PRISCILLA R. OWEN, Circuit Judge:
A jury convicted David Paul Roetcisoender of two counts of distribution of child pornography and one count of possession of child pornography. On appeal, Roetcisoender challenges the sufficiency of the evidence supporting his convictions for distribution, the application of a two-level sentencing enhancement for use of a computer, and the application of a two-level sentencing enhancement for distribution. Because the evidence is sufficient to support his convictions for distribution, and his sentencing arguments are foreclosed by prior precedent, we affirm.
The Pearland, Texas Police Department operates software that monitors file-sharing programs and detects IP addresses that store files known to contain child pornography. The software identified an IP address in Pearland, and Detective Cecil Arnold subpoenaed Comcast, the Internet service provider, for the account holder's information. Arnold and other officers obtained and executed a search warrant for the account holder's residence, where Roetcisoender also resided. When Roetcisoender arrived, he admitted to having child pornography on his computers. After onsite triage revealed the presence of child pornography on some of Roetcisoender's devices, the officers arrested Roetcisoender and seized two computers and multiple external hard drives and flash drives for further analysis. Officer Jonathan Cox, a computer forensic investigation officer, examined the computers and other hardware and found over 100,000 pornographic images of minors and over 2,000 videos of child pornography.
Roetcisoender told the police he had been downloading child pornography through eMule, a program that facilitates file sharing between users. Users can search for images and videos using key words and choose which files to download. The downloaded files go, by default, into a folder titled "Incoming." The "Incoming" folder is, by default, available for sharing with other eMule users online. As part of his analysis, Cox retrieved a file that documents every file that has been downloaded by the eMule user and every file that has been uploaded to another eMule user from the original user's folder. This file revealed that two child-pornography files were uploaded to other users from Roetcisoender's "Incoming" folder.
Following a jury trial, Roetcisoender was convicted of two counts of distribution
When a defendant timely moves for a judgment of acquittal, as Roetcisoender did,
We review "the district court's interpretation and application of the sentencing guidelines de novo and its findings of fact for clear error."
Roetcisoender was convicted under 18 U.S.C. § 2252A(a)(2)(B), which states:
The jury instructions defined "knowingly" as "voluntarily and intentionally, not because of mistake or accident" and "distribute" as "to deliver or transfer possession of [something] to someone else with or without any financial interest in the transaction." While the statute itself does not define distribute, this court held in United States v. Richardson that storing files in a shared folder accessible to others on a file-sharing program constituted distribution for purposes of § 2252A(a)(2)(B) under the facts of that case.
Roetcisoender argues that his case is distinguishable because although he stored files in a shared folder, the Government did not adduce any evidence indicating that Roetcisoender knew the folder was accessible by other users. Roetcisoender states 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.
The Government offered into evidence, and the jury heard, a recording of Detective Arnold's initial interview of Roetcisoender. Roetcisoender stated he had been using the eMule program since September 2011, approximately nine months.
He explained that to use the eMule program, the user types in a key-word search and chooses which files to download. When asked where a file went when Roetcisoender downloaded it, he said it "stays in the e[M]ule option unless you take it out of there." He viewed files in the "eMule option," and he moved some files from eMule to external hard drives or the computer's recycling bin and left other files in eMule. When Roetcisoender stated that he moved some files from eMule to a folder named "folder 28," Arnold asked another officer to tell Cox, who was in another room analyzing the computers, that "some of the stuff [wa]s moved from the share folder into folder 28 on [a] hard drive." Roetcisoender did not question or directly respond to Arnold's comment regarding a "share folder." He also stated that eMule did not have a "good deletion program" and was aware that deleted files remained on his computer.
In addition, the Government called two witnesses during trial: Arnold and Cox. Arnold testified that Roetcisoender told him in a second interview following his arrest that he had been looking at child pornography since the 1960s, and in the late 1990s, he began to access child pornography online via "newsgroups," which led him to eMule before the newsgroups were shut down by law enforcement. Arnold also testified that Roetcisoender stated the majority of his child pornography was on his newest computer because he had been compiling child pornography from older hard drives and moving the material to one large hard drive so that his files would be "centralized." He further stated that it appeared to him that Roetcisoender
Cox testified that eMule is a peer-to-peer file-sharing program and that this fact is not hidden from users, but Cox conceded he lacked personal knowledge of Roetcisoender's own understanding of eMule's inner workings. He further testified that downloaded files are stored automatically in the "Incoming" folder, and the "Incoming" folder is, by default, accessible to others on the eMule program. Roetcisoender's "Incoming" folder had 97 child-pornography videos in it. In the "Incoming" folder, there was a user-created folder titled "Young nudists" with 212 child-pornography images in it. There is no indication that any user other than Roetcisoender created that folder.
The files uploaded by other users from Roetcisoender's "Incoming" folder had titles with terms associated with child pornography. Cox testified that this naming system assists other users in searching for and finding child-pornography files, and Roetcisoender used similar acronyms and phrases in his search terms.
Viewing the evidence in the light most favorable to the Government, a rational jury "could have found the essential elements of the offense to be satisfied beyond a reasonable doubt."
Roetcisoender also appeals the application of two sentencing enhancements. The district court applied a two-level enhancement
It is unnecessary to decide whether Roetcisoender preserved the argument in the district court because Roetcisoender concedes that his argument on this issue is foreclosed by this court's decision in United States v. Richardson. The Richardson decision held that "[b]ecause § 2G2.2(b)(6) does not expressly prohibit double-counting, the district court did not err in applying § 2G2.2(b)(6)" to Richardson's conviction under 18 U.S.C. § 2252A(a)(2)(B) for distribution of child pornography.
The district court also applied a two-level enhancement under U.S.S.G. § 2G2.2(b)(3)(F) because "the offense involved... [d]istribution other than distribution described in" the other subsections of § 2G2.2(b)(3).
The Judgement of the district court is AFFIRMED.