Possession of Child Porn Conviction Affirmed

U.S. v Schene, -- F.3d --, 2008 WL 4379509 (10th Cir. 9/29/08) - There was sufficient evidence that materials transported in interstate commerce were used to download porn images to the hard drive of Schene's computer to support his conviction of knowingly possessing child porn. Schene did not challenge sufficiency of the evidence at trial on this ground and any error did not violate his substantial rights or seriously affect the fairness of judicial proceedings. Also, there was sufficient proof that it was Schene, not his wife, who knowingly possessed the child porn.

The district court did not abuse its discretion in admission of evidence. Testimony that women don't generally look at or traffic in child porn did not need to have scientific basis established because it was admitted to explain that the agent acted in accord with his training by focusing on Schene and not his wife. Alleged prosecutorial misconduct in presenting evidence of Schene's visiting of gay websites was not flagrant enough to improperly influence the jury. It was OK for gov't to show porn images at trial, despite Schene's stipulation that they constituted child porn, because the gov't was entitled to prove its case and the images were not unfairly prejudicial.