                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
