Appeal from the United States District Court for the Western District of Wisconsin. No. 00 CR 61--Barbara B. Crabb, Chief Judge.
Before Bauer, Harlington Wood, Jr. and Manion, Circuit Judges.
The opinion of the court was delivered by: Bauer, Circuit Judge
A jury convicted David Daniel Anderson of possessing images of child pornography on a computer hard drive that had been transported in interstate commerce. He appeals the sufficiency of the indictment. For the reasons set forth below, we find the indictment sufficient to uphold Anderson's conviction and sentence.
On November 8, 1998, in the course of an investigation regarding the internet transmission of child pornography, customs agents searched the home of David Anderson and seized his computer, storage disks and other items. The agents discovered several images of child pornography on Anderson's computer hard drive. Anderson voluntarily informed the agents that he possessed up to 1,000 images of child pornography, that he sent and received these images over the internet and that he stored most of his pornographic material on his F drive. Anderson also told the agents that he knew it was illegal to possess child pornography.
On July 19, 2000, a federal grand jury returned a two-count indictment against Anderson. Count One charged Anderson with possession of child pornography in violation of 18 U.S.C. sec. 2252A(a)(5)(B). In particular, the indictment stated:
That on or about November 10, 1998, within the Western District of Wisconsin, the defendant David Daniel Anderson, a/k/a "whisper," a/k/a "nightwatchman@ usa.net," did knowingly possess a material, that is a computer hard drive, that contained one or more images of child pornography, as that term is defined by Title 18, United States Code, Section 2556(8), that hard drive having been previously shipped and transported in interstate commerce and which was produced using materials which had been shipped and transported in interstate or foreign commerce.
Count Two of the indictment charged Anderson with forfeiture of the computer equipment and storage media used to possess child pornography, pursuant to 18 U.S.C. sec. 2253.
In November of 2000, Anderson was tried by a jury. At trial, a customer service representative for Western Digital testified for the government that the Western Digital hard drive found in Anderson's computer was previously trans ported in interstate commerce since it was manufactured in Malaysia and later refurbished in Singapore before it was shipped to the United States. The government also introduced considerable evidence that Anderson had downloaded or copied numerous child pornography images using his hard drive. Anderson also testified that he often downloaded sexually explicit pictures, saving them to his computer hard drive.
At the close of the evidence, the court instructed the jury, among other things, that to sustain the charge of possession of images of child pornography on a computer hard drive, the government must prove:
(1) That on or about the date charged in Count One, the defendant possessed a computer hard drive which contained images of child pornography; (2) the defendant knew there were images of child pornography on his computer hard drive; and (3) the defendant's computer hard drive had previously been transported in interstate commerce or had been produced using materials that had been shipped or transported in interstate or foreign commerce.
Anderson did not object to the jury instructions concerning the elements of the charge. He was convicted and subsequently sentenced to 60 months imprisonment followed by 3 years of supervised release. Anderson made no post-verdict motion for ...