Filed: Jul. 11, 2018
Latest Update: Mar. 03, 2020
Summary: Case: 17-40342 Document: 00514550386 Page: 1 Date Filed: 07/11/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 17-40342 FILED July 11, 2018 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk Plaintiff - Appellee v. FERNANDO SOSA-PINTOR, Defendant - Appellant Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:15-CR-132-1 Before DENNIS, CLEMENT, and ENGELHARDT, Circuit Judges. PER CURIAM:* The gover
Summary: Case: 17-40342 Document: 00514550386 Page: 1 Date Filed: 07/11/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 17-40342 FILED July 11, 2018 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk Plaintiff - Appellee v. FERNANDO SOSA-PINTOR, Defendant - Appellant Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:15-CR-132-1 Before DENNIS, CLEMENT, and ENGELHARDT, Circuit Judges. PER CURIAM:* The govern..
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Case: 17-40342 Document: 00514550386 Page: 1 Date Filed: 07/11/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-40342 FILED
July 11, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
FERNANDO SOSA-PINTOR,
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:15-CR-132-1
Before DENNIS, CLEMENT, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
The government charged Fernando Sosa-Pintor with two counts of
distributing child pornography and one count of possessing child pornography.
He pleaded not guilty and was tried before a jury. The jury returned a guilty
verdict. Sosa-Pintor now appeals, arguing that there was insufficient evidence
to support the jury’s finding that he knowingly distributed the child
pornography through a peer-to-peer network, ARES. We affirm.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 17-40342 Document: 00514550386 Page: 2 Date Filed: 07/11/2018
No. 17-40342
I.
Two agents of the Internet Crimes Against Children task force were
independently conducting undercover operations on the peer-to-peer network, 1
ARES. Users of ARES connect and share files directly from each other’s
computers. Each file contains a unique digital fingerprint, or hash value, that
can be identified by officers monitoring peer-to-peer networks. The officers
found files of interest being shared from an IP address that the officers
eventually traced to Sosa-Pintor’s restaurant. Both officers downloaded at
least one file containing child pornography from the IP address.
The officers obtained a warrant to search Sosa-Pintor’s restaurant.
Nobody came to the door when they knocked, and so they kicked it open. When
they found Sosa-Pintor on the second floor, he was sitting at a desk in front of
two computers, one of which was connected to a big-screen TV. During the raid,
Sosa-Pintor admitted to the officers that over the course of several years he
had used ARES to download “[l]ike, a hundred” child pornography videos. And,
when discussing ARES with the officers, Sosa-Pintor seemingly acknowledged
that he understood that removing the child pornography from the ARES
1 This court has previously described peer-to-peer network programs as follows:
Peer-to-peer file sharing is a means of Internet communication utilizing
software that lets users exchange digital files through a network of
linked computers. Users access peer-to-peer networks by downloading
the peer-to-peer software from the Internet; this software is used
exclusively for sharing digital files. Generally, after a user downloads or
installs the software, either the user selects a folder to store downloaded
files or the installation program designates the shared folder as the
default folder into which files are automatically downloaded. Files that
are downloaded into the shared folder (or downloaded into a separate
folder but later placed into the shared folder) are available to anyone on
the peer-to-peer network for downloading. Someone interested in sharing
child pornography with other peer-to-peer network users need only leave
or place such files in his shared folder, which other users may then access
by searching for relevant terms and phrases.
United States v. Richardson, 713 F.3d 232, 233–34 (5th Cir. 2013).
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No. 17-40342
program was not sufficient to delete the files because they could have been
shared:
Officer: Have you used any other programs to get [child
pornography]?
Sosa: No. . . . But now I take it off that.
Officer: Okay. Well, just because you take it off doesn’t mean it [sic]
gone.
Sosa: Yeah, I know, I know, I know. I know that.
Sosa-Pintor also told the officers that he was the only person who had access
to his computers. The officers recorded all of their interactions with Sosa-
Pintor while at the restaurant. Sosa-Pintor was indicted and charged with two
counts of distributing child pornography in violation of
18 U.S.C. §§ 2252A(a)(2)(A) and (b)(1) and one count of possessing child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).
At trial, Sosa-Pintor’s testimony differed from what he told the officers
on the day of the raid. He testified (in Spanish) that he was computer illiterate
and “really didn’t even know how to use [a computer].” He also claimed that he
had not downloaded any child pornography videos and that a handyman, Juan
Oviedo, had access to the computers. To explain the discrepancies between his
statements at trial and on the day of the raid, Sosa-Pintor testified that his
understanding of the English language was limited.
But Sosa-Pintor’s testimony was belied by his admissions in the
recording from the day of the raid, in which he apparently understood and
communicated in English. His claims of computer illiteracy were subverted by
his testimony that he had purchased multiple computers, used a computer for
business-related tasks, learned to use special software, and employed a video-
surveillance system.
Ultimately, the jury did not believe Sosa-Pintor’s testimony, and found
him guilty on all three counts. The district court denied Sosa-Pintor’s motion
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for judgment of acquittal and sentenced him to 240 months’ imprisonment on
each count, to be served concurrently. Sosa-Pintor timely appealed.
II.
On appeal Sosa-Pintor contests only his convictions on the distribution
charges, 2 arguing that there was insufficient evidence presented at trial to
support the jury’s verdict that he knowingly distributed the child pornography
to others through ARES. We review a claim that there was insufficient
evidence to support a jury’s verdict de novo. See United States v. Hale, 685 F.3d
522, 543 (5th Cir. 2012). We view all evidence “in the light most favorable to
the verdict, drawing all reasonable inferences to support the verdict.” United
States v. Delgado,
256 F.3d 264, 273–74 (5th Cir. 2001). And a verdict “will be
affirmed unless no rational jury . . . could have found the essential elements of
the offense to be satisfied beyond a reasonable doubt.” United States v.
Roetcisoender,
792 F.3d 547, 550 (5th Cir. 2015) (internal quotations omitted).
Sosa-Pintor does not contest that files containing child pornography
were shared from his computer. He argues only that the government provided
no evidence to the jury the he knew that he was distributing the pornography
through the shared folder in ARES. Although the government’s witnesses
explained at trial how ARES functioned, they did not interview Sosa-Pintor or
determine his knowledge or actions regarding the ARES-created shared folder.
Sosa-Pintor attempts to distinguish his case from our precedent where
we have upheld convictions for knowingly distributing child pornography
through peer-to-peer networks such as ARES. In United States v. Richardson,
this court held that there was sufficient evidence to uphold a jury verdict of
knowing distribution of child pornography because the defendant “was a
computer technician with computer experience, he affirmatively downloaded
2 Sosa-Pintor does not contest his conviction on the possession count.
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No. 17-40342
the [peer-to-peer sharing] program, he maintained 144 videos of child
pornography in his shared folder, [and] he knew that others could access the
materials stored in his shared folder.” See United States v. Richardson, 713
F.3d 235, 236 (5th Cir. 2013).
In United States v. Roetcisoender, “the Government did not adduce any
evidence indicating that [the defendant] knew the [shared folder from the peer-
to-peer network] was accessible by other users.” 792 F.3d at 551. The defendant
stated that “he merely downloaded child pornography into the ‘Incoming’
folder, and because he did not know that this folder was, by default, accessible
by others, he did not change the setting.”
Id. The detective did not ask the
defendant about his level of computer knowledge, and did not ask him if the
defendant understood that the “Incoming” folder could be accessible to others.
Id. at 552. But the government demonstrated that the defendant placed a
suggestively named folder—“Young nudists”—into the “Incoming” folder. And
the government’s witness testified that this naming system assisted other
users in their efforts to find child pornography files.
Id. This court found that,
when viewing the evidence in a light most favorable to the prosecution, a
rational jury could have found beyond a reasonable doubt that the defendant
knowingly distributed the child pornography.
Id.
Sosa-Pintor argues that, unlike the defendant in Richardson, he was not
a computer technician. And at trial he argued that he did not know how
computers worked and that he was not tech-savvy. Moreover, unlike the
defendant in Roetcisoender, Sosa-Pintor asserts that he never made any direct
admissions that he knew the contents of his ARES shared folder were available
to others. He never created any suggestive file names. And the government did
not present evidence that Sosa-Pintor had been aware of any warnings
presented by the software upon installation. See United States v. Vazquez, 623
F. App’x. 716, 717 (5th Cir. 2015).
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No. 17-40342
Sosa-Pintor’s contentions are unavailing. Although he was not a
computer technician, sufficient evidence was presented to the jury
demonstrating that Sosa-Pintor knew enough about ARES and computers
generally to support the verdict that Sosa-Pintor knowingly distributed child
pornography through the shared folder. And, contrary to Sosa-Pintor’s
assertions, he did seem to acknowledge to the officers during the raid that he
understood how the ARES sharing folder worked.
Were that not enough, at trial the prosecution’s witnesses explained that
keeping documents in the ARES shared folder exposed users to law
enforcement detection and reduced download speeds. For these reasons, users
will often move child pornography from their shared folders to other locations
on their computers. The files at issue were, of course, in Sosa-Pintor’s shared
file when the officers downloaded them from his IP address. But when the
officers raided the restaurant, the files had been moved from the shared folder
to other locations on the computer. This also constitutes evidence from which
the jury could determine that Sosa-Pintor understood how the ARES peer-to-
peer program functioned and yet allowed the child pornography files to remain
in the shared folder where others could access them.
At bottom, there was enough evidence presented for a “rational jury . . .
[to] have found the essential elements of the offense to be satisfied beyond a
reasonable doubt.” Roetcisoender, 792 F.3d at 550 (internal quotations
omitted). We AFFIRM.
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