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United States v. Pothier

United States Court of Appeals, First Circuit

March 26, 2019

UNITED STATES, Appellee,
v.
WILLIAM POTHIER, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

          S. Amy Spencer, with whom William E. Christie and Shaheen & Gordon, P.A. were on brief, for appellant.

          Seth R. Aframe, Assisted United States Attorney, with whom Scott W. Murray, United States Attorney, and Cam T. Le, Assistant United States Attorney, were on brief, for appellee.

          Before Kayatta, Circuit Judge, Souter, [*] Associate Justice, and Selya, Circuit Judge.

          KAYATTA, CIRCUIT JUDGE.

         Police learned that someone using an IP address[1] registered to William Pothier at an apartment in Exeter, New Hampshire, downloaded child pornography from a peer-to-peer file-sharing network. They also learned that two people in addition to Pothier received mail at that residence. While executing a search warrant, police found in the living room a laptop computer that was not password-protected. Pothier admitted that he owned the laptop, which contained a handful of documents and innocuous chat histories in his name. It also contained child pornography, i.e., videos of "minor[s] engaging in sexually explicit conduct." 18 U.S.C.A. § 2252(a)(4)(B)(i). That was more or less enough for the police and the United States Attorney. In short order, a grand jury indicted Pothier for "knowingly possess[ing]" child pornography in violation of 18 U.S.C. § 2252(a)(4)(B), and then a jury found him guilty. He now appeals, claiming that the evidence was insufficient to prove beyond a reasonable doubt that he -- as opposed to the other people who may have had access to the computer -- downloaded the pornography. For the following reasons, we agree and reverse the conviction.

         I.

         A preliminary investigation revealed that the U.S. Postal Service delivered mail to three people at the Exeter residence associated with the IP address registered to Pothier: Pothier, Josephine Pritchard, and someone named Balis. On March 30, 2016, police officers executed a warrant to search for child pornography at the residence. For approximately fifteen minutes, police officers repeatedly knocked on the door, and called and texted Pothier's cell phone. Though Pothier was inside the residence, he did not answer until the fire department arrived and began to pry open the door. When asked if he had heard the police outside, he answered that he had, and said that neighbors had told him that police had been canvassing the area.

         The ensuing search surfaced numerous computers and electronic storage devices, including an Asus laptop found in the living room. Pothier admitted that he owned the laptop, which was not password-protected and had a generic "Asus" profile rather than a user-generated profile. The police were therefore able to access the computer's contents on-site. Among the applications on the Asus laptop were a file-sharing program called Shareaza and an electronic file-shredding program called Evidence Eliminator. Also on the computer were six videos depicting children engaging in sexual acts. In addition, the on-site review revealed that a Skype user called "wdpothier" had engaged in a few innocuous Skype chat exchanges in March 2016.

         The police later conducted a full forensic investigation of the Asus laptop. The child pornography discussed above was saved in a temporary folder associated with the Shareaza application. In addition, one more video depicting child pornography was in the laptop's recycle bin. Police also found that a user had searched on both Google and Shareaza using terms consistent with child pornography. Finally, police found thumbnail images that were remnants of child pornography that had been downloaded and deleted.

         The computer contained a handful of documents associated with two people. First, police found two mortgage interest statements and a restaurant voucher, all associated with Pothier. Second, they found personnel and military discharge documents belonging to Joseph Walko. Walko testified that he worked at the Federal Aviation Administration in New York with Pothier and that, at some point, they had neighboring cubicles, but that he had no idea why his personal documents were on Pothier's computer. So, the jurors had a basis to conclude that Walko did not have access to the laptop, notwithstanding the presence of his documents on it.

         The government was able to pin down the exact times and dates of the illicit downloads and searches. There was no overlap between the dates on which Pothier was known to have used the laptop, the dates on which Walko's documents were saved to the computer, and the dates of the illicit downloads and searches.

         At the close of the government's case, Pothier moved pursuant to Federal Rule of Criminal Procedure 29 for judgment of acquittal, arguing that the government failed to prove beyond a reasonable doubt that he knew that the Asus laptop contained child pornography. The district court summarily denied the motion. Pothier neither testified nor presented any evidence in his defense, and the jury returned a guilty verdict. The district court then denied Pothier's motion to set aside the verdict, stating without explanation that a rational jury could find Pothier guilty beyond a reasonable doubt. At sentencing, the district court applied -- over Pothier's objection -- a two-level Guidelines enhancement for "knowingly engag[ing] in distribution" of child pornography. See U.S.S.G. § 2G2.2(b)(3)(F). The court sentenced Pothier to six years of imprisonment and twenty years of supervised release.

         Pothier appeals to this court. He challenges both the sufficiency of the evidence underlying the guilty verdict and the district court's application of the sentencing ...


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