United States v. Figueroa-Lugo , 793 F.3d 179 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 13-1202
UNITED STATES OF AMERICA,
Appellee,
v.
ALEJANDRO FIGUEROA-LUGO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Thompson, Lipez, and Barron,
Circuit Judges.
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.
July 17, 2015
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.
I.
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
-2-
possession of any child pornography was knowing.1 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.
II.
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
1
Section 2252(a)(4)(B) provides in pertinent part:
Any person who . . . knowingly possesses,
or knowingly accesses with intent to
view, 1 or more books, magazines,
periodicals, films, video tapes, or other
matter which contain any visual depiction
that has been . . . transported using any
means or facility of interstate or
foreign commerce . . . by any means
including by computer, if (i) the
producing of such visual depiction
involves the use of a minor engaging in
sexually explicit conduct; and (ii) such
visual depiction is of such conduct;
shall be punished as provided in
subsection (b) . . .
-3-
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. Rodríguez, 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 Case2
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
2
All of the facts recounted are taken directly from the trial
testimony of the identified officers. We describe the government's
case generally here. Additional evidence from the government's case
is discussed in relation to specific arguments Figueroa presents
about the insufficiency of the evidence.
-4-
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
209.91.206.209, 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 209.91.206.209 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
209.91.206.209, 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
-5-
sucking (kiddie pedo illegal underage preteen).mpg" was shared with
IP address 209.91.206.209. 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 209.91.206.209. 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 Bárbara 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.
-6-
Special Agent Luis Manuel Colón of ICE, an expert3 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)."
3
The government qualified Colón as "an expert in the field of
computer forensics, specifically in the service of computer
evidence," without objection.
-7-
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 Defense4
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
4
Figueroa testified and he called three witnesses: Anner
Bonilla Rivera, a computer networking expert, and two character
witnesses, Wanda Morrero and William Omar Rodriguez Ramos. We
describe Figueroa's defense generally here. Some of the particulars
of Figueroa's defense are discussed in more depth in relation to
Figueroa's specific challenges to the sufficiency of the evidence.
-8-
"[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.
2. Figueroa
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]
-9-
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.5 Figueroa acknowledged that he kept the photographs the girl
had sent him in his email account until federal agents seized his
computer on May 12, 2010, at which time Figueroa used a university
computer to delete the pictures from his email account.
C. Figueroa's Challenges to the Sufficiency of the Evidence
To support his claim that the evidence was insufficient
to establish that he knowingly possessed the child pornography
found on his computer, Figueroa makes the following arguments:6 (1)
5
At the time, Figueroa, the girl, and the third person who
the girl had informed that she was sixteen, were all playing a
video game together in which all players are able to view each
other's chat conversations via a "shot box."
6
In its brief on appeal, the government divides Figueroa's
undifferentiated challenge to the sufficiency of the evidence in
his opening brief into six categories. We find that division useful
and apply it here.
-10-
none of the witnesses at trial could scientifically establish that
he purposely intended to download any child-related pornography,
and any child pornography he did download was inadvertent, (2) the
seven videos and eighteen images were only partially downloaded and
were therefore inaccessible to him, (3) whenever he inadvertently
downloaded child pornography he deleted it, (4) anti-virus software
on his computer could have accessed and modified any child
pornography on his computer, (5) he afforded access to his computer
to a number of other people, any of whom could have downloaded the
child pornography, and finally (6) the government failed to
establish that the images depicted actual children. We address each
of these arguments in turn.
1. Intent to Download Child Pornography
Figueroa contends that if his searches on LimeWire
yielded child pornography results that were in turn downloaded onto
his computer, it was inadvertent. The record suggests otherwise.
Agent Colón, the computer forensics expert who examined
Figueroa's computer, testified that the seven videos and eighteen
images of child pornography were all contained in LimeWire folders
on Figueroa's computer. Files obtained through LimeWire cannot
automatically download onto a computer. A user would have to
actively search for files and then select them by clicking to
-11-
download those files. Lieutenant Lang,7 an expert in computer
forensics and peer-to-peer networking, explained that a LimeWire
user employs the program's search tab to type in words such as
"preteen hard core, or pthc," which the user hopes will appear in
a file name. Consistent with Agent Colón's testimony, Lang
testified that when LimeWire search results show a file that
contains the desired search term, the user must click on the file
before it will download.
Based on this testimony, a rational jury could have found
that, in order to retrieve files with names such as "porn pthc 9yo
Vicki stripping and sucking (kiddie pedo illegal underage preteen)"
or "naked penis preteen vagina little girls ass 6 year old panties
gay hussyfan 7yo lolitaguy 8yr pussy pedo kiddie porn," Figueroa
used search terms associated with child pornography. He then
intentionally downloaded the files that the LimeWire network had
shared with him in response to those search requests before any
child pornography would be downloaded to the LimeWire folders on
his computer. See United States v. Breton, 740 F.3d 1, 17 (1st Cir.
2014) ("[A] defendant's . . . use of search terms associated with
child pornography can support a finding that the defendant knew the
images he retrieved contained child pornography.").
7
The government qualified Lang "as an expert in peer-to-peer
networking and computer forensics," without objection.
-12-
2. Inaccessible Partially Downloaded Files
Figueroa asserts that files on his computer that were not
fully downloaded were inaccessible. Such a contention is rebutted
by Lieutenant Lang and Agent Colón's trial testimony. Lang
testified that under LimeWire's default settings a file "will
initially go to the incomplete folder" and remain there until the
"file is complete[ly]" downloaded, at which point "it will move
over to [a] saved [folder]." Videos and still images can be viewed
by a computer user when they are located in a LimeWire "incomplete
folder." In fact, Lang noted, "an illicit file" could remain in an
"incomplete folder" for a long time, possibly even "for years," and
be viewed there.
Agent Colón testified that a file that has not been fully
downloaded on LimeWire has a "T" preceding its file name. Once the
file is completely downloaded, the "T" notation is removed and the
file is automatically transferred to the saved folder. If someone
attempts to view a partially downloaded file through LimeWire, the
word "preview" is added to the "T" notation in the file name.
Noting this testimony, Figueroa argues that, because none of the
video files had "preview" in their titles, he could not have
accessed them.
Such an assertion is plainly contradicted by the trial
record. Colón testified that the files could have been accessed via
Windows Explorer, and no "preview" notation would be added to the
-13-
file name.8 Furthermore, Colón testified that a particular child
pornography image had been accessed via Windows Explorer.
Accordingly, a jury could have found that at all times the
partially downloaded files were accessible to Figueroa.
3. Deletion of Child Pornography
Figueroa insists that "whenever any unwanted child
pornography was downloaded" to his computer, he "immediately
deleted [the] same." The trial testimony rebuts this claim.
At the time of the trial, seven videos and eighteen still
images of child pornography were on Figueroa's computer. Agent
Colón explained that one of the child pornography files in
question, "9-year-old Jenny nude with legs spread wide apart," was
created on March 27, 2010, had been saved in a computer folder with
Figueroa's name and profile, and was still available to the
computer's user when the computer was seized on May 12, 2010. In
addition, on April 14, 2010, the WindowsXP operating system on
Figueroa's computer created a "Thumbs.db file" just minutes after
another child pornography file was downloaded onto the computer.
Agent Colón testified that the Thumbs.db file was located in the
same LimeWire folder "where the child pornography videos were
found," which showed that "the user accessed the file using . . .
Windows Explorer." The child pornography video had not been
8
Bonilla also testified that if the files were viewed using
Windows Explorer, no "preview" notation would be added to the file.
-14-
deleted; rather, the Windows operating system created "a little
icon" that would allow the images to be accessed more quickly in
the future. The images of child pornography remained on Figueroa's
computer when it was seized. Moreover, Bonilla, Figueroa's own
expert, acknowledged in cross examination that eighteen still
images and seven videos containing child pornography were found on
Figueroa's computer and that none of the files had been deleted,
scrubbed or sanitized by anti-virus software.
Furthermore, Figueroa admitted at trial to having
downloaded child pornography and failing to delete it from his
computer. When asked by the government's attorney, "you admit that
you've had child pornography downloaded and you have seen it,
correct?" Figueroa responded, "When I know it has been downloaded,
yes." The prosecutor then asked, "the truth is that this image [of
child pornography], you did not delete, correct?" to which Figueroa
responded, "Yes." Figueroa's deletion claim is groundless.
4. Anti-Virus Software
Figueroa asserts that "other software such [as] an anti-
virus" program could have been "responsible for accessing or
modifying" the files on his computer that contained child
pornography. However, he does not contend that anti-virus software
was responsible for downloading child pornography onto his computer
in the first place. Agent Colón did find an Avira anti-virus
software program on Figueroa's computer, but testified that an
-15-
anti-virus program would not change the date on which a file was
created, nor would it be capable of downloading child pornography.
Figueroa's own computer networking expert, Bonilla, admitted that
anti-virus software cannot download child pornography onto a
computer.
5. Other Users' Access to Figueroa's Computer
Figueroa argues that the child pornography found on his
computer could have been downloaded by a number of people to whom
he "afforded access" or even by "an unknown party" capable of
breaking into his home router signal. Figueroa testified, however,
that he was the primary user of the computer located in his bedroom
and that he downloaded LimeWire. Figueroa acknowledged that he
likely downloaded and viewed more than 100 videos and 100 images of
child pornography after he installed LimeWire on his computer:
MS. HERNANDEZ: So how many other child
pornography images or videos did you download
into your computer that you had to erase?
FIGUEROA: Well, when I would check them and
see that I had downloaded child pornography, I
would erase them. It was a good amount.
MS. HERNANDEZ: So how many videos would you
say that you downloaded?
FIGUEROA: I don't know a specific number, but
it was a good amount.
. . .
MS. HERNANDEZ: And you admit, then, that you
have downloaded child pornography through
LimeWire?
FIGUEROA: Admitting in the sense that I didn't
know what I was downloading, and then I would
observe it and would see child pornography, I
would erase it.
MS. HERNANDEZ: So how many other videos of
child pornography have you seen, other than
-16-
the ones that we found in your computer now,
that you deleted? . . . More than one hundred?
FIGUEROA: Yes, but that doesn't mean that I
would see the entire video.
In addition, all of the child pornography videos found on
Figueroa's computer were saved to the computer's C drive in a file
titled "Documents and Settings\ Alejandro\My Documents\ LimeWire\
Incomplete" and all of the still images were saved to the folder
"Alejandro\ My Documents\ LimeWire\ Saved" folder. From this
evidence a rational jury could conclude that it was Figueroa, not
one of his friends or an unknown user, who downloaded the files.
See United States v. Koch, 625 F.3d 470, 478 (8th Cir. 2010)
(stating that a conviction was supported by the fact that "user
names on both the computer and flash drive [on which child
pornography were found] were variations on [the defendant's] first
name"). Moreover, Agent Colón testified that Figueroa used his
personal email address to chat on the computer within minutes of
the creation of child pornography files.
Furthermore, multiple child pornography files were
created on the computer at times between 4:00 a.m. and 4:30 a.m,
suggesting that Figueroa himself downloaded the files. See United
States v. Salva-Morales, 660 F.3d 72, 75 (1st Cir. 2011) (per
curiam) (asserting that because downloaded child pornography files
were accessed between 2:00 a.m. and 3:00 a.m., "it is a reasonable
inference that [the defendant] was the one accessing the files at
these times"). Figueroa admitted that the room in which the Compaq
-17-
Presario desktop computer was found was his bedroom. There was no
evidence that anyone else slept in the room or was present during
the early morning hours.
Figueroa argues that the time at which the files were
downloaded is irrelevant because when files are selected as part of
a bulk download, LimeWire cannot begin all the downloads
simultaneously. He contends that files that were downloaded at 4:00
a.m. "could have been selected early during the day" but downloaded
at a later time. Figueroa presented no evidence at trial to
suggest that LimeWire files selected for download do not begin to
download immediately. In fact, Agent Colón testified that a
Limewire file begins to download the moment the user selects the
file for download. The jury was permitted to accept as true Agent
Colón's testimony.
6. Images of Actual Children
Finally, Figueroa claims that the government failed to
prove beyond a reasonable doubt that the still images and videos
contained depictions of actual children engaged in sexually
explicit activity. In a child pornography case, "[t]he prosecution
must prove beyond a reasonable doubt that the image is of an actual
child in order to establish guilt." United States v. Rodriguez-
Pacheco, 475 F.3d 434, 439 (1st Cir. 2007). However, "[t]here is no
per se rule that the prosecution is required to produce expert
testimony in every case to establish that the depicted child is
-18-
real, for either guilt or sentencing purposes." United States v.
Hoey, 508 F.3d 687, 691 (1st Cir. 2007). Rather, "juries are
capable of distinguishing between real and virtual images, without
expert assistance." Rodriguez-Pacheco, 475 F.3d at 441.
In the instant case, the prosecutors showed the jury
eighteen still images and seven videos of alleged child pornography
found on Figueroa's computer. Despite the fact that it was not
required to do so, the government also presented expert testimony
that the images and videos contained actual minors. Agent Colón,
who had performed computer forensics work in dozens of child
pornography cases, testified that he "found 18 images and 7 videos
that contained minors in lasciv[i]ous exhibition of the genitalia"
on Figueroa's computer. Lieutenant Lang, who had investigated
hundreds of child pornography cases, examined the files associated
with Figueroa's IP address and stated, "Yes, that's definitely
child pornography." He testified that he recognized one of the
videos associated with Figueroa's IP address because he had
previously seen the video in another child pornography case, which
had an identified victim and was "a bad piece of child
pornography." The images and videos introduced into evidence, in
conjunction with the testimony of two experts, were sufficient for
a rational jury to conclude beyond a reasonable doubt that the
files on Figueroa's computer depicted images of actual children
engaged in sexually explicit conduct.
-19-
For all of the reasons stated above, Figueroa's
sufficiency of the evidence argument fails.9
III.
When the defendant preserves an objection to a jury
instruction, we generally review the form and wording of the
9
In his reply brief, Figueroa raises a number of additional
arguments, all of which lack merit. He argues that (1) the evidence
was insufficient to establish that he actually downloaded 363 files
of child pornography, (2) the evidence was insufficient to
establish that only his family had access to IP address
209.91.206.209, (3) he could not find in the record Agent Colón's
statement that within minutes of one of the child pornography
videos being downloaded onto Figueroa's computer he engaged in an
online e-mail chat, and (4) he never admitted that he personally
downloaded "a good amount" of child pornography.
As noted, the government provided sufficient evidence that
Figueroa downloaded eighteen images and seven videos. It did not
seek to prove that he downloaded 363 files of child pornography.
With regards to claim (2), Karen Larson, the Senior Vice President
of Caribe Net, testified that each Caribe Net customer is assigned
his or her own unique IP address and that for the period of time in
question IP address 209.91.206.209 was always assigned to the
Figueroa household. Because IP addresses are assigned to
individuals based on their physical residence, two users who were
not in the same household could not access the same IP address.
With regards to allegation (3), Agent Colón testified that "seven
minutes after the video file [containing child pornography] was
created, the computer created an HTML entry" containing "a chat
between Luli and el Bebo 13. El bebo 13 is one of the email
addresses that belongs to the defendant, Alejandro." The video file
was entitled "Compiled 4 girls-all small and loving it."
Transcript, ECF No. 96. Hence, Figueroa is correct that the
government misrepresents Colón's testimony when it states that
"Figueroa engaged in an online email chat, telling another computer
user that he was 'loving' the child pornography video." The
government wrongly conflates Colón's testimony and the file name.
Nonetheless, the essential piece of Colón's testimony -- namely,
that Figueroa engaged in an online chat minutes after one of the
child pornography videos was downloaded -- is clearly in the
record. Finally, with regards to claim (4), Figueroa admitted that
he downloaded "a good amount" of videos containing child
pornography. Transcript, ECF No. 97 at 123-25.
-20-
instruction for an abuse of discretion, while reviewing de novo any
claim of legal error embodied in the instruction. United States v.
Gonzalez, 570 F.3d 16, 21 (1st Cir. 2009); see also United States
v. Díaz-Arias, 717 F.3d 1, 23 (1st Cir. 2013) ("Properly preserved
challenges to jury instructions are reviewed de novo, taking into
account the charge as a whole and the body of evidence presented at
trial." (internal quotation marks omitted)). "A district court's
decision to give a particular instruction, over a party's
objection, constitutes reversible error only if the instruction was
(1) 'misleading, unduly complicating, or incorrect as a matter of
law'; and (2) 'adversely affected the objecting party's substantial
rights.'" United States v. Stark, 499 F.3d 72, 79 (1st Cir. 2007)
(quoting Faigin v. Kelly, 184 F.3d 67, 87 (1st Cir. 1999)). Even an
incorrect instruction will not warrant reversal if it was harmless.
United States v. McDonough, 727 F.3d 143, 157 (1st Cir. 2013).
A district court's refusal to give a requested
instruction is reviewed de novo. United States v. Baird, 712 F.3d
623, 627 (1st Cir. 2013). To succeed with a claim of error, a
defendant must have presented sufficient evidence that he was
entitled to the instruction. Id. The initial threshold
determination we must make is whether the evidence, viewed in the
light most favorable to the defense, "can plausibly support the
theory of the defense." United States v. Gamache, 156 F.3d 1, 9
(1st Cir. 1998) (emphasis omitted). Accordingly, if the evidence in
-21-
the record does not support a requested affirmative defense, a
district court is not required to include it. See, e.g., United
States v. Guevara, 706 F.3d 38, 46-47 (1st Cir. 2013) (holding that
the district court did not err in declining to give the defendant's
proposed entrapment instruction because the record lacked evidence
to support that affirmative defense).
Assuming that the defendant satisfies this initial
burden, we "will reverse a district court's decision to deny the
instruction only if the instruction was (1) substantively correct
as a matter of law, (2) not substantially covered by the charge as
rendered, and (3) integral to an important point in the case so
that the omission of the instruction seriously impaired the
defendant's ability to present his defense." Baird, 712 F.3d at
628. We decide each step in that three-part analysis de novo. Id.
A. Willful Blindness Instruction
A "willful blindness instruction is appropriate if (1) a
defendant claims a lack of knowledge, (2) the facts suggest a
conscious course of deliberate ignorance, and (3) the instruction,
taken as a whole, cannot be misunderstood as mandating an inference
of knowledge." United States v. Azubike, 564 F.3d 59, 66 (1st Cir.
2009).
Figueroa argues that the district court's willful
blindness instruction unduly influenced and confused the jury by
allowing them to convict him of a violation of § 2252(a)(4)(B) with
-22-
a mens rea of less than "knowingly." The court instructed the
jury:
In deciding whether a defendant acted
knowingly, you may infer that the defendant
had knowledge of a fact if you find that he
deliberately closed his eyes to a fact that
otherwise would have been obvious to him.
The court's decision to give a willful blindness
instruction, and the text of that instruction, satisfy each of the
three elements of the test articulated in United States v. Azubike.
First, Figueroa's primary defense in this case was that he did not
knowingly download child pornography. Throughout the trial,
Figueroa denied knowing that the child pornography specified in the
indictment was on his computer. Figueroa's attorney asked him at
trial, "when was the first time that you ever saw any of these
videos or photographs?" to which Figueroa replied, "Now, here."
Second, the facts presented at trial suggest at times a
"conscious course of deliberate ignorance." Id. For example,
Figueroa asserted that "fellow university students and fellow
neighbors" used his computer, insinuating that someone else
downloaded child pornography onto his computer. In fact, if other
people downloaded some files with these explicit file names onto
Figueroa's computer, and saved them in a LimeWire folder bearing
his name, one that Figueroa used frequently, a jury could
reasonably conclude that Figueroa "closed his eyes to a fact that
otherwise would have been obvious to him." Similarly, Figueroa
-23-
asserted that his innocuous LimeWire searches for music yielded
child pornography results. Figueroa testified that when he
downloaded the "Bambina" child pornography file found on his
computer he had intended to download photographs, music and videos
of "El Bambino," a recording artist. The "Bambina" file was saved
to the folder entitled "C\Documents and
Settings\Alejandro\MyDocuments\My Chat Logs\LimeWire\Incomplete\New
Folder." To the extent that Figueroa inadvertently downloaded
child pornography when he searched for "El Bambino," and that he
subsequently saved that file in a folder bearing his name, and did
so numerous times, suggests a deliberate ignorance of the child
pornography on his computer.
Third, taken as a whole, the instruction cannot be
misunderstood as "mandating an inference of knowledge." Id. The
district court instructed the jury that, in determining whether
Figueroa acted knowingly, they "may infer" that he had knowledge
"if" they found he "deliberately closed his eyes." (emphasis
added). Such an instruction gave the jury discretion to decide
whether Figueroa acted knowingly. See United States v. Anthony, 545
F.3d 60, 64 (1st Cir. 2008) (rejecting a defendant's argument that
the willful blindness instruction given at his trial "would lead a
jury to convict based on 'reckless' ignorance rather than
deliberate ignorance").
-24-
Finally, contrary to Figueroa's contention that the
instruction allowed the jury to convict him of a violation of
§ 2252(a)(4)(B) by a less stringent requirement than "knowingly,"
a willful blindness instruction is one way in which a jury can
permissibly find that a defendant acted knowingly. See Nancy
Torresen, 2015 Revisions to Pattern Criminal Jury Instructions for
the District Courts of the First Circuit (2015), available at
http://www.med.uscourts.gov/pdf/crpjilinks.pdf Instruction 2.16
("'Willful Blindness' As a Way of Satisfying 'Knowingly'") ("In
deciding whether [defendant] acted knowingly, you may infer that
[defendant] had knowledge of a fact if you find that [he/she]
deliberately closed [his/her] eyes to a fact that otherwise would
have been obvious to [him/her]."). The district court did not err
in providing the willful blindness jury instruction.
B. The Affirmative Defense Set Forth in 18 U.S.C. § 2252(c)
Figueroa contends that the district court erred when it
failed to address the § 2252(c) affirmative defense in its jury
instructions. The affirmative defense states in relevant part:
(c) It shall be an affirmative defense to a
charge of violating paragraph (4) of
subsection (a) that the defendant --
(1) possessed less than three matters
containing any visual depiction proscribed by
that paragraph; and
(2) promptly and in good faith, and without
retaining or allowing any person, other than a
law enforcement agency, to access any visual
depiction or copy thereof --
-25-
(A) took reasonable steps to destroy each such
visual depiction . . . .
After the jury instructions were read, Figueroa objected to the
district court's failure to include the affirmative defense
instruction. The district court declined to give the instruction
because "there are more than three images [of child pornography] in
this case." In his brief on appeal, Figueroa insists that this
ruling of the district court took from the jury its duty to
determine "whether each alleged image depicted a minor and . . .
whether this particular minor was engaged in sexually explicit
conduct."
Figueroa's suggestion that the failure to instruct the
jury on the affirmative defense meant that the government no longer
had the burden to prove beyond a reasonable doubt that he knowingly
possessed images of actual children engaged in pornographic acts is
simply not accurate. The district court instructed the jury that to
find Figueroa guilty of knowing possession of child pornography:
[Y]ou must be convinced that the Government
had proven each of these things beyond a
reasonable doubt: First, that the defendant
knowingly possessed one or more matters which
the defendant knew contained a visual
depiction of one or more minors engaging in
sexually explicit conduct. . . . that one or
more of the visual depictions is of a minor
engaging in sexually explicit conduct. . . . A
minor is a person under the age of 18 years.
Child pornography is any photograph, film,
video, picture, computer image or computer
generated image of sexually explicit conduct
that was produced using an actual person under
-26-
the age of 18 engaging in sexually explicit
conduct. . . . The word "knowingly" as that
term has been used from time to time in these
instructions, means that the act was done
voluntarily and intentionally and not because
of mistake or accident.
As these instructions make clear, the court instructed
the jury that in order to find Figueroa guilty, the government had
to prove each element of 18 U.S.C. § 2252(a)(4)(B) -- including
that the possession was done knowingly and that the images depicted
actual minors -- beyond a reasonable doubt.
To the extent that Figueroa is arguing, however
inartfully, that the jury could have found that he possessed fewer
than three depictions of child pornography and is entitled to the
affirmative defense on that basis (an argument that the district
court seemed to impute to him), the evidence simply does not
support the instruction. In our de novo review of whether Figueroa
was entitled to the affirmative defense, we must ask whether the
evidence, taken in the light most favorable to Figueroa, plausibly
supported his requested affirmative defense instruction. See
Gamache, 156 F.3d at 9 (stating that "[a] criminal defendant is
entitled to an instruction on his theory of defense so long as the
theory is a valid one and there is evidence in the record to
support it"). As already noted in our discussion of "Other Users'
Access to Figueroa's Computer" as part of our sufficiency of the
evidence analysis, supra, Figueroa acknowledged on cross-
-27-
examination that, prior to the seizure of his computer, he had
downloaded and viewed "a good amount" of child pornography. When
the prosecutor asked him if he had seen and deleted "[m]ore than
one hundred" videos, Figueroa replied, "Yes, but that doesn't mean
that I would see the entire video." The prosecutor then asked if he
downloaded and viewed "more than 100 still images of child
pornography" to which Figueroa responded, "[i]t may be, because I
don't know an exact number." When the prosecutor showed Figueroa
the eighteen still images of child pornography found on his
computer, Figueroa admitted that he had not deleted any of them.
On this record, if a jury found that Figueroa knowingly
possessed child pornography, it would have to find that he
possessed more than two such images. The district court therefore
did not err when it declined to give Figueroa's proposed
affirmative defense instruction. See United States v. White, 506
F.3d 635, 642 (8th Cir. 2007) (holding that defendant who possesses
"more than three images of child pornography" is "not entitled to
the [§ 2252(c)] affirmative defense").
C. Inconsistent Mental State
Finally, Figueroa argues that the district court
"serrated Appellant's right and the role of the jury" when it
failed to provide an inconsistent mental state instruction.
Figueroa submitted a proposed jury instruction derived from First
Circuit pattern jury instruction 5.02, "Mental State That Is
-28-
Inconsistent with the Requisite Culpable State of Mind." That
proposed instruction stated:
Evidence has been presented of Alejandro
Figueroa Lugo's [carelessness; negligence;
ignorance; mistake; good faith; abnormal
mental condition; etc.]. Such act [sic] may be
inconsistent with the requisite culpable state
of mind. If after considering the evidence of
the charged crimes, together with all the
other evidence, you have a reasonable doubt
that Alejandro Figueroa Lugo acted [with the]
requisite culpable state of mind, then you
must find Alejandro Figueroa Lugo not guilty.
In declining to give the proposed instruction, the
district court stated:
I think that other instructions given
concerning "knowingly" [are] sufficient for
the jury to take that into
consideration . . . . [T]he instruction that
you want me to give . . . is covered by
the . . . instructions in here that talk about
knowingly . . . -- it can't be negligence or
mistake or things like that.
The district court was correct in asserting that the
proposed instruction was "substantially covered by the charge as
rendered." Baird, 712 F.3d at 628. The district court instructed
the jury that the word "knowingly," as used in its instructions,
"means that the act was done voluntarily and intentionally and not
because of mistake or accident." It further stated that "[m]ere
negligence or mistake . . . is not sufficient. There must be a
deliberate effort to remain ignorant of the fact." As we have said
before, "[i]n formulating jury instructions, a district court is
not required to parrot the language proffered by the parties."
-29-
United States v. McFarlane, 491 F.3d 53, 59 (1st Cir. 2007)
(internal quotation marks omitted). Rather, district courts have
broad discretion to choose the "precise manner" in which they frame
their instructions. Id. The district court did not err when it
declined to give Figueroa's proffered inconsistent mental state
instruction because the jury instructions it provided state that
Figueroa could not be convicted of possessing child pornography
unless the jury determined beyond a reasonable doubt that he
knowingly possessed the videos and images in question.
IV.
There was sufficient evidence for a reasonable jury to
convict Figueroa of possession of child pornography in violation of
18 U.S.C. § 2252(a)(4)(B). Additionally, the district court's
willful blindness instruction did not confuse or mislead the jury
and therefore was not in error. Finally, Figueroa was not entitled
to the § 2252(c) affirmative defense or the inconsistent mental
state instructions for which he argued.
Affirmed.
-30-