FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
HAMPSHIRE [Hon. Joseph A. DiClerico, Jr., U.S. District
Spencer, with whom William E. Christie and Shaheen &
Gordon, P.A. were on brief, for appellant.
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.
Kayatta, Circuit Judge, Souter, [*] Associate Justice, and Selya,
KAYATTA, CIRCUIT JUDGE.
learned that someone using an IP address 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.
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.
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.
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.
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.
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
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.
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 ...