United States v. Royle

86 F.4th 462

• Court: Court of Appeals for the First Circuit
• Decided: November 14, 2023
• Docket: Case: 20-2143
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 20-2143

UNITED STATES OF AMERICA,

Appellee,

v.

GEORGE ROYLE V,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Joseph N. Laplante, U.S. District Judge]

Before

Barron, Chief Judge, Howard and Thompson, Circuit Judges.

Jonathan G. Mermin, with whom Preti, Flaherty, Beliveau & Pachios, LLP was on brief, for appellant. John M. Pellettieri, Attorney, Appellate Section, Criminal Division, U.S. Department of Justice, with whom Darcie N. McElwee, United States Attorney, Julia M. Lipez, Assistant United States Attorney, Kenneth A. Polite, Jr., Assistant Attorney General, U.S. Department of Justice, and Lisa H. Miller, Acting Deputy Assistant Attorney General, U.S. Department of Justice, were on brief, for appellee. November 14, 2023 HOWARD, Circuit Judge. George Royle V (Royle) appeals

from his conviction by a jury for possession of child pornography,

in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2).

Specifically, he argues that the district court erred in denying

his motion to suppress the derivative fruits of a warrantless

search of his home, and in denying his motion to dismiss the

indictment due to inadequate notice of that search. He also

contends that the government's trial evidence was insufficient to

support his conviction. We affirm.

I.

In late June 2015, agents with the Department of Homeland

Security (DHS) obtained a video depicting suspected child

pornography that had been shared over the internet by a computer

using an IP address assigned to a home in Portland, Maine.

Investigators learned that the home was owned and occupied by

Royle, a local attorney, and that its internet service was

registered in his name.

On several occasions beginning July 1, 2015, DHS Special

Agent David Fife (SA Fife) conducted surveillance outside Royle's

home. Among other observations, he noted a man matching Royle's

physical description standing in the driveway and entering the

house, as well as a car registered to Royle and his ex-wife parked

near the house. SA Fife also conducted surveillance of Royle's

- 3 - law firm, where he observed this same man and car in the parking

lot. At one point during his surveillance of the home, SA Fife

observed Royle "embrace and kiss an unknown white female," who

then left in a separate vehicle.

While this surveillance was ongoing, SA Fife prepared

documents to apply for a search warrant for Royle's home. For

instance, on Monday, July 6, 2015, SA Fife sent a draft search

warrant affidavit to a federal prosecutor, seeking review and

feedback. The two discussed edits to the draft over the next two

days and, on the morning of July 8, planned via email to seek and

execute a warrant for Royle's home on Monday, July 13. As

reflected in their emails, this agreed-upon timing was intended to

accommodate staffing concerns and allow sufficient time for

internal approval.

During the evening of July 8, SA Fife and another DHS

agent continued surveillance of Royle's home. There, they observed

that the front door and a few windows remained "wide open" for

several hours, though there was no car in the driveway.

Purportedly concerned about the "unsecured nature of the home,"

agents contacted the Portland Police Department (PPD) to "conduct

a welfare check."

Two PPD officers arrived at Royle's house around

10:30 p.m. Officers reported that they observed a mess through

the open front door and that no one appeared to be home. After

- 4 - knocking on the screen door without response, the officers entered

the residence. After "[s]everal minutes" looking around the

residence, the officers exited. PPD then proceeded to talk to a

neighbor, inquiring about Royle, and explaining that "[s]omebody

called in a welfare check" on Royle, "[be]cause the front door was

wide open, unlocked."

After PPD exited Royle's house, SA Fife approached the

PPD cruiser to ask about "what happened." PPD told him that "no

one was present in the home but that there were no signs of forced

entry or other suspicious activity beyond the open door." SA Fife

asked if PPD "s[aw] things there [in the house] that would . . .

not still be there if the place had been . . . robbed." PPD

responded that they observed "a laptop and several televisions,

leading them to believe that no one had been in the residence to

steal or attempt to steal anything." The next day, SA Fife wrote

up a report about the events of July 8. Royle eventually received

a copy of this report nearly three years later, in June 2018, in

connection with pre-indictment talks with the government. This

pre-indictment disclosure was the first time Royle learned that

the July 8 search had taken place.

On Monday July 13, 2015, SA Fife obtained a search

warrant for Royle's home and executed it the next morning at

approximately 7:40 a.m. At this time, Royle was the only adult

home. His two children, who were "[q]uite a bit under ten years

- 5 - old," were also present. SA Fife asked Royle whether there was

someone who could pick the children up; Royle said his ex-wife

could help and provided her phone number to the agents to arrange

for the pickup.

During their search, agents discovered and seized a

MacBook computer in an upstairs room, and that computer was later

found to contain images depicting child pornography.1 No other

computers were seized during the search.2 At the time the laptop

was discovered, it was powered on and on top of a desk. Agents

further determined that the laptop was in the process of running

"a wipe function," which the agents were able to stop by powering

down the computer.3 Forensic examiners later discovered that the

1 Child pornography is essentially defined as "any visual depiction . . . of sexually explicit conduct" involving a minor, with some nuance not relevant here. 18 U.S.C. § 2256(8). Royle does not dispute that the images recovered from this laptop fit the applicable statutory definition. 2 Agents also seized Royle's phone, though the government did not seek to admit at trial any evidence obtained from the phone. SA Fife testified at Royle's suppression hearing that there was also an older computer in the residence -- a laptop that was found on the main floor of the house. As SA Fife testified, agents "ruled it out either because it was a work laptop or because it was . . . a very old laptop that had no remnants of anything on it that [they] were looking for." 3 According to the testimony, a wipe function performs an intensive deletion process. Typically, when a user deletes files, these items actually remain in a type of limbo known as "unallocated space," and are still recoverable with the help of forensic tools. A wipe function permanently deletes these files, rendering them unrecoverable.

- 6 - wipe function running on the MacBook had been initiated at around

6:55 a.m. that day.

In November 2018, Royle was charged with one count of

knowingly possessing and accessing with intent to view child

pornography, and attempt to do the same, in violation of 18 U.S.C.

§§ 2252A(a)(5)(B), (b)(2), and 2256(8)(A). In July 2019, Royle

moved to dismiss the indictment, arguing that SA Fife's failure to

disclose the existence and details of the July 8 search at any

time before June 2018 violated his procedural and substantive due

process rights. In the alternative, he moved to suppress the

fruits of the July 13 warrant-backed search on the grounds that

the evidence was derivative of observations made during the

warrantless search on July 8. Following a hearing in October 2019,

the district court denied Royle's motion to suppress, holding that

the July 8 search was justified under the community caretaking

exception to the warrant requirement or the good faith exception

"vis-a-vis the wellness check." The court also ruled that, in any

event, the evidence obtained from the July 14 search was admissible

under the independent source doctrine. The district court further

rejected Royle's arguments regarding the failure to give earlier

notice of the July 8 search. The court explained that Royle's

analogies to the pre-indictment delay and Speedy Trial Act contexts

"don't . . . really work here, [and] certainly not in a way that

would lead me to dismiss the case." The court explained, however,

- 7 - that while it was denying Royle's motion, "if there are ways at

trial that this failure to disclose has prejudiced [him] in a way

that I can remedy at trial, I'm open to it."

Royle was convicted on January 23, 2020, following a

three-day jury trial. The government's evidence consisted

principally of testimony from special agents Fife, Douglas

McDonnell, and Seth Plumb, as well as various exhibits reflecting

images and data recovered from the MacBook. SA Fife testified as

to the circumstances surrounding the warrant execution at Royle's

home, as discussed above, and SA McDonnell testified about his

role as a member of the team that executed the search warrant on

July 14. As will be further detailed below, the forensic evidence

-- introduced mainly through SA Plumb -- included images of minors

engaged in sexually explicit conduct, internet browsing history,

and other tranches of data demonstrating that the laptop recovered

from Royle's home was used to access child pornography. The

government argued to the jury that this data, along with other

circumstantial evidence that will be discussed, proved that Royle

knowingly possessed and accessed the child pornography found on

the MacBook.

At the close of the government's evidence, Royle moved

for an acquittal, arguing that the government failed to prove

beyond a reasonable doubt that he knowingly used the laptop to

access child pornography. The district court reserved judgment,

- 8 - see Fed. R. Crim. P. 29(b), and ultimately denied Royle's renewed

motion for acquittal in a written order following the verdict.

This timely appeal followed.

II.

A.

Royle first challenges the district court's denial of

his motion to suppress. The government argues that the July 8

search of Royle's home was justified pursuant to the emergency-

aid exception to the warrant requirement and, in any event, that

the fruits of the later warrant-backed search were admissible under

the independent source doctrine. Because we agree with this second

argument, we need not consider whether the July 8 search was

justified under the emergency-aid exception. Accordingly, we

assume the July 8 search was in violation of the Fourth Amendment

for the purposes of our analysis, and nevertheless affirm the

court's denial of Royle's motion.

As a general matter, "[a]s a prophylaxis against

unreasonable searches," the exclusionary rule prohibits

introducing the fruits of an unlawful search into evidence.

United States v. Flores, 888 F.3d 537, 545 (1st Cir. 2018).

Nonetheless, "under the independent-source doctrine, evidence

acquired from a lawful source that is independent of any Fourth

Amendment infraction is admissible," because "the exclusionary

rule should not put agents 'in a worse position' than if the

- 9 - [initial] constitutional infraction had not happened." United

States v. Ponzo, 853 F.3d 558, 573 (1st Cir. 2017) (quoting

Nix v. Williams, 467 U.S. 431, 443 (1984)). Thus, when information

is obtained through an illegal search, then through a later,

warrant-backed search, "the fruits of that [later] search [are]

admissible . . . unless (1) 'the agents' decision to seek the

warrant was prompted by what they had seen during' the initial

illegal search or (2) 'information obtained during that [illegal

search] was presented to the Magistrate and affected his decision

to issue the warrant.'" United States v. Soto, 799 F.3d 68, 82

(1st Cir. 2015) (quoting Murray v. United States, 487 U.S. 533,

542 (1988)) (final alteration in original). Here, Royle argues

only that the July 13 warrant was deficient under this first

consideration, sometimes called the "subjective" prong. So we

need not consider the second.4

Where, as assumed arguendo here, an unlawful search

precedes the procurement of a warrant, our "subjective inquiry"

asks "whether 'the agents' decision to seek the warrant was

prompted by what they had seen during the initial [illegal]

4The warrant contained no information about the July 8 search or information that was obtained via the July 8 search. In any event, after reviewing the warrant application, we have "little doubt that the [non-July 8 related] information was sufficient to support the judge's decision to issue the warrant." See United States v. Rose, 802 F.3d 114, 124 n.4 (1st Cir. 2015) (explaining that this second inquiry is "wholly objective" (quoting United States v. Dessesaure, 429 F.3d 359, 369 (1st Cir. 2005))).

- 10 - entry.'" United States v. Rose, 802 F.3d 114, 123–24 (1st Cir.

2015) (quoting United States v. Dessesaure, 429 F.3d 359, 369 (1st

Cir. 2005)) (alteration original). This inquiry "turns on whether

the particular officer would have still sought the warrant absent

the unlawfully-obtained information." Id.; see also United States

v. Siciliano, 578 F.3d 61, 77 (1st Cir. 2009) (explaining that the

question is "whether the officers would have sought the warrant

even if the unlawful evidence had not been available"). Although

this is "a subjective test, . . . it should not be proven by purely

subjective means." Dessesaure, 429 F.3d at 369. That means that

"the district court is not bound by after-the-fact assurances of

[the officers'] intent, but instead must assess the totality of

the attendant circumstances to ascertain whether those assurances

appear 'implausible.'" Id. (quoting Murray, 487 U.S. at 540 n.2).

We review a district court's determination under the subjective

prong -- which is a factual finding -- for clear error. Soto, 799

F.3d at 83.

We conclude that the district court did not clearly err

in finding that SA Fife's decision to seek a warrant was not

"prompted" by any information he learned from the July 8 search.

This finding was amply supported by SA Fife's hearing testimony

that what he learned on July 8 did "not at all" affect his intent

to get a warrant for Royle's home. Although such "after-the-fact

assurances" are not controlling, see Dessesaure, 429 F.3d at 369,

- 11 - the district court was entitled to credit this testimony in

examining evidence of SA Fife's preexisting intent, as it

explicitly did. United States v. Guzmán-Batista, 783 F.3d 930,

937 (1st Cir. 2015) ("[A] challenge based on a district court's

credibility determination 'can virtually never be clear error.'"

(quoting Anderson v. City of Bessemer, 470 U.S. 564, 575 (1985)).

Indeed, the plausibility of SA Fife's assurances is

firmly supported by emails he exchanged with the prosecutor days

and hours before the July 8 search occurred. As previously

mentioned, SA Fife had already drafted an affidavit to support a

search warrant application and sent it to the prosecutor on July

6. Other emails showed that, several hours before SA Fife returned

to Royle's home to conduct surveillance on July 8, both he and the

prosecutor agreed that the contents of that draft were sufficient

for their purposes and planned to submit it for internal approval.

They further planned to seek and execute a warrant the following

week. As the emails show, that decision to wait was prompted by

administrative issues. There was no suggestion that either of

them believed additional information was needed, and nothing

presented at the hearing compelled any finding to the contrary.

We have repeatedly held that such evidence of a pre-existing intent

to obtain a warrant is sufficient to support application of the

independent source doctrine. Dessesaure, 429 F.3d at 369 (officers

not prompted to seek warrant when they were going to apply for one

- 12 - prior to warrantless entry); Soto, 799 F.3d at 83 (independent

source doctrine applied, in part, due to pre-existing

investigation of the defendant); Flores, 888 F.3d at 546-49

(investigation prior to initial search reflected intent to obtain

warrant); see, e.g., United States v. Combs, 727 F. App'x 744, 748

(3d Cir. 2018) (independent source doctrine satisfied when law

enforcement "already in the process of preparing a search warrant"

prior to pre-warrant welfare-related search of the home (internal

quotations omitted)).

Nevertheless, Royle contends that, even assuming SA Fife

intended to seek a warrant prior to the July 8 search, this intent

was vitiated when he saw the unsecured house. In other words, his

concern about a potential break-in at Royle's home -- and the

prospect that evidence may be stolen -- extinguished his intent to

follow through with the plan to seek a warrant the following week.

Royle argues that those concerns were only abated -- and SA Fife's

intent restored -- after the warrantless search confirmed that a

laptop was in the home. But he offers nothing more than rank

conjecture to support this theory, and it is belied by the hearing

testimony. The district court credited SA Fife's assurance that

the events of July 8 did "not at all" effect his decision to get

a warrant, and this finding was not clearly wrong. Indeed, SA

Fife also testified that he had no expectation that the police

would enter the house to conduct the welfare check. He did not

- 13 - provide them any direction before they did so, let alone request

that they check that certain items were not missing. This

testimony was further corroborated by that of the PPD officers who

performed the search, who confirmed that the choice to enter the

home was their own decision based on the circumstances.5

Royle further argues that the independent-source rule is

inapplicable under these circumstances, because PPD officers could

have discovered something during their search -- i.e., that items

actually had been stolen from the house -- that could have

diminished SA Fife's intent to execute the warrant. This is a

nonstarter. As the Supreme Court explained in Murray, the

independent source doctrine is not concerned with "whether some

hypothetical illegal search would have aborted the warrant," as

To the extent Royle contends that the independent source 5

rule can only apply if the initial search "had no effect on [SA Fife's] decision to seek the warrant," he is incorrect. Our cases make clear that the doctrine's application turns on whether the warrant decision was "prompted by," not merely "influenced by," the illegal search. For instance, in Soto we explained that an agent's "candid acknowledgment that the [evidence from the initial illegal search] was a factor in his initial decision to seek the warrant[] does not" affect the independent-source analysis. Soto, 799 F.3d at 84. Indeed, "[t]he question is not whether the evidence [observed during the illegal search] did influence the officer's decision[,] . . . but whether the same decision would have been made if the evidence had not been known." Id. In any event, even if we were to endorse Royle's alternative test, SA Fife's plausible and credited testimony that the events of July 8 did "not at all" affect his decision to obtain a search warrant would result in the same outcome.

- 14 - going that far would "expand our existing exclusionary rule." See

487 U.S. at 542 n.3.

Royle also contends that this case involves the concerns

implicated in Murray -- the "so-called confirmatory search,

conducted for the precise reason of making sure it is worth the

effort to obtain a search warrant." United States v. Restrepo,

966 F.2d 964, 971-72 (5th Cir. 1992) (quoting LaFave, Search and

Seizure, § 11.4(f), at 70 (1992 Supp.)) (internal quotations

omitted). We disagree, for the reasons already discussed. As in

Murray, this case is not an example of a "'search first, warrant

later' mentality," as "there is nothing to suggest that [officers]

went in merely to see if there was anything worth getting a warrant

for." Murray, 487 U.S. at 540 n.2. As the record demonstrates,

SA Fife had already determined that there was something in Royle's

home "worth getting a warrant for," based on the link between

Royle's IP address and child pornography. Indeed, he had already

gone through the effort of drafting the search warrant affidavit

and felt the contents were adequate for probable cause. Moreover,

the district court credited SA Fife's claim that his call to PPD

was for a wellness check, not a confirmatory search, and we see no

clear error in that finding.

In sum, the record evidence supports the view that "[t]he

facts gathered legally, without resort to the facts gathered

illegally, provided an independent and adequate source for the

- 15 - warrant application." Dessesaure, 429 F.3d at 370. The district

court found that SA Fife would have still sought a warrant absent

the July 8 search, and our review of the record does not leave us

with "'a definite and firm conviction' that this was a mistake."

Soto, 799 F.3d at 84 (quoting United States v. Brake, 666 F.3d

800, 804 (1st Cir. 2011)). We have affirmed application of the

independent source doctrine on less robust showings. See

Dessesaure, 429 F.3d at 369. Accordingly, we affirm the district

court's denial of Royle's motion to suppress.

B.

Next, Royle challenges the district court's denial of

his motion to dismiss the indictment or suppress the fruits of the

July 13 warrant due to deficient notice. Specifically, he argues

that the government's years-long delay in notifying him of the

July 8 search was unreasonable in violation of the Fourth

Amendment, and also violated his Fifth Amendment due process rights

by preventing him from investigating the circumstances of the

search while memories were fresh. Although Royle contends that

these inquiries run together and that his Fourth Amendment claim

is "rooted in" due process, his argument for dismissal or

suppression on Fourth Amendment grounds is underdeveloped and

- 16 - therefore waived. United States v. Zannino, 895 F.2d 1, 17 (1st

Cir. 1990).6

In seeking dismissal on due process grounds, Royle

compares the government's failure to timely notify him of the

July 8 search to cases of pre-indictment or pre-trial delay. The

6 Royle advances this argument in a single sentence of his brief, contending that "[w]hile advance notice [of the search] is not required, once the search had been completed, [he] was entitled to 'constitutionally adequate' notice that it had happened." Royle cites Dalia v. United States, 441 U.S. 238, 248 (1979), in support of this contention. But that case, confronting a challenge to the constitutionality of Title III, stands for the proposition that there is no "constitutional rule proscribing all covert entries," despite the fact that "covert entries" inherently involve a "lack of notice." Id. at 247–48. Royle offers no authority to support his contention that timely notice of a warrantless search after it has occurred is constitutionally required under the Fourth Amendment. Moreover, even if the July 8 search was unreasonable under the Fourth Amendment due to delayed notice, and that such a violation would be appropriately remedied by operation of the exclusionary rule, we do not see why the independent source exception to the exclusionary rule would not render the fruits of the July 13 warrant admissible. As discussed above, the "independent source doctrine acts as a limitation on the exclusionary rule of the Fourth Amendment," Dessesaure, 429 F.3d at 365 n.6, by permitting "admission of evidence that has been discovered by means wholly independent of any constitutional violation." Id. (quoting Nix, 467 U.S. at 443). Thus, even if the delayed notice provided to Royle rendered the July 8 search unlawful, we would conclude that the independent source exception to the exclusionary rule applied, and that the district court was justified in denying Royle's motion to suppress. See, e.g., United States v. Freitas, 800 F.2d 1451, 1456-57 (9th Cir. 1986) (finding a notice-based defect in the warrant, but explaining that suppression was improper because of operation of an exception to the exclusionary rule).

- 17 - district court determined that Royle had failed to present

sufficient authority for the proposition that the government had

an obligation to disclose this information sooner than it did, or

show that dismissal was warranted. We affirm the district court's

conclusion that there was no constitutional violation here.

As he did before the district court, Royle argues that

his due-process claim should be resolved "[i]n keeping with" the

"principles" of pre-indictment delay and speedy trial cases. We

think the speedy trial framework is unsuitable to assessing Royle's

due process claim, as the guarantee of a speedy trial reflects a

distinct right protected by the Sixth Amendment and the Speedy

Trial Act, see United States v. Irizarry-Colón, 848 F.3d 61, 67

(1st Cir. 2017), while Royle has unequivocally explained that the

delayed notice violated the Fifth Amendment.7

"[E]xcessive pre-indictment delay can sometimes, albeit

rarely" violate due process, "if the defendant shows both that the

'delay caused substantial prejudice to [defendant's] right to a

fair trial' and that 'the [g]overnment intentionally

delayed indictment . . . to gain a tactical advantage.'" Irizarry-

Colón, 848 F.3d at 70 (quoting United States v. Bater, 594 F.3d

The speedy trial analogy is likewise inapposite, given that 7

the "right attaches only . . . [after] a defendant is indicted, arrested, or otherwise officially accused," United States v. MacDonald, 456 U.S. 1, 6 (1982); United States v. Handa, 892 F.3d 95, 101 (1st Cir. 2018), but the delay Royle contests occurred pre-indictment.

- 18 - 51, 54 (1st Cir. 2010)) (emphasis original). The second prong

requires showing "deliberate misconduct by the prosecutor (or at

least something very close to that)." Bater, 594 F.3d at 54. We

review the district court's decision not to dismiss an indictment

for a purported pre-indictment delay due process violation for

abuse of discretion. Irizarry-Colón, 848 F.3d at 70.

Even if we assume that the "principles" from the pre-

indictment delay context govern Royle's claim, this is not one of

the rare cases where we would conclude there was a due process

violation. First, Royle cannot make out the requisite prejudice.

"With respect to prejudice, a defendant must do more than allege

that witnesses' memories had faded or that evidence had been lost

that might have been helpful to him." Id. (quoting United

States v. Muñoz–Franco, 487 F.3d 25, 58 (1st Cir. 2007)). Here,

all that Royle alleges is that witnesses' memories have faded and

that evidence that might have been helpful to him was lost. His

argument fails accordingly.8

Despite asking us to view his claim through the pre- 8

indictment delay lens, at the same time Royle suggests that the applicable standard is an imperfect fit under these circumstances. In essence, he contends that prejudice under his circumstances should be assumed satisfied in his case, because the undisclosed information was uniquely and exclusively known to the government. With this undisclosed knowledge, he says, the government impeded his ability to begin investigating the circumstances of the July 8 search at an earlier time, which not only prejudiced him but also gave the government a leg up. But we fail to see how this meaningfully differs from the potential for prejudice in the pre-

- 19 - Moreover, any argument that "fresher" memories from the

witnesses would have helped Royle is speculative and based on

"conjecture." Bater, 594 F.3d at 54. Indeed, if witnesses with

fresher memories had testified "it is not clear just what [they]

would have said or how much it would have helped [Royle]." Id. at

55; United States v. McCoy, 977 F.2d 706, 711 (1st Cir. 1992) ("For

the defendant to carry the heavy burden of proving actual prejudice

from pre-indictment delay, concrete proof is required; mere

speculation and bare allegations will not suffice."). Royle

effectively concedes this very point, noting that "[i]t is

impossible to know what [the two] PPD witnesses [who testified at

the suppression hearing] would have said about what Fife was up to

on July 8" had Royle been notified of the search earlier. Despite

having access to audio recordings obtained from body microphones

worn by the officers during the search, Royle offers no evidence

to suggest that any accounts from the PPD officers closer in time

to the search would have meaningfully differed from what they

offered at his suppression hearing.

indictment delay context. In either case, the government's delay in providing notice of information exclusively known to it -- whether it be the circumstances of a search or the fact of an impending grand jury indictment -- affects the defendant's ability to prepare a defense. United States v. Lovasco, 431 U.S. 783, 796 (1977) (acknowledging that "lapse of time" indicting may have had negative impact on defense); United States v. Ciampaglia, 628 F.2d 632, 639 (1st Cir. 1980) (noting that a delay in indictment delays notice to indictee).

- 20 - If there was any doubt, Royle has also failed to show

that "the [g]overnment intentionally delayed [disclosure] . . . to

gain a tactical advantage." Irizarry-Colón, 848 F.3d at 70

(quoting Bater, 594 F.3d at 54). As in the pre-indictment context,

this perhaps could have been shown by evidence that the government

purposefully "[d]elay[ed] [disclosure] in order to deprive [him]

of witnesses." Id. at 71. But, again, Royle's argument that this

was the case rests on pure conjecture. Thus, "[e]ven if [Royle]

had demonstrated some degree of prejudice from the delay," this

appeal would fail, as he has "made no concomitant showing that the

government intentionally delayed [disclosure] to gain tactical

advantage." Muñoz-Franco, 487 F.3d at 59; Bater, 594 F.3d at 53-

54 (no violation of due process after four-year pre-

indictment delay, when there was "no evidence that the

government delayed the indictment to deprive [defendant] of

[relevant] testimony") (emphasis original).

We acknowledge that the government's delayed disclosure

was inopportune. "Obviously it is undesirable that [notice]

be delayed . . . ." Bater, 594 F.3d at 54. However, even assuming

that we would apply the analysis used in pre-indictment delay

cases, on these facts there is no showing that Royle was actually

prejudiced by this late disclosure or that it was in bad faith.

- 21 - Accordingly, the district court did not abuse its discretion in

denying Royle's motion to dismiss.9

III.

Finally, Royle challenges the sufficiency of the

evidence to prove that he "knowingly possess[ed], or knowingly

access[ed] with intent to view" child pornography found on the

laptop, as required to sustain his conviction under 18 U.S.C.

§ 2252A(a)(5)(B). We disagree.

"We review preserved challenges to the sufficiency of

the evidence de novo, viewing the record in the light most

favorable to the prosecution and rejecting such challenges if any

rational jury could have convicted the defendant when considering

all the evidence, direct and circumstantial, in this way." United

9We note that applying caselaw from the Brady context would also not help Royle. When the government has delayed disclosure of exculpatory evidence, we review for abuse of discretion, and affirm unless "the delayed disclosure prejudiced the defendant." United States v. Montoya, 844 F.3d 63, 71 (1st Cir. 2016). In this context, "the test is whether defendant's counsel was prevented by the delay from using the disclosed material effectively in preparing and presenting the defendant's case." United States v. Ingraldi, 793 F.2d 408, 411-12 (1st Cir. 1986). "[A] court's principal concern must be whether learning the information altered the subsequent defense strategy, and whether, given timeous disclosure, a more effective strategy would likely have resulted." United States v. Devin, 918 F.2d 280, 290 (1st Cir. 1990). For the same reasons his challenge fails in the pre-indictment delay context, he also would not succeed if we used the lens of the Brady cases: Royle has not shown prejudice from his delayed notice of the search.

- 22 - States v. Levin, 13 F.4th 96, 99 (1st Cir. 2021). "[T]he issue is

not whether a jury rationally could have acquitted but whether it

rationally could have found guilt beyond a reasonable doubt." Id.

at 99–100 (quoting United States v. Breton, 740 F.3d 1, 16 (1st

Cir. 2014)) (quotation omitted). Because Royle moved for an

acquittal at the close of the government's case and the district

court reserved decision, we must "consider only the evidence

presented in the government's case-in-chief to assess whether 'a

rational factfinder could find, beyond a reasonable doubt, that

the prosecution successfully proved the essential elements of the

crime.'" United States v. Ortiz, 447 F.3d 28, 32 (1st Cir. 2006)

(quoting United States v. Moran, 312 F.3d 480, 487 (1st Cir.

2002)); see Fed. R. Crim. P. 29(b). Accordingly, we turn to an

examination of the evidence introduced by the government.

As discussed above, the government's trial evidence

consisted of testimony from SA Fife and DHS special agents Douglas

McDonnell and Seth Plumb, as well as forensic evidence consisting

of images and other data extracted from the laptop.

To carry its burden on the mens rea element presently at

issue, the government argued that this circumstantial evidence

established that Royle was the user responsible for the child-

pornography-related contents of the laptop.

- 23 - This forensic data fit into roughly six related

categories. First, the government introduced 17 exhibits, showing

images of child pornography recovered from the laptop's deleted

files. Some of the images contained superimposed text (i.e., a

text stamp) depicting the name of a child pornography website.

Second, the government introduced evidence of internet-

browser screenshots recovered from the laptop's deleted files

containing the images previously discussed. As SA Plumb explained,

these screenshots depicted what would have been visible in the

browser at the time the corresponding images were displayed. He

further explained that certain browsers capture such screenshots

automatically, in order to show recently viewed webpages when a

new browser window is subsequently opened. Another explanation he

offered for how such screenshots could end up on (or deleted from)

a device is if they were affirmatively taken by a user.

Third, the government produced internet browsing

history, in chart form, collecting certain browsing activity

recovered from the laptop's Firefox web-browser application from

10 dates spanning the period from April 2, 2015 to July 13, 2015.

As SA Plumb explained, the chart was generated using a forensic

tool and listed the following information: various web addresses

visited by the browser; the corresponding title or name of each

address's webpage as displayed therein; the date and time each was

- 24 - visited;10 the number of times each was visited;11 and whether or

not the website was typed into the browser by a user. The chart

showed visits to video-chat and image-hosting websites that, in SA

Plumb's investigative experience, were linked to child

pornography, such as ImageTwist, Omegle, and mrvine.net.

Moreover, some of the web addresses themselves and titles of the

webpages used terms associated with child pornography (or

otherwise suggestive of sexually explicit content involving

minors), such as "Jailbait Amateur Pictures" and "Teens-posing and

sex." This included a site displayed as "stickamgfs.com," which

frequently appeared in the browser history.

The chart further reflected that many of the visits to

these websites occurred at late evening hours, and sequentially,

for periods of time ranging from 20 minutes to an hour.

Furthermore, SA Plumb identified that some of the web addresses

visited by the laptop matched the superimposed text, or file names,

reflected in the sexually explicit images recovered from the

laptop. For example, one image was superimposed with "4947-

pul.avi.," which was embedded in an ImageTwist web address visited

The chart indicated the time in Universal Coordinated Time 10

(UTC), and Plumb explained to the jury that this is four or five hours ahead of the time in Portland, Maine. Exactly how many hours ahead depends on the "time of year." This metric only reflects a hit for a user going "to that 11

one page that one time" -- thus, this metric is "precise to [a specific] web address."

- 25 - on May 7, 2015: "http:imagetwist.com/dbk60c5x4il7/4947-

pul.avi.jpg.html."

Fourth, the government introduced another chart

generated by SA Plumb's forensic tools, the "SessionStore

Artifacts," that contained additional information about the

laptop's use of the Firefox browser. As SA Plumb explained, the

SessionStore Artifacts reflected "a record of the most recent use

of that browser," listed in individual entries containing a "title"

and web address, but no data as to the date or time the material

was accessed. In some instances, the "title" reflected search

terms used in various search engines, including Google and Bing.

For example, searches discussed during SA Plumb's testimony

reflected Bing searches for "Young Teens in Swimsuits Candid,"

"Junior High Schools Bikinis," and "Tween Teen Bikinis Candid."

SA Plumb further identified entries showing visits to some of the

child-pornography-linked sites discussed above, e.g., ImageTwist,

mrvine.net, and other sexually explicit references to "[j]unior

[h]igh [s]chool" and "9_or_10_year_old_girl[s]." As with the

browsing history example, SA Plumb was able to match several

SessionStore Artifacts entries with file names appearing on the

child pornography images previously introduced.

Fifth, the government introduced a third chart

summarizing "Launch Services Quarantine Events" (LSQ) data

extracted from the laptop and examined by SA Plumb. As SA Plumb

- 26 - explained, LSQ data records instances in which a MacBook's user

attempts to open a file downloaded from the internet. When such

an attempt is made, the computer automatically provides a "yes" or

"no" prompt to the user before the file can be opened, and this

event is recorded. He further pointed out several entries between

2012 to 2013 recording attempts to open files with sexually

explicit references to minors.

Finally, Plumb testified regarding a fourth chart

reflecting extracted "QuickLook Thumbnail Cache" data. He

explained that the QuickLook feature enables a user to quickly

view the contents of files held in a folder directory by selecting

an individual file and hitting the space bar. The data reflected

in the QuickLook chart show the filenames and pathways for files

that are prepared to be launched from the QuickLook feature. SA

Plumb then proceeded to discuss specific entries of this data

extracted from the MacBook. As he discussed and the jury was

shown, many of the file names in these entries reflected picture

and video files with overt references to minors engaged in sex

acts, previously discussed websites, e.g., Omegle, or terms such

as "jailbait." These files were all in the "aMule Downloads"

folder.

As SA Plumb explained, aMule is a peer-to-peer file

sharing program, which allows a user to search for and download

files from the machines of other users over the internet. A user

- 27 - of a peer-to-peer program can locate files of interest by using

search terms, and can then download any particular file by

"clicking" on it. With aMule, any such downloaded files will

populate in an aMule downloads folder on the user's computer, which

is automatically created by the program. SA Plumb further

explained that, to his knowledge, a file would have to be clicked

on by a user in order to be downloaded and populate in such a

folder. Further evidence captured in the laptop's browsing history

showed searches suggesting that the aMule program had been

downloaded to the laptop from the internet, in April 2015.

Although the aMule program was not installed on the MacBook when

it was seized, SA Plumb confirmed through additional forensic tools

that it was installed and running on the laptop as of July 9, 2015.

Royle does not contest that the government sufficiently

proved that the laptop both contained child pornography and

reflected visits to websites associated with child pornography.

Instead, he contends that the government failed to prove that Royle

downloaded those images or visited those websites. Boiled down,

his argument is twofold. First, he argues that the evidence failed

to prove that the child pornography's presence on the laptop was

a result of knowing human activity, rather than automated computer

activity. Second, he argues that even if the evidence sufficiently

established that a person was responsible, no rational jury could

- 28 - conclude that he was that person without impermissible

"guesswork." For this second argument, Royle heavily relies on

our decision in United States v. Pothier, 919 F.3d 143 (1st Cir.

2019). We address and reject each argument in turn.

1. Human Activity

Royle argues that various non-volitional "automatic

process[es]" could have caused the pornographic material to end up

on the computer. Specifically, he argues that processes such as

"caching," "pre-fetching," "re-direction," or "malware" could

explain the presence of illegal material on the laptop.12 He points

to SA Plumb's concession on cross-examination that he could not

say for certain how the images recovered from the laptop got there

and that it could have possibly been due to one of those automated

processes. But a rational jury could have readily found this

theory implausible, given the volume of evidence showing child

pornography browsing and peer-to-peer downloads, and other

evidence tending to show that a human accessed the recovered

images.

12 Both pre-fetching and caching are processes that allow computers to quickly respond to queries from users. As SA Plumb testified, pre-fetching refers to a process in which "files that [have] previously been accessed are . . . prioritized in a way to allow them to be in active memory quicker." Likewise, caching is an automatic process in which the browser saves items displayed on the screen "to a certain degree within the computer," so if a user returns "to that page or . . . want[s] to access that link it will be available to [him] more quickly."

- 29 - First, a reasonable jury could have rejected the notion

that child pornography inadvertently ended up on the computer

through these automated processes in light of the considerable

volume of that data in evidence. For instance, the browsing

history, reflecting activity from 10 dates spanning April to July

2015, collectively showed hours of sequential visits to dozens, if

not hundreds, of webpages associated with child pornography.

Similarly, the SessionStore Artifacts chart contained over 1,400

individual entries for webpages recently visited by the laptop's

browser, many of which very clearly reference child pornography.

The volume of this activity helps dispel any reasonable doubt about

whether the data resulted from mistake or the automated processes

of innocent web browsing. Cf. United States v. Myers, 560 F. App'x

184, 187 (4th Cir. 2014) (holding that the "plethora of child

pornography on [defendant's] computer . . . establish[ed] that it

was not by mistake or error that the files were downloaded").

Second, multiple pieces of evidence showed that the

laptop was affirmatively manipulated by a human, in at least some

instances, in connection with child pornography viewing activity.

For example, the browsing activity evidence, aided by SA Plumb's

testimony, showed that visits to the sites omegle.com and

stickamgfs.com were initiated by a person typing those addresses

- 30 - into the browser window.13 Omegle.com, which had three typed visits

logged as of April 2015, was known to SA Plumb through prior child

exploitation investigations and was superimposed on some of the

images in the case. Similarly, typing-initiated visits to

stickamgfs.com on separate days in May 2015 linked to pages with

"Jailbait Videos" in the title. The SessionStore Artifacts

evidence further supports an inference of human-initiated

activity, where searches for illicit terms such as "Young Teens in

Swimsuits Candid" appeared. Cf. Breton, 740 F.3d at 17 (noting

that a "history of visits to websites with a child pornography

connection or use of search terms associated with child pornography

can support a finding that the defendant knew the images he

retrieved contained child pornography"); United States v. Shiver,

305 F. App'x 640, 643 (11th Cir. 2008) (rejecting the theory that

child pornography appeared "on [defendant's] computer without his

knowledge by a virus or by 'pop-up' windows that appeared on his

computer screen unbidden," when "the government's computer expert

testified that Internet searches conducted on [the defendant's]

computer used words and terms that were likely to return

pornographic images of children"). Further evidence reflecting

repeated viewing of specific pornographic videos also cuts against

13SA Plumb acknowledged that this search could appear "typed" if it had been copied and pasted. This, however, still evidences volitional activity.

- 31 - a theory that malware or automatic "re-direction" was the real

perpetrator. See Shiver, 305 F. App'x at 643 (repeated viewing of

image supports theory of volitional activity).

Moreover, the contents of the aMule downloads folder

provide further evidence that a human downloaded the child

pornography found on the MacBook. SA Plumb testified that any

downloads from aMule "would have had to have been clicked on and

downloaded" to end up in that folder. And the content in the aMule

downloads folder suggests a human used aMule to download child

pornography, given that the titles in the folder explicitly

referenced girls ranging from "6Yo" to "15Yo" engaging in sex acts.

The government did not introduce any of the images or videos from

the aMule files into evidence. However, as we have previously

recognized, "[t]he presence of files with names indicative of child

pornography -- even absent further proof of what, if anything,

those files contained -- tends to make it more probable that [a

defendant] knowingly was involved with child pornography."

Breton, 740 F.3d at 14.14

14 TheaMule downloads folder and its files were not actually present on the laptop when recovered. However, the government sufficiently established that they were, at some time, through SA Plumb's explication of the function of the QuickLook Thumbnail cache. It further demonstrated that the aMule program was apparently removed from the laptop sometime between July 9, when it was known to be running, and the July 14 seizure, when it was no longer installed.

- 32 - Moreover, the pornographic content on the computer was

consistent across time and across various tranches of data (aMule,

QuickLook, etc.), suggesting human -- not automated -- activity.

The aMule file names reflect the same sources of content shown in

the browsing history (e.g., Omegle and stickam) and use of similar

terms (e.g., "jailbait"). The computer activity also reflected an

absorption with certain subject matters: young girls of a specific

age (10 to 15 years old), bikinis, and young girls from Russia. A

rational jury could conclude that a human with particular interests

was behind these queries and downloads.

In sum, ample evidence supported the conclusion that a

human being was responsible for the child-pornography-related

evidence recovered from the laptop.

2. Evidence linking Royle to the Computer

There is also sufficient evidence to support the jury's

finding that Royle, and not some other person, was behind the child

pornography activity at issue. While there is no direct evidence

that Royle knew the images were on the laptop, "[w]e have

recognized that knowledge of child pornography 'often is shown

through circumstantial evidence.'" Levin, 13 F.4th at 100 (quoting

Breton, 740 F.3d at 17). Here, a reasonable jury could infer that

Royle knowingly possessed the child pornography from

circumstantial evidence that he used the computer during the period

that child pornography browsing activity occurred and that he was

- 33 - the only plausible person who could have initiated the wipe

function.

First, the evidence is sufficient to show that Royle was

the only adult resident of the home where the computer was found.

It was undisputed that Royle owned and resided at the home and

that the home's internet service was registered in his name. The

wifi network for the home was titled with Royle's initials. The

government also established that Royle was observed at the home

before the warrant was executed, and that only he and his two small

children were there when agents arrived during the early morning

hours of July 14. SA Fife further testified that, based on his

walk-though of the home, it appeared that only one adult was living

there. He also explained that Royle needed to call someone to

pick up the children. Moreover, a reasonable jury could conclude

that the room in which the laptop was found -- where it was open,

and positioned on a desk -- was an adult's workspace, and therefore

Royle's.15 Thus, when a computer was seized from the home, and

from this room, the jury could reasonably infer that it belonged

to Royle, the home's only adult resident.

15Pictures of this room introduced by the government showed the MacBook on top of a desk, next to a printer. Other items visible on the desk were various papers, sticky notes, and a stack of books, including "The Goldfinch" by Donna Tartt and "On Immunity" by Eula Biss. A wooden baseball bat appeared beside the desk.

- 34 - Various evidence from the computer itself further

confirms that Royle used the laptop with some regularity. Indeed,

Royle admitted to SA Fife that he used the laptop to access "Citrix

client" for his work. Forensic evidence also showed that Royle

had stored some personal documents on the computer. For example,

filenames in the QuickLook Thumbnail Cache included "Royle

Boys.jpg," "Royle, George 1400010680.pdf," "GEORGE.docx." The

MacBook also contained tax-related documents, i.e.,

"2014TurboTaxReturn.pdf" and "GRFund 1099." A reasonable jury

could further find additional filenames were linked to Royle, such

as "Notes on SM Deposition.docx," given evidence that he was an

attorney, and "CHILD SUPPORT AFFIDAVIT.pdf," given evidence that

he was divorced and had young children.

There was also evidence of innocent browsing activity

that the jury could have reasonably linked to Royle. For instance,

evidence showed browsing activity associated with repair

facilities in Portland, Maine, the local weather, Portland Sea

Dogs tickets, baseball cards, questions about childcare, and

activities to do with children. These queries all match up with

what the jury knew about Royle -- he owned a home in Portland, had

two young children, and had an interest in baseball.16 From all

The photo shown to the jury of the room that jurors could 16

conclude was Royle's showed a baseball bat among his other belongings.

- 35 - of this evidence, a reasonable jury could find that Royle used the

laptop with some degree of regularity, which further supports a

conclusion that he knew about the illicit images beyond a

reasonable doubt.

All of this evidence supports a reasonable inference

that Royle was the only adult living at the home while the laptop

-- which he indisputably used -- accessed child pornography. A

reasonable jury could have relied on this evidence in concluding

that Royle was the only plausible user behind that activity.

Indeed, the forensic evidence showed that the child-pornography-

related browsing often occurred late at night and early in the

morning. As we have recognized, evidence of child pornography

access during times that only a person occupying a room or a home

would be present tends to show that the primary occupant was

responsible for such activity. See United States v. Figueroa-

Lugo, 793 F.3d 179, 188-89 (1st Cir. 2015) (evidence that illicit

files were downloaded at around 4:00 a.m. onto computer found in

defendant's bedroom supported jury's rejection of other-user

defense theory, where there was "no evidence that anyone else slept

in the room or was present during the early morning hours"); see

also United States v. Salva-Morales, 660 F.3d 72, 75 (1st Cir.

2011) (per curiam) (holding that it was reasonable to infer that

owner of shop in which child-pornography-containing computer was

found was behind access to illicit files accessed around 2:00 a.m.

- 36 - and 9:00 a.m., given that he "locked up the shop at night . . . and

presumably opened it as well in the morning"). This is a common-

sense inference. United States v. Williams, 717 F.3d 35, 40 (1st

Cir. 2013) ("Jurors have the right -- indeed, the obligation -- to

use their common sense in evaluating and drawing inferences from

circumstantial evidence.").

Finally, the fact and timing of the wipe function

initiated on the laptop was highly probative of Royle's knowledge

of the child pornography files. First, "evidence that a person

deliberately deleted or attempted to delete files containing child

pornography tends to show that the person was aware of the files

and their illicit nature." Breton, 740 F.3d at 13; United States

v. Glassgow, 682 F.3d 1107, 1109-10 (8th Cir. 2012) (knowledge

shown, in part, from deletion of images).17

The evidence reasonably supported a finding that Royle

was the initiator of this wipe. As discussed above, the government

established that the wipe function began at 6:55 a.m., and that

Royle was the only adult home at 7:40 a.m. when the agents

discovered the open computer on a desk upstairs. Although it is

perhaps conceivable that an unknown, overnight or early-morning

17 Thefacts in Royle's case provide especially compelling indicia of guilt, as the computer user here did not simply put files in the trash -- the pornographic content had already been deleted once, then a wipe function was initiated to further eviscerate the files.

- 37 - guest initiated the wipe and left without trace prior to the

agents' arrival, a reasonable jury could well find this theory

implausible, based on the evidence previously discussed. In

addition to evidence tending to show that Royle was the only adult

living in the home and that he used the laptop, evidence showed

that the wipe function would take approximately 13 hours to

complete. Royle's argument that a transitory guest would have

left the laptop unattended in Royle's home to complete this process

defies common sense. See, e.g., United States v. Shaw, 670 F.3d

360, 366 (1st Cir. 2012) ("[J]urors are neither required to divorce

themselves from their common sense nor to abandon the dictates of

mature experience" (quoting United States v. Ortiz, 966 F.2d 707,

712 (1st Cir. 1992))).18

3. Pothier: Other Plausible Users Theory

Lastly, to the extent Royle argues that our decision in

Pothier is "materially identical" to his case and compels reversal,

18 Royle argues that the wipe function was a perfectly innocent

application to run. But, for the reasons discussed, a reasonable jury could supportably conclude that under these circumstances it evinced consciousness of guilt, rather than routine maintenance. United States v. Ortiz, 966 F.2d 707, 712 (1st Cir. 1992) ("When assessing sufficiency challenges in criminal cases, we have remarked, time and again, that factfinders may draw reasonable inferences from the evidence based on shared perceptions and understandings of the habits, practices, and inclinations of human beings."). This is particularly so given the time-intensive nature of the process, the testimony that many files on the computer had already been deleted once, and that the wipe function, if completed, would have prevented forensic examiners from recovering the data.

- 38 - he is mistaken. In Pothier, we reversed a child pornography

conviction, holding that the evidence in that case was insufficient

to support a finding that the defendant knowingly possessed child

pornography. Pothier, 919 F.3d at 144, 148.

The defendant in that case, William Pothier, owned a

laptop that was found to contain child pornography. The laptop

was discovered by police in an Exeter, New Hampshire, apartment

where two adults other than Pothier received mail. Id. at 146-

47. One of these two other people -- Josephine Pritchard -- owned

the apartment. Id. at 146. There was no additional evidence about

the third adult. Id. Pothier also had a New York apartment where

he would spend time, and owned other property in New Hampshire,

where his car was registered. Id.

Police seized Pothier's laptop after initiating a search

of the residence. When police arrived to execute the search, they

repeatedly knocked on the door, and Pothier did not respond to the

knocking for some time. Id. at 145. After entering the apartment,

the police found the laptop in the living room of the residence.

Id. at 144. The owner of the apartment, Pritchard, arrived during

the search. Id. at 146.

Like the laptop here, Pothier's computer was not

password protected. Id. at 145. Although Pothier admitted to

owning the laptop and indisputably "used [it] on at least a handful

of occasions," it was unknown "whether he left the laptop at the

- 39 - [residence in question] when he was elsewhere." Id. at 146-47.

At trial, the prosecution's "sole theory" was that "Pothier must

have known that the illicit material was on his laptop because he

was the only person who otherwise used [it], and therefore must

have been the person who downloaded the pornography." Id. at 147.

In reversing Pothier's conviction on that theory, we

explained that the government's evidence for the "knowing" element

required "guesswork" between two "plausible" scenarios. Id. at

147. On the one hand, it was plausible that Pothier downloaded

the child pornography but "decided to forgo password protection

and then left the laptop in the living room of a residence at which

two other people received mail." Id. On the other hand, it was

also plausible that one of the two other adults "used the readily

available laptop during Pothier's frequent absences to download

the . . . child pornography." Id. Without more evidence to

reasonably support a finding as to "which scenario describe[d]

what happened," we held that the jury's acceptance of the former

theory was necessarily based on "guesswork." Id. As we explained,

"[g]uilt beyond a reasonable doubt cannot be premised on pure

conjecture." Id. (quoting Stewart v. Coalter, 48 F.3d 610, 615

(1st Cir. 1995)) (alterations original). But "pure conjecture" is

not what we have here.

Royle seems to suggest that Pothier created a bright-

line rule that, where "someone other than the defendant had the

- 40 - opportunity to use a [child-pornography-containing] computer," the

government must affirmatively offer evidence "rul[ing] out" this

other person or directly prove the defendant was using the computer

when the illicit material was accessed. Here, Royle contends that

other plausible "someone[s]" include the computer's automated

processes, his ex-wife, the "unknown white female" observed

outside of his house, or a burglar. He contends that Pothier

requires reversal in this case because the government did not

affirmatively "rule out" these other potential suspects. But Royle

misreads things.

Our decision in Pothier created no such rule and

expressly disclaimed any attempt to "make new law." Pothier, 919

F.3d at 149. The law remains that "[t]he government need not

present evidence that precludes every reasonable hypothesis

inconsistent with guilt in order to sustain a conviction." United

States v. Hernández, 218 F.3d 58, 64 (1st Cir. 2000) (quoting

United States v. Loder, 23 F.3d 586, 590 (1st Cir. 1994)); United

States v. Naranjo-Rosario, 871 F.3d 86, 92–93 (1st Cir. 2017) ("[We

need not] be convinced that the government succeeded

in eliminating every possible theory consistent with the

defendant's innocence." (quoting United States v. Troy, 583 F.3d

20, 24 (1st Cir. 2009))). Rather, the government need only prove

each essential element of a charge beyond a reasonable doubt.

United States v. Rodríguez-Vélez, 597 F.3d 32, 39 (1st Cir. 2010).

- 41 - For the reasons already discussed, a reasonable jury could conclude

that the government did so here.

Even if we assume, arguendo, that Royle's theories of

other persons using the laptop to access child pornography are

"plausible" on their face, the weight of the government's evidence

here is markedly stronger than the "surprisingly incomplete

record" in Pothier. See 919 F.3d at 147, 149. Unlike in Pothier,

here, the government presented evidence that Royle was the only

adult resident of the house, the laptop was found in a more private

space than a living room, and the laptop was used to access child

pornography during hours in which a resident of the house would

presumably be home alone. The wipe-function evidence moves the

needle to point even further away from a "plausible" coin-toss to

Royle, and toward beyond a reasonable doubt, given the timing of

when it was run.19 Indeed, in Pothier, we noted that the absence

of any similar attempt by the defendant to destroy the laptop's

We note that a rational jury would have been well-supported 19

in rejecting alternative theories about the wipe as implausible or overly speculative. We refer to our discussion above as to Royle's argument that the laptop itself could have been the culprit. The notion that a person's ex-wife would briefly show up to his house at 6:00 a.m. to initiate a 13-hour wipe-function and then leave is implausible. Similarly, the notion that the "unknown white female" was behind the wipe, to the extent she was a different person, is too speculative to disrupt this verdict. The suggestion that a burglar, who periodically entered a dwelling over a period of months to download pornography, broke back into that home to delete evidence of his activity strains common sense. Although Royle does not specifically argue that any of these other potential users was behind the wipe function, his argument necessarily implies it.

- 42 - child pornography -- despite perhaps having the time and means to

do so -- undermined the sufficiency of the government's scant

evidence. See Pothier, 919 F.3d at 147-48.20 In sum, the

combination of these factual distinctions removed the jury's task

from the "guesswork" apparent in Pothier.

We conclude by noting that we agree with the district

court's observation that "[t]he prosecution could have done more

to investigate and demonstrate the laptop's provenance, usage, and

location," and "other adults' access to the house." United States

v. Royle, No. 2:18-cr-165-JNL, 2020 WL 2617133, at *9 (D. Me. May

22, 2020). However, this perspective alone does not allow us to

disturb the jury's verdict. See, e.g., Salva-Morales, 660 F.3d at

75. Here, the government did enough. "Viewing the record as a

whole and using their common sense," a rational jury could have

found Royle guilty beyond a reasonable doubt. Williams, 717 F.3d

at 40.

IV.

AFFIRMED.

Pothier took about 15 minutes to answer the door to allow 20

the police in; we noted that he did not run a wipe function or hide the computer during this "lengthy delay." Pothier, 919 F.3d at 147-48.

- 43 -