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Revised December 1, 2000
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UNITED STATES COURT OF APPEALS
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For the Fifth Circuit
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No. 99-60819
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UNITED STATES OF AMERICA,
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Plaintiff-Appellee,
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VERSUS
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BART HENRIQUES,
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Defendant-Appellant.
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Appeal from the United States District Court
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for the Southern District of Mississippi
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November 27, 2000
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Before DAVIS, EMILIO M. GARZA, Circuit Judges, and POGUE*
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DONALD C. POGUE, JUDGE:
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Defendant-appellant Bart Henriques ("Henriques") appeals his
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conviction on one count of possession of child pornography in
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violation of 18 U.S.C. § 2252A(a)(5)(B). The district court
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sentenced Henriques to 42 months imprisonment, followed by three
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years of supervised release. Henriques appeals on several
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grounds.1 The outcome of the case turns on one issue: whether the
* Judge for the United States Court of International Trade, sitting by
designation.
1 Henriques claims that the district court improperly denied his motion
to suppress evidence, that the court abused its discretion in finding that
remarks by the prosecutor in the grand jury proceeding at most constituted
harmless error, that the prosecutor withheld evidence favorable to Henriques
in violation of Brady v. Maryland, 373 U.S. 83 (1963), that the statutory
schemes are void for vagueness, and that the evidence was insufficient to

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evidence is sufficient to support a finding that the images were
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transported in interstate commerce. We agree with Henriques that
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the evidence does not support such a finding. We, therefore,
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reverse the conviction.
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FACTS AND PRIOR PROCEEDINGS
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Henriques was indicted and convicted by a jury of one count of
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possession of child pornography in violation of 18 U.S.C. §
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2252A(a)(5)(B).2 It is from this verdict that Henriques filed a
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timely appeal.
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The facts relevant for this appeal are as follows: In
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February 1998, Warren County's Sheriff's Department was contacted
support a verdict of guilty beyond a reasonable doubt.
2 18 U.S.C. § 2252A is entitled "Certain activities relating to material
constituting or containing child pornography," and section 2252A(a)(5)(B)
reads as follows:
(a) Any person who
(5) either
(B) knowingly possesses any book, magazine, periodical,
film, videotape, computer disk, or any other material that
contains 3 or more images of child pornography that has been
mailed, or shipped or transported in 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 interstate or foreign commerce by any means,
including by computer, shall be punished as provided in
subsection (b)
Subsection (b) discusses fines and imprisonment. 18 U.S.C. § 2252A (a)(5)(B)
(1997).
The statute requires a minimum of three images to convict. See Id.
Henriques was convicted under this minimum. His conviction was based on three
images, G-11, G-20, and G-21.
The statute was amended on October 30, 1998. The amended version
substitutes "an image" for "3 or more images." 18 U.S.C. §§ 2252A(a)(5)(B).
This version of the statute gives the defendant an affirmative defense upon a
showing that the defendant possessed fewer than three images. See Id. at (c).
Although the district court refers to the amended version of the statute, we find
that it is not applicable in this case, because the indictment charges Henriques
with violating 18 U.S.C. § 2252A(a)(5)(b) on or about February 23, 1998, before
the statute was amended.
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about a runaway teenage girl named Gabrielle Phillips. The
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Sheriff's Department discovered Phillips at Henriques' apartment.
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In the process of searching for Phillips, the Sheriff's Department
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learned of several other children who visited Henriques' apartment
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and that Henriques often used his computer to view both child and
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adult pornography in the youths' presence. After Phillips' removal
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from Henriques' apartment, Henriques was called into the Office of
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Internal Affairs at the Vicksburg Police Department. There, at the
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Department's request, he voluntarily consented to a search of his
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apartment, putting his consent in writing. The police then
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searched Henriques' apartment during which time Henriques' computer
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was seized and taken into custody.
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In March 1998, FBI Special Agent Jeffrey Artis took the
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computer into FBI custody and transported it for examination by a
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bureau computer expert. At this time, without turning on the
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computer, a "mirror" copy of the computer's hard drive was made.
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Upon review of this copy, several files containing pornography, all
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organized into subdirectories, were found on the computer.
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At trial approximately seventeen images found on Henriques'
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computer were put into evidence. The jury concluded that three
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images, Exhibits G-11, G-20, and G-21, fell within the behavior
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prohibited by 18 U.S.C. § 2252A.3 As a result of the jury's
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finding, Henriques was convicted.
3 See supra note 2.
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Sufficiency of Evidence
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The issue of sufficiency of evidence is a question of law
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which we review de novo. See Aguillard v. McGowan, 207 F.3d 226,
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228 (5th Cir. 2000). Evidence need not "exclude every reasonable
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hypothesis of innocence or be wholly inconsistent with every
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conclusion except that of guilt, provided a reasonable trier of
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fact could find that the evidence establishes guilt beyond a
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reasonable doubt." United States v. Richards, 204 F.3d 177, 206
(5th Cir. 2000)(citing United States v. Bell, 678 F.2d 547, 549 (5th
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Cir. 1982)). We must also view the evidence in the light most
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favorable to the verdict, in this case in favor of the government.
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See United States v. Williams, 132 F.3d 1055, 1059 (5th Cir. 1998).
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The statute mandates that at least three of the images in the
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defendant's possession traveled in interstate commerce. This
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includes any image "that has been mailed, or shipped or transported
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in interstate or foreign commerce by any means, including by
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computer." 18 U.S.C. § 2252A(a)(5)(B)(1997). Transport of the
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goods through interstate commerce is an element of the crime which
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the government must prove to obtain a conviction. Cf. The
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National Stolen Property Act, 18 U.S.C. § 2314 (2000); See United
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States v. Vontsteen, 872 F.2d 626 (5th Cir. 1989)("[T]he government
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directly proved that [the] pipe . . . was shipped from Texas to
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Louisiana, thereby satisfying . . . an element of section 2314.").
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Henriques contends that the government failed to prove this
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element.
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The requirement in 18 U.S.C. § 2252A that child pornography be
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transported in interstate commerce raises two issues. First, to
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what extent must the government prove that the image came from the
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Internet.4 Second, does proof that a picture was downloaded from
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the Internet satisfy the jurisdictional nexus of "interstate
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commerce."
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Although this court has not previously addressed the extent of
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the government's burden in connecting the specific images to the
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Internet, the Tenth Circuit has already developed a test to ensure
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that the government satisfies its burden. The Tenth Circuit
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requires the government to independently link all the images upon
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which a conviction is based to the Internet. See United States v.
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Wilson, 182 F.3d 737, 744 (10th Cir. 1999)(holding evidence linking
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one diskette to interstate commerce was not sufficient to allow an
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inference that the other two diskettes were similarly linked).
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This standard limits the government's ability to build a case on
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inferences, e.g., by analogizing that since one image was
4 Use of the Internet has drastically increased over the past decade.
As of November 1999, the U.S. online population was estimated at 101 million
and continuing to grow. See David Lake, Spotlight: How Big is the U.S. Net
Population, available at <http://www.TheStandard.com>. Not only has the
individual online population grown, but the Internet is now estimated to
connect more than 159 countries. See ACLU v. Johnson, 194 F.3d 1149, 1153
(10th Cir. 1999) The Internet is "wholly insensitive to geographic
distinctions[,]" making it difficult to use the present legal framework to
analyze this modern situation. American Library Assn., et.al. v. Pataki, 969
F. Supp. 160, 164 (S.D.N.Y. 1997).
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downloaded from the Internet, the rest of the images must also be
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connected to the Internet.
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The transport of images through interstate commerce, as an
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element of the crime, must be proved beyond a reasonable doubt.
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Requiring the government to independently link each image to
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interstate commerce is therefore necessary and appropriate in order
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that the government satisfies its burden. If we did not require the
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government to independently link each image to interstate commerce,
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we would allow the government to obtain a conviction without
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proving beyond a reasonable doubt each element of the crime.
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Therefore, we adopt the Tenth Circuit's position.
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In this case, the government presented little evidence
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connecting all the images to the Internet independently. Indeed,
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as to one of the images, the government presented no evidence
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connecting it to the Internet. It is not disputed that the
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evidence supports a finding that Henriques accessed the Internet.
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Nor is it disputed that Henriques' computer contained pornographic
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material. The required jurisdictional nexus between the images and
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interstate commerce, however, was not established.
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The government established that Henriques owned a computer and
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subscribed to an Internet Service Provider ("ISP"). Through this
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service, Henriques was able to access and view images on the
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Internet. His computer also contained pornographic images, which
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were located on his hard drive. These images were stored in
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separate folders on his computer. The evidence clearly supports a
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finding that these folders were consciously created. Also, since
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Henriques owned the computer, the computer was found in his
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apartment, and he was the only adult living in the apartment, the
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jury could reasonably conclude that the evidence establishes that
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Henriques was the individual responsible for the images found on
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the hard drive.
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Despite this evidence, at trial, no evidence was introduced by
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the government to establish whether the images came from a website,
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were downloaded from a floppy disk, or came from some other source,
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such as another hard drive.5 Rather, Agent Artis, in his trial
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testimony, argued that if images of nude children were on the hard
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drive, and that computer was connected to the Internet, somebody
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had to use the Internet to put them there. R. Vol. 4, page 320.6
5 Agent Artis testified that
What we were looking for was child pornography on the
computer there, and that's what we found. Now where it came
from, what site or what name is written underneath the
picture was irrelevant. The fact what we were looking for
was, was that child pornography was on the computer. That's
what we found.
R. Vol. 4, page 338-9.
6 This argument became clear during Henriques' attorney's questioning of
Agent Artis.
Q. And the focus of this investigation is somebody - you
believe, in your investigation, that somebody downloaded off of
the Internet images of nude children and they exist on that hard
drive. Correct?
A. Yes. There was images of children
Q. All right. And in order to get them on the hard drive,
somebody has to utilize what we've previously talked about, an
Internet service provider, and hook onto the Internet - - dial a
phone number through their computer, hook on, and then search and
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In order to prove the connection between the images found on
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Henriques' hard drive and the Internet, the government relied on
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the testimony of one witness and internal evidence on some of the
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images. Witness testimony was introduced to prove that Henriques
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viewed pornographic images on the Internet.7 This testimony,
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however, was only applicable for a few of the images, while the
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government
introduced
approximately
seventeen
images
for
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deliberation by the jury. The attorney for the government also
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argued that the interstate commerce element of the statute was
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satisfied because website addresses were embedded on some of the
images.8
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The government attorney, however, never discussed how the
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connection to the Internet can be made for the photographs with no
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internal evidence or without testimony connecting the images to the
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Internet. Rather, the government attempted to prove the Internet
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connection mainly through inferences. This, however, leaves a gap
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in the evidence.
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Phillips, the girl found at Henriques' apartment, testified
find one of these photos and then download it onto the computer.
Correct?
A. That's correct.
R. Vol. 4, page 320.
7 Phillips identified some of the images as ones she witnessed Henriques
view on the Internet. See infra note 9 and accompanying text.
8 The government attorney argued that "in certain of those photographs
there is internal evidence which suggests that they [the images] are indeed
generated from the Internet." R. Vol. 4, page 488.
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that Henriques used the Internet to view pornographic images in her
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presence. She identified a model in G-11 as one she saw Henriques
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view on the Internet.9 The government relied on Phillips'
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testimony to prove a connection between the images and the
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Internet. Although Phillips' testimony connects one image, G-11,
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to the Internet, her testimony cannot be used to infer that the
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other two images upon which Henriques' conviction is based, were
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also obtained from the Internet.
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Of the other two images, one, G-21, contains a world-wide web
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address embedded on the image. Although, it is possible for this
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"internal evidence" to support a connection to the Internet for G-
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21, the government is still required to independently connect G-20
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to the Internet. The third image, G-20, does not contain internal
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evidence. There was also no testimony introduced to connect this
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specific image to the Internet. Since there is no evidence to
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connect this last image, G-20, to the Internet, we find that there
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is not independent evidence connecting all three images to the
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Internet.10
9 Phillips identified models in three exhibits, G-11, G-13, and G-22.
Of these three images, the jury only held G-11 as meeting the statutory
requirements, making Phillip's identification of the other models irrelevant
for this court's purposes.
10 The failure of the government to meet its burden for all three images,
renders it unnecessary to decide the issue of whether downloading an image
from the Internet satisfies "interstate commerce." It should be noted that
the issue of interstate commerce and the Internet raises competing
considerations, such as, the scope of federal jurisdiction and the global
nature of the Internet. See generally American Library Assn., et. al. v.
Pataki, 969 F. Supp. 170 (S.D.N.Y. 1997); United States v. Carroll; 105 F.
3d 740 (1st Cir. 1997); ACLU v. Johnson, 194 F. 3d 1149 (10th Cir. 1999);
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Although the evidence clearly established Henriques use of the
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Internet, since the government did not attempt to prove the nexus
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to the Internet for the three images independently, Henriques'
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conviction must be reversed.11
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Conclusion
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For the foregoing reasons, Henriques' conviction must be
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overturned.
ACLU v. Reno, 217 F.3d 162 (3rd Cir. 2000).
11 Because we find that the evidence was insufficient to support a
finding of guilty beyond a reasonable doubt, it is unnecessary to consider
Henriques other claims.
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