US v. Alan Clifton

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:12-cr-00389-RDB-1 Copies to all parties and the district court/agency. [999454935].. [13-4575]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4575

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ALAN J. CLIFTON,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:12-cr-00389-RDB-1)

Submitted:

September 10, 2014

Decided:

October 15, 2014

Before KING, SHEDD, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

James Wyda, Federal Public Defender, Baltimore, Maryland, Sapna
Mirchandani, Appellate Attorney, OFFICE OF THE FEDERAL PUBLIC
DEFENDER,
Greenbelt,
Maryland,
for
Appellant.
Rod
J.
Rosenstein, United States Attorney, Judson T. Mihok, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Defendant Alan J. Clifton was convicted in early 2013 by a
jury in the District of Maryland of three offenses involving
child pornography, in contravention of separate subsections of
18 U.S.C. § 2252(a).

On appeal, Clifton challenges only the

sufficiency of the evidence relating to the mens rea element of
one of those three offenses, that is, whether he “knowingly”
transported in interstate commerce visual depictions of minors
engaged

in

sexually

§ 2252(a)(1).

explicit

conduct,

in

violation

of

As explained below, we are satisfied that the

proof was sufficient in that regard, and we therefore affirm.

I.
A.
Clifton’s

prosecution

arose

from

an

undercover

police

investigation into the online sexual exploitation of minors.
October

10,

2011,

Detective

Childs

of

the

Baltimore

On

County

Police Department utilized special law enforcement equipment to
investigate the trafficking of child pornography on peer-to-peer
(“P2P”)

file-sharing

FrostWire. 1

networks,

including

a

network

called

Detective Childs discovered that one P2P account

1

The term “peer-to-peer” — or “P2P” — is used to describe
“a method via which computers can share files over the
Internet.”
J.A. 162.
FrostWire is a P2P program “that an
(Continued)
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appeared to have eleven files available for download bearing
titles consistent with child pornography.

In furtherance of her

investigation, Childs downloaded the following files from that
particular account:

(1) “Pedophilia Uncle Undresses and Rapes

12-Year-Old Niece”; (2) “New PTHC Daddy’s Girl 12 YO Daddy BJ”;
and (3) “Zoo School New PTHC Take Them Home Real Good Teen Sex
Adult Porno.” 2
After
involve

determining

minors

that

engaged

in

the

downloaded

sexually

files

explicit

appeared
conduct,

to
the

authorities subpoenaed the user information associated with the
foregoing

account’s

Internet

protocol

address.

Information

derived from that subpoena led police to defendant Clifton’s
residence in Halethorpe, Maryland.

On November 30, 2011, law

enforcement officers executed a search warrant on Clifton’s home
and seized several computers and other electronic items.
Following the raid, Clifton participated in an interview
with

two

police

officers

regarding

Detective

Childs’s

individual can download and install on their computer in order
to facilitate the sharing of any type of file.” Id. (Citations
herein to “J.A. __” refer to the contents of the Joint Appendix
filed by the parties in this appeal.)
2

The term “PTHC,” as used in online titles on P2P networks,
means “preteen hardcore.”
See J.A. 196, 266.
The term “YO,”
when following a number, stands for “years old.”
Id. at 266.
Thus, for example, “9YO” means “nine years old.” Id.

3

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investigation.

He

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confessed

to

downloading

online

child

pornography and estimated that he had saved about 200 images and
videos of child pornography on his computer.
acknowledged

downloading

the

FrostWire

Clifton further

software

program

and

confirmed that it had installed several folders on his laptop,
including

two

respectively.
FrostWire

folders
When

had

labeled

prompted,

installed

a

“incomplete”
Clifton

“shared”

also

folder

in

and

“saved,”

admitted
his

that

FrostWire

account and acknowledged that he “was always curious” about the
shared folder.

See J.A. 714-15.

Clifton advised the officers

that he sometimes checked on the contents of the shared folder,
but “it was always empty.”

Id.
B.
1.

By the operative Indictment of October 17, 2012, the grand
jury

in

the

District

of

Maryland

charged

child pornography offenses, including:

Clifton

with

three

(1) transportation of

child pornography, in contravention of 18 U.S.C. § 2252(a)(1)
(Count One); 3 (2) receipt of child pornography, in violation of

3

The statute underlying Clifton’s conviction on Count One
provides, in pertinent part, as follows:
(a) Any person who —
(Continued)
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18 U.S.C. § 2252(a)(2) (Count Two); and (3) possession of child
pornography, as proscribed by 18 U.S.C. § 2252(a)(4)(B) (Count
Three).

During

Clifton’s

jury

trial

in

March

2013,

the

prosecution thoroughly explored Clifton’s use of the FrostWire
P2P

network

to

Specifically,

the

FrostWire’s

access

and

prosecution

installation

share

child

presented

process,

its

pornography.

evidence

default

regarding

settings,

and

other settings personally customized by Clifton.
For

example,

FBI

Agent

Gordon,

the

prosecution’s

expert

witness, explained that the “FrostWire Set Up Wizard” prompts
users to designate a folder for downloaded files and inquires
whether the user wants to share his downloaded files with other

(1) knowingly transports . . . in or affecting
interstate . . . commerce by any means including by
computer . . . , 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;
*

*

*

shall be punished as provided in subsection (b) of
this section.
18 U.S.C. § 2252(a)(1).
Pursuant to § 2252(b), a violation of
subsection (a)(1) subjects a defendant to a prison sentence of
five to twenty years.

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FrostWire users.

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Thereafter, FrostWire provides notifications

indicating whether the user is sharing files at twenty to thirty
locations. 4

If the user desires to terminate or limit file

sharing, FrostWire offers multiple options.
According to Agent Gordon, Clifton modified several default
settings to meet his preferences, including creating a FrostWire
nickname

for

online

chats

with

other

FrostWire

disabling FrostWire’s automatic startup feature. 5
also

showed

that

Clifton

created

personal

FrostWire to save his child pornography.

users,

and

The government
folders

within

Notably, Clifton knew

enough about FrostWire to disable the sharing feature on certain
file

extensions

associated

with

images

images and videos of child pornography.

and

videos,

including

Those files were then

4

The prosecution introduced evidence that the version of
FrostWire Clifton had utilized displayed five near-constant
notices that Clifton was sharing files with other FrostWire
users, including:
(1) a “My Shared Files” tab; (2) a notice
specifying, “You are sharing [#] files.
You can control which
files FrostWire shares”; (3) an oval with a number inside that
changes colors when files are shared; (4) a green arrow
accompanied by a number that corresponds to the number of files
being uploaded from that user by others on FrostWire; and (5)
underlined text near the bottom of the FrostWire screen that
reads, “View My [#] Shared Files.”
See J.A. 189-90, 216-18,
222-23, 251, 767-83.
5

The automatic “Run on Startup” feature prompts the
FrostWire program to “start as soon as Windows does.” See J.A.
227.
Disabling that feature, therefore, would require a
FrostWire user to manually launch the program after logging onto
his computer.

6

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placed in a separate directory named “Extensions List Unshared.”
Despite that attempt to limit file sharing, however, on October
10,

2011,

Detective

Childs

successfully

downloaded

child

pornographic videos from Clifton’s account. 6
The

prosecution’s

evidence

highlighted

inconsistencies

between Clifton’s statements during his initial interview and
those made at trial.

For example, Clifton initially told police

that he did not know the meaning of certain terms appearing in
the titles of child pornographic images and videos, including
the

term

searched

“PTHC.”
for

pornography

the

and

pornography.

At

trial,

term

knew

however,

“PTHC”

that

the

in
search

he

an

conceded

effort

would

to

result

that

he

download
in

child

Next, on at least two occasions, Clifton denied

knowing that FrostWire was a file-sharing program.

He later

acknowledged during his trial testimony that he could have read
a disclaimer providing that FrostWire did, in fact, share its
users’ files.
pornography
child

Finally, Clifton originally estimated that his

collection

pornography.

contained
The

more

adult

prosecution’s

6

pornography

forensic

than

evidence,

Agent Gordon explained two alternatives on how Detective
Childs was able to download files that were in Clifton’s
Extensions List Unshared directory:
(1) that “the file
extensions were not in this Extensions List [Unshared]” at the
time of the download, or (2) that the file automatically fell
into a shared folder by default. See J.A. 226.

7

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however,

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established

that

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Clifton

only

had

thirty

adult

pornographic files on his computer, compared to approximately
3,670 child pornographic files.
In defending himself, Clifton testified on his own behalf
and

denied

that

he

had

intentionally

transported

pornographic videos to other FrostWire users.
admitted

that

it

was

“possible”

other

any

child

Clifton casually

FrostWire

users

could

download his files, but he professed a belief that he had to
upload files to make them available for that type of sharing.
See J.A. 492-93, 511. 7

Nonetheless, Clifton confirmed that he

had customized FrostWire’s settings to limit the number of his
files available for downloading as a “precautionary measure” to
prevent online hacking.

Id. at 494.

Under cross-examination,

Clifton admitted that he spent nearly 700 hours on FrostWire
over the course of a year.
2.
At the close of the government’s evidence, Clifton moved
under Rule 29 of the Federal Rules of Criminal Procedure for
judgment of acquittal on Count One, maintaining that there was a
lack of evidence that he knowingly intended to transport child
pornography on the P2P network.
7

The trial court denied the

Clifton denied uploading child pornography onto
FrostWire account, and the prosecution did not present
contrary evidence.

8

his
any

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motion,

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explaining

that

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there

was

“sufficient

evidence

to

proceed,” viewing the evidence in the light most favorable to
the prosecution.
evidence,

See J.A. 452-53.

Clifton

renewed

his

At the close of all the

request

for

a

judgment

acquittal on Count One, which the court also denied.

of

Id. at

607.
In instructing the jury on Count One, the district court
explained

that

the

prosecution

was

elements beyond a reasonable doubt. 8

obliged

to

prove

four

As to the first element,

that Clifton had knowingly transported a visual depiction, the
court provided the jury the following explanation:
In determining whether the defendant acted knowingly,
you may consider whether the defendant deliberately
closed his eyes to what would otherwise have been
obvious to him. If you find beyond a reasonable doubt
that the defendant acted with a conscious purpose to
avoid learning the truth, then this element may be
satisfied.
However, guilty knowledge may not be established by
demonstrating that the defendant was merely negligent,
foolish, or mistaken.
If you find that the defendant was aware of a high
probability
and
that
the
defendant
acted
with
deliberate disregard of the facts, you may find that
8

The parties agreed that the prosecution proved the second,
third, and fourth elements of Count One, i.e., that the visual
depiction was in or affecting commerce, that it involved and
portrayed a minor engaging in sexually explicit conduct, and
that Clifton knew that a minor was involved and so portrayed.
Thus, the jury was instructed to focus only on whether Clifton
“knowingly” transported child pornography.

9

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the defendant acted knowingly.
It is
you to decide whether . . . you
defendant
deliberately
closed
his
inference to be drawn from the evidence
J.A. 660-61.
contending

entirely up to
find that the
eyes
and
any
on this issue.

Clifton opposed the court’s “ostrich” instruction,

that

the

evidence

did

not

show

that

ignored or turned a blind eye to any facts.”

he

“wilfully

Id. at 557-58. 9

The court overruled that objection.
The jury found Clifton guilty on all three offenses in the
indictment,

including

the

Count

One

charge

knowingly transported child pornography. 10

that

Clifton

had

The district court

thereafter sentenced Clifton to eighty-four months in prison for
each

of

the

three

offenses,

concurrently with the next.

with

each

sentence

set

to

run

Clifton timely noticed this appeal,

seeking vacatur of his Count One conviction and resentencing on
Counts Two and Three.

We possess jurisdiction pursuant to 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a).

9

The sort of knowledge defined in an ostrich instruction —
“knowledge [that] may be inferred from deliberate avoidance of
learning the truth” — is sufficient, if proved, to establish a
defendant’s knowledge as a matter of law. See United States v.
Forbes, 64 F.3d 928, 934 (4th Cir. 1995).
10

At trial, the district court gave the jury the option of
finding Clifton guilty of a lesser-included offense under Count
Two — that is, possession, rather than receipt, of child
pornography. In his closing argument, Clifton’s defense counsel
conceded guilt to the lesser-included offense as well as to the
Count Three possession offense.
The jury found Clifton guilty
of the Count Two and Three offenses as charged in the
Indictment, and he does not challenge those verdicts on appeal.

10

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II.
We review de novo a trial court’s denial of a motion for
judgment

of

acquittal.

Surgical

Supply

See

Corp.,

989

United

F.2d

States

1390,

1401

v.

United

(4th

Cir.

Med.

&

1993).

When a defendant bases his motion on the insufficiency of the
evidence,

“the

substantial

verdict

evidence,

‘must

taking

Government, to support it.’”

be

the

sustained

view

most

if

there

favorable

to

is
the

United States v. Gallimore, 247

F.3d 134, 136 (4th Cir. 2001) (quoting Glasser v. United States,
315 U.S. 60, 80 (1942)).

We have defined substantial evidence

as “evidence that a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt.”

United States v. Burgos, 94

F.3d

(en

849,

862

challenging

(4th

the

Cir.

sufficiency

1996)
of

the

banc).

evidence

conviction “must overcome a heavy burden.”

A

defendant

supporting

his

United States v.

Hoyte, 51 F.3d 1239, 1245 (4th Cir. 1995).
On appeal, Clifton only challenges the sufficiency of the
evidence to convict him of Count One — specifically, that he
knowingly
other

transported

P2P

network

pornographic
users.

See

videos
18

involving
U.S.C.

§

minors

to

2252(a)(1)

(prohibiting “knowing[] transport[ation]” of child pornography).
Clifton

maintains

that

the

prosecution’s

evidence

does

not

support his conviction on Count One because “the use of the
11

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program

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[i.e.,

FrostWire]

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to

obtain

child

pornography,

by

itself, is insufficient to prove an intent to share it with
others.”

Br. of Appellant 30.

We have recognized that the “use of a peer-to-peer filesharing program constitutes ‘distribution’” as defined by the
Sentencing Guidelines in the context of child pornography.

See

United States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009).
Thus, “[w]hen knowingly using a file-sharing program that allows
others to access child pornography files, a defendant commits an
act ‘related to the transfer of material involving the sexual
exploitation of a minor.’”

Id. (quoting USSG § 2G2.2 cmt. n.1).

We are satisfied that the same rationale applies to the felony
offense of transportation of child pornography under 18 U.S.C.
§ 2252(a)(1).
It

is

undisputed

that

Detective

Childs

downloaded

pornography from Clifton’s FrostWire account.

child

Thus, the sole

issue presented here is whether a rational jury could have found
that Clifton knowingly used a file-sharing program that would
allow

others

to

access

child

pornography

from

his

computer.

Notably, Clifton’s testimony at trial was inconsistent regarding
whether

he

knew

FrostWire

was

11

a

file-sharing

program. 11

On

Clifton’s testimony included, for example, the following
exchange on cross-examination:
(Continued)
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appeal, however, Clifton asserts that he “never disputed the
fact that he knew FrostWire was a file-sharing program that, by
definition,

would

allow

him

to

openly

others on the FrostWire network.”

share

his

files

Br. of Appellant 30.

with
And,

indeed, the prosecution presented ample evidence to the jury
that Clifton knew FrostWire was a file-sharing program.
Our analysis of the evidence sufficiency issue does not end
here, however, because the undisputed evidence also establishes
that

Clifton

disabled

sharing

on

certain

file

extensions,

including extensions on child pornographic videos, and Clifton
maintains

that

he

shared folder.

periodically

checked

the

contents

of

his

We are thus tasked with deciding whether the

jury had sufficient evidence to convict Clifton of knowingly
transporting child pornography in spite of those acts.

We are

confident it did.
Importantly,
that

Clifton

the

jury

“knowingly”

instructions

transported

specifically

child

provided

pornography

as

a

[Prosecutor]: And, of course, FrostWire’s known as a
file sharing system, isn’t that right?
[Clifton]:

That was not known to me.

J.A. 518.
Clifton later acknowledged, however, that the
standard disclaimer during the installation process would have
informed him that FrostWire was a file-sharing program “[i]f I
read it.” Id. at 524-25.

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matter of law if he had actual knowledge that he was sharing
files

or

if

otherwise

he

have

prosecution’s

“deliberately
been

closed

obvious

evidence

to

included

his

eyes

him.”

to

J.A.

proof

that

what

would

660.

The

Clifton

had:

(1) downloaded and installed FrostWire, a file-sharing program;
(2) spent 700-plus hours on FrostWire; (3) saved approximately
3,670 images and videos of child pornography; (4) configured the
FrostWire program so that it did not run on Windows startup; (5)
created a FrostWire nickname for chatting; and (6) created new
folders for child pornography from his FrostWire downloads.
evidence also demonstrated that FrostWire had:

The

(1) notified

Clifton at twenty to thirty locations that he could share his
FrostWire files; (2) displayed five near-constant notices that
Clifton’s

files

could

be

shared;

and

(3)

offered

multiple

options to cease the sharing of files.
Clifton’s credibility was for the jury to assess.

See

United States v. Lentz, 383 F.3d 191, 199 (4th Cir. 2004) (“The
jury, not the reviewing court, assesses the credibility of the
witnesses

and

presented.”).

resolves

any

conflicts

in

the

evidence

A rational jury was entitled to conclude that

Clifton had at least ordinary knowledge of FrostWire’s filesharing

features,

FrostWire’s
could

and

and,

numerous
were

as

a

result,

notifications

downloading

his
14

that
files.

feigned
other
We

ignorance

FrostWire
must

of

users

conclude,

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therefore,

that

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the

jury

had

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sufficient

evidence

to

convict

Clifton of violating 18 U.S.C. § 2252(a)(1), and the district
court did not err in denying his requests for a judgment of
acquittal on Count One.

III.
Pursuant to the foregoing, we affirm the judgment of the
district court.
AFFIRMED

15