United States v. Silva

United States Court of Appeals
For the First Circuit
No. 14-1764
UNITED STATES OF AMERICA,
Appellee,
v.
GERALD J. SILVA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, Chief U.S. District Judge]
Before
Lynch, Kayatta, and Barron,
Circuit Judges.
Robert B. Mann, with whom Mann and Mitchell was on brief, for
appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Peter F. Neronha, United States Attorney, was on brief, for
appellee.
July 20, 2015
BARRON, Circuit Judge. Gerald Silva raises a number of
challenges to his convictions for receipt and possession of child
pornography, in violation of 18 U.S.C. § 2252(a)(2) and (4). Silva
first contends that the child pornography statutes under which he
was charged were unconstitutionally vague. He then argues that
the District Court should have dismissed one count of the
indictment for which, he contends, there was no evidence submitted
to the grand jury. He also argues that the District Court abused
its discretion in barring the testimony of Silva's proposed expert
witness and in instructing the jury. And finally, Silva argues
that the District Court wrongly denied his motion for a judgment
of acquittal under Federal Rule of Criminal Procedure 29. We find
no merit to any of these challenges and therefore affirm the
conviction.
I.
According to evidence offered at trial, this case arises
from an investigation by Canadian police who, in cooperation with
law enforcement in the United States, were investigating a company,
Azov Films, due to its alleged production and distribution of
materials featuring nude, young boys. Azov operated a website
that offered a variety of materials, including some films produced
by other companies and some Azov-produced films. A United States
postal inspector testified at trial that there had been citizen
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complaints "in which people stated that they were selling child
pornography on the website."
On May 1, 2011, Canadian authorities executed a search
warrant on Azov's Toronto premises and shut down the website.
Canadian law enforcement seized business records -- including
customer purchase and shipping information -- and passed the
records along to the United States Postal Inspection Service. The
records listed Gerald Silva as a customer and showed that he placed
twenty-two orders between October 2010 and April 2011 and bought
seventy-five items, eleven of which are listed in the indictment.
Silva was charged with six counts of receipt of child
pornography in violation of 18 U.S.C. § 2252(a)(2) and with one
count of possession of child pornography in violation of 18 U.S.C.
§ 2252(a)(4). Silva was found guilty on all counts after a jury
trial in the District of Rhode Island. He was sentenced to a 72-
month term of imprisonment. He now appeals.
II.
We begin with Silva's challenge to the constitutionality
of the statute. The statutory provisions under which Silva was
charged both define child pornography as "any visual
depiction . . . if -- (A) the producing of such visual depiction
involves the use of a minor engaging in sexually explicit conduct;
and (B) such visual depiction is of such conduct." 18 U.S.C.
§ 2252(a)(2); see also id. § 2252(a)(4). The statute cross-
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referenced by these measures defines "sexually explicit conduct"
to include the "lascivious exhibition of the genitals or pubic
area of any person." Id. § 2256(2)(A)(v).1
Silva contends that "lascivious exhibition" is too vague
to provide notice of what depictions fall within the definition of
child pornography and to provide standards for law enforcement to
prevent the arbitrary enforcement of the statute. He therefore
contends that his convictions under the statutes violate his Fifth
Amendment due process rights, a challenge we review de novo.
United States v. Zhen Zhou Wu, 711 F.3d 1, 11-12 (1st Cir. 2013).
The Supreme Court in United States v. X-Citement Video,
Inc., 513 U.S. 64 (1994), however, rejected a constitutional
vagueness challenge to the same definitional provision of the
statute. The Court described the vagueness claim raised by the
defendants as "insubstantial," and adopted the reasoning of the
Ninth Circuit. Id. at 78-79. The Court of Appeals had found that
"'[l]ascivious' [was] no different in its meaning than 'lewd,' a
commonsensical term whose constitutionality [had been]
specifically upheld in" the Supreme Court's prior precedents.
1 The full text of the definition in 18 U.S.C. § 2256(2)(A)
provides:
"[S]exually explicit conduct" means actual or
simulated -- (i) sexual intercourse . . .;
(ii) bestiality; (iii) masturbation; (iv)
sadistic or masochistic abuse; or (v)
lascivious exhibition of the genitals or pubic
area of any person; . . . .
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United States v. X-Citement Video, Inc., 982 F.2d 1285, 1288 (9th
Cir. 1992) (citing Miller v. California, 413 U.S. 15 (1973), and
New York v. Ferber, 458 U.S. 747 (1982)); see also United States
v. Frabizio, 459 F.3d 80, 85 (1st Cir. 2006) ("The courts are also
in agreement that the term 'lascivious' is sufficiently well
defined to provide . . . notice of what is permissible and what is
impermissible."). Silva's constitutional due process challenge is
thus without merit.
III.
Silva next challenges the District Court's denial of his
motion to dismiss count seven of the indictment, which charged
Silva with knowing possession of child pornography under 18 U.S.C.
§ 2252(a)(4). Silva contends the grand jury heard no evidence to
support count seven and thus that the District Court erred in
denying his pretrial motion to dismiss it. But see Kaley v. United
States, 134 S. Ct. 1090, 1098 (2014) ("The grand jury gets to say
-- without any review, oversight, or second-guessing -- whether
probable cause exists to think that a person committed a crime.");
Costello v. United States, 350 U.S. 359, 363-64 (1956). But the
grand jury clearly heard evidence to support count seven as it was
written in the indictment and thus the argument Silva makes is
without foundation.2
2 Count seven of the indictment stated:
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That is so even though Silva contends that there was no
evidence to support count seven as it was framed in a subsequently
furnished bill of particulars. That bill of particulars, which
the government provided Silva in response to his motion requesting
that it do so, did identify three specific films that would be
used as evidence for count seven at trial, while the count set
forth in the indictment itself was not limited to any particular
films. But the bill of particulars is not the indictment, and
thus the specificity of the bill of particulars does not change
the fact that the government supplied the grand jury with evidence
to support count seven of the indictment as it was stated. See
Roberts v. United States, 752 A.2d 583, 592 (D.C. 2000) ("Although
the specific details of the carnal knowledge incident specified in
the bill of particulars had not been individually presented to the
grand jury, that body heard ample evidence of the entire series of
events of which that incident was a part."). The District Court
From in or about April 2010 to on or about
September 27, 2012, in the District of Rhode
Island and elsewhere, the defendant, GERALD J.
SILVA, did knowingly possess one or more
matters which contained a visual depiction of
sexually explicit conduct, the production of
which involved the use of a minor engaging in
sexually explicit conduct, that had been
transported in interstate and foreign commerce
and which was produced using materials which
had been transported in interstate and foreign
commerce. All in violation of 18 U.S.C.
§2252(a)(4).
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therefore properly rejected Silva's challenge to the sufficiency
of the evidence before the grand jury. See United States v.
Capozzi, 486 F.3d 711, 727 (1st Cir. 2007).
IV.
Silva also argues that the District Court erred in
preventing the testimony of the defendant's proposed expert
witness. We review this ruling for abuse of discretion. United
States v. Tetioukhine, 725 F.3d 1, 6 (1st Cir. 2013).
Silva offered Professor John Leo, a retired Professor of
English from the University of Rhode Island, as an expert under
Federal Rule of Evidence 702. The District Court conducted an
evidentiary hearing on the matter, at which Professor Leo
testified. The District Court then declined to permit Professor
Leo to appear as an expert witness.
Silva argues that the District Court erred in excluding
Professor Leo’s testimony because Silva asserts it "would have
helped the jury understand the pictures" because Professor Leo's
"technical understanding of film" would have "enhance[d] the
[jury's] understanding of the videos in question in this case."
In particular, Silva contends that Professor Leo was expected to
testify to his opinion that the settings for the films were
generally not sexually suggestive, and that the poses and conduct
of the children were not suggestive.
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The District Court has discretion, however, to evaluate
whether an expert witness will provide helpful testimony in this
context. See Frabizio, 459 F.3d at 85 & n.8 ("[W]hether a given
depiction is lascivious is a question of fact for the jury" and
"expert testimony is not required on the subject."); United States
v. Arvin, 900 F.2d 1385, 1390 (9th Cir. 1990) ("Because the jury
was fully capable of making its own determination on the issue of
'lasciviousness,' the district court did not abuse its discretion
in excluding the expert testimony."); cf. Hamling v. United States,
418 U.S. 87, 100 (1974) ("Expert testimony is not necessary to
enable the jury to judge the obscenity of material which, as here,
has been placed into evidence."). And here we see no error in the
District Court's reasonable assessment and exclusion of the
proposed expert testimony. See Arvin, 900 F.2d at 1390.
The District Court evaluated the testimony that
Professor Leo expected to offer and considered "the reliability
and helpfulness of the proposed expert testimony, the importance
and the quality of the eyewitness evidence it addresses, and any
threat of confusion, misleading of the jury, or unnecessary delay."
United States v. Rodríguez-Berríos, 573 F.3d 55, 71 (1st Cir.
2009). The District Court then supportably found that Professor
Leo did not purport to "know any of the purposes or reasons why a
purchaser would purchase these videos," that he "did not express
any expertise that would allow him to help the jury on the why or
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the intent of the producer," and that he did not "appear to have
any opinions about" European film, nudity, or nudism. And as to
the points that Silva expected Professor Leo to make in his trial
testimony, the District Court reasonably concluded that the jurors
could reach their own conclusions about the contents of the films
from their own viewing. See United States v. Mehanna, 735 F.3d
32, 67 (1st Cir. 2013) ("It is common ground that a trial court
may bar expert testimony if that testimony will not assist the
jury to sort out contested issues.").
Nor did the District Court err in preventing Professor
Leo from testifying as a summary witness under Federal Rule of
Evidence 1006, which permits summaries "to prove the content of
voluminous writings, recordings, or photographs that cannot be
conveniently examined in court." See United States v. Casas, 356
F.3d 104, 119 (1st Cir. 2004) (applying Fed. R. Evid. 1006 to a
summary witness). Here, too, we review for an abuse of discretion.
See Tetioukhine, 725 F.3d at 6. The record supports the District
Court's conclusion that Professor Leo -- in his testimony at the
evidentiary hearing conducted to determine whether he could
testify -- "was rambling and unfocused, talking about one video
and another video, and he was all over the place." The District
Court was thus well within its discretion in rejecting a proposed
summary witness who had demonstrated his inability to provide the
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concise review of the evidence that the rule is written to allow
to aid the jury.
V.
Silva next argues that the district court erred in
instructing the jury. Silva objects to two instructions on the
ground that each was unfairly prejudicial, a challenge we review
for abuse of discretion. United States v. Sasso, 695 F.3d 25, 29
(1st Cir. 2012).
First Silva objects to the District Court's instruction
that "[i]f the Defendant incorrectly believed what does and does
not constitute child pornography, that does not relieve him of
responsibility as long as the Government has proven the elements
that I've outlined above." Silva argues that the instruction was
prejudicial because he contends that the instruction functioned as
a "comment on the testimony of the defendant" and that "the effect
of the contested instruction was to inappropriately focus on the
defendant's belief, when the real issue was whether the government
had proved the defendant's knowledge."3
3 To the extent Silva argues that the instruction improperly
"diminishe[d] the Government's burden with respect to proving
knowledge," he is wrong. In order to prove the "knowing" element
of the child pornography statutes, "[t]he defendant must believe
that the picture contains certain material, and that material in
fact (and not merely in his estimation) must meet the statutory
definition." United States v. Williams, 553 U.S. 285, 301 (2008);
United States v. Knox, 32 F.3d 733, 754 (3d Cir. 1992) ("[T]o
fulfill the knowledge element of § 2252, a defendant simply must
be aware of the general nature and character of the material and
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We disagree. "When an instruction is pertinent to the
issues submitted to the jury and constitutes an accurate statement
of the law, it is hard to imagine any basis for a claim of error."
United States v. Nascimento, 491 F.3d 25, 34 (1st Cir. 2007). And
here, the District Court delivered the instruction to clarify what
the government had to prove about the defendant's knowledge in the
face of Silva's assertions in testimony that the materials were
not child pornography. See id. ("We see no realistic possibility
that [the instruction] [was] a source of juror confusion.
Consequently, the district court did not abuse its discretion in
charging the jury as it did.").
Silva also objects to the District Court's instruction
that the jury should consider "whether the witness had anything to
gain or lose from the outcome of this case. In other words, was
the witness totally impartial, or did the witness have some stake
in the outcome or some reason to favor one side or the other."
Silva contends that this instruction must have been referring to
him, even though it was phrased in general terms, because he was
the only person with an interest in the case. He thus argues the
instruction functioned as an impermissible comment on his
credibility. See United States v. Dwyer, 843 F.2d 60, 63 (1st
need not know that the portrayals are illegal."). The challenged
instruction correctly articulated this principle.
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Cir. 1988) ("A charge containing denigrating implications should
not be given unless it serves some useful purpose or need.").
Silva does not explain, however, how the District
Court's instruction to consider witness credibility generally --
phrased neutrally and without reference to the defendant -- could
be taken as a comment as to his lack of credibility. Instead, as
the government notes, law enforcement agents also might have an
interest in the successful outcome of a case they have
investigated. The instruction thus simply served to remind the
jury of its responsibility to evaluate and assess witness
credibility, see United States v. Maguire, 918 F.2d 254, 269 (1st
Cir. 1990) (approving instructions in which the district court
"repeatedly emphasized that the final resolution of the issues
rested with the jury and that it had the sole responsibility for
determining the credibility of the witnesses and finding the
facts"), and so the District Court did not abuse its discretion by
issuing it.
VI.
Silva also argues that the District Court erred in
denying his motion for a judgment of acquittal because there was
insufficient evidence to support the convictions. We review this
preserved challenge de novo, viewing the evidence in the light
most favorable to the government to determine whether the evidence
would allow a rational factfinder to conclude the defendant
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committed the charged crime beyond a reasonable doubt. United
States v. Almeida, 748 F.3d 41, 52 (1st Cir. 2014).
Silva moved for a judgment of acquittal at the conclusion
of the government's case, and renewed his motion at the conclusion
of all the evidence. He presented two arguments. As to all counts
he argued that the government did not prove that the images were
child pornography. As to the first six counts, for receipt of
child pornography under 18 U.S.C. § 2252(a)(2), he argued that the
government did not prove that he "knowingly received" child
pornography. The District Court denied the motion. Silva now
challenges that ruling, and we consider each aspect of his
challenge to the sufficiency of the evidence in turn.
A.
Silva argues first that while the question "whether a
given depiction is lascivious is a question of fact for the jury,"
Frabizio, 459 F.3d at 85, the government failed to provide enough
evidence to prove beyond a reasonable doubt that the materials
covered by the seven counts depicted the "lascivious exhibition of
genitals" as defined in 18 U.S.C. § 2256. Silva argues that the
"depictions take place in a variety of settings," and that "mostly,
the boys are playing." Though Silva acknowledges that the
depictions are of boys who are "unquestionably nude," he suggests
that "the films might be better viewed as a paean to naturalism
and nudism." Silva thus argues that there was insufficient
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evidence to show that the depictions met the standard of
lasciviousness.
The problem for Silva is that, even though he contends
that the films "might be better viewed as a paean to naturalism
and nudism," a rational juror could reach a different conclusion
based on the evidence presented at trial. See United States v.
Wilder, 526 F.3d 1, 12 (1st Cir. 2008) ("The question for our
determination on appellate review . . . is whether a reasonable
jury could have reached the conclusion that the images were of
sexually explicit conduct."). After all, the jury watched the
footage of the films, and the jurors were entitled to evaluate and
determine whether the films involved the "lascivious exhibition of
genitals" based upon the images they saw. See Frabizio, 459 F.3d
at 85 ("[W]hether the item to be judged is lewd, lascivious, or
obscene is a determination that lay persons can and should make.
. . . In making this determination, the standard to be applied by
the jury is the statutory standard. The statutory standard needs
no adornment." (internal quotation marks and citation omitted)).
We have previously explained that lascivious is a
"commonsensical" term and that there is no exclusive list of
factors -- such as the so-called Dost factors -- that must be met
for an image (or a film) to be "lascivious." See Frabizio, 459
F.3d at 85 (citing United States v. Dost, 636 F. Supp. 828, 832
(S.D. Cal. 1986)); see also United States v. Amirault, 173 F.3d
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28, 31-32 (1st Cir. 1999). Here, it is enough to note from our
review that -- as the District Court also concluded -- the evidence
reveals that the films showed young boys almost always depicted
fully nude, with no evident storyline or discernible artistic
explanation for the footage. Moreover, each film showed boys
engaged in some activity or activities, which -- though varying
from film to film -- displayed their genitalia in a manner that,
as the District Court concluded, a jury reasonably could deem to
be intended to sexually arouse the viewer. See Amirault, 173 F.3d
at 31-32 (finding "whether the image is intended or designed to
elicit a sexual response in the viewer" a relevant factor "in
evaluating whether the display in question is lascivious" (citing
Dost, 636 F.Supp. at 832)).
It is true that the films combined included
approximately twenty three hours of footage, with certain images
in which the boys' clothing or the activity temporarily obscured
the view of the boys' genitalia. But each of the films also
included scenes, for example, of the boys wrestling or showering
in positions that gave the camera a clear shot of their genitalia,
or lounging, standing, or sitting in postures that prominently
displayed their genitalia in the camera shot. Considering the
films as whole under count seven, and the images depicted in each
of the films listed in the other counts, the jury's determination
that the films depicted "sexually explicit conduct," in the form
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of "lascivious exhibition of genitals" of children, was thus a
rational conclusion drawn from the evidence. See Wilder, 526 F.3d
at 12.
B.
Silva's second argument is that the government did not
prove that he knowingly received child pornography as required by
counts one through six. See 18 U.S.C. § 2252(a)(2) (prescribing
punishment for any person who "knowingly receives" depictions of
minors engaged in sexually explicit conduct). Unlike count seven,
each of these counts identified a specific film, or set of films,
that Silva had received. For this charge, the government had to
prove the material that Silva received as described in each count
in fact met the statutory definition for child pornography and
that Silva knew "the facts that ma[d]e his conduct fit the
definition of the offense" at the time of receipt. Elonis v.
United States, 135 S. Ct. 2001, 2009 (2015) (quoting Staples v.
United States, 511 U.S. 600, 608, n.3 (1994)); see also X-Citement
Video, Inc., 513 U.S. at 78 ("[T]he term 'knowingly' in § 2252
extends both to the sexually explicit nature of the material and
to the age of the performers."); United States v. Gendron, 18 F.3d
955, 959 (1st Cir. 1994).
The government did not need to show, however, that the
defendant knew the material was in fact illegal at the time of
receipt. See United States v. Knox, 32 F.3d 733, 754 (3d Cir.
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1994) ("[T]o fulfill the knowledge element of § 2252, a defendant
simply must be aware of the general nature and character of the
material and need not know that the portrayals are illegal.").
Instead "a defendant generally must 'know the facts that make his
conduct fit the definition of the offense,' even if he does not
know that those facts give rise to a crime." Elonis, 135 S. Ct.
at 2009 (quoting Staples, 511 U.S. at 608 & n.3); see also United
States v. Williams, 553 U.S. 285, 301 (2008) ("The defendant must
believe that the picture contains certain material, and that
material in fact (and not merely in his estimation) must meet the
statutory definition."); Hamling, 418 U.S. at 123 ("To require
proof of a defendant's knowledge of the legal status of the
materials would permit the defendant to avoid prosecution by simply
claiming that he had not brushed up on the law.").
In arguing that the government failed to provide
sufficient evidence from which a jury rationally could find beyond
a reasonable doubt that he knowingly received unlawful materials,
Silva contends that, even if some of the materials he received
were illegal child pornography, the Azov website also sold
materials that did not contain child pornography. He thus argues
that the government failed to show that when he placed his orders
on the Azov website -- which he contends contained, at most, both
legal and illegal materials -- he knew that he was going to receive
materials that fell into the latter category.
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But the government presented evidence about what Silva
knew about the specific materials he ordered at the time that he
placed those orders. And in consequence of that evidence, the
jury could rationally conclude that Silva knew -- with respect to
the specific films identified in each of these six counts -- that
he was ordering and receiving films that did show nude children
engaged in sexually explicit conduct.
We start with the evidence the government provided about
what Silva would have encountered on the Azov website when he
placed his orders. There was testimony that indicated a customer
perusing the Azov Films' website would encounter a brief
description of the material for sale. The jurors were then
presented with the website pages for the films listed in the
indictment.
In other words, the jury saw the actual pages from which
Silva would have placed his order for each of the films listed in
the indictment's six receipt counts. These pages included photos
of the boys who were featured in each particular film, clothed or
in swimsuits. The jury thus could conclude -- from viewing the
descriptions and photos -- that Silva would know the boys were
underage. Further, the website provided editorial content about
each film. This content clearly communicated to its website
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audience that each of the films Silva ordered would feature the
boys nude.4
In addition, the website pages included descriptions
that conveyed that these specific films would show the boys
engaging in various types of activities but without offering any
semblance of a plot or storyline. And the descriptions for each
of the films went on to describe the activities in which the boys
would be engaging using language that the jury clearly could have
perceived as indicating the presence of sexually explicit content.5
4 For the film in count one, FKK Waterlogged, the description
listed the activities on "today's nudist menu." The film in count
two, Vladik Remembered Vol. 1, was described to "compile a series
of lengthy Vladik nudist scenes" in "this wonderful homage to the
boy who helped establish Azov Films." The film in the third count,
Vladik Remembered Vol. 2, is described as a "continued celebration
in honor of Vladik's 18th birthday and official indoctrination
into adulthood," -- showing "footage" of Vladick from when he was
"between 14 and 16" -- in what was described as a "compilation of
the best of the best Vladik naturist scenes" from "Crimea's most
famous naturist." For the film in count four, Paul & Calin's Home
Video, the website said that "the personalities of our on camera
nudists, Calin and Paul, shine through" and the boys "get into
some nudist fun." The film in count five, Cutting Room Floor:
Vlaviu, carries a description of "Vlaviu and his buddies going
commando in a very unique way" with "nudist food fighting." The
film in count six, Raw Rewind Vol. 2, according to the website,
consisted of "unedited naturist raw footage."
5 The film in count one described "a cold shower" and "general
horsing around . . . [which] gives way to some relaxing physical
therapy in the form of a deep massage." The film in count two was
a "compilation of scenes" of one featured boy and his "naturist
buddies" in "sauna and beach antics." The film in count three
described that the boys were featured "as they wreak havoc in some
of Crimea's most exclusive saunas." The film in count four was
described as including "probably one of the best wrestling matches
(if not the best) we've ever filmed in the history of the Boy
Fights line of nudist DVDs." The film in count five was promoted
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So while Silva argues that "[t]he descriptions of the
DVDs . . . did not provide notice that they contain child
pornography," the descriptions clearly conveyed that the films
offered seemingly no semblance of a story, with little dialogue or
with foreign language dialogue left untranslated for viewers, and
featured nude boys engaging in activities the jury could reasonably
conclude he would have known to be sexually explicit. Thus, the
website pages for the films that Silva ordered hardly require --
or even permit -- the benign characterization he contends must be
given to them.
Relevant, too, is the fact that the website's film
descriptions also identify particular boys as the stars of the
productions and direct their "fans" to search among their other
films.6 In other words, the films did not advertise themselves as
as "discs of ooey-gooey slippery goodness." Some of Azov's film
titles, like Raw Rewind Vol. 2 named in count six, also replicated
the suggestive tone. See, e.g., United States v. Downsbrough, No.
3:13-CR-61, 2013 WL 5781570, at *13 (E.D. Tenn. Oct. 24, 2013)
("The names of some of the DVDs ordered by the Defendant from this
same company [Azov] . . . [including] Raw Rewind Volumes 1–3 are
sexually suggestive.").
6
Specifically, the website's description for the film in
count one said that "[i]f you're a fan of Paul, this is a must
get" and "[s]ame with Calin fans." The Azov website described
that the film in count two was created in "celebration" of "Azov
Films' superstar, Vladik." The description for the film in count
three addressed "Vladik fans" and described that "90% of the
visitors to Azov Films are Vladik fans, and about half of those
are die-hard Vladik fans." The description in the film from count
four noted about one of a three-disc set that "this disc is not
subtitled but will certainly be enjoyed, especially for fans of
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"a paean to naturalism and nudism" as Silva suggested, but rather,
as an exhibition of particular nude young boys.
Indeed, a United States postal inspector testified that
"[t]hese videos have, and I hate to use the word but I can't think
of a better one, their own stars and their own following" such
that "the videos of particular boys [were] particularly sought by
people who prefer that particular boy." And, by marketing the
films as showcasing particular boys, the film descriptions
indicated that, as to each film Silva ordered, the exhibition of
those underage boys, who were also described as being nude and
active in suggestive settings, was the point of the production.
The jury thus could have found that this language about "fans" and
the satisfaction they would derive from particular films -- given
the rest of the descriptions -- would have alerted Silva, as a
prospective purchaser, to the fact that these films were "intended
or designed to elicit a sexual response in the viewer." Amirault,
173 F.3d at 31 (citing Dost, 636 F. Supp. at 832).
Finally, and further supporting the government's case,
the jury received evidence of Silva's comments offering his own
evaluation of the Azov website. Though made after the
investigation was underway and he had already received the
Paul." The film from count five was described as "a must get for
the true Vlaviu fan." The description for the film in count six
told readers that "[y]ou'll recognize a young Igor, and Sasha."
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materials, these comments -- when read in light of the evidence
concerning the information conveyed by the website pages for the
films he ordered -- provide a basis from which a jury could
reasonably infer that Silva found the sexually explicit nature of
the available materials evident from the face of the website. In
other words, though Silva insists that a purchaser might have
believed the materials to be benign at the time of ordering, the
comments the jury heard about his own characterization of the
website undercut the plausibility of such an assessment.
Specifically, the jury saw emails that Silva sent, soon
after the website was shut down by Canadian authorities, to a
professional acquaintance in the Rhode Island state police. These
emails set forth Silva's own concerns with the Azov website. Silva
wrote that the website "claim[s] to be a 'European Naturist'
website" but noted that "the only naturist films that they have
are of nude boys." He stated that "[t]hey sell mainstream films
as well" but added that he suspected "that they do this to provide
an 'air' of legitimacy." He wrote that he suspected that "the
boys featured in their 'Naturist' films are being groomed to
perform in the pornographic adult films when they come of age."
Silva also explained that he feared Azov was "doing more with these
boys than they are presenting" and that he had "a really bad
feeling about what may be happening to those boys." And,
underscoring the basis for inferring that Silva was himself
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concerned about the website, Silva implicitly denied in his email
to law enforcement that he had placed any orders with Azov, and he
also wrote that he did "not intend to find out" about the website’s
"special offers."
Moreover, during a subsequent search of his house,
according to the testimony of one law enforcement agent present at
the search, Silva also "stated that he was concerned about a lot
of things surrounding Azov Films. One of his concerns was that he
felt that the children may be being groomed for something later on
in a sexual nature within this connotation. He stated that he
knew the children were being exploited." And when told that the
Azov website operators were likely in prison, the agent testified,
Silva responded, "Good, they should be."
These comments thus provide a basis from which a rational
jury could conclude that Silva understood the Azov website to be
selling sexually explicit materials at the time he placed his
orders, rather than that he would have been surprised by the
content of the films that he eventually possessed. And though
Silva at trial and during the investigation offered an innocent
explanation for his purchases -- namely, that he had purchased the
films because he was working on a PowerPoint presentation related
to his work with sex offenders at the probation office -- the jury
was entitled to disbelieve what reasonably might have seemed like
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a "dubious claim[] of innocence." United States v. Hill, 750 F.3d
982, 988 (8th Cir. 2014).
Given the cumulative force of these reasons, a rational
jury could have concluded beyond a reasonable doubt that Silva had
knowledge that the contents of the materials he ordered and
received were of a kind that would bring such materials within the
Act's coverage, whether or not Silva knew at that time that such
contents rendered the films contraband as a legal matter. The
District Court therefore did not err in denying Silva's motion for
a judgment of acquittal.
VII.
For the foregoing reasons, the judgment of the District
Court is affirmed.
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