10th Circuit: Child-porn conviction for cached images reversed on scienter grounds
Tulsa World: “On Wednesday, the appellate court found the ‘government presented no evidence that Mr. Dobbs actually saw the two images on his monitor, such that he would have had the ability to exercise control over them.’”
U.S. v. Dobbs, No. 09-5025 (10th Jan. 5, 2011)
Before BRISCOE, Chief Judge, HOLLOWAY and HOLMES, Circuit Judges.
HOLMES, Circuit Judge.
In this criminal appeal, Terry Brian Dobbs brings a sufficiency-of-theevidence challenge to his conviction for knowingly receiving and attempting to receive child pornography in violation of 18 U.S.C. § 2252(a)(2).
Mr. Dobbs contends that there was insufficient evidence to prove: (1) that he knowingly received or attempted to receive either of the two pornographic images submitted to the jury; and (2) that these two particular images traveled in interstate or foreign commerce, as required by our precedent in United States v. Schaefer, 501 F.3d 1197 (10th Cir. 2007).
Exercising jurisdiction under 28 U.S.C. § 1291, we agree that the government did not offer sufficient evidence to prove that Mr. Dobbs knowingly received the images found on his hard drive. Consequently, because we have no need to opine on the merits of Mr. Dobbs’s Schaefer argument, we refrain from doing so.
We REVERSE and remand to the district court to VACATE Mr. Dobbs’s conviction and sentence.
[ . . . ]
Mr. Dobbs challenges the sufficiency of the government’s evidence establishing that he knowingly received the two images that were sent to the jury. A careful review of the record reveals that the government presented no evidence that Mr. Dobbs had accessed the files stored in his computer’s cache, including the two images at issue. And, more tellingly, there was no evidence that he even knew about his computer’s automatic-caching function. Moreover, as to the two images at issue, there was no evidence presented to the jury that Mr. Dobbs even saw them, much less had the ability to exercise control over them by, for example, clicking on them or enlarging them. As such, although there is no question that a rational jury could have found that Mr. Dobbs “received” the two images, we conclude that it could not have found that Mr. Dobbs did so knowingly. [ . . . ]
COMMENTS
