text:
United States v. Carani, 492 F.3d 867 (7th Cir. 2007)
Court of Appeals for the Seventh Circuit
Filed: July 6th, 2007
Precedential Status: Precedential
Citations: 492 F.3d 867
Docket Number: 06-2007
Panel: Frank Hoover Easterbrook, Michael Stephen Kanne, Ann Claire Williams
Judges: Easterbrook, Chief Judge, and Kanne and Williams, Circuit Judges

492 F.3d 867 (2007)
UNITED STATES of America, Plaintiff-Appellee,
v.
Fabio CARANI, Defendant-Appellant.

No. 06-2007.
United States Court of Appeals, Seventh Circuit.

Argued April 9, 2007.
Decided July 6, 2007.
*868 *869 Kruti Trivedi (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Erik R. Guenther (argued), Hurley, Burish & Stanton, Madison, WI, for Defendant-Appellant.

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 computer 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.

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.

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 *870 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-blocking device to ensure that no data entered the hard drive. Agent Varda then used a software program called En-Case 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 constitutional 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 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 explanation is that, as I viewed them and deleted them, they were automatically shared without my knowing 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 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.
*871 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 references 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 computer 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 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 consultant, 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 reviewed it and discarded the child pornography that they came across. They also emphasized that they were computer novices, and did not fully understand the Kazaa program.

In rebuttal, Agent Skinner testified that his analysis showed that child pornography videos were not downloaded 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.

*872 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 suspicion 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 possession: "In the context of this case, possession means intentionally retaining child pornography after downloading it."

After the jury began deliberations, they sent the following 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 defendant knew or strongly suspected that it was child pornography 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 downloaded it, then the answer to your question is `no.'"

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 materials. 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 pornography is simply counter to the credible evidence produced at trial, and therefore I do find that the defendant knowingly 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 defendant 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.

II. ANALYSIS

This appeal presents three issues: (1) whether the district court abused its discretion *873 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 knowledge 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 deliberately avoids learning more exact information about the 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. Government 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 listings, would have been displayed in the *874 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 discretion 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 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 including the language, "knew or strongly suspected." Given the jury's confusion on such a critical aspect of the instructions, 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, deserves 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 outstanding 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, despite the fact that he did not know about the marijuana at the time that it was put *875 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, 115 S. Ct. 464,  130 L. Ed. 2d 372 (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 instructions 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 benefited from giving it. In effect, the jury was told not to find Carani guilty of possession if he inadvertently acquired child pornography and subsequently 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 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 guidelines provide for a sentence of 120 months. After considering 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 distribution 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 appellant in Shaffer, who was *876 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 distribution 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 enhancement was not appropriate because he did not receive a thing of value in return, misstates the record and is a nonstarter. At sentencing, the government argued for a five-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 pornography 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.

text: United

text: States

text: v

text: Carani

text: F

text: d

text: th

text: Cir

text: Court

text: of

text: Appeals

text: for

text: the

text: Seventh

text: Circuit

text: Filed

text: July

text: th

text: Precedential

text: Status

text: Precedential

text: Citations

text: F

text: d

text: Docket

text: Number

text: Panel

text: Frank

text: Hoover

text: Easterbrook

text: Michael

text: Stephen

text: Kanne

text: Ann

text: Claire

text: Williams

text: Judges

text: Easterbrook

text: Chief

text: Judge

text: and

text: Kanne

text: and

text: Williams

text: Circuit

text: Judges

text: F

text: d

text: UNITED

text: STATES

text: of

text: America

text: Plaintiff

text: Appellee

text: v

text: Fabio

text: CARANI

text: Defendant

text: Appellant

text: No

text: United

text: States

text: Court

text: of

text: Appeals

text: Seventh

text: Circuit

text: Argued

text: April

text: Decided

text: July

text: Kruti

text: Trivedi

text: argued

text: Office

text: of

text: the

text: United

text: States

text: Attorney

text: Chicago

text: IL

text: for

text: Plaintiff

text: Appellee

text: Erik

text: R

text: Guenther

text: argued

text: Hurley

text: Burish

text: Stanton

text: Madison

text: WI

text: for

text: Defendant

text: Appellant

text: Before

text: EASTERBROOK

text: Chief

text: Judge

text: and

text: KANNE

text: and

text: WILLIAMS

text: Circuit

text: Judges

text: KANNE

text: Circuit

text: Judge

text: Fabio

text: Carani

text: was

text: charged

text: with

text: one

text: count

text: of

text: possessing

text: child

text: pornography

text: in

text: violation

text: of

text: U

text: S

text: C

text: A

text: a

text: B

text: and

text: two

text: counts

text: of

text: knowingly

text: receiving

text: child

text: pornography

text: in

text: the

text: form

text: of

text: certain

text: computer

text: files

text: in

text: violation

text: of

text: U

text: S

text: C

text: A

text: a

text: A

text: A

text: jury

text: found

text: Carani

text: guilty

text: of

text: possession

text: but

text: returned

text: a

text: verdict

text: of

text: not

text: guilty

text: as

text: to

text: one

text: of

text: the

text: receipt

text: counts

text: and

text: was

text: unable

text: to

text: reach

text: a

text: unanimous

text: decision

text: as

text: to

text: the

text: other

text: receipt

text: count

text: The

text: district

text: court

text: sentenced

text: Carani

text: to

text: seventy

text: two

text: months

text: imprisonment

text: Carani

text: appeals

text: both

text: his

text: conviction

text: and

text: sentence

text: Finding

text: no

text: error

text: we

text: affirm

text: I

text: BACKGROUND

text: Carani

text: is

text: an

text: Italian

text: immigrant

text: who

text: moved

text: to

text: the

text: United

text: States

text: in

text: He

text: along

text: with

text: his

text: wife

text: Natza

text: owned

text: a

text: computer

text: On

text: this

text: computer

text: Carani

text: used

text: a

text: program

text: called

text: Kazaa

text: Lite

text: Kazaa

text: Kazaa

text: is

text: a

text: peer

text: to

text: peer

text: file

text: sharing

text: program

text: through

text: which

text: users

text: may

text: download

text: files

text: music

text: videos

text: text

text: etc

text: from

text: the

text: computers

text: of

text: other

text: Kazaa

text: users

text: Users

text: search

text: for

text: files

text: using

text: search

text: terms

text: as

text: they

text: would

text: in

text: a

text: web

text: browser

text: Kazaa

text: returns

text: a

text: list

text: of

text: available

text: files

text: that

text: fit

text: the

text: users

text: search

text: criteria

text: Users

text: may

text: gain

text: more

text: information

text: about

text: the

text: files

text: by

text: hovering

text: over

text: the

text: file

text: name

text: with

text: the

text: computer

text: cursor

text: These

text: files

text: are

text: located

text: on

text: the

text: computers

text: of

text: other

text: Kazaa

text: users

text: not

text: on

text: the

text: Internet

text: at

text: large

text: The

text: purpose

text: of

text: Kazaa

text: is

text: to

text: allow

text: its

text: users

text: to

text: share

text: such

text: files

text: with

text: each

text: other

text: When

text: files

text: are

text: completely

text: downloaded

text: or

text: shared

text: through

text: Kazaa

text: a

text: record

text: of

text: that

text: activity

text: is

text: logged

text: on

text: the

text: user

text: s

text: computer

text: in

text: a

text: database

text: located

text: in

text: what

text: we

text: will

text: call

text: the

text: db

text: folder

text: Files

text: that

text: are

text: downloaded

text: using

text: Kazaa

text: are

text: placed

text: by

text: default

text: in

text: the

text: user

text: s

text: My

text: Shared

text: Folder

text: If

text: a

text: user

text: does

text: not

text: wish

text: to

text: allow

text: other

text: users

text: to

text: access

text: his

text: files

text: he

text: may

text: change

text: his

text: Kazaa

text: settings

text: so

text: that

text: he

text: may

text: download

text: files

text: from

text: others

text: computers

text: but

text: they

text: may

text: not

text: download

text: files

text: from

text: his

text: computer

text: In

text: order

text: to

text: encourage

text: users

text: to

text: share

text: their

text: files

text: Kazaa

text: employs

text: a

text: participation

text: level

text: system

text: Participation

text: levels

text: range

text: from

text: to

text: and

text: increase

text: with

text: the

text: number

text: of

text: files

text: the

text: user

text: shares

text: When

text: multiple

text: users

text: attempt

text: to

text: download

text: the

text: same

text: file

text: they

text: are

text: placed

text: in

text: a

text: queue

text: Users

text: with

text: higher

text: participation

text: levels

text: are

text: given

text: priority

text: over

text: those

text: with

text: lower

text: participation

text: levels

text: Thus

text: a

text: user

text: who

text: shares

text: his

text: files

text: with

text: others

text: will

text: be

text: able

text: to

text: more

text: quickly

text: and

text: easily

text: download

text: the

text: files

text: that

text: he

text: wants

text: from

text: other

text: Kazaa

text: users

text: In

text: February

text: agents

text: in

text: the

text: Cyber

text: Crimes

text: Unit

text: of

text: the

text: Department

text: of

text: Homeland

text: Security

text: Immigration

text: and

text: Customs

text: Enforcement

text: ICE

text: obtained

text: a

text: warrant

text: to

text: search

text: Carani

text: s

text: residence

text: During

text: the

text: search

text: Senior

text: Special

text: Agent

text: Jason

text: Varda

text: found

text: Carani

text: s

text: computer

text: It

text: was

text: powered

text: on

text: connected

text: to

text: the

text: Internet

text: and

text: running

text: Kazaa

text: at

text: the

text: time

text: Through

text: Kazaa

text: Carani

text: s

text: computer

text: was

text: actively

text: downloading

text: files

text: from

text: other

text: Kazaa

text: users

text: and

text: allowing

text: other

text: Kazaa

text: users

text: to

text: download

text: files

text: on

text: Carani

text: s

text: computer

text: Agent

text: Varda

text: photographed

text: the

text: screen

text: which

text: showed

text: that

text: another

text: user

text: was

text: attempting

text: to

text: download

text: a

text: file

text: by

text: the

text: name

text: incest

text: porn

text: a

text: little

text: girl

text: has

text: sex

text: with

text: an

text: adult

text: guy

text: The

text: lower

text: right

text: of

text: the

text: computer

text: screen

text: indicated

text: Connected

text: as

text: default

text: user

text: at

text: Kazaa

text: sharing

text: files

text: After

text: photographing

text: the

text: computer

text: screen

text: Agent

text: Varda

text: disconnected

text: the

text: computer

text: from

text: its

text: power

text: supply

text: He

text: removed

text: the

text: hard

text: drive

text: and

text: connected

text: it

text: to

text: a

text: write

text: blocking

text: device

text: to

text: ensure

text: that

text: no

text: data

text: entered

text: the

text: hard

text: drive

text: Agent

text: Varda

text: then

text: used

text: a

text: software

text: program

text: called

text: En

text: Case

text: to

text: preview

text: all

text: of

text: the

text: files

text: on

text: the

text: hard

text: drive

text: including

text: those

text: that

text: had

text: been

text: deleted

text: The

text: preview

text: revealed

text: a

text: number

text: of

text: suspected

text: child

text: pornography

text: videos

text: Agents

text: interviewed

text: Natza

text: during

text: the

text: search

text: Natza

text: indicated

text: that

text: she

text: and

text: Carani

text: had

text: watched

text: videos

text: of

text: child

text: pornography

text: sometimes

text: in

text: their

text: entirety

text: on

text: their

text: computer

text: and

text: then

text: deleted

text: them

text: Meanwhile

text: Carani

text: agreed

text: to

text: accompany

text: agents

text: to

text: the

text: Highland

text: Park

text: police

text: department

text: At

text: the

text: station

text: he

text: was

text: advised

text: of

text: his

text: constitutional

text: rights

text: orally

text: and

text: in

text: writing

text: and

text: he

text: agreed

text: to

text: be

text: interviewed

text: Initially

text: Carani

text: told

text: the

text: agents

text: that

text: he

text: had

text: come

text: across

text: child

text: pornography

text: while

text: searching

text: for

text: adult

text: pornography

text: and

text: had

text: seen

text: it

text: about

text: ten

text: times

text: He

text: said

text: that

text: when

text: this

text: happened

text: he

text: would

text: watch

text: the

text: video

text: and

text: then

text: delete

text: it

text: and

text: that

text: he

text: had

text: never

text: saved

text: any

text: child

text: pornography

text: on

text: his

text: computer

text: Later

text: Carani

text: said

text: that

text: he

text: had

text: seen

text: tons

text: of

text: child

text: pornography

text: and

text: that

text: he

text: may

text: have

text: had

text: one

text: video

text: saved

text: The

text: agents

text: took

text: a

text: break

text: from

text: the

text: interview

text: to

text: consult

text: with

text: the

text: United

text: States

text: Attorney

text: s

text: Office

text: When

text: they

text: returned

text: Carani

text: admitted

text: that

text: he

text: had

text: not

text: been

text: entirely

text: forthcoming

text: with

text: them

text: Carani

text: said

text: that

text: he

text: used

text: terms

text: such

text: as

text: pedo

text: and

text: r

text: ygold

text: to

text: search

text: Kazaa

text: specifically

text: for

text: child

text: pornography

text: Agents

text: testified

text: at

text: trial

text: that

text: both

text: of

text: these

text: terms

text: are

text: related

text: to

text: child

text: pornography

text: Carani

text: also

text: told

text: the

text: agents

text: that

text: the

text: saved

text: video

text: that

text: he

text: had

text: mentioned

text: before

text: the

text: break

text: was

text: titled

text: Segundo

text: Carani

text: further

text: indicated

text: that

text: he

text: was

text: particularly

text: interested

text: in

text: videos

text: involving

text: family

text: incest

text: He

text: stated

text: that

text: he

text: was

text: no

text: longer

text: aroused

text: by

text: adult

text: pornography

text: and

text: had

text: last

text: viewed

text: child

text: pornography

text: between

text: two

text: weeks

text: and

text: one

text: month

text: prior

text: to

text: the

text: interview

text: He

text: told

text: the

text: agents

text: that

text: he

text: had

text: never

text: intentionally

text: distributed

text: child

text: pornography

text: but

text: that

text: he

text: may

text: have

text: done

text: so

text: inadvertently

text: through

text: the

text: Kazaa

text: program

text: as

text: he

text: did

text: not

text: understand

text: what

text: the

text: My

text: Shared

text: Folder

text: did

text: Carani

text: then

text: prepared

text: the

text: following

text: written

text: statement

text: I

text: have

text: viewed

text: child

text: pornography

text: in

text: the

text: past

text: and

text: then

text: deleted

text: it

text: I

text: have

text: only

text: one

text: saved

text: right

text: now

text: in

text: the

text: saved

text: section

text: which

text: is

text: My

text: Kazaa

text: Lite

text: As

text: far

text: as

text: computers

text: are

text: concerned

text: I

text: am

text: a

text: beginner

text: at

text: best

text: I

text: did

text: not

text: distribute

text: any

text: of

text: these

text: videos

text: on

text: purpose

text: and

text: I

text: have

text: no

text: explanation

text: as

text: to

text: how

text: these

text: videos

text: were

text: shared

text: but

text: I

text: never

text: shared

text: anything

text: I

text: don

text: t

text: even

text: know

text: how

text: to

text: do

text: so

text: The

text: only

text: explanation

text: is

text: that

text: as

text: I

text: viewed

text: them

text: and

text: deleted

text: them

text: they

text: were

text: automatically

text: shared

text: without

text: my

text: knowing

text: of

text: it

text: Some

text: of

text: these

text: videos

text: I

text: stumbled

text: upon

text: by

text: accident

text: downloading

text: other

text: videos

text: and

text: through

text: curiosity

text: I

text: looked

text: up

text: some

text: child

text: pornography

text: and

text: again

text: deleted

text: it

text: when

text: I

text: saw

text: it

text: but

text: the

text: more

text: I

text: saw

text: the

text: more

text: I

text: felt

text: that

text: it

text: was

text: wrong

text: to

text: do

text: so

text: My

text: intentions

text: were

text: never

text: to

text: hurt

text: anybody

text: and

text: forgive

text: my

text: ignorance

text: but

text: I

text: did

text: not

text: know

text: that

text: this

text: was

text: against

text: the

text: law

text: via

text: the

text: way

text: it

text: was

text: done

text: through

text: Kazaa

text: Lite

text: I

text: feel

text: extremely

text: bad

text: about

text: what

text: happened

text: but

text: I

text: can

text: say

text: that

text: I

text: learned

text: a

text: lot

text: through

text: this

text: experience

text: Carani

text: s

text: hard

text: drive

text: was

text: sent

text: to

text: Agent

text: Skinner

text: an

text: ICE

text: forensic

text: analyst

text: with

text: the

text: Cyber

text: Crimes

text: Center

text: in

text: Fairfax

text: Virginia

text: Agent

text: Skinner

text: made

text: further

text: use

text: of

text: the

text: EnCase

text: software

text: to

text: analyze

text: the

text: contents

text: of

text: Carani

text: s

text: hard

text: drive

text: Agent

text: Skinner

text: testified

text: that

text: he

text: initially

text: found

text: two

text: child

text: pornography

text: files

text: in

text: Carani

text: s

text: temporary

text: Internet

text: folders

text: both

text: BabyJ

text: Sunshine

text: files

text: which

text: he

text: determined

text: had

text: been

text: accessed

text: through

text: a

text: web

text: browser

text: Agent

text: Skinner

text: used

text: EnCase

text: to

text: search

text: for

text: BabyJ

text: references

text: His

text: search

text: turned

text: up

text: a

text: number

text: of

text: such

text: references

text: including

text: references

text: to

text: the

text: Kazaa

text: My

text: Shared

text: Folder

text: and

text: the

text: term

text: pedophilia

text: Agent

text: Skinner

text: then

text: constructed

text: a

text: search

text: using

text: a

text: variety

text: of

text: terms

text: associated

text: with

text: child

text: pornography

text: pedophilia

text: young

text: Lolita

text: kiddie

text: preteen

text: kindersex

text: pedo

text: BabyJ

text: Baby

text: J

text: pedo

text: video

text: illegal

text: pedophilia

text: r

text: ygold

text: underage

text: incest

text: Lolita

text: kiddie

text: porn

text: real

text: kiddie

text: kinder

text: and

text: child

text: lover

text: This

text: search

text: of

text: the

text: hard

text: drive

text: returned

text: a

text: large

text: number

text: of

text: separate

text: and

text: distinct

text: hits

text: including

text: hits

text: for

text: kiddie

text: hits

text: for

text: preteen

text: hits

text: for

text: pedo

text: hits

text: for

text: r

text: ygold

text: and

text: hits

text: for

text: Lolita

text: Agent

text: Skinner

text: concluded

text: that

text: Carani

text: was

text: actively

text: seeking

text: out

text: child

text: pornography

text: as

text: a

text: home

text: computer

text: would

text: not

text: otherwise

text: contain

text: so

text: many

text: references

text: to

text: terms

text: associated

text: with

text: child

text: pornography

text: Agent

text: Skinner

text: also

text: located

text: numerous

text: files

text: in

text: both

text: the

text: My

text: Shared

text: Folder

text: and

text: the

text: db

text: folder

text: whose

text: names

text: were

text: suggestive

text: of

text: child

text: pornography

text: Agent

text: Skinner

text: testified

text: that

text: when

text: a

text: user

text: downloads

text: a

text: file

text: from

text: Kazaa

text: he

text: is

text: able

text: to

text: view

text: the

text: file

text: name

text: and

text: when

text: he

text: hovers

text: over

text: the

text: file

text: name

text: he

text: can

text: see

text: a

text: file

text: description

text: and

text: keywords

text: Additionally

text: the

text: Kazaa

text: screen

text: contains

text: a

text: display

text: which

text: notifies

text: the

text: user

text: that

text: another

text: person

text: is

text: downloading

text: a

text: file

text: from

text: his

text: computer

text: and

text: indicates

text: which

text: file

text: Agent

text: Skinner

text: also

text: testified

text: regarding

text: Carani

text: s

text: Kazaa

text: participation

text: level

text: Carani

text: s

text: participation

text: level

text: was

text: out

text: of

text: a

text: possible

text: Agent

text: Skinner

text: determined

text: that

text: Carani

text: s

text: high

text: participation

text: level

text: was

text: the

text: result

text: of

text: a

text: hack

text: an

text: unauthorized

text: technique

text: which

text: caused

text: Carani

text: s

text: computer

text: to

text: download

text: files

text: from

text: itself

text: and

text: artificially

text: boost

text: his

text: participation

text: level

text: Use

text: of

text: the

text: hack

text: required

text: action

text: on

text: the

text: part

text: of

text: the

text: computer

text: user

text: and

text: there

text: was

text: evidence

text: that

text: the

text: hack

text: had

text: been

text: used

text: extensively

text: Agent

text: Skinner

text: further

text: testified

text: that

text: Carani

text: s

text: computer

text: and

text: Kazaa

text: program

text: functioned

text: properly

text: Carani

text: called

text: Scott

text: Ellis

text: a

text: computer

text: business

text: consultant

text: to

text: testify

text: as

text: an

text: expert

text: on

text: his

text: behalf

text: Ellis

text: testified

text: that

text: Carani

text: was

text: not

text: a

text: sophisticated

text: computer

text: user

text: and

text: did

text: not

text: know

text: how

text: to

text: use

text: his

text: My

text: Shared

text: Folder

text: on

text: Kazaa

text: He

text: also

text: testified

text: that

text: a

text: virus

text: worm

text: remotely

text: located

text: pedophile

text: or

text: software

text: glitches

text: could

text: have

text: caused

text: the

text: references

text: to

text: child

text: pornography

text: found

text: on

text: the

text: computer

text: Ellis

text: described

text: Kazaa

text: as

text: a

text: piece

text: of

text: rogue

text: software

text: that

text: can

text: behave

text: in

text: an

text: uncontrolled

text: fashion

text: R

text: p

text: Natza

text: and

text: Carani

text: both

text: testified

text: at

text: trial

text: Each

text: denied

text: making

text: statements

text: to

text: agents

text: that

text: they

text: had

text: watched

text: child

text: pornography

text: and

text: explained

text: that

text: they

text: only

text: saw

text: child

text: pornography

text: when

text: they

text: mistakenly

text: came

text: across

text: it

text: while

text: searching

text: for

text: adult

text: pornography

text: They

text: explained

text: that

text: they

text: downloaded

text: video

text: files

text: in

text: large

text: blocks

text: then

text: reviewed

text: it

text: and

text: discarded

text: the

text: child

text: pornography

text: that

text: they

text: came

text: across

text: They

text: also

text: emphasized

text: that

text: they

text: were

text: computer

text: novices

text: and

text: did

text: not

text: fully

text: understand

text: the

text: Kazaa

text: program

text: In

text: rebuttal

text: Agent

text: Skinner

text: testified

text: that

text: his

text: analysis

text: showed

text: that

text: child

text: pornography

text: videos

text: were

text: not

text: downloaded

text: in

text: large

text: chunks

text: along

text: with

text: adult

text: pornography

text: rather

text: they

text: were

text: downloaded

text: along

text: with

text: other

text: child

text: pornography

text: in

text: groups

text: of

text: five

text: or

text: six

text: Agent

text: Skinner

text: also

text: refuted

text: Ellis

text: s

text: testimony

text: that

text: the

text: Kazaa

text: program

text: was

text: not

text: running

text: properly

text: on

text: Carani

text: s

text: computer

text: When

text: it

text: came

text: time

text: to

text: instruct

text: the

text: jury

text: the

text: court

text: used

text: the

text: Seventh

text: Circuit

text: s

text: pattern

text: instructions

text: to

text: define

text: knowingly

text: When

text: the

text: word

text: knowingly

text: is

text: used

text: in

text: these

text: instructions

text: it

text: means

text: that

text: the

text: defendant

text: realized

text: what

text: he

text: was

text: doing

text: and

text: was

text: aware

text: of

text: the

text: nature

text: of

text: his

text: conduct

text: and

text: did

text: not

text: act

text: through

text: ignorance

text: mistake

text: or

text: accident

text: th

text: Cir

text: Pattern

text: Jury

text: Inst

text: The

text: court

text: also

text: included

text: an

text: instruction

text: on

text: deliberate

text: avoidance

text: also

text: known

text: as

text: an

text: ostrich

text: instruction

text: You

text: may

text: infer

text: knowledge

text: from

text: a

text: combination

text: of

text: suspicion

text: and

text: indifference

text: to

text: the

text: truth

text: Id

text: This

text: instruction

text: included

text: an

text: example

text: relevant

text: to

text: this

text: case

text: If

text: you

text: find

text: that

text: the

text: defendant

text: had

text: a

text: strong

text: suspicion

text: that

text: a

text: file

text: was

text: child

text: pornography

text: but

text: ignored

text: that

text: suspicion

text: and

text: downloaded

text: the

text: file

text: you

text: may

text: conclude

text: that

text: he

text: acted

text: knowingly

text: as

text: I

text: have

text: used

text: that

text: word

text: The

text: district

text: court

text: also

text: instructed

text: the

text: jury

text: on

text: the

text: meaning

text: of

text: possession

text: In

text: the

text: context

text: of

text: this

text: case

text: possession

text: means

text: intentionally

text: retaining

text: child

text: pornography

text: after

text: downloading

text: it

text: After

text: the

text: jury

text: began

text: deliberations

text: they

text: sent

text: the

text: following

text: question

text: to

text: the

text: district

text: court

text: Does

text: downloading

text: watching

text: deleting

text: constitute

text: possession

text: The

text: district

text: court

text: replied

text: The

text: answer

text: to

text: this

text: question

text: depends

text: upon

text: whether

text: at

text: the

text: time

text: he

text: downloaded

text: material

text: the

text: defendant

text: knew

text: or

text: strongly

text: suspected

text: that

text: it

text: was

text: child

text: pornography

text: and

text: downloaded

text: it

text: anyway

text: If

text: you

text: find

text: beyond

text: a

text: reasonable

text: doubt

text: that

text: he

text: did

text: then

text: the

text: answer

text: to

text: your

text: question

text: is

text: yes

text: If

text: you

text: have

text: a

text: reasonable

text: doubt

text: as

text: to

text: whether

text: the

text: defendant

text: knew

text: or

text: strongly

text: suspected

text: that

text: the

text: material

text: was

text: child

text: pornography

text: at

text: the

text: time

text: he

text: downloaded

text: it

text: then

text: the

text: answer

text: to

text: your

text: question

text: is

text: no

text: The

text: jury

text: found

text: Carani

text: guilty

text: of

text: possession

text: but

text: returned

text: a

text: verdict

text: of

text: not

text: guilty

text: as

text: to

text: one

text: of

text: the

text: receipt

text: counts

text: and

text: was

text: unable

text: to

text: reach

text: a

text: unanimous

text: decision

text: as

text: to

text: the

text: other

text: receipt

text: count

text: At

text: the

text: sentencing

text: hearing

text: the

text: district

text: court

text: heard

text: arguments

text: from

text: both

text: sides

text: Carani

text: s

text: counsel

text: reiterated

text: his

text: arguments

text: that

text: Carani

text: was

text: not

text: a

text: sophisticated

text: computer

text: user

text: and

text: that

text: he

text: only

text: downloaded

text: child

text: pornography

text: inadvertently

text: In

text: support

text: of

text: a

text: distribution

text: enhancement

text: the

text: government

text: argued

text: that

text: Carani

text: received

text: a

text: thing

text: of

text: value

text: as

text: required

text: by

text: the

text: Sentencing

text: Guidelines

text: by

text: increasing

text: his

text: participation

text: level

text: which

text: improved

text: his

text: accessibility

text: to

text: other

text: users

text: files

text: and

text: that

text: Carani

text: s

text: actions

text: constituted

text: active

text: trading

text: in

text: contraband

text: materials

text: See

text: U

text: S

text: S

text: G

text: G

text: b

text: B

text: The

text: district

text: court

text: found

text: that

text: t

text: he

text: defendant

text: s

text: position

text: in

text: regard

text: to

text: whether

text: he

text: knew

text: he

text: possessed

text: child

text: pornography

text: is

text: simply

text: counter

text: to

text: the

text: credible

text: evidence

text: produced

text: at

text: trial

text: and

text: therefore

text: I

text: do

text: find

text: that

text: the

text: defendant

text: knowingly

text: obtained

text: child

text: pornography

text: on

text: his

text: computer

text: And

text: turning

text: now

text: to

text: the

text: first

text: guideline

text: issue

text: to

text: which

text: that

text: finding

text: pertains

text: I

text: do

text: find

text: that

text: the

text: defendant

text: knowingly

text: distributed

text: child

text: pornography

text: in

text: that

text: he

text: knowingly

text: made

text: his

text: child

text: pornography

text: on

text: his

text: computer

text: available

text: to

text: other

text: Kazaa

text: users

text: who

text: downloaded

text: it

text: from

text: his

text: computer

text: Mar

text: Tr

text: The

text: district

text: court

text: imposed

text: a

text: two

text: level

text: sentencing

text: enhancement

text: for

text: distribution

text: under

text: U

text: S

text: S

text: G

text: G

text: b

text: F

text: The

text: district

text: court

text: added

text: A

text: subsidiary

text: finding

text: implied

text: in

text: what

text: I

text: have

text: just

text: said

text: is

text: that

text: the

text: defendant

text: was

text: perfectly

text: aware

text: of

text: the

text: shared

text: files

text: folder

text: He

text: knew

text: what

text: was

text: in

text: it

text: he

text: accessed

text: it

text: and

text: his

text: denial

text: that

text: he

text: knew

text: what

text: was

text: in

text: there

text: is

text: simply

text: not

text: credible

text: Mar

text: Tr

text: The

text: district

text: court

text: sentenced

text: Carani

text: to

text: months

text: imprisonment

text: and

text: two

text: years

text: of

text: supervised

text: release

text: II

text: ANALYSIS

text: This

text: appeal

text: presents

text: three

text: issues

text: whether

text: the

text: district

text: court

text: abused

text: its

text: discretion

text: by

text: giving

text: the

text: deliberate

text: avoidance

text: ostrich

text: instruction

text: to

text: the

text: jury

text: whether

text: the

text: district

text: court

text: s

text: response

text: to

text: a

text: jury

text: question

text: was

text: in

text: error

text: and

text: whether

text: the

text: district

text: court

text: improperly

text: applied

text: a

text: sentencing

text: enhancement

text: for

text: the

text: distribution

text: of

text: child

text: pornography

text: A

text: Ostrich

text: Instruction

text: We

text: review

text: the

text: district

text: court

text: s

text: decision

text: to

text: give

text: an

text: ostrich

text: instruction

text: for

text: an

text: abuse

text: of

text: discretion

text: viewing

text: all

text: evidence

text: in

text: the

text: light

text: most

text: favorable

text: to

text: the

text: government

text: United

text: States

text: v

text: Leahy

text: F

text: d

text: th

text: Cir

text: United

text: States

text: v

text: Carrillo

text: F

text: d

text: th

text: Cir

text: citing

text: United

text: States

text: v

text: Fallon

text: F

text: d

text: th

text: Cir

text: An

text: ostrich

text: instruction

text: is

text: appropriate

text: where

text: the

text: defendant

text: claims

text: a

text: lack

text: of

text: guilty

text: knowledge

text: and

text: the

text: government

text: has

text: presented

text: evidence

text: sufficient

text: for

text: a

text: jury

text: to

text: conclude

text: that

text: the

text: defendant

text: deliberately

text: avoided

text: learning

text: the

text: truth

text: Carrillo

text: F

text: d

text: at

text: Deliberate

text: avoidance

text: is

text: more

text: than

text: mere

text: negligence

text: the

text: defendant

text: must

text: have

text: deliberately

text: avoided

text: acquiring

text: knowledge

text: of

text: the

text: crime

text: being

text: committed

text: by

text: cutting

text: off

text: his

text: curiosity

text: through

text: an

text: effort

text: of

text: the

text: will

text: Leahy

text: F

text: d

text: at

text: citing

text: Fallon

text: F

text: d

text: at

text: Deliberate

text: avoidance

text: is

text: not

text: a

text: standard

text: less

text: than

text: knowledge

text: it

text: is

text: simply

text: another

text: way

text: that

text: knowledge

text: may

text: be

text: proven

text: Carrillo

text: F

text: d

text: at

text: citing

text: United

text: States

text: v

text: Ramsey

text: F

text: d

text: th

text: Cir

text: The

text: purpose

text: of

text: the

text: ostrich

text: instruction

text: is

text: to

text: inform

text: the

text: jury

text: that

text: a

text: person

text: may

text: not

text: escape

text: criminal

text: liability

text: by

text: pleading

text: ignorance

text: if

text: he

text: knows

text: or

text: strongly

text: suspects

text: he

text: is

text: involved

text: in

text: criminal

text: dealings

text: but

text: deliberately

text: avoids

text: learning

text: more

text: exact

text: information

text: about

text: the

text: nature

text: or

text: extent

text: of

text: those

text: dealings

text: Carrillo

text: F

text: d

text: at

text: quoting

text: United

text: States

text: v

text: Craig

text: F

text: d

text: th

text: Cir

text: United

text: States

text: v

text: Rodriguez

text: F

text: d

text: th

text: Cir

text: Physical

text: acts

text: and

text: outward

text: expressions

text: by

text: the

text: defendant

text: evidencing

text: his

text: deliberate

text: avoidance

text: while

text: useful

text: are

text: not

text: necessary

text: for

text: a

text: jury

text: to

text: infer

text: that

text: the

text: defendant

text: was

text: curious

text: but

text: deliberately

text: ignored

text: his

text: suspicions

text: Carrillo

text: F

text: d

text: at

text: explaining

text: the

text: difference

text: between

text: avoidance

text: through

text: overt

text: physical

text: acts

text: and

text: purely

text: psychological

text: avoidance

text: The

text: circumstances

text: surrounding

text: the

text: defendant

text: may

text: be

text: sufficient

text: to

text: infer

text: that

text: given

text: what

text: the

text: defendant

text: knew

text: he

text: must

text: have

text: forced

text: his

text: suspicions

text: aside

text: and

text: deliberately

text: avoided

text: confirming

text: for

text: himself

text: that

text: he

text: was

text: engaged

text: in

text: criminal

text: activity

text: Id

text: at

text: citing

text: United

text: States

text: v

text: Carrillo

text: F

text: d

text: th

text: Cir

text: United

text: States

text: v

text: Farouil

text: F

text: d

text: th

text: Cir

text: United

text: States

text: v

text: Stone

text: F

text: d

text: th

text: Cir

text: Rodriguez

text: F

text: d

text: at

text: United

text: States

text: v

text: Caliendo

text: F

text: d

text: th

text: Cir

text: United

text: States

text: v

text: Josefik

text: F

text: d

text: th

text: Cir

text: United

text: States

text: v

text: Burns

text: F

text: d

text: th

text: Cir

text: The

text: crux

text: of

text: Carani

text: s

text: argument

text: at

text: trial

text: was

text: that

text: any

text: child

text: pornography

text: videos

text: he

text: may

text: have

text: downloaded

text: to

text: his

text: computer

text: were

text: downloaded

text: solely

text: through

text: inadvertence

text: In

text: addition

text: to

text: direct

text: evidence

text: that

text: Carani

text: in

text: fact

text: intended

text: to

text: download

text: child

text: pornography

text: such

text: as

text: statements

text: he

text: made

text: to

text: agents

text: at

text: the

text: Highland

text: Park

text: Police

text: Station

text: the

text: government

text: also

text: presented

text: evidence

text: from

text: which

text: a

text: jury

text: could

text: infer

text: that

text: Carani

text: deliberately

text: avoided

text: confirming

text: that

text: certain

text: files

text: were

text: in

text: fact

text: child

text: pornography

text: Government

text: witnesses

text: testified

text: that

text: many

text: files

text: that

text: were

text: or

text: had

text: once

text: been

text: on

text: Carani

text: s

text: computer

text: had

text: words

text: associated

text: with

text: child

text: pornography

text: in

text: the

text: file

text: names

text: Those

text: file

text: names

text: in

text: addition

text: to

text: file

text: descriptions

text: and

text: keyword

text: listings

text: would

text: have

text: been

text: displayed

text: in

text: the

text: Kazaa

text: search

text: listings

text: when

text: Carani

text: downloaded

text: them

text: These

text: words

text: indicating

text: that

text: the

text: files

text: contained

text: child

text: pornography

text: were

text: quite

text: literally

text: right

text: in

text: front

text: of

text: his

text: face

text: Thousands

text: upon

text: thousands

text: of

text: references

text: to

text: child

text: pornography

text: were

text: found

text: on

text: Carani

text: s

text: computer

text: and

text: evidence

text: such

text: as

text: the

text: hack

text: used

text: to

text: boost

text: his

text: participation

text: level

text: suggests

text: that

text: Carani

text: was

text: not

text: so

text: bungling

text: a

text: computer

text: user

text: as

text: he

text: suggested

text: The

text: government

text: presented

text: evidence

text: sufficient

text: for

text: the

text: jury

text: to

text: infer

text: that

text: Carani

text: suspected

text: that

text: files

text: he

text: was

text: downloading

text: and

text: sharing

text: with

text: others

text: contained

text: child

text: pornography

text: but

text: deliberately

text: pushed

text: those

text: suspicions

text: aside

text: in

text: order

text: to

text: avoid

text: confirming

text: his

text: criminal

text: activities

text: The

text: district

text: court

text: did

text: not

text: abuse

text: its

text: discretion

text: by

text: giving

text: the

text: ostrich

text: instruction

text: to

text: the

text: jury

text: B

text: Response

text: to

text: Jury

text: Question

text: We

text: review

text: a

text: decision

text: to

text: answer

text: a

text: question

text: from

text: the

text: jury

text: as

text: well

text: as

text: the

text: language

text: used

text: in

text: the

text: response

text: for

text: an

text: abuse

text: of

text: discretion

text: United

text: States

text: v

text: Hewlett

text: F

text: d

text: th

text: Cir

text: citing

text: United

text: States

text: v

text: Young

text: F

text: d

text: th

text: Cir

text: T

text: he

text: district

text: court

text: retains

text: broad

text: discretion

text: in

text: deciding

text: how

text: to

text: respond

text: to

text: a

text: question

text: propounded

text: from

text: the

text: jury

text: and

text: the

text: court

text: has

text: an

text: obligation

text: to

text: dispel

text: any

text: confusion

text: quickly

text: and

text: with

text: concrete

text: accuracy

text: United

text: States

text: v

text: Sims

text: F

text: d

text: th

text: Cir

text: When

text: reviewing

text: the

text: language

text: of

text: a

text: supplemental

text: jury

text: instruction

text: we

text: consider

text: three

text: factors

text: whether

text: the

text: instructions

text: as

text: a

text: whole

text: fairly

text: and

text: adequately

text: treat

text: the

text: issues

text: whether

text: the

text: supplemental

text: instruction

text: is

text: a

text: correct

text: statement

text: of

text: the

text: law

text: and

text: whether

text: the

text: district

text: court

text: answered

text: the

text: jury

text: s

text: questions

text: specifically

text: United

text: States

text: v

text: Danford

text: F

text: d

text: th

text: Cir

text: citing

text: Sims

text: F

text: d

text: at

text: Young

text: F

text: d

text: at

text: An

text: error

text: in

text: a

text: supplemental

text: instruction

text: is

text: only

text: reversible

text: if

text: the

text: defendant

text: has

text: been

text: prejudiced

text: See

text: Young

text: F

text: d

text: at

text: Carani

text: argues

text: that

text: in

text: answering

text: the

text: jury

text: s

text: question

text: about

text: possession

text: the

text: district

text: court

text: impermissibly

text: lowered

text: the

text: burden

text: of

text: proof

text: with

text: respect

text: to

text: knowledge

text: by

text: including

text: the

text: language

text: knew

text: or

text: strongly

text: suspected

text: Given

text: the

text: jury

text: s

text: confusion

text: on

text: such

text: a

text: critical

text: aspect

text: of

text: the

text: instructions

text: the

text: district

text: court

text: was

text: within

text: its

text: discretion

text: to

text: provide

text: the

text: jury

text: with

text: an

text: answer

text: See

text: Sims

text: F

text: d

text: at

text: Having

text: concluded

text: that

text: the

text: district

text: court

text: did

text: not

text: abuse

text: its

text: discretion

text: by

text: providing

text: a

text: supplemental

text: instruction

text: we

text: must

text: next

text: evaluate

text: the

text: language

text: used

text: in

text: that

text: instruction

text: under

text: the

text: three

text: factor

text: rubric

text: See

text: Danford

text: F

text: d

text: at

text: The

text: first

text: and

text: third

text: factors

text: are

text: easily

text: satisfied

text: The

text: district

text: court

text: provided

text: a

text: thorough

text: explanation

text: that

text: was

text: specifically

text: targeted

text: at

text: the

text: jury

text: s

text: question

text: regarding

text: whether

text: the

text: defendant

text: possessed

text: child

text: pornography

text: if

text: he

text: discarded

text: it

text: after

text: he

text: watched

text: it

text: The

text: second

text: factor

text: whether

text: the

text: instruction

text: accurately

text: stated

text: the

text: law

text: deserves

text: more

text: discussion

text: The

text: district

text: court

text: s

text: supplemental

text: instruction

text: indicated

text: that

text: Carani

text: could

text: only

text: be

text: guilty

text: of

text: possession

text: if

text: at

text: the

text: time

text: he

text: downloaded

text: material

text: the

text: defendant

text: knew

text: or

text: strongly

text: suspected

text: that

text: it

text: was

text: child

text: pornography

text: and

text: downloaded

text: it

text: anyway

text: This

text: definition

text: of

text: possession

text: is

text: surely

text: too

text: narrow

text: Suppose

text: that

text: unbeknownst

text: to

text: an

text: individual

text: a

text: stranger

text: on

text: the

text: street

text: mistakenly

text: slips

text: a

text: bag

text: of

text: marijuana

text: into

text: his

text: pocket

text: Moments

text: later

text: he

text: is

text: arrested

text: on

text: an

text: outstanding

text: warrant

text: and

text: the

text: officer

text: discovers

text: the

text: marijuana

text: He

text: is

text: not

text: guilty

text: of

text: the

text: possession

text: of

text: marijuana

text: because

text: he

text: does

text: not

text: have

text: the

text: requisite

text: knowledge

text: But

text: suppose

text: that

text: before

text: he

text: is

text: arrested

text: on

text: the

text: outstanding

text: warrant

text: he

text: discovers

text: the

text: marijuana

text: and

text: decides

text: to

text: keep

text: it

text: Then

text: despite

text: the

text: fact

text: that

text: he

text: did

text: not

text: know

text: about

text: the

text: marijuana

text: at

text: the

text: time

text: that

text: it

text: was

text: put

text: in

text: his

text: pocket

text: he

text: would

text: have

text: all

text: of

text: the

text: knowledge

text: required

text: to

text: be

text: guilty

text: of

text: possession

text: United

text: States

text: v

text: Myers

text: F

text: d

text: th

text: Cir

text: see

text: United

text: States

text: v

text: X

text: Citement

text: Video

text: Inc

text: U

text: S

text: S

text: Ct

text: L

text: Ed

text: d

text: United

text: States

text: v

text: Hall

text: F

text: d

text: th

text: Cir

text: explaining

text: that

text: if

text: a

text: defendant

text: had

text: the

text: opportunity

text: to

text: delete

text: child

text: pornography

text: files

text: on

text: his

text: computer

text: but

text: chose

text: not

text: to

text: the

text: requirements

text: of

text: possession

text: have

text: been

text: met

text: It

text: is

text: this

text: second

text: scenario

text: that

text: the

text: district

text: court

text: s

text: instructions

text: did

text: not

text: take

text: into

text: account

text: A

text: possessor

text: of

text: child

text: pornography

text: videos

text: need

text: not

text: know

text: that

text: it

text: is

text: such

text: at

text: the

text: time

text: of

text: download

text: so

text: long

text: as

text: he

text: discovers

text: that

text: it

text: is

text: child

text: pornography

text: after

text: the

text: download

text: and

text: decides

text: to

text: keep

text: it

text: anyway

text: The

text: district

text: court

text: s

text: instruction

text: on

text: possession

text: crafted

text: too

text: narrow

text: a

text: definition

text: of

text: possession

text: by

text: requiring

text: knowledge

text: at

text: the

text: time

text: of

text: download

text: Thus

text: the

text: instruction

text: could

text: not

text: have

text: harmed

text: Carani

text: If

text: anything

text: Carani

text: benefited

text: from

text: giving

text: it

text: In

text: effect

text: the

text: jury

text: was

text: told

text: not

text: to

text: find

text: Carani

text: guilty

text: of

text: possession

text: if

text: he

text: inadvertently

text: acquired

text: child

text: pornography

text: and

text: subsequently

text: made

text: a

text: conscious

text: decision

text: to

text: keep

text: it

text: The

text: error

text: in

text: the

text: supplemental

text: instruction

text: was

text: harmless

text: to

text: Carani

text: Additionally

text: the

text: use

text: of

text: the

text: term

text: strongly

text: suspected

text: in

text: the

text: supplemental

text: instruction

text: was

text: proper

text: given

text: our

text: analysis

text: of

text: the

text: ostrich

text: instruction

text: C

text: Distribution

text: Enhancement

text: We

text: review

text: the

text: district

text: court

text: s

text: interpretation

text: and

text: application

text: of

text: the

text: Sentencing

text: Guidelines

text: de

text: novo

text: and

text: its

text: findings

text: of

text: fact

text: for

text: clear

text: error

text: United

text: States

text: v

text: Fife

text: F

text: d

text: th

text: Cir

text: citing

text: United

text: States

text: v

text: Ellis

text: F

text: d

text: th

text: Cir

text: A

text: finding

text: of

text: fact

text: is

text: clearly

text: erroneous

text: only

text: if

text: based

text: upon

text: the

text: entire

text: record

text: we

text: are

text: left

text: with

text: the

text: definite

text: and

text: firm

text: conviction

text: that

text: a

text: mistake

text: has

text: been

text: committed

text: United

text: States

text: v

text: Chamness

text: F

text: d

text: th

text: Cir

text: citations

text: and

text: quotations

text: omitted

text: Under

text: U

text: S

text: S

text: G

text: G

text: a

text: the

text: base

text: offense

text: level

text: for

text: possession

text: of

text: child

text: pornography

text: in

text: violation

text: of

text: U

text: S

text: C

text: A

text: a

text: is

text: eighteen

text: The

text: government

text: requested

text: a

text: five

text: level

text: enhancement

text: under

text: U

text: S

text: S

text: G

text: G

text: b

text: B

text: for

text: the

text: d

text: istribution

text: of

text: child

text: pornography

text: for

text: the

text: receipt

text: or

text: expectation

text: of

text: receipt

text: of

text: a

text: thing

text: of

text: value

text: but

text: not

text: for

text: pecuniary

text: gain

text: The

text: district

text: court

text: instead

text: applied

text: a

text: two

text: level

text: enhancement

text: under

text: U

text: S

text: S

text: G

text: G

text: b

text: F

text: for

text: d

text: istribution

text: other

text: than

text: distribution

text: described

text: in

text: subdivisions

text: A

text: through

text: E

text: The

text: district

text: court

text: applied

text: a

text: number

text: of

text: other

text: enhancements

text: that

text: Carani

text: does

text: not

text: take

text: issue

text: with

text: bringing

text: his

text: total

text: offense

text: level

text: to

text: thirty

text: five

text: This

text: yields

text: an

text: advisory

text: guidelines

text: range

text: of

text: months

text: The

text: statutory

text: maximum

text: however

text: is

text: ten

text: years

text: months

text: U

text: S

text: C

text: A

text: b

text: Thus

text: the

text: guidelines

text: provide

text: for

text: a

text: sentence

text: of

text: months

text: After

text: considering

text: the

text: sentencing

text: factors

text: in

text: U

text: S

text: C

text: a

text: the

text: district

text: court

text: sentenced

text: Carani

text: to

text: seventy

text: two

text: months

text: imprisonment

text: followed

text: by

text: two

text: years

text: supervised

text: release

text: Carani

text: makes

text: two

text: arguments

text: with

text: respect

text: to

text: the

text: distribution

text: enhancement

text: that

text: there

text: was

text: insufficient

text: evidence

text: that

text: he

text: distributed

text: child

text: pornography

text: and

text: that

text: if

text: he

text: distributed

text: child

text: pornography

text: he

text: did

text: not

text: do

text: so

text: for

text: the

text: receipt

text: of

text: a

text: thing

text: of

text: value

text: This

text: court

text: has

text: not

text: previously

text: considered

text: the

text: exact

text: contours

text: of

text: what

text: constitutes

text: distribution

text: in

text: the

text: context

text: of

text: the

text: Kazaa

text: peer

text: to

text: peer

text: file

text: sharing

text: program

text: The

text: Tenth

text: Circuit

text: however

text: recently

text: held

text: that

text: allowing

text: others

text: to

text: access

text: one

text: s

text: files

text: through

text: Kazaa

text: is

text: distribution

text: United

text: States

text: v

text: Shaffer

text: F

text: d

text: th

text: Cir

text: The

text: appellant

text: in

text: Shaffer

text: who

text: was

text: convicted

text: of

text: distributing

text: child

text: pornography

text: argued

text: that

text: knowing

text: that

text: others

text: were

text: accessing

text: and

text: downloading

text: the

text: files

text: on

text: his

text: computer

text: through

text: Kazaa

text: did

text: not

text: amount

text: to

text: distribution

text: Id

text: at

text: Rather

text: he

text: argued

text: an

text: affirmative

text: act

text: must

text: be

text: taken

text: by

text: the

text: distributor

text: for

text: each

text: file

text: at

text: the

text: time

text: of

text: distribution

text: Id

text: The

text: Tenth

text: Circuit

text: rejected

text: this

text: argument

text: likening

text: distribution

text: through

text: Kazaa

text: to

text: the

text: operation

text: of

text: a

text: self

text: serve

text: gas

text: station

text: The

text: owner

text: may

text: not

text: be

text: present

text: at

text: the

text: station

text: and

text: there

text: may

text: be

text: no

text: attendant

text: present

text: at

text: all

text: And

text: neither

text: the

text: owner

text: nor

text: his

text: or

text: her

text: agents

text: may

text: ever

text: pump

text: gas

text: But

text: the

text: owner

text: has

text: a

text: roadside

text: sign

text: letting

text: all

text: passerby

text: know

text: that

text: if

text: they

text: choose

text: they

text: can

text: stop

text: and

text: fill

text: their

text: cars

text: for

text: themselves

text: paying

text: at

text: the

text: pump

text: by

text: credit

text: card

text: Id

text: at

text: The

text: notion

text: that

text: Carani

text: could

text: knowingly

text: make

text: his

text: child

text: pornography

text: available

text: for

text: others

text: to

text: access

text: and

text: download

text: without

text: this

text: qualifying

text: as

text: distribution

text: does

text: not

text: square

text: with

text: the

text: plain

text: meaning

text: of

text: the

text: word

text: Indeed

text: this

text: court

text: rejected

text: a

text: similar

text: argument

text: in

text: United

text: States

text: v

text: Gunderson

text: where

text: the

text: defendant

text: had

text: programmed

text: his

text: computer

text: to

text: allow

text: others

text: to

text: access

text: his

text: files

text: if

text: they

text: first

text: uploaded

text: files

text: to

text: his

text: computer

text: F

text: d

text: th

text: Cir

text: Once

text: the

text: program

text: was

text: written

text: it

text: required

text: no

text: action

text: by

text: Gunderson

text: to

text: allow

text: others

text: to

text: download

text: his

text: files

text: Id

text: We

text: described

text: the

text: passive

text: nature

text: of

text: the

text: program

text: as

text: irrelevant

text: to

text: whether

text: a

text: distribution

text: enhancement

text: was

text: appropriate

text: Id

text: Such

text: is

text: the

text: case

text: here

text: The

text: district

text: court

text: specifically

text: found

text: that

text: Carani

text: made

text: his

text: child

text: pornography

text: videos

text: available

text: through

text: Kazaa

text: and

text: that

text: he

text: knew

text: other

text: users

text: were

text: downloading

text: these

text: files

text: from

text: him

text: This

text: finding

text: was

text: not

text: clearly

text: erroneous

text: Carani

text: s

text: second

text: argument

text: that

text: the

text: distribution

text: enhancement

text: was

text: not

text: appropriate

text: because

text: he

text: did

text: not

text: receive

text: a

text: thing

text: of

text: value

text: in

text: return

text: misstates

text: the

text: record

text: and

text: is

text: a

text: nonstarter

text: At

text: sentencing

text: the

text: government

text: argued

text: for

text: a

text: five

text: level

text: enhancement

text: under

text: U

text: S

text: S

text: G

text: G

text: b

text: B

text: which

text: would

text: require

text: that

text: Carani

text: received

text: something

text: of

text: value

text: in

text: return

text: for

text: the

text: child

text: pornography

text: that

text: he

text: distributed

text: In

text: his

text: opening

text: brief

text: Carani

text: states

text: The

text: court

text: erred

text: by

text: applying

text: the

text: five

text: level

text: sentencing

text: enhancement

text: under

text: U

text: S

text: S

text: G

text: G

text: b

text: B

text: The

text: record

text: clearly

text: shows

text: that

text: the

text: district

text: court

text: made

text: no

text: such

text: enhancement

text: The

text: district

text: court

text: applied

text: a

text: two

text: point

text: enhancement

text: under

text: U

text: S

text: S

text: G

text: G

text: b

text: F

text: which

text: does

text: not

text: require

text: that

text: Carani

text: received

text: anything

text: in

text: return

text: for

text: the

text: child

text: pornography

text: he

text: distributed

text: Thus

text: there

text: is

text: no

text: factual

text: basis

text: for

text: this

text: argument

text: III

text: CONCLUSION

text: For

text: the

text: foregoing

text: reasons

text: Fabio

text: Carani

text: s

text: conviction

text: and

text: sentence

text: are

text: AFFIRMED