USA v. David Oufnac

Filing

OPINION filed : this Court AFFIRMS the district court order denying defendant's motion for judgment of acquittal, decision not for publication pursuant to local rule 206. Gilbert S. Merritt, Danny J. Boggs and Eric L. Clay (authoring), Circuit Judges.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0808n.06
No. 10-1589
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED

Dec 02, 2011
LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN

DAVID JOSEPH OUFNAC,
Defendant-Appellant.
/

BEFORE:

MERRITT, BOGGS, and CLAY, Circuit Judges.

CLAY, Circuit Judge. Defendant David Joseph Oufnac appeals from a district court order
denying his Federal Rule of Criminal Procedure 29 motion for judgment of acquittal following his
jury conviction for one count of knowingly possessing child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B). For the reasons that follow, we AFFIRM.
BACKGROUND
In 2002, Defendant met Jami Gucwa McKichan (“McKichan”) online. Defendant, who lived
in New Orleans, and McKichan, who lived in Bad Axe, Michigan with her young daughter, began
dating. In February 2005, McKichan moved with her daughter to New Orleans and began living with
Defendant. McKichan noticed that Defendant would spend at least four hours a day on the computer
when he was not working. When asked what he was doing, Defendant said that it was none of her
business.

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Sometime between February and August 2005, McKichan found an image of child
pornography on Defendant’s computer.1 McKichan testified that “the computer had just one user
account, and the picture was located in a folder labeled ‘pictures,’ which also contained pictures of
[McKichan’s] daughter.” McKichan confronted Defendant about the image, but he stated that “he
was holding that picture for evidence in another case against someone else.” McKichan requested
that Defendant remove the picture. He said he deleted the image, but McKichan never checked the
computer to confirm that it was deleted.
In August 2005, Defendant, McKichan, and McKichan’s daughter moved to Michigan, where
they again lived together. Defendant brought his computer and set up three separate user
accounts—one for himself, one for McKichan, and one for her daughter. The computer was placed
in the master bedroom. Defendant began password-protecting his account, but eventually told
McKichan his password. McKichan’s brother, John Gucwa, and Gucwa’s young daughter would
also use the computer when they stopped by to visit.
After the move to Michigan, McKichan’s and Defendant’s work schedules were different,
so they did not see each other often. Even when they did, Defendant was usually on the computer.
McKichan again brought up the lengthy computer usage time with Defendant and asked what he was
doing, and he again stated that it was none of her business.
In October 2007, McKichan found images of child pornography for the second time. These
pictures included the image of Asian children that she had seen before, which Defendant had

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The image depicted Asian adults and children, younger than ten years old, engaging in
sexual conduct and contact.
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allegedly deleted, and “several pornographic cartoons of young children.” These were located in the
computer, in Defendant’s password-protected user account, under the folder labeled “pictures.”
McKichan confronted Defendant about the images, but “[h]e laughed at her and told her it wasn’t
[her] business.” Then, she “asked him if that really helped him get off[,] . . . he said yes.”
McKichan investigated Defendant’s internet history and found that he frequently viewed a
site called “daddyincest.com,” in addition to other sites. The search term history included phrases
such as “y + girl + 6 years + blowing + father.” She asked Defendant about this internet activity, and
again he told her that it was none of her business. McKichan also found an unlabeled CD with “files
and files and files and files of child pornography.” After confronting Defendant, he agreed to destroy
it. Defendant showed her a broken CD in the trash and alleged that it was that CD.
McKichan ended the relationship with Defendant, but she continued to live with him.
Defendant changed his user account password so that McKichan could no longer access his account,
but he sometimes forgot to log off and his account remained open for use by anyone. McKichan
could access the account at these times, as could her daughter, brother, and niece, because they used
whatever account was left open. John Gucwa, testifying for the defense, stated that he never viewed
child pornography on Defendant’s computer.
In June 2008, McKichan began dating Jeff Gillig, who was a Michigan child protective
services worker. She informed Gillig about the child pornography on Defendant’s computer. Gillig
reported it to the Department of Health and Human Services and encouraged McKichan to report it
to the police, which she did.

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McKichan met with Bad Axe City Police Department Detective Kevin Knoblock. Detective
Knoblock interviewed her and her daughter, obtained a search warrant, and went to Defendant’s
apartment along with Police Lieutenant David Rothe and another officer. The officers gained a key
to the apartment, knocked and announced themselves, and entered when there was no response.
Defendant was on his way to the door when the officers entered. The officers explained their
purpose and showed their search warrant, and Defendant let out a sigh. He was read his Miranda
rights and questioned.
Detective Knoblock asked Defendant whether there were images of child pornography in his
computer. Defendant first responded that “there might be,” but after the question was repeated, he
admitted that there were such images. Defendant also admitted that he owned the computer.
Detective Knoblock asked when Defendant had last viewed child pornography, to which Defendant
replied “a couple of days ago.” Defendant then qualified his statement by alleging that the pictures
were fake. Defendant requested an attorney, and questioning stopped. Later, however, Defendant
expressed to the officers that he was upset that McKichan had reported the pornography to the police.
He stated that she knew about the pornography on the computer and on a CD. He also acknowledged
that a New Orleans acquaintance of his knew about the child pornography on his computer.2
The officers searched Defendant’s apartment and confiscated the computer, over ninety CDs
and DVDs, and a disposable camera. Two CDs were labeled with the title “Baby Face.” Later, the
computer and CDs underwent a forensic examination, which revealed about ninety pictures and five

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Defendant’s computer was previously confiscated in Louisiana for suspicion of
possessing child pornography, but it was later returned to him. Defendant was not charged.
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videos of child pornography. These images and videos were found in Defendant’s passwordprotected user account, in the “My Documents” folder, and an “adult writing” subfolder. Their
creation dates were July 2006, December 2007, and early 2008. The “Baby Face” CDs were created
in 1999 and contained over one thousand images of child pornography (some of which were the
same images as those on the computer). Some of the titles of the images in these CDs had names
that identified that they were child pornography. There was no internet history or search term history
showing visits to child pornography websites. No fingerprinting or handwriting analysis was
performed on the media seized.
On March 25, 2009, a federal grand jury indicted Defendant on one count of knowing
possession of child pornography shipped or transported interstate, in violation of 18 U.S.C. §
2252A(a)(5)(B), and one count of criminal forfeiture of property used to promote the commission
of the offense, in violation of 18 U.S.C. § 2253(a).
The government presented the testimony of four witnesses—Detective Knoblock, Detective
Brian Pitt, Police Lieutenant David Rothe, and McKichan—and offered thirty-six exhibits into
evidence. Defendant offered four witnesses—Joseph Chauvin, Jeff Gillig, John Gucwa, Jr., and
Detective Knoblock (again)—and offered three exhibits. Defendant did not testify.
On January 13, 2010, the jury convicted Defendant of knowing possession of child
pornography. Defendant moved for a judgment of acquittal under Federal Rule of Criminal
Procedure 29. The district court orally denied the motion and entered Defendant’s conviction.
Defendant timely appealed.

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DISCUSSION
This Court reviews de novo a district court’s denial of a motion for a judgment of acquittal
for insufficient evidence.3 United States v. Graham, 622 F.3d 445, 448 (6th Cir. 2010). “[A]
defendant claiming insufficiency of the evidence bears a very heavy burden.” United States v.
Abboud, 438 F.3d 554, 589 (6th Cir. 2006) (quoting United States v. Vannerson, 786 F.2d 221, 225
(6th Cir. 1986)) (internal quotation marks omitted). “The relevant question in assessing a challenge
to the sufficiency of the evidence is whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United States v. McAuliffe, 490 F.3d 526, 537
(6th Cir. 2007). The Court “reviews the evidence in a light most favorable to the prosecution, giving
the prosecution the benefit of all reasonable inferences from the testimony.” Id.; United States v.
Campbell, 549 F.3d 364, 374 (6th Cir. 2008).
A.

Section 2252A(a)(5)(B)

Section 2252A of Title 18 of the United States Code punishes knowing possession of child
pornography. The statute provides, in relevant part:
Any person who . . . knowingly possesses, or knowingly accesses with intent to view,
any book, magazine, periodical, film, videotape, computer disk, or any other material
that contains an image of child pornography that has been mailed, or shipped or
transported using any means or facility of interstate or foreign commerce or in or
affecting interstate or foreign commerce by any means, including by computer, or
that was produced using materials that have been mailed, or shipped or transported
in or affecting interstate or foreign commerce by any means, including by computer
. . . shall be punished . . . .

3

Under Rule 29, the trial court “must enter a judgment of acquittal of any offense for
which the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a).
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18 U.S.C. § 2252A(a)(5)(B). The government thus has the burden to prove Defendant’s (1) knowing
possession, (2) of an image of child pornography, (3) that has been transported interstate.
At trial, Defendant stipulated that his computer hard drive and several CDs contained images
of child pornography and that the images were shipped and transported interstate. The only disputed
issue is whether Defendant “knowingly possessed” the child pornography.
B.

Sufficiency of the Evidence

Defendant’s primary challenge to his conviction is that the evidence cannot be sufficient to
prove that he, and not others, knowingly possessed the child pornography images found on his
computer and the CDs. Specifically, he argues that there were at least four other people who had
access to his computer user account at some point—McKichan, her young daughter, her brother, and
her young niece.
The Tenth Circuit has examined a similar argument where a defendant was charged with
knowing possession of child pornography images found on his computer. See United States v.
Schene, 543 F.3d 627 (10th Cir. 2008). The defendant argued that he and his wife both had access
to the computer and that images were found under both of their user accounts, so the government
could not prove that he, and not his wife, knowingly possessed the images. Id. at 639. The court
found that the “collection of evidence” viewed in toto could show that the defendant, and not his
wife, was the possessor. Id. at 640. Because there was evidence that the images were downloaded
from defendant’s online username, the evidence taken as a whole showed which of the users was the
possessor of child pornography. Id. The mere fact that there were two people with access to the

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computer and that the images were in both of their user accounts did not preclude the government
from proving beyond a reasonable doubt that defendant was guilty. See id.
We agree that the presence of multiple computer users does not preclude a finding that only
one of the computer users knowingly possessed the child pornography computer images. In this
case, there was ample other evidence for the jury to conclude that Defendant, and not the other
computer users, placed the images on the computer and CDs. First and most importantly, Defendant
admitted to both Detective Knoblock and McKichan that he owned and recently viewed child
pornography. Second, the images were all located in his personal “My Documents” file within
Defendant’s password-protected user account on his computer. Third, there were over a thousand
images on his computer and CDs, making it unlikely that he could have overlooked their existence.
Finally, the images and videos were labeled in a way that acknowledge their nature as child
pornography. This evidence is discussed below, in turn.
1.

Defendant’s Admissions

The Sixth Circuit and the Eleventh Circuit have examined convictions for knowing
possession of child pornography and have found that admission of guilt is sufficient evidence to
sustain the convictions. United States v. Mellies, 329 F. App’x 592, 607 (6th Cir. 2009); United
States v. Shiver, 305 F. App’x 640, 643 (11th Cir. 2008). In Mellies, this Court found that an indirect
admission of guilt was strong evidence of guilt. 329 F. App’x at 607. In Shiver, the defendant
admitted to police that he once possessed a small amount of child pornography but had gotten rid
of it, and the court found that this was substantial evidence of his guilt. 305 F. App’x at 643.

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Here, the government offered uncontroverted testimony that Defendant freely and directly
admitted to Detective Knoblock that he had child pornography on his computer and had viewed it
within the last few days, although he later qualified his admission by stating that the pictures were
fake. There was testimony that, when McKichan confronted Defendant about finding images of real
child pornography on his computer and on a CD, he admitted that seeing the images aroused him.
Other times where McKichan confronted Defendant with owning “child pornography” or “kiddie
porn,” he stated that it was none of her business or agreed to destroy the images. A jury could infer
that the statements to McKichan were an implicit admission of Defendant’s possession of child
pornography, since he did not deny having it when confronted and he exercised control over it.
Thus, Defendant explicitly and implicitly confessed to two individuals that he knowingly possessed
child pornography.
2.

Image Location and Number of Images

Where images of child pornography exist on one’s personal computer or in one’s personal
files, the jury may infer that the individual knowingly possessed the images. Moreover, the sheer
number of images in a personal computer may be enough to imply that the computer owner knew
of the existence of the images. In Mellies, we concluded that the fact that the defendant was the
primary user of his computer, which contained thousands of child pornography images, was enough
to sustain his conviction for possession of child pornography. Mellies, 329 F. App’x at 607.
Decisions of our sister circuits have also upheld convictions of possession of child pornography
where the images were located in the defendant’s personal files within a computer or where there
were a significant number of images. See United States v. Burgess, 576 F.3d 1078, 1100–01 (10th

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Cir. 2009) (thousands of images on hard drive, including in files that contained defendant’s other
documents); Schene, 543 F.3d at 639–40 (10th Cir. 2008) (defendant and his wife both had access
to computer, though most images were saved in defendant’s user account and his files); United
States v. Irving, 452 F.3d 110, 122 (2d Cir. 2006) (defendant had seventy-six images in his
computer, located in his “My Documents” file).
Officers found ninety-six images and videos in Defendant’s home computer, in the “My
Documents” folder of his password-protected user account. A reasonable juror could conclude that
the location of the images in Defendant’s personal files and the number of images make it likely that
he either saved them there himself or at least knew of and permitted their continued existence.
Furthermore, over one thousand images of child pornography were located on Defendant’s CDs. The
CDs were created before the other four individuals even knew Defendant. The sheer number of
images on Defendant’s CDs and their creation dates support Defendant’s conviction for child
pornography possession.
3.

Image Titles Suggesting Nature of their Contents

Where the labels or titles of images suggest their nature as child pornography, the jury may
infer that an individual who possessed those images did so knowingly. United States v. Payne, 341
F.3d 393, 403–04 (5th Cir. 2003) (image titles plus admission of viewing images were sufficient
evidence to uphold conviction for knowing possession of child pornography). The titles of many of
the images in Defendant’s computer and on his CDs, such as “Babyface,” “LilSis06,” “1-06 facial,”

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and “youngfuck,” contained words indicating that they contained child pornography.4 The images’
titles support the inference that Defendant knew that the images in his possession were child
pornography.
4.

The Collection of Evidence Supports Defendant’s Conviction

In sum, Defendant admitted to a detective that his computer contained fake child
pornography and that he recently viewed it. He admitted possessing real child pornography to
McKichan. Images of real child pornography were located in Defendant’s computer, in his
password-protected account, in his personal files. Thousands of images were also contained within
Defendant’s CDs. The titles of the images indicated that they were child pornography. Although
other individuals may have had access to Defendant’s computer at times, the evidence of
Defendant’s guilt is overwhelming and thus is clearly sufficient for any rational trier of fact to have
found, beyond a reasonable doubt, that Defendant knowingly possessed child pornography.
C.

Witness Credibility

Defendant also claims that there was insufficient evidence to convict him, because McKichan
was not a credible witness.
It is well settled that a defendant may not appeal his conviction for insufficiency of the
evidence based on a witness’s lack of credibility. “We may not rule on a challenge to witness
credibility in reviewing the denial of a motion for acquittal because doing so ‘would invade the
province of the jury as the sole finder of fact in a jury trial.’” Graham, 622 F.3d at 449 (quoting

4

McKichan also testified that Defendant’s internet search history revealed search terms
or websites including “DaddyIncest,” “04FuckDaddy,” “Aim at the Target Daddy,” “Fuck me
Grandad,” “Boy Mom,” and “y + girl + 6 years + blowing + father.”
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United States v. Bearden, 274 F.3d 1031, 1039 (6th Cir. 2001)). Furthermore, “[a] defendant’s
attempt to attack witness credibility ‘simpl[y] challenges . . . the quality of the government’s
evidence and not the sufficiency of the evidence.’” Id. (quoting United States v. Paige, 470 F.3d 603,
608 (6th Cir. 2006)).
Because Defendant challenges McKichan’s testimony for lack of credibility, which this court
may not review, Defendant cannot succeed on his sufficiency-of-the-evidence claim on this basis.
CONCLUSION
For the reasons discussed above, this Court AFFIRMS the district court order denying
Defendant’s motion for judgment of acquittal.

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