                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 06-2007
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                                v.

FABIO CARANI,
                                           Defendant-Appellant.
                         ____________
           Appeal from the United States District Court
      for the Northern District of Illinois, Eastern Division.
             No. 05 CR 150—John F. Grady, Judge.
                         ____________
      ARGUED APRIL 9, 2007—DECIDED JULY 6, 2007
                    ____________


 Before EASTERBROOK, Chief Judge, and KANNE and
WILLIAMS, Circuit Judges.
  KANNE, Circuit Judge. Fabio Carani was charged with
one count of possessing child pornography in violation of
18 U.S.C. § 2252A(a)(5)(B), and two counts of knowingly
receiving child pornography in the form of certain com-
puter files in violation of 18 U.S.C. § 2252A(a)(2)(A). A
jury found Carani guilty of possession, but returned a
verdict of not guilty as to one of the receipt counts, and
was unable to reach a unanimous decision as to the other
receipt count. The district court sentenced Carani to
seventy-two months’ imprisonment. Carani appeals both
his conviction and sentence. Finding no error, we affirm.
2                                             No. 06-2007

                    I. BACKGROUND
  Carani is an Italian immigrant who moved to the United
States in 1972. He, along with his wife Natza, owned a
computer. On this computer, Carani used a program called
Kazaa Lite (“Kazaa”).
   Kazaa is a peer-to-peer file sharing program through
which users may download files (music, videos, text, etc.)
from the computers of other Kazaa users. Users search for
files using search terms as they would in a web browser.
Kazaa returns a list of available files that fit the users’
search criteria. Users may gain more information about
the files by hovering over the file name with the computer
cursor. These files are located on the computers of other
Kazaa users, not on the Internet at large. The purpose
of Kazaa is to allow its users to share such files with
each other. When files are completely downloaded or
shared through Kazaa, a record of that activity is logged
on the user’s computer in a database located in what we
will call the ”.db folder.”
  Files that are downloaded using Kazaa are placed, by
default, in the user’s “My Shared Folder.” If a user does
not wish to allow other users to access his files, he may
change his Kazaa settings so that he may download files
from others’ computers, but they may not download files
from his computer. In order to encourage users to share
their files, Kazaa employs a participation level system.
Participation levels range from 0 to 1,000, and increase
with the number of files the user shares. When multiple
users attempt to download the same file, they are placed
in a queue. Users with higher participation levels are
given priority over those with lower participation levels.
Thus, a user who shares his files with others will be able
to more quickly and easily download the files that he
wants from other Kazaa users.
No. 06-2007                                             3

   In February 2005, agents in the Cyber Crimes Unit of
the Department of Homeland Security, Immigration and
Customs Enforcement (“ICE”), obtained a warrant to
search Carani’s residence. During the search, Senior
Special Agent Jason Varda found Carani’s computer. It
was powered on, connected to the Internet, and running
Kazaa at the time. Through Kazaa, Carani’s computer was
actively downloading files from other Kazaa users, and
allowing other Kazaa users to download files on Carani’s
computer. Agent Varda photographed the screen, which
showed that another user was attempting to download a
file by the name “incest porn, a little girl has sex with
an adult guy.” The lower right of the computer screen
indicated: “Connected as default user at Kazaa, sharing
214 files.”
  After photographing the computer screen, Agent Varda
disconnected the computer from its power supply. He
removed the hard drive and connected it to a write-block-
ing device to ensure that no data entered the hard drive.
Agent Varda then used a software program called EnCase
to preview all of the files on the hard drive, including
those that had been deleted. The preview revealed a
number of suspected child pornography videos.
  Agents interviewed Natza during the search. Natza
indicated that she and Carani had watched videos of child
pornography—sometimes in their entirety—on their
computer and then deleted them. Meanwhile, Carani
agreed to accompany agents to the Highland Park police
department. At the station, he was advised of his con-
stitutional rights orally and in writing, and he agreed to
be interviewed. Initially, Carani told the agents that he
had come across child pornography while searching for
adult pornography and had seen it about ten times. He
said that when this happened, he would watch the video
and then delete it, and that he had never saved any
child pornography on his computer. Later, Carani said
4                                              No. 06-2007

that he had seen “tons” of child pornography, and that
he may have had one video saved.
  The agents took a break from the interview to consult
with the United States Attorney’s Office. When they
returned, Carani admitted that he had not been entirely
forthcoming with them. Carani said that he used terms
such as “pedo” and “r@ygold” to search Kazaa specifically
for child pornography. Agents testified at trial that both
of these terms are related to child pornography. Carani
also told the agents that the saved video that he had
mentioned before the break was titled “Segundo.” Carani
further indicated that he was particularly interested in
videos involving family incest. He stated that he was
no longer aroused by adult pornography, and had last
viewed child pornography between two weeks and one
month prior to the interview. He told the agents that he
had never intentionally distributed child pornography,
but that he may have done so inadvertently through the
Kazaa program as he did not understand what the “My
Shared Folder” did.
    Carani then prepared the following written statement:
     I have viewed child pornography in the past and
     then deleted it. I have only one saved right now in
     the saved section, which is “My Kazaa Lite.” As far
     as computers are concerned I am a beginner at
     best. I did not distribute any of these videos on
     purpose, and I have no explanation as to how these
     videos were shared, but I never shared anything.
     I don[’]t even know how to do so. The only explana-
     tion is that, as I viewed them and deleted them,
     they were automatically shared without my know-
     ing of it. Some of these videos I stumbled upon by
     accident downloading other videos, and through
     [curiosity] I looked up some child pornography and
     again deleted it when I saw it. but the more I saw
No. 06-2007                                                5

    the more I felt that it was wrong to do so. My
    intentions were never to hurt anybody and forgive
    my ignorance but I did not know that this was
    against the law via the way it was done (through
    Kazaa Lite). I feel extremely bad about what
    happened, but I can say that I learned a lot
    through this experience.
  Carani’s hard drive was sent to Agent Skinner, an ICE
forensic analyst with the Cyber Crimes Center in Fairfax,
Virginia. Agent Skinner made further use of the EnCase
software to analyze the contents of Carani’s hard drive.
Agent Skinner testified that he initially found two child
pornography files in Carani’s temporary Internet folders,
both “BabyJ Sunshine” files, which he determined had
been accessed through a web browser. Agent Skinner used
EnCase to search for “BabyJ” references. His search
turned up a number of such references, including refer-
ences to the Kazaa My Shared Folder, and the term
“pedophilia.” Agent Skinner then constructed a search
using a variety of terms associated with child pornography:
pedophilia, young Lolita, kiddie, preteen, kindersex, pedo,
BabyJ, Baby J, pedo video, illegal pedophilia, r@ygold,
underage, incest, Lolita, kiddie porn, real kiddie, kinder,
and child lover. This search of the hard drive returned
a large number of separate and distinct hits, including
3,050 hits for “kiddie,” 2,011 hits for “preteen,” 3,603 hits
for “pedo,” 1,799 hits for “r@ygold,” and 3,720 hits for
“Lolita.” Agent Skinner concluded that Carani was
actively seeking out child pornography, as a home com-
puter would not otherwise contain so many references to
terms associated with child pornography. Agent Skinner
also located numerous files in both the My Shared Folder
and the .db folder whose names were suggestive of child
pornography. Agent Skinner testified that when a user
downloads a file from Kazaa, he is able to view the file
name, and when he hovers over the file name, he can see
a file description and keywords. Additionally, the Kazaa
6                                              No. 06-2007

screen contains a display which notifies the user that
another person is downloading a file from his computer,
and indicates which file.
  Agent Skinner also testified regarding Carani’s Kazaa
participation level. Carani’s participation level was 771,
out of a possible 1,000. Agent Skinner determined that
Carani’s high participation level was the result of a
“hack”—an unauthorized technique which caused Carani’s
computer to download files from itself, and artificially
boost his participation level. Use of the hack required
action on the part of the computer user, and there was
evidence that the hack had been used extensively. Agent
Skinner further testified that Carani’s computer and
Kazaa program functioned properly.
  Carani called Scott Ellis, a computer business consul-
tant, to testify as an expert on his behalf. Ellis testified
that Carani was not a sophisticated computer user, and
did not know how to use his My Shared Folder on Kazaa.
He also testified that a virus, worm, remotely located
pedophile, or software glitches could have caused the
references to child pornography found on the computer.
Ellis described Kazaa as “a piece of rogue software” that
“can behave in an uncontrolled fashion.” R. 131, p. 464.
  Natza and Carani both testified at trial. Each denied
making statements to agents that they had watched child
pornography, and explained that they only saw child
pornography when they mistakenly came across it while
searching for adult pornography. They explained that
they downloaded video files in large blocks, then re-
viewed it and discarded the child pornography that they
came across. They also emphasized that they were com-
puter novices, and did not fully understand the Kazaa
program.
  In rebuttal, Agent Skinner testified that his analysis
showed that child pornography videos were not down-
No. 06-2007                                               7

loaded in large chunks along with adult pornography;
rather, they were downloaded along with other child
pornography, in groups of five or six. Agent Skinner also
refuted Ellis’s testimony that the Kazaa program was
not running properly on Carani’s computer.
  When it came time to instruct the jury, the court used
the Seventh Circuit’s pattern instructions to define
knowingly: “When the word ‘knowingly’ is used in these
instructions, it means that the defendant realized what he
was doing and was aware of the nature of his conduct, and
did not act through ignorance, mistake, or accident.” 7th
Cir. Pattern Jury Inst. 4.06. The court also included an
instruction on deliberate avoidance, also known as an
“ostrich instruction”: “You may infer knowledge from a
combination of suspicion and indifference to the truth.” Id.
This instruction included an example relevant to this
case: “If you find that the defendant had a strong suspicion
that a file was child pornography, but ignored that suspi-
cion and downloaded the file, you may conclude that he
acted knowingly, as I have used that word.” The district
court also instructed the jury on the meaning of posses-
sion: “In the context of this case, possession means in-
tentionally retaining child pornography after download-
ing it.”
  After the jury began deliberations, they sent the follow-
ing question to the district court: “Does downloading,
watching, & deleting constitute possession?” The district
court replied: “The answer to this question depends upon
whether, at the time he downloaded material, the defen-
dant knew or strongly suspected that it was child pornog-
raphy and downloaded it anyway. If you find beyond a
reasonable doubt that he did, then the answer to your
question is ‘yes.’ If you have a reasonable doubt as to
whether the defendant knew or strongly suspected that
the material was child pornography at the time he down-
loaded it, then the answer to your question is ‘no.’ ”
8                                              No. 06-2007

  The jury found Carani guilty of possession, but returned
a verdict of not guilty as to one of the receipt counts, and
was unable to reach a unanimous decision as to the other
receipt count.
  At the sentencing hearing, the district court heard
arguments from both sides. Carani’s counsel reiterated his
arguments that Carani was not a sophisticated computer
user, and that he only downloaded child pornography
inadvertently. In support of a distribution enhancement,
the government argued that Carani received a “thing of
value” as required by the Sentencing Guidelines, by
increasing his participation level, which improved his
accessibility to other users’ files, and that Carani’s
actions constituted “active trading” in contraband materi-
als. See U.S.S.G. § 2G2.2(b)(3)(B).
  The district court found that “[t]he defendant’s position
in regard to whether he knew he possessed child pornogra-
phy is simply counter to the credible evidence produced
at trial, and therefore I do find that the defendant know-
ingly obtained child pornography on his computer . . . . And
turning now to the first guideline issue to which that
finding pertains, I do find that the defendant knowingly
distributed child pornography in that he knowingly made
his child pornography on his computer available to other
Kazaa users, who downloaded it from his computer.” Mar.
16, 2006 Tr. 38-39. The district court imposed a two-level
sentencing enhancement for distribution under U.S.S.G.
§ 2G2.2(b)(3)(F). The district court added: “A subsidiary
finding implied in what I have just said is that the defen-
dant was perfectly aware of the shared files folder. He
knew what was in it, he accessed it, and his denial that
he knew what was in there is simply not credible.” Mar.
16, 2006 Tr. 39. The district court sentenced Carani to
72 months’ imprisonment and two years of supervised
release.
No. 06-2007                                                 9

                       II. ANALYSIS
  This appeal presents three issues: (1) whether the
district court abused its discretion by giving the deliberate
avoidance “ostrich” instruction to the jury; (2) whether
the district court’s response to a jury question was in error;
and (3) whether the district court improperly applied a
sentencing enhancement for the distribution of child
pornography.


A. Ostrich Instruction
  We review the district court’s decision to give an ostrich
instruction for an abuse of discretion, viewing all evidence
in the light most favorable to the government. United
States v. Leahy, 464 F.3d 773, 796 (7th Cir. 2006); United
States v. Carrillo, 435 F.3d 767, 780 (7th Cir. 2006) (citing
United States v. Fallon, 348 F.3d 248, 253 (7th Cir. 2003)).
   An ostrich instruction is appropriate where (1) the
defendant claims a lack of guilty knowledge, and (2) the
government has presented evidence sufficient for a jury to
conclude that the defendant deliberately avoided learning
the truth. Carrillo, 435 F.3d at 780. Deliberate avoidance
is more than mere negligence, the defendant must have
“deliberately avoided acquiring knowledge of the crime
being committed by cutting off his curiosity through an
effort of the will.” Leahy, 464 F.3d at 796 (citing Fallon,
348 F.3d at 253). Deliberate avoidance is not a standard
less than knowledge; it is simply another way that knowl-
edge may be proven. Carrillo, 435 F.3d at 780 (citing
United States v. Ramsey, 785 F.2d 184, 189 (7th Cir.
1986)). “The purpose of the ostrich instruction ‘is to
inform the jury that a person may not escape criminal
liability by pleading ignorance if he knows or strongly
suspects he is involved in criminal dealings but deliber-
ately avoids learning more exact information about the
10                                             No. 06-2007

nature or extent of those dealings.’ ” Carrillo, 435 F.3d at
780 (quoting United States v. Craig, 178 F.3d 891, 896 (7th
Cir. 1999); United States v. Rodriguez, 929 F.2d 1224, 1227
(7th Cir. 1991)).
  Physical acts and outward expressions by the defendant
evidencing his deliberate avoidance, while useful, are not
necessary for a jury to infer that the defendant was curious
but deliberately ignored his suspicions. Carrillo 435 F.3d
at 780-81 (explaining the difference between avoidance
through “overt physical acts” and “purely psychological”
avoidance). The circumstances surrounding the defendant
may be sufficient to infer that, given what the defendant
knew, he must have forced his suspicions aside and
deliberately avoided confirming for himself that he was
engaged in criminal activity. Id. at 781 (citing United
States v. Carrillo, 269 F.3d 761, 769-70 (7th Cir. 2001);
United States v. Farouil, 124 F.3d 838, 844 (7th Cir. 1997);
United States v. Stone, 987 F.2d 469, 472 (7th Cir. 1993);
Rodriguez, 929 F.2d at 1227-28; United States v. Caliendo,
910 F.2d 429, 434 (7th Cir. 1990); United States v. Josefik,
753 F.2d 585, 589 (7th Cir. 1985); United States v. Burns,
683 F.2d 1056, 1060 (7th Cir. 1982)).
  The crux of Carani’s argument at trial was that any
child pornography videos he may have downloaded to his
computer were downloaded solely through inadvertence.
In addition to direct evidence that Carani in fact intended
to download child pornography, such as statements he
made to agents at the Highland Park Police Station, the
government also presented evidence from which a jury
could infer that Carani deliberately avoided confirming
that certain files were in fact child pornography. Govern-
ment witnesses testified that many files that were, or had
once been, on Carani’s computer had words associated
with child pornography in the file names. Those file
names, in addition to file descriptions and keyword
No. 06-2007                                              11

listings, would have been displayed in the Kazaa search
listings when Carani downloaded them. These words
indicating that the files contained child pornography were,
quite literally, right in front of his face. Thousands upon
thousands of references to child pornography were found
on Carani’s computer; and evidence, such as the hack used
to boost his participation level, suggests that Carani was
not so bungling a computer user as he suggested.
  The government presented evidence sufficient for the
jury to infer that Carani suspected that files he was
downloading and sharing with others contained child
pornography, but deliberately pushed those suspicions
aside in order to avoid confirming his criminal activities.
The district court did not abuse its discretion by giving
the ostrich instruction to the jury.


B. Response to Jury Question
  “We review a decision to answer a question from the jury
as well as the language used in the response for an abuse
of discretion.” United States v. Hewlett, 453 F.3d 876, 880
(7th Cir. 2006) (citing United States v. Young, 316 F.3d 649
(7th Cir. 2002)). “[T]he district court retains broad discre-
tion in deciding how to respond to a question propounded
from the jury and . . . the court has an obligation to
dispel any confusion quickly and with concrete accuracy.”
United States v. Sims, 329 F.3d 937, 943 (7th Cir. 2003).
When reviewing the language of a supplemental jury
instruction, we consider three factors: “(1) whether the
instructions as a whole fairly and adequately treat the
issues; (2) whether the supplemental instruction is a
correct statement of the law; and (3) whether the district
court answered the jury’s questions specifically.” United
States v. Danford, 435 F.3d 682, 688 (7th Cir. 2006) (citing
Sims, 329 F.3d at 943; Young, 316 F.3d at 662). An error
in a supplemental instruction is only reversible if the
12                                             No. 06-2007

defendant has been prejudiced. See Young, 316 F.3d at
662.
  Carani argues that, in answering the jury’s question
about possession, the district court impermissibly lowered
the burden of proof with respect to knowledge by includ-
ing the language, “knew or strongly suspected.” Given
the jury’s confusion on such a critical aspect of the in-
structions, the district court was within its discretion to
provide the jury with an answer. See Sims, 329 F.3d
at 943.
  Having concluded that the district court did not abuse its
discretion by providing a supplemental instruction, we
must next evaluate the language used in that instruction
under the three factor rubric. See Danford, 435 F.3d at
688. The first and third factors are easily satisfied. The
district court provided a thorough explanation that was
specifically targeted at the jury’s question regarding
whether the defendant “possessed” child pornography if
he discarded it after he watched it. The second factor,
whether the instruction accurately stated the law, de-
serves more discussion.
  The district court’s supplemental instruction indicated
that Carani could only be guilty of possession if, “at the
time he downloaded material, the defendant knew or
strongly suspected that it was child pornography and
downloaded it anyway.” This definition of possession is
surely too narrow.
  Suppose that, unbeknownst to an individual, a stranger
on the street mistakenly slips a bag of marijuana into his
pocket. Moments later, he is arrested on an outstand-
ing warrant and the officer discovers the marijuana. He
is not guilty of the possession of marijuana, because he
does not have the requisite knowledge. But, suppose that
before he is arrested on the outstanding warrant, he
discovers the marijuana and decides to keep it. Then,
No. 06-2007                                               13

despite the fact that he did not know about the marijuana
at the time that it was put in his pocket, he would have
all of the knowledge required to be guilty of possession.
United States v. Myers, 355 F.3d 1040, 1042 (7th Cir.
2004); see United States v. X-Citement Video, Inc., 513 U.S.
64, 76-78 (1994); United States v. Hall, 142 F.3d 988, 997
(7th Cir. 1998) (explaining that if a defendant had the
opportunity to delete child pornography files on his
computer but chose not to, the requirements of possession
have been met).
  It is this second scenario that the district court’s in-
structions did not take into account. A possessor of child
pornography videos need not know that it is such at the
time of download, so long as he discovers that it is child
pornography after the download and decides to keep it
anyway. The district court’s instruction on possession
crafted too narrow a definition of possession by requiring
knowledge at the time of download.
  Thus, the instruction could not have harmed Carani. If
anything, Carani benefitted from giving it. In effect, the
jury was told not to find Carani guilty of possession if
he inadvertently acquired child pornography and subse-
quently made a conscious decision to keep it. The error in
the supplemental instruction was harmless to Carani.
Additionally, the use of the term “strongly suspected”
in the supplemental instruction was proper given our
analysis of the ostrich instruction.


C. Distribution Enhancement
  “We review the district court’s interpretation and
application of the Sentencing Guidelines de novo, and its
findings of fact for clear error.” United States v. Fife, 471
F.3d 750, 752 (7th Cir. 2006) (citing United States v. Ellis,
440 F.3d 434, 436 (7th Cir. 2006)). “A finding of fact is
14                                              No. 06-2007

clearly erroneous only if, based upon the entire record, we
are left with the definite and firm conviction that a
mistake has been committed.” United States v. Chamness,
435 F.3d 724, 726 (7th Cir. 2006) (citations and quotations
omitted).
  Under U.S.S.G. § 2G2.2(a)(1), the base offense level for
possession of child pornography in violation of 18 U.S.C.
§ 2252A(a)(5) is eighteen. The government requested a
five-level enhancement under U.S.S.G. § 2G2.2(b)(3)(B)
for the “[d]istribution [of child pornography] for the
receipt, or expectation of receipt, of a thing of value, but
not for pecuniary gain.” The district court, instead, applied
a two-level enhancement under U.S.S.G. § 2G2.2(b)(3)(F)
for “[d]istribution other than distribution described in
subdivisions (A) through (E).” The district court applied a
number of other enhancements that Carani does not
take issue with, bringing his total offense level to thirty-
five. This yields an advisory guidelines range of 168-210
months. The statutory maximum, however, is ten years
(120 months). 18 U.S.C. § 2252A(b)(2). Thus, the guide-
lines provide for a sentence of 120 months. After consider-
ing the sentencing factors in 18 U.S.C. § 3553(a), the
district court sentenced Carani to seventy-two months’
imprisonment followed by two years’ supervised release.
  Carani makes two arguments with respect to the distri-
bution enhancement: (1) that there was insufficient
evidence that he distributed child pornography; and (2)
that if he distributed child pornography, he did not do
so for the receipt of a thing of value.
  This court has not previously considered the exact
contours of what constitutes “distribution” in the context
of the Kazaa peer-to-peer file sharing program. The Tenth
Circuit, however, recently held that allowing others to
access one’s files through Kazaa is distribution. United
States v. Shaffer, 472 F.3d 1219 (10th Cir. 2007). The
No. 06-2007                                                 15

appellant in Shaffer, who was convicted of distributing
child pornography, argued that knowing that others were
accessing and downloading the files on his computer
through Kazaa did not amount to distribution. Id. at 1223.
Rather, he argued, an affirmative act must be taken by
the distributor for each file at the time of distribution. Id.
The Tenth Circuit rejected this argument, likening distri-
bution through Kazaa to the operation of a self-serve gas
station: “The owner may not be present at the station, and
there may be no attendant present at all. And neither
the owner nor his or her agents may ever pump gas. But
the owner has a roadside sign letting all passerby know
that, if they choose, they can stop and fill their cars for
themselves, paying at the pump by credit card.” Id.
at 1223-24.
  The notion that Carani could knowingly make his child
pornography available for others to access and download
without this qualifying as “distribution” does not square
with the plain meaning of the word. Indeed, this court
rejected a similar argument in United States v. Gunderson,
where the defendant had programmed his computer to
allow others to access his files if they first uploaded files to
his computer. 345 F.3d 471, 473 (7th Cir. 2003). Once the
program was written, it required no action by Gunderson
to allow others to download his files. Id. We described the
passive nature of the program as “irrelevant” to whether
a distribution enhancement was appropriate. Id. Such is
the case here. The district court specifically found that
Carani made his child pornography videos available
through Kazaa, and that he knew other users were
downloading these files from him. This finding was not
clearly erroneous.
  Carani’s second argument, that the distribution enhance-
ment was not appropriate because he did not receive a
thing of value in return, misstates the record and is a non-
starter. At sentencing, the government argued for a five-
16                                           No. 06-2007

level enhancement under U.S.S.G. § 2G2.2(b)(3)(B), which
would require that Carani received something of value in
return for the child pornography that he distributed. In
his opening brief, Carani states: “The court erred by
applying the five-level sentencing enhancement under
U.S.S.G. § 2G2.2(b)(3)(B).” The record clearly shows
that the district court made no such enhancement. The
district court applied a two-point enhancement under
U.S.S.G. § 2G2.2(b)(3)(F), which does not require that
Carani received anything in return for the child pornogra-
phy he distributed. Thus, there is no factual basis for
this argument.


                   III. CONCLUSION
  For the foregoing reasons, Fabio Carani’s conviction and
sentence are AFFIRMED.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                  USCA-02-C-0072—7-6-07
