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for possession. His arguments ignore the fact that the jury was not required to find that Arthur actually possessed
the contraband. He could have been found to have constructive possession of the drugs and firearms; he also
could have been held liable for Andres substantive offenses during the conspiracy as a co-conspirator. See
Ornelas Rodriguez, 12 F.3d at 134546 (affirming the conviction of a co-conspirator for possession of cocaine
even when much of the governments evidence regarding the participation by [the defendant] may have been
circumstantial). Here, Arthur was found in Andres apartment along with Andre and TH, and police officers also
found drugs, firearms, ammunition, a scale, plastic baggies, and cash in Andres apartment. Combined with the
other evidence that supports the conspiracy conviction, such as the recorded phone calls discussed above, we hold
that a reasonable trier of fact could have found beyond a reasonable doubt that Arthur possessed the contraband.

th
U.S. v. Harris & Harris, No. 12-31046, Fifth Circuit Court of Appeals, Jan. 10 , 2014.

POSSESSION OF COMPUTER RECORDS. SUFFICIENCY OF EVIDENCE.

Smith was acquitted in Federal District Court of child pornography charges. The prosecutor appealed and
the Fifth Circuit reversed remanding the case to the District Court.

The District Court, after a jury entered a verdict of guilty, set aside the verdict and entered an order of
acquittal finding the evidence insufficient to sustain the verdict.

The resolution of this appeal turns on a single question: did prosecutors present sufficient evidence that
Smith was in knowing possession of the child pornography recovered from his shared computer?

At trial, the prosecution produced uncontroverted evidence that someone intentionally downloaded
videos of child pornography to Smiths computer during a period when Smith and two roommates. One
roommate was eliminated by employment records and the other denied knowledge of the pornography. Smith
did not testify.

Smith was convicted of knowing possession of child pornography in violation of 18 U.S.C.
§2252A(a)(5)(B). Accordingly, the evidence is sufficient to sustain his conviction if a rational juror could find
beyond a reasonable doubt that Smith (1) knowingly (2) possessed (3) material containing an image of child
pornography (4) that was transported in interstate or foreign commerce by any means.

In cases involving child pornography or other contraband, possession may be actual or constructive.
Actual possession means the defendant knowingly has direct physical control over a thing at a given time.
Where the contraband consists of computer files, the volitional downloading of those files entails control
sufficient to establish actual possession. Actual possession, like constructive possession, may be proven by direct
or circumstantial evidence.

The prosecutions case is not complicated. It begins with the uncontroverted premises that someone used
Frostwire software to seek out and download 26 videos of child pornography to Smiths computer, that there were
only three possible suspects (Smith, Penix, and Jolly), and that Penix was not using the computer at the time the
files were downloaded. The prosecution then introduced Jollys testimony, in which he denied downloading the
files and indicated that he did not know much about computers. Smith, meanwhile, did not testify. Taken in the
light most favorable to the verdict, and even inferring nothing from Smiths decision not to testify, these facts
appear to implicate Smith.

We must, however, consider countervailing evidence. Although Jolly testified that he is an auto mechanic
and does not know much about computers, he conceded that he uses the internet often, and forensic analysis
revealed that he had used Smiths computer regularly. Uncontroverted testimony from expert witnesses indicated
that the Frostwire software is not difficult to use, requiring nothing more than entering search terms and selecting

A Peace Officer’s Guide to Texas Law 81 2015 Edition