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United States v. Roetcisoender

United States Court of Appeals, Fifth Circuit

July 2, 2015

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
DAVID PAUL ROETCISOENDER, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas.

For United States of America, Plaintiff - Appellee: Jenny Clare Ellickson, Trial Attorney, U.S. Department of Justice, Criminal Division, Washington, DC; Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX.

For David Paul Roetcisoender, Defendant - Appellant: David Adler, Bellaire, TX.

Before SMITH, PRADO, and OWEN, Circuit Judges.

OPINION

PRISCILLA R. OWEN, Circuit Judge.

A jury convicted David Paul Roetcisoender of two counts of distribution of child pornography and one count of possession of child pornography. On appeal, Roetcisoender challenges the sufficiency of the evidence supporting his convictions for distribution, the application of a two-level sentencing enhancement for use of a computer, and the application of a two-level sentencing enhancement for distribution. Because the evidence is sufficient to support his convictions for distribution, and his sentencing arguments are foreclosed by prior precedent, we affirm.

I

The Pearland, Texas Police Department operates software that monitors file-sharing programs and detects IP addresses that store files known to contain child pornography. The software identified an IP address in Pearland, and Detective Cecil Arnold subpoenaed Comcast, the Internet service provider, for the account holder's information. Arnold and other officers obtained and executed a search warrant for the account holder's residence, where Roetcisoender also resided. When Roetcisoender arrived, he admitted to having child pornography on his computers. After onsite triage revealed the presence of child pornography on some of Roetcisoender's devices, the officers arrested Roetcisoender and seized two computers and multiple external hard drives and flash drives for further analysis. Officer Jonathan Cox, a computer forensic investigation officer, examined the computers and other hardware and found over 100,000 pornographic images of minors and over 2,000 videos of child pornography.

Roetcisoender told the police he had been downloading child pornography through eMule, a program that facilitates file sharing between users. Users can search for images and videos using key words and choose which files to download. The downloaded files go, by default, into a folder titled " Incoming." The " Incoming" folder is, by default, available for sharing with other eMule users online. As part of his analysis, Cox retrieved a file that documents every file that has been downloaded by the eMule user and every file that has been uploaded to another eMule user from the original user's folder. This file revealed that two child-pornography files were uploaded to other users from Roetcisoender's " Incoming" folder.

Following a jury trial, Roetcisoender was convicted of two counts of distribution of child pornography under 18 U.S.C. § 2252A(a)(2)(B) and one count of possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B).[1] He was sentenced to 163 months in prison, eight years of supervised release, and a $300 special assessment. Roetcisoender appeals his convictions for distribution of child pornography and his sentence.

II

When a defendant timely moves for a judgment of acquittal, as Roetcisoender did,[2] this court reviews de novo a defendant's challenge to the sufficiency of the evidence supporting conviction.[3] However, this court's review of the sufficiency of the evidence is " highly deferential to the verdict." [4] " The jury's verdict will be affirmed unless no rational jury, viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of the offense to be satisfied beyond a reasonable doubt." [5] This review necessarily requires consideration of evidence that countervails the verdict.[6] This court draws all reasonable inferences in favor of the jury's verdict.[7]

We review " the district court's interpretation and application of the sentencing guidelines de novo and its findings of ...


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