                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                No. 13-50195
                Plaintiff-Appellee,
                                           D.C. No.
                 v.                    3:12-cr-03061-H-
                                               1
LAWSON HARDRICK, JR., AKA
Lawson Hardrick,
              Defendant-Appellant.         OPINION


      Appeal from the United States District Court
        for the Southern District of California
       Marilyn L. Huff, District Judge, Presiding

                Argued and Submitted
          June 4, 2014—Pasadena, California

               Filed September 4, 2014

      Before: Stephen Reinhardt, John T. Noonan,
         and Mary H. Murguia, Circuit Judges.

             Opinion by Judge Murguia;
           Concurrence by Judge Reinhardt;
            Concurrence by Judge Noonan
2                 UNITED STATES V. HARDRICK

                           SUMMARY*


                          Criminal Law

    The panel affirmed a conviction on two counts of
knowingly receiving visual depictions of minors engaged in
sexually explicit conduct in violation of 18 U.S.C.
§ 2252(a)(2).

    The panel held that the district court did not abuse its
discretion in determining that the probative value of
uncharged-video evidence admitted under Fed. R. Evid.
404(b) outweighed the danger of unfair prejudice. The panel
rejected the defendant’s argument that a limiting instruction
at the close of the evidence was insufficient and that the
district court should have given a contemporaneous limiting
instruction sua sponte.

    The panel held that the circumstantial evidence of the
defendant’s knowledge was sufficient to support the verdict,
even though there was no direct evidence that he had
downloaded or watched the files, where the government
produced evidence that the defendant had dominion and
control over the two computers on which the child
pornography videos were found; and where the number,
timing, and location of the videos were inconsistent with the
defendant’s defenses that he had accidentally downloaded the
videos or that a hacker had downloaded them to his computer
without his knowledge.


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                UNITED STATES V. HARDRICK                     3

    Judge Reinhardt concurred. He wrote that he does not
profess to know the solution to the problem of how to cure
the illness that causes otherwise law-abiding people to engage
in the viewing of child pornography, but that lengthy
sentences such as the ten-year sentence in this case for a first
offense, cannot be the answer.

    Judge Noonan concurred. He wrote to underline the need
for further action to discourage a crime that is typically
committed by persons with no criminal record and
increasingly prosecuted as a serious federal offense. He
asked why the government shouldn’t advertise the law and its
penalty.


                         COUNSEL

Michael L. Crowley (argued) and Emily M. Crowley,
Crowley Law Group, San Diego, California, for Defendant-
Appellant.

Kyle W. Hoffman (argued), Assistant United States Attorney,
Bruce R. Castetter, Chief, Appellate Section, Criminal
Division, United States Attorneys’ Office, San Diego,
California, for Plaintiff-Appellee.


                          OPINION

MURGUIA, Circuit Judge:

   Lawson Hardrick, Jr. was found guilty after a jury trial of
two counts of knowingly receiving visual depictions of
minors engaged in sexually explicit conduct in violation of
4              UNITED STATES V. HARDRICK

18 U.S.C. § 2252(a)(2). On appeal, Hardrick challenges the
admission at his trial of evidence that he possessed other
child pornography videos for which he was not charged.
Hardrick also challenges the sufficiency of the government’s
evidence that he knowingly received the two child
pornography videos for which he was charged. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.

                             I.

    In March 2010, the Department of Homeland Security
identified two Internet Protocol (IP) addresses located at
Hardrick’s home that were making child pornography
available for download. Agents seized the two computers
associated with the IP addresses from Hardrick’s home office.
A forensic examination found several child pornography
videos on each computer.

    While the search warrant was being executed at
Hardrick’s home, Hardrick admitted to using the file-sharing
program LimeWire to download pornography, but he denied
having downloaded child pornography. Hardrick said that
sometimes he downloaded files with innocuous names only
to open the file and find pornography. Once, he downloaded
a file titled “Play Ball,” which turned out to be a video of
high school kids, “all over 18, probably,” having sex in the
bleachers of a stadium. Hardrick admitted that he had also
seen child pornography, a video titled “Father Does,” or
something similar, involving a four-year-old. Questioned
whether there was any child pornography on his home-office
computers at the moment, Hardrick responded, “There could
be anything on anything. But no, I wouldn’t swear to it.”
Hardrick was indicted on two counts of knowingly receiving
a visual depiction of a minor engaged in sexually explicit
                  UNITED STATES V. HARDRICK                             5

conduct in violation of 18 U.S.C. § 2252(a)(2) and two counts
of knowingly possessing a visual depiction of a minor
engaging in sexually explicit conduct in violation of
18 U.S.C. § 2252(a)(4)(B).1 Hardrick went to trial on the two
knowing receipt counts.

    The district court denied Hardrick’s motion in limine to
exclude evidence of the other, uncharged child pornography
videos found on his home-office computers from the
government’s case-in-chief. The district court agreed with the
government that the evidence was admissible under Federal
Rule of Evidence 404(b) because it tended to prove that
Hardrick knowingly received the child pornography videos
and disprove that he had mistakenly or accidentally
downloaded the files. The district court concluded that the
evidence would not be overly prejudicial under Federal Rule
of Evidence 403 because the government agreed that it would
only elicit “brief commentary by the case agent that [the
charged videos] were not the only images” found on
Hardrick’s computers and would not show the uncharged
videos to the jury.

    Hardrick had a one-day jury trial. During the lunch recess
before the government introduced the 404(b) evidence, the
district court told Hardrick’s counsel that “if during the trial
there comes a point on 404(b) that you want a limiting
instruction, please let me know and then I would give that.”

   1
       The file names of the videos that Hardrick was charged with
knowingly receiving (the charged videos) were “pthc - little boy fucks 4yo
girl licks moms pussy - R@ygold - PTHC - Pedo -Hussyfan - Babyshvid -
Zadoom - Childfugga - Lolita - Kiddy - Child Porn - Illegal -
Ddoggprn.jpg.mpg” and “9yo littlegirl displays her sweet yng cunt -
PART2 - Pussy licking now (2min7sec) (orig duogill) - reelkiddymov
lolita preteen young incest kiddie porno sex xxx ddoggprn.mpg.”
6              UNITED STATES V. HARDRICK

     The government admitted into evidence a document
entitled “Questionable Videos,” which listed the hard drive
location and file name of the nine videos found on Hardrick’s
first computer. Each of the nine videos had a sexually explicit
title clearly signaling that the video contained child
pornography. Seven of these nine videos were uncharged
videos. The government also admitted into evidence a
document titled “Questionable Movies,” which listed the six
videos with explicit titles referring to minors found on
Hardrick’s second computer. Five of these videos were also
on the Questionable Videos list, including one of the two
charged videos.

    The government elicited testimony from a case agent that
all of the videos on the Questionable Videos list contained
child pornography. The government played the two charged
videos for the jury but did not play the uncharged videos.
Hardrick’s counsel did not ask the district court to give a
contemporaneous limiting instruction during the presentation
of the 404(b) evidence.

    The forensic examiner who examined the two home-
office computers testified that one of the child pornography
videos found on both computers was saved in a different
folder on each computer, which he had never seen a computer
virus, Trojan horse, or e-mail pop-up do. Similarly, the
forensic examiner testified that, had the video been
downloaded by accident, it would not have been saved to
different folders on two computers.
                 UNITED STATES V. HARDRICK                           7

    The forensic examiner further testified that the
“thumbcache”2 on one of Hardrick’s computers showed that
one of the videos from the Questionable Videos list had been
opened and viewed. The government also admitted a list of
the “most recently used” (MRU) files from one of the
computers, which showed the most recently opened files on
the computer. Hardrick’s MRU files included many videos
with titles suggesting that they contained child pornography.

    At the close of the evidence, the district court gave a
slightly modified version of Ninth Circuit Model Criminal
Jury Instruction 4.3. The court instructed the jury:

        You have heard evidence that the Defendant
        committed other acts not charged here. You
        may consider this evidence - this is what I call
        a “limiting instruction.” You may consider
        this evidence only for its bearing, if any, on
        the question of the Defendant’s intent,
        knowledge, identity, absence of mistake,
        absence of accident and for no other purpose.
        You may not consider this evidence of guilt of
        the crime for which the Defendant is now on
        trial.

Hardrick had included the model instruction in his proposed
jury instructions and did not object to the instruction as given.
The jury found Hardrick guilty on both counts. The district
court sentenced Hardrick to 120 months in prison, a below-
Guidelines sentence. Hardrick timely appealed.


   2
     The forensic examiner testified that Windows computers have a
“thumbcache” folder that contains small “thumbnail files” of the images
and videos that have been opened in Windows Explorer.
8               UNITED STATES V. HARDRICK

                               II.

    We review for abuse of discretion the district court’s
admission of prior acts evidence. United States v. Ramirez-
Robles, 386 F.3d 1234, 1242 (9th Cir. 2004). We also review
for abuse of discretion the district court’s balancing under
Federal Rule of Evidence 403 of the probative value of the
prior acts evidence against the danger of unfair prejudice to
the defendant. United States v. Curtin, 489 F.3d 935, 943 (9th
Cir. 2007) (en banc).

    Evidence of a defendant’s prior conviction, wrong, or
other act is inadmissible to prove the defendant’s bad
character or propensity to commit the charged offenses.
United States v. Vo, 413 F.3d 1010, 1017 (9th Cir. 2005).
However, evidence of a prior act is admissible for non-
propensity purposes, “such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” Fed. R. Evid. 404(b). Rule
404(b) evidence is admissible if it satisfies a four-part test.
United States v. Montgomery, 150 F.3d 983, 1000 (9th Cir.
1998). The proponent of the 404(b) evidence must show that
the evidence “(1) proves a material element of the offense for
which the defendant is now charged, (2) if admitted to prove
intent, is similar to the offense charged, (3) is based on
sufficient evidence, and (4) is not too remote in time.”
Ramirez-Robles, 386 F.3d at 1242. Rule 404(b) evidence
offered to prove knowledge “need not be similar to the
charged act as long as the prior act was one which would tend
to make the existence of the defendant’s knowledge more
probable than it would be without the evidence.” United
States v. Fuchs, 218 F.3d 957, 965 (9th Cir. 2000) (internal
quotation marks omitted). If the four-part test is satisfied, the
evidence is admissible unless “its probative value is
                UNITED STATES V. HARDRICK                      9

substantially outweighed by a danger of . . . unfair prejudice.”
Fed. R. Evid. 403; United States v. Blitz, 151 F.3d 1002, 1008
(9th Cir. 1998) (observing that when evidence “satisfies the
four-part test, the district court should admit the evidence
unless its prejudicial impact substantially outweighs its
probative value” (internal quotation marks omitted)).

    Hardrick argues on appeal (1) that the district court
abused its discretion in its balancing of the probative value of
the uncharged-video evidence against the danger of unfair
prejudice to him, and (2) that the district court erred by giving
an insufficient limiting instruction on the 404(b) evidence and
by failing to give another limiting instruction sua sponte
when the 404(b) evidence was admitted into evidence.

    The district court’s determination that the probative value
of the 404(b) evidence outweighed the danger of unfair
prejudice to Hardrick was not an abuse of discretion. The
uncharged videos were probative of Hardrick’s knowledge
and relevant to his defenses either that he downloaded the
videos accidentally while downloading legal pornography or
other files on LimeWire, or that a hacker had downloaded the
videos to his computer. See, e.g., United States v. Schene,
543 F.3d 627, 643 (10th Cir. 2008) (affirming district court’s
admission of uncharged child pornography images for the
purpose of proving the defendant’s intent and knowledge);
United States v. Salcido, 506 F.3d 729, 735 (9th Cir. 2007)
(per curiam) (affirming district court’s admission of
defendant’s sexually explicit instant messaging chats for the
purpose of proving the defendant’s knowledge); United States
v. Long, 328 F.3d 655, 663–65 (D.C. Cir. 2003) (affirming
district court’s admission of uncharged child pornography
photographs found in the defendant’s home for the purpose
of proving the defendant’s possession and intent). In addition,
10              UNITED STATES V. HARDRICK

the district court limited the videos’ prejudicial effect by
permitting the case agent to provide only “brief commentary”
on the location and file names of the other videos and not
permitting the government to show the videos to the jury. See,
e.g., United States v. Ganoe, 538 F.3d 1117, 1124 (9th Cir.
2008) (affirming admission of child pornography videos
where district court limited the government to playing only a
few seconds of several video clips). The district court also
gave a limiting instruction at the close of the evidence. See
Montgomery, 150 F.3d at 1001 (observing that a limiting
instruction weighs in favor of the admissibility of prior act
evidence).

     Hardrick’s argument that this instruction was insufficient
to limit the prejudice to him and that the district court should
have given a contemporaneous limiting instruction sua sponte
is unpersuasive. Hardrick requested—and the district court
gave—Ninth Circuit Model Criminal Jury Instruction 4.3,
which instructs the jury that it has heard evidence of the
defendant’s other acts and that it may consider that evidence
only for limited purposes. Although Hardrick did not request
it, the district court tailored the instruction to list the limited
purposes for which the jury could consider the uncharged
videos—intent, knowledge, identity, absence of mistake, and
absence of accident—and Hardrick did not object. Hardrick
has not demonstrated how the district court committed
reversible error by giving the appropriate, legally correct
model instruction that Hardrick proposed. See United States
v. Unruh, 855 F.2d 1363, 1377 (9th Cir. 1987) (holding that
district court’s incomplete 404(b) limiting instruction did not
warrant reversal because district court told defense counsel
what limiting instruction it would give and defense counsel
did not object or request a more specific instruction).
                UNITED STATES V. HARDRICK                     11

    Hardrick did not ask the district court to give a limiting
instruction during the presentation of the 404(b) evidence,
and it is “well-settled that where no limiting instruction is
requested concerning evidence of other criminal acts, the
failure of the trial court to give such an instruction sua sponte
is not reversible error.” United States v. Multi-Mgmt., Inc.,
743 F.2d 1359, 1364 (9th Cir. 1984). The government’s
argument is well-taken that defense counsel may have had
strategic reasons for not asking the district court to give a
limiting instruction during the presentation of the 404(b)
evidence—namely, defense counsel may not have wanted to
draw attention to the evidence. Cf. United States v. Restrepo,
884 F.2d 1294, 1296–97 (9th Cir. 1989) (rejecting appellant’s
argument that the district court’s sua sponte limiting
instruction on 404(b) evidence “unduly emphasized the
evidence of prior acts”). We do not fault the district court for
not giving a limiting instruction sua sponte on the 404(b)
evidence without a request from defense counsel.

   Accordingly, we conclude that the district court properly
exercised its discretion when it admitted the evidence of the
uncharged child pornography videos found on Hardrick’s
computers.

                              III.

    We review de novo the sufficiency of the evidence
underlying a conviction. United States v. Schales, 546 F.3d
965, 974 (9th Cir. 2008). We must affirm the conviction
“unless, viewing the evidence in the light most favorable to
sustaining the verdict, no rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.” United States v. Budziak, 697 F.3d 1105, 1108 (9th
Cir. 2012). We hold that the evidence at trial was sufficient
12             UNITED STATES V. HARDRICK

to prove that Hardrick knowingly received the two child
pornography videos even though there was no direct evidence
that he had downloaded or watched the files.

    The circumstantial evidence of Hardrick’s knowledge was
sufficient to support the jury’s verdict. See United States v.
Cordova Barajas, 360 F.3d 1037, 1041 (9th Cir. 2004)
(recognizing that “circumstantial evidence alone can be
sufficient to demonstrate a defendant’s guilt”). First, the
government produced evidence that Hardrick had dominion
and control over the two computers on which the child
pornography videos were found. The computers were located
in Hardrick’s home office. Hardrick admitted that his son and
daughter living in his home used their own computers, not the
computers in Hardrick’s office. The government produced
evidence that the “Lawson L. Hardrick” Windows account
was the account generally in use on both computers. And all
of the e-mail addresses associated with that Windows account
were Hardrick’s.

    Second, the number, timing, and location of the child
pornography videos on the computers were inconsistent with
Hardrick’s defenses that he had accidentally downloaded the
child pornography videos or that a hacker had downloaded
child pornography videos to his computer without Hardrick’s
knowledge. The number of videos on the two computers
suggested that the two charged videos had not been
downloaded accidentally. There were nine videos on
Hardrick’s first computer with file names clearly indicating
that the file contained child pornography. There were six
videos on Hardrick’s second computer with similar file
names. The videos had been downloaded on different days
and at different times, making it unlikely that their presence
on his computers was the result of a hacker or computer virus.
                UNITED STATES V. HARDRICK                    13

And one of the child pornography videos was saved on both
computers in different locations. The forensic examiner
testified that he had never seen a computer virus, Trojan
horse, or e-mail pop up save the same file in different places
on two computers.

   Viewing this circumstantial evidence in the light most
favorable to the government’s case, Budziak, 697 F.3d at
1108, we conclude that it was sufficient to sustain Hardrick’s
convictions.

                              IV.

    The district court did not abuse its discretion by admitting
evidence of the uncharged child pornography videos, and the
evidence at trial was sufficient to support Hardrick’s
convictions. Accordingly, we AFFIRM the district court.



REINHARDT, Circuit Judge, concurring:

    Like Judge Noonan, I concur in the unanimous opinion of
the court. Also, like Judge Noonan, I am disturbed about the
practical impact of the child pornography laws upon
otherwise law-abiding individuals. I do not agree, however,
that advertising the legal consequences is a solution to the
problem. Rather, it is my view that “psychological
impairment” is in most, if not all, cases the cause of the
criminal conduct. Whether psychiatric treatment rather than
incarceration would be the proper response by state
authorities is a matter that I would hope would be given more
serious consideration than it has until now. Surely sentences
of five to twenty years for a first offense of viewing child
14              UNITED STATES V. HARDRICK

pornography are not the solution.         See 18 U.S.C.
§ 2252(b)(1). Nor are mandatory sentences of fifteen to forty
years for a second. See id.

    My concern is not with those who produce or distribute
child pornography for financial gain. Such individuals
willfully do serious injury to the most vulnerable members of
our society and deserve whatever punishment the law
provides. Certainly no one can have much sympathy with
those who prey upon young children in order to benefit
themselves. Those individuals are ordinarily motivated by
wholly selfish interests that they are perfectly capable of
controlling. In contrast, those who only view child
pornography, including those who exchange video computer
files, are in all likelihood the victims of a form of mental
illness that prevents them from controlling what they would
otherwise understand to be not only unhealthy impulses but
impulses that result in great harm to the most innocent
members of our society.

    I do not profess to know the solution to the problem of
how to cure the illness that causes otherwise law-abiding
people to engage in the viewing of child pornography. I
know only that lengthy sentences such as the one in this case,
ten years (and below the guidelines at that) for a first offense,
cannot be the answer.

    There is nothing new in what I say here, but it is a
problem that I believe deserves more attention than we have
given it thus far. Many lives of otherwise decent people have
been ruined by psychological problems they are not presently
capable of controlling. Incarcerating them will not end the
horror of child pornography or the injury it inflicts on
innocent children. All it accomplishes is to create another
               UNITED STATES V. HARDRICK                  15

class of people with ruined lives—victims of serious mental
illness who society should instead attempt to treat in a
constructive and humane manner.



NOONAN, Circuit Judge, concurring:

   I concur in Judge Murguia’s opinion.

    I write to underline the need for further action to
discourage a crime whose actual extent is unknown but
whose commission is increasingly prosecuted as a serious
federal offense.       As pointed out in a thoughtful
communication by Alexandra Gelber, Assistant Deputy
Chief, Child Exploitation and Obscenity Section of the
Criminal Division of the Department of Justice: Those
convicted of the crimes of possessing, receiving, or
distributing child pornography typically have no criminal
record but “include professors, teachers, coaches, fathers,
lawyers, doctors, foster parents, adoption agency owners, and
more.” See Alexandra Gelber, Response to “A Reluctant
Rebellion” 7 (July 1, 2009), http://www.justice.gov/criminal/
ceos/downloads/ReluctantRebellionResponse.pdf.
Obviously, lack of criminal history is not a defense. It is
equally obvious that this kind of defendant is normally law-
abiding and, unless suffering from some psychological
impairment – the probability Judge Reinhardt effectively
develops – could be expected to obey the law in this area if
aware of its provisions and especially if aware of its
sanctions. Why should the government not advertise the law
and its penalty? Better to stop a crime’s commission than
mop the consequences.
