Evidence was sufficient to prove possession of child pornographic images

 

In U.S. v Little received multiple emails on his smart phone containing child pornography on December 21, 2013, while he was in Texas. At the time he was in Texas he opened the email and the pornographic attachments. Then Little moved from Texas to Tampa Florida to work on a shrimp boat. Before departing on the boat he emailed back and forth to a man named Dominic Hall asking for more pictures. The day after he returned from the boat trip he responded to Hall’s email by attaching a child pornographic photo. He used that same email account to send a one email containing child pornography.

Little was charged with transporting child pornography on January 26, 2013 and with possessing one or more depictions of child pornography from December 21, 2012 through January 26, 2013. Prior trial he filed a motion to dismiss both counts for improper venue which the trial court denied and following trial he moved for a judgment of acquittals as to the possession count that was also denied.

In this appeal Little claims that the evidence in his possession was insufficient to establish that venue was proper in the Middle district of Florida and as a result the trial court should have granted his motion for judgment of acquittal on the possession count and his motion to dismiss the possession count. His theory rested on the proposition that the possession counts were based on the pornography attached to the December 21 email and that no evidence showed that he opened that email’s attachment while he was in the Middle District of Florida.

The court of appeals rejected his arguments. Regardless of whether and where Little possessed the images attached to the December 21 email, a reasonable jury could have found that he possessed other child pornography while in Tampa, Florida, when he emailed Hall on January 26 because he possessed it when he sent the email. As of January 26, the venue was proper in Tampa when he was in Tampa when he possessed the pornography emailed to Hall. For that reason the evidence was sufficient for the jury to find that venue was proper in the Middle District of Florida as to the possession count and the district court did not err by denying Little’s motion for judgment of acquittal or the motion to dismiss for improper venue.

At the criminal trial the government produced evidence that the data in Little’s email account was stored on external servers. He had the power to retrieve that data, including any images from the servers. The evidence also established that while Little was in Tampa he had the intent to access the pornographic images attached to the December 21 email, as he told Hall that he was interested in trading the images and he used that same email account to do so. The email was still in his account when the government executed its search warrant a year and a half after Little received it and he had the power and intent to access the images. Therefore, the jury reasonably could find him guilty of the federal crime of possession of child pornography by constructive possession them even though he received them in Texas and never actually accessed them while in Tampa.