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United States v. Waguespack

United States Court of Appeals, Fifth Circuit

August 15, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee

          Appeal from the United States District Court for the Middle District of Louisiana

          Before HAYNES, GRAVES, and DUNCAN, Circuit Judges.


         A jury 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.

         I. BACKGROUND

         A. Investigation

         In March 2015, Investigator Louis Ratcliff from the Louisiana Attorney General's Office conducted an undercover investigation of peer-to-peer networks[1] for child pornography. Ratcliff used Torrential Downpour[2] 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.

         On 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, [3] 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[4] 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.

         B. Indictment & Superseding Indictment

         Relevant 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.

         Subsequently, 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.

         C. Pre-Trial

         Waguespack 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 motions.

         In the 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.[5] 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.

         In the 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 probable cause.

         D. Trial

         On 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.

         The 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]."

         Waguespack's 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.

         After the Government rested, Waguespack moved for judgment of acquittal under Federal Rule of Criminal Procedure 29. The motion was denied.

         The 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.

         The 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.

         The 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 prepubescent minors.

         E. Sentencing

         The 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 the objection.

         The PSR 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.

         Waguespack now timely appeals his conviction and sentence.


         A. Waguespack's Conviction Is Proper.

         Waguespack 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 ...

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