In United States v. Smith, the Fifth Circuit reversed the acquittal of a man convicted of possession of child pornography. (No. 12-60988 (5th Cir. 2014).) The district could had determined that "the evidence was insufficient to sustain the verdict," but the appeals court found that the conviction should stand.
Twenty-six videos of child pornography had been found on the defendant's computer, and the three suspects were roommates. The prosecution showed that one roommate could not have download the files because she was not using the computer at the time of the download. A second roommate testified at the defendant's trial and denied having downloaded the images. The defendant did not testify. The Fifth Circuit found that "these facts appear to implicate [him]."
However, it was shown that the second roommate did use the computer often. He also had no alibi for the download dates. The defendant had, however, offered an alibi through the testimony of three witnesses, and documents were presented to support the alibi. There were some discrepancies in this testimony, and the documentation was not fully supportive of the testimony.
The district court had acquitted the defendant on the basis that "it is just as likely that [the second roommate] downloaded the child pornography onto the computer as [the defendant] did." That, the Fifth Circuit held, is not the proper inquiry.
But the question is not whether, in terms of metaphysical probability, it is "equally likely" that [the second roommate] downloaded the files. The question is whether this evidence, taken in the light most favorable to the verdict, offers "nearly equal circumstantial support" for competing explanations.The appeals court found that it did not and reversed the acquittal, holding that the jury simply chose to believe the roommate's testimony, and "[i]t is well within their discretion to do so."
Great paper, but the generation on the bench is out of touch with the amount of history Americans have with digital storage. While they may have watched the rise of smartphones and tablets, they have not been part of the technology revolution of the past 15 years. To them, a device may only hold a few scattered pieces of information on an adult or a teens litany of those bird messages. Many of us keep over a decade of digital knowledge and living with us when we travel, some of it embarrassing.
ReplyDeleteSince the supreme court decided not to review Cotterman, even in the 9th Circuit all it takes is to travel while on a "list" to have your items seized and taken off site for forensic examinations, all in the name of CP and terrorists.
No branch of government is going to stop the daily executive over reach into our digial lives until the current judiciary, full of grey haired techno-illiterates, retires.