USA v. Jerry Alan Penton

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 25, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 09-13655
Non-Argument Calendar
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D. C. Docket No. 07-00176-CR-W-N
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERRY ALAN PENTON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(May 25, 2010)
Before BIRCH, BLACK and ANDERSON, Circuit Judges.
PER CURIAM:

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Jerry Alan Penton appeals his convictions for providing child pornography
to a minor for the purpose of inducing her to participate in illegal activity
(Count 1), possession of child pornography (Count 2), and receipt or distribution of
child pornography (Count 3). On appeal, Penton challenges the sufficiency of the
evidence on each of the counts, arguing that (1) as to Count 1, the evidence was
insufficient for the jury to find that the child pornography was used for the purpose
of persuading a minor to engage in illegal conduct and (2) as to all of the counts,
the Government failed to introduce evidence sufficient to prove the statute’s
interstate commerce element.
As to each of these claims, we review de novo the sufficiency of the
Government’s evidence. United States v. Wright, 392 F.3d 1269, 1273 (11th Cir.
2004). In undertaking this review, we view the evidence in the light most favorable
to the verdict, making all reasonable inferences and credibility choices in the
Government’s favor and accepting the jury’s determinations of witness credibility.
Id. We will not overturn Penton’s conviction unless no rational trier of fact could
have found the essential elements of the crimes beyond a reasonable doubt. See id.
I.
First, the Government’s evidence was sufficient to sustain Penton’s
conviction for showing child pornography to a minor for the purpose of inducing
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her to participate in illegal activity in violation of 18 U.S.C. § 2252A(a)(6).
Specifically, the child victim (A.K.) testified that Penton showed her a movie on
his computer that depicted a minor girl touching herself sexually and included an
older man and another minor girl in a sexual situation. A.K. further testified that
immediately after showing her the child pornography, Penton removed A.K.’s
clothing and sexually molested her, while also touching himself sexually. Given
the temporal proximity of Penton’s showing A.K. the pornographic movie and his
sexual touching of both A.K. and himself, the jury was entitled to infer that he had
showed her the movie for the purpose of persuading her to engage in sexual
conduct. That Penton denied the occurrence of these events does not change the
outcome, as the jury’s credibility determinations must be accepted on review. See
Wright, 392 F.3d at 1273.
As such, the Government’s evidence was sufficient to show that Penton
showed child pornography to A.K., a minor, for the purpose of persuading A.K. to
engage in sexual contact with him, which, given her age, was illegal. Thus, the
evidence was sufficient to establish the elements of a § 2252A(a)(6) violation.
II.
Second, the Government’s evidence was sufficient to establish the interstate
commerce element of each of the crimes. As to Count 1 (inducing a minor), the
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Government satisfied this element by proving that the images were “produced”
using equipment that had traveled in interstate commerce. See § 2252A(a)(6)(B)
(criminalizing images “produced using materials that have been mailed, shipped, or
transported in or affecting interstate or foreign commerce by any means, including
by computer”). We have held that the Government can satisfy the interstate-
commerce requirement of child pornography statutes by showing that the computer
equipment on which the images are stored traveled in interstate commerce,
regardless of how the images themselves were originally produced. United States
v. Maxwell, 446 F.3d 1210, 1211–12, 1219 (11th Cir. 2006).
Here, the Government introduced evidence sufficient for the jury to find that
the child pornography at issue in Count 1 was stored and displayed on computer
materials that themselves had traveled in interstate commerce. FBI forensic
computer examiner Brian Poole testified that because Penton used a media player
computer program to show A.K. the child pornography, the pornography
necessarily was produced using components of Penton’s computer. Poole then
testified that all computers seized from Penton’s residence were entirely comprised
of parts manufactured outside of the United States, including each of the
computers’ internal hard drives. The district court’s instructions then adequately
presented this interstate commerce element to the jury, and the jury permissibly
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credited the Government’s evidence. Accordingly, the evidence was sufficient to
sustain the jury’s verdict as to Count 1.
As to Count 2 (possession of child pornography) and Count 3 (receipt or
distribution of child pornography), the Government satisfied the statute’s interstate
commerce element by directly demonstrating that the images themselves traveled
across state lines. It is well-settled that the internet is an instrumentality of
interstate commerce. See United States v. Hornady, 392 F.3d 1306, 1311 (11th Cir.
2004). We have also held that if a child depicted in child pornography resides
outside of the defendant’s state, proof of such residence can serve as sufficient
circumstantial evidence that the images were obtained via the internet and thus
traveled across state lines. United States v. Dodds, 347 F.3d 893, 900 (11th Cir.
2003).
Here, there was sufficient evidence for the jury to conclude that at least some
of the child pornography images that Penton received and possessed had traveled
in interstate commerce. FBI examiner Poole testified at length regarding the proof
of internet activity on the various computers seized from Penton’s house. Poole
also identified six particular images that he retrieved from Penton’s computer that
he believed contained child pornography. Among these six images was one image
that, according to the testimony of a Texas law-enforcement officer, had been
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produced in Texas, and featured a five-year-old girl. Another of the six images,
according to the testimony of a Missouri FBI Agent, had been produced in
Missouri, and featured a ten-year-old girl. Thus, the jury was entitled to determine
that both of these images had traveled in interstate commerce.
In addition, Poole testified regarding another ten images that he had
extracted from Penton’s computer equipment. Poole testified that each of those ten
images matched images on a database of internet-distributed child pornography,
further supporting a finding that Penton obtained these images via the internet,
which, in turn, compels the conclusion that they had traveled in interstate
commerce.
As such, the Government’s evidence was sufficient to establish the interstate
commerce element as to the images charged in each of the three counts.
AFFIRMED.
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