                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-4295
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                               Ryan Michael Moberg

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

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

                          Submitted: December 15, 2017
                              Filed: April 27, 2018
                                  [Published]
                                 ____________

Before SMITH, Chief Judge, KELLY and ERICKSON, Circuit Judges.
                              ____________

PER CURIAM.

      Following a two-day trial, a jury convicted Ryan Moberg of one count of
receiving child pornography, in violation of 18 U.S.C. § 2252(a)(2), and one count
of possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). The
district court1 sentenced Moberg to 60 months in prison on each count, to run
concurrently. On appeal, Moberg argues that the district court erred in admitting
certain statements he made during an interview with detectives and in denying his
motion for judgment of acquittal on one of the two counts of conviction.

                                  I. Background

      On November 26, 2012, Detective Tracy Perkins of the Boone County,
Missouri, Sheriff’s Department Cyber Crimes Task Force conducted an investigation
involving computers that were using a peer-to-peer network known as the Gnutella
2 network. The purpose of her investigation was to identify Internet Protocol (IP)
addresses that were sharing child pornography. She used specialized investigative
software, which at some point flagged an IP address that was using the Shareaza file-
sharing program (version 2.6.0.0) to share child pornography. Over a three-hour
period, Perkins made contact with the computer associated with the flagged IP
address several times, and was able to download four separate incomplete video files.
Three of the videos contained depictions of child pornography, and one was from a
known child pornography series identified as the Jenny series.

       Law enforcement then obtained a search warrant for the residence at the street
address linked—by subscriber records—to the flagged IP address. On April 4, 2013,
officers executed the warrant and seized a computer. On the same day, Perkins and
another detective visited Moberg at his place of employment and asked to speak with
him. During a recorded interview, Moberg admitted that he had used the Shareaza
file-sharing program to download pornography after he had been drinking. At first,
he claimed that when he came upon child pornography, he would immediately delete


      1
      The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri.


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it. Later in the interview, he admitted that he had viewed child pornography on his
computer, and that the last time he had viewed child pornography was 4 to 5 months
prior to the interview. He also said he used the search terms “Jenny” and “PTHC,”
knew that the latter term meant “preteen hardcore,” and described the content of one
of the videos in the Jenny series.

      Later, forensic examiners searched Moberg’s computer. They found six
thumbnail images depicting child pornography—including two from the Jenny
series— in the thumbnail database cache. According to testimony at trial, the average
computer user does not have access to the thumbnail database cache without the use
of special software. But images are created in the thumbnail database cache only if
the original file (the file that the thumbnail image relates to) was stored on the
computer. If the original file is no longer present on the computer, but the thumbnail
image remains, it simply means the original file was deleted, or otherwise removed.
Examiners also found evidence of a previous internet search using the term “PTHC.”
And they determined that the Shareaza file-sharing program (version 2.6.0.0) had
been present on the computer previously, but had since been deleted. There was no
evidence on Moberg’s computer of the files Perkins downloaded on November 26,
2012.

      Moberg went to trial on one count of receipt of child pornography on or about
November 26, 2012 (Count 1), and one count of possession of child pornography on
or about April 4, 2013 (Count 3).2 The jury returned guilty verdicts on both counts.
Moberg appeals.




      2
       Count 2 charged Moberg with possession of child pornography on or about
November 26, 2012, but the government moved to dismiss this count prior to trial.
The district court granted the motion.

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                                   II. Discussion

       First, Moberg argues the district court erred by allowing into evidence the
following: his admission that he had previously viewed child pornography on his
computer, and his admission that he was familiar with the Jenny series of child
pornography images. Moberg contends this was evidence of “prior misconduct” that
was not probative and was admitted only to show his propensity to act in accordance
with the charged conduct, in violation of Federal Rule of Evidence 404(b)(1). “We
review evidentiary rulings for abuse of discretion.” United States v. Stong, 773 F.3d
920, 923 (8th Cir. 2014).

       As an initial matter, we question whether Moberg’s admissions were evidence
of prior bad acts, or whether they were simply evidence that he committed the
charged offenses. See United States v. Shores, 700 F.3d 366, 370–71 (8th Cir. 2012)
(evidence of charged conduct is not subject to Rule 404(b)). Moberg’s familiarity
with the Jenny series—including his use of “Jenny” as a search term—is evidence
that he knowingly possessed or received images in that series, and that he knew the
images depicted minors engaged in sexually explicit conduct. As for Moberg’s
statement that he previously viewed child pornography from his computer, he asserts
only that such a general admission is not probative of whether he knowingly received
child pornography on November 26, 2012. But Moberg spoke to law enforcement on
April 4, 2013, and during that interview, he admitted that he had last viewed child
pornography on his computer 4 to 5 months earlier—which is probative of receiving
child pornography on or about November 26, 2012, as charged in Count 1.

       In any event, even if we analyze the admission of this evidence under Rule
404(b), we see no abuse of discretion in the district court’s decision to admit it.
“Evidence of a crime, wrong, or other act is not admissible to prove a person’s
character in order to show that on a particular occasion the person acted in accordance
with the character.” Fed. R. Evid. 404(b)(1). However, evidence is admissible under

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Rule 404(b) if it is “(1) relevant to a material issue,” such as knowledge, “(2) proved
by a preponderance of the evidence, (3) greater in probative value than prejudicial
effect, and (4) similar in kind and close in time to the charged offense.” United States
v. Jones, 255 F.3d 916, 919 (8th Cir. 2001). Here, “convictions for receipt and
possession of child pornography turn on essentially the same requirements and
evidence.” United States v. Worthey, 716 F.3d 1107, 1113 (8th Cir. 2013) (quoting
United States v. White, 806 F.3d 635, 641 (8th Cir. 2007)). Both require knowledge
on the part of the defendant. Id. Moberg’s admissions that he had viewed child
pornography on this same computer and was familiar with the Jenny series were
relevant to both charged offenses to show that he acted knowingly. The district court
also instructed the jury on the limited use of the evidence. Moberg does not dispute
that the acts he admitted to were factually similar and close in time to the charged
offenses, and he makes no meaningful argument that the prejudicial effect of
introducing the evidence outweighed its probative value.

       Next, Moberg argues the district court erred in denying his motion for
judgment of acquittal on Count 3 because the evidence was insufficient to convict
him of possession of child pornography. Our review of a district court’s denial of a
motion for judgment of acquittal is de novo, but we “review a challenge to the
sufficiency of the evidence deferentially and affirm if any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Id.
(quoting United States v. Vega, 676 F.3d 708, 721 (8th Cir. 2012)). “If evidence
consistent with guilt exists, we will not reverse simply because the facts and the
circumstances may also be consistent with some innocent explanation.” United States
v. Huyck, 849 F.3d 432, 441 (8th Cir. 2017) (quoting United States v. Griffith, 786
F.3d 1098, 1102 (8th Cir. 2015)).

      The charge of possession of child pornography was based on the six thumbnail
images depicting child pornography that were found in the thumbnail database cache
area of Moberg’s computer during a forensic examination. Moberg contends there

                                          -5-
was no evidence presented that he knew the images were stored in the thumbnail
database cache or that he was able to access the images.

        However, the question for the jury was not whether Moberg knew thumbnails
of downloaded files would be automatically created and stored on his computer, or
whether he could access those thumbnails. Instead, the relevant question was whether
Moberg knowingly possessed the original files in the first instance. At trial, the
government presented evidence that, in order for the thumbnail images to be present
in the thumbnail database cache, a computer user must purposely save or download
a file onto the computer’s hard drive. See id. at 443 (“Testimony demonstrated that
the thumbnail images could only have existed if the full-size, viewable images had
been on the hard drive at some time in 2010. . . . [And although] the ninety-five
thumbnail images on the [computer] hard drive were not viewable without special
software, they nonetheless constituted evidence of prior possession of child
pornography.”). In addition, two of the thumbnail images were from the Jenny series.
This evidence, along with Moberg’s admissions, supported the jury’s determination
that Moberg knowingly possessed child pornography on or about April 4, 2013. The
district court did not err in denying Moberg’s motion for judgment of acquittal.

                                  III. Conclusion

      The judgment of the district court is affirmed.
                     ______________________________




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