USA v. Anthony Johnson

Filing

Opinion issued by court as to Appellant Anthony Daron Johnson. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-16059

Date Filed: 08/02/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-16059
Non-Argument Calendar
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D.C. Docket No. 1:16-cr-20075-UU-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY DARON JOHNSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(August 2, 2017)
Before HULL, WILSON, and ANDERSON, Circuit Judges.
PER CURIAM:
Anthony Johnson appeals his conviction for distribution of child
pornography, 18 U.S.C. § 2252(a)(2) (Count Two). On appeal, Johnson argues

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that the evidence was insufficient to convict him, because no evidence showed that
he transferred or delivered any images or videos to a third party.
We review de novo the sufficiency of the evidence in support of a conviction
in a criminal case following a non-jury trial, resolving all reasonable inferences in
favor of the verdict. United States v. Brown, 415 F.3d 1257, 1270 (11th Cir.
2005). We determine whether the evidence, construed in the light most favorable
to the government, would permit the trier of fact to find the defendant guilty
beyond a reasonable doubt. Id. We will not reverse unless no reasonable trier of
fact could find guilt beyond a reasonable doubt. United States v. Farley, 607 F.3d
1294, 1333 (11th Cir. 2010). A verdict will be sustained where there is a
reasonable basis in the record for it. Id.
Under 18 U.S.C. § 2252(a)(2), it is unlawful to knowingly distribute a visual
depiction that has traveled by any means in or affecting interstate commerce,
including by computer, if the producing of the visual depiction involved the use of
a minor engaged in sexually explicit conduct and the visual depiction is of such
conduct. 18 U.S.C. § 2252(a)(2). Likewise, § 2252A(a)(2) prohibits knowingly
receiving or distributing any child pornography or material containing child
pornography that has been mailed or used in interstate commerce, including by
computer. 18 U.S.C. § 2252A(a)(2).

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In United States v. Grzybowicz, we vacated a conviction for distributing
child pornography under § 2252A(a)(2), where the defendant sent pictures of child
pornography to his own e-mail address. 747 F.3d 1296, 1309 (11th Cir. 2014).
We noted that “[t]he word ‘distribute’ ordinarily means to deliver, give out,
dispense, or disperse to others” and that peer-to-peer networks are one method of
distributing files over the internet. Id. at 1307-08. We also noted that five other
circuits have unanimously concluded that a defendant distributes child
pornography when he transfers it to another person or makes it accessible through
a file-sharing website or peer-to-peer network. Id. at 1308-09. However, because
Grzybowicz did not share the child pornography in question with anyone else or
“put them where they could be shared without any further action on his part,” we
held that the distribution element of § 2252A(a)(2) had not been met. Id. at 130910. We specifically noted that there was no evidence that he uploaded images to a
file-sharing website or that images on his computer were accessible to other users
of the file-sharing website. Id. at 1309.
“The term ‘knowingly’ means that the act was performed voluntarily and
intentionally, and not because of a mistake or accident.” United States v.
Woodruff, 296 F.3d 1041, 1047 (11th Cir. 2002). Proof of an element of a crime
may be established through circumstantial evidence or from inferences drawn from
the conduct of an individual. See United States v. Utter, 97 F.3d 509, 512 (11th
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Cir. 1996); see also United States v. Pruitt, 638 F.3d 763, 766 (11th Cir. 2011)
(stating that evidence that a person has searched for child pornography on the
internet and has a computer containing child-pornography images can count as
circumstantial evidence that a person has knowingly received child pornography).
The district court did not err by determining that Johnson knowingly
distributed child pornography when he made files available to other users on a
peer-to-peer file-sharing program and a law enforcement officer downloaded the
files. See Grzybowicz, 747 F.3d at 1309. Testimony shows that he understood
how the file sharing program worked and that by keeping files in his shared folder,
without disabling sharing, allowed others to access and download the files.
Johnson had in fact disabled sharing on three files. The fact that the agent used a
law enforcement version of the file sharing program is of no matter because the
Government only needed to prove that Johnson made the files accessible, and, as
the district court found, the Government would have been able to download the
same images even if it had used the commercial version of the file sharing
program. The district court found that it did and Johnson has not undermined the
district court’s finding. Accordingly, we affirm.
AFFIRMED.

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