Case: 12-60074       Document: 00512129011         Page: 1     Date Filed: 01/30/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         January 30, 2013
                                     No. 12-60074
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JASON OWENS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 2:09-CR-6-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Jason Owens appeals his conviction for transporting child pornography.
He asserts that the evidence was insufficient to establish beyond a reasonable
doubt that he knowingly transferred the images from his jasonz_14@yahoo.com
account into his Shiloe26 Photobucket account on October 1, 2007. According to
Owens, he could not have transferred the images because September 20, 2007,
was Yahoo’s cut-off date for transferring photos from its photo service to another
photo website. He suggests that the images migrated from the Yahoo account

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                    No. 12-60074

to the Photobucket account on October 1, 2007, spontaneously or accidentally
without any affirmative act by him. He also promotes a theory that someone
else used his work computer to transfer the images while he was at home with
a spider bite on October 1, 2007.
      When the evidence, all reasonable inferences therefrom, and all credibility
determinations are viewed in the light most favorable to the Government, the
evidence before the jury was sufficient for a reasonable jury to find beyond a
reasonable doubt that Owens caused the transfer of the images of child
pornography. See United States v. Lopez, 

, 577 (5th Cir. 1996).
Though he denied it and testified that he was home without access to a computer
on the day of the transfer, Owens’s credibility was undermined by the
disappearance of his employer’s records that would have confirmed his absence,
by the work-related instant messages sent from Owens’s account that day, and
by his co-worker’s testimony that Owens asked him to provide inaccurate
information to support his claim that he was home. It fell within the sole
province of the jury to weigh the credibility of the witnesses. See United States
v. Zuniga, 

, 1260 (5th Cir. 1994).
      The jury heard testimony, including an admission by Owens, that he was
the subscriber of the jasonz_14@yahoo.com account and the Shiloe26
Photobucket account. Evidence established that the accounts were password
protected. The jury heard how the transfer of images between the accounts
required an affirmative act by the subscriber, a virtual “handshake” in which the
subscriber was required to manually enter both his Yahoo and Photobucket user
names and passwords, even when that information was saved on his computer.
A Yahoo representative also testified that Yahoo would not transfer images
unless the subscriber first selected the particular images and requested the
transfer. While other employees of PT Brokers may have used Owens’s work
computer, there was no evidence that someone else maintained the passwords
to the two accounts, and his co-workers explicitly testified that they did not

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                                 No. 12-60074

access Owens’s digital photo albums, view or save child pornography on his
computer or his Yahoo or Photobucket accounts, or view pornography websites
on his computer.
      In sum, there is no “equal or nearly equal circumstantial support” for the
theory that the images of child pornography spontaneously transferred between
Owens’s two accounts. See United States v. Moreland, 

, 149 (5th
Cir. 2011). Nor is there “equal or nearly equal circumstantial support” for the
theory that someone else caused the images to be moved from the Yahoo account
into the Photobucket account. See id. We will not second guess the jury’s
reasonable construction of the evidence or its credibility determinations. See
Zuniga, 18 F.3d at 1260.
      The judgment of the district court is AFFIRMED.




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