Page 31 - TPA Journal May June 2022

false.” Michalik also contends that the agents agents that, although he had viewed pornography
threatened to take him to jail if he did not consent on his laptop, he did not believe there was any such
to the search of his laptop. Agent DePaola flatly material stored on it. With all six factors favoring
disputed that claim too. The district court the government, the district court did not err in
determined that the government agents were determining that Michalik’s consent to the search
credible, and it did not clearly err in that finding. of his laptop was voluntary.
The third factor—the extent and level of the
defendant’s cooperation with police—also supports [discussion of procedural evidentiary rulings
the government. The district court determined that omitted. Ed.]
the “record in the case demonstrates that [Michalik]
was cooperative with the agents during the drive to Michalik asserts that the evidence was insufficient
his work as well as in his office,” and Michalik to convict him of knowing possession of child
does not contest that characterization. pornography. “We review sufficiency of the
The fourth factor—the defendant’s awareness of evidence de novo.” We “examine all evidence in
his right to refuse consent—favors the government, the light most favorable to the verdict, and consider
as well. Agent DePaola testified that Michalik’s whether a rational trier of fact could have found
leading the agents to his office to retrieve the laptop that the evidence established the essential elements
was “completely up to him,” and that on “multiple of the offense beyond a reasonable doubt.”
occasions [DePaola] said it was voluntary and [she] Moreover, the “assessment of the weight of the
thanked him for his cooperation.” She also testified evidence and the determination of the credibility of
that the agents told Michalik that “he could say no” the witnesses is solely within the province of the
to cooperating. Michalik challenges the veracity of jury.”
Agent DePaola’s testimony, contending that there
are discrepancies in her account, but a review of The jury convicted Michalik of possessing child
the record shows no material discrepancies; pornography in violation of 18 U.S.C. §
instead, it reveals only that DePaola had trouble 2252A(a)(5)(B). The evidence is sufficient to
recalling some details of her interaction with sustain a conviction under § 2252A(a)(5)(B) where
Michalik. The district court determined that Agent “a rational juror could find beyond a reasonable
DePaola’s testimony was credible and also noted doubt that [the defendant] (1) knowingly (2)
that the consent form Michalik signed included possessed (3) material containing an image of child
clear language informing him that he could pornography (4) that was transported in interstate
withhold his permission. or foreign commerce by any means.” Michalik
contests only the first element—knowledge. “The
The fifth factor—the defendant’s education and knowledge requirement extends both to the age of
intelligence—is undisputed and also favors the the performers and to the pornographic nature of
government. Michalik was forty years old, had a the material.”
high school education, and operated a small
business, demonstrating that he had sufficient Michalik makes a number of contentions in his
education and intelligence to consent voluntarily to argument that the evidence was insufficient to
the search. prove that he knowingly possessed child
pornography. His central assertion is that, because
The sixth and final factor—the defendant’s belief others had access to his laptop at his place of
that no incriminating evidence will be found— work—coworkers, customers, and other business
favors the government. Indeed, Michalik told associates— the evidence was insufficient to prove

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