defendant    as    an    affirmative
    defense.").
    Thus,     while   we   currently        recognize     no    per   se   rule
    requiring the government to present expert testimony as to the
    reality of the children in the images, the government still must
    present sufficient evidence to enable a jury to find beyond a
    reasonable doubt that the children are real. The Rodriguez-Pacheco
    court looked to United States v. Nolan, 
    818 F.2d 1015
     (1st Cir.
    1987),   for   the    proposition      that    a     factfinder       can,   unaided,
    distinguish photographs of actual children from virtual images.
    The court in Nolan held that "the test for a factfinder's power to
    judge evidence without expert help is ... whether the subject is
    within the range of normal experience and knowledge." 
    Id. at 1018
    .
    Nolan was decided over twenty years ago, however, and the rapid
    -28-
    progress of digital imaging technology has rendered it obsolete
    even on its own terms. Technological advances in recent years have
    been such that an untrained eye simply cannot easily distinguish a
    photograph   of   a   real   person   from    a   virtual    image   by   merely
    eyeballing the photographs in question.            Indeed,
    determining whether an image is real or
    virtually created is not only no longer within
    the "range of normal experience and knowledge"
    of the average person, but it may also very
    well be difficult for even experts [to say]
    whether the pictures were made by using real
    children or by using computer imaging. . . .
    The scientific evidence available today is
    overwhelmingly contrary to that which existed
    in Nolan's day. . . . There is simply no
    question that today it is possible to create
    virtual    images   of    humans    that   are
    indistinguishable from the real thing.
    Rodriguez-Pacheco,       
    475 F.3d at 462
          (Torruella,     J.,
    dissenting)(internal quotation marks, citations omitted).9                  The
    situation is further complicated by the advent of technology that
    enables the digital manipulation of images of actual people--for
    example, by airbrushing away wrinkles, trimming extra pounds, or
    even mixing and matching body parts from different individuals.
    See, e.g., Switched.com, Worst Airbrushed Celebs of 2007...So Far,
    http://www.switched.com/2007/08/30/worst-airbrushed-celebs-of-200
    9
    See, e.g., CG Society: Society of Digital Artists,
    http://forums.cgsociety.org/showthread.php?f=121&t=399499    (last
    visited Apr. 25, 2008). That link, cited by defendant in his brief
    on appeal, shows a completely digital rendering of a Korean
    actress. It is not a photograph of the actual actress, but to a
    layperson might certainly appear to be so.
    -29-
    7-so-far/    (last   visited   Apr.   25,   2008)(comparing   digitally
    retouched and unretouched photographs of various celebrities).
    I do not question that many, and perhaps most, of the
    images traded daily by child pornographers depict actual children.
    The government cannot prove its case by the law of averages,
    however, but must prove it with reference to the particular images
    that form the basis of the child pornography prosecution at hand.
    Thus, the Rodriguez-Pacheco court gains little support by coopting
    the Supreme Court's reasoning that "'[i]f virtual images were
    identical to illegal child pornography, the illegal images would be
    driven from the market by the indistinguishable substitutes. Few
    pornographers would risk prosecution by abusing real children if
    fictional, computerized images would suffice.'" Rodriguez-Pacheco,
    
    475 F.3d at 443
     (quoting Free Speech Coalition, 
    535 U.S. at 254
    ).
    The logic of adopting this rather odd assumption about
    the dynamics of the child pornography market as a rationale for
    concluding that the child in any given picture is unlikely to be
    virtual rather than real is questionable at best.        For starters,
    the assumption itself is arguably premised on a fallacy.       It seems
    inappropriate to cast the pedophile, an individual seeking to
    satiate a twisted sexual urge, as a rational economic actor.      It is
    more sensible to imagine that a large part of the depraved thrill
    engendered by the creation of these images is in the abuse of a
    live subject, which the pornography creator can then document in
    -30-
    order to relive the experience and share it with like-minded
    individuals.      Also,     while   some      child   pornographers     may   be
    sufficiently technologically adept to create realistic "virtual"
    children, others may not be and so would have to rely on taking
    pictures of the real thing, resulting in the production of a mix of
    real and virtual images.      If the real and the virtual are more or
    less indistinguishable, once both are released into the marketplace
    the real images would not be displaced by virtual substitutes
    simply because most consumers of such images would not be able to
    differentiate the two.      And finally, whether the child pornography
    market as a whole is composed of images of mostly virtual or mostly
    real children does not change the government's burden to prove that
    the images forming the basis of any specific child pornography
    prosecution depict real children, in order for a conviction to be
    sustained.
    To meet its burden the government therefore should be
    obliged to introduce, and indeed in many cases has introduced,
    evidence that provides some reasonable basis for determining that
    the children depicted in the images are real.              See, e.g., United
    States v. Hoey, 
    508 F.3d 687
    , 689 (1st Cir. 2007)(noting that
    pornographic images found on defendant's computer were submitted to
    National     Center   for   Missing     and    Exploited    Children,     which
    identified children in 131 images as real children); Rodriguez-
    Pacheco, 
    475 F.3d at 437-38
     (summarizing testimony of government
    -31-
    pediatric expert who testified as to children's age as well as FBI
    technological expert who testified as to whether children were real
    or virtual); United States v. Salcido, 
    506 F.3d 729
    , 734-35 (9th
    Cir. 2007)(holding that "[the court] need not decide whether the
    jury may determine the reality of persons depicted in images based
    solely on the images themselves" because government presented
    additional evidence, including testimony of detective who had
    interviewed one of the children depicted, "from which the jury
    could conclude that the images depicted actual children").
    II.
    In the case presently before us, the only evidence
    introduced at trial to aid the jury in determining whether the
    children depicted were virtual or real, apart from the images
    themselves, was the testimony of Dr. Celeste Wilson, a pediatric
    physician.     Dr. Wilson testified that the anatomical detail in the
    images   was   "extraordinary"    and   consistent    with    that   of    real
    children.       The   doctor   admitted,   however,    that    she   had    no
    specialized technological expertise and could not testify as to
    whether the images could have been digitally created.
    The majority reasons that
    [w]e cannot reverse a jury verdict on these
    facts merely because the doctor's expertise
    did not extend to distinguishing, as a
    photography expert, between a virtual image
    and a real image. A rational jury could on
    this record find the government had met its
    burden of proof beyond a reasonable doubt.
    -32-
    The anatomical detail testified         to   by   the
    doctor was extraordinary.
    See slip. op. at 23-24.        Dr. Wilson's testimony, however, is
    helpful in determining that an image is anatomically consistent
    with that of a child as opposed to an adult, but is of limited
    utility to the jury in determining whether the child in question is
    virtual or real.     See Hilton, 
    386 F.3d at 18-19
     (finding medical
    expert's testimony that images depicted children rather than adults
    insufficient to support inference that children depicted were real
    and not virtual).     The Hilton court noted:
    someone manufacturing images to look like
    children   will   try-and    with   sufficient
    technology will manage-to produce images that
    would be amenable to expert analysis . . .
    Whatever parameters of body proportion, growth
    and development serve as signs of age . . .
    those parameters will be mimicked by the
    virtual pornographer-whether by design or as a
    byproduct of the goal of realism.
    
    Id. at 19
    .     Notwithstanding the fact that the defendant did not
    produce any evidence himself as to the nature of the images, the
    burden remains squarely on the shoulders of the government to prove
    that the children depicted are real.
    Unlike the sentencing judge in Rodriguez-Pacheco, we are
    not tasked here with weighing the preponderance of the evidence to
    uphold   a   sentencing   enhancement,   but   the   sufficiency     of   the
    evidence to uphold a conviction.          And the district court in
    Rodriguez-Pacheco at least had before it the testimony of the FBI
    technological expert, who provided specific criteria upon which the
    -33-
    court could base its conclusion that the child in the disputed
    image was a real child.   Without providing the jury in this case
    with some sturdier dock to which it can moor its conclusion that
    the images depicted actual children, it is difficult to see how the
    government can have proved this point beyond a reasonable doubt.
    III.
    Despite the foregoing, I concur in the judgment because
    I recognize that the rule in this circuit, as it currently stands,
    enables the factfinder to distinguish, unaided, between real and
    virtual children. Until the law catches up with technology, we are
    bound by stare decisis to this rule, and under this rule the
    government presented sufficient evidence to meet its burden.
    -34-