United States Court of Appeals For the First Circuit

No. 17-2163

UNITED STATES OF AMERICA,

Appellee,

v.

JOED TORRES MONJE,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Howard, Chief Judge, Thompson and Barron, Circuit Judges.

Ignacio Fernández de Lahongrais for appellant. David C. Bornstein, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

February 24, 2021 HOWARD, Chief Judge. Joed Torres Monje ("Torres")

appeals his conviction for possession of child pornography.

Torres contends that the evidence proffered by the government was

insufficient to convict him. For reasons discussed in further

detail below, we affirm the conviction.

I. BACKGROUND

The investigation into Torres began when U.S. Department

of Homeland Security ("DHS") Special Agent Max Rodríguez received

information that, on March 16, 2015, a user at a specific internet

protocol ("IP") address had downloaded a file with a unique 36-

character "SHA1" value (or "hash value"), a file previously

identified by DHS as depicting child pornography. The file

contained a 17-minute pornographic video involving a very young

child.

Rodríguez determined that the owner of the IP address

was Liberty Cable of Puerto Rico. Liberty Cable provided

government agents with the name and address of the subscriber to

the IP address in question: Torres's father, Rafael Torres-

Suarez. Based on this information, Rodríguez applied for and

obtained a federal search warrant permitting him to search the

Torres residence and all electronic devices found therein.

The search warrant was executed on May 6, 2015, by

Rodríguez and another DHS special agent, Salvador Santiago.

During the execution of the warrant, the agents found three images

- 2 - of child pornography on a desktop computer. Torres's father, when

interviewed about the images, stated that he had no knowledge of

or involvement with anything regarding child pornography, and that

the owner and the only user of the desktop computer was his son,

Torres.

That same day, the agents located Torres and asked him

if he would agree to be interviewed. He consented and was read

his rights, which he waived. In the ensuing interview, Torres

admitted that he was the user of the desktop computer; that his

internet service was password-protected; that he knew child

pornography was illegal; that he used a file-sharing service called

eMule to view and download child pornography; that the search terms

he had used to find child pornography on eMule were "five, six,

and seven years old"; that he had been downloading child

pornography for approximately two years; that he deleted the child

pornography each time he downloaded it; and that the last time he

downloaded child pornography was in early 2015.

A full forensic examination of the computer, which had

been seized during the search, revealed one child pornography video

and nineteen child pornography images located in the computer's

unallocated space. The testimony at trial was that "unallocated

space" is where deleted files are stored on a computer; after a

file is deleted from a computer, it still resides in the computer

in unallocated space but cannot be accessed unless recovered by

- 3 - special software. Santiago, who estimated he had conducted over

one thousand forensic investigations, testified that these images

were not the sort of thing one would download "by accident."

Torres was arrested on May 6, 2015, and a federal grand

jury subsequently indicted Torres on one count of possession of

child pornography, a Class C felony. 18 U.S.C. §§ 2252A(a)(5)(B),

2252A(b)(2). The indictment alleged that "[o]n or about March 16,

2015 through May 6, 2015," Torres had knowingly possessed "an

image" of child pornography "in his Hewlett Packard desktop

computer." On March 20, 2017, Torres proceeded to a jury trial

in the district court.

At the close of the government's evidence, Torres moved

the district court for a Rule 29 judgment of acquittal. In moving

for acquittal, Torres conceded that he "saw child pornography in

a couple of videos on a couple of occasions," and "immediately

deleted those materials," but asserted that he did not "save those

videos" on his computer, and that "possession" would require Torres

to "do something else . . . than to download" and "view" them. As

to the nineteen images recovered from the computer's unallocated

space, Torres asserted that the government had not proven that he

knew about or exercised dominion over those images, which he argued

were "unavailable" to him because they were found in the computer's

unallocated space.

The district court reserved judgment on the motion.

- 4 - Torres then presented evidence in his defense but did not renew

his motion for judgment of acquittal before the district court

submitted the case to the jury. The jury convicted Torres on the

one count of possession of child pornography.

Torres timely filed a post-trial motion for judgment of

acquittal. Repeating the arguments that he made in support of his

earlier motion for judgment of acquittal, Torres again asserted

that the government did not prove his knowledge of the nineteen

images of child pornography in the unallocated space of the

computer's hard drive, nor that he had possessed those images by

"exercising dominion or control" over them. He also argued that

the images could have been "downloaded and deleted" sometime

outside of the statute of limitations period for his crime.

The district court denied Torres's motions for judgment

of acquittal and sentenced him to a prison term of time served,

followed by eight years of supervised release. This appeal

followed.

II. STANDARD OF REVIEW

We review the denial of a preserved sufficiency of the

evidence challenge de novo. United States v. Rodríguez-Martinez,

(1st Cir. 2015). The evidence is evaluated in

the light most favorable to the verdict, and we must decide whether

"that evidence, including all plausible inferences drawn

therefrom, would allow a rational factfinder to conclude beyond a

- 5 - reasonable doubt that the defendant committed the charged crime."

United States v. Santos-Rivera,

(1st Cir. 2013)

(quoting United States v. Troy,

(1st Cir. 2009)).

By contrast, we review unpreserved sufficiency of the evidence

challenges "only for clear and gross injustice." United States

v. Morel,

(1st Cir. 2018) (quoting United States

v. Marston,

(1st Cir. 2012)). We have clarified

that "clear and gross injustice" is a "particularly exacting

variant of plain error review." United States v. Freitas,

(1st Cir. 2018) (emphasis omitted) (quoting United

States v. Foley,

(1st Cir. 2015)). There is some

dispute between the parties, discussed below, as to whether the

sufficiency of the evidence challenge in this appeal was properly

preserved.

III. DISCUSSION

As mentioned earlier, Torres moved for a Rule 29 judgment

of acquittal at the close of the government's evidence, on which

the district court reserved judgment, and filed a post-trial motion

renewing his request for a judgment of acquittal. He did not

renew the motion that he made at the close of the government's

evidence before the submission of the case to the jury. The

government concedes that Torres's post-trial motion "preserved a

challenge to the sufficiency of all the evidence," but argues that

Torres forfeited review of his mid-trial motion based only on the

- 6 - government's case-in-chief because he presented his own evidence

and did not renew his mid-trial motion prior to the submission of

the case to the jury.

We need not determine what issues are preserved, because

even if we apply de novo review to both Torres's mid-trial motion

and his post-verdict motion, his sufficiency claim cannot succeed.

The government introduced evidence sufficient to establish that

Torres was the sole user of the desktop computer; that the desktop

computer contained child pornography; that the files were

transmitted through the internet; that the computer itself had

also traveled through interstate commerce; that Torres used the

terms "five, six, and seven-year-old" to search for and

affirmatively download child pornography from eMule; that Torres

admitted to installing and uninstalling eMule because he knew that

possessing child pornography was illegal; that Torres not only

habitually downloaded these files, but watched them and deleted

the files afterward; that Torres began downloading child

pornography in 2013 and had continued to download and delete child

pornography through at least March 2015; and that for a file to be

in a computer's unallocated space, it must have been on the

computer first and then deleted by a user, which means the user

must have exercised sufficient control over a file found in that

space in order to delete it.

The jury was instructed that to convict Torres, it had

- 7 - to find beyond a reasonable doubt that Torres knowingly possessed

child pornography. The district court specified four

requirements, three of which bear on the appeal: (1) that Torres

"knowingly possessed the Hewlett Packard desktop computer

mentioned in Count 1 of the indictment"; (2) that "the Hewlett

Packard desktop computer mentioned in the count of the indictment

contained at least one image of child pornography"; and (3) that

Torres "knew that the Hewlett Packard desktop computer . . .

contained an image of child pornography." The term "knowingly"

was defined for the jury as an act done "voluntarily and

intentionally, and not because of mistake or accident." The term

"possess" was defined for the jury as exercising "authority,

dominion or control over something."

Comparing the findings required by the instructions to

the government's evidence, we easily conclude that a reasonable

jury could have found beyond a reasonable doubt that Torres

knowingly possessed child pornography. The jury could have found

the first requirement (knowing possession of computer) satisfied

because the desktop computer was located in Torres's room, and he

admitted to using that computer regularly. The jury could have

found the second requirement (presence of child pornography)

satisfied because the defense conceded that "19 images [of child

pornography] were recovered from the computer." And the third

element (Torres's awareness that the computer contained child

- 8 - pornography) could have been found to be satisfied, because Torres

admitted that he affirmatively searched for and deleted child-

pornographic images.

Torres nevertheless submits that there is no proof that

he knowingly possessed the nineteen specific images of child

pornography found on the computer. There are several distinct

iterations of his argument. First, he argues that because the

files were found in the unallocated space of his computer, he "did

not have access to and could not see those images." Second, he

emphasizes the fact that the nineteen images "could have resided

in the unallocated clusters for five years," which could

potentially mean that the five-year statute of limitations had

already run out if the possession occurred over five years prior

to the indictment. Third, and similarly, Torres highlights that

the jury was instructed to decide whether Torres possessed the

child pornography "on a date reasonably near March 16, 2015 through

May 6, 2015." He argues that even if he did possess child

pornography, it was not proven beyond a reasonable doubt to be

"reasonably near" those dates.

None of these arguments suggests that no reasonable jury

could have convicted Torres. As to the first argument (no access

to unallocated space), a jury could reasonably believe that

deletion itself suggests "authority, dominion or control" over the

file at a certain point in time, and therefore understand an item's

- 9 - location in unallocated space to be incontrovertible proof that

the user of the computer had possession over it. As for the second

and third arguments (timing issues), Torres admitted to

downloading child pornography "two or three months ago" from the

time he was interviewed in May 2015, permitting the jury to find

that the statute of limitations had not elapsed at the point when

Torres had "authority, dominion or control" over the child

pornography, and that in fact, his possession occurred "reasonably

near" the date range specified in the jury instructions.

Moreover, in his May 2015 interview, Torres admitted that the first

time he downloaded child pornography was in 2013, meaning that if

the jury agreed that the files in a computer's unallocated space

had to be "possessed" at some point in time, they would have to

find that Torres possessed the nineteen images within the five-

year statute of limitations.

In any case, the government also correctly argues that

the specific time of the crime's commission is not an element of

the crime. Even if the jury instructions erroneously insinuated

that the jury would have to find beyond a reasonable doubt that

the crime was committed between March 16, 2015, and May 6, 2015,

the Supreme Court addressed this exact issue in Musacchio v. United

States,

(2016), holding that "when a jury

instruction sets forth all the elements of the charged crime but

incorrectly adds one more element, a sufficiency challenge should

- 10 - be assessed against the elements of the charged crime, not against

the erroneously heightened command in the jury instruction."

Therefore, even under the standard of review most

favorable to him, Torres's sufficiency of the evidence challenge

cannot succeed.

Affirmed.

- 11 -