Revised May 22, 2002

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                       _____________________

                            No. 00-10821
                       _____________________


          UNITED STATES OF AMERICA

                               Plaintiff-Appellee

          v.

          ROBERT BEAM RUNYAN

                               Defendant-Appellant

                       _____________________

                            No. 01-11207
                       _____________________


          UNITED STATES OF AMERICA

                               Plaintiff-Appellee

          v.

          ROBERT BEAM RUNYAN

                               Defendant-Appellant

_________________________________________________________________

          Appeals from the United States District Court
                for the Northern District of Texas
_________________________________________________________________

                          April 18, 2002

Before KING, Chief Judge, and JOLLY and BENAVIDES, Circuit
Judges.

KING, Chief Judge:
     Defendant-Appellant Robert Beam Runyan was convicted of

sexual exploitation of a child in violation of 18 U.S.C. § 2251

and of distribution, receipt, and possession of child pornography

in violation of 18 U.S.C. § 2252A.    In two separate actions,

Runyan appeals his conviction (No. 00-10821) and the district

court’s denial of his post-trial motion for a new trial (No. 01-

11207).    On September 24, 2001, we consolidated these two cases

for the purposes of appeal.    On December 10, 2001, this court

issued a non-dispositive opinion: (1) holding that aspects of the

Government’s investigation violated the Fourth Amendment; and (2)

remanding the case to the district court for further factfinding

that would enable this court to assess the applicability of

exceptions to the exclusionary rule.    On January 10, 2002, the

district court issued an order providing the requisite findings

of fact.    We now conclude our analysis of Runyan’s Fourth

Amendment claims and address Runyan’s remaining claims, from both

his appeal of his conviction and his appeal of the district

court’s denial of his motion for new trial.    For the following

reasons, we AFFIRM Runyan’s convictions for receipt and

possession of child pornography and for sexual exploitation of a

child, but REVERSE his conviction for distribution of child

pornography.    We also VACATE Runyan’s sentence and REMAND to the

district court for entry of judgment and resentencing consistent

with this opinion.



                                  2
              I.    Factual and Procedural Background

     The facts of this case are described in detail in this

court’s December 10, 2001 decision.    Accordingly, we only briefly

reiterate the underlying facts of the case.    We address specific

facts pertinent to each of Runyan’s remaining claims in greater

detail within our discussion of each claim below.

     In brief, Robert Beam Runyan (“Runyan”) and his wife Judith

Runyan (“Judith”) separated in January of 1999.    In June of 1999,

Judith (accompanied at different times by her daughter and

various friends) made several trips to Runyan’s ranch to retrieve

items of her personal property while Runyan was out-of-town.    At

the ranch, Judith and one of her companions found two duffel bags

in the barn containing items of pornography, including Polaroid

photographs of two individuals, one of whom appeared to be a very

young teenager.    Judith removed these items from the ranch.

Judith and her companions also removed from the ranch a desktop

computer and a collection of floppy disks, compact discs (“CDs”),

and ZIP disks (collectively, “the disks”) that were lying on the

floor surrounding the computer.

     One of Judith’s companions, Brandie Epp, reassembled the

computer at Judith’s residence and examined approximately 20 of

the CDs and floppy disks taken from the ranch.    Epp discovered

that some of these CDs and floppy disks contained images of child




                                  3
pornography.1   Epp contacted the sheriff’s department and turned

these materials over to a deputy.    Over the next few weeks,

Judith turned over various additional items found at the Runyan

ranch to a number of different law enforcement agencies.    These

items included the desktop computer, additional disks containing

child pornography, and the duffel bags found in the barn.

     Texas Ranger Bobby Grubbs (“Ranger Grubbs”) used his

computer to view some of the disks delivered by Judith and

observed images of child pornography.    He printed out several of

these images on a color printer and showed them to members of the

Coleman County District Attorney’s staff.    An investigator in the

District Attorney’s office, Darla Tibbetts, tentatively

identified the girl photographed in one of the images.    An intern

working for the District Attorney’s office, Melissa Payne, was

brought to the sheriff’s office to assist with the

identification.   She positively identified the girl in the

pictures as Misty Metcalf (“Misty”), a former high school

classmate.2

     On June 28, 1999, upon learning that he was a potential

suspect, Runyan met with Ranger Grubbs.    At this meeting, after

Runyan had been given Miranda warnings, he stated that he found a

     1
        Epp did not view any of the images on the ZIP disks
because the necessary hardware was not connected.
     2
          There is conflicting testimony in the record regarding
whether Payne was shown Polaroid photographs or computer
printouts of Misty.

                                 4
bag of pornography at a rest stop.     Runyan admitted that he

viewed the materials in the bag and that, out of curiosity, he

used his computer to view child pornography available on the

Internet.3

     On July 7, 1999, Customs Service Special Agent Rick Nuckles

(“Agent Nuckles”) joined the investigation.     Agent Nuckles

examined several images from each floppy disk, ZIP disk, and CD

turned over by Judith and Epp.     Agent Nuckles found two images of

Misty, apparently taken with a digital camera or taken with a

Polaroid camera and then scanned into a computer.

     Also on July 7, Tibbetts and Ranger Grubbs interviewed

Misty.   Misty stated that Runyan hired her when she was a young

teenager to perform odd jobs around his ranch and to iron clothes

for him.     She said that he approached her when she was fifteen

about posing for nude photographs.     Misty told Tibbetts that

Runyan had taken sexually explicit photographs of her on numerous

occasions when she was between the ages of fifteen and seventeen.

She reported that Runyan had sometimes paid her approximately

five dollars per photographic session and that he had promised

her more money once he sold the pictures over the Internet to

customers in Japan.




     3
          However, Runyan maintains that he never uploaded or
downloaded any images containing child pornography from the
Internet at these times.

                                   5
     Agent Nuckles then filed two applications for federal search

warrants, supported by his own affidavits.   The first application

sought a warrant to search the desktop computer and all the disks

for files containing illegal images.   The second application

sought a warrant to search Runyan’s ranch house for any and all

computers, computer hardware, software, and computer devices.

The affidavits supporting these applications included statements

made by Misty and Judith to Ranger Grubbs as well as information

from Runyan’s voluntary statement to Ranger Grubbs.   In addition,

one of the affidavits contained a statement indicating that Agent

Nuckles had conducted a “cursory” review of the computer storage

media.   Magistrate Judge Philip Lane issued both warrants.    Law

enforcement officials subsequently searched Runyan’s ranch house

and discovered a computer backup tape that contained one picture

of child pornography.

     On October 13, 1999, Runyan was indicted on six counts of

child pornography charges.   Runyan filed three separate motions

to suppress the evidence against him, primarily contending that

the pre-warrant searches of the disks conducted by various law

enforcement officials involved in the investigation violated his

Fourth Amendment rights.   The trial court held a hearing on

Runyan’s motions to suppress on April 20, 2000.   At the close of

the hearing, the trial court denied the motions, finding that the

pre-warrant police searches did not violate Runyan’s Fourth

Amendment rights.

                                 6
     On April 21, 2000, a jury convicted Runyan of four counts:4

Count 1 — sexual exploitation of a child in violation of 18

U.S.C. § 2251; Count 3 — distribution of child pornography in

violation of 18 U.S.C. § 2252A(a)(2); Count 4 — receipt of child

pornography in violation of 18 U.S.C. § 2252A(a)(2); and Count 5

— possession of child pornography in violation of § 2252A(5)(B).

On July 28, 2000, the district court sentenced Runyan to 240

months on Count 1; 60 months on Count 3, to be served

consecutively to Count 1; and 180 months on Counts 4 and 5, to

run concurrently with the sentence imposed on Count 1, for a

total sentence of 300 months of imprisonment.   In addition, the

district court imposed a three-year term of supervised release

and mandatory special assessments totaling $400.

     Runyan timely appealed his convictions and his sentence,

contending that: (1) the trial court erred in failing to suppress

the evidence obtained directly and indirectly from the pre-

warrant police searches; (2) there was insufficient evidence

introduced at trial to establish the interstate commerce element

of each of the four charges; (3) the trial court erred in

refusing to order the Government to produce Misty’s boyfriend’s

computer and in refusing to conduct an in camera review of

evidence on that computer that Runyan contends was exculpatory;

(4) the trial court erred in admitting evidence that Runyan


     4
          Counts 2 and 6 were dismissed prior to trial.

                                7
refused to consent to the search of the desktop computer; and (5)

the trial court erred in not grouping all the counts of his

conviction in the sentencing determination.5     While that appeal

was pending before this court, Runyan filed a motion for new

trial based on newly-discovered evidence, alleging that Misty’s

boyfriend’s computer contained exculpatory evidence that the

Government withheld prior to trial.     The district court denied

this motion on September 7, 2001, and Runyan timely appealed to

this court.   We consolidated Runyan’s two actions for the

purposes of appeal on September 24, 2001.

               II.   Runyan’s Fourth Amendment Claims

     Runyan seeks to suppress evidence obtained as a result of

the state and federal law enforcement officials’ pre-warrant

searches of the disks.     Runyan argues that these searches

violated the Fourth Amendment and that no exceptions to the

exclusionary rule are applicable.      Runyan also seeks to suppress

evidence obtained pursuant to the search warrants, arguing that

such evidence is “the fruit of the poisonous tree” because these

warrants were procured based on information obtained through the

prior illegal searches.6

     5
          The Government concedes that Runyan was incorrectly
sentenced as a result of the trial court’s failure to group the
counts of his conviction.
     6
          Runyan also argues that the warrants were invalid
because Agent Nuckles’s affidavit contained a statement that
Runyan contends is materially false (i.e., a statement indicating
that the desktop computer was in Runyan’s sole possession from

                                   8
     In reviewing a district court’s denial of a motion to

suppress evidence, we review the district court’s factual

findings for clear error and its conclusions regarding the

constitutionality of a warrantless search de novo.   United States

v. Vega, 

, 795 (5th Cir. 2000).   We view the facts

underlying the suppression determination in the light most

favorable to the prevailing party, which in this case is the

Government.   United States v. Howard, 

, 73 (5th Cir.

1997).   It is the defendant’s burden to prove a Fourth Amendment

violation by a preponderance of the evidence.   United States v.

Riazco, 

, 754 (5th Cir. 1996).   However, once the

defendant proves such a violation, the burden shifts to the

government to demonstrate why the exclusionary rule should not


1995 to 1998) and because the affidavit did not contain any
information about Misty’s credibility (i.e., the fact that she
was on probation). However, a misstatement can vitiate an
affidavit “only if it is established that the misstatement was
the product ‘of deliberate falsehood or of reckless disregard for
the truth[;] [a]llegations of negligence or innocent mistake are
insufficient.’” United States v. Martin, 

, 329 (5th
Cir. 1980) (quoting Franks v. Delaware, 

, 171
(1978)). Similarly, omissions cannot undermine the validity of a
warrant unless such omissions are “made intentionally or with a
reckless disregard for the accuracy of the affidavit; negligent
omissions will not undermine the affidavit.” 

bears the burden of showing by a preponderance of the evidence
that a misstatement or omission was more than mere negligence.

to meet this burden. An unsupported assertion
that an affidavit contains a misstatement (or an omission) does
not give rise to the inference that the affiant acted with
reckless disregard for the accuracy of the information presented
to the magistrate, particularly where the misstated or omitted
facts in question are of only minor significance to the finding
of probable cause.


                                 9
apply to the fruits of the illegal search or seizure.     United

States v. Houltin, 

, 1031 (5th Cir. 1978).

     In our prior opinion, this court held that the police

violated Runyan’s Fourth Amendment rights when they conducted a

warrantless examination of disks that the private searchers

(Judith and Epp) had not examined.     See United States v. Runyan,

, 464 (5th Cir. 2001).    While we noted that the disks

(and any evidence obtained as a result of the information found

on the disks) were potentially subject to suppression due to this

Fourth Amendment violation, we indicated that this evidence would

still be admissible if the Government could demonstrate that an

exception to the exclusionary rule is applicable in the instant

case.   We then remanded to the district court for factual

findings relevant to this issue.     The Government now argues that

this court should apply the “independent source” exception to the

exclusionary rule, which dictates that evidence obtained from an

illegal search is admissible if the same evidence was also

obtained from a lawful source independent of the illegality.

     As we noted in our December 10, 2001 opinion, under the

“independent source” exception to the exclusionary rule, the

government must make two showings in order for a lawful search

pursuant to a warrant to be deemed “genuinely independent” of a

prior illegal search:   (1) that the police would still have

sought a warrant in the absence of the illegal search; and (2)

that the warrant would still have been issued (i.e., that there

                                10
would still have been probable cause to support the warrant) if

the supporting affidavit had not contained information stemming

from the illegal search.   

(citing Murray v. United

States, 

, 542 (1988)).   In the instant case, the

Government contends that the magistrate judge would have issued

the two warrants permitting the police to search Runyan’s

computer and disks and Runyan’s home even if the police had never

conducted a pre-warrant search of the storage media.   According

to the Government, the information that the police obtained from

interviews with Judith and Misty and from Runyan’s admissions in

his statement to Ranger Grubbs was sufficient to compel the

police to seek a warrant and to establish probable cause for a

warrant to issue.   Thus, because the police obtained the same

information acquired through their pre-warrant search of the

disks from the subsequent, lawful searches pursuant to the

warrant, these subsequent searches were an “independent source”

of the images on the disks and this evidence is admissible at

trial.

     In our December 10, 2001 opinion, we noted that one of the

affidavits submitted by Agent Nuckles in support of the warrant

applications contained a brief reference to his pre-warrant

search of the computer storage devices.   We found that the

inclusion of this statement in the warrant application raised a

question about what role the pre-warrant searches might have

played in the issuance of the warrants.   Because the district

                                11
court made no factual findings at the suppression hearing

enabling this court to address this issue, we remanded the case

to the district court “to conduct such proceedings as are

necessary to make findings of fact addressing” these questions.

     On January 3, 2002, the district court conducted an

evidentiary hearing on these issues.   Agent Nuckles, Ranger

Grubbs, and Magistrate Judge Philip Lane all testified at this

hearing.   On January 10, 2002, the district court entered, inter

alia, the following factual findings addressing whether the

police would have sought the warrant in the absence of the

illegal search:

           7. Agent Nuckles’[s] decision to seek the
           search warrants in this case was unaffected
           by the fact that the police, including
           himself, may have looked at more disks than
           did the private parties.

           8. The Court finds that the police would
           have sought the warrants even if they had not
           exceeded the scope of the private party
           searches.

In support of these findings, the district court noted that:

           [T]he police, in total, received thirteen
           (13) recordable compacts [sic] discs in this
           case, only ten (10) of which contained
           evidence of child pornography. Of those
           thirteen, eleven initially came from Brandie
           Epp and Judith Runyan and had clearly been
           searched by private parties. . . . Assuming
           without deciding that the two (2) recordable
           CDs not initially turned over contained child
           pornography images, then eight (8) of the
           eleven (11) CDs that were initially turned
           over and previously searched by private
           citizens necessarily contained images of
           child pornography . . . . The fact that the

                                12
          police “searched” all the storage media and
          additionally recovered one (1) zip disk, 13
          to 15 floppies, and between zero (0) and two
          (2) additional CDs containing child
          pornographic images did not tip the balance
          in favor of the decision to seek warrants.
          In other words, 15 floppies plus 10 CDs plus
          1 zip disk equals approximately 26 external
          storage media containers. The fact that the
          police determined that all 26 contained child
          pornographic images instead of limiting their
          pre-warrant activities to 8 of the 26 did not
          tip the scale in favor of them seeking
          warrants.

We review these factual findings for clear error.   See United

States v. Grosenheider, 

, 328 (5th Cir. 2000).

Runyan contends that the district court’s findings are clearly

erroneous because Agent Nuckles’s inclusion of a reference to his

“cursory” pre-warrant review of the disks in one of his

affidavits signals that his decision to seek the warrant was

motivated by his examination of the disks.   We disagree.   The

fact that Agent Nuckles made a passing reference to his prior

illegal search activity in his warrant application is not

dispositive to our determination whether he would have sought the

warrant in the absence of the prior illegal searches.7    Our

review of the record reveals ample support for the district


     7
          This is not to say that discussion of prior illegal
search activity in a warrant application is irrelevant in
assessing whether the police would have sought a warrant in the
absence of a prior illegal search. We simply find that, under
the circumstances of the instant case, brief reference to the
prior illegal search in the warrant application does not provide
conclusive evidence of Agent Nuckles’s motivation in seeking the
warrant.

                               13
court’s finding that Agent Nuckles would have sought the warrants

even if he had limited his pre-warrant examination to the same

disks that were examined by the private searchers.

     As Agent Nuckles testified at the hearing on remand, the

statements provided by Judith and Misty, along with Runyan’s

statement to Ranger Grubbs, provided sufficient justification for

Agent Nuckles to seek a warrant to search Runyan’s home and

computer equipment.   Moreover, seeking a warrant under such

circumstances was apparently required by the investigative

policies of the Customs Service.     Under these circumstances, the

district court’s finding that Agent Nuckles would have sought

both warrants even if he had never exceeded the scope of the

private search is not clearly erroneous.

     The second prong of the Murray inquiry asks whether the

issuance of the warrant (as opposed to the decision to seek the

warrant) was independent of any illegal search activity.    As

Runyan correctly points out, when a search conducted pursuant to

a warrant is alleged to be an “independent source” of otherwise

tainted evidence and the warrant application contains information

obtained from the prior illegal search (or, as in the instant

case, contains a reference to the prior illegal search), this

court’s task is to determine whether there would have been

probable cause to support the issuance of the warrant had the

“tainted” information been omitted from the application.     See

United States v. Restrepo, 

, 966 (5th Cir. 1992)

                                14
(agreeing that the “proper approach is to excise from the warrant

affidavit those facts that were gleaned from the illegal search,

and then to consider whether the affidavit’s remaining

information is sufficient to constitute probable cause”).    This

probable cause inquiry is a question of law that we review de

novo.    United States v. Hassan, 

, 697 (5th Cir. 1996).

     In the instant case, the only information that must be

stricken from Agent Nuckles’s affidavits to “purge” the

affidavits of any reference to the illegal pre-warrant search is

a short statement in one of the affidavits indicating that

Nuckles conducted a “cursory” review of the disks.8   We find that

     8
          Runyan contends that Misty’s testimony must be excised
from the affidavits as well because her identification stemmed
from the illegal searches. In our December 10 opinion we noted
that the record contains conflicting testimony regarding whether
Melissa Payne identified Misty from the images of Misty that were
printed out from the disks or from the Polaroid photos of Misty.
Because this court is bound to interpret the facts in the light
most favorable to the Government when reviewing a trial court’s
denial of a motion to suppress, we assumed in our prior opinion
that Misty was identified via the Polaroids and that her
identification was independent of the illegal search activity.

. Runyan contends that Misty’s
testimony is nonetheless “tainted” by the illegal search because
Darla Tibbetts (who “tentatively” identified Misty before
investigators sought Melissa’s assistance) identified Misty via
images taken from the disks. While it is not at all clear from
the record whether Tibbetts’s tentative identification of Misty
was based on computer images or Polaroids, this distinction is
ultimately not dispositive. Misty’s testimony remains
“untainted” by the illegal search. Even if Tibbetts did, in
fact, tentatively identify Misty from computer printouts,
Tibbetts would have made the same tentative identification upon
seeing the Polaroid photographs. Misty’s identity would
inevitably have been discovered and thus her identification is
not a “tainted” product of the prior illegal search activity.
See, e.g., United States v. Singh, 

, 535 (5th Cir.

                                 15
there remains ample evidence in the applications to support a

finding of probable cause.   This conclusion is bolstered by the

district court’s finding on remand that Magistrate Judge Lane

would have issued the warrants even if one of the warrant

applications had not contained a reference to Agent Nuckles’s

prior illegal search activities.9     This finding indicates that

the magistrate judge, who is more familiar with the detailed

facts of this case, would have arrived at the same probable cause

determination that this court reaches today.

     In conclusion, we find that the searches conducted pursuant

to the two warrants issued by Magistrate Judge Lane are an

independent source of the evidence obtained in the illegal pre-

warrant searches of the disks.   This evidence was properly deemed

admissible.   Moreover, based on our determination that the

warrants were issued independently of the prior illegal search,

we find that any additional evidence obtained pursuant to these

warrants is not the “fruit of the poisonous tree” and is




2001) (noting that otherwise suppressible testimony or evidence
should be admitted if there is “a reasonable probability that the
evidence would have been discovered from an untainted source”).

     9
          The district court found, based on Magistrate Judge
Lane’s unequivocal testimony, that he “would have issued the
warrant if the phrase had not been present.”

                                 16
therefore admissible.   Thus, the district court did not err in

refusing to suppress any of the evidence against Runyan.10

          III.   Runyan’s Sufficiency of Evidence Claims

     Runyan challenges the sufficiency of the evidence supporting

all four counts of conviction: sexual exploitation of a child in

violation of 18 U.S.C. § 2251, distribution of child pornography

in violation of 18 U.S.C. § 2252A(a)(2), receipt of child

pornography in violation of 18 U.S.C. § 2252A(a)(2), and

possession of child pornography in violation of 18 U.S.C.

§ 2252A(5)(B).   This court reviews a challenge to the sufficiency

of the evidence supporting a conviction de novo, considering

“whether . . . a rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt.”

United States v. De Leon, 

, 496 (5th Cir. 1999).

“All reasonable inferences from the evidence must be construed in

favor of the jury verdict.”   United States v. Martinez, 

, 161 (5th Cir. 1992) (citing Glasser v. United States, 

, 80 (1942)).

     10
          Runyan also appears to argue, albeit obliquely, that
all the disks removed from his ranch by Judith should be
suppressed because Judith entered Runyan’s property illegally. We
need not address the merits of this contention. The record
contains conflicting testimony regarding whether Judith had
Runyan’s permission to retrieve her property from the ranch.
Because we are bound to view the evidence in the light most
favorable to the Government in reviewing the district court’s
denial of a motion to suppress, we must presume that Judith had
permission to enter the ranch and retrieve her property.
Accordingly, Judith’s private search was not illegal under Texas
law.

                                17
     Runyan argues that the evidence was insufficient to sustain

a conviction for sexual exploitation of a child because the

Government failed to prove that Runyan knew the images of Misty

would be transported in interstate or foreign commerce.     Runyan

similarly argues that the evidence was insufficient to sustain a

conviction for distribution, receipt, or possession of child

pornography because the Government failed to prove that any

illegal image was transported in interstate commerce.     We

consider each of these claims in turn.

         A.   The Sufficiency of the Evidence Regarding
                  Sexual Exploitation of a Child

     The jury convicted Runyan of sexual exploitation of a child

in violation of 18 U.S.C. § 2251, based on Runyan’s conduct in

photographing Misty Metcalf.   Section 2251 reads, in pertinent

part, as follows:

          (a) Any person who employs, uses, persuades,
          induces, entices, or coerces any minor to
          engage in . . . any sexually explicit conduct
          for the purpose of producing any visual
          depiction of such conduct, shall be punished
          as provided under subsection (d), if such
          person knows or has reason to know that such
          visual depiction will be transported in
          interstate or foreign commerce or mailed, if
          that visual depiction was produced using
          materials that have been mailed, shipped, or
          transported in interstate or foreign commerce
          by any means, including by computer, or if
          such visual depiction has actually been
          transported in interstate or foreign commerce
          or mailed.

18 U.S.C. § 2251 (2000).   Runyan argues that the evidence

presented at trial was insufficient to demonstrate that he “knew

                                18
or had reason to know” that the images of Misty would be

transported in interstate or foreign commerce.

     According to Misty’s testimony at trial, when Runyan

initially asked her to pose for nude photographs, he explained to

her that he was planning to sell the photographs to people in

another country.    Misty further testified that Runyan said he

would use the Internet to solicit people to buy these

photographs.   Runyan contends that Misty’s testimony is

insufficient to support his conviction because such statements do

not demonstrate that he “knew or had reason to know” that images

of child pornography would be transported in interstate or

foreign commerce.    According to Runyan, a statement indicating

that an individual is planning to sell images over the Internet

is insufficient to establish the interstate nexus required for

conviction under § 2251.

     As Runyan correctly notes, this circuit has not yet decided

whether an Internet transmission, in and of itself, constitutes

interstate transportation sufficient to satisfy the interstate

commerce element of § 2251 (i.e., the element requiring that an

offender must “know[] or ha[ve] reason to know that such visual

depiction will be transported in interstate or foreign commerce

or mailed”).   In the instant case we now squarely face this

question.   We join the First Circuit in holding that

“[t]ransmission of photographs by means of the Internet is

tantamount to moving photographs across state lines and thus

                                 19
constitutes transportation in interstate commerce” for the

purposes of 18 U.S.C. § 2251.    United States v. Carroll, 

, 742 (1st Cir. 1997).11

     The factual circumstances at issue in Carroll are remarkably

similar to the instant case.    In Carroll, the defendant’s ex-wife

found pornographic Polaroid photographs of the defendant’s

thirteen-year-old niece among his personal effects.    

After an FBI investigation, the defendant was charged with sexual

exploitation of a child in violation of 18 U.S.C. § 2251.    The

victim testified at trial that the defendant informed her at the

time the photographs were taken that he intended to scan the

images into a friend’s computer and distribute them over the

Internet.   

  The defendant was convicted and

subsequently appealed, challenging the sufficiency of the

evidence supporting his conviction.   Like Runyan, the defendant

in Carroll argued that the victim’s testimony was insufficient to

establish that he “knew or had reason to know” that the pictures

     11
          While the First Circuit appears to be the only circuit
court that has directly addressed this question in the context of
18 U.S.C. § 2251, a number of other circuits have agreed that
transmission of material via the Internet constitutes
transportation in interstate commerce in related contexts. See,
e.g., United States v. White, 2 Fed. Appx. 295, 298 (4th Cir.
2001) (addressing 18 U.S.C. § 2252A); United States v. Thomas, 

, 706-09 (6th Cir. 1996) (addressing 18 U.S.C. § 1465);
United States v. Smith, 

, 592 (N.M. Ct. Crim. App.
1997) (addressing 18 U.S.C. § 2252); see also United States v.
Campos, 

(10th Cir. 2000) (upholding a conviction
under 18 U.S.C. § 2252 based on an Internet transmission without
explicitly discussing whether Internet transmission constitutes
transmission in interstate commerce).

                                 20
would be transported in interstate commerce.   The First Circuit

disagreed, holding that the victim’s testimony was sufficient “to

sustain a finding that the [defendant] intended to transport the

pornographic depictions in interstate commerce (and therefore

knew that they would be so transported).”    

Carroll

court recognized that there were alternate ways that the

Government could have established the interstate commerce element

of the offense in that case, the court clearly indicated that the

victim testimony alone was sufficient to establish the required

interstate commerce connection.    

the

victim’s testimony, “if believed, proved the government’s point”

that the defendant intended to transport child pornography in

interstate commerce).   We similarly conclude in the instant case

that Misty’s testimony suffices to sustain the jury’s finding

that Runyan “knew or had reason to know” that the images of her

would be transported in interstate commerce via the Internet.

     Runyan further argues that Misty was an unreliable witness

whose testimony was not credible and that her testimony thus

cannot form the sole basis of his conviction for sexual

exploitation of a child.   While we recognize that Misty’s

testimony was not without its inconsistencies, Runyan’s

criticisms of Misty’s credibility go to the weight of the

evidence, not its sufficiency.    In assessing the sufficiency of

the evidence supporting Runyan’s conviction, this court does not

evaluate the weight of the evidence or the credibility of

                                  21
witnesses.    See United States v. Delgado, 

, 273-74

(5th Cir. 2001).   Credibility assessments are squarely within the

jury’s domain, and we decline Runyan’s invitation to second-guess

the jury’s assessment of Misty’s testimony.   Accordingly, we find

that the Government presented sufficient evidence to support

Runyan’s conviction for sexual exploitation of a child.

         B. The Sufficiency of the Evidence Regarding
   Distribution, Receipt, and Possession of Child Pornography

     Runyan also challenges the sufficiency of the evidence

supporting his convictions for distribution, receipt, and

possession of child pornography under 18 U.S.C. § 2252A.    Runyan

contends that the Government failed to demonstrate adequately

that any of the illegal images introduced at trial were

“transported in interstate commerce,” a required element of each

of these three charges.   Specifically, Runyan argues that the

Government never proved that any of the particular images in

question came from the Internet, rather than from purely intra-

state sources.   According to Runyan, the Government impermissibly

relied solely on inference to establish the interstate commerce

connection required under § 2252A.

     In support of his argument, Runyan relies primarily on this

court’s decision in United States v. Henriques, 

(5th

Cir. 2000).   In that case, defendant Bart Henriques was convicted

of possession of child pornography under a prior version of

§ 2252A that required the Government to prove possession of three


                                 22
or more images of child pornography.     

-

65.   Henriques’s conviction was based on exactly three images.

He challenged his conviction, arguing that the evidence was

insufficient to support a finding that the three images were

transported in interstate commerce.     

  This court

agreed and reversed Henriques’s conviction.     We noted that

transport of goods through interstate commerce is an element of

the crime under § 2252A, and we adopted the Tenth Circuit’s

holding that, when the interstate commerce element of § 2252A is

established via Internet transmission, the Government must

“independently link all the images upon which a conviction is

based to the Internet” in order to obtain a conviction.      

(citing United States v. Wilson, 

, 744 (10th Cir.

1999)).

      In examining the particular images at issue in Henriques, we

recognized that two of the three images in question were

connected to interstate commerce by evidence introduced at trial.

A witness in that case testified at trial that she observed

Henriques viewing images of child pornography on the Internet,

including one of the three images supporting his conviction.         

  Another of the images supporting Henriques’s conviction

had a website address embedded on it.     

indicated

that such internal evidence of an Internet origin was most likely

sufficient to “independently link” this image to interstate

commerce, we ultimately concluded that there was still

                                23
insufficient evidence to support Henriques’s conviction because

there was no evidence indicating that the third image at issue

came from the Internet.   We deemed the Government’s proffered

evidence – demonstrating that Henriques had access to the

Internet, and that his computer contained pornographic material –

insufficient to establish the requisite connection between the

third image and interstate commerce.   

-67.    Moreover,

we indicated that the Internet link established for the first two

images supporting Henriques’s conviction could not be imputed to

the third image because each image had to be independently linked

to the Internet.   

     Runyan contends that, as in Henriques, the Government in the

instant case failed to “independently link” any of the images

supporting his convictions for possession, receipt, and

distribution of child pornography to interstate commerce.    The

Government responds that a rational jury could have found that

the interstate nexus was established in this case.   The

Government points out that Runyan admitted in his initial

confession to Agent Nuckles: (1) that Runyan knew the CDs taken

from his home contained child pornography that had come from the

Internet, and (2) that he had received images of child

pornography from the Internet by accessing newsgroups and viewing

images.   The Government further notes that both the defense

expert, Chancey Green, and the Government’s expert, Agent Wargo,

testified at trial that some of the images on the disks found by

                                 24
Judith and on the hard drive of Runyan’s desktop computer came

from the Internet.   Finally, the Government points to Runyan’s

statements to Misty indicating that he trafficked internationally

in child pornography as further evidence that the Government

sufficiently established the interstate commerce nexus underlying

Runyan’s convictions for distribution, receipt, and possession of

child pornography.

     Before delving into the substance of the parties’ arguments,

it merits notice that, unlike the defendant in Henriques, Runyan

was charged and convicted under the current version of 18 U.S.C.

§ 2252A, which requires distribution, receipt, or possession of

only one image in order to sustain a conviction.12   18 U.S.C.

§ 2252A reads, in pertinent part:

          (a) Any person who--
            (1) knowingly mails, or transports or ships
          in interstate or foreign commerce by any
          means, including by computer, any child
          pornography;
            (2) knowingly receives or distributes--
             (A) any child pornography that has been
          mailed, or shipped or transported in
          interstate or foreign commerce by any means,
          including by computer; or
             (B) any material that contains child
          pornography that has been mailed, or shipped


     12
          In certain circumstances, a defendant can raise the
fact that he possessed, received, or distributed less than three
images of child pornography as an affirmative defense under the
current version of the statute. See 18 U.S.C. § 2252A(d) (2000).
Runyan did not raise such a defense in the instant case.
Moreover, the existence of this affirmative defense does not
alter the nature of the interstate commerce nexus requirement
under the current version of the statute.

                                25
            or transported in interstate or foreign
            commerce by any means, including by computer;
            ...
              (5) either--
                (A) in the special maritime and
            territorial jurisdiction of the United
            States, or on any land or building owned by,
            leased to, or otherwise used by or under the
            control of the United States Government, or
            in the Indian country (as defined in section
            1151), knowingly possesses any book,
            magazine, periodical, film, videotape,
            computer disk, or any other material that
              contains an image of child pornography; or
                (B) knowingly possesses any book,
            magazine, periodical, film, videotape,
            computer disk, or any other material that
            contains an image of child pornography that
            has been mailed, or shipped or transported in
            interstate or foreign commerce by any means,
            including by computer, or that was produced
            using materials that have been mailed, or
            shipped or transported in interstate or
            foreign commerce by any means, including by
            computer,
            shall be punished as provided in subsection
            (b).

18 U.S.C. § 2252A (2000).

     Runyan apparently reads Henriques to suggest that the

Government must provide direct evidence (akin to the eyewitness

testimony addressing the first image in Henriques) in order to

provide the requisite “independent link” between an image and the

Internet.    This argument mischaracterizes our holding in

Henriques.    Henriques establishes that the Government must

provide some evidence linking the specific images supporting the

conviction to the Internet in order to establish an interstate

commerce connection under § 2252A.    

.

Thus, as we indicated in Henriques, it is not enough for the

                                 26
Government merely to introduce evidence indicating that the

defendant had Internet access and that the defendant, at some

point in time, accessed or downloaded images from pornography

websites or newsgroups.     

-67.   Rather, the Government

must make a specific connection between the images introduced at

trial and the Internet to provide the requisite jurisdictional

nexus.   We did not suggest in Henriques that circumstantial

evidence would be insufficient to establish such a link.     Indeed,

Henriques implicitly supports the notion that circumstantial

evidence linking a particular image to the Internet (such as the

presence of a website address embedded on the image) can be

sufficient evidence of interstate transportation to support a

conviction under § 2252A.    

(noting that one of the

three images in question “contain[ed] a world-wide web address

embedded on the image” and that “it is possible for this

‘internal evidence’ to support a connection to the Internet”);

accord United States v. Hilton, 

, 54-55 (1st Cir.

2001) (adopting the analysis of Henriques and concluding that

“the government [i]s not required to provide ‘direct’ evidence of

interstate transmission,” thus upholding the defendant’s

conviction for receipt and possession of child pornography based

on expert testimony opining that the particular images at issue

in that case most likely originated from the Internet).

     Viewing the evidence in the instant case, as we must, in the

light most favorable to the verdict, there is adequate

                                  27
circumstantial evidence to tie particular images of child

pornography that were introduced into evidence at trial to the

Internet.   For example, one image obtained from the hard drive of

Runyan’s computer had a website address embedded on it and

contained language advertising the child pornography available at

that website: “All Uncensored Child Nude and Porno Lolita Pics”;

“Asian Nudist and Others”; and “Ultimate Lolita Nudist Site.”

The website address and this advertising language provides

circumstantial evidence that this image was obtained from the

Internet.   In addition, the Government’s expert, Agent Wargo,

testified at trial as to his opinion that this image came from

the Internet.   This evidence is sufficient to enable a rational

jury to find that Runyan received and possessed an image of child

pornography that was “transported in interstate commerce” within

the meaning of § 2252A.    Accordingly, there was sufficient

evidence to support Runyan’s convictions for receipt and

possession of child pornography.

     Runyan’s conviction for distribution of child pornography is

more problematic.    The distribution charge against Runyan was not

based on any evidence indicating that Runyan transmitted to

others the images he had stored on the disks or on the hard drive

of his computer.    Instead, this charge was apparently based on

Runyan’s expressed intent to distribute via the Internet the

images of Misty that he created.      However, the Government has not

provided sufficient evidence directly tying the images of Misty

                                 28
to the Internet for the purposes of the distribution charge.

Misty’s testimony alone is insufficient to establish the

interstate commerce element of a conviction under § 2252A.

     Unlike a conviction for sexual exploitation of a minor under

§ 2251, which requires the Government to prove that the defendant

knew or had reason to know at the time that the images were

created that those images “will be transported in interstate or

foreign commerce or mailed,” 18 U.S.C. § 2251 (2000) (emphasis

added), a conviction for distribution of child pornography under

§ 2252A requires the Government to prove that the defendant

knowingly distributed “any child pornography that has been

mailed, or shipped or transported in interstate or foreign

commerce by any means, including by computer” or “any material

that contains child pornography that has been mailed, or shipped

or transported in interstate or foreign commerce by any means,

including by computer,” 

(emphasis added).   As the

language of the two sections suggests, while evidence of a

defendant’s intent to distribute child pornography via interstate

commerce is adequate to satisfy the jurisdictional element of

§ 2251, see, e.g., United States v. Buculei, 

, 329

(4th Cir. 2001) (noting that § 2251’s jurisdictional element

limits this section’s applicability to “a discrete set of

activities -- defendants who plan to transport visual depictions

of minors engaged in sexually explicit conduct in interstate



                               29
commerce”) (emphasis added), such evidence of intent appears

insufficient to satisfy the jurisdictional element of § 2252A.

     There was no evidence presented at trial indicating that

Runyan actually disseminated the pictures of Misty to anyone,

much less that he had transported these images in interstate or

foreign commerce via the Internet or any other means.      Nor was

there any evidence presented at trial indicating that Runyan

actually distributed any of the other images contained on the

disks or on the hard drive of his computer by transporting these

images in interstate or foreign commerce.    Under these

circumstances, no reasonable jury could have found: (1) that

Runyan knowingly distributed child pornography or material

containing child pornography; or (2) that such child pornography

or material containing child pornography was mailed, shipped or

transported in interstate or foreign commerce.    Accordingly, we

reverse the distribution count of Runyan’s conviction.

          IV.   Runyan’s Claims Based on the Wood Computer

     In the course of preparing Runyan’s defense, his attorneys

purchased a computer from Misty’s ex-boyfriend, Nathan Wood (“the

Wood computer”).13   The defense retained possession of this

computer for four months, apparently without investigating its

     13
          Wood testified for the defense at trial. His testimony
indicated that while he and Misty were dating, he often observed
Misty using the computer to view and download pornography from
the Internet. Wood also testified that he observed Misty sending
these images to others via electronic mail, claiming that the
images were pictures of her.

                                 30
contents.    Shortly before trial, the defense retained an expert,

Chancey Green, to analyze the computer.    Green informed Runyan’s

attorneys that there were pornographic images on the computer

depicting what he believed to be underage females.    Runyan’s

attorneys then contacted officials from the United States Customs

Service.    According to the defense, these officials instructed

Runyan’s attorneys to turn the Wood computer over to the Customs

Service.    The Customs Service officials also instructed Green to

destroy the “mirror image” of the Wood computer’s hard drive that

he had created.

     Runyan contends that, from the time that his attorneys

relinquished the Wood computer to the Customs Service until the

time of trial, the defense was denied access to the computer.

The Government, in contrast, maintains that the defense had an

open invitation to examine the Wood computer and its contents

while the computer was in the possession of the Customs Service.

At the request of the Government, Agent Nuckles conducted an

analysis of the contents of the Wood computer’s hard drive.      This

analysis was apparently not completed until after the trial

began.

     Both parties agree that the Wood computer was available at

trial.   Indeed, the defense introduced the computer into

evidence.    On the second day of trial, Runyan made a motion

requesting that the court “order the United States to produce

copies of all graphic images on [the Wood] computer, examine them

                                 31
in camera, and enter an order making all said images and/or

computer information [available] to Defendant’s counsel.”      Runyan

alleged that this hard drive contained images of child

pornography that would exculpate him.14   On the fourth day of

trial Runyan made a similar motion requesting that the court

“order the United States to produce copies of all graphic images

on this computer and deliver them to Defendant’s counsel.”     The

district court denied both motions.

     Green testified at trial for the defense, stating that he

had found images of what he believed to be underage females on

the Wood computer.   Agent Nuckles testified at trial that he

found no images of child pornography on the Wood computer.     Agent

Nuckles conceded that he found “questionable” images during his

analysis, but stated that he found “no five and six-year-old

[child] porn images.”   Neither party introduced any images from

the Wood computer into evidence at trial.

     Subsequent to trial, Runyan’s newly-retained appellate

counsel requested and received from the Government a mirror image

of the Wood computer’s hard drive.    Two additional defense

experts, Dr. Hill and Dr. Andrus, then examined a sample of

     14
          Runyan’s theory was that any images of child
pornography found on the Wood computer would support his
contentions: (1) that it was Misty, not Runyan, who sent and
received images of child pornography from Runyan’s computer; and
(2) that Misty (with the assistance of other unknown parties)
must have created the photographs of herself, mimicking the
“poses” she saw in the images she downloaded onto Wood’s
computer.

                                32
thirty-three images from the computer.    Dr. Hill concluded that

eleven images in the sample were girls under age sixteen; Dr.

Andrus concluded that ten images in the sample were girls under

age sixteen.    Runyan alleges that these images constitute

exculpatory evidence because they support his theory that Misty

was responsible for creating images of herself, and that it was

Misty, not Runyan, who intended to distribute these images over

the Internet.

                A.   Runyan’s Claims on Direct Appeal

     In his direct appeal of his criminal conviction (No. 01-

10821), Runyan contends that the district court erred in refusing

to order the Government to produce images from the Wood computer

that are, according to Runyan, exculpatory under Brady v.

Maryland, 

(1963).    Runyan similarly argues that the

district court erred in refusing to conduct an in camera review

of materials on the Wood computer to determine if exculpatory

evidence was present.    The district court denied these motions on

the ground that there was no need for court-ordered production or

in camera inspection because the computer was readily available

to the defense at the time these motions were made during the

trial.

     Methods of enforcing disclosure requirements are generally

left to the sound discretion of the trial court.    See United

States v. Valera, 

, 927 (11th Cir. 1988).    However,

this court has held that, under certain circumstances, refusal to

                                  33
compel production or conduct an in camera review of Brady

materials can be reversible error.    See, e.g., Williams v.

Dutton, 

, 799-800 (5th Cir. 1968) (refusal to compel

production); United States v. Gaston, 

, 612-14 (5th

Cir. 1979) (refusal to conduct an in camera review).    The

district court in the instant case apparently concluded that

Brady was not implicated because the images in question were not

being “suppressed” by the Government.    We agree.

      We review a district court’s Brady determinations de novo.

United States v. Dixon, 

, 199 (5th Cir. 1997).     In

order to establish a due process violation under Brady, a

defendant must show that: (1) evidence was suppressed; (2) the

suppressed evidence was favorable to the defense; and (3) the

suppressed evidence was material to either guilt or 

.   Evidence is material under Brady when there is a

“reasonable probability” that the outcome of the trial would have

been different if the suppressed evidence had been disclosed to

the defendant.    United States v. Gonzales, 

, 946 (5th

Cir. 1997) (citing United States v. Bagley, 

, 682

(1985)).   However, a defendant seeking merely an in camera

inspection to determine whether a particular source contains

Brady material “need only make a ‘plausible showing’ that the

file will produce ‘material’ evidence.”    United States v. Lowder,

, 551 (5th Cir. 1998) (quoting Pennsylvania v.

Ritchie, 

, 58 n.15 (1987)).

                                 34
     In addressing Runyan’s motions to compel production and in

camera review of the images on the Wood computer, we need not

determine whether the images on the Wood computer were “material”

under Brady and its progeny.    We agree with the district court

that, at the time of trial, the Wood computer was not being

“suppressed.”   An order compelling the Government to produce

images on the Wood computer (or, similarly, an order requiring

production of these images for the purposes of in camera review)

would have served no purpose.    As the district court correctly

recognized, “the defense had full access to [the Wood] computer

and its contents during the trial.”    Indeed, the record confirms

that the defense was fully aware that the Wood computer was

available for inspection at the time of trial.

     Accordingly, the only effect of an order compelling

production (or compelling production for the purposes of an in

camera inspection) would have been to require the Government,

rather than the defense, to turn on the computer and examine the

images contained therein.   However, Brady does not require such

action by the Government.   Cf. United States v. Mulderig, 

, 541 (5th Cir. 1997) (holding that the Government’s

Brady obligations do not require it to “point the defense to

specific documents within a larger mass of material that it has

already turned over”) (quoting United States v. Mmahat, 

, 94 (5th Cir. 1997)) (internal quotations omitted).    Evidence

is not “suppressed” if the defendant “knows or should know of the

                                 35
essential facts that would enable him to take advantage of it. .

. . The Government is not required, in other words, to facilitate

the compilation of exculpatory material that, with some industry,

defense counsel could marshal on their own.”    United States v.

Shoher, 

, 352 (S.D.N.Y. 1983) (internal citations

omitted); see also 

(“[W]hen information

is fully available to a defendant at the time of his trial and

his only reason for not obtaining and presenting the evidence to

the court is his lack of reasonable diligence, the defendant has

no Brady claim.”) (quoting United States v. Marrero, 

, 261 (5th Cir. 1990) (internal quotations omitted)).15

Because there was no Government “suppression” of the images on

the Wood computer at the time of trial, the district court

properly denied Runyan’s motions to compel production of these

images.

          B.   Runyan’s Claims in His Motion for New Trial

     A more difficult question is presented by Runyan’s motion

for new trial based on newly-discovered evidence.    Runyan argues

that the defense was denied access to the Wood computer during

the time period between the Customs Service’s acquisition of the


     15
        Indeed, remarkably little “diligence” would have been
required of the defense in the instant case. The record reveals
that all of the relevant images and video clips from the Wood
computer fit on a single CD. Thus, as the district court found,
“it would not [have taken] long at all to view all the” relevant
files from the Wood computer, even during the course of a busy
trial.

                                 36
computer and the trial.   Runyan contends that because he was

prevented from accessing the Wood computer during this time

period, he was unable to make a meaningful analysis of the

potentially exculpatory images on the computer.     Thus, according

to Runyan, his post-trial expert analysis of the images from the

Wood computer, which confirms that some of these images did

depict individuals under the age of sixteen, is “newly-discovered

evidence” that he was unable to obtain prior to trial due to the

Government’s pre-trial suppression of the computer.

     Even assuming, arguendo, that the Government withheld the

Wood computer prior to trial and that the results of the

defense’s post-trial analysis can thus appropriately be deemed

“newly-discovered evidence,” a new trial is not warranted.       The

defense’s post-trial analysis of the images from the Wood

computer fails to satisfy Brady’s materiality requirement.

     This court reviews a district court’s denial of a motion for

new trial for abuse of discretion.     United States v. Jaramillo,

, 924 (5th Cir. 1995).     However, when the newly-

discovered evidence is alleged to be exculpatory evidence that

the Government withheld in violation of Brady, we review any

Brady determinations de novo.    United States v. Gonzales, 

, 946 (5th Cir. 1997).   As a general rule, to obtain a

new trial based on newly-discovered evidence, a defendant must

demonstrate that: (1) the evidence was discovered after trial;

(2) the failure to discover the evidence was not due to the

                                 37
defendant’s lack of diligence; (3) the evidence is not merely

cumulative or impeaching; (4) the evidence is material; and (5) a

new trial would probably produce a new result.    United States v.

Williams, 

, 757 (5th Cir. 1993).   However, when a

motion for new trial based on newly-discovered evidence raises a

Brady claim, this court instead applies the three-prong Brady

test to determine whether a new trial is appropriate.     See, e.g.,

(applying the three-prong Brady test in

assessing a motion for new trial based on an alleged Brady

violation); accord United States v. Conley, 

, 45 (1st

Cir. 2001) (noting that the three-part Brady test – rather than

the five-part test governing motions for new trial – is

applicable “where a defendant claims that the newly-discovered

evidence should have been produced under Brady”); United States

v. Quintanilla, 

, 1149 n.10 (10th Cir. 1999)

(“Evaluation of a Brady claim asserted in a motion for a new

trial involves an application of the three [Brady] elements

identified above, and not the five-prong . . . test utilized in

typical newly discovered evidence claims.”).

     As noted above, to establish a due process violation under

Brady, a defendant must show that: (1) evidence was suppressed;

(2) the suppressed evidence was favorable to the defense; and (3)

the suppressed evidence was material to either guilt or

.   Evidence is material under Brady

when there is a “reasonable probability” that the outcome of the

                                 38
trial would have been different if the evidence had been

disclosed to the defendant.    See 

.      A

“reasonable probability” is established when the failure to

disclose the suppressed evidence “could reasonably be taken to

put the whole case in such a different light as to undermine

confidence in the verdict.”    Kyles v. Whitley, 

, 435

(1995).   As we noted in Gonzales, this standard does not require

a defendant to establish that he would have been acquitted had

the evidence been 

.   However, the

defendant “must establish that the suppression of exculpatory

evidence by the government ‘undermines confidence in the outcome

of the trial.’”   

514 U.S. at 434).

     It merits emphasis that the evidence in question in the

instant case (i.e., the evidence that the Government allegedly

prevented the defense from accessing) is not the Wood computer or

even the images contained on the Wood computer.    Rather, the

“newly discovered” Brady evidence is the expert analysis of these

images that the defense was able to obtain after trial, but was

allegedly unable to obtain prior to trial.   Thus, this court’s

task is to determine whether the availability of such expert

analysis at trial would have placed “the whole case in such a

different light as to undermine confidence in the verdict.”

.

     As noted above, Runyan’s attorneys initially hired Chancey

Green to examine the Wood computer prior to the time that the

                                 39
defense relinquished the computer to the Customs Service.

Although Green was apparently unable to conduct a complete

analysis of the images on the Wood computer, he did testify at

trial that he saw images of what he believed to be child

pornography (specifically, images of “young girls”) on the

computer.   Agent Nuckles also testified at trial regarding the

contents of the Wood computer, indicating that he found “no

evidence of actual child pornography.”   However, Nuckles conceded

that there were some “questionable” images on the Wood computer.

In light of this testimony, it is clear that both the trial court

and the jury were fully aware that the Wood computer contained

“borderline” images that might have constituted child

pornography.   As the district court correctly noted, Runyan’s

post-trial expert analysis “only verified this information.”

     Runyan contends that this verification is nonetheless

“material” within the meaning of Brady because such testimony

would have bolstered Runyan’s theory that Misty was responsible

for creating the pornographic images of herself.   However, in

light of the compelling evidence that Runyan was personally

involved in taking the pornographic photographs of Misty,16 the


     16
        Even apart from Misty’s testimony – which the jury
apparently credited – there is ample evidence in the record
indicating that Runyan was involved in photographing Misty. It
is uncontroverted that the pornographic photographs of Misty were
taken inside Runyan’s home and his place of business. In
addition, as previously noted, the Polaroid photographs of Misty
were found in Runyan’s barn and digitized images of Misty were
found on Runyan’s computer. Finally, Judith testified at trial

                                40
defense’s alternate theory explaining the origin of these images

is extremely weak.17   Under the circumstances of this case, we

cannot say that the inclusion of additional evidence at trial

providing indirect support (if any) for this demonstrably weak

defensive theory would have placed the case in such a different

light as to undermine confidence in the verdict.   Cf. Wright v.

United States, 

, 1146 (E.D.N.Y. 1983) (“Brady

. . . does not require the government to anticipate all possible

defenses and provide the defendant with otherwise irrelevant

information to bolster one possible factual theory, particularly

where . . . the theory itself . . . is demonstrably

implausible."), aff’d, 

(2d Cir. 1984).   We find

that there is no reasonable probability that the outcome of the

trial would have been different had Runyan been able to present

expert analysis of the images on the Wood computer.

     Runyan also contends that the district court erred in

denying his motion for a new trial without conducting an


that she recognized Runyan’s hand in one of the photographs of
Misty.
     17
        In addition, the presence of child pornography on Nathan
Wood’s computer provides only indirect support for this defensive
theory. No images of Misty were found on Wood’s computer. The
defense explained at oral argument that the presence of child
pornography on Wood’s computer nonetheless supports Runyan’s
theory that Misty was responsible for creating pornographic
images of herself. Specifically, Runyan argues that, because the
poses in the pictures found on the Wood computer were similar to
the poses in the images of Misty, Misty must have learned
techniques for pornographic modeling from the images she viewed
on the Wood computer.

                                 41
evidentiary hearing.    This court recognizes that a district court

may rule on a motion for new trial without conducting an

evidentiary hearing.    See United States v. Blackburn, 

,

358 (5th Cir. 1993).    Moreover, “the decision to hold a hearing

rests within the sound discretion of the trial court.”     

instant case, the trial court was well aware of the details

of the parties’ dispute regarding the Wood computer because

Runyan’s motion to compel production and Runyan’s motion for in

camera review involved essentially the same issues.    The only new

information relevant to this dispute at the time of the motion

for new trial was the defense’s post-trial expert analysis of the

images contained on the Wood computer.    The district court

determined that it could adequately assess the relevance of these

two reports without the assistance of an evidentiary hearing.     We

cannot conclude that this determination was an abuse of the

district court’s discretion.

                 V.     Runyan’s Due Process Claim

     Runyan contends that the district court erred in overruling

his objection to testimony (solicited by the Government)

indicating that Runyan refused to consent to a police search of

his desktop computer.    Runyan argues that the Government, in

soliciting this testimony, attempted to use Runyan’s invocation

of his constitutional rights as evidence of guilt, in violation

of the due process clause of the Fifth Amendment.    The Government

responds that the district court’s admission of this testimony

                                  42
was not erroneous because Runyan “invited” this testimony by

suggesting: (1) that he had willingly consented to other

searches; (2) that Agent Nuckles performed an inadequate

investigation; and (3) that the desktop computer was tampered

with while Runyan was out of town on business.   The Government

further contends that, even if the district court acted

erroneously in overruling Runyan’s objection, this testimony had

no effect on the outcome of the proceedings.

     This court ordinarily analyzes due process claims alleging

improper comment on a defendant’s invocation of constitutional

rights under the harmless error doctrine, determining whether the

improper comment was harmless beyond a reasonable doubt.     See,

e.g., United States v. Moreno, 

, 472 (5th Cir. 1999)

(improper comment on a defendant’s invocation of his right to

counsel); Richardson v. Lucas, 

, 755 (5th Cir. 1984)

(improper comment on a defendant’s refusal to testify).    In the

instant case, the Government contends that Runyan did not raise

this constitutional objection to Agent Nuckles’s testimony at

trial and that plain error analysis is therefore applicable.     In

support of this contention, the Government points out that

Runyan’s counsel objected to this testimony at the time it was

presented only on the ground that it was hearsay.   It appears

from the record, however, that Runyan’s counsel attempted to

object to this line of questioning on constitutional grounds

prior to the time that the testimony was elicited, and that the

                               43
trial court indicated the court would not be receptive to such an

objection.   Nonetheless, we need not decide whether this

objection was properly raised at trial because even under the

more defendant-friendly “harmless error” standard, Runyan fails

to demonstrate that admission of Agent Nuckles’s testimony

constitutes reversible error.

     This circuit has not directly addressed the question whether

a prosecutor commits constitutional error by invoking a

defendant’s refusal to consent to a warrantless search to support

an inference of guilt.   However, the circuit courts that have

directly addressed this question have unanimously held that a

defendant’s refusal to consent to a warrantless search may not be

presented as evidence of guilt.    See, e.g., United States v.

Moreno, 

, 940-41 (7th Cir. 2000); United States v.

Dozal, 

, 794 (10th Cir. 1999); United States v.

Thame, 

, 205-08 (3d Cir. 1988); United States v.

Prescott, 

, 1351-52 (9th Cir. 1978); but cf. United

States v. McNatt, 

, 256-57 (4th Cir. 1991)

(questioning whether a defendant’s invocation of his or her

Fourth Amendment rights by refusing to consent to a warrantless

search is the constitutional equivalent of a defendant’s

invocation of his or her right to remain silent under the Fifth

Amendment, but not reaching the issue).   For the purposes of this

appeal, we assume without deciding that it would be error of

constitutional magnitude for a trial court to permit a prosecutor

                                  44
to comment on (or present testimony regarding) a defendant’s

refusal to consent to a warrantless search to support an

inference of guilt.18   Nonetheless, we find that under the

circumstances of this case, this error was harmless.

     Runyan’s refusal to consent to a police search of his

desktop computer arose only once during the course of Agent

Nuckles’s testimony.    The jury heard the following exchange:

          Q:   Were you aware during your investigation
               in this case that prior to the execution
               of the search warrant of the desktop
               computer, that this defendant was asked
               for consent to search it?
          A:   Yes, I was.
          . . .
          Q:    Did this defendant give consent for law
                enforcement to search the desktop
                computer?
          A:    No, he did not.
          Q:    However, he did give consent to search
                other places, correct?
          A:    Yes, he did.

The line of questioning then shifted to other matters.    The

prosecution neither commented on Runyan’s refusal to consent to a

warrantless search, nor asked the jury to draw any inferences



     18
          We note that reference to a defendant’s refusal to
consent to a warrantless search may be admissible for purposes
other than to support an inference of guilt. See, e.g., 

(finding such evidence admissible to establish
the defendant’s dominion and control over the property subject to
the search). At least one court has also held that such
testimony may be admissible under certain circumstances if
“invited” by the defendant’s trial strategy. See 

(finding that testimony regarding the defendant’s
refusal to consent to a search of his vehicle was “invited” by
his suggestion at trial that the arresting officer “framed” him
by planting drugs in the defendant’s truck).

                                 45
from this refusal.   Indeed, Runyan’s refusal to consent to the

search was not mentioned at any other time during the trial.

Thus, the record reveals that the offending statement was merely

an isolated reference and that the Government did not focus on or

highlight Runyan’s refusal to consent to the search.   This

suggests that the error was harmless.   Cf. United States v.

Griffith, 

, 325 (5th Cir. 1997) (recognizing that two

of the relevant factors in assessing whether a prosecutor’s

comment on a defendant’s failure to testify can be harmless error

are: (1) whether the comment was an isolated incident and (2)

whether the prosecution “focused on” or “highlighted” the refusal

to testify) (citing United States v. Shaw, 

, 383 (5th

Cir. 1983)).

     Moreover, the evidence supporting Runyan’s conviction for

possession and receipt of child pornography is very strong.

Images of child pornography (often images of the same children or

even identical images) were found on Runyan’s desktop computer,

on the disks removed from the ranch by Judith, and on a backup

disk found during the warrant-authorized search of Runyan’s home.

In addition, evidence of previous access to child pornography

websites was found on Runyan’s desktop computer and on a laptop

computer that Runyan previously owned that he gave to his

stepdaughter, Rickie, when she started college.   Strong evidence

of guilt can render the admission of evidence regarding a

defendant’s refusal to consent to a warrantless search

                                46
“harmless.”   See 

; 

; cf. United States v. Valley, 

, 135 (5th Cir.

1991) (finding that overwhelming evidence of guilt can render

“harmless” a prosecutor’s comment on the defendant’s refusal to

testify).   Under these circumstances, we can safely say that it

is clear beyond a reasonable doubt that the jury would have

returned a verdict of guilty even if the Government had never

asked Agent Nuckles about Runyan’s refusal to consent to a police

search of his desktop computer.     See 

.

Because we find that the alleged constitutional error “did not

contribute to the verdict obtained,” this error was harmless, and

the jury’s verdict should be upheld.     

(quoting Chapman v. California, 

, 24 (1967)).

                    VI.   Runyan’s Sentencing Claim

     Runyan’s final claim of error alleges that he was

incorrectly sentenced.     The district court grouped three of

Runyan’s four counts of conviction.     Count one (sexual

exploitation of a child) was considered by itself, while the

three remaining counts (receipt, distribution, and possession of

child pornography) were grouped together.     In the sentence

calculation for the group of offenses, Runyan received a five-

level enhancement for “engag[ing] in a pattern of activity

involving . . . sexual exploitation of a minor.”      Accordingly,

Runyan contends that his exploitation offense was, in effect,

“double counted.”    Such “double counting” is contrary to Section

                                   47
3D1.2(c) of the Sentencing Guidelines, which provides that counts

of conviction should be grouped “[w]hen one of the counts

embodies conduct that is treated as a specific offense

characteristic in, or other adjustment to, the guideline

applicable to another of the counts.”   U.S. Sentencing Guidelines

Manual § 3D1.2(c) (1998).

     This “double counting” increased Runyan’s sentence.    As

determined in the presentence report (“PSR”),19 the adjusted

offense level for sexual exploitation of a minor was 33.    The

adjusted offense level for the grouped offenses (receipt,

distribution, and possession of child pornography) was 37.

Pursuant to Section 3D1.3(a), this group offense level was

calculated based on the distribution charge, the most serious of

the three counts comprising this group.20

     Because Runyan was convicted of multiple counts that were

grouped separately, the PSR calculated Runyan’s combined offense

level under Section 3D1.4.   See 

  Pursuant to the

formula provided in this section, the greater of Runyan’s offense

levels (i.e., 37) was increased by two for a combined offense


     19
          The district court adopted the factual findings and
guideline application from the PSR.
     20
          Section 3D1.3(a) reads: “In the case of counts grouped
together pursuant to §3D1.2(a)-(c), the offense level applicable
to a Group is the offense level, determined in accordance with
Chapter Two and Parts A, B, and C of Chapter Three, for the most
serious of the counts comprising the Group, i.e., the highest
offense level of the counts in the Group.” U.S. Sentencing
Guidelines Manual § 3D1.3(a) (1998).

                                48
level of 39.   This offense level resulted in a total punishment

range of 262-327 months.   Had the counts of conviction been

properly grouped by the district court into a single group, this

two-level increase under Section 3D1.4 would not have applied.

Thus, Runyan’s offense level would have been 37, corresponding to

a total punishment range of 210-262 months.

     In addition, because the total punishment range that was

calculated based on the combined offense level of 39 (i.e., 262-

327 months) exceeded the statutory maximum for any of the counts

involved, the district court imposed Runyan’s sentences

consecutively rather than concurrently, pursuant to Section

5G1.2(d), to achieve the total sentence of 300 months.21   Had all

four counts of conviction been grouped together, the sentence on

the count carrying the highest statutory maximum, (i.e., sexual

exploitation of a child, which carries a statutory maximum of 240

months) would have been adequate to achieve the total punishment

range for an offense level of 37 (i.e., 210-262 months).

Accordingly, Runyan’s sentences for his other counts of

conviction would have run concurrently with the sentence for




     21
          Section 5G1.2(d) reads: “If the sentence imposed on the
count carrying the highest statutory maximum is less than the
total punishment, then the sentence imposed on one or more of the
other counts shall run consecutively, but only to the extent
necessary to produce a combined sentence equal to the total
punishment. In all other respects, sentences on all counts shall
run concurrently, except to the extent otherwise required by
law.” U.S. Sentencing Guidelines Manual § 5G1.2(d) (1998).

                                49
sexual exploitation, rather than consecutively, pursuant to

Section 5G1.2(c).22

     Thus, because the district court’s improper grouping of the

counts of conviction affects Runyan’s substantial rights, he is

entitled to resentencing.   We note that resentencing is needed

not only to correct this improper grouping determination but also

to account for this court’s reversal of Runyan’s conviction for

distribution of child pornography.    Accordingly, we remand to the

district court for resentencing consistent with this opinion.

                         VII.   Conclusion

     For the foregoing reasons, we AFFIRM the district court’s

denial of Runyan’s motion for a new trial (No. 01-11207).    In

Runyan’s direct appeal of his conviction (No. 00-10821), we

AFFIRM Runyan’s convictions for sexual exploitation of a child,

receipt of child pornography, and possession of child

pornography.   However, we REVERSE Runyan’s conviction for

distribution of child pornography and VACATE Runyan’s sentence.

Accordingly, we REMAND action No. 00-10821 to the district court

for entry of judgment and resentencing consistent with this

opinion.




     22
          Section 5G1.2(c) reads: “If the sentence imposed on the
count carrying the highest statutory maximum is adequate to
achieve the total punishment, then the sentences on all counts
shall run concurrently, except to the extent otherwise required
by law.” U.S. Sentencing Guidelines Manual § 5G1.2(c) (1998).

                                 50