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United States of America v. Nicholas M. Skvarla

August 10, 2012

UNITED STATES OF AMERICA,
v.
NICHOLAS M. SKVARLA, DEFENDANT.



The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge

DECISION AND ORDER

The defendant, Nicholas M. Skvarla, waived his right to a jury trial and agreed to be tried on stipulated facts on four counts of receipt and possession of child pornography in violation of 18 U.S.C. § 2252A (2006). Defendant Skvarla has moved at the close of the United States' case for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure on the ground that evidence during his bench trial does not prove the commerce-based jurisdictional elements of the offenses. Fed. R. Crim. P. 29(a).

Defendant Skvarla contends the Court must enter a judgment of acquittal on all four counts of receipt and possession of child pornography with which he is charged in a Superseding Indictment on the theory that a pre-October-2008 version of § 2252A, which applies to his charges, requires evidence that he downloaded pornographic visual depictions to his computer from an out-of-state location, and there is no such evidence. The United States contends it has met its burden of proof on the jurisdictional element because the stipulated evidence establishes that the original substantive content of the pornographic visual depictions copied onto the hard drive of the defendant's computer was produced outside New York State. For Count 4 of the Superseding Indictment, which is the sole possession count, the United States contends proof the defendant produced pornographic visual depictions on his computer with a foreign-manufactured hard drive satisfies an alternative prong of the jurisdictional element.

For the reasons discussed below, the Court finds evidence that defendant Skvarla downloaded or copied files from any country or state onto his foreign-manufactured hard drive satisfies beyond a reasonable doubt the materials-in-commerce jurisdictional element of the possession violation of 18 U.S.C. § 2252A(a)(5)(B) alleged in Count 4 of the Superseding Indictment. See United States v. Ramos, No. 10-4802-CR, 2012 WL 2520915, at *9-10 (2d Cir. July 2, 2012). The Court further finds evidence the defendant received or possessed visual depictions of child pornography originally created inanother country or state is sufficient to permit a rational trier of fact to find by the standard of beyond a reasonable doubt the visual depictions "ha[ve] been mailed, or shipped or transported ininterstate or foreign commerce by any means . . . " as required by the traveled-in-commerce element of 18 U.S.C. §§ 2252A(a)(2)(A) and (a)(5)(B). The defendant's motion for a judgment of acquittal is therefore denied as to all counts in the Superseding Indictment.

BACKGROUND

During the bench trial of this case, the parties entered into evidence a stipulation of facts and law and defendant Skvarla supplemented the admissions and his reservations of rights in the stipulation during questioning under oath by the Court. Dkt. No. 65. Monroe County Sheriffs executed a search warrant for defendant Skvarla's residence located in New York State on September 11, 2008, and seized computer equipment containing child pornography. The defendant also submitted to a videotaped interview at the Monroe County Sheriffs Office and admitted using peer-to-peer file-sharing software to find images of child pornography that he downloaded to his computer.

Among the items seized during execution of the search warrant at defendant Skvarla's residence was a computer hard drive containing image and video files. The hard drive was a Western Digital 120-gigabyte hard drive, serial number WMAL94609838, manufactured in Malaysia.

The Malaysian-manufactured computer hard drive seized from defendant Skvarla's residence in New York on September 8, 2008 contained more than three pornographic images and videos of a minor female from what is known as the "Jenny" series of images of child pornography. The "Jenny" series, so-called to protect the true identity of the person depicted in the images and videos, were all produced in Michigan.

Defendant Skvarla admitted during his non-jury trial on February 15, 2012 more than three images and videos stored on his Malaysian-manufactured hard drive were from the "Jenny" series and were identical copies of images originally produced in Michigan. He admitted he knew they were child pornography.

Computer equipment seized from defendant Skvarla's residence on September 11, 2008 was further examined. The defendant admitted during his non-jury trial that he received an identical copy of a video from the "blue shirt girl" series of child pornography originally produced in France and that he received it from an unknown source using an internet connection and a peer-to-peer file-sharing program on his computer. The defendant admitted he knew the video was child pornography when he received it.

Defendant Skvarla admitted during his non-jury trial that he received an identical copy of an image from the "Paraguay" series of images originally produced in Paraguay and that he received it from an unknown source using an internet connection and a peer-to-peer file-sharing program on his computer. The defendant admitted that he knew the video was child pornography and that he received it knowing it was child pornography.

Defendant Skvarla admitted that he received an identical copy of an image from the "Sabban" series of images originally produced in Brazil and that he received it from an unknown source using an internet connection and a peer-to-peer file-sharing program on his computer. The defendant admits he knew the video was child pornography and that he received the video knowing it was child pornography.

DISCUSSION

The Court must deny defendant Skvarla's Rule 29 motion for a judgment of acquittal if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Pierce, 224 F.3d 158, 164 (2d Cir. 2000) (emphasis in original; internal quotation marks omitted). The standard imposes a "heavy burden" upon a defendant. United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003). The standard is the same for jury trials and bench trials alike. See McCarthy v. N.Y. City Tech. College, 202 F.3d 161,167 (2d Cir. 2000) (quoted with approval, United States v. Pierce, 224 F.3d 158, 164 (2d Cir. 2000)). In making its determination, the Court is to draw all permissible inferences in favor of the United States. United States v. Desinor, 525 F.3d 193, 203 (2d Cir. 2008). In the end, the Rule 29 motion must be denied if the Court concludes that the evidence and the reasonable inferences to ...


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