United States Court of Appeals For the First Circuit
No. 20-1078
UNITED STATES OF AMERICA,
Appellee,
v.
ALEX LEVIN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Thompson, Selya, and Hawkins,* Circuit Judges.
Julia Pamela Heit for appellant. Randall E. Kromm, Assistant United States Attorney, with whom Nathaniel R. Mendell, Acting United States Attorney, was on brief, for appellee.
September 14, 2021
* Of the Ninth Circuit, sitting by designation. HAWKINS, Circuit Judge. A jury convicted Alex Levin
("Levin") of possession of child pornography involving a minor who
had not yet attained twelve years of age in violation of 18 U.S.C.
§ 2252A(a)(5)(B) and (b)(2). Levin was subsequently sentenced to
78 months' imprisonment to be followed by a 60-month term of
supervised release. Levin now appeals, challenging the
sufficiency of the evidence, the allowance of juror questions, and
a jury instruction. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
I. Background1
A. Levin's Laptop
Levin was initially identified through a Federal Bureau
of Investigation ("FBI") investigation of child pornography. See
United States v. Levin, 874 F.3d 316, 318 (1st Cir. 2017). More
specifically, the FBI received a search warrant from a district
court in Virginia to install a software program, Network
Investigative Technique ("NIT"), on a server, located in Virginia,
for a child pornography website. Id. The FBI used NIT to identify
and locate computers that received downloads from this child
pornography website. One such computer belonged to Levin. Id.
1 Because Levin contests the sufficiency of the evidence, we present the facts in the light most favorable to the verdict. See United States v. Stefanik, 674 F.3d 71, 73 (1st Cir. 2012).
- 2 - Local police officers and FBI agents subsequently
executed a separate search warrant for Levin's apartment, finding
several electronic devices, including two laptops. FBI Special
Agent Clayton Phelps ("Agent Phelps") preliminarily examined them.
One of Levin's laptops stored filenames that included terms
associated with child pornography, such as "pthc" (preteen hard
core). Levin's devices were then transported to an FBI laboratory.
Agent Phelps proceeded to conduct a forensic review of
Levin's devices, which revealed that thirteen files, containing
what Levin conceded to be child pornography, were downloaded in
2011. Ten of the thirteen filenames included the term "pthc,"
e.g., "new pedo PTHC 6 YO 2011 friend 3 (excellent) trade only for
ultraprivate."
Levin's laptop also contained two other types of files
indicative of child pornography consumption. First, Agent Phelps
identified the presence of "link" files with titles including terms
suggestive of child pornography, such as "pedowoman" and
"pedomen." Link files are created by Windows when a file is opened
by a user.
Second, Agent Phelps analyzed a registry report from
Levin's computer, which listed two categories of "registry" files.
Registry files are generated by Windows to keep track of
information on the computer so that it is easier to return to
previously accessed information. The first category of registry
- 3 - entries appeared in "\RecentDocs," which identifies the files and
videos that a user has most recently opened. A number of these
files had titles including terms suggestive of child pornography,
such as "pedowoman" and "pthc." The second category of registry
entries appeared in the "\WordWheelQuery," which identifies user
searches of the computer hard drive. A number of these searches
included the term: "pthc."
A federal grand jury accordingly charged Levin with
possessing child pornography involving a minor who had not yet
attained twelve years of age, 18 U.S.C. § 2252A(a)(5)(B) and
(b)(2).
The district court subsequently suppressed the evidence
against Levin, concluding the search warrant used by the FBI to
install and use NIT was invalid because it violated the geographic
limitations under Federal Rule of Criminal Procedure 41. Levin,
874 F.3d at 320–21. We reversed, concluding that suppression was
unwarranted under the good faith exception to the exclusionary
rule, and remanded the case to the district court for further
proceedings. Id. at 324.
B. Levin's Trial
During the preliminary jury instructions, the jurors
were told that they could ask questions subject to certain rules:
(1) make the questions simple, (2) write them down, and (3) pass
them to the forewoman, who would pass them to the judge for review.
- 4 - The jurors were cautioned that the judge may not ask a question
for legal reasons, so they should not make any assumptions based
on un-asked questions, and the judge further reminded the jurors
to focus on the testimony and not launch into their own
investigations. Neither party objected to this practice or
procedure.
After Agent Phelps testified, the judge told counsel for
both parties, away from the jury, that he had received a list of
ten juror questions and shared it with them. Most of the questions
sought clarification on whether files could be accessed but not
opened. The judge suggested that the defense proceed, and they
would see if there was a witness "to whom those questions [could]
be asked." Again, neither party objected.
At the very end of the trial, the judge allowed defense
counsel to recall the defendant's forensic expert, Joseph
Nicholls. Defense counsel attempted to ask a question regarding
file "access," but the judge repeatedly sustained the government's
objections. Eventually, the judge told the jurors that he would
ask Nicholls two of their proposed questions. Once again, neither
party objected. The judge asked Nicholls about "accessed" files,
namely, whether a file can be accessed and not opened by a user.
Nicholls responded, "yes." The judge then turned Nicholls back
over to defense counsel.
- 5 - Before closing arguments, the judge agreed to charge the
jury with the definition of "knowingly" requested by defense
counsel, i.e., the pattern instruction.2 The judge proceeded to
instruct the jury:
Now to "knowingly." The law, as has been properly set forth to you, requires the government to prove that "knowingly" means that the possession here on the computer -- not any download, but the possession was voluntary and intentional, not because of mistake or accident.
Following deliberations, the jury returned a verdict
finding Levin guilty of the only count charged, and he was
subsequently sentenced.
II. Discussion
A.
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United States Court of Appeals For the First Circuit
No. 20-1078
UNITED STATES OF AMERICA,
Appellee,
v.
ALEX LEVIN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Thompson, Selya, and Hawkins,* Circuit Judges.
Julia Pamela Heit for appellant. Randall E. Kromm, Assistant United States Attorney, with whom Nathaniel R. Mendell, Acting United States Attorney, was on brief, for appellee.
September 14, 2021
* Of the Ninth Circuit, sitting by designation. HAWKINS, Circuit Judge. A jury convicted Alex Levin
("Levin") of possession of child pornography involving a minor who
had not yet attained twelve years of age in violation of 18 U.S.C.
§ 2252A(a)(5)(B) and (b)(2). Levin was subsequently sentenced to
78 months' imprisonment to be followed by a 60-month term of
supervised release. Levin now appeals, challenging the
sufficiency of the evidence, the allowance of juror questions, and
a jury instruction. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
I. Background1
A. Levin's Laptop
Levin was initially identified through a Federal Bureau
of Investigation ("FBI") investigation of child pornography. See
United States v. Levin, 874 F.3d 316, 318 (1st Cir. 2017). More
specifically, the FBI received a search warrant from a district
court in Virginia to install a software program, Network
Investigative Technique ("NIT"), on a server, located in Virginia,
for a child pornography website. Id. The FBI used NIT to identify
and locate computers that received downloads from this child
pornography website. One such computer belonged to Levin. Id.
1 Because Levin contests the sufficiency of the evidence, we present the facts in the light most favorable to the verdict. See United States v. Stefanik, 674 F.3d 71, 73 (1st Cir. 2012).
- 2 - Local police officers and FBI agents subsequently
executed a separate search warrant for Levin's apartment, finding
several electronic devices, including two laptops. FBI Special
Agent Clayton Phelps ("Agent Phelps") preliminarily examined them.
One of Levin's laptops stored filenames that included terms
associated with child pornography, such as "pthc" (preteen hard
core). Levin's devices were then transported to an FBI laboratory.
Agent Phelps proceeded to conduct a forensic review of
Levin's devices, which revealed that thirteen files, containing
what Levin conceded to be child pornography, were downloaded in
2011. Ten of the thirteen filenames included the term "pthc,"
e.g., "new pedo PTHC 6 YO 2011 friend 3 (excellent) trade only for
ultraprivate."
Levin's laptop also contained two other types of files
indicative of child pornography consumption. First, Agent Phelps
identified the presence of "link" files with titles including terms
suggestive of child pornography, such as "pedowoman" and
"pedomen." Link files are created by Windows when a file is opened
by a user.
Second, Agent Phelps analyzed a registry report from
Levin's computer, which listed two categories of "registry" files.
Registry files are generated by Windows to keep track of
information on the computer so that it is easier to return to
previously accessed information. The first category of registry
- 3 - entries appeared in "\RecentDocs," which identifies the files and
videos that a user has most recently opened. A number of these
files had titles including terms suggestive of child pornography,
such as "pedowoman" and "pthc." The second category of registry
entries appeared in the "\WordWheelQuery," which identifies user
searches of the computer hard drive. A number of these searches
included the term: "pthc."
A federal grand jury accordingly charged Levin with
possessing child pornography involving a minor who had not yet
attained twelve years of age, 18 U.S.C. § 2252A(a)(5)(B) and
(b)(2).
The district court subsequently suppressed the evidence
against Levin, concluding the search warrant used by the FBI to
install and use NIT was invalid because it violated the geographic
limitations under Federal Rule of Criminal Procedure 41. Levin,
874 F.3d at 320–21. We reversed, concluding that suppression was
unwarranted under the good faith exception to the exclusionary
rule, and remanded the case to the district court for further
proceedings. Id. at 324.
B. Levin's Trial
During the preliminary jury instructions, the jurors
were told that they could ask questions subject to certain rules:
(1) make the questions simple, (2) write them down, and (3) pass
them to the forewoman, who would pass them to the judge for review.
- 4 - The jurors were cautioned that the judge may not ask a question
for legal reasons, so they should not make any assumptions based
on un-asked questions, and the judge further reminded the jurors
to focus on the testimony and not launch into their own
investigations. Neither party objected to this practice or
procedure.
After Agent Phelps testified, the judge told counsel for
both parties, away from the jury, that he had received a list of
ten juror questions and shared it with them. Most of the questions
sought clarification on whether files could be accessed but not
opened. The judge suggested that the defense proceed, and they
would see if there was a witness "to whom those questions [could]
be asked." Again, neither party objected.
At the very end of the trial, the judge allowed defense
counsel to recall the defendant's forensic expert, Joseph
Nicholls. Defense counsel attempted to ask a question regarding
file "access," but the judge repeatedly sustained the government's
objections. Eventually, the judge told the jurors that he would
ask Nicholls two of their proposed questions. Once again, neither
party objected. The judge asked Nicholls about "accessed" files,
namely, whether a file can be accessed and not opened by a user.
Nicholls responded, "yes." The judge then turned Nicholls back
over to defense counsel.
- 5 - Before closing arguments, the judge agreed to charge the
jury with the definition of "knowingly" requested by defense
counsel, i.e., the pattern instruction.2 The judge proceeded to
instruct the jury:
Now to "knowingly." The law, as has been properly set forth to you, requires the government to prove that "knowingly" means that the possession here on the computer -- not any download, but the possession was voluntary and intentional, not because of mistake or accident.
Following deliberations, the jury returned a verdict
finding Levin guilty of the only count charged, and he was
subsequently sentenced.
II. Discussion
A. Sufficiency of the Evidence
We review preserved challenges to the sufficiency of the
evidence de novo, viewing the record in the light most favorable
to the prosecution and rejecting such challenges if any rational
jury could have convicted the defendant when considering all the
2 This court has made clear that "[t]hough pattern instructions may be a useful reference point, they are not binding." Teixeira v. Town of Coventry, 882 F.3d 13, 18 (1st Cir. 2018). Relevant here, the First Circuit's pattern instruction for the definition of "knowingly" is: "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." See Pattern Jury Instructions for the District Courts of the First Circuit, Instruction 2.15, Definition of "Knowingly," available at https://www.med.uscourts.gov/pdf/crpjilinks.pdf, last visited Sept. 2, 2021.
- 6 - evidence, direct and circumstantial, in this way. United States
v. Cruz-Ramos, 987 F.3d 27, 36 (1st Cir. 2021). "[T]he 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. Breton, 740 F.3d 1, 16 (1st Cir. 2014) (quotation
omitted).
Levin contends that there was insufficient evidence to
prove beyond a reasonable doubt that he knew there was child
pornography on his computer, focusing on the lack of direct
evidence that he actually opened the files containing child
pornography. We have recognized that knowledge of child
pornography "often is shown through circumstantial evidence." Id.
at 17 (quotation omitted). For example, 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." Id.; see also United States v. Figueroa-Lugo,
793 F.3d 179, 187 (1st Cir. 2015); United States v. Pires, 642
F.3d 1, 9 (1st Cir. 2011). Additionally, "[t]he presence of files
with names indicative of child pornography—even absent further
proof of what, if anything, those files contained—tends to make it
more probable that [the defendant] knowingly was involved with
child pornography." Breton, 740 F.3d at 14. This is especially
the case where files actually containing child pornography were
found elsewhere on the same hard drive. Id.
- 7 - Here, a reasonable jury could infer that Levin
"knowingly" possessed child pornography based on the substantial
amount of circumstantial evidence presented by the government:
Levin personally searched his computer using terms that are
associated with child pornography, e.g., "pthc." Indeed,
searching "pthc" would have returned ten of the thirteen files
containing child pornography on his computer. The registry report
even indicated that Levin searched "pthc" more than once. And
there were link files on Levin's computer with names plainly
indicative of child pornography, which establishes, for example,
that Levin did open and display on his screen the contents of a
file titled: "Incest, set pedowoman 2010.lnk." The government's
evidence was therefore sufficient to sustain a finding of guilt
beyond a reasonable doubt.
B. Objection to Juror Questions
Where, as here, a defendant does not object to the
district court's procedure for entertaining juror questions, we
review for plain error. See United States v. Cassiere, 4 F.3d
1006, 1017 (1st Cir. 1993). The defendant must show: (1) error,
(2) that is clear or obvious, (3) that affects his substantial
rights, and (4) that seriously compromised the fairness,
integrity, or public reputation of judicial proceedings. United
States v. Millán-Machuca, 991 F.3d 7, 28 (1st Cir. 2021).
- 8 - Levin's claim that allowing juror questions constituted
plain error also fails, as he has not established any "error" that
affected his substantial rights. Juror questions are allowed
subject to the same rules the district court announced here. See
Cassiere, 4 F.3d at 1018; see also United States v. Sutton, 970
F.2d 1001, 1005–07 (1st Cir. 1992).
Here, the judge allowed just two juror questions of
Levin's own expert that related to complicated technical
functions. See Sutton, 970 F.2d at 1006-07 (upholding lower
court's decision to ask a few "bland" juror questions that had a
"relatively high" positive value given the case's complexity).
Defense counsel did not object to either of these questions.
Indeed, defense counsel had earlier tried to ask the same witness
similar questions. The answers to these questions were quite
favorable to Levin, as they supported his theory of the case:
Levin's expert answered that files can be accessed and not opened
by a user. There was no plain error here.
C. Objection to Jury Instruction
We normally review challenges to jury instructions that
a defendant failed to object to below under the plain
error standard. United States v. Delgado-Marrero, 744 F.3d 167,
184 (1st Cir. 2014). Here, however, Levin has not just forfeited
but instead waived any objection to the district court's jury
instruction on the definition of "knowingly" because, as Levin
- 9 - acknowledges, he requested the very instruction given, i.e., the
pattern jury instruction for the definition of "knowingly." See
United States v. Lara, 970 F.3d 68, 75 (1st Cir. 2020); see also
Figueroa-Lugo, 793 F.3d at 193 (accepting the pattern jury
instruction for the definition of "knowingly").
III. Conclusion
We affirm Levin's conviction.
- 10 -