United States v. Silva

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

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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-

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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; . . . .

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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:

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 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).

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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.

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 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

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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

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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

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 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.

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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

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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

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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

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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.

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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.

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 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

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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

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 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

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"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."

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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

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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.

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