from the United States District Court for the Middle District
HAYNES, GRAVES, and DUNCAN, Circuit Judges.
E. GRAVES, CIRCUIT JUDGE.
convicted Christopher G. Waguespack of knowingly distributing
and possessing child pornography, in violation of 18 U.S.C.
§§ 2252A(a)(2) and 2252A(a)(5)(B). The district
court sentenced Waguespack to 180 months' imprisonment on
each count to run concurrently, followed by 10 years of
supervised release. He now challenges his conviction and
sentence on six grounds. We AFFIRM.
March 2015, Investigator Louis Ratcliff from the Louisiana
Attorney General's Office conducted an undercover
investigation of peer-to-peer networks for child
pornography. Ratcliff used Torrential Downpour to download over
400 images of child pornography from an IP Address in Baton
Rouge, Louisiana. On May 5, 2015, he opened a file on his
March investigation and authored a report on his
investigation results. On June 13, 2015, Ratcliff conducted
another investigation and downloaded over 200 images of child
pornography from an IP Address in Baton Rouge, Louisiana.
Ratcliff subpoenaed Cox Communications to provide the IP
Addresses for the downloads that occurred on March 29-30,
2015, and June 13, 2015. Cox Communications informed Ratcliff
that the IP Addresses belonged to Waguespack's father,
Larry Waguespack, with whom Waguespack lived.
September 24, 2015, officers executed a search warrant at
Waguespack's residence. The officers seized a computer
from Waguespack's bedroom. The computer contained
software actively searching for and downloading files with
file names indicative of child pornography. After a forensic
examination, the computer was found to have encrypted space
and anti-forensic software,  CCleaner & Eraser, installed.
There were file paths with names indicative of child
pornography that led to an "E-drive," but examiners
were unable to locate an "E-drive" in the
unencrypted space of the computer. The examiners were also
unable to find any user-accessible child pornography on the
computer. However, the examiners found over 2, 800 images and
four videos of child pornography in deleted thumbnail
cache in a deleted zip file in an unallocated
space of the computer. The file names in the unallocated
space were not indicative of child pornography.
Indictment & Superseding Indictment
here, the grand jury returned an indictment charging
Waguespack with knowingly distributing child pornography on
May 5, 2015 and June 13, 2015, and knowingly possessing child
pornography on September 24, 2015. In a probable cause
affidavit to support the search warrant application, Ratcliff
stated that at least one child pornography offense occurred
on May 5, 2015. In fact, May 5, 2015, was the date that
Ratcliff authored his investigation report and not the date
that any of the offenses occurred.
the Government obtained a Superseding Indictment. The
Superseding Indictment mirrored the original indictment
except the date of the May 5, 2015 offense was changed to
between March 29, 2015 and March 30, 2015. Waguespack pleaded
not guilty to the counts in the Superseding Indictment.
filed several pre-trial motions, including a motion for the
production of the transcripts of the grand jury proceedings
and a motion to suppress. The district court denied both
motion for production, Waguespack argued that the date
discrepancy between March 29-30 and May 5 showed that
Ratcliff possibly lied to the Grand Jury. He argued that
the Government's knowing use of false testimony entitled
him to the transcripts. The district court denied the motion
and found, inter alia, that Waguespack failed to
show a particularized need for the transcripts. The court
found that Waguespack failed to present evidence that
Ratcliff was lying, and not simply making an error. The court
further found that even if Ratcliff lied, the Superseding
Indictment with the correct dates remedied any injustice.
motion to suppress, Waguespack argued that the evidence
obtained from the search should have been suppressed because
the search warrant application contained a material
misstatement, violating Franks v. Delaware, 438 U.S.
154 (1978), as May 5 was listed instead of March 29-30. He
argued that no judge would have found probable cause without
the misrepresented dates. After a hearing, the district court
denied the motion and found that Waguespack failed to prove
that Ratcliff made the statements "knowingly and
intentionally, or with reckless disregard for the
truth." The Court also found that even if Ratcliff
knowingly lied about the dates and the May 5, 2015 date was
omitted, there was still sufficient information to support
October 16, 2017, the jury trial began. Ratcliff was not a
witness. The Government introduced Ratcliff's download
logs through Agent David Ferris, another investigator in the
Louisiana Attorney General's Office. Agent Ferris was
qualified as an expert in the field of online exploitation
investigations and peer-to-peer file sharing. Waguespack
objected to the introduction of the exhibits related to
Ratcliff's reports. He claimed lack of foundation and
inadmissible hearsay. The objections were overruled.
Government also called Waguespack's parents to testify.
Waguespack's parents testified as to their knowledge of
computers. His mother testified that Waguespack's father,
Larry, "tinker[ed]" with computers, but that
Waguespack did not, and "[Waguespack] wasn't really
into fixing other people's computers or anything like
that . . . ." She also testified that Waguespack is
"knowledgeable [about computers] . . . he knows how to
use them and he knows more than [she knows]."
father, Larry, testified that Waguespack was the only person
that used the computer in Waguespack's room. Larry also
testified that he was knowledgeable of CCleaner as software
"to get rid of . . . history folders, that kind of stuff
and e-mail junk" and understood it as "something
common . . . to clean [the computer] to keep it from getting
viruses and stuff." He learned about CCleaner from the
internet and from Waguespack. He testified that he and
Waguespack discussed CCleaner years ago because Larry was
getting viruses on his computer. Larry also testified that he
was knowledgeable enough about computers that he could build
one from scratch. He had not heard of Eraser, had minimal
knowledge of encryption, and had only heard of BitTorrent
from the investigation.
the Government rested, Waguespack moved for judgment of
acquittal under Federal Rule of Criminal Procedure 29. The
motion was denied.
parties then presented their closing arguments.
Waguespack's counsel stated the following in his closing:
Ladies and Gentlemen, where is Louis Ratcliff? You heard from
seven witnesses at this trial, and all but one testified
about Louis Ratcliff. And the guy that didn't was the Cox
Communications guy . . . . Every single piece of evidence in
this case, came from Louis Ratcliff. The Government has the
burden of proof in this case and every case where they're
charging someone with a criminal offense, and they have to
prove their case beyond all reasonable doubt, and yet the
government did not call Louis Ratcliff as a witness.
This entire case, every single piece of evidence that you
have to rely on was touched by Louis Ratcliff. Every single
thing the government introduced to try to prove their case
requires that you trust Louis Ratcliff, not just trust him,
ladies and gentlemen, you have to trust him beyond a
reasonable doubt because he's the source of the case, but
the government didn't trust him enough to call him as a
witness. They didn't call Louis Ratcliff to tell us why
his images say March 29th and 30th, but every report says May
5th and his sworn affidavits say May 5th. They didn't
call Louis Ratcliff to tell you that if he received those
images in March, why did he wait until May 13th to put them
in the evidence locker?
Why [sic] are all of the videos and images that Mr. Ratcliff
supposedly downloaded, why are none of them on
[Waguespack]'s computer when they show up to do the
search? Louis Ratcliff didn't come and answer any of
those questions because there's no explanation. There is
no answer for those questions.
Government stated the following in its rebuttal:
The only person that brought up Mr. Ratcliff here today was
[Waguespack's counsel]. What I would simply say to this
point, that if [Waguespack's counsel] thought that Louis
Ratcliff was going to help his side of this case, he has the
same subpoena power as the United States government to demand
that witnesses be here. And I'm sure if Mr. Ratcliff was
going to be that helpful, [Waguespack's counsel] would
have had him in this courtroom talking to you, not just
suggesting that it may have been something helpful.
jury found Waguespack guilty of knowingly distributing and
possessing child pornography, in violation of 18 U.S.C.
§§ 2252A(a)(2) and 2252A(a)(5)(B). The jury,
responding to a special verdict form, also found that
Waguespack possessed child pornography that involved
Presentence Investigation Report ("PSR")
recommended, inter alia, a two-level obstruction of
justice enhancement under U.S.S.G. § 3C1.1 because there
was anti-forensic software installed on Waguespack's
computer. Waguespack objected to the enhancement and argued
that the enhancement did not apply because he never took any
action to delete or conceal evidence after he
learned of the investigation. The district court overruled
calculated Waguespack's offense level as 39, inclusive of
the enhancement. Based on Waguespack's offense level and
criminal history category of I, his Guidelines' range was
262 to 327 months. The court granted Waguespack a downward
variance and sentenced him below the Guidelines to 180
months' imprisonment on each count to run concurrently,
followed by 10 years of supervised release.
now timely appeals his conviction and sentence.
Waguespack's Conviction Is Proper.
appeals his conviction on four grounds. He argues that: (1)
the Government failed to prove beyond a reasonable doubt that
Waguespack "knowingly" distributed and possessed
child pornography; (2) the Government violated
Waguespack's Sixth Amendment Confrontation Clause right
by failing to call Ratcliff as a witness; (3) the Government
made improper comments in its rebuttal; and (4) the
Government committed a Brady ...