United States Court of Appeals

For the First Circuit

No. 13-1202

UNITED STATES OF AMERICA,

Appellee,

v.

ALEJANDRO FIGUEROA-LUGO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Thompson, Lipez, and Barron,

Circuit Judges. 

Johnny Rivera-González for appellant. 

Daniel Steven Goodman, Criminal Division, Appellate Section,

U.S. Department of Justice, with whom Rosá Emilia Rodríguez-Vélez,

United States Attorney, Nelson Pérez-Sosa, Assistant United States

Attorney, Chief, Appellate Division, Jenifer Y. Hernandez-Vega,

Assistant United States Attorney, Mythili Raman, Acting Assistant

Attorney General, and Denis J. McInerney, Deputy Assistant Attorney

General, were on brief, for appellee. 

July 17, 2015
LIPEZ, Circuit Judge. Appellant Alejandro Figueroa-Lugo

("Figueroa") appeals from his conviction for knowing possession of

child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). We

affirm.

I.

On March 17, 2011, Figueroa was charged with one count of

"knowingly possess[ing] one or more matters which contained visual

depictions of one or more minors engaging in sexually explicit

conduct," in violation of 18 U.S.C. § 2252(a)(4)(B). Pursuant to 18

U.S.C. § 2253, the indictment also sought criminal forfeiture of

the Compaq Presario computer that had been seized from Figueroa's

bedroom. On July 10, 2012, following a six-day trial, the jury

found Figueroa guilty as charged in the indictment. At a subsequent

sentencing hearing, the district court sentenced him to seventy-two

months of imprisonment, to be followed by eight years of supervised

release.

Figueroa appeals the court's denial of his motion for

judgment of acquittal pursuant to Federal Rule of Criminal

Procedure 29. United States v. Figueroa-Lugo, 915 F. Supp. 2d 237

(D.P.R. 2013). He contends that the evidence presented at trial was

insufficient to convict him of a violation of § 2252(a)(4)(B)

because the government failed to prove (1) that the people in the

images and videos were actual children, and (2) that Figueroa's

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possession of any child pornography was knowing.1 Additionally,

Figueroa appeals three of the district court's jury instruction

rulings: (1) the decision to give a willful blindness instruction,

(2) the decision not to instruct the jury as to the affirmative

defense provided in 18 U.S.C. § 2252(c) that the defendant promptly

and in good faith took steps to destroy the child pornography that

he possessed, and (3) the refusal to give his proposed

"inconsistent mental state" jury instruction.

II.

In analyzing a claim that the district court erred in

denying a post-trial motion for judgment of acquittal, we "must

affirm the conviction if after de novo review of the evidence taken

in the light most favorable to the government, we conclude that a

rational factfinder could find that the government proved the

essential elements of its case beyond a reasonable doubt." United

1 Section 2252(a)(4)(B) provides in pertinent part: 

Any person who . . . knowingly possesses,

or knowingly accesses with intent to

view, 1 or more books, magazines,

periodicals, films, video tapes, or other

matter which contain any visual depiction

that has been . . . transported using any

means or facility of interstate or

foreign commerce . . . by any means

including by computer, if (i) the

producing of such visual depiction

involves the use of a minor engaging in

sexually explicit conduct; and (ii) such

visual depiction is of such conduct;

shall be punished as provided in

subsection (b) . . . 

-3-
States v. Marin, 523 F.3d 24, 27 (1st Cir. 2008); see also United

States v. Chiaradio, 684 F.3d 265, 281 (1st Cir. 2012) (applying

the standard in a child pornography case). Such a standard of

review is "formidable," and a defendant who challenges a conviction

on the basis of insufficient evidence confronts "an uphill battle

on appeal." United States v. Rodríguez, 457 F.3d 109, 118 (1st Cir.

2006). "[R]aising a plausible theory of innocence does the

defendant no good, because the issue is not whether a jury

rationally could have acquitted but whether it rationally could

have found guilt beyond a reasonable doubt." United States v. Seng

Tan, 674 F.3d 103, 107 (1st Cir. 2012). 

A. The Government's Case2 

1. Locating the Defendant

On January 29, 2010, at the request of law enforcement 

in Puerto Rico, Lieutenant Glenn Lang ("Lang"), supervisor of the 

Maine State Police's computer crimes unit, conducted a peer-to-peer

networking investigation to determine whether child pornography was

being transmitted to Puerto Rico over the internet. Lang, an expert

in computer forensics and peer-to-peer networking, checked

LimeWire, a peer-to-peer program that allows users who install it

on their computers to set up folders and share files with other

2 All of the facts recounted are taken directly from the trial

testimony of the identified officers. We describe the government's

case generally here. Additional evidence from the government's case

is discussed in relation to specific arguments Figueroa presents

about the insufficiency of the evidence.

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LimeWire users. In order to find consumers of child pornography,

Lang accessed a number of databases containing lists of files that

police officers had identified as child pornography. Using "global

unique identifiers," Lang was able to obtain a list of the top

offenders in San Juan, Puerto Rico by identifying the Internet

Protocol ("IP") addresses of the LimeWire users who had accessed

the greatest number of files tagged as child pornography in the

police databases. At the top of that list was IP address

209.91.206.209, which police databases indicated was sharing 363

files of child pornography through LimeWire by the time Lang

conducted his investigation in January 2010. From November 28, 2009

through early 2010, the only user of IP address 209.91.206.209 was

the household of Fernando Figueroa, the father of appellant

Alejandro Figueroa. Caribe Net, an internet service provider in

Puerto Rico, assigned that IP address to Fernando Figueroa's

account. It was Caribe Net's practice to assign only one IP address

to a single residential address, even if several individuals used

multiple computers within the residence.

In the names for the files associated with IP address

209.91.206.209, Lang identified several terms commonly used in

child pornography files, including "pthc" (for "preteen hard

core"), "pedophilia," "pedo," "r@ygold," "hussyfan," and "child

porn." For example, Lang testified that on January 27, 2010, a

video file with the title "porn pthc 9yo Vicki stripping and

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sucking (kiddie pedo illegal underage preteen).mpg" was shared with

IP address 209.91.206.209. Lang indicated that the file was "a

fairly large video file . . . in what's called the Vicki series"

and shows "a nine-year-old girl stripping down" who "gets down on

her knees and performs oral sex on an adult male."

Lang mailed the results of his child pornography database

search to the Homeland Security Investigations ("HSI") directorate

of Immigration and Customs Enforcement ("ICE") in Puerto Rico.

Agent Harold Simmons Julsrud, III, a criminal investigator and

forensics agent in the cyber crimes group of HSI, received the

information, and, through Caribe Net, learned the physical address

associated with IP address 209.91.206.209. He then obtained a

search warrant for the residence.

2. The Fruits of the Search

At 6:00 a.m. on May 12, 2010, Agent Julsrud and other HSI

cyber crimes unit agents executed the search warrant at the

Figueroa residence. Appellant and his parents, Fernando Figueroa

and Bárbara Lugo, were present. The agents seized nine computers

and eight loose hard drives, as well as thumb drives, DVDs, CDs,

and videotapes. They found one of the computers, a Compaq Presario

desktop computer, on a desk in the appellant's bedroom, turned on

with several sessions of Mozilla Firefox internet browser open.

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Special Agent Luis Manuel Colón of ICE, an expert3 in

computer forensics, performed a forensic examination of all the

computers and media devices seized from the home. He found child

pornography on the Compaq Presario desktop computer seized from the

appellant's bedroom, but not on any of the other devices taken from

the residence. On that computer, Agent Colón discovered eighteen

still images and seven videos "that contained minors in

lasciv[i]ous exhibition of the genitalia." LimeWire software had

been installed on the computer on September 11, 2009 and updated on

March 17, 2010. The only user name on the computer was "the

Alejandro account."

All of the still images of child pornography on that

computer were stored in the "Alejandro\ My Documents\ LimeWire\

Saved" folder. The images had not been deleted, and all were

accessible to the computer user. The images were identified by file

names such as "9yo Jenny nude with legs spread wide apart showing

pussy -- underage lolita r% 2540Ygold Pthc ptsc ddogprn pedo young

child sex preteen hussyfan kiddie kiddy porn" and "6yr old yo

underage child daughter childsex childfugga childlover ptsc pthc

lsm lsn pedo rape torture cum ass pussy hussyfan mafiasex r@ygold

dick Sandra teen model bd(1)."

3 The government qualified Colón as "an expert in the field of

computer forensics, specifically in the service of computer

evidence," without objection.

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Similarly, all seven child pornography videos had not

been deleted and were accessible to the computer user. Those videos

were saved on Figueroa's computer in LimeWire folders, including "C

drive\ Documents and Settings\ Alejandro\ My Documents\ LimeWire\

Incomplete" and "C drive\ Documents and Settings\ Alejandro\ My

Documents\ My Chat Logs\ LimeWire\ Incomplete\ New Folder." The

videos saved in a folder with the word "incomplete" in its title

were accessible to the user through both LimeWire and Windows.

B. Figueroa's Defense4

1. Anner Bonilla Rivera

Bonilla, a software engineer for Hewlett Packard, was the

first to testify for Figueroa. He sought to establish that various

anti-virus programs found on Figueroa's computer could have been

responsible for opening the child pornography files, rather than

Figueroa himself. Specifically, Bonilla testified that the anti[-

]virus software Avira accesses every file on the computer to

determine whether it is infected with a virus. He stated that

"[t]here's no way to know if the 'last access date' was changed by

an anti-virus or by a user or by any other Windows

application . . . that opened it." He similarly testified that

4 Figueroa testified and he called three witnesses: Anner

Bonilla Rivera, a computer networking expert, and two character

witnesses, Wanda Morrero and William Omar Rodriguez Ramos. We

describe Figueroa's defense generally here. Some of the particulars

of Figueroa's defense are discussed in more depth in relation to

Figueroa's specific challenges to the sufficiency of the evidence.

-8-
"[t]here's no way to know" if PC Health virus, also found on

Figueroa's computer, modified any of the files containing child

pornography. Bonilla testified that a user does not have to open

files on LimeWire to be able to download them. 

2. Figueroa

Figueroa testified that he downloaded child pornography

from LimeWire inadvertently, stating that, "when I would observe it

and would see child pornography, I would erase it." Figueroa

estimated that he might have downloaded and viewed more than 100

videos of child pornography and more than 100 still images of child

pornography, but he could not provide an exact number. He insisted

that if he thought an image or video was child pornography, he

"would erase it." He also maintained that "not all of [the images

and videos shown at trial] look like child pornography." Although

he admitted that he had searched on his computer for the terms

"young" and "sex" together, he believed that Google would "filter

out" any images of girls younger than 18.

Figueroa further testified that he used LimeWire to

create his own YouTube videos, typing in search terms to retrieve

movies, photographs, and music. When he conducted those LimeWire

searches, he would sometimes see child pornography, but he "would

erase it because [he] wasn't interested in it." Figueroa recounted

an instance in which he looked for a soccer video by searching for

the terms "Best Goal Ever," but instead received a video of "[a]

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girl taking off her clothes and dancing nude." He deleted the

video.

Figueroa recounted a time when he was playing an online

video game and met a person online who was "trying to pass for

being a girl." The girl asked Figueroa if he "wanted her to send

[him] pictures of her naked," to which he allegedly responded, "How

old are you?" When the girl answered, "I'm over 18," Figueroa said,

"Okay, that's fine." The girl then sent him photographs of "her

breasts, her vagina and her buttocks." Subsequently, the girl had

a conversation with another player in the online video game, which

Figueroa saw, and told the player that she was only sixteen-yearsold.5 Figueroa acknowledged that he kept the photographs the girl

had sent him in his email account until federal agents seized his

computer on May 12, 2010, at which time Figueroa used a university

computer to delete the pictures from his email account.

C. Figueroa's Challenges to the Sufficiency of the Evidence

To support his claim that the evidence was insufficient

to establish that he knowingly possessed the child pornography

found on his computer, Figueroa makes the following arguments:6 (1)

5 At the time, Figueroa, the girl, and the third person who

the girl had informed that she was sixteen, were all playing a

video game together in which all players are able to view each

other's chat conversations via a "shot box."

6 In its brief on appeal, the government divides Figueroa's

undifferentiated challenge to the sufficiency of the evidence in

his opening brief into six categories. We find that division useful

and apply it here. 

-10-
none of the witnesses at trial could scientifically establish that

he purposely intended to download any child-related pornography,

and any child pornography he did download was inadvertent, (2) the

seven videos and eighteen images were only partially downloaded and

were therefore inaccessible to him, (3) whenever he inadvertently

downloaded child pornography he deleted it, (4) anti-virus software

on his computer could have accessed and modified any child

pornography on his computer, (5) he afforded access to his computer

to a number of other people, any of whom could have downloaded the

child pornography, and finally (6) the government failed to

establish that the images depicted actual children. We address each

of these arguments in turn.

1. Intent to Download Child Pornography 

Figueroa contends that if his searches on LimeWire

yielded child pornography results that were in turn downloaded onto

his computer, it was inadvertent. The record suggests otherwise. 

Agent Colón, the computer forensics expert who examined

Figueroa's computer, testified that the seven videos and eighteen

images of child pornography were all contained in LimeWire folders

on Figueroa's computer. Files obtained through LimeWire cannot

automatically download onto a computer. A user would have to

actively search for files and then select them by clicking to

-11-
download those files. Lieutenant Lang,7 an expert in computer

forensics and peer-to-peer networking, explained that a LimeWire

user employs the program's search tab to type in words such as

"preteen hard core, or pthc," which the user hopes will appear in

a file name. Consistent with Agent Colón's testimony, Lang

testified that when LimeWire search results show a file that

contains the desired search term, the user must click on the file

before it will download.

Based on this testimony, a rational jury could have found

that, in order to retrieve files with names such as "porn pthc 9yo

Vicki stripping and sucking (kiddie pedo illegal underage preteen)"

or "naked penis preteen vagina little girls ass 6 year old panties

gay hussyfan 7yo lolitaguy 8yr pussy pedo kiddie porn," Figueroa

used search terms associated with child pornography. He then

intentionally downloaded the files that the LimeWire network had

shared with him in response to those search requests before any

child pornography would be downloaded to the LimeWire folders on

his computer. See United States v. Breton, 740 F.3d 1, 17 (1st Cir.

2014) ("[A] defendant's . . . use of search terms associated with

child pornography can support a finding that the defendant knew the

images he retrieved contained child pornography.").

7 The government qualified Lang "as an expert in peer-to-peer

networking and computer forensics," without objection. 

-12-
2. Inaccessible Partially Downloaded Files 

Figueroa asserts that files on his computer that were not

fully downloaded were inaccessible. Such a contention is rebutted

by Lieutenant Lang and Agent Colón's trial testimony. Lang

testified that under LimeWire's default settings a file "will

initially go to the incomplete folder" and remain there until the

"file is complete[ly]" downloaded, at which point "it will move

over to [a] saved [folder]." Videos and still images can be viewed

by a computer user when they are located in a LimeWire "incomplete

folder." In fact, Lang noted, "an illicit file" could remain in an

"incomplete folder" for a long time, possibly even "for years," and

be viewed there.

Agent Colón testified that a file that has not been fully

downloaded on LimeWire has a "T" preceding its file name. Once the

file is completely downloaded, the "T" notation is removed and the

file is automatically transferred to the saved folder. If someone

attempts to view a partially downloaded file through LimeWire, the

word "preview" is added to the "T" notation in the file name.

Noting this testimony, Figueroa argues that, because none of the

video files had "preview" in their titles, he could not have

accessed them.

Such an assertion is plainly contradicted by the trial

record. Colón testified that the files could have been accessed via

Windows Explorer, and no "preview" notation would be added to the

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file name.8 Furthermore, Colón testified that a particular child

pornography image had been accessed via Windows Explorer.

Accordingly, a jury could have found that at all times the

partially downloaded files were accessible to Figueroa. 

3. Deletion of Child Pornography 

Figueroa insists that "whenever any unwanted child

pornography was downloaded" to his computer, he "immediately

deleted [the] same." The trial testimony rebuts this claim.

At the time of the trial, seven videos and eighteen still

images of child pornography were on Figueroa's computer. Agent

Colón explained that one of the child pornography files in

question, "9-year-old Jenny nude with legs spread wide apart," was

created on March 27, 2010, had been saved in a computer folder with

Figueroa's name and profile, and was still available to the

computer's user when the computer was seized on May 12, 2010. In

addition, on April 14, 2010, the WindowsXP operating system on

Figueroa's computer created a "Thumbs.db file" just minutes after

another child pornography file was downloaded onto the computer.

Agent Colón testified that the Thumbs.db file was located in the

same LimeWire folder "where the child pornography videos were

found," which showed that "the user accessed the file using . . .

Windows Explorer." The child pornography video had not been

8

 Bonilla also testified that if the files were viewed using

Windows Explorer, no "preview" notation would be added to the file.

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deleted; rather, the Windows operating system created "a little

icon" that would allow the images to be accessed more quickly in

the future. The images of child pornography remained on Figueroa's

computer when it was seized. Moreover, Bonilla, Figueroa's own

expert, acknowledged in cross examination that eighteen still

images and seven videos containing child pornography were found on

Figueroa's computer and that none of the files had been deleted,

scrubbed or sanitized by anti-virus software.

Furthermore, Figueroa admitted at trial to having

downloaded child pornography and failing to delete it from his

computer. When asked by the government's attorney, "you admit that

you've had child pornography downloaded and you have seen it,

correct?" Figueroa responded, "When I know it has been downloaded,

yes." The prosecutor then asked, "the truth is that this image [of

child pornography], you did not delete, correct?" to which Figueroa

responded, "Yes." Figueroa's deletion claim is groundless.

4. Anti-Virus Software

Figueroa asserts that "other software such [as] an antivirus" program could have been "responsible for accessing or

modifying" the files on his computer that contained child

pornography. However, he does not contend that anti-virus software

was responsible for downloading child pornography onto his computer

in the first place. Agent Colón did find an Avira anti-virus

software program on Figueroa's computer, but testified that an

-15-
anti-virus program would not change the date on which a file was

created, nor would it be capable of downloading child pornography.

Figueroa's own computer networking expert, Bonilla, admitted that

anti-virus software cannot download child pornography onto a

computer.

5. Other Users' Access to Figueroa's Computer 

Figueroa argues that the child pornography found on his

computer could have been downloaded by a number of people to whom

he "afforded access" or even by "an unknown party" capable of

breaking into his home router signal. Figueroa testified, however,

that he was the primary user of the computer located in his bedroom

and that he downloaded LimeWire. Figueroa acknowledged that he

likely downloaded and viewed more than 100 videos and 100 images of

child pornography after he installed LimeWire on his computer:

MS. HERNANDEZ: So how many other child

pornography images or videos did you download 

into your computer that you had to erase?

FIGUEROA: Well, when I would check them and

see that I had downloaded child pornography, I

would erase them. It was a good amount. 

MS. HERNANDEZ: So how many videos would you

say that you downloaded?

FIGUEROA: I don't know a specific number, but

it was a good amount.

. . .

MS. HERNANDEZ: And you admit, then, that you

have downloaded child pornography through

LimeWire? 

FIGUEROA: Admitting in the sense that I didn't

know what I was downloading, and then I would

observe it and would see child pornography, I

would erase it. 

MS. HERNANDEZ: So how many other videos of

child pornography have you seen, other than

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the ones that we found in your computer now,

that you deleted? . . . More than one hundred? 

FIGUEROA: Yes, but that doesn't mean that I

would see the entire video.

In addition, all of the child pornography videos found on

Figueroa's computer were saved to the computer's C drive in a file

titled "Documents and Settings\ Alejandro\My Documents\ LimeWire\

Incomplete" and all of the still images were saved to the folder

"Alejandro\ My Documents\ LimeWire\ Saved" folder. From this

evidence a rational jury could conclude that it was Figueroa, not

one of his friends or an unknown user, who downloaded the files.

See United States v. Koch, 625 F.3d 470, 478 (8th Cir. 2010)

(stating that a conviction was supported by the fact that "user

names on both the computer and flash drive [on which child

pornography were found] were variations on [the defendant's] first

name"). Moreover, Agent Colón testified that Figueroa used his

personal email address to chat on the computer within minutes of

the creation of child pornography files.

Furthermore, multiple child pornography files were

created on the computer at times between 4:00 a.m. and 4:30 a.m,

suggesting that Figueroa himself downloaded the files. See United

States v. Salva-Morales, 660 F.3d 72, 75 (1st Cir. 2011) (per

curiam) (asserting that because downloaded child pornography files

were accessed between 2:00 a.m. and 3:00 a.m., "it is a reasonable

inference that [the defendant] was the one accessing the files at

these times"). Figueroa admitted that the room in which the Compaq

-17-
Presario desktop computer was found was his bedroom. There was no

evidence that anyone else slept in the room or was present during

the early morning hours.

Figueroa argues that the time at which the files were

downloaded is irrelevant because when files are selected as part of

a bulk download, LimeWire cannot begin all the downloads

simultaneously. He contends that files that were downloaded at 4:00

a.m. "could have been selected early during the day" but downloaded

at a later time. Figueroa presented no evidence at trial to

suggest that LimeWire files selected for download do not begin to

download immediately. In fact, Agent Colón testified that a

Limewire file begins to download the moment the user selects the

file for download. The jury was permitted to accept as true Agent

Colón's testimony.

6. Images of Actual Children

Finally, Figueroa claims that the government failed to

prove beyond a reasonable doubt that the still images and videos

contained depictions of actual children engaged in sexually

explicit activity. In a child pornography case, "[t]he prosecution

must prove beyond a reasonable doubt that the image is of an actual

child in order to establish guilt." United States v. RodriguezPacheco, 475 F.3d 434, 439 (1st Cir. 2007). However, "[t]here is no

per se rule that the prosecution is required to produce expert

testimony in every case to establish that the depicted child is

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real, for either guilt or sentencing purposes." United States v.

Hoey, 508 F.3d 687, 691 (1st Cir. 2007). Rather, "juries are

capable of distinguishing between real and virtual images, without

expert assistance." Rodriguez-Pacheco, 475 F.3d at 441.

In the instant case, the prosecutors showed the jury

eighteen still images and seven videos of alleged child pornography

found on Figueroa's computer. Despite the fact that it was not

required to do so, the government also presented expert testimony

that the images and videos contained actual minors. Agent Colón,

who had performed computer forensics work in dozens of child

pornography cases, testified that he "found 18 images and 7 videos

that contained minors in lasciv[i]ous exhibition of the genitalia"

on Figueroa's computer. Lieutenant Lang, who had investigated

hundreds of child pornography cases, examined the files associated

with Figueroa's IP address and stated, "Yes, that's definitely

child pornography." He testified that he recognized one of the

videos associated with Figueroa's IP address because he had

previously seen the video in another child pornography case, which

had an identified victim and was "a bad piece of child

pornography." The images and videos introduced into evidence, in

conjunction with the testimony of two experts, were sufficient for

a rational jury to conclude beyond a reasonable doubt that the

files on Figueroa's computer depicted images of actual children

engaged in sexually explicit conduct. 

-19-
For all of the reasons stated above, Figueroa's

sufficiency of the evidence argument fails.9

III.

When the defendant preserves an objection to a jury

instruction, we generally review the form and wording of the

9 In his reply brief, Figueroa raises a number of additional

arguments, all of which lack merit. He argues that (1) the evidence

was insufficient to establish that he actually downloaded 363 files

of child pornography, (2) the evidence was insufficient to

establish that only his family had access to IP address

209.91.206.209, (3) he could not find in the record Agent Colón's

statement that within minutes of one of the child pornography

videos being downloaded onto Figueroa's computer he engaged in an

online e-mail chat, and (4) he never admitted that he personally

downloaded "a good amount" of child pornography. 

As noted, the government provided sufficient evidence that

Figueroa downloaded eighteen images and seven videos. It did not

seek to prove that he downloaded 363 files of child pornography.

With regards to claim (2), Karen Larson, the Senior Vice President

of Caribe Net, testified that each Caribe Net customer is assigned

his or her own unique IP address and that for the period of time in

question IP address 209.91.206.209 was always assigned to the

Figueroa household. Because IP addresses are assigned to

individuals based on their physical residence, two users who were

not in the same household could not access the same IP address. 

With regards to allegation (3), Agent Colón testified that "seven

minutes after the video file [containing child pornography] was

created, the computer created an HTML entry" containing "a chat

between Luli and el Bebo 13. El bebo 13 is one of the email

addresses that belongs to the defendant, Alejandro." The video file

was entitled "Compiled 4 girls-all small and loving it."

Transcript, ECF No. 96. Hence, Figueroa is correct that the

government misrepresents Colón's testimony when it states that

"Figueroa engaged in an online email chat, telling another computer

user that he was 'loving' the child pornography video." The

government wrongly conflates Colón's testimony and the file name.

Nonetheless, the essential piece of Colón's testimony -- namely,

that Figueroa engaged in an online chat minutes after one of the

child pornography videos was downloaded -- is clearly in the

record. Finally, with regards to claim (4), Figueroa admitted that

he downloaded "a good amount" of videos containing child

pornography. Transcript, ECF No. 97 at 123-25.

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instruction for an abuse of discretion, while reviewing de novo any

claim of legal error embodied in the instruction. United States v.

Gonzalez, 570 F.3d 16, 21 (1st Cir. 2009); see also United States

v. Díaz-Arias, 717 F.3d 1, 23 (1st Cir. 2013) ("Properly preserved

challenges to jury instructions are reviewed de novo, taking into

account the charge as a whole and the body of evidence presented at

trial." (internal quotation marks omitted)). "A district court's

decision to give a particular instruction, over a party's

objection, constitutes reversible error only if the instruction was

(1) 'misleading, unduly complicating, or incorrect as a matter of

law'; and (2) 'adversely affected the objecting party's substantial

rights.'" United States v. Stark, 499 F.3d 72, 79 (1st Cir. 2007)

(quoting Faigin v. Kelly, 184 F.3d 67, 87 (1st Cir. 1999)). Even an

incorrect instruction will not warrant reversal if it was harmless. 

United States v. McDonough, 727 F.3d 143, 157 (1st Cir. 2013).

A district court's refusal to give a requested

instruction is reviewed de novo. United States v. Baird, 712 F.3d

623, 627 (1st Cir. 2013). To succeed with a claim of error, a

defendant must have presented sufficient evidence that he was

entitled to the instruction. Id. The initial threshold

determination we must make is whether the evidence, viewed in the

light most favorable to the defense, "can plausibly support the

theory of the defense." United States v. Gamache, 156 F.3d 1, 9

(1st Cir. 1998) (emphasis omitted). Accordingly, if the evidence in

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the record does not support a requested affirmative defense, a

district court is not required to include it. See, e.g., United

States v. Guevara, 706 F.3d 38, 46-47 (1st Cir. 2013) (holding that

the district court did not err in declining to give the defendant's

proposed entrapment instruction because the record lacked evidence

to support that affirmative defense). 

Assuming that the defendant satisfies this initial

burden, we "will reverse a district court's decision to deny the

instruction only if the instruction was (1) substantively correct

as a matter of law, (2) not substantially covered by the charge as

rendered, and (3) integral to an important point in the case so

that the omission of the instruction seriously impaired the

defendant's ability to present his defense." Baird, 712 F.3d at

628. We decide each step in that three-part analysis de novo. Id.

A. Willful Blindness Instruction

A "willful blindness instruction is appropriate if (1) a

defendant claims a lack of knowledge, (2) the facts suggest a

conscious course of deliberate ignorance, and (3) the instruction,

taken as a whole, cannot be misunderstood as mandating an inference

of knowledge." United States v. Azubike, 564 F.3d 59, 66 (1st Cir.

2009). 

Figueroa argues that the district court's willful

blindness instruction unduly influenced and confused the jury by

allowing them to convict him of a violation of § 2252(a)(4)(B) with

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a mens rea of less than "knowingly." The court instructed the

jury:

In deciding whether a defendant acted

knowingly, you may infer that the defendant

had knowledge of a fact if you find that he

deliberately closed his eyes to a fact that

otherwise would have been obvious to him.

The court's decision to give a willful blindness

instruction, and the text of that instruction, satisfy each of the

three elements of the test articulated in United States v. Azubike.

First, Figueroa's primary defense in this case was that he did not

knowingly download child pornography. Throughout the trial,

Figueroa denied knowing that the child pornography specified in the

indictment was on his computer. Figueroa's attorney asked him at

trial, "when was the first time that you ever saw any of these

videos or photographs?" to which Figueroa replied, "Now, here."

Second, the facts presented at trial suggest at times a

"conscious course of deliberate ignorance." Id. For example,

Figueroa asserted that "fellow university students and fellow

neighbors" used his computer, insinuating that someone else

downloaded child pornography onto his computer. In fact, if other

people downloaded some files with these explicit file names onto

Figueroa's computer, and saved them in a LimeWire folder bearing

his name, one that Figueroa used frequently, a jury could

reasonably conclude that Figueroa "closed his eyes to a fact that

otherwise would have been obvious to him." Similarly, Figueroa

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asserted that his innocuous LimeWire searches for music yielded

child pornography results. Figueroa testified that when he

downloaded the "Bambina" child pornography file found on his

computer he had intended to download photographs, music and videos

of "El Bambino," a recording artist. The "Bambina" file was saved

to the folder entitled "C\Documents and

Settings\Alejandro\MyDocuments\My Chat Logs\LimeWire\Incomplete\New

Folder." To the extent that Figueroa inadvertently downloaded

child pornography when he searched for "El Bambino," and that he

subsequently saved that file in a folder bearing his name, and did

so numerous times, suggests a deliberate ignorance of the child

pornography on his computer. 

Third, taken as a whole, the instruction cannot be

misunderstood as "mandating an inference of knowledge." Id. The

district court instructed the jury that, in determining whether

Figueroa acted knowingly, they "may infer" that he had knowledge

"if" they found he "deliberately closed his eyes." (emphasis

added). Such an instruction gave the jury discretion to decide

whether Figueroa acted knowingly. See United States v. Anthony, 545

F.3d 60, 64 (1st Cir. 2008) (rejecting a defendant's argument that

the willful blindness instruction given at his trial "would lead a

jury to convict based on 'reckless' ignorance rather than

deliberate ignorance").

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Finally, contrary to Figueroa's contention that the

instruction allowed the jury to convict him of a violation of

§ 2252(a)(4)(B) by a less stringent requirement than "knowingly,"

a willful blindness instruction is one way in which a jury can

permissibly find that a defendant acted knowingly. See Nancy

Torresen, 2015 Revisions to Pattern Criminal Jury Instructions for

the District Courts of the First Circuit (2015), available at

http://www.med.uscourts.gov/pdf/crpjilinks.pdf Instruction 2.16

("'Willful Blindness' As a Way of Satisfying 'Knowingly'") ("In

deciding whether [defendant] acted knowingly, you may infer that

[defendant] had knowledge of a fact if you find that [he/she]

deliberately closed [his/her] eyes to a fact that otherwise would

have been obvious to [him/her]."). The district court did not err

in providing the willful blindness jury instruction. 

B. The Affirmative Defense Set Forth in 18 U.S.C. § 2252(c)

Figueroa contends that the district court erred when it

failed to address the § 2252(c) affirmative defense in its jury

instructions. The affirmative defense states in relevant part:

(c) It shall be an affirmative defense to a

charge of violating paragraph (4) of

subsection (a) that the defendant --

(1) possessed less than three matters

containing any visual depiction proscribed by

that paragraph; and

(2) promptly and in good faith, and without

retaining or allowing any person, other than a

law enforcement agency, to access any visual

depiction or copy thereof --

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(A) took reasonable steps to destroy each such

visual depiction . . . .

After the jury instructions were read, Figueroa objected to the

district court's failure to include the affirmative defense

instruction. The district court declined to give the instruction

because "there are more than three images [of child pornography] in

this case." In his brief on appeal, Figueroa insists that this

ruling of the district court took from the jury its duty to

determine "whether each alleged image depicted a minor and . . .

whether this particular minor was engaged in sexually explicit

conduct."

Figueroa's suggestion that the failure to instruct the

jury on the affirmative defense meant that the government no longer

had the burden to prove beyond a reasonable doubt that he knowingly

possessed images of actual children engaged in pornographic acts is

simply not accurate. The district court instructed the jury that to

find Figueroa guilty of knowing possession of child pornography: 

[Y]ou must be convinced that the Government

had proven each of these things beyond a

reasonable doubt: First, that the defendant

knowingly possessed one or more matters which

the defendant knew contained a visual

depiction of one or more minors engaging in

sexually explicit conduct. . . . that one or

more of the visual depictions is of a minor

engaging in sexually explicit conduct. . . . A

minor is a person under the age of 18 years.

Child pornography is any photograph, film,

video, picture, computer image or computer

generated image of sexually explicit conduct

that was produced using an actual person under

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the age of 18 engaging in sexually explicit

conduct. . . . The word "knowingly" as that

term has been used from time to time in these

instructions, means that the act was done

voluntarily and intentionally and not because

of mistake or accident.

As these instructions make clear, the court instructed

the jury that in order to find Figueroa guilty, the government had

to prove each element of 18 U.S.C. § 2252(a)(4)(B) -- including

that the possession was done knowingly and that the images depicted

actual minors -- beyond a reasonable doubt. 

To the extent that Figueroa is arguing, however

inartfully, that the jury could have found that he possessed fewer

than three depictions of child pornography and is entitled to the

affirmative defense on that basis (an argument that the district

court seemed to impute to him), the evidence simply does not

support the instruction. In our de novo review of whether Figueroa

was entitled to the affirmative defense, we must ask whether the

evidence, taken in the light most favorable to Figueroa, plausibly

supported his requested affirmative defense instruction. See

Gamache, 156 F.3d at 9 (stating that "[a] criminal defendant is

entitled to an instruction on his theory of defense so long as the

theory is a valid one and there is evidence in the record to

support it"). As already noted in our discussion of "Other Users'

Access to Figueroa's Computer" as part of our sufficiency of the

evidence analysis, supra, Figueroa acknowledged on cross-

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examination that, prior to the seizure of his computer, he had

downloaded and viewed "a good amount" of child pornography. When

the prosecutor asked him if he had seen and deleted "[m]ore than

one hundred" videos, Figueroa replied, "Yes, but that doesn't mean

that I would see the entire video." The prosecutor then asked if he

downloaded and viewed "more than 100 still images of child

pornography" to which Figueroa responded, "[i]t may be, because I

don't know an exact number." When the prosecutor showed Figueroa

the eighteen still images of child pornography found on his

computer, Figueroa admitted that he had not deleted any of them.

On this record, if a jury found that Figueroa knowingly

possessed child pornography, it would have to find that he

possessed more than two such images. The district court therefore

did not err when it declined to give Figueroa's proposed

affirmative defense instruction. See United States v. White, 506

F.3d 635, 642 (8th Cir. 2007) (holding that defendant who possesses

"more than three images of child pornography" is "not entitled to

the [§ 2252(c)] affirmative defense").

C. Inconsistent Mental State

Finally, Figueroa argues that the district court

"serrated Appellant's right and the role of the jury" when it

failed to provide an inconsistent mental state instruction.

Figueroa submitted a proposed jury instruction derived from First

Circuit pattern jury instruction 5.02, "Mental State That Is

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Inconsistent with the Requisite Culpable State of Mind." That

proposed instruction stated:

Evidence has been presented of Alejandro

Figueroa Lugo's [carelessness; negligence;

ignorance; mistake; good faith; abnormal

mental condition; etc.]. Such act [sic] may be

inconsistent with the requisite culpable state

of mind. If after considering the evidence of

the charged crimes, together with all the

other evidence, you have a reasonable doubt

that Alejandro Figueroa Lugo acted [with the]

requisite culpable state of mind, then you

must find Alejandro Figueroa Lugo not guilty. 

In declining to give the proposed instruction, the

district court stated: 

I think that other instructions given

concerning "knowingly" [are] sufficient for

the jury to take that into

consideration . . . . [T]he instruction that

you want me to give . . . is covered by

the . . . instructions in here that talk about

knowingly . . . -- it can't be negligence or

mistake or things like that.

The district court was correct in asserting that the

proposed instruction was "substantially covered by the charge as

rendered." Baird, 712 F.3d at 628. The district court instructed

the jury that the word "knowingly," as used in its instructions,

"means that the act was done voluntarily and intentionally and not

because of mistake or accident." It further stated that "[m]ere

negligence or mistake . . . is not sufficient. There must be a

deliberate effort to remain ignorant of the fact." As we have said

before, "[i]n formulating jury instructions, a district court is

not required to parrot the language proffered by the parties."

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United States v. McFarlane, 491 F.3d 53, 59 (1st Cir. 2007)

(internal quotation marks omitted). Rather, district courts have

broad discretion to choose the "precise manner" in which they frame

their instructions. Id. The district court did not err when it

declined to give Figueroa's proffered inconsistent mental state

instruction because the jury instructions it provided state that

Figueroa could not be convicted of possessing child pornography

unless the jury determined beyond a reasonable doubt that he

knowingly possessed the videos and images in question.

IV.

There was sufficient evidence for a reasonable jury to

convict Figueroa of possession of child pornography in violation of

18 U.S.C. § 2252(a)(4)(B). Additionally, the district court's

willful blindness instruction did not confuse or mislead the jury

and therefore was not in error. Finally, Figueroa was not entitled

to the § 2252(c) affirmative defense or the inconsistent mental

state instructions for which he argued.

Affirmed.

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