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United States v. Nance

United States Court of Appeals, Tenth Circuit

September 23, 2014

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
JORY MICHAEL NANCE, Defendant - Appellant

Appeal from the United States District Court for the Western District of Oklahoma. (D.C. No. 5:12-CR-00267-HE-1).

Jacob L. Rowe, Oklahoma City, Oklahoma, for Defendant-Appellant Jory Michael Nance.

Brandon T. Hale, Assistant United States Attorney (Sanford C. Coats, United States Attorney and Chris M. Stephens, Assistant United States Attorney, with him on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee United States of America.

Before BRISCOE, Chief Judge, EBEL, and MATHESON, Circuit Judges.

OPINION

Page 1038

EBEL, Circuit Judge.

A jury convicted Defendant-Appellant Jory Nance of multiple counts of transporting child pornography and receiving or attempting to receive child pornography. He challenges those convictions, contending 1) the district court erred in admitting evidence of his uncharged bad acts under Federal Rule of Evidence 404(b)(2); and 2) there was insufficient evidence for a jury to find that he attempted to receive child pornography. Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.

I. BACKGROUND

Viewed in the light most favorable to the Government, see United States v. Battles, 745 F.3d 436, 453 (10th Cir. 2014), the evidence at trial established the following. Using peer-to-peer file-sharing software, Nance downloaded child pornography on his laptop computer from sometime in 2009 through April 2012. He also used this software to share child pornography with others, including an Edmond, Oklahoma detective who was able to download eight files containing child pornography from Nance during March and April 2012. This resulted in the United States charging Nance with eight counts of transporting child pornography, in violation of 18 U.S.C. § 2252(a)(1).

The detective turned the child pornography she had obtained from Nance over to FBI agents, who began watching Nance's home, where he lived with his wife, their two-year-old son, and his wife's five-year-old daughter. After Nance noticed one of the agents outside his home, he stopped downloading child pornography and began deleting it from his laptop; he also researched how to reformat his computer. Shortly thereafter, FBI agents seized Nance's laptop. At that time, Nance acknowledged that he was the only one who used the laptop, but told agents, falsely,

Page 1039

that the computer had been inoperable for several months due to computer viruses.

The FBI conducted a forensic analysis of Nance's laptop. Although Nance had superficially deleted most of the child pornography from the laptop, the FBI was able to recover 1,000 previously-deleted images of child pornography, mostly involving preteen girls. The FBI was also able to recover the names of a number of deleted files, although the images linked to those files were not recoverable. In addition, the computer's automatic logs had documented the searches Nance conducted on peer-to-peer networks using terms associated with child pornography. These logs also had chronicled when Nance downloaded the images and files of child pornography that the FBI recovered from his computer, as well as when Nance watched this pornography. Based on its forensic analysis, the United States charged Nance with multiple counts of receiving or attempting to receive child pornography, in violation of 18 U.S.C. § 2252(a)(2).

Nance's defense at trial was that he did not know about the child pornography on his computer and that it must have been there as the result of computer viruses or hackers. The jury rejected that defense and convicted Nance of eight counts of transporting child pornography and forty-nine counts of receiving or attempting to receive child pornography.[1] The district court sentenced Nance to a ...


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