United States Court of Appeals

For the Eighth Circuit

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No. 13-1884

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Jason Hill

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Western District of Missouri - Joplin

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 Submitted: February 14, 2014

 Filed: May 7, 2014

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Before RILEY, Chief Judge, LOKEN and BYE, Circuit Judges.

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RILEY, Chief Judge.

A jury convicted Jason Hill of knowingly receiving and distributing child

pornography in violation of 18 U.S.C. § 2252(a)(2), (b)(1) (Count 1) and knowingly

possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2) (Count
2). Hill appeals, arguing the district court erred in denying, without a hearing, his 1

motion to suppress evidence seized from his computer, and denying his motion to

dismiss a charged count on double jeopardy grounds. Hill further argues the district

court erred in denying his motions for judgment of acquittal on both counts. With

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appellate jurisdiction under 28 U.S.C. § 1291, we affirm.

 

I. BACKGROUND

On August 3, 2010, James Smith, a Cassville, Missouri, police officer

participating in a southwest Missouri cyber crimes task force investigating Internet

crimes against children, used LimeWire, an online “peer-to-peer” file-sharing

program, to access Hill’s computer. Officer Smith downloaded ten images of what

he believed to be child pornography from Hill’s shared folder on LimeWire. Based 3

on the files downloaded from Hill’s computer, Officer Smith, Task Force Officer

Brian Martin, and Special Agent James D. Holdman Jr. of the U.S. Department of

Homeland Security (DHS) obtained a federal warrant to search Hill’s residence for

child pornography. 

The officers executed the warrant on September 28, 2010. When Hill answered

the door, the officersserved the warrant and explained theywere looking for evidence

of child pornography. After waiving, in writing, his rights prescribed by Miranda v.

Arizona, 384 U.S. 436 (1966), Hill admitted he had been downloading large amounts

The Honorable Richard E. Dorr, late United States District Judge for the

1

Western District of Missouri, adopting two reports and recommendations of the

Honorable JamesC. England, United States Magistrate Judge for the Western District

of Missouri.

The Honorable David Gregory Kays became Chief Judge of the United States 2

District Court for the Western District of Missouri on January 4, 2014. 

Installing LimeWire automatically allowed Hill to share files with any other

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LimeWire user in the world.

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of adult pornography through LimeWire for about a year, but “initially denied ever

seeing any child pornography.” Hill told the officers he may have seen a “popup” for

what “he thought . . . might be child pornography” the night before the search, but

that “he deleted it immediately” as he always did with such “popups.” Hill’s story

changed over time. 

As the interview progressed, the officers asked Hill whether he used search

terms frequently used to obtain child pornography—terms contained in the filenames

Officer Smith obtained from Hill’s computer. Hill admitted he may have

“accidentally typed ‘preteen’” as a search term in LimeWire late at night when it was

dark or when he was drunk. Hill stated he deleted any child pornography he

accidentally downloaded. When pressed, Hill admitted he intentionally used the

search term “preteen” and viewed at least one hundred images of child pornography,

one involving a child as young as five years old. Hill eventually told the officers he

viewed child pornography “once or twice a month” from March 2010 to the time of

the search “out of curiosity,” but asserted he did not save it.

The officers seized Hill’s computers, including the one on which Hill

admittedly downloaded adult and child pornography. Special AgentJames Kanatzar,

a forensic examiner for DHS, inspected Hill’s computer and found evidence that files

containing child pornography had been downloaded and stored on Hill’s hard drive. 

Agent Kanatzar found trace evidence that the files Officer Smith downloaded from

Hill’s computer had been on the hard drive before being deleted. Agent Kanatzar also

found three videos the jury determined to be child pornography in Hill’s LimeWire

directory, which made the files accessible to other LimeWire users. Agent Kanatzar

also found four files containing child pornography in the recycle bin on Hill’s

computer. Before being moved to the computer’s recycle bin, the files would have

been saved somewhere else on Hill’s hard drive. One of the imagesin the recycle bin

(Exhibit 40) matched one of the images Officer Smith downloaded on August 3, 2010

(Exhibit 10). 

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Hill wasindicted on November 9, 2010, and arrested the next day. Before trial,

Hill moved to suppress the evidence seized from his computer, alleging the initial

contact with his computer was an unreasonable search and anything derived

therefrom was tainted. The district court denied the motion. Hill then moved to

dismiss either Count 1 or Count 2, arguing conviction on both counts would violate

his right against double jeopardy because possession of child pornography is a lesserincluded offense of receipt. The district court denied the motion, concluding there

was no double jeopardy issue because the possession and receipt charges “involve[d]

different files.” The district court denied Hill’s renewed motion to dismiss a count

at trial. 

Hill’s three day trial began September 25, 2012. The government presented

testimony from the investigating officers and the forensic examiner describing their

interviews with Hill and the child pornography they found on his computer. The

government also showed the still images (Exhibits 4-13, 37-40) and played a portion

of each of the three videos from Hill’s computer (Exhibits 41-43) for the jury.

Maintaining his innocence, Hill took the stand in his own defense. 

Unemployed after losing his job in the technicalsupport division of AT&T Mobility,

Hill explained he supplemented his income rebuilding and repairing broken

computers with component parts. As to the seized computer containing child

pornography, Hill testified he had replaced the RAM, the hard drive, the video

processor, the CD drive, and the power source. Hill also testified he was a “gamer,”

meaning he played interactive video games with others online. Distinguishing

between his familiarity with hardware and his purported ignorance of software, Hill

testified he loaded LimeWire onto his computer to download music and adult

pornography but, contrary to the officers’ testimony, denied he knew the LimeWire

files he downloaded were automatically available to other LimeWire users.

 

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Hill’s direct examination took an unexpected turn. For the first time, Hill

admitted to “knowingly receiving and distributing child pornography involving the

use of minors engaging in sexually explicit conduct,” as charged in the indictment,

and intentionally obtaining the images shown to the jury. But Hill also stated he only

viewed the child pornography to protect his children —Hill explained he was 4

intentionally searching for “preteen” images because he thought an unidentified man

at a party may have taken illicit pictures of his fourteen- and sixteen-year-old

stepdaughters showering. Though Hill’s teenage stepdaughters were not “preteen,”

Hill claimed he viewed many images of child pornography and then deleted them

when he verified they did not include his stepdaughters. When confronted on cross

examination with timing inconsistencies, Hill testified he had also looked for images

of a family friend he had helped after she was exploited online. Hill stated he could

not review all of the 266 suspected child pornography files he downloaded to his

shared folder because he became “disgusted” and “sickened of what [he] had seen”

and “could not continue.” Although Hill later resumed his search, he insisted he

deleted or attempted to delete all the child pornography he downloaded and viewed.

After deliberating for approximately four hours, the jury convicted Hill on both

counts. In separate verdict forms, the jury found Hill (1) received all ten still images

and all three videos found in his shared folder and distributed the images all as

alleged in Count 1, and (2) possessed all four images found in his computer’s recycle

bin as alleged in Count 2. The district court denied Hill’s timely motions for

judgment of acquittal. The district court sentenced Hill to concurrent terms of 144

months for Count 1 and 120 months for Count 2. Hill appeals his convictions.

Hill also admitted to downloading and viewing one of the videos (Exhibit 43)

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before deleting it but denied viewing the other two (Exhibits 41 and 42), the first of

which involved a child victim who was known to be only ten or eleven years old

when the video was produced.

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II. DISCUSSION

A. Motion to Suppress 

Hill first contends the district court erred in denying his motion to suppress

without a hearing because, in Hill’s view, Officer Smith violated Hill’s Fourth

Amendment right to be free from unreasonable searches and seizures by accessing

Hill’s computer using peer-to-peer software and downloading files from Hill’s

LimeWire shared folder. We review the district court’s denial of Hill’s “motion to

suppress de novo, and the underlying factual determinations for clear error.” United

States v. Barker, 437 F.3d 787, 789 (8th Cir. 2006). “We review a district court’s

decision whether to hold an evidentiary hearing for an abuse of discretion.” United

States v. Yielding, 657 F.3d 688, 705 (8th Cir. 2011).

Hill’s Fourth Amendment arguments completely ignore the holding of United

States v. Stults, 575 F.3d 834, 843 (8th Cir. 2009). In Stults, we held a defendant has

“no reasonable expectation of privacy in files . . . retrieved from his personal

computer where [the defendant] admittedly installed and used LimeWire to make his

files accessible to others for file sharing.” Id. It did not matter that the defendant

denied knowing others would be able to access his files because the defendant knew

“‘he had file-sharing software on his computer’” and admittedly downloaded music

and pornography to his shared folder where other users, including law enforcement

officers, had access. Id. (quoting United States v. Ganoe, 538 F.3d 1117, 1127 (9th

Cir. 2008)). 

The same is true here. Hill admittedly downloaded and actively used

LimeWire—file-sharing software that made the scores of pornography files in Hill’s

shared folder accessible to any LimeWire user in the world, including Officer Smith. 

LimeWire itself was a publicly accessible program available for free download by

anyone with a computer and an internet connection. Hill had no reasonable

expectation of privacy in such publicly shared files and “‘cannot invoke the

protections of the Fourth Amendment.’” Id. (quoting Ganoe, 538 F.3d at 1127). The

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district court did not abuse its discretion or otherwise err in denying Hill’s motion to

suppress without a hearing. See Yielding, 657 F.3d at 705 (“A district court

presented with a motion to suppress need not hold an evidentiary hearing as a matter

of course, and a hearing is unnecessary if the district court can determine that

suppression is unwarranted as a matter of law.”). 

B. Double Jeopardy

Hill next contends the district court erred in refusing to dismiss one count of

the indictment on double jeopardy grounds. See United States v. Muhlenbruch, 634

F.3d 987, 1003-04 (8th Cir. 2011) (concluding possessing child pornography under

18 U.S.C. § 2252(a)(4)(B) is a lesser-included offense ofreceiving child pornography

under 18 U.S.C. § 2252(a)(2) when “based on the ‘same act or transaction’” (quoting

Blockburger v. United States, 284 U.S. 299, 304 (1932))). The Double Jeopardy

Clause of the Fifth Amendment protects a criminal defendant from “multiple

punishments for the same criminal offense.” United States v. Bennett, 44 F.3d 1364,

1368 (8th Cir. 1995). We review de novo the denial of a motion to dismiss one count

of the indictment “on the grounds of double jeopardy.” Id. To establish his double

jeopardy claim, Hill must show Count 1 and Count 2 “are in law and fact the same

offense.” Id. This he cannot do. 

With just one exception, the jury’s guilty verdicts for Count 1 and Count 2

were based on different visual depictions of child pornography. On Count 1, the jury

found Hill received the ten images and three videos found in Hill’s LimeWire shared

folder and distributed the same ten images. On Count 2, the jury found Hill possessed

the four images found in Hill’s recycle bin, three of which were different from the

images charged in Count 1. Because the jury specifically found Hill guilty based on

different facts and images for each count, the jury did not convict Hill “‘of receiving

[and distributing] the same images that he was also found to have possessed,’ and

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thus no double jeopardy violation occurred.” United States v. Manning, 738 F.3d

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937, 947 (8th Cir. 2014) (quoting United States v. Huether, 673 F.3d 789, 798 (8th

Cir. 2012)).

C. Sufficiency of the Evidence

Finally, Hill assertsthe district court erred in denying his motionsfor judgment

of acquittal on both counts, arguing the evidence wasinsufficient to convict him. See

Fed. R. Crim. P. 29(a). We review de novo the denial of Hill’s motions for judgment

of acquittal. See United States v. Landsdown, 735 F.3d 805, 806 (8th Cir. 2013). 

“We view the evidence in the light most favorable to the government, resolving

evidentiary conflicts in favor of the government, and accepting all reasonable

inferences drawn from the evidence that support the jury’s verdict.” United States v.

Cook, 603 F.3d 434, 437 (8th Cir. 2010). “We may reverse only if no reasonable jury

could have found the defendant guilty beyond a reasonable doubt.” United States v.

Washington, 318 F.3d 845, 852 (8th Cir. 2003).

1. Possession

In Hill’s view, the government failed to prove Hill knowingly possessed the

four images found in his computer’s recycle bin (Exhibits 37-40). Hill’s argument

is based on his mistaken belief that the images found in his recycle bin were found

in “unallocated space” on his hard drive and Hill could not access or control those

files without special tools Hill did not have. Hill’s belief is belied by the record.

Agent Kanatzar testified the four images entered into evidence as Exhibits 37,

38, 39, and 40, and found by the jury to support convicting Hill of possessing child

To the extent Hill might have argued the same image charged as Exhibit 10 5

in Count 1 and Exhibit 40 in Count 2 created an issue, we conclude any overlap “does

not affect [Hill’s] substantial rights” and is harmless given the jury’s specific guilty

verdicts with respect to all of the other distinct images and videos charged in Count

1 and Count 2, respectively. Fed. R. Crim. P. 52(a). 

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pornography as charged in Count 2, were still in Hill’s recycle bin when the officers

seized Hill’s computer. Unlike “unallocated space,” the recycle bin is an accessible

folder on the computer’s hard drive “in which a user places files to be deleted.”6

United States v. Tucker, 305 F.3d 1193, 1198 n.8 (10th Cir. 2002). “Placement in the

bin does not automatically delete files, however.” United States v. Walser, 275 F.3d

981, 984 n.4 (10th Cir. 2001). “[R]emoval of files from the recycle bin generally

requires manual steps to be taken by the user.” United States v. Romm, 455 F.3d 990,

993 n.2 (9th Cir. 2006). In other words, a file in the recycle bin could have been

either permanently deleted or restored to its original location, at Hill’s discretion.

Hill may have “tried to get rid of” the child pornography he downloaded to his

hard drive, but he never emptied the four files from his recycle bin and thus never

relegated them to unallocated space. The images remained in his recycle bin,

accessible to Hill and subject to his dominion and control without any special tools. 

The jury could reasonably infer Hill’s “intentional attempt to delete child

pornography files, such as by placing them in [his] computer’s recycle bin,

. . . suggest[ed] he was aware of the files and their contents.” United States v. Breton,

740 F.3d 1, 17 (1st Cir. 2014). Indeed, Hill—no stranger to computers—admitted he

actively sought child pornography on LimeWire using very specific search terms,

intentionally downloaded images of child pornography, viewed those illegal images,

and eventually deleted some of them, before searching for more images. Four of

those illegal images remained in his recycle bin when officers seized his computer. 

A reasonable jury could convict Hill of knowingly possessing child pornography.7

“Unallocated space isspace on a hard drive that contains deleted data, usually

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emptied from the operating system’s trash or recycle bin folder, that cannot be seen

or accessed by the user without the use of forensic software. Such space is available

to be written over to store new information.” United States v. Flyer, 633 F.3d 911,

918 (9th Cir. 2011) (emphasis added). 

Because the illegal images were in Hill’s recycle bin, we need not decide 7

whether images of child pornography found in unallocated space orthe browser cache

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See, e.g., United States v. Worthey, 716 F.3d 1107, 1113-14 (8th Cir. 2013); United

States v. Koch, 625 F.3d 470, 478-79 (8th Cir. 2010).

2. Receipt and Distribution

The evidence presented at trial was also more than sufficient to convict Hill of

knowingly receiving and distributing child pornography. At trial, Hill unequivocally 8

confessed to “knowingly receiving and distributing child pornography” as charged

in the indictment and intentionally using LimeWire to download and view the images

and one of the videos for which he was convicted. Hill claimed he searched for and

downloaded child pornography in an ill-conceived plan to protect his stepdaughters,

not knowing the files in his LimeWire shared folder would be accessible to other

users. But the jury was not obligated to accept Hill’s admittedly irrational

justifications and belated claims of ignorance. “[Q]uestions concerning the

credibility of witnesses, where their testimony is not incredible on its face, are for the

jury to decide.” United States v. Samuels, 543 F.3d 1013, 1019 (8th Cir. 2008). 

Hill’s explicit description of his own considerable computer abilities and disturbing

search habits, combined with the investigating officers’ detailed testimony regarding

Hill’s inculpatory statements, would allow a reasonable jury to dismiss Hill’s dubious

claims of innocence.

Even without Hill’s damning witness-stand confession, the evidence of

knowing receipt and distribution was overwhelming. Hill told the investigating

would support a verdict of knowingly possessing child pornography under the

circumstances of this case. See United States v. McArthur, 573 F.3d 608, 614-15 (8th

Cir. 2009) (determining, on the case facts, images found in unallocated space

supported conviction).

Hill’s arguments primarily focus on distribution, but a defendant can violate

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18 U.S.C. § 2252(a)(2) by “knowingly receiv[ing], or distribut[ing]” child

pornography. (Emphasis added). Here, the jury reasonably found the evidence

sufficient to find Hill guilty of violating § 2252(a)(2) both ways. 

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officers he intentionally searched for and downloaded at least one hundred images of

child pornography fromother LimeWire users’ shared foldersfor months. On August

3, 2010, Officer Smith downloaded ten such filesfromHill’s public LimeWire folder. 

During his forensic examination, Agent Kanatzar found three more videos of child

pornography in Hill’s shared folder. The jury reasonably convicted Hill of knowingly

receiving and distributing child pornography. See United States v. Collins, 642 F.3d

654, 656-57 (8th Cir. 2011) (recognizing use of file-sharing program and knowledge

of computers supported guilty verdict). 

III. CONCLUSION

We affirm.

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