United States v. Johnson
Opinion of the Court
A jury convicted defendant Randy Lee Johnson, Jr., (Johnson) of knowingly receiving child pornography, in violation of 18 U.S.C. § 2252(a)(2), and knowingly pos
I. BACKGROUND
In November 2008, Johnson, a photographer, was taking photos at a hockey game in Des Moines, Iowa. Johnson’s assistant, Dawn Gorelick, was stationed at a booth in the hockey arena to download digital photos onto Johnson’s laptop computer when memory cards in Johnson’s digital camera became full. While Gorelick was sorting photos on Johnson’s laptop, she discovered what she believed to be images of child pornography. With the help of a friend, she contacted an off-duty police officer in the arena and showed him one of the images she discovered. After viewing the image, the officer confiscated Johnson’s computer and escorted Gorelick to a first aid station. The officer then contacted an on-call detective.
Meanwhile, Johnson discovered his computer was missing and called Gorelick’s cellular phone. The off-duty officer answered the call, identified himself, and invited Johnson to meet with him at the first aid office. Johnson went to the office and the officer explained that he found apparent child pornography on Johnson’s computer and denied Johnson’s request that he return the computer. Shortly thereafter, the on-call detective arrived at the arena and asked Johnson if she could interview him. Johnson agreed, and the detective and two other law enforcement officers accompanied Johnson to a private room.
In the private room, Johnson was advised of his Miranda rights and he signed a form waiving such rights. Johnson told the detective that he saved adult pornography on his computer in a file entitled “girls,” and that he had “stumbled upon” child pornography while looking at adult pornography on the Internet. Johnson denied purposefully downloading child pornography, but he did admit that he “save[s] everything.” He also explained that others had access to his laptop in public, but he was the only person with private access to the computer.
After this interview, police obtained a search warrant to forensically examine Johnson’s computer. During the search, a forensic examiner discovered 190 images of child pornography on Johnson’s laptop in file folders entitled “girls” and “pictures,” but the examiner was unable to determine whether the images came from the Internet or from some other source. In December 2008, Johnson met with an investigator in a private room at the police station to discuss the results of the forensic examination, and Johnson again waived his Miranda rights. After the investiga
A grand jury returned an indictment charging Johnson with both possessing and receiving child pornography. At trial, Johnson took the stand and recanted his videotaped confession. He explained that he would have “said anything” to the investigator during the interview due to stress and fear, and he had “no idea” how the child pornography got onto his computer. Johnson moved for judgment of acquittal at the close of the government’s case and at the close of all evidence, which the district court denied. The jury found Johnson guilty on both counts, and Johnson appeals.
II. DISCUSSION
Johnson argues that there is insufficient evidence to support his conviction for receiving child pornography under 18 U.S.C. § 2252(a)(2) because the government failed to establish the jurisdictional element of the offense. This is an atypical sufficiency challenge, however, because both parties agree that the jurisdictional element was correctly stated in the indictment, but erroneously charged to the jury. As Johnson suggests, United States v. Inman, 558 F.3d 742 (8th Cir. 2009), governs the unique sufficiency challenge presented in this case and, under the analytical framework set forth in Inman, we agree with Johnson that the government failed to establish the jurisdictional element of the receipt offense.
In the indictment, Johnson was charged with receiving child pornography that either (1) had been shipped and transported in interstate and foreign commerce; or (2) contained materials which had been so shipped and transported. See 18 U.S.C. § 2252(a)(2). This jurisdictional element was disputed at trial. The government presented Johnson’s videotaped confession wherein he admitted to downloading child pornography from the Internet — a channel of interstate commerce. But, Johnson took the stand and recanted his confession, explaining that he “would have said anything” to the investigators due to his mental state at the time of his confession. When confronted with the specific images at issue in this case, Johnson testified that he had “no idea” where the images came from. Also, while questioning its own computer forensics examiner, the government asked, “You indicated that all of these images had come from the Internet, is that correct?” The examiner responded, “No. I don’t know where those images came from. All I can tell you is that they’re downloaded to that hard drive.” The expert also explained that the file name of one of the images indicated that it could have come “from another person” and that the images on Johnson’s computer “could have been taken from CD’s” or other sources. Finally, during closing arguments, Johnson’s attorney argued before the jury, “[D]id [the images at issue] come from the Internet? And the answer to that question is indisputably we don’t know.” Indeed, there was a question for the jury as to whether the government satisfied the jurisdictional element of § 2252(a)(2), as charged in the indictment. Due to an instructional error, however, the jury never decided this question.
As the Inman court explained, where a jury is properly instructed, we review sufficiency challenges by asking “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Continuing under Inman’s guidance, we may still affirm Johnson’s conviction if “the evidence is so overwhelming or incontrovertible that there is no reasonable doubt that any rational jury would
This is where the present case is different from Inman. Here, to satisfy the statutory jurisdictional element, the government introduced Johnson’s pre-trial confession wherein he admitted to downloading child pornography from the Internet. But this evidence was by no means overwhelming, undisputed, uncontradicted, or unimpeached. Indeed, Johnson recanted the confession at trial, explained that he would have “said anything” to the investigator given his mental state at the time of his confession, and adamantly asserted that he had “no idea” how the illicit images got onto his computer. Moreover, the government’s own witness could not verify that the images came from the Internet and, indeed, opined that the images could have come from CD’s, another person, or some other source. The government’s evidence on this element is simply not “overwhelming” and a rational jury certainly could have concluded that the government failed to prove the element beyond a reasonable doubt.
Nevertheless, the analysis under Inman is still not complete. Because the evidence in Inman satisfied the rigorous “overwhelming or incontrovertible” standard, the court expressly declined to decide whether a more government-friendly standard of review should apply under these circumstances. The court noted that in two of our sister circuits a defendant’s conviction may be affirmed, despite patently erroneous jury instructions, if “any rational trier of fact could have found the essential elements of the offense, as defined by applicable law, beyond a reasonable doubt.” Id. at 749 (citing United States v. Guevara, 408 F.3d 252, 258 (5th Cir. 2005); United States v. Zanghi, 189 F.3d 71, 79 (1st Cir. 1999)). This is the same standard we would have applied to Johnson’s sufficiency challenge if the jury had been properly instructed. See id. at 747 (explaining that the rationale underlying our usual standard for reviewing sufficiency challenges is supported if a properly instructed jury returns a verdict of guilty). In dicta, the Inman court implied that applying this government-friendly standard in cases such as this, where a jury is not properly instructed, would violate the following well-established constitutional principles: (1) “the Due Process Clause requires that the prosecution prove all elements beyond a reasonable doubt,” id. at 749; and (2) “the Sixth Amendment requires that ‘the jury, rather than the judge, reach the requisite finding of “guilty.” ’ ” Id. (quoting Sullivan v. Loui
III. CONCLUSION
We reverse and vacate Johnson’s conviction for receiving child pornography under 18 U.S.C. § 2252(a)(2), and remand for resentencing on his conviction for possessing child pornography under 18 U.S.C. § 2252(a)(4)(B).
. Indeed, the government deemed the court’s instructions "acceptable” at trial.
. The government contends that we should review Johnson's challenge for plain error, the standard we apply to review unobjected-to jury instructions. We disagree. Johnson clearly raises a sufficiency-of-the-evidence challenge, not a direct challenge to the jury instructions. See Inman, 558 F.3d at 749 (recognizing in an identical context that the defendant's sufficiency challenge was not an objection to the instructional error). Moreover, it was not Johnson’s burden to object to the jury instruction because, in light of the evidence presented at trial, the jury would have acquitted Johnson if it had properly applied the instruction. Therefore, if anyone is to be faulted for failing to object to the instruction, it should be the government. See, e.g., United States v. Ausler, 395 F.3d 918, 920 (8th Cir. 2005) (holding that an erroneous jury instruction became the law of the case for the purpose of reviewing defendant's sufficiency challenge because the government failed to object to the instruction at trial); United States v. Williams, 376 F.3d 1048, 1051 (10th Cir. 2004) ("[T]he government [has] the burden of proving each element of a crime as set out in a jury instruction to which it failed to object, even if the unchallenged jury instruction goes beyond the criminal statute's requirements.”); United States v. Jimenez Recio, 537 U.S. 270, 279, 123 S.Ct. 819, 154 L.Ed.2d 744 (2003) (Stevens, J., concurring in part and dissenting in part) ("The prosecutor, like the defendant, should be required to turn square corners.”).
. This standard is based on the Supreme Court’s application of harmless-error review to objected-to jury instructions. Inman, 558 F.3d at 749 (discussing Neder v. United States, 527 U.S. 1, 15, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), and Pope v. Illinois, 481 U.S. 497, 502, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987)).
Dissenting Opinion
dissenting.
I respectfully dissent. The majority adopts a heightened standard of review for sufficiency-of-the evidence challenges when the conviction is based on an erroneous jury instruction on one of the elements of the offense. In such cases, according to the majority, we may affirm the conviction if the evidence satisfies the statutory element — but only if we “ ‘conelude[ ] beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence ... and no rational juror, if properly instructed, could find that the element was not satisfied.’ ” Supra Part II (quoting Inman, 558 F.3d at 749). Because I believe that the evidence on the jurisdictional element of Johnson’s receipt conviction was “overwhelming” and “incontrovertible,” I would affirm Johnson’s receipt conviction.
As an initial matter, Inman itself did not create a new standard of review. Indeed, as the majority notes, the Inman court observed that two circuits have treated sufficiency challenges involving an erroneous jury instruction just like any other sufficiency challenge, but the court found that it could “resolve the appeal without deciding whether it is appropriate to apply the deferential standard of review” used by those circuits. 558 F.3d at 749 (citing Guevara, 408 F.3d at 258; Zanghi, 189 F.3d at 79). Instead, the Inman court concluded that it could affirm the conviction because, on the facts of that case, the evidence was “overwhelming or incontrovertible” on the disputed element. Id. Thus, Inman clearly declined to adopt a precise standard of review. The majority now “adopt[s] Inman’s rigorous ... standard,” supra Part II, but also goes much further, effectively turning this court’s standard of review for sufficiency challenges on its head.
The standard of review for a “typical” sufficiency challenge is quite familiar but nevertheless worth reviewing. “We review the sufficiency of the evidence de novo, viewing evidence in the light most favorable to the government, resolving conflicts in the government’s favor, and accepting all reasonable inferences that support the verdict.” United States v. Scofield, 433 F.3d 580, 584-85 (8th Cir. 2006) (quotation and citation omitted). In addition, “we must not weigh the evidence or assess the credibility of witnesses.” United States v. Garcia-Hernandez, 530 F.3d 657, 661 (8th Cir. 2008) (quotation and citation omitted). Finally, we will not lightly overturn a jury’s guilty verdict. United States v. Van Nguyen, 602 F.3d 886, 897 (8th Cir. 2010). The majority’s analysis, in contrast, grants all reasonable inferences and views the evidence in the light most favorable to Johnson — the appellant — and not to the jury’s guilty verdict.
As the majority notes, Johnson only challenges the sufficiency of the evidence as to the jurisdictional element. The majority acknowledges that this element, as charged in the indictment, would be established if the evidence showed that Johnson
Q. So [Detective Kelly] mentioned in her testimony yesterday that you denied downloading anything.
A. Correct.
Q. Or at least knowingly downloading anything?
A. Correct.
Q. Having watched the tape [of the videotaped confession], is [sic] there parts on that where you’re not comfortable that you told them the whole truth?
A. Yes.
Q. How so?
A. Well, because basically by telling them what I did, it led them to believe other things and — which weren’t true.
Q. Why don’t you be more specific. Tell the jury what you mean.
A. If you see something, it’s not the same as if you download something ....
Later, Johnson had the following exchange with his counsel about how the child pornography might have ended up on his computer’s hard drive:
Q. In the video you mention that you had, I think your words were stumbled upon things that you thought were inappropriate pictures of children, child pornography?
A. Correct. You can’t avoid that online.
Q. Then you’re pressed about downloading it in the video. Do you recall that portion?
A. Yes.
Q. And eventually you seem to agree, okay, I downloaded it, or I believe your exact words were, I download everything?
A. Yes.
Q. Did you intentionally download pictures of child pornography?
A. Absolutely not....
Q. You understand watching the video that you say several times, I download everything, and in the context of the conversation, it’s taken as, and you seem to be agreeing with, well, that means you downloaded child pornography, too?
A. In that state of mind, I would have said anything, yes.
* * *
Q. Obviously, there are pictures on your computer?
A. Yes.
Q. How did they get there?
A. I have no idea. If I did, I would not be sitting here right now.
Q. Do you understand you’re charged with knowingly receiving pictures of sexual depictions of children? Did you knowingly receive any of those things?
A. No, I did not.
Q. You mentioned before you’ve seen such photographs ?
A. Yeah. You can’t avoid seeing that stuff. If you look at any adult pom whatsoever, you will find everything.
Q. And I think you mentioned in the conversation, you had seen it, you would click on it, it’s like a plane wreck or train wreck to you?
*926 A. Correct.
Q. Other than that, did you intentionally or knowingly try to keep any of that?
A. No, I did not.
Q. How about possessing it? Did you knowingly or intentionally try to possess any of those things?
A. No, I did not----
(Emphases added.) On cross-examination, Johnson had the following exchange with the government attorney:
Q. During the course of your conversation with Detective Kelly, you admitted that you had found child pornography when you were looking at adult pornography, correct?
A. You see it as advertisements, yes.
Q. Isn’t it true, Mr. Johnson, that you downloaded a number of child pornography images from the Internet to your laptop computer?
A. Absolutely not....
Taken as a whole, Johnson’s testimony does not amount to a full recantation of his videotaped confession. Johnson’s testimony not only failed to contest his videotaped statement that the child pornography came from the Internet,
Moreover, the majority opinion reweighs the credibility of Johnson’s testimony. If the jury had believed Johnson’s testimony, including his partial recantation of his videotaped confession, it would not have convicted him because it could not have found the mens rea element of the offense. But the jury did convict Johnson, allowing this court to conclude, quite confidently, that it discredited Johnson’s testimony. Inman’s heightened standard of review does not alter this court’s longstanding rule that the appellate court cannot revisit a jury’s credibility assessment when reviewing the sufficiency of the evidence on appeal. Garcia-Hemandez, 530 F.3d at 661. Yet the majority effectively does just that, stating that, based in part on Johnson’s trial testimony, “a rational jury certainly could have concluded that the government failed to prove the [interstate-commerce] element beyond a reasonable doubt.” Supra Part II.
Finally, the majority grants one more inference in favor of Johnson. As the majority notes, the government’s expert
In sum, the majority’s analysis dramatically alters this court’s review of sufficiency-of-the-evidence challenges. Under the majority’s approach, whenever a defendant’s conviction was based on an erroneous jury instruction — regardless of whether he challenged the instruction at trial or on appeal — this court would review his sufficiency-of-the-evidence challenge under the exact opposite framework than what this court employs in a “typical” sufficiency challenge. Rather than “viewing evidence in the light most favorable to the government, resolving conflicts in the government’s favor, and accepting all reasonable inferences that support the verdict,” Scofield, 433 F.3d at 584-85, this court would now view the evidence and grant reasonable inferences in the defendant’s favor. Rather than declining to “assess the credibility of witnesses” on appeal, Garcictr-Hemandez, 530 F.3d at 661, this court would be able to ignore the jury’s assessment of the witnesses.
Even assuming Inman can be read as requiring a more rigorous standard of review when the appellant’s conviction is based on an erroneous jury instruction, that standard would only require this court to consider whether “the evidence is so overwhelming or incontrovertible that there is no reasonable doubt that any rational jury would have found that the government proved the statutory element.” Inman, 558 F.3d at 749. It would not require this court to abandon its entire framework for reviewing the sufficiency of the evidence on appeal. Because I believe the evidence on the jurisdictional element of the receipt charged was “overwhelming” and “incontrovertible,” I would affirm Johnson’s conviction for receiving child pornography. As a result, I would address the merits of Johnson’s argument that his convictions for receiving and possessing the same images of child pornography violate the Double Jeopardy Clause.
. As noted above, Johnson did deny that he “downloaded” the child pornography from the Internet. However, he never denied that he saw the child pornography online. This is a meaningful distinction. Johnson’s defense throughout trial was that he might have inadvertently viewed child pornography online, but he did not save the images to his computer. Again, by denying that he downloaded the child pornography from the Internet, Johnson’s testimony — taken as a whole — reveals that he only disputed the mens rea element of the offense.
Reference
- Full Case Name
- UNITED STATES of America, Appellee, v. Randy Lee JOHNSON, Jr., Appellant
- Cited By
- 6 cases
- Status
- Published