                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-3342
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                                  Jamin C. Fletcher

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                for the Southern District of Iowa - Council Bluffs
                                 ____________

                          Submitted: September 27, 2019
                            Filed: December 23, 2019
                                 ____________

Before LOKEN, COLLOTON, and KOBES, Circuit Judges.
                          ____________

LOKEN, Circuit Judge.

      A jury convicted Jamin C. Fletcher of receiving and distributing child
pornography in violation of 18 U.S.C. §§ 2252(a)(2) and (b)(1). The district court1
sentenced Fletcher to concurrent terms of 108 months imprisonment followed by ten


      1
       The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.
years of supervised release. Fletcher appeals, arguing the district court erred in
giving the jury a willful blindness instruction, the evidence was insufficient to
convict, and his sentence is substantively unreasonable. We affirm. Because the jury
instruction issue turns on the evidence presented at trial, we will first address
Fletcher’s challenge to the sufficiency of the evidence.

                          I. Sufficiency of the Evidence.

       The indictment charged Fletcher with four offenses, advertising child
pornography on BitTorrent, a peer-to-peer file-sharing network, and distributing,
receiving, and possessing child pornography. At trial, the government introduced
documentary evidence, digital images and videos, and the testimony of three
witnesses: FBI Special Agent Robert Blackmore, Iowa Department of Criminal
Investigation Special Agent Robert Larsen, and FBI forensic examiner Jordan
Warnock. The jury acquitted Fletcher of the most serious offense, advertising child
pornography. It convicted him of the distributing and receiving offenses. As
instructed, it did not return a verdict on the lesser included possession offense. See
United States v. Smith, 910 F.3d 1047, 1053-54 (8th Cir. 2018).

       Special Agent Blackmore testified that a computer user interested in BitTorrent
peer-to-peer file-sharing first downloads a BitTorrent file-sharing program. This
creates a “download or shared folder” on the user’s computer. The download/shared
folder both receives downloads and shares files. The user chooses and downloads
into the BitTorrent program a “Torrent file” that contains desired content. The
program finds and connects with other computers on the BitTorrent network that are
sharing the desired content and brings different “pieces” of the file from multiple
other users to the user’s download/shared folder. A piece sitting in the
download/shared folder “is available to be shared out back across the internet for
others who are interested in the same content.” Blackmore explained that the



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BitTorrent user can transfer pieces from the download/shared folder to other devices
and folders.

       On September 28 and 29, 2016, using investigative software to search the
BitTorrent network for digital images and videos, Blackmore discovered a
download/shared folder sharing multiple files having unique “hash values” (digital
fingerprints) of known or suspected child pornography. Examining the contents of
this BitTorrent folder, Blackmore found several images of child pornography from
the Lolita Series and a child pornography video. He downloaded the Lolita Series
images and video directly from the download/shared folder; they were admitted into
evidence at trial. Blackmore also determined that this folder had shared numerous
files with hash values of known and suspected child pornography within the previous
180 days. The government introduced, without objection, a screen shot Blackmore
took after completing his downloads showing fourteen hash values downloaded
almost one hundred times during that period.

       On cross examination, Blackmore admitted his search did not disclose whether
the child pornography files he downloaded had been viewed by any other BitTorrent
user. But, he explained, installing the BitTorrent program sets up a download/shared
folder the contents of which can be viewed by others on the BitTorrent network,
unless the user affirmatively changes this default setting. Like other peer-to-peer file
sharing programs, the program instructions tell the user how to accept the default or
change the settings so that the program’s contents cannot be accessed by other
BitTorrent users. See United States v. Shaffer, 472 F.3d 1219, 1221-22 (10th Cir.
2007) (explaining the Kazaa peer-to-peer file sharing program).

      After downloading the Lolita Series images and the video, Agent Blackmore
traced the IP address to Fletcher’s home in Council Bluffs, Iowa. Special Agent
Larsen executed a warrant search of Fletcher’s residence on April 12, 2017. The
search team seized three devices -- a desktop computer, a laptop computer, and

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Fletcher’s smartphone. After Larsen told Fletcher he was not under arrest and was
free to leave, Fletcher agreed to a recorded forty-five minute interview. The recorded
interview was played at trial, and a transcript admitted into evidence.

      In the interview, Fletcher said he knew what peer-to-peer file sharing was and
remembered using BitTorrent “to download movies and then clean them.” Fletcher
said he ran a program called “PeerBlock” when using BitTorrent “so that people
won’t go into your computer” and conclude he was stealing movies. He also used
BitTorrent to search for pornography:

      I would get a file and then it would show that person’s collection. And
      then if there was somethin’ that looked interesting I would click on it.

Fletcher admitted he would “run across” child pornography while looking for adult
pornography. Larsen asked how many times Fletcher downloaded child pornography
on BitTorrent:

      Too much. Too much. And . . . and the thing is I would get it but then
      I . . . I wouldn’t want it. I would feel repulsed and I would get rid of it,
      because I . . . I don’t like that. . . . But it was just like there was this
      snare like because you shouldn’t have it you should get it. And then I’d
      get it and be like no, I don’t want this.

Larsen asked, “So you think thousands of files?” Fletcher replied, “Yeah.” He
admitted downloading images from the Lolita Series the prior September, when
Blackmore downloaded those images, and then getting rid of them a month later.
Fletcher admitted going “back and forth” to adult and child pornography on
BitTorrent, using as search terms “nudist,” “naturalist,” and “LS Models.” He used
the CCleaner wiping program and encryption on the files he downloaded.




                                          -4-
       FBI forensic examiner Warnock testified that he recovered twenty-six images
of child pornography from Fletcher’s desktop computer and 791 child pornography
graphic files from the laptop computer. Almost all images were in “unallocated
space” where deleted files are found. Many files previously held in the BitTorrent
download/shared folder had names like “pedo,” “pthc,” and “7yo,” indicative of child
pornography. A video player on the desktop had recently played files with child
pornographic names. Warnock also located the “CCleaner” program on both
computers, which deletes and overwrites files on a hard drive. CCleaner was run on
the desktop computer 321 times and on the laptop computer 119 times. Finally,
Warnock found images of child pornography on the smartphone and a web history
that included searches for “nudist” and “naturalist.”

       Fletcher, testifying in his own defense, admitted he was an addict who mass
downloaded tens of thousands of adult pornographic images and videos. He testified
that he did not intentionally download or distribute child pornography but admitted
receiving child pornography in adult pornography mass downloads, downloads that
contained many more images than he actually viewed. Periodically, out of guilt, he
would delete all the pornography with CCleaner, only to relapse and mass download
again. He attributed inculpatory statements to Agent Larsen to fear and confusion.

       Fletcher testified he began using BitTorrent to download commercial movies,
using “PeerBlock” so that “no one can see what you’re doing” and “no one can take
anything from you.” After his wife left him, he found erotic materials in downloaded
BitTorrent “libraries.” He would click on a user, “put one or two words, tell my
computer to grab everything from that user [and] download half a million to look at
another time.” Then he would “feel guilty,” delete everything in the folders, then “get
sucked right back into it” and start doing mass downloads again. Fletcher testified
that, immediately after recognizing images from the Lolita Series as child
pornography, he deleted all folders that contained LS Models images “because I



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didn’t want that.” On cross-examination, Fletcher again admitted he had downloaded
a BitTorrent program, giving him access to a peer-to-peer network.

       On appeal, Fletcher argues there was insufficient evidence to convict him of
knowingly receiving child pornography between January 2016 and February 28,
2017, and knowingly distributing child pornography on September 28 and 29, 2016.
The evidence of receipt was insufficient, he argues, because he mass downloaded vast
amounts of adult pornography and “could not possibly have viewed” the small
fraction of deleted and undeleted files that contained child pornography. We
conclude the government introduced overwhelming evidence that Fletcher knowingly
and repeatedly accessed and received child pornography. As in Smith, 910 F.3d at
1051, in addition to the child pornography images recovered from his computers and
introduced at trial, Fletcher admitted to Agent Larsen that he downloaded the
BitTorrent peer-to-peer file sharing program on his password-protected computer,
used common child pornography search terms to download child pornography from
other users on the BitTorrent network, deleted many of those images using the
CCleaner deletion program, and then downloaded them again. At trial, he admitted
encountering Lolita Series images downloaded to his computer and recognizing those
images as child pornography.

      The sufficiency of the evidence of knowing distribution is a somewhat closer
call. The district court’s instructions did not initially define “distributes,” the
operative word in 18 U.S.C. § 2252(a)(2), and the term is not defined in § 2256.
During their deliberations, the jury sent the court a note asking:

      Would the defendant need to have knowledge of files being or having
      been transferred from the Defendant’s computer in order to satisfy the
      definition of “Distribution” of content?




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The district court responded, without objection:


             To satisfy the definition of “Distribution” of content, the
      Defendant has to have knowledge that the visual depictions were
      maintained in a shared folder and that maintaining the visual depictions
      in the shared folder allows others to download them. The Defendant
      does not have to have knowledge of the visual depictions being or
      having been transferred from the Defendant’s computer.

      This instruction is not challenged on appeal. Moreover, the instruction is
consistent with our discussion of the issue in United States v. Collins, 642 F.3d 654,
656-57 (8th Cir. 2011); accord Shaffer, 472 F.3d at 1224. Thus, the issue before us
is “whether the trial evidence permitted a reasonable jury to [convict Fletcher] on the
elements of the [distribution offense] as instructed.” S.M. v. Lincoln Cty., 874 F.3d
581, 587 (8th Cir. 2017).

       There was evidence Fletcher downloaded BitTorrent knowing it was a peer-to-
peer file-sharing program, knowingly downloaded files that included child
pornography into his download/shared folder from the computers of other BitTorrent
users, resumed doing so after learning the downloads included child pornography
images, and repeatedly, out of guilt, deleting those files. Agent Blackmore
downloaded child pornography from Fletcher’s computer on September 28 and 29,
2016, demonstrating that images stored in the BitTorrent download/shared folder
were available to other users and that Fletcher had not blocked others’ access with
PeerBlock. What was lacking, however, was direct evidence from the Larsen
interview or from Fletcher’s trial testimony that he understood that maintaining files
in his BitTorrent download/shared folder “allows others to download them.” See
United States v. Durham, 618 F.3d 921, 929 (8th Cir. 2010) (opinion of Bye, J.)
(“While there is direct evidence of [the defendant’s] knowledge of downloading files
via Limewire, there is no such evidence of his knowledge of uploading, i.e.


                                         -7-
distributing files . . . which is a critical distinction in this case.”); compare United
States v. Furman, 867 F.3d 981, 987-88 (8th Cir. 2017) (evidence of knowledge other
LimeShare users could share); Shaffer, 472 F.3d at 1222 (defendant admitted he
stored images in his Kazaa shared folder because “Kazaa gave him . . . incentive
rewards corresponding to how many images other users downloaded from his
computer”).

       “We may reverse only if we conclude that no reasonable jury could have found
[Fletcher] guilty beyond a reasonable doubt.” United States v. Van, 543 F.3d 963,
964 (8th Cir. 2008). Here, though the government’s evidence of distribution was not
overwhelming, as the jury’s acquittal on the advertising count confirms, we conclude
that a reasonable jury could find Fletcher guilty of knowing distribution based on
Agent Blackmore’s unrefuted description of the BitTorrent file-sharing program;
Fletcher’s admission that he knowingly downloaded and used the BitTorrent program
at least for one-way file sharing; the evidence in Exhibit 5 that many others as well
as Blackmore had in fact downloaded child pornography from Fletcher’s BitTorrent
download/shared folder in the 180 days ending on September 28 and 29, 2016; and
the fact that Fletcher’s trial testimony varied substantially from his recorded interview
with Agent Larsen. As in Shaffer, from this evidence “a reasonable jury could find
that Mr. [Fletcher] welcomed people to his computer and was quite happy to let them
take child pornography from it.” 472 F.3d at 1224; see United States v. Hill, 750 F.3d
982, 988-89 (8th Cir. 2014).

                    II. The Willful Blindness Jury Instruction.

       The government had the burden to prove that Fletcher “knowingly” received
and distributed child pornography. 18 U.S.C. § 2252(a)(2). Over Fletcher’s
objection, the district court included the “willful blindness” jury instruction in Section
7.04 of the Eighth Circuit Criminal Jury Instructions (2017):



                                           -8-
      You may find that the defendant acted knowingly if you find beyond a
      reasonable doubt that the defendant believed there was a high
      probability that the images he received or possessed and then advertised
      or distributed were images of child pornography and that he took
      deliberate actions to avoid learning of that fact. Knowledge may be
      inferred if the defendant deliberately closed his eyes to what would
      otherwise have been obvious to him. A willfully blind defendant is one
      who takes deliberate actions to avoid confirming a high probability of
      wrongdoing and who can almost be said to have actually known the
      critical facts. You may not find the defendant acted “knowingly” if you
      find he was merely negligent, careless, or mistaken as to the fact that the
      images he received or possessed and then advertised or distributed were
      images of child pornography.

      You may not find the defendant acted knowingly if you find that the
      defendant actually believed that he did not receive, possess, advertise,
      or distribute images of child pornography, as applicable to each count.

On appeal, Fletcher argues the district court abused its discretion in giving this
instruction for two reasons. We review a challenge to a jury instruction for abuse of
discretion and consider whether any error was harmless. United States v. Trejo, 831
F.3d 1090, 1095 (8th Cir. 2016).

       First, Fletcher argues, without supporting authority, the Supreme Court’s
decision in United States v. X-Citement Video, Inc., 513 U.S. 64 (1994), categorically
bars use of a willful blindness instruction in § 2252 prosecutions. X-Citement held
that the “knowingly” mens rea requirement “extends both to the sexually explicit
nature of the material and to the age of the performers.” Id. at 78. A willful blindness
instruction, Fletcher contends, “essentially negates the requirement of conscious and
deliberate involvement with child pornography.” We disagree. A willful blindness
instruction does not negate or improperly diminish the government’s burden to prove
knowing receipt or distribution. Rather, “a willful blindness instruction is one way
in which a jury can permissibly find that a defendant acted knowingly.” United States

                                          -9-
v. Figueroa-Lugo, 793 F.3d 179, 192 (1st Cir. 2015). And here, the district court
adequately addressed any risk the jury would convict on a lesser mens rea standard
by instructing that it may not convict if Fletcher “was merely negligent, careless, or
mistaken as to the fact that the images he received or possessed and then advertised
or distributed were images of child pornography.” See United States v. Parker, 364
F.3d 934, 947 n.3 (8th Cir. 2004).

       Second, Fletcher argues the district court lacked an evidentiary basis to give
the willful blindness instruction. A willful blindness instruction should not be given
“if the evidence in a case points solely to either actual knowledge or no knowledge
of the facts in question.” United States v. Hernandez-Mendoza, 600 F.3d 971, 979
(8th Cir. 2010) (cleaned up), cert. denied, 562 U.S. 1257 (2011). Here, Fletcher
argues, the government requested a willful blindness instruction, but its theory of the
case, as emphasized at closing argument, was Fletcher’s actual knowledge of the
child pornography on his computers and available in his shared BitTorrent folder,
whereas Fletcher’s defense was no knowledge of the child pornography despite
incriminating statements that were coerced by Agent Larsen.

      After considerable argument, the district court ruled that it would give the
deliberate ignorance instruction. Fletcher’s defense was that he did not knowingly
download child pornography. But he testified that, after discovering and deleting
child pornography in materials he downloaded (such as Lolita Series images), he
continued or resumed mass downloading without examining what he downloaded and
continued to use search terms likely to return child pornography like the Lolita Series
and “naturalist.” This testimony supported an inference that he deliberately closed
his eyes to the high probability he would continue to receive and distribute child
pornography through his BitTorrent download/shared folder. See United States v.
Florez, 368 F.3d 1042, 1044 (8th Cir. 2004). In evaluating the district court’s
decision to give this instruction, “we view the evidence and any reasonable inference
from that evidence in the light most favorable to the government.” United States v.

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Sigillito, 759 F.3d 913, 939 (8th Cir. 2014) (quotation omitted). There was no abuse
of discretion.

                             III. The Sentencing Issue.

       At sentencing, the district court determined that Fletcher’s advisory guidelines
range was 168 to 210 months imprisonment. After considering the 18 U.S.C.
§ 3553(a) sentencing factors, the district court imposed concurrent 108-month
sentences on each count. The court explained that it was varying downward, “not to
the extent advocated for by the defense, but a substantial amount based upon . . . the
nature and circumstances of this offense and the history and characteristics of the
defendant.” Specifically, the court cited Fletcher’s lack of criminal history, family
support, a psychiatrist’s diagnosis of obsessive compulsive disorder, and the fact that
child pornography was a small portion of his total pornography collection. The court
rejected the psychiatrist’s “low risk” sexual offense assessment as inconsistent with
the evidence presented at trial.

       Fletcher argues the district court imposed a substantively unreasonable
sentence in declining to vary down to the 74 months he requested. He contends the
court gave inadequate weight to his lack of criminal history, to the sexual offense risk
assessment, and to his argument that the child pornography sentencing guidelines are
flawed and overly harsh. We review a challenge to the substantive reasonableness
of a sentence for abuse of discretion. United States v. Deering, 762 F.3d 783, 787
(8th Cir. 2014). “[W]here a district court has sentenced a defendant below the
advisory guidelines range, it is nearly inconceivable that the court abused its
discretion in not varying downward still further.” Id. (quotation omitted). The
district court thoroughly considered all of Fletcher’s contentions and gave each the
weight the court thought appropriate in reaching a final sentence significantly below




                                         -11-
the advisory guidelines range. There was no abuse of the court’s substantial
sentencing discretion.

     The judgment of the district court is affirmed.
                    ______________________________




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