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

,

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,

(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.

The FBI used NIT to identify

and locate computers that received downloads from this child

pornography website. One such computer belonged to Levin.

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,

(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,

(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,

(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,

(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."

(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,

(1st Cir. 2015); United States v. Pires,

(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,

. This is especially

the case where files actually containing child pornography were

found elsewhere on the same hard drive.

- 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,

(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,

, 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,

; see also United States v. Sutton,

, 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,

(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,

(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,

(1st Cir. 2020); see also

Figueroa-Lugo,

(accepting the pattern jury

instruction for the definition of "knowingly").

III. Conclusion

We affirm Levin's conviction.

- 10 -