Indictment Surplusage Is Not an Element on Federal Habeas; Circumstantial Digital Evidence Can Prove “Receipt” and Venue: Commentary on Lowe v. Mills

Introduction

In Lowe v. Mills, the United States Court of Appeals for the Fifth Circuit affirmed the denial of a federal habeas corpus petition under 28 U.S.C. § 2254 brought by John B. Lowe, who challenged the sufficiency of the evidence supporting his Mississippi conviction on five counts of exploitation of children by receipt of child pornography under Miss. Code Ann. § 97-5-33(3). The case sits at the intersection of state substantive criminal law and federal habeas procedure. It raises three central sufficiency questions:

Whether the State proved jurisdiction and venue in Jones County, Mississippi under § 97-5-33(9).
Whether the State had to prove that downloads occurred “via the internet” because the indictment used that phrase.
Whether the evidence showed knowing receipt of depictions of actual children (as opposed to virtual images) engaged in sexually explicit conduct.

The panel resolved these issues against the petitioner, concluding that a rational juror could find the elements beyond a reasonable doubt. Notably, the court elected to deny relief under a de novo sufficiency review without resolving whether AEDPA deference applied, and it emphasized that federal habeas courts are bound by a state court’s construction of state-law elements—including the determination that “via the internet” language in the indictment was surplusage that did not raise the State’s burden at trial.

Summary of the Judgment

The Fifth Circuit affirmed the district court’s judgment denying Lowe’s § 2254 petition. Although the parties disputed whether the Mississippi Court of Appeals had actually adjudicated sufficiency for the charged offense of “receipt” (as opposed to the different offense of “possession”), the panel bypassed the AEDPA deference question and reviewed the sufficiency claim de novo, citing Berghuis v. Thompkins. Applying Jackson v. Virginia, the court held:

Venue and jurisdiction: The State’s proof that Lowe lived and worked in Jones County; that he was at work on June 6, 2009; and that the videos were downloaded on June 5–6, 2009 permitted a rational jury to find that all or part of the conduct occurred in Jones County, satisfying § 97-5-33(9) and venue requirements.
“Via the internet” surplusage: The Mississippi Court of Appeals’ earlier holding that “via the internet” was not an element of § 97-5-33(3) bound the federal habeas court under Bradshaw v. Richey; thus, the State did not need to prove that specific modality beyond what § 97-5-33(3) requires.
Knowing receipt of depictions of actual children: Digital artifacts (files in the “Muzicman” account’s download directory, a password-protected user profile, explicit file titles, and evidence of repeated access reflected in a “favorites” folder) allowed jurors to infer knowing receipt of videos depicting actual minors.

Because a rational trier of fact could have found the elements beyond a reasonable doubt, the sufficiency challenge failed. The court therefore affirmed the district court’s denial of habeas relief.

Factual and Procedural Background

In 2008–2009, Lowe lived in Jones County, Mississippi, near his romantic partner, Marie Taylor, and her daughters. He owned a laptop with two accounts: “Muzicman” (password-protected) and “Minnie” (unprotected). Taylor and her daughters were permitted to use only “Minnie.” After allegations of inappropriate touching of children and a report that he showed a child a pornographic video, police, aware of Lowe’s prior child-pornography conviction, searched for Lowe. When they could not find him, they ultimately retrieved his laptop from Taylor under a warrant.

A forensic search found five child-pornography videos in the “Muzicman” account’s download directory, with timestamps on June 5–6, 2009—a period when Lowe was unsupervised at work with access to multiple unsecured Wi‑Fi networks. Lowe was later found in San Diego and returned to Mississippi, where a jury convicted him on five counts of exploitation of children by receipt of child pornography, and he was sentenced as a habitual offender to five consecutive life sentences. The Mississippi Court of Appeals affirmed, discussing sufficiency as to possession rather than receipt. State post-conviction relief was denied; Lowe’s federal habeas petition presented nine claims, but the Fifth Circuit granted a certificate of appealability solely on the sufficiency claim and ultimately affirmed.

Analysis

Precedents Cited and Their Influence

Jackson v. Virginia, 443 U.S. 307 (1979): Establishes the federal constitutional standard for sufficiency review: whether any rational trier of fact could have found the essential elements beyond a reasonable doubt when viewing the evidence in the light most favorable to the prosecution. Jackson governs sufficiency claims on habeas.
United States v. Brown, 186 F.3d 661 (5th Cir. 1999): Clarifies that sufficiency review considers both inculpatory and countervailing evidence; juries can weigh competing inferences.
United States v. Rains, 615 F.3d 589 (5th Cir. 2010): Confirms that the evidence need not exclude every reasonable hypothesis of innocence; jurors may choose among reasonable constructions of the evidence.
Berghuis v. Thompkins, 560 U.S. 370 (2010): Allows federal courts to deny § 2254 claims on de novo review without deciding whether AEDPA deference applies when the claim fails even under de novo standards. The panel relied on this to sidestep the possession-versus-receipt adjudication dispute.
Bradshaw v. Richey, 546 U.S. 74 (2005): Holds that federal habeas courts are bound by state courts’ interpretations of state law, including definitions of offense elements and the effect of indictment language. This principle controlled the “via the internet” surplusage issue.
Mullaney v. Wilbur, 421 U.S. 684 (1975): Reinforces that federal courts accept state courts’ constructions of state law absent exceptional circumstances suggesting subterfuge to evade federal issues.
Lewis v. Thaler, 701 F.3d 783 (5th Cir. 2012): States the standard of review of district court rulings on § 2254 petitions (facts for clear error; law de novo), framing the appellate lens.
Parker v. Davis, 914 F.3d 996 (5th Cir. 2019): Limits appellate review to issues included in the certificate of appealability (COA). Here, only sufficiency was before the court.
Nuckolls v. State, 179 So. 3d 1046 (Miss. 2015): Mississippi authority that venue is a material allegation and part of the State’s burden. Together with § 97‑5‑33(9), it shaped the court’s venue analysis.
Lowe v. State, 269 So. 3d 244 (Miss. Ct. App. 2018): The state appellate decision on direct appeal. It held that “via the internet” in the indictment did not change the elements of § 97‑5‑33(3), an interpretation that bound the federal habeas court under Bradshaw.

Legal Reasoning

The panel’s reasoning followed the Jackson framework, applied de novo, and proceeded in three steps matching the petitioner’s arguments.

1) Jurisdiction and Venue under § 97‑5‑33(9) and Mississippi Law

Mississippi’s statute deems the offense committed in the State if any part of the described conduct occurs within Mississippi or if the transmission originates or is received in Mississippi. Venue in the proper county is also a material allegation the State must prove.

Here, circumstantial evidence showed that:

Lowe lived and used the laptop in Jones County.
He was unsupervised at work in Jones County on June 6, 2009.
The five videos were downloaded on June 5 and 6, 2009.

From these facts, a rational juror could infer beyond a reasonable doubt that “all or part of” the conduct—namely, receipt/download of the videos—occurred in Jones County, thereby satisfying both the jurisdictional nexus and venue. The analysis accepts circumstantial proof of location and timing; direct proof of the exact network or IP address was not required under Jackson.

2) The Indictment’s “Via the Internet” Language Did Not Raise the State’s Burden

Lowe argued that the indictment alleged he “downloaded” and “via the internet/computer, receive[d]” child pornography, and that the State therefore had to prove receipt occurred “via the internet.” The Mississippi Court of Appeals had already held on direct review that this language did not alter the elements of § 97‑5‑33(3). Under Bradshaw, a federal habeas court must accept a state court’s authoritative construction of state law. Consequently, the Fifth Circuit treated the “via the internet” clause as surplusage that did not add an element, avoiding any constructive-amendment/variance problem at the federal constitutional level.

Even aside from the surplusage point, the proof of files located in the “download” directory of the password-protected “Muzicman” account on the relevant dates allowed jurors to infer that Lowe himself downloaded them, which satisfies “receipt” under § 97‑5‑33(3). The State did not have to disprove alternative acquisition methods inconsistent with “via the internet,” because that modality was not an element.

3) Knowing Receipt of Visual Depictions of Actual Minors

Section 97‑5‑33(3) criminalizes the knowing receipt of a “visual depiction of an actual child engaging in sexually explicit conduct.” The panel held that a rational juror could conclude the videos depicted actual children and that Lowe knew as much. The evidence included:

The jury personally viewed the videos.
File titles plainly signaling very young children were depicted (e.g., references to “two-year-old girl”).
Storage of the videos in the “Muzicman” account’s download directory.
Unrebutted testimony that one video was saved to “favorites,” indicating repeated access.

From these facts, jurors could reasonably infer both the “actual child” component and Lowe’s knowledge. The court did not require expert testimony specifically opining that the children were “actual” as opposed to computer-generated; content, context, and repeated access sufficed to meet Jackson’s rational-juror standard.

Impact and Significance

Although unpublished and nonprecedential under Fifth Circuit Rule 47.5, Lowe v. Mills carries practical implications for habeas litigation and for trial practice in child-exploitation prosecutions, particularly in Mississippi.

Habeas practice—state-law elements bind federal courts: The decision reaffirms that federal habeas sufficiency review is anchored in state-defined elements. Where a state appellate court has characterized indictment language as surplusage, federal courts will not treat that language as an element. Defense strategies that hinge on surplus indictment verbiage creating new elements will face steep headwinds on habeas.
De novo denial when AEDPA status is uncertain: By invoking Berghuis, the panel underscores a recurring procedural reality: courts can deny relief without deciding whether AEDPA deference applies where the claim fails even de novo. Petitioners should be prepared to meet not only the “double deference” that often applies to Jackson claims on habeas, but also the possibility that courts will resolve claims against them without reaching AEDPA—foreclosing relief either way.
Receipt vs. possession—digital artifacts can prove “receipt”: The court accepted circumstantial digital evidence (download directory placement, user account segregation and password protection, timestamps, repeated access indicators) as adequate to prove “receipt,” not merely possession. Prosecutors can rely on basic forensic artefacts, even without IP logs, to establish receipt; defense counsel should challenge the chain of inferences and user attribution early and often at trial.
Venue/jurisdiction—circumstantial proof suffices: Timing and location facts (e.g., defendant’s presence in county during download timestamps and access to local Wi‑Fi) can satisfy § 97‑5‑33(9) and venue burdens. This lowers the practical need for technical geolocation, provided the circumstantial narrative is coherent.
“Actual child” proof—jury inference from content and context: Jurors may infer the “actual child” element from the video content itself and contextual clues (file titles, repeated viewing). This aligns with broader trends allowing content-based inference without expert testimony specifically excluding virtual imagery.
Indictment drafting: The case is a cautionary note for prosecutors: avoid unnecessary modifiers (“via the internet”) that can invite litigation. Still, where such language is included, state appellate clarification that it is surplusage will bind federal habeas courts.

Complex Concepts Simplified

Jackson v. Virginia sufficiency standard: On sufficiency review, courts ask whether any reasonable juror could find each element beyond a reasonable doubt, viewing evidence in the prosecution’s favor. Courts do not re-weigh evidence; they test the reasonableness of the jury’s possible inferences.
AEDPA deference (28 U.S.C. § 2254(d)): Normally, federal habeas relief is limited to cases where the state court’s decision was contrary to or unreasonably applied clearly established federal law, or was based on an unreasonable determination of the facts. In sufficiency claims, this often adds a layer of deference on top of Jackson. In Lowe, the court did not decide whether AEDPA applied because it would deny relief even under de novo review.
De novo review: The appellate court independently assesses the legal question without deferring to the prior (here, state) decision on that question. De novo is a more petitioner-friendly lens than AEDPA; failing even de novo typically ends the habeas claim.
Indictment surplusage: Extra words in an indictment that are unnecessary to describe the statutory offense. Under state law, such surplus language does not create new elements the State must prove. Federal habeas courts must accept a state court’s determination that particular words are surplusage.
Venue vs. jurisdiction: Jurisdiction concerns whether the State and court have the authority to prosecute the offense (here, if any part of the conduct or transmission occurred in Mississippi). Venue is the proper county for trial. Mississippi treats venue as a material allegation the State must prove as part of its case.
Receipt vs. possession: “Receipt” usually requires proof the defendant knowingly acquired or accepted the material; “possession” requires knowing control over it. For digital cases, artifacts like download directories and user account protections can be key in proving receipt.
“Actual child” requirement: Statutes criminalizing child pornography typically require that the images depict real, not virtual, minors. Juries may infer this from the content’s appearance and context; expert testimony is helpful but not always necessary.

Key Evidence the Court Found Sufficient

Five child-pornography videos located in the “Muzicman” account’s download directory.
Password-protected “Muzicman” account, with others restricted to the unprotected “Minnie” account.
Timestamps on June 5–6, 2009; Lowe was unsupervised at work in Jones County on June 6 with access to unsecured Wi‑Fi.
Explicit file titles suggesting very young children and sexual abuse.
Expert testimony that at least one video was saved to “favorites,” indicating repeated access from the account.

Practical Takeaways

For defense counsel: Where multiple users have access to a device, attack the attribution link (passwords, who knew them, physical access logs, remote access possibilities). Consider expert testimony to challenge whether content necessarily depicts actual minors. Preserve specific objections to venue with more granular network/location evidence if available.
For prosecutors: Build a layered circumstantial case: user-account controls, directories, timestamps, repeated access indicators, and defendant’s physical presence. Avoid surplus language in indictments; if already present, seek early appellate clarification that it is not an element.
For trial courts: Provide clear jury instructions differentiating “receipt” and “possession,” address venue as a material issue, and ensure that jurors understand they may draw reasonable inferences from digital artifacts and content observed.

Conclusion

Lowe v. Mills reinforces two core points of federal habeas and state criminal practice. First, on habeas sufficiency challenges, federal courts are bound by state courts’ constructions of the elements of the offense and may treat superfluous indictment language as non-elemental if the state appellate courts have so held. Second, circumstantial digital evidence—particularly user-account controls, download directory placement, timestamps contemporaneous with the defendant’s presence in the county, and content cues—can suffice to prove “receipt” of child pornography and to establish venue and jurisdiction under Mississippi’s statutory scheme.

By affirming under de novo review while sidestepping the AEDPA deference question, the Fifth Circuit also signals a pragmatic approach: where the record supports the verdict under Jackson, habeas relief will be denied whether or not AEDPA’s added deference applies. The decision, albeit unpublished, provides a roadmap for how courts will assess digital-forensic sufficiency in “receipt” prosecutions and underscores the importance of state-law definitions in federal habeas analysis.