Filed: Oct. 15, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4575 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. ALAN J. CLIFTON, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion.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, B
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4575 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. ALAN J. CLIFTON, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion.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, Ba..
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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 explicit conduct, in violation of
§ 2252(a)(1). 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. On
October 10, 2011, Detective Childs of the Baltimore County
Police Department utilized special law enforcement equipment to
investigate the trafficking of child pornography on peer-to-peer
(“P2P”) file-sharing networks, including a network called
FrostWire. 1 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 determining that the downloaded files appeared to
involve minors engaged in sexually explicit conduct, 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. Clifton further
acknowledged downloading the FrostWire software program and
confirmed that it had installed several folders on his laptop,
including two folders labeled “incomplete” and “saved,”
respectively. When prompted, Clifton also admitted that
FrostWire had installed a “shared” folder in his 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 Clifton with three
child pornography offenses, including: (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 access and share child pornography.
Specifically, the prosecution presented evidence regarding
FrostWire’s installation process, its default 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 users, and
disabling FrostWire’s automatic startup feature. 5 The government
also showed that Clifton created personal folders within
FrostWire to save his child pornography. Notably, Clifton knew
enough about FrostWire to disable the sharing feature on certain
file extensions associated with images and videos, including
images and videos of child pornography. 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 “PTHC.” At trial, however, he conceded that he
searched for the term “PTHC” in an effort to download
pornography and knew that the search would result in child
pornography. 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. Finally, Clifton originally estimated that his
pornography collection contained more adult pornography than
child pornography. The prosecution’s forensic evidence,
6
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 any child
pornographic videos to other FrostWire users. Clifton casually
admitted that it was “possible” other 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. The trial court denied the
7
Clifton denied uploading child pornography onto his
FrostWire account, and the prosecution did not present any
contrary evidence.
8
motion, explaining that there was “sufficient evidence to
proceed,” viewing the evidence in the light most favorable to
the prosecution. See J.A. 452-53. At the close of all the
evidence, Clifton renewed his request for a judgment of
acquittal on Count One, which the court also denied. Id. at
607.
In instructing the jury on Count One, the district court
explained that the prosecution was obliged to prove four
elements beyond a reasonable doubt. 8 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 entirely up to
you to decide whether . . . you find that the
defendant deliberately closed his eyes and any
inference to be drawn from the evidence on this issue.
J.A. 660-61. Clifton opposed the court’s “ostrich” instruction,
contending that the evidence did not show that he “wilfully
ignored or turned a blind eye to any facts.” 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 that Clifton had
knowingly transported child pornography. 10 The district court
thereafter sentenced Clifton to eighty-four months in prison for
each of the three offenses, with each sentence set to run
concurrently with the next. 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. See United States v. United Med. &
Surgical Supply Corp., 989 F.2d 1390, 1401 (4th Cir. 1993).
When a defendant bases his motion on the insufficiency of the
evidence, “the verdict ‘must be sustained if there is
substantial evidence, taking the view most favorable to the
Government, to support it.’” 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 849, 862 (4th Cir. 1996) (en banc). A defendant
challenging the sufficiency of the evidence supporting his
conviction “must overcome a heavy burden.” 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 transported pornographic videos involving minors to
other P2P network users. See 18 U.S.C. § 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 file-
sharing 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 child
pornography from Clifton’s FrostWire account. 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 a file-sharing program. 11 On
11
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 share his files with
others on the FrostWire network.” Br. of Appellant 30. 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 periodically checked the contents of his
shared folder. 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, the jury instructions specifically provided
that Clifton “knowingly” transported child 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 he “deliberately closed his eyes to what would
otherwise have been obvious to him.” J.A. 660. The
prosecution’s evidence included proof that 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. The
evidence also demonstrated that FrostWire had: (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 resolves any conflicts in the evidence
presented.”). A rational jury was entitled to conclude that
Clifton had at least ordinary knowledge of FrostWire’s file-
sharing features, and, as a result, feigned ignorance of
FrostWire’s numerous notifications that other FrostWire users
could and were downloading his files. We must conclude,
14
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
