US v. Alan Clifton, No. 13-4575 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4575 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ALAN J. CLIFTON, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, District Judge. (1:12-cr-00389-RDB-1) Submitted: September 10, 2014 Decided: October 15, 2014 Before KING, SHEDD, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. James Wyda, Federal Public Defender, Baltimore, Maryland, Sapna Mirchandani, Appellate Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Judson T. Mihok, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Defendant Alan J. Clifton was convicted in early 2013 by a jury in the District of Maryland of three offenses involving child pornography, in contravention of separate subsections of 18 U.S.C. § 2252(a). On appeal, Clifton challenges only the sufficiency of the evidence relating to the mens rea element of one of those three offenses, that is, whether he knowingly transported in interstate commerce visual depictions of minors engaged in sexually § 2252(a)(1). explicit conduct, in violation of As explained below, we are satisfied that the proof was sufficient in that regard, and we therefore affirm. I. A. Clifton s prosecution arose from an undercover police investigation into the online sexual exploitation of minors. October 10, 2011, Detective Childs of the Baltimore On County Police Department utilized special law enforcement equipment to investigate the trafficking of child pornography on peer-to-peer ( P2P ) file-sharing FrostWire. 1 networks, including a network called Detective Childs discovered that one P2P account 1 The term peer-to-peer or P2P is used to describe a method via which computers can share files over the Internet. J.A. 162. FrostWire is a P2P program that an (Continued) 2 appeared to have eleven files available for download bearing titles consistent with child pornography. In furtherance of her investigation, Childs downloaded the following files from that particular account: (1) Pedophilia Uncle Undresses and Rapes 12-Year-Old Niece ; (2) New PTHC Daddy s Girl 12 YO Daddy BJ ; and (3) Zoo School New PTHC Take Them Home Real Good Teen Sex Adult Porno. 2 After involve determining minors that engaged in the downloaded sexually files explicit appeared conduct, to the authorities subpoenaed the user information associated with the foregoing account s Internet protocol address. Information derived from that subpoena led police to defendant Clifton s residence in Halethorpe, Maryland. On November 30, 2011, law enforcement officers executed a search warrant on Clifton s home and seized several computers and other electronic items. Following the raid, Clifton participated in an interview with two police officers regarding Detective Childs s individual can download and install on their computer in order to facilitate the sharing of any type of file. Id. (Citations herein to J.A. __ refer to the contents of the Joint Appendix filed by the parties in this appeal.) 2 The term PTHC, as used in online titles on P2P networks, means preteen hardcore. See J.A. 196, 266. The term YO, when following a number, stands for years old. Id. at 266. Thus, for example, 9YO means nine years old. Id. 3 investigation. He confessed to downloading online child pornography and estimated that he had saved about 200 images and videos of child pornography on his computer. acknowledged downloading the FrostWire Clifton further software program and confirmed that it had installed several folders on his laptop, including two respectively. FrostWire folders When had labeled prompted, installed a incomplete Clifton shared also folder in and saved, admitted his that FrostWire account and acknowledged that he was always curious about the shared folder. See J.A. 714-15. Clifton advised the officers that he sometimes checked on the contents of the shared folder, but it was always empty. Id. B. 1. By the operative Indictment of October 17, 2012, the grand jury in the District of Maryland charged child pornography offenses, including: Clifton with three (1) transportation of child pornography, in contravention of 18 U.S.C. § 2252(a)(1) (Count One); 3 (2) receipt of child pornography, in violation of 3 The statute underlying Clifton s conviction on Count One provides, in pertinent part, as follows: (a) Any person who (Continued) 4 18 U.S.C. § 2252(a)(2) (Count Two); and (3) possession of child pornography, as proscribed by 18 U.S.C. § 2252(a)(4)(B) (Count Three). During Clifton s jury trial in March 2013, the prosecution thoroughly explored Clifton s use of the FrostWire P2P network to Specifically, the FrostWire s access and prosecution installation share child presented process, its pornography. evidence default regarding settings, and other settings personally customized by Clifton. For example, FBI Agent Gordon, the prosecution s expert witness, explained that the FrostWire Set Up Wizard prompts users to designate a folder for downloaded files and inquires whether the user wants to share his downloaded files with other (1) knowingly transports . . . in or affecting interstate . . . commerce by any means including by computer . . . , 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; * * * shall be punished as provided in subsection (b) of this section. 18 U.S.C. § 2252(a)(1). Pursuant to § 2252(b), a violation of subsection (a)(1) subjects a defendant to a prison sentence of five to twenty years. 5 FrostWire users. Thereafter, FrostWire provides notifications indicating whether the user is sharing files at twenty to thirty locations. 4 If the user desires to terminate or limit file sharing, FrostWire offers multiple options. According to Agent Gordon, Clifton modified several default settings to meet his preferences, including creating a FrostWire nickname for online chats with other FrostWire disabling FrostWire s automatic startup feature. 5 also showed that Clifton created personal FrostWire to save his child pornography. users, and The government folders within Notably, Clifton knew enough about FrostWire to disable the sharing feature on certain file extensions associated with images images and videos of child pornography. and videos, including Those files were then 4 The prosecution introduced evidence that the version of FrostWire Clifton had utilized displayed five near-constant notices that Clifton was sharing files with other FrostWire users, including: (1) a My Shared Files tab; (2) a notice specifying, You are sharing [#] files. You can control which files FrostWire shares ; (3) an oval with a number inside that changes colors when files are shared; (4) a green arrow accompanied by a number that corresponds to the number of files being uploaded from that user by others on FrostWire; and (5) underlined text near the bottom of the FrostWire screen that reads, View My [#] Shared Files. See J.A. 189-90, 216-18, 222-23, 251, 767-83. 5 The automatic Run on Startup feature prompts the FrostWire program to start as soon as Windows does. See J.A. 227. Disabling that feature, therefore, would require a FrostWire user to manually launch the program after logging onto his computer. 6 placed in a separate directory named Extensions List Unshared. Despite that attempt to limit file sharing, however, on October 10, 2011, Detective Childs successfully downloaded child pornographic videos from Clifton s account. 6 The prosecution s evidence highlighted inconsistencies between Clifton s statements during his initial interview and those made at trial. For example, Clifton initially told police that he did not know the meaning of certain terms appearing in the titles of child pornographic images and videos, including the term searched PTHC. for pornography the and pornography. At trial, term knew however, PTHC that the in search he an conceded effort would to result that he download in child Next, on at least two occasions, Clifton denied knowing that FrostWire was a file-sharing program. He later acknowledged during his trial testimony that he could have read a disclaimer providing that FrostWire did, in fact, share its users files. pornography child Finally, Clifton originally estimated that his collection pornography. contained The more adult prosecution s 6 pornography forensic than evidence, Agent Gordon explained two alternatives on how Detective Childs was able to download files that were in Clifton s Extensions List Unshared directory: (1) that the file extensions were not in this Extensions List [Unshared] at the time of the download, or (2) that the file automatically fell into a shared folder by default. See J.A. 226. 7 however, established that Clifton only had thirty adult pornographic files on his computer, compared to approximately 3,670 child pornographic files. In defending himself, Clifton testified on his own behalf and denied that he had intentionally transported pornographic videos to other FrostWire users. admitted that it was possible other any child Clifton casually FrostWire users could download his files, but he professed a belief that he had to upload files to make them available for that type of sharing. See J.A. 492-93, 511. 7 Nonetheless, Clifton confirmed that he had customized FrostWire s settings to limit the number of his files available for downloading as a precautionary measure to prevent online hacking. Id. at 494. Under cross-examination, Clifton admitted that he spent nearly 700 hours on FrostWire over the course of a year. 2. At the close of the government s evidence, Clifton moved under Rule 29 of the Federal Rules of Criminal Procedure for judgment of acquittal on Count One, maintaining that there was a lack of evidence that he knowingly intended to transport child pornography on the P2P network. 7 The trial court denied the Clifton denied uploading child pornography onto FrostWire account, and the prosecution did not present contrary evidence. 8 his any motion, explaining that there was sufficient evidence to proceed, viewing the evidence in the light most favorable to the prosecution. evidence, See J.A. 452-53. Clifton renewed his At the close of all the request for a judgment acquittal on Count One, which the court also denied. of Id. at 607. In instructing the jury on Count One, the district court explained that the prosecution was elements beyond a reasonable doubt. 8 obliged to prove four As to the first element, that Clifton had knowingly transported a visual depiction, the court provided the jury the following explanation: In determining whether the defendant acted knowingly, you may consider whether the defendant deliberately closed his eyes to what would otherwise have been obvious to him. If you find beyond a reasonable doubt that the defendant acted with a conscious purpose to avoid learning the truth, then this element may be satisfied. However, guilty knowledge may not be established by demonstrating that the defendant was merely negligent, foolish, or mistaken. If you find that the defendant was aware of a high probability and that the defendant acted with deliberate disregard of the facts, you may find that 8 The parties agreed that the prosecution proved the second, third, and fourth elements of Count One, i.e., that the visual depiction was in or affecting commerce, that it involved and portrayed a minor engaging in sexually explicit conduct, and that Clifton knew that a minor was involved and so portrayed. Thus, the jury was instructed to focus only on whether Clifton knowingly transported child pornography. 9 the defendant acted knowingly. It is you to decide whether . . . you defendant deliberately closed his inference to be drawn from the evidence J.A. 660-61. contending entirely up to find that the eyes and any on this issue. Clifton opposed the court s ostrich instruction, that the evidence did not show that ignored or turned a blind eye to any facts. he wilfully Id. at 557-58. 9 The court overruled that objection. The jury found Clifton guilty on all three offenses in the indictment, including the Count One charge knowingly transported child pornography. 10 that Clifton had The district court thereafter sentenced Clifton to eighty-four months in prison for each of the three offenses, concurrently with the next. with each sentence set to run Clifton timely noticed this appeal, seeking vacatur of his Count One conviction and resentencing on Counts Two and Three. We possess jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). 9 The sort of knowledge defined in an ostrich instruction knowledge [that] may be inferred from deliberate avoidance of learning the truth is sufficient, if proved, to establish a defendant s knowledge as a matter of law. See United States v. Forbes, 64 F.3d 928, 934 (4th Cir. 1995). 10 At trial, the district court gave the jury the option of finding Clifton guilty of a lesser-included offense under Count Two that is, possession, rather than receipt, of child pornography. In his closing argument, Clifton s defense counsel conceded guilt to the lesser-included offense as well as to the Count Three possession offense. The jury found Clifton guilty of the Count Two and Three offenses as charged in the Indictment, and he does not challenge those verdicts on appeal. 10 II. We review de novo a trial court s denial of a motion for judgment of acquittal. Surgical Supply See Corp., 989 United F.2d States 1390, 1401 v. United (4th Cir. Med. & 1993). When a defendant bases his motion on the insufficiency of the evidence, the substantial verdict evidence, must taking Government, to support it. be the sustained view most if there favorable to is the United States v. Gallimore, 247 F.3d 134, 136 (4th Cir. 2001) (quoting Glasser v. United States, 315 U.S. 60, 80 (1942)). We have defined substantial evidence as evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant s guilt beyond a reasonable doubt. United States v. Burgos, 94 F.3d (en 849, 862 challenging (4th the Cir. sufficiency 1996) of the banc). evidence conviction must overcome a heavy burden. A defendant supporting his United States v. Hoyte, 51 F.3d 1239, 1245 (4th Cir. 1995). On appeal, Clifton only challenges the sufficiency of the evidence to convict him of Count One specifically, that he knowingly other transported P2P network pornographic users. See videos 18 involving U.S.C. § minors to 2252(a)(1) (prohibiting knowing[] transport[ation] of child pornography). Clifton maintains that the prosecution s evidence does not support his conviction on Count One because the use of the 11 program [i.e., FrostWire] to obtain child pornography, by itself, is insufficient to prove an intent to share it with others. Br. of Appellant 30. We have recognized that the use of a peer-to-peer filesharing program constitutes distribution as defined by the Sentencing Guidelines in the context of child pornography. See United States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009). Thus, [w]hen knowingly using a file-sharing program that allows others to access child pornography files, a defendant commits an act related to the transfer of material involving the sexual exploitation of a minor. Id. (quoting USSG § 2G2.2 cmt. n.1). We are satisfied that the same rationale applies to the felony offense of transportation of child pornography under 18 U.S.C. § 2252(a)(1). It is undisputed that Detective Childs downloaded pornography from Clifton s FrostWire account. child Thus, the sole issue presented here is whether a rational jury could have found that Clifton knowingly used a file-sharing program that would allow others to access child pornography from his computer. Notably, Clifton s testimony at trial was inconsistent regarding whether he knew FrostWire was 11 a file-sharing program. 11 On Clifton s testimony included, for example, the following exchange on cross-examination: (Continued) 12 appeal, however, Clifton asserts that he never disputed the fact that he knew FrostWire was a file-sharing program that, by definition, would allow him to openly others on the FrostWire network. share his files Br. of Appellant 30. with And, indeed, the prosecution presented ample evidence to the jury that Clifton knew FrostWire was a file-sharing program. Our analysis of the evidence sufficiency issue does not end here, however, because the undisputed evidence also establishes that Clifton disabled sharing on certain file extensions, including extensions on child pornographic videos, and Clifton maintains that he shared folder. periodically checked the contents of his We are thus tasked with deciding whether the jury had sufficient evidence to convict Clifton of knowingly transporting child pornography in spite of those acts. We are confident it did. Importantly, that Clifton the jury knowingly instructions transported specifically child provided pornography as a [Prosecutor]: And, of course, FrostWire s known as a file sharing system, isn t that right? [Clifton]: That was not known to me. J.A. 518. Clifton later acknowledged, however, that the standard disclaimer during the installation process would have informed him that FrostWire was a file-sharing program [i]f I read it. Id. at 524-25. 13 matter of law if he had actual knowledge that he was sharing files or if otherwise he have prosecution s deliberately been closed obvious evidence to included his eyes him. to J.A. proof that what would 660. The Clifton had: (1) downloaded and installed FrostWire, a file-sharing program; (2) spent 700-plus hours on FrostWire; (3) saved approximately 3,670 images and videos of child pornography; (4) configured the FrostWire program so that it did not run on Windows startup; (5) created a FrostWire nickname for chatting; and (6) created new folders for child pornography from his FrostWire downloads. evidence also demonstrated that FrostWire had: The (1) notified Clifton at twenty to thirty locations that he could share his FrostWire files; (2) displayed five near-constant notices that Clifton s files could be shared; and (3) offered multiple options to cease the sharing of files. Clifton s credibility was for the jury to assess. See United States v. Lentz, 383 F.3d 191, 199 (4th Cir. 2004) ( The jury, not the reviewing court, assesses the credibility of the witnesses and presented. ). resolves any conflicts in the evidence A rational jury was entitled to conclude that Clifton had at least ordinary knowledge of FrostWire s filesharing features, FrostWire s could and and, numerous were as a result, notifications downloading his 14 that files. feigned other We ignorance FrostWire must of users conclude, therefore, that the jury had sufficient evidence to convict Clifton of violating 18 U.S.C. § 2252(a)(1), and the district court did not err in denying his requests for a judgment of acquittal on Count One. III. Pursuant to the foregoing, we affirm the judgment of the district court. AFFIRMED 15
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