United States v. Knowlton ( 2021 )

Case: 19-41042 Document: 00515805303 Page: 1 Date Filed: 04/01/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 1, 2021
No. 19-41042
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
John David Knowlton,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
No. 3:18-CR-24-1
Before Elrod, Willett, and Engelhardt, Circuit Judges.
Jennifer Walker Elrod, Circuit Judge:
John David Knowlton possessed 3,469 images and 249 videos of child
pornography on various devices in his house. He was convicted of one count
of possession of child pornography and one count of receiving material
containing child pornography. He now appeals his conviction on the receipt
count. He argues that he received computer files of child pornography, not
“material that contains child pornography” as required by the statute. We
AFFIRM.
Case: 19-41042 Document: 00515805303 Page: 2 Date Filed: 04/01/2021
No. 19-41042
I.
At the time of his arrest, Knowlton was fifty-three years old, and he
lived in Pearland, Texas with his wife, his son and daughter-in-law, and his
three small grandchildren. Law enforcement officers obtained a warrant to
search Knowlton’s home after discovering that two videos of child
pornography had been downloaded to an IP address associated with
Knowlton’s home address. The officers found 3,469 unique images and 249
unique videos of child pornography on eighteen different devices belonging
to Knowlton.
Knowlton’s hoard of child pornography included 363 images of
infants and toddlers, 26 images of sadomasochism or violence, and at least
two videos of identified victims of child abuse. Those last two videos showed
children whom the National Center for Missing and Exploited Children had
previously identified as victims of sexual abuse. Both videos showed the
children being sexually abused by adult men. The longest video in
Knowlton’s possession was two hours and 52 minutes long.
Knowlton downloaded files containing these pictures and videos from
a peer-to-peer file sharing network. Peer-to-peer networks allow users to
access and download files from shared folders on other users’ computers.
These networks require a user to type in a search term to find files relating to
that term. An officer in this case testified that there are certain terms
frequently used in file names to signal to users that the file contains child
pornography. The files downloaded to Knowlton’s devices were named with
terms indicating child pornography, including: “PTHC” (an abbreviation for
“pre-teen hardcore”), “teen,” “pedo,” “pedophile,” “Lolita,” “child
erotica,” and other more explicit terms.
During the search of his home, officers interviewed Knowlton after
informing him of his rights under Miranda v. Arizona, 384 U.S. 436 (1966).
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While Knowlton admitted downloading and viewing child pornography, he
told officers that they would find “[m]aybe five, four or five” videos and “not
that many” pictures. He also told officers that he used a cleaning software to
remove data from his computer. At one point he told the interviewing officer
“you know, I don’t really see where it’s against the law to have it. . . .
Because it’s—it’s available to anybody out there. If you can look for it, you
can find anything you want.”
Knowlton was arrested, and a grand jury indicted him on two counts:
(1) receipt of material containing child pornography in violation of 18 U.S.C.
§ 2252A(a)(2)(B); and (2) possession of material containing an image of child
pornography in violation of § 2252A(a)(5)(B). Knowlton requested a bench
trial, and he pleaded not guilty to both counts. At the close of the
government’s case in chief, Knowlton moved for judgment of acquittal under
Federal Rule of Criminal Procedure 29.
The district court returned a verdict of guilty on both the receipt count
and the possession count. The district court sentenced Knowlton to 144
months’ imprisonment for the receipt offense and 120 months’
imprisonment for the possession offense, running concurrently. The district
court also imposed fifteen years of supervised release for each offense,
running concurrently. Knowlton appealed his conviction for the receipt
offense.
II.
When a criminal defendant appeals a verdict in a bench trial on
sufficiency-of-the-evidence grounds, we focus our review on the question
“whether the finding of guilt is supported by substantial evidence, i.e.,
evidence sufficient to justify the trial judge, as the trier of fact, in concluding
beyond a reasonable doubt that the defendant is guilty.” United States v.
Tovar, 719 F.3d 376, 388 (5th Cir. 2013) (quoting United States v. Esparza,
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678 F.3d 389, 392 (5th Cir. 2012)); see also United States v. Anderson, 932 F.3d
344, 348 (5th Cir. 2019). We “view all evidence in the light most favorable
to the government and defer to all reasonable inferences drawn by the trial
court.” Tovar, 719 F.3d at 388 (quoting United States v. Turner, 319 F.3d 716,
720–21 (5th Cir. 2003)).
Typically, we review legal questions of statutory interpretation de
novo. United States v. Washington, 764 F.3d 491, 496 (5th Cir. 2014); United
States v. Treft, 447 F.3d 421, 424 (5th Cir. 2006). However, when the
appellant raises an entirely new legal argument for the first time on appeal,
we review for plain error. Treft, 447 F.3d at 424. To establish plain error, an
appellant must show: (1) error; (2) that is plain, i.e., clear or obvious; (3) that
affects his substantial rights; and (4) that “seriously affect[s] the fairness,
integrity[,] or public reputation of judicial proceedings.” Puckett v. United
States, 556 U.S. 129, 135 (2009) (quoting United States v. Olano, 507 U.S. 725,
736 (1993)); see also United States v. Cooper, 979 F.3d 1084, 1090 (5th Cir.
2020), cert. denied, No. 20-7122 (Mar. 22, 2021).
III.
On appeal, Knowlton asks us to vacate his conviction for the receipt
offense for either of two reasons. First, Knowlton argues that the computer
files he downloaded are themselves child pornography punishable under
§ 2252A(a)(2)(A), and so he cannot be found guilty of receiving “material
that contains child pornography” under § 2252A(a)(2)(B). Second,
Knowlton contends that the dates of child-pornography downloads proven at
trial materially vary from the dates alleged in his indictment. Neither
argument has merit.
A.
The government contends that plain error review is required on
Knowlton’s first argument. We need not address the proper standard of
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review for that argument because it fails even under the stricter de novo
standard. See United States v. Kieffer, No. 19-30225, 2021 WL 1050167, at *3
(5th Cir. Mar. 19, 2021). Although Knowlton asserts that the only
“material” in his possession were the flash drives and internal and external
hard drives where he saved the computer files he received, the computer files
themselves are plainly material containing child pornography.
Section 2252A takes its definition of “child pornography” from
§ 2256(8). 18 U.S.C. § 2256(8) (defining terms for the chapter in which
§ 2252A appears). Under that definition, child pornography is “any visual
depiction, including any . . . video, picture, or computer or computer-
generated image or picture . . . where . . . the production of such visual
depiction involves the use of a minor engaging in sexually explicit conduct.”
Id. The term “visual depiction” includes “data stored on computer disk or
by electronic means which is capable of conversion into a visual image.” Id.
§ 2256(5). The 3,469 digital images and 249 digital videos found on
Knowlton’s devices are clearly child pornography under these two
definitions.
The files containing those 3,469 digital images and 249 digital videos
are material containing child pornography. The statute does not define the
phrase “material that contains child pornography,” and so it must be read
according to the “ordinary meaning” of the words. United States v.
Lauderdale Cnty., 914 F.3d 960, 964 (5th Cir. 2019) (quoting Schindler
Elevator Corp. v. United States ex rel. Kirk, 563 U.S. 401, 407 (2011)). In
Knowlton’s view, the phrase should be construed to address only tangible
units of storage like books, magazines, boxes, and computer disks.
The text of § 2252(a)(2)(B), however, does not support such a
limitation. A computer file is “material” because it—as “the basic unit of
storage”—can be “a medium containing images of child pornography.”
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United States v. Woerner, 709 F.3d 527, 540 (5th Cir. 2013); File, Microsoft
Computer Dictionary 211 (5th ed. 2002). Knowlton’s computer files
“contain” child pornography because the computer files comprise the data
within them. See Contain, The American Heritage Dictionary Second College
Edition 315 (1982) (defining “contain” to mean “1. To have within; enclose.
2. To have as component parts; comprise; include.”). Receipt of
pornographic computer files is properly chargeable as receipt of material
containing child pornography under § 2252A(a)(2)(B).
As the government notes, this conclusion comports with the cases in
this circuit and our sister circuits upholding convictions for receipt or
distribution of material containing child pornography when the alleged
“material” was computer files. E.g., United States v. Ross, 948 F.3d 243, 245
(5th Cir.), cert. denied, 141 S. Ct. 305 (2020); United States v. Barton, 879 F.3d
595, 596 (5th Cir. 2018); United States v. Roetcisoender, 792 F.3d 547, 549–50
(5th Cir. 2015) (involving facts remarkably similar to this case); United States
v. Winkler, 639 F.3d 692, 699 (5th Cir. 2011); United States v. Irving, 452 F.3d
110, 120–22 (2d Cir. 2006); United States v. MacEwan, 445 F.3d 237, 240–41
(3d Cir. 2006); United States v. Stout, 509 F.3d 796, 797–98 (6th Cir. 2007);
United States v. Sturm, 673 F.3d 1274, 1277 (10th Cir. 2012); United States v.
Bobb, 577 F.3d 1366, 1369–70, 1375 (11th Cir. 2009).
B.
Knowlton’s second argument fails on de novo review. According to
Knowlton, the evidence at trial permitted the judge to conclude only that five
files contained child pornography, and the dates of receipt proven for those
files materially vary from the dates alleged in the indictment. We disagree on
both points.
As an initial matter, the evidence at trial indicated that far more than
five files contained child pornography. The 3,469 image files and 249 video
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files were named with sexually explicit conventions indicating child
pornography. The district court itself viewed two videos from files bearing
similar sexually explicit names. Further, an officer testified at trial that he
personally viewed all 3,469 images and 249 videos to confirm they contained
child pornography. The district court “was free to conclude, based on all the
circumstances, that” there were many more than just five files of child
pornography. Winkler, 639 F.3d at 700.
But even if there were only five files, the dates of receipt Knowlton
points to for those files do not materially vary from the dates alleged in the
indictment. When the evidence at trial varies from the facts alleged in an
indictment, the question is whether the defendant was fairly put on notice to
defend himself. See United States v. Smith, 523 F.2d 771, 778 (5th Cir. 1975).
“[A] variance between allegations and proof is fatal only when it affects the
substantial rights of the defendant by failing to sufficiently notify him so that
he can prepare his defense and will not be surprised at trial.” United States
v. Reed, 908 F.3d 102, 122 (5th Cir. 2018) (quoting United States v. Girod, 646
F.3d 304, 317 (5th Cir. 2011)). If an indictment uses the term “on or about”
to allege a date, the government is “not required to prove the exact date; it
suffices if a date reasonably near is established.”1 United States v. Valdez, 453
F.3d 252, 260 (5th Cir. 2006) (quoting United States v. Grapp, 653 F.2d 189,
195 (5th Cir. Unit A Aug. 1981)).
1
Knowlton incorrectly relies on United States v. Perry, which is simply not relevant
to this case. 638 F.2d 862 (Fifth Cir. Unit A. Mar. 1981). Perry did not involve a material
variance from a date alleged in an indictment. Rather, in Perry the government
impermissibly attempted to prove the value of goods trafficked in a particular shipment by
counting the value of different goods trafficked in different shipments and not referred to
in the indictment. Id. at 871; see also 18 U.S.C. § 2311 (defining “value” to include “the
aggregate value of all goods . . . referred to in a single indictment”).
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The indictment alleged that Knowlton received material containing
child pornography “[f]rom on or about February 6, 2016, through on or about
March 8, 2016.” The “on or about” language let Knowlton know that the
timeframe for the allegations was approximate. Knowlton concedes that the
government proved date of receipt for at least two of the five files: January
13, 2016 and November 29, 2015.
That is a variance of at most two and a half months. We have
previously found that temporal variances of up to twelve months were not
material. See Girod, 646 F.3d at 316 (affirming a conviction with a four-month
variance); United States v. Wilson, 116 F.3d 1066, 1089 (5th Cir. 1997)
(affirming a conviction with a five-month variance), vacated on other grounds
sub nom. by United States v. Brown, 161 F.3d 256 (5th Cir. 1998) (en banc);
United States v. Bowman, 783 F.2d 1192, 1197 (5th Cir. 1986) (affirming a
conviction with a three-month variance); Russell v. United States, 429 F.2d
237, 238 (5th Cir. 1970) (affirming a conviction with a twelve-month
variance). The two-and-a-half-month variance was well within the timeframe
that Knowlton could expect to encounter at trial given the “on or about”
language in the indictment.
* * *
Because Knowlton’s computer files are “material that contain[] child
pornography,” and because the proof at trial did not materially vary from the
allegations in the indictment, the judgment of the district court is
AFFIRMED. We REMAND for the district court to correct a clerical
error in the judgment, which mistakenly indicated that Knowlton pleaded
guilty instead of being found guilty after a bench trial. See Fed. R. Crim. P.
36; Cooper, 979 F.3d at 1092.
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