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United States v. Miltier

United States Court of Appeals, Fourth Circuit

February 7, 2018

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
RONALD MILTIER, Defendant-Appellant.

          Argued: October 26, 2017

         Appeal 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)

         ARGUED:

          James R. Theuer, JAMES R. THEUER, PLLC, Norfolk, Virginia, for Appellant.

          Joseph Kosky, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.

         ON BRIEF:

          Dana J. Boente, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.

          Before NIEMEYER, KING, and FLOYD, Circuit Judges.

          FLOYD, Circuit Judge

         A 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.

         I.

         In late 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 of Miltier.

         The 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.

         Miltier 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.

         Miltier 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.

         II.

         Miltier 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.

         "We 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).

         A.

         Miltier 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 disagree.

         To 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 conduct").

         We 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.

         Evidence 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 ...


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