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United States v. Fletcher

United States Court of Appeals, Eighth Circuit

December 23, 2019

United States of America Plaintiff- Appellee
v.
Jamin C. Fletcher Defendant-Appellant

          Submitted: September 27, 2019

          Appeal from United States District Court for the Southern District of Iowa - Council Bluffs

          Before LOKEN, COLLOTON, and KOBES, Circuit Judges.

          LOKEN, CIRCUIT JUDGE.

         A jury convicted Jamin C. Fletcher of receiving and distributing child pornography in violation of 18 U.S.C. §§ 2252(a)(2) and (b)(1). The district court[1]sentenced Fletcher to concurrent terms of 108 months imprisonment followed by ten years of supervised release. Fletcher appeals, arguing the district court erred in giving the jury a willful blindness instruction, the evidence was insufficient to convict, and his sentence is substantively unreasonable. We affirm. Because the jury instruction issue turns on the evidence presented at trial, we will first address Fletcher's challenge to the sufficiency of the evidence.

         I. Sufficiency of the Evidence.

         The indictment charged Fletcher with four offenses, advertising child pornography on BitTorrent, a peer-to-peer file-sharing network, and distributing, receiving, and possessing child pornography. At trial, the government introduced documentary evidence, digital images and videos, and the testimony of three witnesses: FBI Special Agent Robert Blackmore, Iowa Department of Criminal Investigation Special Agent Robert Larsen, and FBI forensic examiner Jordan Warnock. The jury acquitted Fletcher of the most serious offense, advertising child pornography. It convicted him of the distributing and receiving offenses. As instructed, it did not return a verdict on the lesser included possession offense. See United States v. Smith, 910 F.3d 1047, 1053-54 (8th Cir. 2018).

         Special Agent Blackmore testified that a computer user interested in BitTorrent peer-to-peer file-sharing first downloads a BitTorrent file-sharing program. This creates a "download or shared folder" on the user's computer. The download/shared folder both receives downloads and shares files. The user chooses and downloads into the BitTorrent program a "Torrent file" that contains desired content. The program finds and connects with other computers on the BitTorrent network that are sharing the desired content and brings different "pieces" of the file from multiple other users to the user's download/shared folder. A piece sitting in the download/shared folder "is available to be shared out back across the internet for others who are interested in the same content." Blackmore explained that the BitTorrent user can transfer pieces from the download/shared folder to other devices and folders.

         On September 28 and 29, 2016, using investigative software to search the BitTorrent network for digital images and videos, Blackmore discovered a download/shared folder sharing multiple files having unique "hash values" (digital fingerprints) of known or suspected child pornography. Examining the contents of this BitTorrent folder, Blackmore found several images of child pornography from the Lolita Series and a child pornography video. He downloaded the Lolita Series images and video directly from the download/shared folder; they were admitted into evidence at trial. Blackmore also determined that this folder had shared numerous files with hash values of known and suspected child pornography within the previous 180 days. The government introduced, without objection, a screen shot Blackmore took after completing his downloads showing fourteen hash values downloaded almost one hundred times during that period.

         On cross examination, Blackmore admitted his search did not disclose whether the child pornography files he downloaded had been viewed by any other BitTorrent user. But, he explained, installing the BitTorrent program sets up a download/shared folder the contents of which can be viewed by others on the BitTorrent network, unless the user affirmatively changes this default setting. Like other peer-to-peer file sharing programs, the program instructions tell the user how to accept the default or change the settings so that the program's contents cannot be accessed by other BitTorrent users. See United States v. Shaffer, 472 F.3d 1219, 1221-22 (10th Cir. 2007) (explaining the Kazaa peer-to-peer file sharing program).

         After downloading the Lolita Series images and the video, Agent Blackmore traced the IP address to Fletcher's home in Council Bluffs, Iowa. Special Agent Larsen executed a warrant search of Fletcher's residence on April 12, 2017. The search team seized three devices -- a desktop computer, a laptop computer, and Fletcher's smartphone. After Larsen told Fletcher he was not under arrest and was free to leave, Fletcher agreed to a recorded forty-five minute interview. The recorded interview was played at trial, and a transcript admitted into evidence.

         In the interview, Fletcher said he knew what peer-to-peer file sharing was and remembered using BitTorrent "to download movies and then clean them." Fletcher said he ran a program called "PeerBlock" when using BitTorrent "so that people won't go into your computer" and conclude he was stealing movies. He also used BitTorrent to search for pornography:

I would get a file and then it would show that person's collection. And then if there was somethin' that looked interesting I would click on it.

         Fletcher admitted he would "run across" child pornography while looking for adult pornography. Larsen asked how many times Fletcher ...


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