United States v. Wasson ( 2021 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 19, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-3029
(D.C. No. 6:18-CR-10156-EFM-1)
WAYNE BENJAMIN WASSON, (D. Kan.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HOLMES, LUCERO, and PHILLIPS, Circuit Judges.
_________________________________
Wayne Wasson appeals his convictions for transporting and possessing child
pornography in violation of 18 U.S.C. § 2252A(a)(1) and (a)(5)(B). He argues that
the government did not present sufficient evidence to prove the transportation
element of these offenses beyond a reasonable doubt. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
I
In 2018, Yahoo submitted a report to the National Center for Missing &
Exploited Children (NCMEC) CyberTipline identifying a user named
*
This order and judgment is not binding precedent except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
“girlwantedlover” for uploading several images of child pornography through the
Yahoo Messenger website on two separate occasions. Yahoo also provided law
enforcement with the user’s account information, including a verified phone number
and IP address, and access to emails which conveyed child pornography to another
Yahoo account. Law enforcement traced the IP address to Wasson’s home address
and verified that the cell phone number belonged to Wasson.
Google later submitted a separate report to NCMEC identifying
“waynehanne0” as having uploaded child pornography onto its servers in 2017. The
phone number and IP address associated with this account matched Wasson’s.
Google also provided law enforcement with access to the account’s content, which
included images of child pornography and an image of Wasson.
Pursuant to a search warrant, law enforcement searched Wasson’s home and
found his laptop and flash drive. Law enforcement later acquired Wasson’s phone
during an interview. The laptop contained images and videos of child pornography;
the flash drive contained images of child erotica, and his phone contained
information for the “waynehanne0” Google account and several Yahoo accounts with
variations of the username “girlwantedlover.”
In later interviews, Wasson admitted that he received child pornography
through Skype and other programs. His Skype account revealed chats with another
user involving the exchange of child pornography. Wasson also acknowledged
downloading child pornography and saving it to his flash drive. However, he stated
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that he did not remember sending child pornography to others and that if he had sent
any, he regretted it.
Wasson was indicted on multiple counts of transportation of child pornography
and possession of child pornography based on uploads to Yahoo Messenger on
May 29, 2017 (Count 1); uploads to Google on November 27, 2017 (Count 2); emails
sent through Yahoo on December 29, 2017 (Count 3); an upload to Yahoo Messenger
on January 6, 2018 (Count 4); and the images found on his laptop and flash drive
(Count 5).
The case went to trial, and, at the close of the government’s case, Wasson
moved for a judgment of acquittal under Rule 29(a), arguing that the government had
not presented sufficient evidence that the child pornography was transported in
interstate commerce. The court denied the motion, and the jury returned guilty
verdicts on all counts. Wasson now appeals the denial of his motion for a judgment
of acquittal, arguing again that there is insufficient evidence that the child
pornography was transported.
II
Sufficiency of the evidence challenges are reviewed de novo. United States v.
Isabella, 918 F.3d 816, 830 (10th Cir. 2019). In determining whether the government
presented sufficient evidence, this court views all evidence in the light most
favorable to the government and reverses only if no reasonable jury could find the
defendant guilty beyond a reasonable doubt. Id.3
A
Wasson argues that there was insufficient evidence to prove the transportation
element of the charged offenses. An individual is guilty of transporting child
pornography when he “knowingly mails, or transports or ships [child pornography]
using any means or facility of interstate or foreign commerce or in or affecting
interstate or foreign commerce by any means, including by computer.” 18 U.S.C.
§ 2252A(a)(1) (emphasis added). An individual is guilty of possession of child
pornography when he “knowingly possesses . . . an image of child pornography that
has been mailed, or shipped or transported using any means or facility of interstate or
foreign commerce . . . including by computer.” 18 U.S.C. § 2252A(a)(5)(B)
(emphasis added).
We have not explicitly addressed what “transport” means for purposes of this
statute, but our own precedent and case law from other circuits provide clear
guidance on this question. In defining “transport” in other contexts, we have
consistently applied the term’s ordinary meaning, to “convey from one person or
place to another.” United States v. Wright, 791 F.2d 133, 137 (10th Cir. 1986)
(quotation omitted); see also Atlantic Richfield Co. v. Farm Credit Bank of Wichita,
226 F.3d 1138, 1153 (10th Cir. 2000) (transport means “to ‘transfer or convey’
something from one place to another”); Transport, Oxford English Dictionary (2021)
(“The action of carrying or conveying a thing or person from one place to another.”).
Interpreting the statute at issue, other circuits have held that child pornography is
transported when it begins in one location and is uploaded to a different location.
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See United States v. Davis, 859 F.3d 429, 432, 434 (7th Cir. 2017) (images
transported when uploaded to an “online photo-sharing website”); United States v.
Clingman, 521 F. App’x 386, 393, 396 (6th Cir. 2013) (concluding images were
transported when uploaded from a computer to Shutterfly). The Fourth Circuit, for
example, held that the transport element of the statute was satisfied when an
individual uploaded images of child pornography from his laptop onto an online file-
storage account because “uploading child pornography to a website constitutes
transportation.” United States v. Fall, 955 F.3d 363, 374 (4th Cir. 2020). We follow
our sibling circuits and conclude that to present sufficient evidence of transportation
involving the uploading of child pornography, a reasonable juror must be able to find
beyond a reasonable doubt that the child pornography began in the defendant’s
possession and was conveyed to another location or to another person. This burden
can be met through evidence that the images were uploaded to a website.
The government contends that Congress’ recent amendment to § 2252A made
it clear that the transportation element does not require proof that the illicit images
were moved from one location to another. However, the amendment to § 2252A did
not alter the transportation element; it was limited to the interstate element. The
amendment was made in response to our decision in United States v. Schaefer, which
held that evidence that the internet was used to download child pornography was
insufficient to prove the interstate or foreign commerce element of the offense. 501
F.3d 1197, 1201 (10th Cir. 2007). In light of this holding, Congress amended
§ 2252A to reduce the government’s burden on the interstate commerce element. See
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United States v. Baum, 542 F. App’x 724, 726-27 (10th Cir. 2013) (unpublished).1 It
added that the element can be proven so long as the act was accomplished “using any
means or facility of interstate or foreign commerce.” § 2252A(a)(1)(B); (a)(5)(B).
This amendment did not alter the government’s burden to prove the transport
element. Accordingly, we reject the government’s contention that the transport
element can be satisfied without proof that illicit images were moved from one
location to another.
B
Although we disagree with the government’s proposed definition of
“transport,” we conclude that the government presented sufficient evidence
concerning all five counts.
Counts 1 and 4 alleged that Wasson uploaded images onto Yahoo Messenger
on two occasions. In support of these charges, the government first presented a
record custodian for Yahoo. Though the custodian was unable to testify about how
Yahoo detects child pornography or the exact location of Yahoo’s servers, she
confirmed that a user named “girlwantedlover@yahoo.com” had uploaded several
illicit images onto Yahoo Messenger. The government also presented evidence that
the IP address of the account that uploaded the images was connected to Wasson’s
home address and that the account’s verified phone number matched Wasson’s.
Based on this evidence, a reasonable juror could have found beyond a reasonable
1
We may cite an unpublished opinion for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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doubt that Wasson transported illicit images by uploading them from a personal
device onto Yahoo messenger.
Regarding Count 2, alleging that Wasson uploaded illicit images onto
Google’s server, the government presented Google’s report that it intercepted illicit
images uploaded by “waynehanne0@gmail.com.” FBI Special Agent Derek Velazco
testified that when he accessed Wasson’s Google account, he found that Wasson had
downloaded the reported images and uploaded them to two separate folders within
his Google account. He also saw the same images on Wasson’s laptop. This
evidence is sufficient for a reasonable juror to conclude beyond a reasonable doubt
that the illicit images were transported from Wasson’s laptop to a server maintained
by Google.
Concerning Count 3, alleging Wasson sent child pornography through a Yahoo
email account, the government introduced Yahoo’s report stating that three emails
with attachments including illicit videos had been sent from the “girlswantedlover”
account to another Yahoo email user. Velazco testified that the videos sent in the
emails had been obtained by Wasson from another individual through a conversation
on Skype, and the government introduced statements by Wasson admitting to using
his Skype account to obtain the child pornography. This evidence is sufficient for a
reasonable juror to conclude beyond a reasonable doubt that the videos were
transported from one of Wasson’s personal devices to another individual through
email.
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Finally, regarding Count 5’s allegation that Wasson possessed child
pornography, Wasson admitted that he downloaded child pornography from a server
onto his own computer, and the government introduced evidence of chats on Skype in
which Wasson obtained illicit images. Further, Velazco testified that he found child
pornography when he searched Wasson’s laptop. This is sufficient evidence that
Wasson possessed child pornography that had been transported.
III
For the foregoing reasons, the judgment of the district court is AFFIRMED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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