Fifth Circuit reverses CP charge because computer was shared, dissent suggests argument is 'nonsense'

In United States v. Moreland, 665 F.3d 137 (2011), the Fifth Circuit dealt a crushing blow to prosecutors, finding that where a computer is shared between multiple users and no evidence clearly proves which user viewed child pornography found on it, a conviction will not stand.

The defendant lived with his wife and father. The three shared two computers, and the defendant's father often used them late at night. In September 2007, the wife found Internet history that indicated viewing of child pornography, and she reported it to police. In January 2008, the father died, and in May 2008, the defendant was charged with possession of child pornography. Testimony at trial indicated that there was no way to know the download dates of the images presented to the jury, and it was impossible to distinguish use of the computer between the three. The defendant's family testified that the father had long been a viewer of pornography.

With regard to custody of the computers, the court found that the prosecution offered no evidence to show that the defendant knew of the images and had control over them. Further, even exclusive possession of a computer without evidence showing defendant's knowledge and control over the images is insufficient for a possession conviction. Therefore, the court reversed the conviction.

In his snarky dissent, Judge Jolly wrote, "The record does not reflect whether the jury box had more than twelve chairs, but we do know—and we know for sure—that two more jurors are trying to crowd into the box." Jolly argued that there was sufficient evidence to support the conviction and that the "'[m]y dead Daddy did it' defense was deceitful and fictional nonsense." If you want to get schooled in deference to a jury's verdict and proper standards of review, this dissent is an excellent read.

It will be interesting to see whether the Fifth Circuit rehears the case en banc. Meanwhile, I would imagine defense attorneys certainly appreciate the gift.