United States v. Silva , 794 F.3d 173 ( 2015 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 14-1764
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    GERALD J. SILVA,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF RHODE ISLAND
    [Hon. William E. Smith, Chief U.S. District Judge]
    Before
    Lynch, Kayatta, and Barron,
    Circuit Judges.
    Robert B. Mann, with whom Mann and Mitchell was on brief, for
    appellant.
    Donald C. Lockhart, Assistant United States Attorney, with
    whom Peter F. Neronha, United States Attorney, was on brief, for
    appellee.
    July 20, 2015
    BARRON, Circuit Judge.         Gerald Silva raises a number of
    challenges to his convictions for receipt and possession of child
    pornography, in violation of 
    18 U.S.C. § 2252
    (a)(2) and (4). Silva
    first contends that the child pornography statutes under which he
    was charged were unconstitutionally vague.             He then argues that
    the   District   Court    should   have    dismissed   one    count   of   the
    indictment for which, he contends, there was no evidence submitted
    to the grand jury.       He also argues that the District Court abused
    its discretion in barring the testimony of Silva's proposed expert
    witness and in instructing the jury.           And finally, Silva argues
    that the District Court wrongly denied his motion for a judgment
    of acquittal under Federal Rule of Criminal Procedure 29.             We find
    no merit to any of these challenges and therefore affirm the
    conviction.
    I.
    According to evidence offered at trial, this case arises
    from an investigation by Canadian police who, in cooperation with
    law enforcement in the United States, were investigating a company,
    Azov Films, due to its alleged production and distribution of
    materials featuring nude, young boys.           Azov operated a website
    that offered a variety of materials, including some films produced
    by other companies and some Azov-produced films.             A United States
    postal inspector testified at trial that there had been citizen
    - 2 -
    complaints "in which people stated that they were selling child
    pornography on the website."
    On May 1, 2011, Canadian authorities executed a search
    warrant on Azov's Toronto premises and shut down the website.
    Canadian law enforcement seized business records -- including
    customer purchase and shipping information -- and passed the
    records along to the United States Postal Inspection Service.     The
    records listed Gerald Silva as a customer and showed that he placed
    twenty-two orders between October 2010 and April 2011 and bought
    seventy-five items, eleven of which are listed in the indictment.
    Silva was charged with six counts of receipt of child
    pornography in violation of 
    18 U.S.C. § 2252
    (a)(2) and with one
    count of possession of child pornography in violation of 
    18 U.S.C. § 2252
    (a)(4).    Silva was found guilty on all counts after a jury
    trial in the District of Rhode Island.     He was sentenced to a 72-
    month term of imprisonment.    He now appeals.
    II.
    We begin with Silva's challenge to the constitutionality
    of the statute.    The statutory provisions under which Silva was
    charged   both    define   child     pornography    as   "any   visual
    depiction . . . if -- (A) the producing of such visual depiction
    involves the use of a minor engaging in sexually explicit conduct;
    and (B) such visual depiction is of such conduct."          
    18 U.S.C. § 2252
    (a)(2); see also 
    id.
     § 2252(a)(4).           The statute cross-
    - 3 -
    referenced by these measures defines "sexually explicit conduct"
    to include the "lascivious exhibition of the genitals or pubic
    area of any person."     Id. § 2256(2)(A)(v).1
    Silva contends that "lascivious exhibition" is too vague
    to provide notice of what depictions fall within the definition of
    child pornography and to provide standards for law enforcement to
    prevent the arbitrary enforcement of the statute. He therefore
    contends that his convictions under the statutes violate his Fifth
    Amendment due process rights, a challenge we review de novo.
    United States v. Zhen Zhou Wu, 
    711 F.3d 1
    , 11-12 (1st Cir. 2013).
    The Supreme Court in United States v. X-Citement Video,
    Inc., 
    513 U.S. 64
     (1994), however, rejected a constitutional
    vagueness challenge to the same definitional provision of the
    statute.   The Court described the vagueness claim raised by the
    defendants as "insubstantial," and adopted the reasoning of the
    Ninth Circuit.   
    Id. at 78-79
    .     The Court of Appeals had found that
    "'[l]ascivious' [was] no different in its meaning than 'lewd,' a
    commonsensical    term     whose     constitutionality   [had   been]
    specifically upheld in" the Supreme Court's prior precedents.
    1 The full text of the definition in 
    18 U.S.C. § 2256
    (2)(A)
    provides:
    "[S]exually explicit conduct" means actual or
    simulated -- (i) sexual intercourse . . .;
    (ii) bestiality; (iii) masturbation; (iv)
    sadistic   or  masochistic   abuse;   or   (v)
    lascivious exhibition of the genitals or pubic
    area of any person; . . . .
    - 4 -
    United States v. X-Citement Video, Inc., 
    982 F.2d 1285
    , 1288 (9th
    Cir. 1992) (citing Miller v. California, 
    413 U.S. 15
     (1973), and
    New York v. Ferber, 
    458 U.S. 747
     (1982)); see also United States
    v. Frabizio, 
    459 F.3d 80
    , 85 (1st Cir. 2006) ("The courts are also
    in agreement that the term 'lascivious' is sufficiently well
    defined to provide . . . notice of what is permissible and what is
    impermissible.").    Silva's constitutional due process challenge is
    thus without merit.
    III.
    Silva next challenges the District Court's denial of his
    motion to dismiss count seven of the indictment, which charged
    Silva with knowing possession of child pornography under 
    18 U.S.C. § 2252
    (a)(4).    Silva contends the grand jury heard no evidence to
    support count seven and thus that the District Court erred in
    denying his pretrial motion to dismiss it. But see Kaley v. United
    States, 
    134 S. Ct. 1090
    , 1098 (2014) ("The grand jury gets to say
    -- without any review, oversight, or second-guessing -- whether
    probable cause exists to think that a person committed a crime.");
    Costello v. United States, 
    350 U.S. 359
    , 363-64 (1956).     But the
    grand jury clearly heard evidence to support count seven as it was
    written in the indictment and thus the argument Silva makes is
    without foundation.2
    2   Count seven of the indictment stated:
    - 5 -
    That is so even though Silva contends that there was no
    evidence to support count seven as it was framed in a subsequently
    furnished bill of particulars.   That bill of particulars, which
    the government provided Silva in response to his motion requesting
    that it do so, did identify three specific films that would be
    used as evidence for count seven at trial, while the count set
    forth in the indictment itself was not limited to any particular
    films.   But the bill of particulars is not the indictment, and
    thus the specificity of the bill of particulars does not change
    the fact that the government supplied the grand jury with evidence
    to support count seven of the indictment as it was stated.    See
    Roberts v. United States, 
    752 A.2d 583
    , 592 (D.C. 2000) ("Although
    the specific details of the carnal knowledge incident specified in
    the bill of particulars had not been individually presented to the
    grand jury, that body heard ample evidence of the entire series of
    events of which that incident was a part.").   The District Court
    From in or about April 2010 to on or about
    September 27, 2012, in the District of Rhode
    Island and elsewhere, the defendant, GERALD J.
    SILVA, did knowingly possess one or more
    matters which contained a visual depiction of
    sexually explicit conduct, the production of
    which involved the use of a minor engaging in
    sexually explicit conduct, that had been
    transported in interstate and foreign commerce
    and which was produced using materials which
    had been transported in interstate and foreign
    commerce. All in violation of 
    18 U.S.C. §2252
    (a)(4).
    - 6 -
    therefore properly rejected Silva's challenge to the sufficiency
    of the evidence before the grand jury.                See United States v.
    Capozzi, 
    486 F.3d 711
    , 727 (1st Cir. 2007).
    IV.
    Silva also argues that the District Court erred in
    preventing    the   testimony    of    the    defendant's     proposed   expert
    witness.     We review this ruling for abuse of discretion.              United
    States v. Tetioukhine, 
    725 F.3d 1
    , 6 (1st Cir. 2013).
    Silva offered Professor John Leo, a retired Professor of
    English from the University of Rhode Island, as an expert under
    Federal Rule of Evidence 702.           The District Court conducted an
    evidentiary     hearing   on    the   matter,    at   which    Professor    Leo
    testified.     The District Court then declined to permit Professor
    Leo to appear as an expert witness.
    Silva argues that the District Court erred in excluding
    Professor Leo’s testimony because Silva asserts it "would have
    helped the jury understand the pictures" because Professor Leo's
    "technical    understanding     of    film"   would   have    "enhance[d]   the
    [jury's] understanding of the videos in question in this case."
    In particular, Silva contends that Professor Leo was expected to
    testify to his opinion that the settings for the films were
    generally not sexually suggestive, and that the poses and conduct
    of the children were not suggestive.
    - 7 -
    The District Court has discretion, however, to evaluate
    whether an expert witness will provide helpful testimony in this
    context.    See Frabizio, 
    459 F.3d at
    85 & n.8 ("[W]hether a given
    depiction is lascivious is a question of fact for the jury" and
    "expert testimony is not required on the subject."); United States
    v. Arvin, 
    900 F.2d 1385
    , 1390 (9th Cir. 1990) ("Because the jury
    was fully capable of making its own determination on the issue of
    'lasciviousness,' the district court did not abuse its discretion
    in excluding the expert testimony."); cf. Hamling v. United States,
    
    418 U.S. 87
    , 100 (1974) ("Expert testimony is not necessary to
    enable the jury to judge the obscenity of material which, as here,
    has been placed into evidence.").      And here we see no error in the
    District    Court's   reasonable   assessment    and   exclusion   of    the
    proposed expert testimony.     See Arvin, 
    900 F.2d at 1390
    .
    The   District   Court   evaluated    the    testimony      that
    Professor Leo expected to offer and considered "the reliability
    and helpfulness of the proposed expert testimony, the importance
    and the quality of the eyewitness evidence it addresses, and any
    threat of confusion, misleading of the jury, or unnecessary delay."
    United States v. Rodríguez-Berríos, 
    573 F.3d 55
    , 71 (1st Cir.
    2009).     The District Court then supportably found that Professor
    Leo did not purport to "know any of the purposes or reasons why a
    purchaser would purchase these videos," that he "did not express
    any expertise that would allow him to help the jury on the why or
    - 8 -
    the intent of the producer," and that he did not "appear to have
    any opinions about" European film, nudity, or nudism.          And as to
    the points that Silva expected Professor Leo to make in his trial
    testimony, the District Court reasonably concluded that the jurors
    could reach their own conclusions about the contents of the films
    from their own viewing.     See United States v. Mehanna, 
    735 F.3d 32
    , 67 (1st Cir. 2013) ("It is common ground that a trial court
    may bar expert testimony if that testimony will not assist the
    jury to sort out contested issues.").
    Nor did the District Court err in preventing Professor
    Leo from testifying as a summary witness under Federal Rule of
    Evidence 1006, which permits summaries "to prove the content of
    voluminous writings, recordings, or photographs that cannot be
    conveniently examined in court."     See United States v. Casas, 
    356 F.3d 104
    , 119 (1st Cir. 2004) (applying Fed. R. Evid. 1006 to a
    summary witness). Here, too, we review for an abuse of discretion.
    See Tetioukhine, 725 F.3d at 6.     The record supports the District
    Court's conclusion that Professor Leo -- in his testimony at the
    evidentiary   hearing   conducted   to   determine   whether   he   could
    testify -- "was rambling and unfocused, talking about one video
    and another video, and he was all over the place."        The District
    Court was thus well within its discretion in rejecting a proposed
    summary witness who had demonstrated his inability to provide the
    - 9 -
    concise review of the evidence that the rule is written to allow
    to aid the jury.
    V.
    Silva next argues that the district court erred in
    instructing the jury.   Silva objects to two instructions on the
    ground that each was unfairly prejudicial, a challenge we review
    for abuse of discretion.   United States v. Sasso, 
    695 F.3d 25
    , 29
    (1st Cir. 2012).
    First Silva objects to the District Court's instruction
    that "[i]f the Defendant incorrectly believed what does and does
    not constitute child pornography, that does not relieve him of
    responsibility as long as the Government has proven the elements
    that I've outlined above."   Silva argues that the instruction was
    prejudicial because he contends that the instruction functioned as
    a "comment on the testimony of the defendant" and that "the effect
    of the contested instruction was to inappropriately focus on the
    defendant's belief, when the real issue was whether the government
    had proved the defendant's knowledge."3
    3 To the extent Silva argues that the instruction improperly
    "diminishe[d] the Government's burden with respect to proving
    knowledge," he is wrong. In order to prove the "knowing" element
    of the child pornography statutes, "[t]he defendant must believe
    that the picture contains certain material, and that material in
    fact (and not merely in his estimation) must meet the statutory
    definition." United States v. Williams, 
    553 U.S. 285
    , 301 (2008);
    United States v. Knox, 
    32 F.3d 733
    , 754 (3d Cir. 1992) ("[T]o
    fulfill the knowledge element of § 2252, a defendant simply must
    be aware of the general nature and character of the material and
    - 10 -
    We disagree.    "When an instruction is pertinent to the
    issues submitted to the jury and constitutes an accurate statement
    of the law, it is hard to imagine any basis for a claim of error."
    United States v. Nascimento, 
    491 F.3d 25
    , 34 (1st Cir. 2007).              And
    here, the District Court delivered the instruction to clarify what
    the government had to prove about the defendant's knowledge in the
    face of Silva's assertions in testimony that the materials were
    not child pornography.        See 
    id.
     ("We see no realistic possibility
    that   [the    instruction]     [was]    a   source   of    juror   confusion.
    Consequently, the district court did not abuse its discretion in
    charging the jury as it did.").
    Silva also objects to the District Court's instruction
    that the jury should consider "whether the witness had anything to
    gain or lose from the outcome of this case. In other words, was
    the witness totally impartial, or did the witness have some stake
    in the outcome or some reason to favor one side or the other."
    Silva contends that this instruction must have been referring to
    him, even though it was phrased in general terms, because he was
    the only person with an interest in the case.              He thus argues the
    instruction      functioned    as   an   impermissible      comment   on   his
    credibility.      See United States v. Dwyer, 
    843 F.2d 60
    , 63 (1st
    need not know that the portrayals are illegal."). The challenged
    instruction correctly articulated this principle.
    - 11 -
    Cir. 1988) ("A charge containing denigrating implications should
    not be given unless it serves some useful purpose or need.").
    Silva      does   not    explain,    however,      how    the    District
    Court's instruction to consider witness credibility generally --
    phrased neutrally and without reference to the defendant -- could
    be taken as a comment as to his lack of credibility.                     Instead, as
    the government notes, law enforcement agents also might have an
    interest     in    the     successful     outcome      of   a     case      they   have
    investigated.          The instruction thus simply served to remind the
    jury    of   its       responsibility     to    evaluate    and    assess      witness
    credibility, see United States v. Maguire, 
    918 F.2d 254
    , 269 (1st
    Cir. 1990) (approving instructions in which the district court
    "repeatedly emphasized that the final resolution of the issues
    rested with the jury and that it had the sole responsibility for
    determining the credibility of the witnesses and finding the
    facts"), and so the District Court did not abuse its discretion by
    issuing it.
    VI.
    Silva also argues that the District Court erred in
    denying his motion for a judgment of acquittal because there was
    insufficient evidence to support the convictions.                     We review this
    preserved challenge de novo, viewing the evidence in the light
    most favorable to the government to determine whether the evidence
    would   allow      a    rational     factfinder   to   conclude       the    defendant
    - 12 -
    committed the charged crime beyond a reasonable doubt.                         United
    States v. Almeida, 
    748 F.3d 41
    , 52 (1st Cir. 2014).
    Silva moved for a judgment of acquittal at the conclusion
    of the government's case, and renewed his motion at the conclusion
    of all the evidence.       He presented two arguments.             As to all counts
    he argued that the government did not prove that the images were
    child pornography.         As to the first six counts, for receipt of
    child pornography under 
    18 U.S.C. § 2252
    (a)(2), he argued that the
    government    did    not   prove    that        he   "knowingly    received"    child
    pornography.       The District Court denied the motion.                 Silva now
    challenges    that    ruling,      and    we     consider   each    aspect   of   his
    challenge to the sufficiency of the evidence in turn.
    A.
    Silva argues first that while the question "whether a
    given depiction is lascivious is a question of fact for the jury,"
    Frabizio, 
    459 F.3d at 85
    , the government failed to provide enough
    evidence to prove beyond a reasonable doubt that the materials
    covered by the seven counts depicted the "lascivious exhibition of
    genitals" as defined in 
    18 U.S.C. § 2256
    .                   Silva argues that the
    "depictions take place in a variety of settings," and that "mostly,
    the   boys   are    playing."       Though        Silva   acknowledges   that     the
    depictions are of boys who are "unquestionably nude," he suggests
    that "the films might be better viewed as a paean to naturalism
    and nudism."         Silva thus argues that there was insufficient
    - 13 -
    evidence   to   show   that   the    depictions   met    the   standard    of
    lasciviousness.
    The problem for Silva is that, even though he contends
    that the films "might be better viewed as a paean to naturalism
    and nudism," a rational juror could reach a different conclusion
    based on the evidence presented at trial.           See United States v.
    Wilder, 
    526 F.3d 1
    , 12 (1st Cir. 2008) ("The question for our
    determination on appellate review . . . is whether a reasonable
    jury could have reached the conclusion that the images were of
    sexually explicit conduct.").         After all, the jury watched the
    footage of the films, and the jurors were entitled to evaluate and
    determine whether the films involved the "lascivious exhibition of
    genitals" based upon the images they saw.         See Frabizio, 
    459 F.3d at 85
     ("[W]hether the item to be judged is lewd, lascivious, or
    obscene is a determination that lay persons can and should make.
    . . . In making this determination, the standard to be applied by
    the jury is the statutory standard. The statutory standard needs
    no adornment." (internal quotation marks and citation omitted)).
    We   have   previously     explained   that   lascivious   is   a
    "commonsensical" term and that there is no exclusive list of
    factors -- such as the so-called Dost factors -- that must be met
    for an image (or a film) to be "lascivious."             See Frabizio, 
    459 F.3d at
    85 (citing United States v. Dost, 
    636 F. Supp. 828
    , 832
    (S.D. Cal. 1986)); see also United States v. Amirault, 173 F.3d
    - 14 -
    28, 31-32 (1st Cir. 1999).    Here, it is enough to note from our
    review that -- as the District Court also concluded -- the evidence
    reveals that the films showed young boys almost always depicted
    fully nude, with no evident storyline or discernible artistic
    explanation for the footage.      Moreover, each film showed boys
    engaged in some activity or activities, which -- though varying
    from film to film -- displayed their genitalia in a manner that,
    as the District Court concluded, a jury reasonably could deem to
    be intended to sexually arouse the viewer.   See Amirault, 173 F.3d
    at 31-32 (finding "whether the image is intended or designed to
    elicit a sexual response in the viewer" a relevant factor "in
    evaluating whether the display in question is lascivious" (citing
    Dost, 
    636 F.Supp. at 832
    )).
    It   is   true   that   the    films   combined   included
    approximately twenty three hours of footage, with certain images
    in which the boys' clothing or the activity temporarily obscured
    the view of the boys' genitalia.        But each of the films also
    included scenes, for example, of the boys wrestling or showering
    in positions that gave the camera a clear shot of their genitalia,
    or lounging, standing, or sitting in postures that prominently
    displayed their genitalia in the camera shot.       Considering the
    films as whole under count seven, and the images depicted in each
    of the films listed in the other counts, the jury's determination
    that the films depicted "sexually explicit conduct," in the form
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    of "lascivious exhibition of genitals" of children, was thus a
    rational conclusion drawn from the evidence.            See Wilder, 
    526 F.3d at 12
    .
    B.
    Silva's second argument is that the government did not
    prove that he knowingly received child pornography as required by
    counts one through six.       See 
    18 U.S.C. § 2252
    (a)(2) (prescribing
    punishment for any person who "knowingly receives" depictions of
    minors engaged in sexually explicit conduct).            Unlike count seven,
    each of these counts identified a specific film, or set of films,
    that Silva had received.       For this charge, the government had to
    prove the material that Silva received as described in each count
    in fact met the statutory definition for child pornography and
    that   Silva   knew   "the   facts   that     ma[d]e   his   conduct    fit   the
    definition of the offense" at the time of receipt.                     Elonis v.
    United States, 
    135 S. Ct. 2001
    , 2009 (2015) (quoting Staples v.
    United States, 
    511 U.S. 600
    , 608, n.3 (1994)); see also X-Citement
    Video, Inc., 
    513 U.S. at 78
     ("[T]he term 'knowingly' in § 2252
    extends both to the sexually explicit nature of the material and
    to the age of the performers."); United States v. Gendron, 
    18 F.3d 955
    , 959 (1st Cir. 1994).
    The government did not need to show, however, that the
    defendant knew the material was in fact illegal at the time of
    receipt.   See United States v. Knox, 
    32 F.3d 733
    , 754 (3d Cir.
    - 16 -
    1994) ("[T]o fulfill the knowledge element of § 2252, a defendant
    simply must be aware of the general nature and character of the
    material and need not know that the portrayals are illegal.").
    Instead "a defendant generally must 'know the facts that make his
    conduct fit the definition of the offense,' even if he does not
    know that those facts give rise to a crime."            Elonis, 
    135 S. Ct. at 2009
     (quoting Staples, 
    511 U.S. at
    608 & n.3); see also United
    States v. Williams, 
    553 U.S. 285
    , 301 (2008) ("The defendant must
    believe that the picture contains certain material, and that
    material in fact (and not merely in his estimation) must meet the
    statutory definition."); Hamling, 
    418 U.S. at 123
     ("To require
    proof of a defendant's knowledge of the legal status of the
    materials would permit the defendant to avoid prosecution by simply
    claiming that he had not brushed up on the law.").
    In    arguing    that   the    government    failed    to   provide
    sufficient evidence from which a jury rationally could find beyond
    a reasonable doubt that he knowingly received unlawful materials,
    Silva contends that, even if some of the materials he received
    were   illegal   child     pornography,    the   Azov   website    also   sold
    materials that did not contain child pornography.           He thus argues
    that the government failed to show that when he placed his orders
    on the Azov website -- which he contends contained, at most, both
    legal and illegal materials -- he knew that he was going to receive
    materials that fell into the latter category.
    - 17 -
    But the government presented evidence about what Silva
    knew about the specific materials he ordered at the time that he
    placed those orders.         And in consequence of that evidence, the
    jury could rationally conclude that Silva knew -- with respect to
    the specific films identified in each of these six counts -- that
    he was ordering and receiving films that did show nude children
    engaged in sexually explicit conduct.
    We start with the evidence the government provided about
    what Silva would have encountered on the Azov website when he
    placed his orders.        There was testimony that indicated a customer
    perusing    the    Azov    Films'   website   would   encounter   a   brief
    description of the material for sale.              The jurors were then
    presented with the website pages for the films listed in the
    indictment.
    In other words, the jury saw the actual pages from which
    Silva would have placed his order for each of the films listed in
    the indictment's six receipt counts.          These pages included photos
    of the boys who were featured in each particular film, clothed or
    in swimsuits.      The jury thus could conclude -- from viewing the
    descriptions and photos -- that Silva would know the boys were
    underage.     Further, the website provided editorial content about
    each film.        This content clearly communicated to its website
    - 18 -
    audience that each of the films Silva ordered would feature the
    boys nude.4
    In addition, the website pages included descriptions
    that conveyed that these specific films would show the boys
    engaging in various types of activities but without offering any
    semblance of a plot or storyline.      And the descriptions for each
    of the films went on to describe the activities in which the boys
    would be engaging using language that the jury clearly could have
    perceived as indicating the presence of sexually explicit content.5
    4 For the film in count one, FKK Waterlogged, the description
    listed the activities on "today's nudist menu." The film in count
    two, Vladik Remembered Vol. 1, was described to "compile a series
    of lengthy Vladik nudist scenes" in "this wonderful homage to the
    boy who helped establish Azov Films." The film in the third count,
    Vladik Remembered Vol. 2, is described as a "continued celebration
    in honor of Vladik's 18th birthday and official indoctrination
    into adulthood," -- showing "footage" of Vladick from when he was
    "between 14 and 16" -- in what was described as a "compilation of
    the best of the best Vladik naturist scenes" from "Crimea's most
    famous naturist." For the film in count four, Paul & Calin's Home
    Video, the website said that "the personalities of our on camera
    nudists, Calin and Paul, shine through" and the boys "get into
    some nudist fun."    The film in count five, Cutting Room Floor:
    Vlaviu, carries a description of "Vlaviu and his buddies going
    commando in a very unique way" with "nudist food fighting." The
    film in count six, Raw Rewind Vol. 2, according to the website,
    consisted of "unedited naturist raw footage."
    5 The film in count one described "a cold shower" and "general
    horsing around . . . [which] gives way to some relaxing physical
    therapy in the form of a deep massage." The film in count two was
    a "compilation of scenes" of one featured boy and his "naturist
    buddies" in "sauna and beach antics."     The film in count three
    described that the boys were featured "as they wreak havoc in some
    of Crimea's most exclusive saunas." The film in count four was
    described as including "probably one of the best wrestling matches
    (if not the best) we've ever filmed in the history of the Boy
    Fights line of nudist DVDs." The film in count five was promoted
    - 19 -
    So while Silva argues that "[t]he descriptions of the
    DVDs       .   .    .   did   not   provide   notice   that   they   contain   child
    pornography," the descriptions clearly conveyed that the films
    offered seemingly no semblance of a story, with little dialogue or
    with foreign language dialogue left untranslated for viewers, and
    featured nude boys engaging in activities the jury could reasonably
    conclude he would have known to be sexually explicit.                    Thus, the
    website pages for the films that Silva ordered hardly require --
    or even permit -- the benign characterization he contends must be
    given to them.
    Relevant, too, is the fact that the website's film
    descriptions also identify particular boys as the stars of the
    productions and direct their "fans" to search among their other
    films.6        In other words, the films did not advertise themselves as
    as "discs of ooey-gooey slippery goodness." Some of Azov's film
    titles, like Raw Rewind Vol. 2 named in count six, also replicated
    the suggestive tone. See, e.g., United States v. Downsbrough, No.
    3:13-CR-61, 
    2013 WL 5781570
    , at *13 (E.D. Tenn. Oct. 24, 2013)
    ("The names of some of the DVDs ordered by the Defendant from this
    same company [Azov] . . . [including] Raw Rewind Volumes 1–3 are
    sexually suggestive.").
    6
    Specifically, the website's description for the film in
    count one said that "[i]f you're a fan of Paul, this is a must
    get" and "[s]ame with Calin fans."    The Azov website described
    that the film in count two was created in "celebration" of "Azov
    Films' superstar, Vladik." The description for the film in count
    three addressed "Vladik fans" and described that "90% of the
    visitors to Azov Films are Vladik fans, and about half of those
    are die-hard Vladik fans." The description in the film from count
    four noted about one of a three-disc set that "this disc is not
    subtitled but will certainly be enjoyed, especially for fans of
    - 20 -
    "a paean to naturalism and nudism" as Silva suggested, but rather,
    as an exhibition of particular nude young boys.
    Indeed, a United States postal inspector testified that
    "[t]hese videos have, and I hate to use the word but I can't think
    of a better one, their own stars and their own following" such
    that "the videos of particular boys [were] particularly sought by
    people who prefer that particular boy."                  And, by marketing the
    films   as   showcasing       particular     boys,      the   film    descriptions
    indicated that, as to each film Silva ordered, the exhibition of
    those underage boys, who were also described as being nude and
    active in suggestive settings, was the point of the production.
    The jury thus could have found that this language about "fans" and
    the satisfaction they would derive from particular films -- given
    the rest of the descriptions -- would have alerted Silva, as a
    prospective purchaser, to the fact that these films were "intended
    or designed to elicit a sexual response in the viewer."                 Amirault,
    173 F.3d at 31 (citing Dost, 
    636 F. Supp. at 832
    ).
    Finally, and further supporting the government's case,
    the jury received evidence of Silva's comments offering his own
    evaluation     of    the    Azov      website.       Though    made    after    the
    investigation       was    underway    and   he   had    already     received   the
    Paul." The film from count five was described as "a must get for
    the true Vlaviu fan." The description for the film in count six
    told readers that "[y]ou'll recognize a young Igor, and Sasha."
    - 21 -
    materials, these comments -- when read in light of the evidence
    concerning the information conveyed by the website pages for the
    films he ordered -- provide a basis from which a jury could
    reasonably infer that Silva found the sexually explicit nature of
    the available materials evident from the face of the website.              In
    other words, though Silva insists that a purchaser might have
    believed the materials to be benign at the time of ordering, the
    comments the jury heard about his own characterization of the
    website undercut the plausibility of such an assessment.
    Specifically, the jury saw emails that Silva sent, soon
    after the website was shut down by Canadian authorities, to a
    professional acquaintance in the Rhode Island state police.              These
    emails set forth Silva's own concerns with the Azov website. Silva
    wrote that the website "claim[s] to be a 'European Naturist'
    website" but noted that "the only naturist films that they have
    are of nude boys."       He stated that "[t]hey sell mainstream films
    as well" but added that he suspected "that they do this to provide
    an 'air' of legitimacy."         He wrote that he suspected that "the
    boys featured in their 'Naturist' films are being groomed to
    perform in the pornographic adult films when they come of age."
    Silva also explained that he feared Azov was "doing more with these
    boys than they are presenting" and that he had "a really bad
    feeling   about   what   may   be    happening   to   those   boys."      And,
    underscoring   the   basis     for   inferring   that   Silva   was    himself
    - 22 -
    concerned about the website, Silva implicitly denied in his email
    to law enforcement that he had placed any orders with Azov, and he
    also wrote that he did "not intend to find out" about the website’s
    "special offers."
    Moreover,   during   a    subsequent   search   of   his   house,
    according to the testimony of one law enforcement agent present at
    the search, Silva also "stated that he was concerned about a lot
    of things surrounding Azov Films.      One of his concerns was that he
    felt that the children may be being groomed for something later on
    in a sexual nature within this connotation.          He stated that he
    knew the children were being exploited."         And when told that the
    Azov website operators were likely in prison, the agent testified,
    Silva responded, "Good, they should be."
    These comments thus provide a basis from which a rational
    jury could conclude that Silva understood the Azov website to be
    selling sexually explicit materials at the time he placed his
    orders, rather than that he would have been surprised by the
    content of the films that he eventually possessed.             And though
    Silva at trial and during the investigation offered an innocent
    explanation for his purchases -- namely, that he had purchased the
    films because he was working on a PowerPoint presentation related
    to his work with sex offenders at the probation office -- the jury
    was entitled to disbelieve what reasonably might have seemed like
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    a "dubious claim[] of innocence."   United States v. Hill, 
    750 F.3d 982
    , 988 (8th Cir. 2014).
    Given the cumulative force of these reasons, a rational
    jury could have concluded beyond a reasonable doubt that Silva had
    knowledge that the contents of the materials he ordered and
    received were of a kind that would bring such materials within the
    Act's coverage, whether or not Silva knew at that time that such
    contents rendered the films contraband as a legal matter.      The
    District Court therefore did not err in denying Silva's motion for
    a judgment of acquittal.
    VII.
    For the foregoing reasons, the judgment of the District
    Court is affirmed.
    - 24 -