Argued: October 26, 2017
from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:15-cr-00151-RGD-DEM-1)
R. Theuer, JAMES R. THEUER, PLLC, Norfolk, Virginia, for
Kosky, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk,
Virginia, for Appellee.
J. Boente, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Norfolk, Virginia, for Appellee.
NIEMEYER, KING, and FLOYD, Circuit Judges.
federal jury convicted Ronald Miltier of seven counts of
receipt of child pornography in violation of 18 U.S.C. §
2252A(a)(2)(A) and one count of possession of child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).
On appeal, Miltier argues that the district court erred in
denying his motion for judgment of acquittal based on
insufficient evidence that he knowingly received or possessed
the illicit files and insufficient evidence of the required
interstate nexus that the files be received "using any
means or facility of interstate or foreign commerce shipped
or transported in or affecting interstate or foreign commerce
by any means, including by computer...." §
2252A(a)(2)(A). Miltier also asserts that the court erred in
instructing the jury that the interstate nexus requirement
for receipt of child pornography could be satisfied based on
the movement of the computer in interstate commerce because
neither the statute nor the superseding indictment provides
for this method. For the following reasons, we affirm.
2013, a Federal Bureau of Investigation (FBI) Task Force
downloaded images of child pornography from an internet
protocol (IP) address assigned to Miltier. On May 7, 2014,
FBI agents executed a search warrant at Miltier's home
and seized several electronic devices, including four
computers. A forensic examiner reviewed the electronics and
determined that only an Acer laptop computer and a PNY thumb
drive contained child pornography or remnants of child
pornography. Both of these devices were found in
Miltier's bedroom, and evidence indicated that Miltier
used both devices. For example, the Acer computer's only
account bore the name of Miltier and his wife, Miltier's
email was the only email loaded on the computer, and Miltier
admitted he used the computer for work when he was in Japan.
Additionally, several internet searches on the computer
related to Miltier's federal job, his car, and repairs he
was making to his roof, further linking Miltier to the
computer. The PNY thumb drive contained a folder named
"Japan" that included a photo that appeared to be
forensic examiner also made several findings regarding the
files containing child pornography. All of the illicit files
on the Acer computer were originally created in the folder
titled "MY SHARED FILES." This folder is a
mandatory folder established by a file sharing program that
was installed on the Acer computer―the Ares peer file
sharing program ("Ares")―and is the default
destination for all files downloaded from Ares. The forensic
examiner confirmed that at least some of the illicit files
were downloaded using Ares. The examiner was also able to
retrieve some search histories and lists of incomplete
downloads, including the download time-stamp for many files.
Although many of the search phrases were innocent, others
were indicative of child pornography.
was originally indicted on November 18, 2015, and then a
grand jury returned a superseding indictment on March 24,
2016, which changed the illicit files underlying the charges.
The superseding indictment charged Miltier with seven counts
of receipt of child pornography in violation of 18 U.S.C.
§ 2252A(a)(2)(A) and one count of possession of child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B),
based on ten different video files found on the Acer
computer. At the close of evidence, Miltier made a motion to
dismiss Counts One and Five for failure to meet the
interstate nexus requirement. The court denied the motion.
The court also overruled Miltier's objections to Jury
Instruction Number 28 related to the interstate nexus
requirement for Counts One through Seven, concluding that the
instruction did not misstate the statute's requirements
nor was it a constructive amendment to the superseding
indictment in violation of Miltier's right to be indicted
by a grand jury. The jury found Miltier guilty on all eight
counts in the superseding indictment.
then moved for judgment of acquittal on all counts based on
insufficient evidence that he knowingly received or possessed
the illicit files, and alternatively for judgment of
acquittal on Counts One and Five based on insufficient
evidence that these files moved in interstate commerce.
Miltier also moved in the alternative for a new trial based
on erroneous jury instructions. The court denied all motions
by written opinion and order on September 6, 2016. On October
25, 2016, the court sentenced Miltier to 120 months'
imprisonment for each of Counts One through Seven and 22
months for Count Eight―all to be served
concurrently―and supervised release for life on each
count. Miltier now appeals his conviction.
first asserts that the district court erred in denying his
motions for judgment of acquittal. In particular, he argues
that the government failed to produce sufficient evidence as
to all counts that he knowingly received or possessed the
illicit files, and failed to produce sufficient evidence of
the required interstate nexus as to Counts One and Five. For
the following reasons, we affirm.
review de novo the district court's denial of a
motion for judgment of acquittal...." United States
v. Green, 599 F.3d 360, 367 (4th Cir. 2010) (citations
omitted). "[W]e must uphold a jury verdict if there is
substantial evidence, viewed in the light most favorable to
the Government, to support it." United States v.
Perkins, 470 F.3d 150, 160 (4th Cir. 2006) (citations
omitted). "In determining whether the evidence in the
record is substantial, we view the evidence in the light most
favorable to the government and inquire whether there is
evidence that a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a
defendant's guilt beyond a reasonable doubt."
United States v. Bailey, 819 F.3d 92, 95 (4th Cir.
2016) (internal quotation marks omitted).
was charged and convicted of knowingly receiving and
possessing child pornography in violation of 18 U.S.C. §
2252A(a)(2)(A), (a)(5)(B). These statutes prohibit the (1)
knowing (2) receipt or possession of child pornography (3)
using any means in or affecting interstate or foreign
commerce, including by a computer. § 2252A(a)(2)(A),
(a)(5)(B). Miltier argues that the court erred in denying his
motion for judgment of acquittal on all counts because there
was insufficient evidence linking him to the illicit files to
satisfy that he knowingly received or possessed the files. We
satisfy the "knowing" element under these
provisions, the government must present sufficient evidence
such that a rational juror could find that the defendant had
knowledge of "the sexually explicit nature of the
materials as well as ... the involvement of minors in the
materials' production...." United States v.
Matthews, 209 F.3d 338, 351 (4th Cir. 2000)
(interpreting United States v. X-Citement Video,
Inc., 513 U.S. 64 78 (1994)); see also United States
v. Tucker, 305 F.3d 1193 (10th Cir. 2002), cert.
denied, 537 U.S. 1223 (2003) (concluding that the
defendant knowingly acquired and possessed images in
violation of § 2252A(a)(5)(B) each time he intentionally
sought out and viewed child pornography with his web
browser); Jury Instr. No. 30, J.A. 678 (requiring the jury to
find that Miltier "had knowledge of the general nature
of the contents of the material... [meaning he] must have
knowledge or an awareness that the material contained a
visual depiction of a minor engaging in sexually explicit
conclude that the government introduced evidence that, taken
together, would allow a reasonable juror to find that Miltier
knowingly received and possessed child pornography. Miltier
asserts that he could not have downloaded the pornography
because he was at work during several download times and did
not have access to the computer based on the security
protocols at the Norfolk Naval Shipyard where he worked.
However, Miltier self-reported his work hours and the time
stamps on which Miltier relies indicate when a file finished
downloading, not when the search was initiated. In addition,
the ten files that form the basis for these charges were
found on the Acer computer, and significant evidence links
the computer to Miltier. Miltier admitted to using the
computer on his work trip to Japan and it was found in his
bedroom. The computer also had only one user account which
bore his name and his wife's name ("RON AND
LORI"), and the only email account on the computer was
his work email account.
of the computer's search history also supports the
jury's verdict. There was evidence in the computer's
search history indicating that Miltier used the computer to
conduct internet searches, including searches for terms
related to Miltier's federal job, his car, and roof
repair―which is what Miltier was doing when agents
executed the search warrant. Additionally, Miltier admitted
knowing about the Ares peer file sharing program that was
used to download the illicit files, his wife Lori denied all
knowledge of the Ares program, and the program was not
installed on any other computer in the house. There was also
evidence the computer was used to search for child
pornography, including the illicit files themselves and an
extensive list of search terms indicative of child
pornography―for example, searches for "preteen
porn, " "pedo videos, " "pedo, "
"young girl, " "child porn, "
"preteen, " and "illegal" were all
conducted on the computer. J.A. 411, 473, 480, 496.
Additionally, searches related to roof repair were conducted
at approximately 9:06 PM, and on the ...