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United States v. Acosta

August 31, 2010

UNITED STATES OF AMERICA, APPELLEE,
v.
SAMUEL ACOSTA, APPELLANT.



Appeal from the United States District Court for the Southern District of Iowa.

The opinion of the court was delivered by: Smith, Circuit Judge

Submitted: May 13, 2010

Before WOLLMAN, SMITH, and COLLOTON, Circuit Judges.

Samuel Acosta was indicted for receipt and possession of child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and (a)(4)(B). Following a bench trial, the district court*fn1 issued findings of fact and an adjudication order, finding Acosta guilty on both counts. The court then sentenced Acosta to 240 months' imprisonment and 10 years of supervised release. The district court applied six Guidelines enhancements to achieve the 240 month sentence: (1) a two-level enhancement for the material involving a prepubescent minor, under 12 years of age, pursuant to U.S.S.G. § 2G2.2(b)(2); (2) a two-level enhancement for the specific offense characteristic of distribution of child pornography, pursuant to § 2G2.2(b)(3)(F); (3) a four-level enhancement for the specific offense characteristic of having images depicting sadistic, masochistic, or other violent conduct, pursuant to § 2G2.2(b)(4); (4) a five-level enhancement for the specific offense characteristic of Acosta engaging in a pattern of sexual abuse or exploitation of a minor, pursuant to § 2G2.2(b)(5); (5) a two-level enhancement for the use of a computer for possessing, transmitting, receiving, or distributing the material, pursuant to § 2G2.2(b)(6); and (6) a five-level enhancement for the specific offense characteristic of having more than 600 images, pursuant to § 2G2.2(b)(7)(D). On appeal, Acosta argues that (1) there was insufficient evidence to support his convictions; (2) the district court erred in imposing five of the sentencing enhancements; and (3) the district court erred in denying his request for a downward variance. We reject Acosta's arguments and affirm the district court.

I. Background

Agent Wade Luders of the Federal Bureau of Investigation (FBI) discovered Acosta's illegal activities during an investigation of the Ranchi child pornography message board. This internet message board allows people to "post messages, text files, video images" and other materials. One cannot find the website using conventional internet search engines. It can only be accessed by going through other child pornography message boards to which it is linked. The message board appears entirely in English. In October 2006, Luders posted what appeared to be hard-core child pornography of a four-year-old on the Ranchi message board. He collected the internet protocol addresses of persons who tried to access his posting and traced one of those addresses back to a computer at Acosta's residence. Acosta's computer accessed Luder's posting six times between 10:10 p.m. and 10:42 p.m. CST on October 25, 2006.*fn2

Special Agent David Larsen led the FBI's search of Acosta's home in Des Moines, Iowa, on February 26, 2007, pursuant to a warrant. Oscar Lopez Ramirez, who speaks English poorly, answered the door. When the FBI team entered the residence, they discovered six Hispanic male tenants without identification. Two of the tenants spoke broken English-the rest were unable to communicate in English with law enforcement. The two-story house had three bedrooms upstairs, two of which-Acosta's and Ramirez's-were locked. Law enforcement found no materials related to child pornography in the tenants' rooms. One of the police officers assisting with the search used a credit card to open Acosta's locked bedroom door. Inside the room, officers found the only computer in the residence, which contained two hard drives. They also found hundreds of writable CDs. The agents discovered a newspaper article on child pornography-written in English-in a folder lying in the room and two padlocked storage cabinets against the wall. None of Acosta's tenants had the keys to the storage cabinets, and a search of the residence failed to locate them. Unable to open the cabinets, the agents contacted Acosta at work, and he agreed to return home to unlock the cabinets and answer the agents' questions.

When Acosta arrived, he produced the keys from his pocket and unlocked the cabinets. One cabinet contained (1) two cases containing computer disks with handwritten (in English) notes associated with them, which described the contents of the disks as child pornography; (2) an index system explaining the contents of some disks (for example, "horny kids" and "Lolita"), as well as the passwords that would be necessary to access some of the disks;*fn3 (3) newspaper articles dating to 2001 on child pornography investigations; (4) additional articles on child sex trafficking and child pornography; (5) lists of child pornography files downloaded from the internet and entitled "big vid list--301" and "big vid list 04" and CD labels with child pornography printed on them; and (6) writable CDs with child pornography on them. Three hard drives seized from Acosta's room had child pornography on them.

The FBI's fingerprint analyst compared the fingerprints found on 81 items seized from Acosta's room with his fingerprint card and with those of his tenants. No prints were found on 75 of the items. Some of the CD labels with child pornography printed on them and related materials from Acosta's locked storage cabinet were sent to the FBI laboratory for fingerprint analysis. Acosta's fingerprints were found on child pornography CD labels and on related materials. Handwriting analysis also revealed that Acosta's handwriting appeared on various child pornography materials.

Acosta was indicted on charges of receipt and possession of child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and (a)(4)(B). After a bench trial, the district court issued findings of fact and an adjudication order finding Acosta guilty on both counts. Acosta was sentenced to 240 months' imprisonment and 10 years of supervised released. This sentence included the five enhancements that Acosta now challenges: (1) a two-level enhancement for distribution of child pornography, pursuant to U.S.S.G. § 2G2.2(b)(3)(F); (2) a two-level enhancement for the material involving a prepubescent minor, under 12 years of age, pursuant to § 2G2.2(b)(2); (3) a five-level enhancement for Acosta engaging in a pattern of sexual abuse or exploitation of a minor, pursuant to § 2G2.2(b)(5); (4) a two-level enhancement for the use of a computer for possessing, transmitting, receiving, or distributing the material, pursuant to § 2G2.2(b)(6); and (5) a five-level enhancement for having more than 600 images, pursuant to § 2G2.2(b)(7)(D).

II. Discussion

A. Sufficiency of the Evidence

On appeal, Acosta maintains that the government failed to prove that he knowingly received or possessed an item of child pornography. Acosta argues that the government offered no evidence identifying the user at the internet protocol address who responded to the FBI posting. Acosta contends that given this lack of evidence, the government failed to meet its burden of proof beyond a reasonable doubt that he received or possessed child pornography and that the district court erred in denying the motion for acquittal he made at the close of evidence.

"We review the sufficiency of the evidence de novo, viewing evidence in the light most favorable to the government, resolving conflicts in the government's favor, and accepting all reasonable inferences that support the verdict." United States v. Scofield, 433 F.3d ...


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