Submitted: February 10, 2017
Appeal
from United States District Court for the District of
Minnesota - St. Paul
Before
LOKEN, COLLOTON, and KELLY, Circuit Judges.
LOKEN,
CIRCUIT JUDGE.
During
a warrant search of Keith Michael Novak's apartment in
Maplewood, Minnesota, FBI agents seized more than thirty
electronic devices. Agents then obtained a new search warrant
for child pornography and conducted time-consuming forensic
searches of a heavily encrypted Dell laptop computer and an
external USB hard drive that was connected to the laptop when
the devices were seized. Hundreds of images and videos of
children engaged in sexually explicit activities were
recovered. At a three-day trial, the government introduced
forensic evidence linking Novak to the encrypted child
pornography on the external hard drive and internet
pornography searches on the laptop. The jury convicted Novak
of one count of interstate transportation of child
pornography and one count of possession of child pornography
in violation of 18 U.S.C. §§ 2252(a)(1), (a)(4)(B),
(b)(1), and (b)(2). Varying downward from the advisory
guidelines range, the district court[1] sentenced Novak to 144
months in prison.
Novak
appeals, arguing the district court erred in admitting
evidence of adult pornographic materials found on his
devices, and in providing a willful blindness instruction to
the jury, contentions we review for plain error. See
United States v. Pirani, 406 F.3d 543, 550 (8th Cir.)
(en banc), cert. denied, 546 U.S. 909 (2005). He
also argues the district court imposed a substantively
unreasonable sentence, an issue we review under a highly
deferential abuse-of-discretion standard. See United
States v. Roberts, 747 F.3d 990, 992 (8th Cir. 2014). We
affirm.
I.
Evidentiary Issues.
Novak
argues the district court committed plain error when it
permitted the government to introduce two types of unfairly
prejudicial evidence. First, FBI Special Agent Christopher
Crowe's testimony described adult pornographic materials
found on the laptop computer's encrypted external hard
drive. Second, Agent Crowe's testimony described images
saved to the laptop's internal hard drive as reflecting
searches for sexual encounters with a transsexual woman.
Having failed to object to this evidence at trial, Novak can
prevail on appeal only by showing that admission was "an
obvious error that affected his substantial rights, and that
the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings." United
States v. Demery, 674 F.3d 776, 780 (8th Cir. 2011).
At
trial, the government introduced evidence that five images
the jury found to be child pornography had been downloaded
and saved to an encrypted folder "C" on the
external hard drive (Exhibit 4) attached to Novak's
laptop computer (Exhibit 3). The central issue was whether
Novak "knowingly" possessed and transported this
contraband. His defense was that he had no knowledge of the
child pornography on the external hard drive, that he only
used the hard drive to store movies and music, and that
someone else must have used his devices to search for child
pornography and store it without his knowledge.
When
the devices were seized, the laptop's internet history,
cache, and cookies were wiped clean, and a program called
"Eraser" made deleted data unreviewable. However,
the FBI discovered that a "Foxtab" extension on the
laptop's Firefox web browser had stored over 5, 500
images of websites viewed between April 2012 and October 2012
in a file on the laptop's hard drive. These images
included searches conducted under Novak's login for
child-pornography-related terms. For example, a search was
conducted under Novak's login on April 28, 2012 for
"jailbait, " and a July 10 Foxtab image showed a
search for "sibso." Agent Crowe testified that
jailbait is a term commonly used to search for child
pornography, and sibso is a child pornography term that
stands for "sibling significant other."
Encryption
software also made files difficult to detect and view on the
external hard drive until agents discovered the presence of
TrueCrypt, an encryption software that Novak's work as an
Army intelligence analyst gave him the proficiency to use to
encrypt his personal devices. The FBI's Cryptographic
Electronic Analysis Unit was able to identify the password
for an encrypted volume stored on the hard drive. Inside this
volume, agents discovered thousands of files organized into
roughly two dozen folders, including folder "C"
containing hundreds of images and videos of child
pornography. Most folders were named with one or two letters.
One was labeled "X Pics" and others had explicitly
pornographic titles. The folders contained pornographic
images grouped neatly into categories -- for example,
"B" for bestiality, "CL" for Craigslist
postings seeking sex meet-ups with transsexuals,
"L" for cartoon anime depicting children engaged in
sex, and "X Pics" for nude images of Novak.
Novak
testified that he acquired the Dell laptop in April 2012 when
his friend, Lee Smith, who worked at Fort Bragg as a
handyman, asked Novak to take the laptop from a secure area
of the Fort Bragg Rec Center and install a new operating
system. Novak used the laptop at Fort Bragg until Smith
helped him move from North Carolina to Minnesota in mid-July.
Smith controlled the laptop in a separate vehicle throughout
the move and sold it to Novak at the end of the trip for
$200. Novak testified that he had no knowledge of the
encrypted files on the hard drive, which he used to store
movies and iTunes. According to Novak, other soldiers
frequently borrowed his laptop while he was at Fort Bragg;
someone else created a TrueCrypt volume on the external hard
drive and saved child pornography and other images in the
encrypted volume. Novak admitted that "selfie"
images in the folder labeled "X Pics" were of him,
but denied that he placed them in the encrypted volume.
To link
Novak to the encrypted "C" folder containing child
pornography found on the external hard drive, FBI Special
Agent Christopher Lester, a member of the Computer Analysis
Response Team who searched Novak's apartment and helped
decrypt his devices, testified that Foxtab images showed
child pornography viewed on the laptop within seconds of
identical images being saved to the encrypted "C"
folder on the external hard drive, evidence the two devices
were connected when the child pornography was accessed, as
they were when seized in Novak's apartment. Agent Crowe
then explained, in the testimony here at issue, how each of
the folders in the encrypted hard drive volume evidenced
Novak as the file creator. For example, the "X
Pics" folder contained nude photos of Novak. The
"CL" folder contained transsexual Craigslist
postings similar to Foxtab images found on Novak's
laptop. Crowe's testimony supported an inference that
pornographic images in the "C" folder were part of
a larger pornography collection carefully organized into
categories:
Q: Can you give us a . . . a brief overview of what you found
between [the] "C" and "X Pics" [folders
in the ...