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United States v. Caswell

United States District Court, M.D. Florida, Fort Myers Division

December 21, 2017

UNITED STATES OF AMERICA
v.
DAVID CASWELL

          FINDING OF FACTS AND CONCLUSIONS OF LAW

          JOHN E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE

         This 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.)

         The Court makes the following finding of facts and conclusions of law:

         I.

         1. On 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).

         II.

         2. In 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. § 2252(a)(4)(B).

         3. The 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 child pornography).

         4. An 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).

         5. 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).

         6. 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. § 2256(8)(A).

         7. A 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. § 2256(5).

         8. “[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) ...


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