Judgment of Acquittal Reversed Even Though Theoretically “Just as Likely” Defendant’s Roommate Downloaded the Child Pornography

United States v. Smith, No. 12-60988 (5th Cir. Jan. 13, 2014)

Smith had two roommates during the time that someone intentionally downloaded videos of child pornography onto his computer.  Both of the roommates regularly used Smith’s computer.  One roommate’s employment records eliminated her as a suspect.  The other, Jolly, testified that he did not download files.  Smith did not testify but presented three witnesses who claimed he was visiting his parents during the time the child pornography was downloaded.

The jury returned a guilty verdict after deliberating for a few hours.  Smith filed a motion for a new trial, which the district court rejected, and a separate motion for acquittal, which the district court granted.  In its order, the district court reasoned that “it is just as likely that Joshua Jolly downloaded the child pornography onto the computer as Smith did.” 

The panel reverses the judgment of acquittal since the question is not whether it is equally likely that Smith did not download the files but whether “this evidence, taken in the light most favorable to the verdict, offers ‘nearly equal circumstantial support’ for competing explanations.”  The panel believes that it does not since it was reasonable for the jury to credit Jolly’s testimony over the testimony of Smith’s witnesses, particularly since the prosecution introduced evidence that one of Smith’s witnesses had changed her account of the relevant dates and another had not mentioned Smith’s visits home during her first questioning by police.  The panel also rejected Smith’s argument that the prosecution had to show knowledge of or access to the child pornography, which would go to constructive possession, since there was sufficient evidence to find actual possession.  Undisputed expert testimony indicated that someone searched for and selected the files for download, and that 19 of the 26 files were previewed at the time of download.