United States v. McNealy

Case: 09-60521 Document: 00511285855 Page: 1 Date Filed: 11/05/2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

November 5, 2010

No. 09-60521

Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

JOSEPH MCNEALY,

Defendant–Appellant.

Appeal from the United States District Court

for the Southern District of Mississippi

Before DENNIS, OWEN, and SOUTHWICK, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

Joseph McNealy appeals his conviction for possession and receipt of child

pornography in violation of 18 U.S.C. § 2252(a)(2), (a)(4)(B). He raises a number

of issues, including whether the Speedy Trial Act was violated, the pornographic

depictions of children were properly authenticated as images of actual children,

and the destruction of his computer’s hard drives was in bad faith. We affirm.

I

A nationwide investigation of commercial child-pornography websites

revealed evidence that Joseph McNealy had purchased memberships to a

number of such sites. Federal agents interviewed McNealy at his residence, and

he consented to a search of his computer. That initial search discovered

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pornographic images of children on a hard drive. McNealy then consented in

writing to the seizure of the computer for further examination.

More than 9,000 pornographic images of children were found. These

images had been downloaded from commercial websites and other internet

sources. Federal agents created “forensic image” copies of the three hard drives

in McNealy’s computer; however, his computer and its hard drives were

subsequently destroyed. McNealy was indicted for knowing possession and

receipt of child pornography in violation of 18 U.S.C. § 2252(a). Before trial, the

district court granted continuances at the requests of both McNealy and the

Government. At trial, the Government introduced print-outs of some of the

images found on McNealy’s computer, using the forensic image copies of two of

the hard drives. McNealy was found guilty on all charges and sentenced to 70

months of imprisonment, followed by a life term of supervised release. This

appeal followed.

II

We first consider McNealy’s argument that the Speedy Trial Act 1 was

violated. The district court granted three continuances, one of which resulted

in only a one-day change in the trial date. We therefore focus on the two

continuances that more substantially extended the trial date. “We review the

district court’s factual findings supporting its Speedy Trial Act ruling for clear

error and its legal conclusions de novo.” 2

McNealy contends that the court was required to but did not make

contemporaneous findings on the record that the ends of justice served by the

continuances outweighed the best interest of the public and the defendant in a

speedy trial. Such findings were not made part of the record until the district

1

18 U.S.C. §§ 3161-3174.

2

United States v. Stephens, 489 F.3d 647, 652 (5th Cir. 2007).

2

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court issued an order denying McNealy’s motion to dismiss for the alleged

violations of the Act. McNealy contends that because of the absence of findings

in each of the orders granting continuances and due to the failure of the first

order granting a continuance to set a trial date, 200 days of delay occurred that

were not excludable under the Act.

The Speedy Trial Act generally requires a defendant’s trial to start within

70 days of his indictment or his appearance before a judicial officer.3 However,

recognizing that there are “valid reasons for greater delay in particular cases,” 4

the Act includes a long list of exclusions from the calculation of the date by

which trial must commence.5 McNealy does not contend that any of the

continuances were granted for reasons other than an enumerated exception.

McNealy initially appeared on November 9, 2007. The 70-day requirement

began running on that day. The first continuance at issue was granted on

December 21, 2007, at McNealy’s request on the basis that his counsel would be

attending National Guard training for much of the month of January, and trial

was set for January 7, 2008. McNealy asserted in his motion seeking this

continuance that it was necessary “in order that justice might be served.” The

district court’s order granting the continuance made no findings to that effect,

but subsequently, in an order dated November 28, 2008, the district court did set

forth in writing its finding in this regard.

The Act provides in § 3161(h)(7)(A) that if a district court grants a

“continuance on the basis of his findings that the ends of justice served by taking

such action outweigh the best interest of the public and the defendant in a

speedy trial,” the court must “set[] forth, in the record of the case, either orally

3

18 U.S.C. § 3161(c)(1).

4

Zedner v. United States, 547 U.S. 489, 497 (2006).

5

18 U.S.C. § 3161(h).

3

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or in writing, its reasons for” such finding.6 If the court fails to do so, “[n]o such

period of delay resulting from a continuance granted by the court . . . shall be

excludable” under this exception.7 The Supreme Court has held that “[a]lthough

the Act is clear that the findings must be made, if only in the judge’s mind,

before granting the continuance . . ., the Act is ambiguous on precisely when

those findings must be ‘se[t] forth, in the record of the case.’” 8 “[A]t the very

least the Act implies that those findings must be put on the record by the time

a district court rules on a defendant’s motion to dismiss,”9 although “[t]he best

practice, of course, is for a district court to put its findings on the record at or

near the time when it grants the continuance.”10 In the present case, the district

court stated in its order denying McNealy’s motion to dismiss that it

“emphasizes that the following findings were made ‘in the judge’s mind, before

granting the continuance,’ and are here made part of the record.” The order then

set forth specific findings that are set forth in the margin.11 This was sufficient

to satisfy the requirements of § 3161(h)(7)(A).12

On April 2, 2008, the Government moved for a further continuance due to

the unavailability of a witness for trial. The district court granted the

6

18 U.S.C. § 3161(h)(7)(A).

7

Id.

8

Zedner, 547 U.S. at 506-07 (quoting 18 U.S.C. § 3161(h)(7)(A)).

9

Id. at 507.

10

Id. n.7.

11

“In this case, the defendant requested, and was granted, additional time for his

counsel to prepare for trial. The Court found that to deny the continuance would have

deprived the defendant of reasonable time necessary for effective preparation, and that the

ends of justice would be served by granting the continuance requested by the defendant. The

Court also found that the ends of justice served by the granting of the continuance outweighed

the best interests of the public and the defendant in a speedy trial.”

12

Zedner, 547 U.S. at 507.

4

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continuance, setting trial for June 23, 2008. This order continued the tolling of

the time limit under the Speedy Trial Act because of the witness absence

exclusion.13 The requirement that a district court set forth its findings regarding

the ends of justice in § 3161(h)(7)(A) does not apply to a continuance that is

granted under § 3161(h)(3) on the basis of the “absence or unavailability

of . . . an essential witness.”14 The district court found, in addition to other

findings, that the Government’s witness “was both a material and an essential

witness for the [G]overnment’s case in chief,” she was unavailable on the date

of trial, and the Government had exercised due diligence in attempting to obtain

her presence at trial.

McNealy also argues that the first continuance did not satisfy the

requirements of the Act because the order granting it did not specify a trial date.

However, a district court may decide to continue a trial indefinitely when “‘it is

impossible, or at least quite difficult, for the parties or the court to gauge the

length of an otherwise justified continuance.’” 15 If the continuance is for a

substantial length of time, it “must be adequately justified by the circumstances

of the particular case.”16 The record establishes that the district court’s decision

not to set a trial date in its December 21, 2007, order was fully reasonable and

justified, as McNealy’s initial counsel was attending National Guard training

and his pro hac vice counsel’s initial motion to appear was denied, and his

counsel was not admitted to the district court bar until February 19, 2008. The

13

See 18 U.S.C. § 3161(h)(3)(A).

14

See United States v. McNeil, 911 F.2d 768, 773 (D.C. Cir. 1990) (concluding that

“paragraph (h)[(7(A))] is not applicable to an ‘essential witness’ delay”); United States v.

Bourne, 743 F.2d 1026, 1031 (4th Cir. 1984) (concluding that § 3161(h)(3)(A) “does not require

that the trial judge make specific findings that the ends of justice require the continuance”).

15

United States v. Westbrook, 119 F.3d 1176, 1187 (5th Cir. 1997) (quoting United

States v. Jones, 56 F.3d 581, 586 (5th Cir. 1995)).

16

Jones, 56 F.3d at 586.

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trial court set a trial date on March 13, 2008. McNealy’s arguments regarding

the Speedy Trial Act have no merit.

III

McNealy contends that images retrieved from his computer and alleged to

be child pornography were improperly admitted because they were not

authenticated under Federal Rule of Evidence 901 and did not comport with the

best-evidence principles embodied in Federal Rule of Evidence 1002. “We review

a district court’s evidentiary rulings for an abuse of discretion.”17 McNealy

preserved the authentication issue, so we apply the harmless error standard of

review.18 He did not preserve his best-evidence contention, so our review is for

plain error.19

Federal Rule of Evidence 901 provides that “[t]he requirement of

authentication or identification as a condition precedent to admissibility is

satisfied by evidence sufficient to support a finding that the matter in question

is what its proponent claims.”20 Evidence may be authenticated by testimony of

a witness with knowledge that a matter is what it is claimed to be.21 The images

at issue are photographs within the meaning of Rule 1001(2).22

McNealy asserts that because no witness testified that the printed images

of child pornography the Government introduced were “unaltered images of

actual minors actually engaged in the conduct depicted,” the evidence should

17

United States v. George, 201 F.3d 370, 372 (5th Cir. 2000).

18

United States v. Williams, 957 F.2d 1238, 1240-41 (5th Cir. 1992).

19

United States v. Jimenez, 256 F.3d 330, 340 (5th Cir. 2001).

20

FED . R. EVID . 901(a).

21

FED . R. EVID . 901(b)(1).

22

FED . R. EVID . 1001(2) (“‘Photographs’ include still photographs, X-ray films, video

tapes, and motion pictures.”).

6

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have been excluded. He asserts that the jurors were incapable of determining

if the images depicted real minors or instead depicted virtual images of minors

engaged in sexually explicit activity, the latter of which, the Supreme Court has

held, are constitutionally protected speech.23

A government witness, Richard Kaplan, testified regarding the images

retrieved from McNealy’s computer that were admitted into evidence over

McNealy’s objections. During voir dire of Kaplan regarding the admissibility of

the images, McNealy’s counsel elicited testimony that Kaplan was not present

when the images were taken and had no personal knowledge of how the images

were taken. When asked if one of the images depicted a real person, Kaplan

responded, “It looks like a real person to me,” but that he had never met her.

The image looked to him to be a ten- or twelve-year-old girl. When asked if it

was in “the realm of possibility that this is a fake image,” “a completely fake

image that just looks like a real person,” the witness answered, “I don’t

know. . . .” During cross-examination, in the presence of the jury, Kaplan

similarly testified that he was not the photographer and was not present when

the images were taken, but he believed the images to be those of “real girls” and

“real minors.” He conceded that he did not “have the ability to look at these

images and tell this jury if they’ve been altered or not,” although there was no

discussion of what “altered” meant and no context from which its meaning was

clear.

Based on this testimony, McNealy contends that the government did not

satisfy its burden of authenticating the images. Our court 24 and other circuit

23

Ashcroft v. Free Speech Coal., 535 U.S. 234, 254-56 (2002) (holding that creating,

possessing and distributing virtual images of child pornography is “protected speech”).

24

United States v. Slanina, 359 F.3d 356, 357 (5th Cir. 2004) (per curiam).

7

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courts25 have considered and rejected similar arguments post-Free Speech

Coalition. We held in United States v. Slanina that expert testimony or

additional evidence, other than the images themselves, “was not required.” 26 As

in the present case, we noted that the defendant did not contend that any of the

downloaded images “were virtual children, and not real children.” 27 We

concluded that “Free Speech Coalition did not establish a broad requirement that

the Government must present expert testimony to establish that the unlawful

image depicts a real child.”28 We agreed with the Tenth Circuit that “‘[j]uries are

still capable of distinguishing between real and virtual images; and admissibility

remains within the province of the sound discretion of the trial judge.’” 29 We

25

See United States v. Salcido, 506 F.3d 729, 733-34 (9th Cir. 2007) (per curiam) (“We

agree with every other circuit that has ruled on the issue that expert testimony is not required

for the government to establish that the images depicted an actual minor,” and “there seems

to be general agreement among the circuits that pornographic images themselves are

sufficient to prove the depiction of actual minors.”); United States v. Rodiguez-Pacheco, 475

F.3d 434, 438-39 (1st Cir. 2007) (confirming that there is no “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” and “the mere possibility,

unsupported by evidence, that the images could have been produced by use of technology and

not using real children was not sufficient to reject a lower court’s ruling founded on reasonable

inferences derived from experience and common sense,” although there was some expert

testimony in that case); United States v. Farrelly, 389 F.3d 649, 652 (6th Cir. 2004) (“Free

Speech Coalition does not require the Government to do more in the context of this case than

present the images to the jury for a determination that the depictions were of actual

children”), abrogated on other grounds by United States v. Williams, 411 F.3d 675, 678 n.1 (6th

Cir. 2005); United States v. Kimler, 335 F.3d 1132, 1142 (10th Cir. 2003) (concluding on plain

error review that “[j]uries are still capable of distinguishing between real and virtual images;

and admissibility remains within the province of the sound discretion of the trial judge”);

United States v. Deaton, 328 F.3d 454, 455 (8th Cir. 2003) (per curiam) (observing “we have

previously upheld a jury’s conclusion that real children were depicted even where the images

themselves were the only evidence the government presented on the subject” and holding

“[h]aving viewed the exhibits, we find no plain error”).

26

359 F.3d at 357.

27

Id.

28

Id.

29

Id. (quoting Kimler, 335 F.3d at 1142).

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reasoned that “[t]he district court, as the trier of fact in this case, was capable

of reviewing the evidence to determine whether the Government met its burden

to show that the images depicted real children.” 30

McNealy points to two exchanges in the record that he contends establish

that neither the jurors nor the district court were capable of determining

whether the images admitted at trial were of actual rather than virtual children.

The first exchange was during voir dire of the venire when McNealy’s counsel

asked prospective jurors whether they had “the ability from past skill, training,

experience, whatever, to look at a digital image and [] tell which ones have been

changed, things have been altered, red eyes removed, you can figure that out by

looking.” No juror responded affirmatively. This question, by its own terms,

inquires only about relatively minor alterations to images of actual individuals.

Even if it were proper to voir dire the venire regarding expertise in discerning

whether images are of actual or virtual children, an issue we do not broach

today, the voir dire in this case did not elicit that information.

The second exchange on which McNealy relies occurred in chambers when

McNealy argued that the question he posed to the venire, discussed above,

established that the jury was incapable of distinguishing images of virtual

children from images of actual children. The district court rejected this

argument, but in doing so, made remarks that are quoted in the margin.31 Later

30

Id.

31

The district court stated:

I don’t think any juror and very few, if any, judges, have the expertise

to look at an image and make a determination as to whether or not this is a real

child or this is a virtual image. I don’t see how the Congress, Supreme Court

or any other court can expect that of a judge or a jury; and yet the courts have

said it is a jury issue.

This is an area of the law, in my opinion, that needs to be cleared up. It

needs to be, because where we are here is the jury has to find that these are real

9

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during the trial, counsel for McNealy referred to these remarks regarding the

ability of jurors to discern whether the images were of actual children, arguing,

“the court’s already ruled on the record that it doesn’t believe the jury can know

that [the images were of actual minors] by looking at these images, that an

expert can know that.” The district court interrupted, stating, “I didn’t say that,

now counselor. I think you misunderstood me. I said that – initially, in one of

our conferences I believe I stated it would be a jury issue. I can see how it would

be difficult, but I didn’t say the jury could not do that.” The district court

admitted the challenged exhibits, overruling McNealy’s objections to their

authenticity. When the case was submitted to the jury, the district court gave

a written instruction regarding the allegation that McNealy possessed a visual

depiction of minors engaging in sexually explicit conduct. The written

instruction directed the jury that it “must be convinced that the Government has

proved . . . beyond a reasonable doubt . . . [t]hat an actual minor was the subject

of the visual depiction.” This same instruction was repeated three more times

in connection with the other counts in the indictment.

The district court complied with the law prevailing in this and other

circuits. The court admitted the challenged exhibits, which appear to be what

they purported to be, images of actual prepubescent girls and young teen girls

(not fully matured), engaging in various forms of sexually explicit conduct. The

district court permitted the jury to determine whether the images were of actual

rather than virtual children. Nothing in the record, including the images

children. I concede that to you and that is the law. But they don’t have the

expertise to do that. I don’t know if anyone without special training has the

expertise to do that.

And so where are we in this case? And that’s an open question. I don’t

know the answer to it. All I know is I’m going to try to instruct this jury on the

law as I understand it and give the defense latitude in cross-examination and

in argument on that issue and I will consider in the next hour whether the court

should be more specific in its instructions in that regard.

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themselves, suggests that they are anything other than images of actual pre-

pubescent children and young teenage girls engaged in what McNealy concedes

is lewd and lascivious conduct. Moreover, there is no evidence in the record

before us that the state of technology is such that images of this nature could

have been generated using virtual children. While it remains the Government’s

burden to show that actual children were depicted, the images themselves

sufficed to authenticate them in this regard.

We note that after the Supreme Court’s decision in Ashcroft v. Free Speech

Coalition,32 Congress amended the Child Pornography Prevention Act of 1996

and made certain findings.33 Congress found in 2003 that “[t]here is no

substantial evidence that any of the child pornography images being trafficked

today were made other than by the abuse of real children,” and

[l]eading experts agree that, to the extent that the technology exists

to computer generate realistic images of child pornography, the cost

in terms of time, money, and expertise is--and for the foreseeable

future will remain--prohibitively expensive. As a result, for the

foreseeable future, it will be more cost-effective to produce child

pornography using real children.34

These findings are not evidence in a criminal trial. They do not indicate,

however, a need to revisit our prior decision in Slanina,35 even if a panel of this

court had authority to do so.

The district court did not abuse its discretion in concluding that the child

pornography images were authenticated under Federal Rule of Evidence 901.

We similarly conclude that the district court did not plainly err, if it erred at all,

32

535 U.S. 234 (2002).

33

See 18 U.S.C. § 2251.

34

Id.

35

United States v. Slanina, 359 F.3d 356 (5th Cir. 2004).

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in overruling McNealy’s argument that admission of the child pornography

images violated Federal Rule of Evidence 1002.

Rule 1002 provides that “[t]o prove the content of a writing, recording, or

photograph, the original writing, recording, or photograph is required, except as

otherwise provided in these rules.” Rule 1003 states that a “duplicate is

admissible to the same extent as an original unless (1) a genuine question is

raised as to the authenticity of the original or (2) in the circumstances it would

be unfair to admit the duplicate in lieu of the original.” McNealy asserts that

the Government did not establish that the images were either originals or

duplicates.

This argument is unavailing. The forensic imaging process produced an

exact copy of the digital files on McNealy’s computer, these files were then

captured on DVDs, and the exhibits were printed from the DVDs. The

Government presented evidence establishing the chain of custody and the

technology utilized. McNealy does not argue that the printouts were not

accurate representations of the photos on his hard drive. Rather, his argument

appears to be that the Government failed to prove that the images depict actual

children, an argument we rejected above and that is not pertinent to the Rule

1002 inquiry. The district court’s admission of the photographic evidence did not

violate Federal Rule of Evidence 1002.

IV

McNealy asserts that the district court erred when it denied his pretrial

motion to dismiss the indictment for a fair trial violation. He contends that the

Government prevented him from “perform[ing] three tasks” essential to his

defense, which were (1) researching the origin of the pornographic images,

(2) creating digital image exhibits to demonstrate that apparent pornography

images are visually indistinguishable from pornographic images of actual

minors, and (3) creating exhibits from the Government’s exhibits to support

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defense expert testimony. McNealy argues that he could not complete these

tasks because defense experts attempting to do so would be put at risk of

prosecution under the child pornography statute.

We review a district court’s denial of a motion to dismiss an indictment de

novo.36 We review the district court’s underlying factual findings for clear

error.37

Certain restrictions on the use of child pornography in a criminal

proceeding are found in 18 U.S.C. § 3509(m). Section 3509(m)(1) provides that

child pornography “shall remain in the care, custody, and control of either the

Government or the court.” Section 3509(m)(2)(A) requires a court to deny any

request by the defendant to reproduce child pornography “so long as the

Government makes the property or material reasonably available to the

defendant.” Material is “reasonably available” if the Government “provides

ample opportunity for inspection, viewing, and examination at a Government

facility of the property or material by the defendant, his or her attorney, and any

individual the defendant may seek to qualify to furnish expert testimony at

trial.” 38

McNealy had full access to the Government’s exhibits and could have

completed all the tasks he now enumerates. McNealy was free to prepare digital

image exhibits in order to demonstrate that apparent contraband images are

indistinguishable from real contraband images. Likewise, he was free to review

all the Government’s exhibits. As for McNealy’s claim that defense witnesses

could be subject to prosecution, McNealy could have obtained a protective

immunity order if one had been warranted. McNealy identifies no witness that

36

United States v. Kay, 513 F.3d 432, 440 (5th Cir. 2007).

37

United States v. Hamm, 659 F.2d 624, 637 (5th Cir. Unit A Oct. 1981).

38

18 U.S.C. § 3509(m)(2)(B).

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refused to cooperate. He did not identify any expert that he wished to consult

or had the expert been given access to the images. McNealy called no witnesses

and offered no evidence in his defense. The district court did not err in denying

McNealy’s motion to dismiss for a fair trial violation.

V

McNealy argues that the district court erred when it found that the

Government’s destruction of his computer was not in bad faith. McNealy asserts

that the district court should have granted his motion for a judgment of acquittal

due to the Government’s failure to preserve the computer.

Failure to preserve material exculpatory evidence violates due process

rights irrespective of whether the government acted in good or bad faith. 39

However, failure to preserve merely potentially useful evidence does not

constitute a denial of due process absent a showing of bad faith.40 We review a

district court’s bad-faith determination for clear error.41

After the Government seized McNealy’s computer, the Asset Forfeiture

Division of the U.S. Attorney’s Office filed a civil in rem action for forfeiture of

the computer. The attorneys handling the in rem action worked in a separate

branch of the U.S. Attorney’s Office from the attorneys handling the criminal

case, and the attorneys in the present case did not know of the forfeiture

proceeding. Notice of the in rem complaint was published in a local newspaper

for three weeks after its filing. Although McNealy had previously indicated in

a form that he intended to contest the forfeiture proceeding, the Asset Forfeiture

Division did not notify McNealy personally about the proceeding. McNealy did

39

Illinois v. Fisher, 540 U.S. 544, 547 (2004).

40

United States v. Moore, 452 F.3d 382, 388 (5th Cir. 2006) (citing Arizona v.

Youngblood, 488 U.S. 51, 57-58 (1988)).

41

United States v. Gibson, 963 F.2d 708, 711 (5th Cir. 1992).

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not contest the forfeiture action, and, after a default judgment, the computer was

destroyed.

Before the computer was destroyed, federal agents made “forensic image”

copies of the three hard drives in McNealy’s computer. A government computer-

forensics specialist confirmed that two of the three hard drives had been exactly

copied. The copy of the third hard drive contained a small number of errors

(approximately 0.0004861% of the hard drive’s total storage capacity) in sectors

of the hard drive remote from actively used sectors, indicating that the computer

never used the defective sectors for data storage. The Government did not offer

evidence from the partially defective hard drive copy at trial.

McNealy argues that the destruction of the computer violated his due

process rights. He suggests that the mishandling of the defective hard drive

prohibited him from using “exculpatory evidence potentially available on it.” He

also argues that he should not be forced to rely on the Government’s claims that

the two remaining hard drive copies were accurate, given that the originals were

destroyed.

The destroyed evidence should be considered “potentially useful evidence”

rather than “material exculpatory evidence.”42 McNealy does not argue that he

knows of any potentially exculpatory evidence, nor does he identify what

evidence might be contained in the partially defective hard drive. He also does

not argue that potentially exculpatory evidence might be contained in the

correctly copied hard drives. Thus, McNealy’s claim should be analyzed under

the bad-faith standard.43

The district court found that the Government’s destruction of McNealy’s

computer was not in bad faith. According to the court, there was

42

See Fisher, 540 U.S. at 547-48.

43

Id.

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not a real clear explanation to what happened to it. It seems to me

that there were several arms of the federal government working on

this case and many other cases and that simply the evidence in

being transported back to the FBI or back to some other federal

agency was either misplaced or lost. There’s no evidence here that

this evidence was destroyed purposefully.

The Government was at least negligent in destroying McNealy’s computer.

McNealy specifically requested that his computer be returned to him. Despite

this request, the Government did not send notice of the forfeiture proceeding to

McNealy personally. Rather, it published notice of the action in a local

newspaper and eventually destroyed the computer. As the district court found,

this was not reasonable notice. However, there is no evidence that the

Government acted in bad faith. The attorneys in this case did not know of the

forfeiture action, and there is no evidence that they intended to destroy the

evidence in order to impede McNealy’s defense. Indeed, it appears highly likely

that all relevant evidence was preserved in the forensic images of the hard

drives. The original computer was destroyed as a result of miscommunication

between divisions of the federal government, not as a result of bad faith.

Therefore, the district court did not err in finding that the Government’s

destruction of McNealy’s computer was not in bad faith, and this destruction did

not violate McNealy’s due process rights.

VI

McNealy contends that the evidence was insufficient to support his

conviction because it failed to show that he knew that the images he possessed

depicted actual minors. We review a jury verdict under a “highly deferential”

standard.44 “We will affirm the jury’s decision if, viewing the evidence and the

inferences that may be drawn from it in the light most favorable to the verdict,

a rational jury could have found the essential elements of the offenses beyond a

44

United States v. Harris, 293 F.3d 863, 869 (5th Cir. 2002).

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No. 09-60521

reasonable doubt.”45 “It is not necessary that the evidence exclude every

reasonable hypothesis of innocence or be wholly inconsistent with every

conclusion except that of guilt, provided a reasonable trier of fact could find that

the evidence establishes guilt beyond a reasonable doubt.” 46

In order to be convicted under 18 U.S.C. § 2252(a) for knowing receipt and

possession of child pornography, a defendant must know that the images depict

actual minors engaged in sexually explicit conduct.47 The relevant scienter

requirement goes both to the receipt and possession of the material, and to the

nature of the images.48

The facts and information presented to the jury clearly support McNealy’s

conviction. The Government presented exhibits of the images themselves and

evidence of how McNealy obtained the images. As already discussed, juries are

capable of distinguishing between real and virtual images of minors, and they

could find beyond a reasonable doubt that McNealy could as well.49 Additionally,

the methods by which McNealy located and downloaded the images at issue

support a finding that he knew the images depicted actual minors. The search

histories on McNealy’s computer revealed that he searched online using terms

that included “pre-teen girls” and “preteen girls russian.” He created bookmarks

to save the addresses of favorite websites including one that’s name contained

“LOLITA young preteen.” McNealy accessed multiple commercial child-

pornography websites, viewed and saved images from them, joined child-

45

United States v. Clark, 577 F.3d 273, 284 (5th Cir. 2009) (internal quotation marks

omitted).

46

Id.

47

See 18 U.S.C. § 2252(a)(2) and (4); United States v. X-Citement Video, Inc., 513 U.S.

64, 78 (1994).

48

X-Citement Video, 513 U.S. at 68-69, 78.

49

See United States v. Slanina, 359 F.3d 356, 357 (5th Cir. 2004) (per curiam).

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No. 09-60521

pornography internet newsgroups, searched the internet for “lolita” themed

pornography, and used peer-to-peer file sharing software to locate child

pornography. He ultimately downloaded more than 9,000 images of child

pornography. Given this evidence, a rational jury could have found beyond a

reasonable doubt that McNealy knew that images he downloaded depicted actual

minors.

VII

Finally, McNealy argues that the district court erred in denying his motion

for a directed verdict because the Government failed to authenticate its image

evidence and the Government failed to prove that McNealy knew that the

images depicted actual minors. As discussed above, these arguments fail. The

district court did not err in denying McNealy’s motion for a directed verdict.

* * *

For the foregoing reasons, the district court’s judgment is AFFIRMED.

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