[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 21

- 10355
Non

- Argument Calendar

____________________
UNITED STATES OF AMERICA,
Plaintiff

- Appellee,

versus RYAN RUSTY RODRIGUEZ,

Defendant

- Appellant.

____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:18

- cr

- 00136

- CEM

- GJK

- 1

____________________ USCA11 Case: 21-10355 Date Filed: 06/02/2022 Page: 1 of 172 Opinion of the Court 21

- 10355

Before R OSENBAUM , L UCK , and L AGOA , Circuit Judges.
PER CURIAM: Ryan Rodriguez appeals his convictions for receipt, possession, and distribution of child pornography. He argue s that insufficient evidence supported his convictions and that the district court abused its discretion by failing to give the jury his requested instruction on evidence admitted under Rule 404(b) , Fed. R. Evid

. After careful review, we affirm in part and vacate in part

. I.
In a five

- count superseding indictment, Rodriguez was charged with knowing receipt (Counts 1, 2) , possession (Count 3) , and distribution of child pornography (Counts 4, 5)

. Se e 18 U.S.C. §§ 2252A(a)(2), (5)(B). The indictment identified by name the computer file containing child pornography for the receipt and possession offenses, but not for the distribution offense

. Rodriguez pled not guilty , and the case proceeded to trial

. A. The trial evidence, in summary, established the following. Using a peer

- to

- peer file

- sharing program, Federal Bureau of Investigation agents identified and downlo aded suspected child pornography from an IP address registered to Rodriguez’s mother at a USCA11 Case: 21-10355 Date Filed: 06/02/2022 Page: 2 of 1721

- 10355 Opinion of the Court 3 residence in Orlando on January 4, 2018, and February 9, 2018. 1 The downloaded files included a set of videos depicting unspeakably brutal sexual violence against a toddler

- aged child (the “DD videos”) , and a set of videos depicting females approximately eleven to fourteen years old exposing their breasts and vaginal areas and touching themselves in a lewd manner (the “Web c am videos”)

. Based on the downloaded files, the FBI obtained and executed a search warrant at the residence connected to the IP address. When the agents arrived, Rodriguez attempted to hide a computer drive before opening the door, and when confronted about the missing drive he claimed to have thr own it out because it was broken. The agents found the missing drive, however, and Rodriguez eventually admitted to trying to hide it

. In Rodriguez’s bedroom,agents found a computer and multiple sticky notes on which someone had written various terms as sociated with searching for child pornography. The jury also heard evidence that Rodriguez wascertified to build computers and likely had built one of the computers found in his home.Rodriguez spoke with FBI agents while the search was performed. He cl aimed that he sometimes accidentally downloaded child pornography while searching for adult pornography. But h e denied intentionally searching for child pornography and claimed

1 The FBI used a law

- enforcement file

- sharing program , “Torrential Downpour,” which downloaded complete files from a single source, rather than assembling the file s from multiple sources. USCA11 Case: 21-10355 Date Filed: 06/02/2022 Page: 3 of 174 Opinion of the Court 21

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to immediately delete any child pornography he accidentally downloaded. Rodriguez also acknowledged visiting an internet “forum” containing pornography of both “teens” and children andusing versions of the word “pedophile” as his password on the forum. Dig ital f orensic testing revealed child pornography on three devices seized from Rodriguez’s residence : (a) an eight

- terabyte hard drive contain ed the two video files at issue for Count 2 in a shared folder used by a peer

- to

- peer program ; (b) a one

- terabyte d rive, which Rodriguez had attempted to hide and which contained the operating system for the eight

- terabyte drive
, contain ed the partially downloaded video file for Count 1 in another folder for a peer

- to

- peer program; and (c ) a third drive contain ed the

v ideo file for Count 3 as part of a backup file of Rodriguez’s cell phone

. The forensic expert also found a “link file” for one of the videos in Count 2, which indicated that the file had been accessed, but not for the other video files

. As for the distribution counts (Counts 4 and 5), the forensic expert did not find the two sets of videos downl oaded by the FBI in January and February 2018. But he found other evidence of their presence, including a link file indicating that the Webcam videos had been accessed and BitTorrent log files indicating that the video

sets were downloaded or made availab le for download multiple times during or around the time of the FBI downloads. The forensic expert further testified about peer

- to

- peer file

sharing programs and Rodriguez’s settings. As relevant here, the USCA11 Case: 21-10355 Date Filed: 06/02/2022 Page: 4 of 1721

- 10355 Opinion of the Court 5 expert testified that, when Rodriguez installed B itTorrent on his computer, he agreed to a “legal notice” stating that any data he downloaded “will be made available to others by means of upload

. Any content you share is your sole responsibility. ” Rodriguez also changed the default settings to reduce th e maximum upload speed

— how fast others could obtain data from him

— but did not prevent uploading altogether. The forensic expert explained that doing so allowed the user to maximize use of the internet, since there is only a limited amount of bandwidth on the computer. In examining the computer, the forensic expert found traces of other files with names either known or likely to contain child pornography which had been accessed, downloaded, or shared. The expert testified that Rodriguez regularly used spec ialized erasing software on his computer, which can prevent a computer

- forensics examination from finding evidence of a deleted file . But theexaminer was able to recover over 900 images of child pornography in unallocated space, meaning the files had bee n deleted butnot entirely removed, as well as a software log showing errors related to the attempted erasure of dozens of files with names indicative of child pornography. In addition, the forensic examiner found various other evidence of Rodriguez’s int erest in child pornography, including (a) bookmarked websites containing child pornography; (b) the repeated use of search terms associated with child pornography

— such as “child pornography” or “pthc” (“preteen hardcore”)

— on peer

- to

- peer programs and Google; and (c) documents that provided links to child pornography , including USCA11 Case: 21-10355 Date Filed: 06/02/2022 Page: 5 of 176 Opinion of the Court 21

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the DD videos, and to advocacy for child pornography and pedophilia.
B. Before trial, Rodriguez had moved to bar the admission of evidence not dire ctly related to the charged offenses, including the bookmarked websites, search terms, and sticky notes. In his view, this evidence of other uncharged bad acts was merely propensity evidence that was inadmissible under Fed. R. Evid. 404(b). The governmen t responded that the evidence was not subject to Rule 404 because it was intrinsic to the charged offenses, and that, even if Rule 404 applied, the evidence was admissible to show knowledge and lack of mistake or accident

. The district court agreed with th e government that the evidence was intrinsic to and intertwined with the charged offenses, and so was admissible without regard to Rule 404. Accordingly, the court denied Rodriguez’s request at trial for a limiting instruction on Rule 404(b) evidence.
C. Ultimately, the jury returned a guilty verdict on all fivecounts, and the district court denied Rodriguez’s motion for judgment of acquittal. The district court sentenced him to a total term of 216 months in prison (216 months on each count, to run co ncurrently) , and this appeal followed. USCA11 Case: 21-10355 Date Filed: 06/02/2022 Page: 6 of 1721

- 10355 Opinion of the Court 7

II.
We review for abuse of discretion a claim that the district court omitted an instruction. United States v. Morris , 20 F.3d 1111, 1114 (11th Cir. 1994). “ A trial court abuses its discretion in denying

a requested jury instruction when (1) the instruction is substantively correct; (2) it was not substantially covered in the charge actually delivered to the jury; and (3) the failure to give it seriously impaired the defendant ’ s ability to present an effecti ve defense.” United States v. Gonzalez , 975 F.2d 1514, 1516 (11th Cir. 1992) (quotation marks omitted).Relevant evidence is generally admissible unless it falls under a rule of exclusion. See United States v. Troya , 733 F.3d 1125, 1131 (11th Cir. 201 3). Rule 404(b) provides that evidence of otherbad acts is not admissible to prove a defendant’s propensity to commit the charged offense, but it may be admissible if it is relevant to an issue other than the defendant’s character, such as intent, knowle dge , or lack of mistake or accident

. Fed. R. Evid. 404(b).The admission of Rule 404(b) evidence generally requires a jury instruction limiting the use of such evidence to non

- propensity purposes

. Gonzalez , 975 F.2d at 1517 ; see United States v. Tokars
, 95 F.3d 1520, 1537 (11th Cir. 1996) (stating that “the district court must provide a limiting instruction” for Rule 404(b) evidence). But Rule 404(b) does not apply if the evidence is “intrinsic” to the charged offenses. United States v. Edouard , 485 F.3d 1324, 1344 (11th Cir. 2007). Evidence is intrinsic if it arose out of the same transaction or series of transactions as the charged offense, is USCA11 Case: 21-10355 Date Filed: 06/02/2022 Page: 7 of 178 Opinion of the Court 21

- 10355necessary to complete the story of the crime, or is inextricably intertwined with the evidence regarding t he charged offense. United States v. Ramsdale , 61 F.3d 825, 829 (11th Cir. 1995) ; see also United States v. Troya , 733 F.3d 1125, 1131 (11th Cir. 2013) . Evidence is admissible as “inextricably intertwined” with the charged offense “if it is an integral and natural part of the witness’s accountsof the circumstances surrounding the offenses for which the defendant was indicted.” Troya , 733 F.3d at 1131 (quotation marks omitted). Rodriguez argues that the evidence of his sticky notes,search history, bookmarked websites, documents about child pornography, wipe/erase software, and child pornography recovered from unallocated space is not intrinsic becaus e it does not directly relate to any of the files he was charged with receiving, possessing, or distributing. Rather, in Rodriguez’s view, this evidence was offered to show his general interest in child pornography, and so was unfairly prejudicial without an instruction limiting the use of this evidence by the jury to his intent or knowledge. Here, the district court did not abuse its discretion in concluding that the evidence was inextricably intertwined with the receipt and distribution offenses. The evidence was an integral and natural part of the story of either the search of Rodriguez’s home or the forensic search of his devices. See Troya , 733 F.3d at 1131

. More to the point, m uch of it related to Rodriguez’s use of a computer, the internet, and peer

- to

- peer programs to search for and download (and ultimately delete) child pornography, which was USCA11 Case: 21-10355 Date Filed: 06/02/2022 Page: 8 of 1721

- 10355 Opinion of the Court 9

how he received or distributed the child pornography in Counts 1, 2, 4, and 5. It therefore provided important context for the files found (or not found) on Rodriguez’s devices, and it rebutted claims Rodriguez made during the FBI interview , including that his interaction with child pornography was merely accidental and that he had never used the search term “pthc.” Because the evidence was intrinsic, Rule 404(b) did not apply, and it was no abuse of discretion to refuse to give Rodriguez’s requested limiting instruction as to the receipt and distribution counts.

But not all of that same evidence was intrinsic to Co unt 3, the possession count. See Gonzalez , 975 F.2d at 1517

– 18 (explaining that evidence which is intrinsic to one count may be extrinsic to another count). In contrast to the receipt and distribution counts, there is no evidence that the possession coun t arose from R odriguez’s use of the internet or peer

- to

- peer programs to search for and download child pornography. Rather, the child pornography he possessed was in a backup file for his cell phone, and the forensic expert testified that the file name wa s consistent with WhatsApp files , indicating the file was sent to him through the messaging application WhatsApp , potentially without his input or knowledge

. In light of these facts, we cannot say the evidence of Rodriguez’s interest in and pursuit of chi ld pornography is “inextricably int ert wined” with the possession crime in the same way that it wa s for the receipt and distribution crimes. See Troya , 733 F.3d at 1131 ; Ramsdale
, 61 F.3d at 829

. Rather, the evidence was offered as to USCA11 Case: 21-10355 Date Filed: 06/02/2022 Page: 9 of 1710 Opinion of the Court 21

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Count 3 “only to show [Rodriguez’s] guilty knowledge and intent” or lack of mistake

. Gonzalez , 975 F.2d at 1517 (emphasis omitted)

. The trial evidence established that Rodriguez possessed a video file containing ch ild pornography on a computer drive as partof a backup file of his cell phone. But there is no evidence to indicate where the file came from besides WhatsApp, whether Rodriguez accessed the file, whether the backup process was automatic or required some action by Rodriguez, or other circumstances indicating his knowledge of the file. See United States v. Pruitt , 638 F.3d 763, 766 (11th Cir. 2011) (“Inadvertent [possession] of child pornography is not a violation of the statute.”); see also United States v. Carroll
, 886 F.3d 1347, 1353

– 54 (11th Cir. 2018) (refusingto hold a defendant “strictly liable” for distributing child pornography “ without some showing that he consciously allowed others to access those files ”). Rather, the government says the jury c ould reasonably infer Rodriguez’s knowledge of the file and its contents from his searching for and downloading of child pornography.To the extent the government’s inference is a fair one, however, it sounds indistinguishable from Rule 404(b) reasoning

— i. e., Rodriguez’s possession of child pornography on this occasion wasnot by mistake or accident because he knowingly possessed and received child pornography on other occasions. See, e.g. , United States v. Jernigan , 341 F.3d 1273, 1280

– 81 (11th Cir. 2003) (holdingthat a prior conviction for knowing possession of a firearm is admissible as Rule 404(b) evidence of knowing possession of a firearm to prove knowledge and lack of mistake). Accordingly, t he court USCA11 Case: 21-10355 Date Filed: 06/02/2022 Page: 10 of 1721

- 10355 Opinion of the Court 11 erred by treating the evidence as outside t he scope of Rule 404(b) and refusing to give a limiting instruction on that basis

. See id. (stating that Rule 404(b) evidence was properly admissible “only if a limiting instruction was given to the jury to prevent prejudice to the defendant ” ) ; Tokars , 95 F.3d at 1537.
We also conclude that the lack of a limiting instruction as to Count 3 seriously impaired Rodriguez’s defense. 2 See Gonzalez
, 975 F.2d at 1516. Given the thin line between the proper use of Rule 404(b) evidence and impermissible propensi ty purposes, as well as the absence of other evidence indicating Rodriguez’s knowledge of the child pornography in the backup file, a limiting instruction was necessary to prevent prejudice to the defense. See G

onzalez , 975 F. 2 d at 1517 (“T he absence of a limiting instructionopened the door for the jury to consider this evidence in an improper light. ”); see also United States v. Sterling , 738 F.3d 228, 238 (11th Cir. 2013) ( noting that “[e] xtrinsic evidence of other crimes, wrongs, or acts is inherently prejudicial to the defendant ” and may

2 For the first time on appeal, the government asserts in the alternative that the evidence was admissible as propensity evidence under Rule 414 , Fed. R. Evid

. But e ven assuming the government is correct that some of the evidence was admissible under Rule 414, we cannot sustain the verdict on that ground.Neither Rodriguez nor the district court had the opportunity to address admissibility under Rule 414, and there are colorable grounds for concluding both that at least some of the evidence would not qualify as a child

- molestation crime under that rule and that a limiting instruction might still be appropriate. See, e.g. United States v. Perrault , 995 F.3d 748, 770 (10th Cir. 2021) (“[W] e have recognized that district courts can mitigate any potential jury bias from Rule 414 witnesses by giving limiting ins tructions. ”). USCA11 Case: 21-10355 Date Filed: 06/02/2022 Page: 11 of 1712 Opinion of the Court 21

- 10355 entice the jury to draw impermissible propensity inferences (quotation marks omitted)).

In sum , we conclude that the evidence challenged by Rodriguez was intri nsic to the receipt and distribution counts , and therefore properly admitted without a limiting instruction on Rule 404(b) evidence. But at least some of that evidence was extrinsicto the possession count, and so a limiting instruction was warranted. Se e Gonzalez , 975 F. 2 d at 1517

– 18. B ecause the error was not harmless, we vacate Rodriguez’s conviction on Count 3 and remand for further proceedings consistent with this opinion.
III. Next, we consider the sufficiency of the evidence as to receipt and dis tribution counts. We review de novo whether sufficient evidence supports a guilty verdict, “ viewing the evidence inthe light most favorable to the government, and drawing all reasonable factual inferences in favor of the jury ’ s verdict. ” United States v . Jiminez , 564 F.3d 1280, 1284 (11th Cir. 2009). The evidence , whether direct or circumstantial, is sufficient if “a reasonable jury could have found the defendant guilty beyond a reasonable doubt,” United States v. Mercer , 541 F.3d 1070, 1074 (11th Cir. 2008), even if it does not exclude every reasonable hypothesis of innocence, United States v. Peters , 403 F.3d 1263, 1268 (11th Cir. 2005). The jury is “free to choose among reasonable constructions of the evidence,” id. , and we “must accept a jury’s inferences and determinations of witness credibility ,” United States v. Wright , 392 F.3d 1269, 1273 (11th Cir. 2004). USCA11 Case: 21-10355 Date Filed: 06/02/2022 Page: 12 of 1721

- 10355 Opinion of the Court 13 It is unlawful to “knowingly receive[] or distribute[]”anychild pornography that has traveled in interstate commerce, “including by computer.” See 18 U.S.C. § 2252A (a)(2). The term

“ knowingly ” means that the act was performed voluntarily and intentional ly, and not because of a mistake or accident. United States v. Woodruff , 296 F.3d 1041, 1047 (11th Cir. 2002). Thus, inadvertent receipt or distribution of child pornography “is not a violation of the statute.” Pruitt , 638 F.3d at 766. Rodriguez conten ds that the government’s evidence failed to show that he knowingly received or distributed the specific files at issue for each count, as opposed to child pornography more generally. A. Receipt

“ A person ‘ knowingly receives ’ child pornography under 18U.S.C. § 2252A(a)(2) when he intentionally views, acquires, or accepts child pornography on a computer from an outside source. ” Pruitt , 638 F.3d at 766. “ Evidence that a person has sought out

— searched for

— child pornography on the internet and has a compu ter containing child

- pornography images

— whether in the hard drive, cache, or unallocated spaces

— can count as circumstantial evidence that a person has ‘ knowingly receive[d] ’ child pornography. ” Id.
Here, viewing the evidence and drawing all reasonable inferences in favor of the jury’s verdic t, sufficient evidence supportsRodriguez’s convictions for knowingly receiving child pornography. The video files for these counts were found in folder s used by peer

- to

- peer programs, which, according to the forensic expert, USCA11 Case: 21-10355 Date Filed: 06/02/2022 Page: 13 of 1714 Opinion of the Court 21

- 10355 meant that they were selected for download by Rodriguez from an outside source

.Moreover, the jury had ample reason to discount Rodriguez’s claim in the FBI interview that, in receiving these and other files, he did not know they co ntained child pornography. Rodriguez hid the drive on which the Count 1 video w as located and then lied about it. And despite his denials to the FBI, the evidence showed that he regularly searched for child pornography on the internet and had around 900 images of child pornography in unallocated space on his computer. See Pruitt , 638 F.3d at 766. Rodriguez also had accessed one of the video files for Count 2

. While the forensic expert was not able to discern whether Rodriguez accessed or viewed the othe r video files, there was sufficient circumstantial evidence to prove that he received these files through a peer

- to

- peer program knowing they contained child pornography. See id. ; see also Carroll, 886 F.3d at 1353 (finding knowing possession where “ hundr eds of images and videos of child pornography were manually downloaded ” to the defendant’s computer through a peer

- to

- peer program). We affirm Rodriguez’s convictions for receipt of child pornography.
B. Distribution We also affirm Rodriguez’s distribution convictions. We have held that knowingly placing or leaving files in a shared folder connected to a peer

- to

- peer network “ undoubtedly constitutes distribution .” Carroll
, 886 F.3d at 1353. But the mere use of a pee r

to

- peer program is not enough on its own. Id. at 1354. Rather, USCA11 Case: 21-10355 Date Filed: 06/02/2022 Page: 14 of 1721

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there must be “ some proof that the defendant consciously shared files, either by authorizing their distribution or knowingly making them available to others .” Id. In Carroll , for example, we explained that such proof could include evidence that the peer

- to

peer program “ forces the user to acknowledge and accede to a licensing agreement explaining the peer

- to

- peer process and then involves the user in setting up a shared folde r.” Id.
Here, the evidence was sufficient for a reasonable jury to conclude that Rodriguez distributed child pornography as charged in Counts 4 and 5. The evidence shows that Rodriguez knowingly made available the sets of videos that were downloaded by the FBI

on Janu ary 4, 2018, and February 9, 2018 . When he installed the peer

- to

- peer program BitTorrent, through which the files were uploaded, Rodriguez agreed and acknowledged that when he ran a torrent, the data would be available to others for upload and that he was responsible for any content that he shared. See Carroll , 886 F.3d at 1354 . He also modified the settings to reduce upload speeds but did not prevent uploading altogether , further indicating his awareness that his data was being uploaded . And he held a computer certification and otherwise appeared to be familiar with the operation of peer

- to

- peer programs and computers.
Moreover, the forensic expert testified that BitTorrent log files showed that the DD videos and Webcam videos were do wnloaded by Rodriguez or made available for others to download multiple times during or around the time the FBI downloaded the videos , and that a “link file” was created in relation to the Webcam USCA11 Case: 21-10355 Date Filed: 06/02/2022 Page: 15 of 1716 Opinion of the Court 21

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videos, which meant they had been accessed by a user

. Combi nedwith evidence that Rodriguez regularly searched for child pornography using peer

- to

- peer programs, and possessed child pornography on his computer, the jury could reasonably conclude that Rodriguez knowingly downloaded child pornography to a shared fol der accessible to others on the peer

- to

- peer network. See Carroll
, 886 F.3d at 1353

– 54. That is enough to constitute distribution under § 2252A(a)(2). Rodriguez’s claim that the FBI used a special peer

- to

- peer program misses the mark. The evidence shows that the key difference between the FBI’s peer

- to

- peer program and ordinary peer

- to

peer programs was that the FBI’s program downloaded a complete file from a single source, rather than assembling the file from multiple sources. But no thing suggests that the FBI had greater access to files on Rodriguez’s computer than ordinary users, or that the files were not in fact accessible by others, even without evidence that anyone besides the FBI accessed them. Finally, that the videos were deleted from Rodrigue z’s computer does not mean he cannot be liable for distributing them before deletion. See Carroll , 886 F.3d at 1353 ( finding sufficient evidence to convict defendant of possessing child pornography that had been deleted). In fact, suchdeletion was consistent with evidence that he used specialized programs to regularly delete child pornography on his computer

. See id. (declining to “ create a perverse safe harbor ” for deleted files). Accordingly, we affirm Rodriguez’s dist ribution convictions. USCA11 Case: 21-10355 Date Filed: 06/02/2022 Page: 16 of 1721

- 10355 Opinion of the Court 17

IV. In sum, we affirm Rodriguez’s convictions for receipt anddistribution of child pornography (Counts 1, 2, 4, and 5). We vacate his conviction for possession of child pornography (Count 3), and we remand for further proceeding s consistent with this opinion. AFFIRMED IN PART, VACATED IN PART, AND REMANDED. USCA11 Case: 21-10355 Date Filed: 06/02/2022 Page: 17 of 17