United States District Court, M.D. Florida, Fort Myers Division
FINDING OF FACTS AND CONCLUSIONS OF LAW
E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE
matter came before the Court on December 19, 2017. (Doc.
#70.) Defendant waived his right to a jury trial, and the
United States consented to that waiver. (Doc. #72.) The Court
approved the waiver, and the case proceeded before the Court
as the trier of fact pursuant to Federal Rule of Criminal
Procedure 23(a). The parties submitted a Joint Stipulation of
Facts (Doc. #67.)
Court makes the following finding of facts and conclusions of
December 7, 2016, defendant David Caswell (defendant or
Caswell) was charged in a one-count Indictment (Doc. #3) with
possession of child pornography in violation of 18 U.S.C.
§ 2252(a)(4)(B) and (b)(2).
relevant part, Title 18 U.S.C. Section 2252(a)(4)(B) makes it
a crime for any person to “knowingly possess[ ] . . . 1
or more books, magazines, periodicals, films, video tapes, or
other matter which contain any visual depiction” that
has traveled through interstate commerce if “(i) the
producing of such visual depiction involves the use of a
minor engaging in sexually explicit conduct; and (ii) such
visual depiction is of such conduct.” 18 U.S.C. §
United States must prove each element of the offense beyond a
reasonable doubt. An element of a crime may be established
“through circumstantial evidence or from inferences
drawn from the conduct of an individual.” United
States v. Utter, 97 F.3d 509, 512 (11th Cir. 1996)
(citation omitted); United States v. Pruitt, 638
F.3d 763, 766 (11th Cir. 2011) (evidence that a person has
searched for child pornography on the internet and has a
computer containing child-pornography images can count as
circumstantial evidence that a person has knowingly received
act is done “knowingly” when it is performed
voluntarily and intentionally, not because of mistake or
accident. United States v. Woodruff, 296 F.3d 1041,
1047 (11th Cir. 2002). In the context of Section 2252, the
term “knowingly” refers to the defendant's
knowledge of the fact that the matter contains child
pornography. United States v. X-Citement Video,
Inc., 513 U.S. 64, 78 (1994). To satisfy the knowledge
element of Section 2252(a)(4)(B), the government must prove
beyond a reasonable doubt that defendant knew the matter in
question contained a visual depiction of a minor engaging in
sexually explicit conduct. United States v.
Alfaro-Moncada, 607 F.3d 720, 733 (11th Cir. 2010);
United States v. Dixon, 589 F. App'x 427, 428
(11th Cir. 2014).
Possession may be established by proof of either actual or
constructive possession. United States v. Glover,
431 F.3d 744, 748 (11th Cir. 2005). “Actual possession
exists when a person has direct physical control over a
thing.” Henderson v. United States, 135 S.Ct.
1780, 1784 (2015). “Constructive possession is
established when a person, though lacking such physical
custody, still has the power and intent to exercise control
over the object.” Id.; see also United
States v. Little, 864 F.3d 1283, 1288-89 (11th Cir.
2017); United States v. Perez, 661 F.3d 568, 576
(11th Cir. 2011).
Federal law defines “child pornography” to
include “any visual depiction, including any
photograph, film, video, picture, or computer or
computer-generated image or picture” where “the
production of such visual depiction involves the use of a
minor engaging in sexually explicit conduct.” 18 U.S.C.
visual depiction for the purposes of Section 2252(a)(4)
includes “data stored on computer disk or by electronic
means which is capable of conversion into a visual image, and
data which is capable of conversion into a visual image that
has been transmitted by any means.” 18 U.S.C. §
“[S]exually explicit conduct” is defined by the
statute as: “(i) sexual intercourse, including
genital-genital, oral-genital, anal-genital, or oral-anal,
whether between persons of the same or opposite sex; (ii)
bestiality; (iii) masturbation; (iv) sadistic or masochistic
abuse; or (v) ...