United States v. Cox

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40294
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GRADY LYNN COX,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:98-CR-26-ALL
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February 26, 2001
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Grady Lynn Cox appeals his conviction on three counts of
receiving visual depictions of nude minors. See 18 U.S.C.
§ 2252(a)(2).
Cox argues that the Government presented insufficient evidence
to show that he “knowingly receive[d]” child pornography as
required by 18 U.S.C. § 2252(a)(2). We have reviewed the record
and find no reversible error. Viewed in the light most favorable
to the verdict, the evidence was sufficient to support the jury’s

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No. 00-40294
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1 Allen v. United States, 164 U.S. 492, 501-02 (1896).
determination. See United States v. Shabazz, 993 F.2d 431, 441
(5th Cir. 1993).
Cox argues that 18 U.S.C. § 2252(a)(2) is unconstitutionally
vague because it fails to specify whether digital information
constituting visual depictions must be stored or maintained in
order to be “receive[d].” Because he did not raise this issue in
the district court, we review for plain error only. See United
States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc).
We perceive no error, plain or otherwise. See Buckley v. Collins,
904 F.2d 263, 266 (5th Cir. 1990).
Cox contends that the district court committed plain error
when it instructed the jury that (i) the visual depictions did not
“have to be maintained or stored” and (ii) if it determined that he
had requested the depictions and that they were sent to him
electronically, it could find that he “knowingly received” them.
Again, Cox has show no error, plain or otherwise. See United
States v. Inocencio, 40 F.3d 716, 729 (5th Cir. 1994).
Cox argues that the district court abused its discretion in
giving a modified Allen1 charge to the jury. He asserts that the
instruction was unduly coercive. Having reviewed the
circumstances, we cannot agree. See United States v. Lindell, 881
F.2d 1313, 1321 (5th Cir. 1989); United States v. Clayton, 172 F.3d
347, 352 (5th Cir. 1999).
AFFIRMED.

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