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United States v. Busby

United States District Court, N.D. California, Oakland Division

March 20, 2014

DAVID BUSBY, Defendant.



On September 19, 2013, a jury found Defendant David Busby guilty of having violated 18 U.S.C. § 2252(a)(4)(B) and (b)(2)-Possession of and Access with the Intent to View Child Pornography. The parties are presently before the Court on Defendant's Motion for Judgment of Acquittal. Dkt. 143. Having read and considered the papers filed in connection with this matter and being fully informed, the Court hereby DENIES the motion for the reasons set forth below.



Defendant is a former sex offender, who, during the relevant time period, was employed by the Lawrence Berkeley National Laboratory ("LBL") at its site located in Oakland, California. On April 20, 2010, an off-site cyber security contractor monitoring Internet activity at LBL noticed an unusual amount of Internet traffic to domain names ending, preceded by suspicious entries such as "tinymodel, " "young-angels, " "party-models, " "newstar-bambi, " and "skygirls." LBL's server also was being used to access BitTorrent files with names such as "Taboo-Incest-Father-And-Daughter-Have-Sex-But-Busted-By-Moms-Hidden-Camera-Pthc-Porn-2007-incest" and "Pthc-Russia10Yo-11Yo-Little-Brother-And-Sister-2BoyGirls-Fucking-Just-Posing-Or-Naked-Pthc-R."[1] The contractor traced these queries to a computer assigned to Defendant.

Later in the day on April 20, 2010, LBL's Director of Security contacted the University of California Police Department ("UCPD") to report that an employee was visiting websites that potentially host child pornography. Law enforcement officials eventually seized Defendant's workplace computers and found evidence of child pornography. During the course of the ensuing criminal investigation, Defendant admitted to federal Department of Energy ("DOE") agents that he downloaded and viewed child pornography on his work computer and that they would likely find child pornography on the cache files on his computers. Defendant admitted to visiting child pornography websites, downloading images of child pornography, placing them in an untitled file, and then later deleting the images from his work computers.


On March 31, 2011, Defendant was indicted on one count of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). Dkt. 1. The Superseding Indictment, filed July 9, 2013, charges that "[f]rom a time unknown... to on or about April 20, 2010, ... DAVID BUSBY did knowingly possess and knowingly access with the intent to view at least one matter which contained a visual depiction [of child pornography]... in violation of Title 18, United States Code, Section 2252(a)(4)(B) and (b)(2)." Superseding Indictment at 1, Dkt. 114.

The matter was tried to a jury, which, on September 19, 2013, unanimously found the Defendant guilty as charged. Dkt. 135. Thereafter, Defendant timely filed the instant motion for judgment of acquittal, pursuant to Federal Rule of Criminal Procedure 29. Dkt. 143. Defendant contends that the government failed to prove that: (1) the pornographic images were "shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce"; and (2) he "knowingly possessed or knowingly accessed with intent to view matters that he knew contained visual depictions of minors engaged in sexually explicit conduct." Mot. at 6, 8 (alterations omitted). The government and Defendant timely filed an opposition and reply, respectively, in connection with the motion. Dkt. 144, 145. The motion is fully briefed and is ripe for adjudication.


Under Federal Rule of Criminal Procedure 29, a defendant may file a motion for a judgment of acquittal after a jury verdict. A Rule 29 motion challenges the sufficiency of evidence. "In ruling on a Rule 29 motion, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" United States v. Alarcon-Simi , 300 F.3d 1172, 1176 (9th Cir. 2002) (quoting United States v. Bahena-Cardenas , 70 F.3d 1071, 1072-73 (9th Cir. 1995)). "[I]t is not the district court's function to determine witness credibility when ruling on a Rule 29 motion." Id.



Section 2252(a)(4)(B), as amended in 2007 by the Enhancing the Effective Prosecution of Child Pornography Act of 2007 ("2007 Act"), enacted October 8, 2008, Pub. L. No. 110-358, 122 Stat. 4001 ...

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