United States v. Miller ( 2019 )


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  •                                                                NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ____________
    No. 18-2255
    ____________
    UNITED STATES OF AMERICA
    v.
    ROBERT E. MILLER, III,
    Appellant
    ____________
    On Appeal from the United States District Court
    for the Middle District of Pennsylvania
    (D.C. No. 1:17-cr-00052-001)
    District Judge: Honorable John E. Jones, III
    ____________
    Argued February 12, 2019
    Before: HARDIMAN, SCIRICA, COWEN, Circuit Judges.
    (Filed: April 8, 2019)
    Quin M. Sorenson [Argued]
    Office of Federal Public Defender
    100 Chestnut Street
    Suite 306
    Harrisburg, PA 17101
    Attorney for Appellant
    Daryl F. Bloom
    Stephen R. Cerutti, II [Argued]
    Office of United States Attorney
    228 Walnut Street, P.O. Box 11754
    220 Federal Building and Courthouse
    Harrisburg, PA 17108
    Attorneys for Appellee
    ____________
    OPINION*
    ____________
    HARDIMAN, Circuit Judge.
    Robert Miller appeals his judgment of conviction for receipt and possession of
    child pornography following a jury trial. Miller claims the evidence was insufficient to
    prove he possessed the mens rea for each crime. Although the Government lacked direct
    evidence that Miller knowingly received and possessed child pornography, there was
    ample circumstantial evidence to sustain the convictions. We will therefore affirm.
    I1
    Direct evidence is not required to prove mens rea beyond a reasonable doubt
    because “[k]nowledge is often proven by circumstances.” United States v. Caraballo-
    Rodriguez, 
    726 F.3d 418
    , 431 (3d Cir. 2013) (en banc). And the jury is “entitled to draw
    reasonable inferences” from circumstantial evidence. United States v. Vosburgh, 
    602 F.3d 512
    , 537 (3d Cir. 2010). Viewing all of the evidence in Miller’s case in the light most
    favorable to the Government as the verdict winner, we conclude that the jury received
    *
    This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
    not constitute binding precedent.
    1
    The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
    under 28 U.S.C. § 1291.
    2
    sufficient evidence to convict Miller of knowing receipt and possession of child
    pornography.
    A
    In United States v. Miller, 
    527 F.3d 54
    (3d Cir. 2008), we identified five factors
    relevant to proving knowing receipt of digital child pornography. 
    Id. at 67–69.
    In this
    appeal, a review of those five factors and the evidence as a whole strongly favors the
    Government’s position.
    First, the images were found on Miller’s laptop, which itself was found in his
    bedroom closet. The laptop’s login username and password were “uber1337,” a password
    Miller used in other circumstances. Browser history information on the laptop showed
    Miller used it. He also used the apartment’s internet service, which was used to download
    child pornography and triggered this investigation. And his roommates never saw the
    laptop out of Miller’s presence, nor anyone in Miller’s bedroom without him there.
    Second, the number of images supports Miller’s knowledge because over a
    hundred files identified as child pornography were found on his laptop. Although
    computer forensics could not establish their former location(s) on the laptop,2 the number
    of images weighs in the prosecution’s favor as well. See United States v. Franz, 
    772 F.3d 134
    , 156 (3d Cir. 2010).
    2
    The files were found in unallocated space because they had been deleted.
    3
    The third factor—whether the images’ content was evident from their file
    names—supports Miller because most of the files recovered from his laptop had file
    names that did not clearly indicate their contents, or had file names that could not be
    determined by computer forensics after having been deleted. At the same time, BitTorrent
    file fragments recovered from the laptop did have file names indicating they contained
    child pornography. Although these names could refer merely to the torrent itself (a digital
    package for delivering any number of files through peer-to-peer sharing), the names
    could also refer to the file(s) (now lost) that were contained therein. And many of these
    file fragment names referenced child pornography by including words like “preteen,”
    “pthc” (preteen hardcore), “pedo,” and “childlover,” as well as young ages like “9yo” and
    “12–13 yo.” So although the third factor favors Miller regarding the illicit files for which
    he was convicted, other file fragments’ names recovered from the laptop suggest its user
    would have known of their likely illicit content, which favors the prosecution.
    Fourth, two facts evidenced Miller’s likely knowledge of and ability to access the
    illicit images: (1) the laptop’s discovery in Miller’s closet; and (2) the laptop’s sole
    username and password, which Miller had used in other contexts. But because forensics
    could not determine exactly where the files were located on the hard drive, this factor
    weighs only slightly in the Government’s favor.
    Finally, the illicit images recovered from the laptop were downloaded on several
    dates from 2010 to 2013. This suggests the user knew he was accessing child
    pornography (i.e., he did not inadvertently access it just once). Although many images
    4
    were downloaded on one date, and although many images and videos’ dates could not be
    recovered because they had been deleted, this factor also weighs in the Government’s
    favor. Cf. 
    Miller, 527 F.3d at 69
    (discussing downloads on four dates).
    Beyond the factors just mentioned, additional evidence suggested that Miller
    knowingly received the illicit files. He admitted to using Tor, a program that facilitates
    anonymous communication and downloads online, including torrents like those already
    discussed. He also admitted to viewing animated pornographic games that other users had
    flagged as potential child pornography. And he failed to inform the searching agents of
    the laptop when asked about his computers; he identified only a desktop computer and
    tablet also found in his apartment. Viewed in the light most favorable to the Government,
    Miller’s failure to disclose the laptop suggests consciousness of guilt. Forensics also
    discovered keyword searches had been typed on the laptop that involved terms and
    companies related to child pornography, suggesting its user sought out files using names
    suggestive of their content—as opposed to inadvertently receiving them. And agents
    found no other evidence of child pornography in the apartment despite seizing all
    electronics.
    It is true that some evidence presented at trial supported Miller, and could have
    raised reasonable doubts about his knowledge of the illicit images. For example, Miller’s
    roommates testified that a former roommate once accessed one of their computers and
    5
    downloaded adult pornographic images without permission as a joke.3 But our task is not
    to reweigh the evidence, lest we usurp the jury’s role. United States v. Walker, 
    657 F.3d 160
    , 171 (3d Cir. 2011). Instead, we must affirm if the evidence, taken as a whole,
    surpasses “the threshold of bare rationality.” 
    Caraballo-Rodriguez, 726 F.3d at 431
    (quoting Coleman v. Johnson, 
    566 U.S. 650
    , 656 (2012)). That mark is surpassed here,
    especially in light of prior cases in which we upheld convictions when fewer factors
    supported the verdict, and even when multiple factors weighed in the defendant’s favor.
    E.g., 
    Franz, 772 F.3d at 155
    –56; 
    Miller, 527 F.3d at 67
    .
    Miller cites two cases he claims entitle him to acquittal (or a new trial) essentially
    because they seemed to require direct evidence when purely circumstantial evidence
    proved insufficient. Neither is availing.
    3
    Miller’s opening brief claimed these “roommates testified, further, that they had
    previously seen [the former roommate] in possession of and viewing child pornography
    on his own computer.” Opening Br. 5. Neither roommates’ testimony supports this
    accusation. Although one roommate testified that he saw the former roommate “looking
    at pornographic videos,” App. 88, nothing in that testimony or the questioning eliciting it
    suggests children were involved. The Government’s brief pointed this out.
    Once challenged, Miller’s reply brief attempted to salvage this accusation by
    citing defense counsel’s closing statement at trial (also claiming that one roommate
    testified to seeing the former roommate watching child pornography) and his Rule 33
    motion (simply labeling the former roommate “a known child pornographer” without
    citation). Reply Br. 5 n.4 (citing App. 113, 127). Those citations merely beg the question.
    At oral argument, Miller’s counsel suggested this footnote somehow clarified the
    original brief’s misstatement. See Oral Argument at 8:32–48, available at
    https://www2.ca3.uscourts.gov/oralargument/audio/18-2255USAv.Miller.mp3. But the
    footnote defends the accusation that the former roommate “was known to have
    downloaded and viewed child pornography in the past.” Reply Br. 5 n.4 (quoting Gov’t
    Br. 22). In sum, on this record, neither Miller’s trial counsel nor his appellate counsel had
    any basis to claim that one of Miller’s roommates was seen watching child pornography.
    6
    First, Miller cites United States v. Iafelice, 
    978 F.2d 92
    , 96 (3d Cir. 1992), for the
    proposition that ownership of a thing is not alone sufficient to establish knowledge of its
    contents. Iafelice upheld a conviction for knowing possession of drugs in the trunk of a
    car the defendant 
    owned. 978 F.2d at 93
    –94. Although we noted “[o]wnership and
    operation [] do not exist in a vacuum” and “must be considered in the context of
    surrounding circumstances,” we also stated the defendant’s ownership and operation of
    the vehicle was “[t]he truly distinguishing fact” and “highly relevant.” 
    Id. at 97.
    And we
    noted the owner and operator “usually knows what is in that vehicle.” 
    Id. Circumstantial evidence
    further supported finding sufficient evidence, but the defendant’s ownership and
    operation of the car provided “[t]he crucial additional fact” permitting the jury to convict.
    
    Id. Similarly, Miller’s
    jury also heard circumstantial evidence beyond his mere ownership
    and operation of the laptop from which they could infer his knowing receipt. That
    evidence accords with our holding in Iafelice.
    Next, Miller cites United States v. Moreland, 
    665 F.3d 137
    (5th Cir. 2011), for the
    proposition that the Government had to “directly” link Miller to the downloads,
    demonstrate he knew of the files, or establish his exclusive control of the computer.
    Rather than require direct evidence, though, Moreland merely found the circumstantial
    evidence insufficient because the Government relied solely on three individuals’ joint
    ownership and use of two computers containing illicit images. 
    See 665 F.3d at 150
    .
    Without more, the joint ownership evidence was insufficient, but either circumstantial or
    direct evidence could have filled that void. See 
    id. Miller’s computer
    was not jointly
    7
    owned or used outside his presence according to the testimony at trial, and its single user
    profile connected only to Miller distinguishes this case from Moreland further still.
    In sum, four out of the five factors relevant for identifying sufficient evidence of
    knowing receipt of digital child pornography support the jury’s verdict. The fifth is
    indecisive. And other relevant evidence also favors affirmance. There was sufficient
    evidence to convict Miller on this count.
    B
    Miller also argues for reversal of his possession conviction because the
    Government presented insufficient evidence that he knowingly possessed the files
    discovered on his laptop. Once again, circumstantial evidence and our precedents show
    Miller cannot meet his “extremely high” burden to overturn his possession conviction
    based on insufficient evidence. United States v. Pavulak, 
    700 F.3d 651
    , 669 (3d Cir.
    2012) (quoting United States v. Starnes, 
    583 F.3d 196
    , 206 (3d Cir. 2009)).
    “Simply put, [Miller] was the laptop’s likeliest user.” 
    Id. Like in
    Pavulak, Miller’s
    laptop had just one, password-protected user account. Miller was connected to that
    password and username in other contexts. And Miller used that sole password-protected
    account. Also like in Pavulak, police recovered the laptop from where Miller was living:
    his room in the apartment, which his roommates testified they never saw anyone else
    enter outside Miller’s presence. Although computer forensics could not determine many
    details about the illicit files’ location(s) or organization on the hard drive because they
    8
    had been deleted, he was still “also the likeliest person to have accessed the child-
    pornography images on the laptop” based on the substantial evidence discussed above. 
    Id. Additionally, we
    note that knowing receipt “must be supported by a greater
    quantum of evidence than that minimally required to prove guilt of possessing child
    pornography.” 
    Miller, 527 F.3d at 62
    . So our analysis of Miller’s receipt conviction also
    supports our conclusion that Miller cannot show “no reasonable juror could accept the
    evidence as sufficient” for knowing possession. 
    Id. at 69
    (quoting United States v. Lacy,
    
    446 F.3d 448
    , 451 (3d Cir. 2006)).4
    *       *      *
    For the reasons stated, we will affirm Miller’s judgment of conviction and
    sentence.
    4
    Miller also contends the District Court erred by denying his Rule 33 motion for a
    new trial because the evidence was insufficient. Because Miller cannot prevail on de
    novo review of his acquittal motion for the reasons discussed above, we find no abuse of
    discretion in the Court denying his new trial motion on the same grounds. Cf. 
    Franz, 772 F.3d at 154
    , 158 (affirming a receipt conviction appealed for insufficient evidence on
    both judgment of acquittal and new trial motions when our de novo review of the Rule 29
    motion merited affirmance).
    9