APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Francisco A. Besosa, U.S. District Judge.
Johnny Rivera-González for appellant.
Daniel Steven Goodman, Criminal Division, Appellate Section, U.S. Department of Justice, with whom Rosá Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, Jenifer Y. Hernandez-Vega, Assistant United States Attorney, Mythili Raman, Acting Assistant Attorney General, and Denis J. McInerney, Deputy Assistant Attorney General, were on brief, for appellee.
Before Thompson, Lipez, and Barron, Circuit Judges.
LIPEZ, Circuit Judge.
Appellant Alejandro Figueroa-Lugo (" Figueroa" ) appeals from his conviction for knowing possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). We affirm.
On March 17, 2011, Figueroa was charged with one count of " knowingly possess[ing] one or more matters which contained visual depictions of one or more minors engaging in sexually explicit conduct," in violation of 18 U.S.C. § 2252(a)(4)(B). Pursuant to 18 U.S.C. § 2253, the indictment also sought criminal forfeiture of the Compaq Presario computer that had been seized from Figueroa's bedroom. On July 10, 2012, following a six-day trial, the jury found Figueroa guilty as charged in the indictment. At a subsequent sentencing hearing, the district court sentenced him to seventy-two months of imprisonment, to be followed by eight years of supervised release.
Figueroa appeals the court's denial of his motion for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. United States v. Figueroa-Lugo, 915 F.Supp.2d 237 (D.P.R. 2013). He contends that the evidence presented at trial was insufficient to convict him of a violation of § 2252(a)(4)(B) because the government failed to prove (1) that the people in the images and videos were actual children, and (2) that Figueroa's possession of any child pornography was knowing. Additionally, Figueroa appeals three of the district court's jury instruction rulings: (1) the decision to give a willful blindness instruction, (2) the decision not to instruct the jury as to the affirmative defense provided in 18 U.S.C. § 2252(c) that the defendant promptly and in good faith took steps to destroy the child pornography that he possessed, and (3) the refusal to give his proposed " inconsistent mental state" jury instruction.
In analyzing a claim that the district court erred in denying a post-trial motion for judgment of acquittal, we " must affirm the conviction if after de novo review of the evidence taken in the light most favorable to the government, we conclude that a rational factfinder could find that the government proved the essential elements of its case beyond a reasonable doubt." United States v. Marin, 523 F.3d 24, 27 (1st Cir. 2008); see also United States v. Chiaradio, 684 F.3d 265, 281 (1st Cir. 2012) (applying the standard in a child pornography case). Such a standard of review is " formidable," and a defendant who challenges a conviction on the basis of insufficient evidence confronts " an uphill battle on appeal." United States v. Rodriguez, 457 F.3d 109, 118 (1st Cir. 2006). " [R]aising a plausible theory of innocence does the defendant no good, because the issue is not whether a jury rationally could have acquitted but whether it rationally could have found guilt beyond a reasonable doubt." United States v. Seng Tan, 674 F.3d 103, 107 (1st Cir. 2012).
A. The Government's Case
1. Locating the Defendant
On January 29, 2010, at the request of law enforcement in Puerto Rico, Lieutenant Glenn Lang (" Lang" ), supervisor of the Maine State Police's computer crimes unit, conducted a peer-to-peer networking investigation to determine whether child pornography was being transmitted to Puerto Rico over the internet. Lang, an expert in computer forensics and peer-to-peer networking, checked LimeWire, a peer-to-peer program that allows users who install it on their computers to set up folders and share files with other LimeWire users. In order to find consumers of child pornography, Lang accessed a number of databases containing lists of files that police officers had identified as child pornography. Using " global unique identifiers," Lang was able to obtain a list of the top offenders in San Juan, Puerto Rico by identifying the Internet Protocol (" IP" ) addresses of the LimeWire users who had accessed the greatest number of files tagged as child pornography in the police databases. At the top of that list was IP address 188.8.131.52, which police databases indicated was sharing 363 files of child pornography through LimeWire by the time Lang conducted his investigation in January 2010. From November 28, 2009 through early 2010, the only user of IP address 184.108.40.206 was the household of Fernando Figueroa, the father of appellant Alejandro Figueroa. Caribe Net, an internet service provider in Puerto Rico, assigned that IP address to Fernando Figueroa's account. It was Caribe Net's practice to assign only one IP address to a single residential address, even if several individuals used multiple computers within the residence.
In the names for the files associated with IP address 220.127.116.11, Lang identified several terms commonly used in child pornography files, including " pthc" (for " preteen hard core" ), " pedophilia," " pedo," " r@ygold," " hussyfan," and " child porn." For example, Lang testified that on January 27, 2010, a video file with the title " porn pthc 9yo Vicki stripping and sucking (kiddie pedo illegal underage preteen).mpg" was shared with IP address 18.104.22.168. Lang indicated that the file was " a fairly large video file . . . in what's called the Vicki series" and shows " a nine-year-old girl stripping down" who " gets down on her knees and performs oral sex on an adult male."
Lang mailed the results of his child pornography database search to the Homeland Security Investigations (" HSI" ) directorate of Immigration and Customs Enforcement (" ICE" ) in Puerto Rico. Agent Harold Simmons Julsrud, III, a criminal investigator and forensics agent in the cyber crimes group of HSI, received the information, and, through Caribe Net, learned the physical address associated with IP address 22.214.171.124. He then obtained a search warrant for the residence.
2. The Fruits of the Search
At 6:00 a.m. on May 12, 2010, Agent Julsrud and other HSI cyber crimes unit agents executed the search warrant at the Figueroa residence. Appellant and his parents, Fernando Figueroa and Bá rbara Lugo, were present. The agents seized nine computers and eight loose hard drives, as well as thumb drives, DVDs, CDs, and videotapes. They found one of the computers, a Compaq Presario desktop computer, on a desk in the appellant's bedroom, turned on with several sessions of Mozilla Firefox internet browser open.
Special Agent Luis Manuel Colón of ICE, an expert in computer forensics, performed a forensic examination of all the computers and media devices seized from the home. He found child pornography on the Compaq Presario desktop computer seized from the appellant's bedroom, but not on any of the other devices taken from the residence. On that computer, Agent Colón discovered eighteen still images and seven videos " that contained minors in lasciv[i]ous exhibition of the genitalia." LimeWire software had been installed on the computer on September 11, 2009 and updated on March 17, 2010. The only user name on the computer was " the Alejandro account."
All of the still images of child pornography on that computer were stored in the " Alejandro\ My Documents\ LimeWire\ Saved" folder. The images had not been deleted, and all were accessible to the computer user. The images were identified by file names such as " 9yo Jenny nude with legs spread wide apart showing pussy -- underage lolita r% 2540Ygold Pthc ptsc ddogprn pedo young child sex preteen hussyfan kiddie kiddy porn" and " 6yr old yo underage child daughter childsex childfugga childlover ptsc pthc lsm lsn pedo rape torture cum ass pussy hussyfan mafiasex r@ygold dick Sandra teen model bd(1)."
Similarly, all seven child pornography videos had not been deleted and were accessible to the computer user. Those videos were saved on Figueroa's computer in LimeWire folders, including " C drive\ Documents and Settings\ Alejandro\ My Documents\ LimeWire\ Incomplete" and " C drive\ Documents and Settings\ Alejandro\ My Documents\ My Chat Logs\ LimeWire\ Incomplete\ New Folder." The videos saved in a folder with the word " incomplete" in its title were accessible to the user through both LimeWire and Windows.
B. Figueroa's Defense
1. Anner Bonilla Rivera
Bonilla, a software engineer for Hewlett Packard, was the first to testify for Figueroa. He sought to establish that various anti-virus programs found on Figueroa's computer could have been responsible for opening the child pornography files, rather than Figueroa himself. Specifically, Bonilla testified that the anti[-]virus software Avira accesses every file on the computer to determine whether it is infected with a virus. He stated that " [t]here's no way to know if the 'last access date' was changed by an anti-virus or by a user or by any other Windows application . . . that opened it." He similarly testified that " [t]here's no way to know" if PC Health virus, also found on Figueroa's computer, modified any of the files containing child pornography. Bonilla testified that a user does not have to open files on LimeWire to be able to download them.
Figueroa testified that he downloaded child pornography from LimeWire inadvertently, stating that, " when I would observe it and would see child pornography, I would erase it." Figueroa estimated that he might have downloaded and viewed more than 100 videos of child pornography and more than 100 still images of child pornography, but he could not provide an exact number. He insisted that if he thought an image or video was child pornography, he " would erase it." He also maintained that " not all of [the images and videos shown at trial] look like child pornography." Although he admitted that he had searched on his computer for the terms " young" and " sex" together, he believed that Google would " filter out" any images of girls younger than 18.
Figueroa further testified that he used LimeWire to create his own YouTube videos, typing in search terms to retrieve movies, photographs, and music. When he conducted those LimeWire searches, he would sometimes see child pornography, but he " would erase it because [he] wasn't interested in it." Figueroa recounted an instance in which he looked for a soccer video by searching for the terms " Best Goal Ever," but instead received a video of " [a] girl taking off her clothes and dancing nude." He deleted the video.
Figueroa recounted a time when he was playing an online video game and met a person online who was " trying to pass for being a girl." The girl asked Figueroa if he " wanted her to send [him] pictures of her naked," to which he allegedly responded, " How old are you?" When the girl answered, " I'm over 18," Figueroa said, " Okay, that's fine." The girl then sent him photographs of " her breasts, her vagina and her buttocks." Subsequently, the girl had a conversation with another player in the online video game, which Figueroa saw, and told the player that she was only sixteen-years-old. Figueroa acknowledged that he kept the photographs the girl had sent him in his email account until federal agents seized ...