                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-1884
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                      Jason Hill

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                   for the Western District of Missouri - Joplin
                                 ____________

                           Submitted: February 14, 2014
                               Filed: May 7, 2014
                                 ____________

Before RILEY, Chief Judge, LOKEN and BYE, Circuit Judges.
                              ____________

RILEY, Chief Judge.

      A jury convicted Jason Hill of knowingly receiving and distributing child
pornography in violation of 18 U.S.C. § 2252(a)(2), (b)(1) (Count 1) and knowingly
possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2) (Count
2). Hill appeals, arguing the district court1 erred in denying, without a hearing, his
motion to suppress evidence seized from his computer, and denying his motion to
dismiss a charged count on double jeopardy grounds. Hill further argues the district
court2 erred in denying his motions for judgment of acquittal on both counts. With
appellate jurisdiction under 28 U.S.C. § 1291, we affirm.

I.     BACKGROUND
       On August 3, 2010, James Smith, a Cassville, Missouri, police officer
participating in a southwest Missouri cyber crimes task force investigating Internet
crimes against children, used LimeWire, an online “peer-to-peer” file-sharing
program, to access Hill’s computer. Officer Smith downloaded ten images of what
he believed to be child pornography from Hill’s shared folder on LimeWire.3 Based
on the files downloaded from Hill’s computer, Officer Smith, Task Force Officer
Brian Martin, and Special Agent James D. Holdman Jr. of the U.S. Department of
Homeland Security (DHS) obtained a federal warrant to search Hill’s residence for
child pornography.

       The officers executed the warrant on September 28, 2010. When Hill answered
the door, the officers served the warrant and explained they were looking for evidence
of child pornography. After waiving, in writing, his rights prescribed by Miranda v.
Arizona, 384 U.S. 436 (1966), Hill admitted he had been downloading large amounts


      1
       The Honorable Richard E. Dorr, late United States District Judge for the
Western District of Missouri, adopting two reports and recommendations of the
Honorable James C. England, United States Magistrate Judge for the Western District
of Missouri.
      2
       The Honorable David Gregory Kays became Chief Judge of the United States
District Court for the Western District of Missouri on January 4, 2014.
      3
     Installing LimeWire automatically allowed Hill to share files with any other
LimeWire user in the world.

                                         -2-
of adult pornography through LimeWire for about a year, but “initially denied ever
seeing any child pornography.” Hill told the officers he may have seen a “popup” for
what “he thought . . . might be child pornography” the night before the search, but
that “he deleted it immediately” as he always did with such “popups.” Hill’s story
changed over time.

       As the interview progressed, the officers asked Hill whether he used search
terms frequently used to obtain child pornography—terms contained in the filenames
Officer Smith obtained from Hill’s computer. Hill admitted he may have
“accidentally typed ‘preteen’” as a search term in LimeWire late at night when it was
dark or when he was drunk. Hill stated he deleted any child pornography he
accidentally downloaded. When pressed, Hill admitted he intentionally used the
search term “preteen” and viewed at least one hundred images of child pornography,
one involving a child as young as five years old. Hill eventually told the officers he
viewed child pornography “once or twice a month” from March 2010 to the time of
the search “out of curiosity,” but asserted he did not save it.

       The officers seized Hill’s computers, including the one on which Hill
admittedly downloaded adult and child pornography. Special Agent James Kanatzar,
a forensic examiner for DHS, inspected Hill’s computer and found evidence that files
containing child pornography had been downloaded and stored on Hill’s hard drive.
Agent Kanatzar found trace evidence that the files Officer Smith downloaded from
Hill’s computer had been on the hard drive before being deleted. Agent Kanatzar also
found three videos the jury determined to be child pornography in Hill’s LimeWire
directory, which made the files accessible to other LimeWire users. Agent Kanatzar
also found four files containing child pornography in the recycle bin on Hill’s
computer. Before being moved to the computer’s recycle bin, the files would have
been saved somewhere else on Hill’s hard drive. One of the images in the recycle bin
(Exhibit 40) matched one of the images Officer Smith downloaded on August 3, 2010
(Exhibit 10).

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        Hill was indicted on November 9, 2010, and arrested the next day. Before trial,
Hill moved to suppress the evidence seized from his computer, alleging the initial
contact with his computer was an unreasonable search and anything derived
therefrom was tainted. The district court denied the motion. Hill then moved to
dismiss either Count 1 or Count 2, arguing conviction on both counts would violate
his right against double jeopardy because possession of child pornography is a lesser-
included offense of receipt. The district court denied the motion, concluding there
was no double jeopardy issue because the possession and receipt charges “involve[d]
different files.” The district court denied Hill’s renewed motion to dismiss a count
at trial.

       Hill’s three day trial began September 25, 2012. The government presented
testimony from the investigating officers and the forensic examiner describing their
interviews with Hill and the child pornography they found on his computer. The
government also showed the still images (Exhibits 4-13, 37-40) and played a portion
of each of the three videos from Hill’s computer (Exhibits 41-43) for the jury.

        Maintaining his innocence, Hill took the stand in his own defense.
Unemployed after losing his job in the technical support division of AT&T Mobility,
Hill explained he supplemented his income rebuilding and repairing broken
computers with component parts. As to the seized computer containing child
pornography, Hill testified he had replaced the RAM, the hard drive, the video
processor, the CD drive, and the power source. Hill also testified he was a “gamer,”
meaning he played interactive video games with others online. Distinguishing
between his familiarity with hardware and his purported ignorance of software, Hill
testified he loaded LimeWire onto his computer to download music and adult
pornography but, contrary to the officers’ testimony, denied he knew the LimeWire
files he downloaded were automatically available to other LimeWire users.




                                         -4-
       Hill’s direct examination took an unexpected turn. For the first time, Hill
admitted to “knowingly receiving and distributing child pornography involving the
use of minors engaging in sexually explicit conduct,” as charged in the indictment,
and intentionally obtaining the images shown to the jury. But Hill also stated he only
viewed the child pornography to protect his children4—Hill explained he was
intentionally searching for “preteen” images because he thought an unidentified man
at a party may have taken illicit pictures of his fourteen- and sixteen-year-old
stepdaughters showering. Though Hill’s teenage stepdaughters were not “preteen,”
Hill claimed he viewed many images of child pornography and then deleted them
when he verified they did not include his stepdaughters. When confronted on cross
examination with timing inconsistencies, Hill testified he had also looked for images
of a family friend he had helped after she was exploited online. Hill stated he could
not review all of the 266 suspected child pornography files he downloaded to his
shared folder because he became “disgusted” and “sickened of what [he] had seen”
and “could not continue.” Although Hill later resumed his search, he insisted he
deleted or attempted to delete all the child pornography he downloaded and viewed.

      After deliberating for approximately four hours, the jury convicted Hill on both
counts. In separate verdict forms, the jury found Hill (1) received all ten still images
and all three videos found in his shared folder and distributed the images all as
alleged in Count 1, and (2) possessed all four images found in his computer’s recycle
bin as alleged in Count 2. The district court denied Hill’s timely motions for
judgment of acquittal. The district court sentenced Hill to concurrent terms of 144
months for Count 1 and 120 months for Count 2. Hill appeals his convictions.




      4
       Hill also admitted to downloading and viewing one of the videos (Exhibit 43)
before deleting it but denied viewing the other two (Exhibits 41 and 42), the first of
which involved a child victim who was known to be only ten or eleven years old
when the video was produced.

                                          -5-
II.    DISCUSSION
       A.     Motion to Suppress
       Hill first contends the district court erred in denying his motion to suppress
without a hearing because, in Hill’s view, Officer Smith violated Hill’s Fourth
Amendment right to be free from unreasonable searches and seizures by accessing
Hill’s computer using peer-to-peer software and downloading files from Hill’s
LimeWire shared folder. We review the district court’s denial of Hill’s “motion to
suppress de novo, and the underlying factual determinations for clear error.” United
States v. Barker, 437 F.3d 787, 789 (8th Cir. 2006). “We review a district court’s
decision whether to hold an evidentiary hearing for an abuse of discretion.” United
States v. Yielding, 657 F.3d 688, 705 (8th Cir. 2011).

       Hill’s Fourth Amendment arguments completely ignore the holding of United
States v. Stults, 575 F.3d 834, 843 (8th Cir. 2009). In Stults, we held a defendant has
“no reasonable expectation of privacy in files . . . retrieved from his personal
computer where [the defendant] admittedly installed and used LimeWire to make his
files accessible to others for file sharing.” Id. It did not matter that the defendant
denied knowing others would be able to access his files because the defendant knew
“‘he had file-sharing software on his computer’” and admittedly downloaded music
and pornography to his shared folder where other users, including law enforcement
officers, had access. Id. (quoting United States v. Ganoe, 538 F.3d 1117, 1127 (9th
Cir. 2008)).

      The same is true here. Hill admittedly downloaded and actively used
LimeWire—file-sharing software that made the scores of pornography files in Hill’s
shared folder accessible to any LimeWire user in the world, including Officer Smith.
LimeWire itself was a publicly accessible program available for free download by
anyone with a computer and an internet connection. Hill had no reasonable
expectation of privacy in such publicly shared files and “‘cannot invoke the
protections of the Fourth Amendment.’” Id. (quoting Ganoe, 538 F.3d at 1127). The

                                         -6-
district court did not abuse its discretion or otherwise err in denying Hill’s motion to
suppress without a hearing. See Yielding, 657 F.3d at 705 (“A district court
presented with a motion to suppress need not hold an evidentiary hearing as a matter
of course, and a hearing is unnecessary if the district court can determine that
suppression is unwarranted as a matter of law.”).

       B.     Double Jeopardy
       Hill next contends the district court erred in refusing to dismiss one count of
the indictment on double jeopardy grounds. See United States v. Muhlenbruch, 634
F.3d 987, 1003-04 (8th Cir. 2011) (concluding possessing child pornography under
18 U.S.C. § 2252(a)(4)(B) is a lesser-included offense of receiving child pornography
under 18 U.S.C. § 2252(a)(2) when “based on the ‘same act or transaction’” (quoting
Blockburger v. United States, 284 U.S. 299, 304 (1932))). The Double Jeopardy
Clause of the Fifth Amendment protects a criminal defendant from “multiple
punishments for the same criminal offense.” United States v. Bennett, 44 F.3d 1364,
1368 (8th Cir. 1995). We review de novo the denial of a motion to dismiss one count
of the indictment “on the grounds of double jeopardy.” Id. To establish his double
jeopardy claim, Hill must show Count 1 and Count 2 “are in law and fact the same
offense.” Id. This he cannot do.

       With just one exception, the jury’s guilty verdicts for Count 1 and Count 2
were based on different visual depictions of child pornography. On Count 1, the jury
found Hill received the ten images and three videos found in Hill’s LimeWire shared
folder and distributed the same ten images. On Count 2, the jury found Hill possessed
the four images found in Hill’s recycle bin, three of which were different from the
images charged in Count 1. Because the jury specifically found Hill guilty based on
different facts and images for each count, the jury did not convict Hill “‘of receiving
[and distributing] the same images that he was also found to have possessed,’ and




                                          -7-
thus no double jeopardy violation occurred.”5 United States v. Manning, 738 F.3d
937, 947 (8th Cir. 2014) (quoting United States v. Huether, 673 F.3d 789, 798 (8th
Cir. 2012)).

      C.      Sufficiency of the Evidence
      Finally, Hill asserts the district court erred in denying his motions for judgment
of acquittal on both counts, arguing the evidence was insufficient to convict him. See
Fed. R. Crim. P. 29(a). We review de novo the denial of Hill’s motions for judgment
of acquittal. See United States v. Landsdown, 735 F.3d 805, 806 (8th Cir. 2013).
“We view the evidence in the light most favorable to the government, resolving
evidentiary conflicts in favor of the government, and accepting all reasonable
inferences drawn from the evidence that support the jury’s verdict.” United States v.
Cook, 603 F.3d 434, 437 (8th Cir. 2010). “We may reverse only if no reasonable jury
could have found the defendant guilty beyond a reasonable doubt.” United States v.
Washington, 318 F.3d 845, 852 (8th Cir. 2003).

              1.    Possession
       In Hill’s view, the government failed to prove Hill knowingly possessed the
four images found in his computer’s recycle bin (Exhibits 37-40). Hill’s argument
is based on his mistaken belief that the images found in his recycle bin were found
in “unallocated space” on his hard drive and Hill could not access or control those
files without special tools Hill did not have. Hill’s belief is belied by the record.

      Agent Kanatzar testified the four images entered into evidence as Exhibits 37,
38, 39, and 40, and found by the jury to support convicting Hill of possessing child

      5
        To the extent Hill might have argued the same image charged as Exhibit 10
in Count 1 and Exhibit 40 in Count 2 created an issue, we conclude any overlap “does
not affect [Hill’s] substantial rights” and is harmless given the jury’s specific guilty
verdicts with respect to all of the other distinct images and videos charged in Count
1 and Count 2, respectively. Fed. R. Crim. P. 52(a).

                                          -8-
pornography as charged in Count 2, were still in Hill’s recycle bin when the officers
seized Hill’s computer. Unlike “unallocated space,” the recycle bin is an accessible
folder on the computer’s hard drive “in which a user places files to be deleted.”6
United States v. Tucker, 305 F.3d 1193, 1198 n.8 (10th Cir. 2002). “Placement in the
bin does not automatically delete files, however.” United States v. Walser, 275 F.3d
981, 984 n.4 (10th Cir. 2001). “[R]emoval of files from the recycle bin generally
requires manual steps to be taken by the user.” United States v. Romm, 455 F.3d 990,
993 n.2 (9th Cir. 2006). In other words, a file in the recycle bin could have been
either permanently deleted or restored to its original location, at Hill’s discretion.

         Hill may have “tried to get rid of” the child pornography he downloaded to his
hard drive, but he never emptied the four files from his recycle bin and thus never
relegated them to unallocated space. The images remained in his recycle bin,
accessible to Hill and subject to his dominion and control without any special tools.
The jury could reasonably infer Hill’s “intentional attempt to delete child
pornography files, such as by placing them in [his] computer’s recycle bin,
. . . suggest[ed] he was aware of the files and their contents.” United States v. Breton,
740 F.3d 1, 17 (1st Cir. 2014). Indeed, Hill—no stranger to computers—admitted he
actively sought child pornography on LimeWire using very specific search terms,
intentionally downloaded images of child pornography, viewed those illegal images,
and eventually deleted some of them, before searching for more images. Four of
those illegal images remained in his recycle bin when officers seized his computer.
A reasonable jury could convict Hill of knowingly possessing child pornography.7

      6
       “Unallocated space is space on a hard drive that contains deleted data, usually
emptied from the operating system’s trash or recycle bin folder, that cannot be seen
or accessed by the user without the use of forensic software. Such space is available
to be written over to store new information.” United States v. Flyer, 633 F.3d 911,
918 (9th Cir. 2011) (emphasis added).
      7
      Because the illegal images were in Hill’s recycle bin, we need not decide
whether images of child pornography found in unallocated space or the browser cache

                                          -9-
See, e.g., United States v. Worthey, 716 F.3d 1107, 1113-14 (8th Cir. 2013); United
States v. Koch, 625 F.3d 470, 478-79 (8th Cir. 2010).

              2.     Receipt and Distribution
        The evidence presented at trial was also more than sufficient to convict Hill of
knowingly receiving and distributing child pornography.8 At trial, Hill unequivocally
confessed to “knowingly receiving and distributing child pornography” as charged
in the indictment and intentionally using LimeWire to download and view the images
and one of the videos for which he was convicted. Hill claimed he searched for and
downloaded child pornography in an ill-conceived plan to protect his stepdaughters,
not knowing the files in his LimeWire shared folder would be accessible to other
users. But the jury was not obligated to accept Hill’s admittedly irrational
justifications and belated claims of ignorance. “[Q]uestions concerning the
credibility of witnesses, where their testimony is not incredible on its face, are for the
jury to decide.” United States v. Samuels, 543 F.3d 1013, 1019 (8th Cir. 2008).
Hill’s explicit description of his own considerable computer abilities and disturbing
search habits, combined with the investigating officers’ detailed testimony regarding
Hill’s inculpatory statements, would allow a reasonable jury to dismiss Hill’s dubious
claims of innocence.

     Even without Hill’s damning witness-stand confession, the evidence of
knowing receipt and distribution was overwhelming. Hill told the investigating


would support a verdict of knowingly possessing child pornography under the
circumstances of this case. See United States v. McArthur, 573 F.3d 608, 614-15 (8th
Cir. 2009) (determining, on the case facts, images found in unallocated space
supported conviction).
      8
        Hill’s arguments primarily focus on distribution, but a defendant can violate
18 U.S.C. § 2252(a)(2) by “knowingly receiv[ing], or distribut[ing]” child
pornography. (Emphasis added). Here, the jury reasonably found the evidence
sufficient to find Hill guilty of violating § 2252(a)(2) both ways.

                                          -10-
officers he intentionally searched for and downloaded at least one hundred images of
child pornography from other LimeWire users’ shared folders for months. On August
3, 2010, Officer Smith downloaded ten such files from Hill’s public LimeWire folder.
During his forensic examination, Agent Kanatzar found three more videos of child
pornography in Hill’s shared folder. The jury reasonably convicted Hill of knowingly
receiving and distributing child pornography. See United States v. Collins, 642 F.3d
654, 656-57 (8th Cir. 2011) (recognizing use of file-sharing program and knowledge
of computers supported guilty verdict).

III.   CONCLUSION
       We affirm.
                  ______________________________




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