                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-1911
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                               Keith Michael Novak

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                     for the District of Minnesota - St. Paul
                                 ____________

                          Submitted: February 10, 2017
                             Filed: August 9, 2017
                                ____________

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

LOKEN, Circuit Judge.

      During a warrant search of Keith Michael Novak’s apartment in Maplewood,
Minnesota, FBI agents seized more than thirty electronic devices. Agents then
obtained a new search warrant for child pornography and conducted time-consuming
forensic searches of a heavily encrypted Dell laptop computer and an external USB
hard drive that was connected to the laptop when the devices were seized. Hundreds
of images and videos of children engaged in sexually explicit activities were
recovered. At a three-day trial, the government introduced forensic evidence linking
Novak to the encrypted child pornography on the external hard drive and internet
pornography searches on the laptop. The jury convicted Novak of one count of
interstate transportation of child pornography and one count of possession of child
pornography in violation of 18 U.S.C. §§ 2252(a)(1), (a)(4)(B), (b)(1), and (b)(2).
Varying downward from the advisory guidelines range, the district court1 sentenced
Novak to 144 months in prison.

       Novak appeals, arguing the district court erred in admitting evidence of adult
pornographic materials found on his devices, and in providing a willful blindness
instruction to the jury, contentions we review for plain error. See United States v.
Pirani, 406 F.3d 543, 550 (8th Cir.) (en banc), cert. denied, 546 U.S. 909 (2005). He
also argues the district court imposed a substantively unreasonable sentence, an issue
we review under a highly deferential abuse-of-discretion standard. See United States
v. Roberts, 747 F.3d 990, 992 (8th Cir. 2014). We affirm.

                                I. Evidentiary Issues.

       Novak argues the district court committed plain error when it permitted the
government to introduce two types of unfairly prejudicial evidence. First, FBI Special
Agent Christopher Crowe’s testimony described adult pornographic materials found
on the laptop computer’s encrypted external hard drive. Second, Agent Crowe’s
testimony described images saved to the laptop’s internal hard drive as reflecting
searches for sexual encounters with a transsexual woman. Having failed to object to
this evidence at trial, Novak can prevail on appeal only by showing that admission
was “an obvious error that affected his substantial rights, and that the error seriously




      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.

                                          -2-
affects the fairness, integrity, or public reputation of judicial proceedings.” United
States v. Demery, 674 F.3d 776, 780 (8th Cir. 2011).

       At trial, the government introduced evidence that five images the jury found to
be child pornography had been downloaded and saved to an encrypted folder “C” on
the external hard drive (Exhibit 4) attached to Novak’s laptop computer (Exhibit 3).
The central issue was whether Novak “knowingly” possessed and transported this
contraband. His defense was that he had no knowledge of the child pornography on
the external hard drive, that he only used the hard drive to store movies and music,
and that someone else must have used his devices to search for child pornography and
store it without his knowledge.

       When the devices were seized, the laptop’s internet history, cache, and cookies
were wiped clean, and a program called “Eraser” made deleted data unreviewable.
However, the FBI discovered that a “Foxtab” extension on the laptop’s Firefox web
browser had stored over 5,500 images of websites viewed between April 2012 and
October 2012 in a file on the laptop’s hard drive. These images included searches
conducted under Novak’s login for child-pornography-related terms. For example,
a search was conducted under Novak’s login on April 28, 2012 for “jailbait,” and a
July 10 Foxtab image showed a search for “sibso.” Agent Crowe testified that jailbait
is a term commonly used to search for child pornography, and sibso is a child
pornography term that stands for “sibling significant other.”

       Encryption software also made files difficult to detect and view on the external
hard drive until agents discovered the presence of TrueCrypt, an encryption software
that Novak’s work as an Army intelligence analyst gave him the proficiency to use to
encrypt his personal devices. The FBI’s Cryptographic Electronic Analysis Unit was
able to identify the password for an encrypted volume stored on the hard drive. Inside
this volume, agents discovered thousands of files organized into roughly two dozen
folders, including folder “C” containing hundreds of images and videos of child

                                         -3-
pornography. Most folders were named with one or two letters. One was labeled “X
Pics” and others had explicitly pornographic titles. The folders contained
pornographic images grouped neatly into categories -- for example, “B” for bestiality,
“CL” for Craigslist postings seeking sex meet-ups with transsexuals, “L” for cartoon
anime depicting children engaged in sex, and “X Pics” for nude images of Novak.

        Novak testified that he acquired the Dell laptop in April 2012 when his friend,
Lee Smith, who worked at Fort Bragg as a handyman, asked Novak to take the laptop
from a secure area of the Fort Bragg Rec Center and install a new operating system.
Novak used the laptop at Fort Bragg until Smith helped him move from North
Carolina to Minnesota in mid-July. Smith controlled the laptop in a separate vehicle
throughout the move and sold it to Novak at the end of the trip for $200. Novak
testified that he had no knowledge of the encrypted files on the hard drive, which he
used to store movies and iTunes. According to Novak, other soldiers frequently
borrowed his laptop while he was at Fort Bragg; someone else created a TrueCrypt
volume on the external hard drive and saved child pornography and other images in
the encrypted volume. Novak admitted that “selfie” images in the folder labeled “X
Pics” were of him, but denied that he placed them in the encrypted volume.

       To link Novak to the encrypted “C” folder containing child pornography found
on the external hard drive, FBI Special Agent Christopher Lester, a member of the
Computer Analysis Response Team who searched Novak’s apartment and helped
decrypt his devices, testified that Foxtab images showed child pornography viewed
on the laptop within seconds of identical images being saved to the encrypted “C”
folder on the external hard drive, evidence the two devices were connected when the
child pornography was accessed, as they were when seized in Novak’s apartment.
Agent Crowe then explained, in the testimony here at issue, how each of the folders
in the encrypted hard drive volume evidenced Novak as the file creator. For example,
the “X Pics” folder contained nude photos of Novak. The “CL” folder contained
transsexual Craigslist postings similar to Foxtab images found on Novak’s laptop.

                                         -4-
Crowe’s testimony supported an inference that pornographic images in the “C” folder
were part of a larger pornography collection carefully organized into categories:

      Q: Can you give us a . . . a brief overview of what you found between
      [the] “C” and “X Pics” [folders in the encrypted volume]?

      A: I can. Every single one of these folders contains pornography. This
      one, the “CL”, contains files saved from Craigslist. . . . This is just
      pornography where women are involved in having sperm ejaculated on
      them. . . . This picture right here is a picture of the Defendant. This
      picture right here, there’s a video in the file called “P” where it is a
      female being urinated on by several men. I believe that it is pornography
      dealing with transsexuals. I believe “B” is pornography that deals
      specifically with bestiality. . . .

      Q: Was there any anime on --

      A: Well, there was Japanese anime. I’m not sure if that was in “L”. I
      believe “L”, now that you mention it, was pornographic cartoons that
      were downloaded on the Internet or off the Internet. . . . Japanese anime
      of cartoon children. They are not real children.

Crowe testified that the volume was bulk transferred from another device between
11:56 p.m. on July 5 and 12:08 a.m. on July 6. Images recovered from the laptop
showed Novak used the laptop to call his girlfriend on Skype three hours before the
transfer. Similarities in the files’ locations, creation times, and contents confirmed,
in Crowe’s view, that a single person created all the folders.

       Government Exhibit 10, a summary of fifty images saved in the laptop’s Foxtab
folder, further connected Novak to the external hard drive folders containing child
pornography and provided evidence that Novak transported the child pornography
across state lines. Agent Crowe briefly described each individual image and its link
to Novak. For example, Exhibit 12 was a Papa John’s order from a store in Fort


                                         -5-
Bragg, North Carolina from “KeithMNovak@gmail.com” on a day Novak was
stationed at Fort Bragg. Exhibit 51 was a July 10, 2012, search by the same user that
returned five child pornography images; the tab was closed fifteen minutes after the
five images were saved in folder “C” on the external hard drive. In the testimony here
at issue, Crowe testified that Exhibit 57 was a July 17 Craigslist posting titled “In need
of ! ! ! M4T-24,” which is a Craigslist redaction meaning “male for transsexual or
transvestite.” Exhibit 60 was a Minneapolis Craigslist post seeking a “casual
encounter” with “T4M in St. Paul” on August 4, the day Novak completed his move
to Minnesota.

      Novak argues this evidence was unfairly prejudicial under Federal Rule of
Evidence 403, which provides: “The court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” Ignoring the stringent
requirements of plain error review, Novak relies on two cases from other circuits in
which admission of irrelevant, highly prejudicial pornographic evidence over timely
defense objection was held to be reversible error, United States v. Harvey, 991 F.2d
981, 996-97 (2d Cir. 1993), and People of Guam v. Shymanovitz, 157 F.3d 1154,
1158 (9th Cir. 1998).

       Here, the challenged testimony and exhibits were clearly relevant to the key
disputed issue at trial: whether Novak was guilty of knowing possession and interstate
transportation of child pornography found on his encrypted computer devices. Agent
Crowe’s analysis of multiple, pornography-laden folders carefully organized in the
encrypted volume on the external hard drive was relevant to show that a single person
created all of the folders, including folder “C” containing the child pornography
Novak was alleged to unlawfully possess and transport. Crowe’s testimony
explaining the fifty Foxtab images found on the internal hard drive established an
electronic link between the two devices, and the postings in Exhibits 57 and 60 for

                                           -6-
“casual [sexual] encounters” in Fort Bragg and in Minnesota before and after Novak’s
move were further evidence of knowing possession and transport of the child
pornography accessed in Exhibit 51 and immediately saved in folder “C.” The
probative value of this evidence would distinguish this case from Harvey even if
Novak had timely objected. See United States v. Pruneda, 518 F.3d 597, 605 (8th Cir.
2008) (no abuse of discretion admitting relevant pornographic images); United States
v. Kelley, 2017 WL 2820994, at *6 (8th Cir. Jun. 30, 2017) (no plain error).

       Novak argues that Agent Crowe’s testimony referencing deviant forms of adult
pornography was so shocking that the danger of unfair prejudice substantially
outweighed any probative value, and that this was merely cumulative evidence linking
Novak to the child pornography on his devices. In effect, Novak invites us to conduct,
on plain error review, the careful weighing the district court must conduct in deciding
whether to exercise its discretion to exclude evidence under Rule 403:

      On objection, the court would decide whether a particular item of
      evidence raised a danger of unfair prejudice. If it did, the judge would go
      on to evaluate the degrees of probative value and unfair prejudice not
      only for the item in question but for any actually available substitutes as
      well. . . . [T]he judge would have to make these calculations with an
      appreciation of the offering party’s need for evidentiary richness and
      narrative integrity in presenting a case, and the mere fact that two pieces
      of evidence might go to the same point would not, of course, necessarily
      mean that only one of them might come in.

Old Chief v. United States, 519 U.S. 172, 182-83 (1997); see United States v. Evans,
802 F.3d 942, 946 (8th Cir. 2015); United States v. Becht, 267 F.3d 767, 772-74 (8th
Cir. 2001).

       Given the rigor of Rule 403 analysis and the broad discretion afforded the
district court to admit probative evidence even when prejudicial, it is nearly
impossible for a district court’s admission of relevant evidence without a Rule 403

                                         -7-
objection to be plain error. See United States v. Rizk, 660 F.3d 1125, 1132-33 (9th
Cir. 2011); United States v. Sumlin, 271 F.3d 274, 283 (D.C. Cir. 2001). But in any
event, in this case, the evidence in question was highly relevant to Novak’s defense
at trial, and testimony briefly summarizing shocking computer images linking Novak
to the child pornography saved in encrypted folder “C” was far less prejudicial than
alternatives such as visual depictions of folder contents. Cf. United States v. Carter,
410 F.3d 1017, 1023-24 (8th Cir. 2005). As in Kelley, there was no abuse of
discretion, much less plain error.

                            II. A Jury Instruction Issue.

       Novak next argues that the district court committed plain error by providing the
jury a willful blindness, or deliberate ignorance, instruction. Before the jury
instruction conference near the end of trial, the parties submitted proposed
instructions. The government proposed a willful blindness instruction; the defense did
not. Before the conference, the district court distributed proposed instructions that
included a willful blindness instruction. At the conference, the court went instruction-
by-instruction, asking for comments. Neither party objected to any instruction.
Unopposed No. 9 instructed the jury that it could find Novak acted knowingly if it
found he “deliberately closed his eyes to what would otherwise have been obvious to
him.” The instruction cautioned, “You may not find the defendant acted ‘knowingly’
if you find he was merely negligent, careless, or mistaken.”

        On appeal, Novak argues it was plain error to instruct on willful blindness
“when no evidence supported that instruction.” Acknowledging that our review is for
plain error, Novak argues that the instruction was prejudicial “because it allowed the
jury a factually-insufficient and constitutionally-deficient path around the knowledge
element” of the charged offenses. In addition to laboriously discussing many
decisions deciding this issue when it was properly preserved -- which are largely
irrelevant on plain error review -- Novak relies on United States v. Fast Horse, 747

                                          -8-
F.3d 1040, 1042-44 (8th Cir. 2014), in which a divided panel held that the district
court committed plain error when it failed to instruct that knowledge was an element
of the charged offense, as we had held in an intervening en banc decision.

       Fast Horse is of course binding on our panel, but we conclude it is manifestly
distinguishable. “A willful blindness instruction is appropriate when the defendant
asserts a lack of guilty knowledge, but the evidence supports an inference of deliberate
ignorance.” United States v. Delgrosso, 852 F.3d 821, 828 (8th Cir. 2017) (quotation
omitted). “Ignorance is deliberate if the defendant was presented with facts that put
[him] on notice that criminal activity was particularly likely and yet [he] intentionally
failed to investigate those facts.” United States v. Florez, 368 F.3d 1042, 1044 (8th
Cir. 2004). The 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) (quotation omitted), cert.
denied, 131 S. Ct. 1568 (2011).

        Here, aware of these well-established principles, the district court concluded
that, even if the jury believed Novak’s implausible claim that another person using his
devices must have accessed child pornography and stored it on the external hard drive,
there was sufficient evidence that he deliberately turned a blind eye to this clearly
illicit activity to warrant a deliberate ignorance instruction. Cf. United States v.
Figuerroa-Lugo, 793 F.3d 179, 192 (1st Cir.), cert. denied, 136 S. Ct. 559 (2015)
(willful blindness instruction proper when defendant asserted others used his computer
to download child pornography). Defense counsel, likewise aware of the governing
law, did not object when invited by the court to do so.

       Plain error review requires error that was “plain” -- hardly the case here -- and
error that affected Novak’s substantial rights and seriously affected the fairness or
integrity of the trial. The risk of prejudice from an improper willful blindness
instruction is “the possibility that the jury will be led to employ a negligence standard

                                          -9-
and convict a defendant on [that] impermissible ground.” United States v. White, 794
F.2d 367, 371 (8th Cir. 1986) (quotation omitted). Here, that risk was “adequately
addressed” by the admonition in Instruction No. 9 that the jury may not find that
Novak acted knowingly if it found he was merely negligent, careless, or mistaken.
United States v. Parker, 364 F.3d 934, 947 n.3 (8th Cir. 2004); accord United States
v. Trejo, 831 F.3d 1090, 1095 (8th Cir. 2016). There was no plain error.

                             III. The Sentencing Issue.

       The district court determined that Novak’s advisory guidelines range was 151
to 188 months and sentenced him to 144 months in prison. On appeal, Novak argues
the sentence is substantively unreasonable. He attacks the child pornography advisory
guideline as arbitrary and unsupported by empirical evidence, ignoring our repeated
holding that “a district court may disregard the child pornography sentencing
guideline on policy grounds [but] is not required to do so.” United States v. Burns,
834 F.3d 887, 889 (8th Cir. 2016) (quotation omitted). “[O]ur appellate role is limited
to determining the substantive reasonableness of a specific sentence where the
advisory guidelines range was determined in accordance with [U.S.S.G.] § 2G2.2.”
United States v. Shuler, 598 F.3d 444, 448 (8th Cir.), cert. denied, 560 U.S. 975
(2010). Here, the district court varied downward and sentenced Novak below his
advisory range, making it “nearly inconceivable that the court abused its discretion in
not varying downward still further.” United States v. Deering, 762 F.3d 783, 787 (8th
Cir. 2014) (quotation omitted). The district court did not abuse its “wide sentencing
discretion.” Roberts, 747 F.3d at 992.

      The judgment of the district court is affirmed.




                                         -10-
KELLY, Circuit Judge, dissenting.

        In my opinion, it was plain error to give the jury a willful blindness instruction
in this case. A willful blindness instruction is appropriate only when the evidence is
sufficient to support a jury’s finding that the “defendant was aware of facts that put
him on notice that criminal activity was probably afoot and deliberately failed to make
further inquiries, intending to remain ignorant.” United States v. Chavez-Alvarez, 594
F.3d 1062, 1067 (8th Cir. 2010). A willful blindness instruction “should not be
given . . . when the evidence points solely to either actual knowledge or no knowledge
of the facts in question.” Parker, 364 F.3d at 946 (alteration in original) (internal
quotation omitted). Here, the government’s theory of the case was that Novak had
actual knowledge of the child pornography stored in an encrypted file on his external
hard drive. Novak’s defense was that he did not, and indeed could not, know about
the child pornography under encryption. Even assuming there was evidence that
Novak was on notice that his hard drive might contain contraband images, the
government presented no evidence that Novak “deliberately failed to make further
inquires, intending to remain ignorant.” Chavez-Alvarez, 594 F.3d at 1067. See
Trejo, 831 F.3d at 1095 (“A willful blindness . . instruction is appropriate when there
is evidence to support the inference that the defendant was aware of a high probability
of the existence of the fact in question and purposely contrived to avoid learning all
of the facts” (internal quotation omitted)). Without any such evidence, a willful
blindness instruction should not be given. Cf. id. (government presented sufficient
evidence to warrant willful blindness instruction where defendant claimed
codefendant paid her a large amount of money simply to store clothes on her property;
“[s]cales, a firearm, and $4,000 in small denominations” were located in defendant’s
house; and defendant was observed walking around property where methamphetamine
found); United States v. Sigillito, 759 F.3d 913, 940 (8th Cir. 2014) (willful blindness
instruction warranted in prosecution for crimes related to Ponzi scheme where “[t]he
evidence showed that if [defendant] lacked knowledge, it was because he deliberately
avoided acquiring it”); Florez, 368 F.3d at 1045 (willful blindness jury instruction

                                          -11-
appropriate where evidence supported finding that even if defendant did not have
actual knowledge, “it was only because she chose not to investigate and effectively
buried her head in the sand”).

       Because the evidence in this case pointed only to actual knowledge or no
knowledge, I believe there is a “reasonable probability that, but for the error claimed,
the result of the proceeding would have been different” and that “failing to correct the
district court’s error would result in a miscarriage of justice.” Fast Horse, 747 F.3d
at 1043–44 (internal quotations and alterations omitted). I would reverse Novak’s
conviction and remand for a new trial.
                         ______________________________




                                         -12-
