USA v. Earl Leet

Filing

UNPUBLISHED OPINION FILED. [10-30162 Affirmed] Judge: JLW , Judge: ECP , Judge: PRO. Mandate pull date is 12/10/2010 for Appellant Earl Henry Leet [10-30162]

USA v. Earl Leet

Case: 10-30162 Document: 00511299599 Page: 1 Date Filed: 11/19/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-30162 S u m m a r y Calendar November 19, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. E A R L HENRY LEET, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Middle District of Louisiana U S D C No. 3:06-CR-181-1

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* D e fe n d a n t -A p p e lla n t Earl Henry Leet appeals his conviction, following a j u r y trial, of one count of possession of child pornography, in violation of 18 U .S .C . § 2252(a)(4)(B). He challenges the sufficiency of the trial evidence to s u p p o r t his conviction. As Leet moved for a judgment of acquittal at the close o f the government's case and again at the close of all the evidence, we review his c la im s de novo. United States v. Percel, 553 F.3d 903, 910 (5th Cir. 2008), cert. d e n ie d , 129 S. Ct. 2065 and 2067 (2009). Thus, we "view[] the evidence in the
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Case: 10-30162 Document: 00511299599 Page: 2 Date Filed: 11/19/2010 No. 10-30162 lig h t most favorable to the verdict and draw[] all reasonable inferences from the e v id e n c e to support the verdict." Id. "[I]f a reasonable trier of fact could

c o n c lu d e [that] the elements of the offense were established beyond a reasonable d o u b t ," we must affirm. Id. A lth o u g h Leet acknowledges that images depicting minors engaging in s e x u a lly explicit conduct were found on the hard drive of his Gateway computer, h e disputes the government's case against him in all other respects. He does not a r g u e that the images at issue were placed on his computer's hard drive as a r e s u lt of a third person having remotely accessed his computer; indeed, the trial e v id e n c e demonstrated that the images of child pornography were not remotely d o w n lo a d e d to Leet's computer. Instead, Leet relies heavily on the access that o t h e r individuals had to his computer. Although his computer was accessed t w ic e by a technician a Gateway store (where he had taken the computer on S e p t e m b e r 4, 2001, for repair work), there was no evidence that Leet's computer w a s connected to the Internet or any external devices at those times. The same t e c h n ic ia n testified that he was the only person at the Gateway store to work on L e e t 's computer. Additionally, trial testimony established that Leet's computer w a s seized and placed in the FBI evidence control room on September 20, 2001, a n d that it was discovered two years later without a chain of custody document a t t a c h e d to it. Leet contends that there was no evidence of who had access to the c o m p u te r or what was done with it for those two years. FBI agents testified, h o w e v e r , that Leet's computer was in the FBI evidence room during that twoy e a r period and that the FBI's work following the September 11, 2001 attacks w a s devoted to terrorism matters, not child pornography matters. Moreover, L e e t 's reliance on the access of other individuals to his computer after he d e liv e r e d it to the Gateway store is undermined by the undisputed evidence that c h ild pornography images were both created and accessed on his computer prior t o September 4, 2001.

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Case: 10-30162 Document: 00511299599 Page: 3 Date Filed: 11/19/2010 No. 10-30162 L e e t also relies heavily on the access that other persons had to his c o m p u te r prior to the time he brought it to the Gateway store. The trial

e v id e n c e , however, supports the jury's finding that Leet, not any third person, d o w n lo a d e d the images onto his computer. For instance, an examination of the c o m p u te r revealed that the e-mails associated with user names other than "Earl" w e r e dated prior to February 28, 2000 (i.e., prior to the date on which the first im a g e s of child pornography were created on Leet's computer), with the e x c e p t io n of one e-mail dated March 2000. On the other hand, e-mails linked to t h e user "Earl" were dated from approximately 1999 to August or September 2001. A d d it io n a lly , a FBI agent testified that during his interview with Leet, L e e t stated that he had accessed via the Internet an adult pornography website c a l l e d "lovetop.com," which then took him to another website called " y o u n g lo lit a ," from which he downloaded images of child pornography. Favorites fou n d on Leet's computer included "lo-li-ta.url," "Love Top-random free porno sex p h o to s here.url," and "underage lolitas video.url." Similarly, two of the images in t r o d u c e d at trial displayed "www.lo-li-ta.com" at the bottom. The jury also could have inferred that Leet accessed child pornography file s shortly before he brought his computer into the Gateway store for repair. According to a FBI agent who examined Leet's computer, a user (or users) of L e e t 's computer visited karaoke, Lolita, and other websites and accessed child p o r n o g r a p h y files, as well as images of emblems and insignia depicting fir e fig h te r s , all on August 29, 2001. The favorite for a locksmith website also w a s updated on that date. The examination also indicated that the user "Earl" h a d sent e-mails indicating that he had a new karaoke and DJ business, that the u s e r "Earl" had contacted a locksmith supply company website, and that a Q u ic k B o o k s program had been created for Leet's Locksmithing. Additionally, L e e t had told a FBI agent that he was a volunteer fireman.

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Case: 10-30162 Document: 00511299599 Page: 4 Date Filed: 11/19/2010 No. 10-30162 F in a lly , at the time of Leet's arrest in 2006, a FBI agent overheard Leet t e ll his mother that several years ago he had visited some adult pornographic w e b s it e s that he probably should not have visited; that, as a result, there were s o m e pictures of kids on his computer; and that it was wrong, and he should not h a v e done it. Although, as Leet contends, he did not specifically tell his mother t h a t he had downloaded images of child pornography after having visited adult p o r n o g r a p h y websites, the jury could reasonably construe Leet's statement as r e fe r r in g to the downloaded images of child pornography that were discovered o n his computer that had been seized several years earlier. B e c a u s e the evidence was sufficient to support Leet's conviction for p o s s e s s io n of child pornography, see Percel, 553 F.3d at 910, the judgment of the d is t r ic t court is AFFIRMED.

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