United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANT'S MOTION FOR JUDGMENT OF
Corbett O'Meara United States District Judge.
matter came before the court on defendant Tommy Lee
Jones' November 23, 2016 motion for judgment of acquittal
as to Counts Two and/or Three, or in the alternative, for new
trial. The government filed a response December 21, 2016; and
Defendant filed a reply brief January 11, 2017. No oral
argument was heard.
November 9, 2016, a jury returned a verdict finding defendant
Tommy Lee Jones guilty of Counts Two, Three, Four and Five of
the First Superseding Indictment. Count One had been
previously dismissed on the government's motion.
Defendant Jones seeks judgment of acquittal as to Counts Two
and Three, or in the alternative, for a new trial because the
verdicts of those counts are against the great weight of the
to Rule 29 of the Federal Rules of Criminal Procedure, a
defendant may move for a judgment of acquittal based on
insufficient evidence to support a jury's verdict. 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."
Jackson v. Virginia, 443 U.S. 307, 319 (1979).
"This is a very heavy burden for the defendant to
meet." United States v. Jones, 641 F.3d 706,
710 (6th Cir. 2011). On a motion for judgment of acquittal,
the district court may not make independent determinations
regarding credibility of witnesses or weight to be given to
the evidence. United States v. Davis, 981 F.2d 906
(6th Cir. 1992).
case sufficient evidence supported the jury's guilty
verdict on Count Two, which charged defendant Jones with
advertising child pornography. Several Circuit Courts of
Appeal have held that peer-to-peer file sharing programs like
Ares, the one used by defendant Jones, constitute advertising
of child pornography. See United States v. Franklin,
785 F.3d 1365 (10th Cir. 2015); United States v.
Sewell, 513 F.3d 820 (8th Cir. 2008); and United
States v. Williams, 659 F.3d 1223 (9th Cir. 2011).
presented at trial, including the testimony of FBI Special
Agents Nichols, Christensen, Williams and Fitzgerald, as well
as the physical exhibits of the examination of defendant
Jones' computer, established that he knowingly advertised
to distribute and receive child pornography. Jones' Ares
system, which was set to "share" files, contained
evidence that he was providing notice and offering child
pornography files. The file names contained graphic
descriptions of sexual assault against young children and, in
some instances, included the child's age in the title.
The titles also contained code words frequently used by child
pornographers to signal the contents of the files. Moreover,
Jones himself confessed to using the peer-to-peer file
sharing program and expressed his knowledge of how the shared
Three, charging distribution of child pornography, was also
supported by sufficient evidence. Courts of Appeals have held
that distribution of child pornography can be proven by
downloading images using peer-to-peer file sharing software
and freely allowing others access, particularly in cases in
which the defendant is shown to understand how the program
operates. See United States v. Shaffer, 472 F.3d
1219 (10th Cir. 2007); United States v. Bolton, 669
F.3d 780 (6th Cir. 2012); and United States v.
Conner, 521 Fed.Appx. 493 (6th Cir. 2013).
case Special Agent Nichols testified that he downloaded child
pornography from defendant Jones' computer over the
course of two days. The evidence presented at trial included
screen shots of the downloads, which matched Jones' IP
address from his house. Moreover, other evidence showed that
every file downloaded in Jones' peer-to-peer file sharing
program was marked as "available for download by
others." Furthermore, defendant Jones testified that he
moved files out the shared folder to avoid others from
gaining access, demonstrating his knowledge of how the
program worked and that he was distributing his child
pornography files. Accordingly, there was ample evidence to
support the jury's guilty verdicts on Counts Two and
alternative, Jones seeks a new trial under Rule 33 for the
same reasons he claims he is entitled to judgment of
acquittal under Rule 29. Pursuant to Rule 33, "the court
may vacate any judgment and grant a new trial if the interest
of justice so requires." "[T]he defendant bears the
burden of proof that a new trial is warranted and 'such
motions should be granted sparingly and with
caution.'" United States v. Dolan, 134 F.3d
372 at *3 (6th Cir. 1997) (quoting United States v.
Turner, 995 F.2d 1357, 1364 (6th Cir. 1993)).
Jones has presented nothing that would qualify as an
extraordinary circumstance warranting a new trial. The
defense presented evidence from the defendant's son, the
defendant's girlfriend/stepdaughter, and the defendant
himself; and none of these witnesses was credible. The
defendant's son doctored surveillance photos in an effort
to show when Jones climbed the stairs on the morning of the
search. Defendant's son also admitted he assisted his
father in obtaining and destroying a thumb drive that law
enforcement mistakenly left behind at the house.
Defendant's girlfriend/stepdaughter admitted to helping
threaten her mother in order to obtain the missing thumb
drive and agreed that she would do just about anything to
help defendant Jones. The jury believed none of
Defendant's witnesses and said so through their verdict.
hereby ORDERED that defendant Jones' November 23, 2016
motion for judgment of acquittal or, in the ...