In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-2007

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FABIO CARANI,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 CR 150—John F. Grady, Judge.

____________

ARGUED APRIL 9, 2007—DECIDED JULY 6, 2007

____________

Before EASTERBROOK, Chief Judge, and KANNE and

WILLIAMS, Circuit Judges.

KANNE, Circuit Judge. Fabio Carani was charged with

one count of possessing child pornography in violation of

18 U.S.C. § 2252A(a)(5)(B), and two counts of knowingly

receiving child pornography in the form of certain computer files in violation of 18 U.S.C. § 2252A(a)(2)(A). A

jury found Carani guilty of possession, but returned a

verdict of not guilty as to one of the receipt counts, and

was unable to reach a unanimous decision as to the other

receipt count. The district court sentenced Carani to

seventy-two months’ imprisonment. Carani appeals both

his conviction and sentence. Finding no error, we affirm.
2 No. 06-2007

I. BACKGROUND

Carani is an Italian immigrant who moved to the United

States in 1972. He, along with his wife Natza, owned a

computer. On this computer, Carani used a program called

Kazaa Lite (“Kazaa”).

Kazaa is a peer-to-peer file sharing program through

which users may download files (music, videos, text, etc.)

from the computers of other Kazaa users. Users search for

files using search terms as they would in a web browser.

Kazaa returns a list of available files that fit the users’

search criteria. Users may gain more information about

the files by hovering over the file name with the computer

cursor. These files are located on the computers of other

Kazaa users, not on the Internet at large. The purpose

of Kazaa is to allow its users to share such files with

each other. When files are completely downloaded or

shared through Kazaa, a record of that activity is logged

on the user’s computer in a database located in what we

will call the ”.db folder.”

Files that are downloaded using Kazaa are placed, by

default, in the user’s “My Shared Folder.” If a user does

not wish to allow other users to access his files, he may

change his Kazaa settings so that he may download files

from others’ computers, but they may not download files

from his computer. In order to encourage users to share

their files, Kazaa employs a participation level system.

Participation levels range from 0 to 1,000, and increase

with the number of files the user shares. When multiple

users attempt to download the same file, they are placed

in a queue. Users with higher participation levels are

given priority over those with lower participation levels.

Thus, a user who shares his files with others will be able

to more quickly and easily download the files that he

wants from other Kazaa users.
No. 06-2007 3

In February 2005, agents in the Cyber Crimes Unit of

the Department of Homeland Security, Immigration and

Customs Enforcement (“ICE”), obtained a warrant to

search Carani’s residence. During the search, Senior

Special Agent Jason Varda found Carani’s computer. It

was powered on, connected to the Internet, and running

Kazaa at the time. Through Kazaa, Carani’s computer was

actively downloading files from other Kazaa users, and

allowing other Kazaa users to download files on Carani’s

computer. Agent Varda photographed the screen, which

showed that another user was attempting to download a

file by the name “incest porn, a little girl has sex with

an adult guy.” The lower right of the computer screen

indicated: “Connected as default user at Kazaa, sharing

214 files.”

After photographing the computer screen, Agent Varda

disconnected the computer from its power supply. He

removed the hard drive and connected it to a write-blocking device to ensure that no data entered the hard drive.

Agent Varda then used a software program called EnCase

to preview all of the files on the hard drive, including

those that had been deleted. The preview revealed a

number of suspected child pornography videos.

Agents interviewed Natza during the search. Natza

indicated that she and Carani had watched videos of child

pornography—sometimes in their entirety—on their

computer and then deleted them. Meanwhile, Carani

agreed to accompany agents to the Highland Park police

department. At the station, he was advised of his constitutional rights orally and in writing, and he agreed to

be interviewed. Initially, Carani told the agents that he

had come across child pornography while searching for

adult pornography and had seen it about ten times. He

said that when this happened, he would watch the video

and then delete it, and that he had never saved any

child pornography on his computer. Later, Carani said
4 No. 06-2007

that he had seen “tons” of child pornography, and that

he may have had one video saved.

The agents took a break from the interview to consult

with the United States Attorney’s Office. When they

returned, Carani admitted that he had not been entirely

forthcoming with them. Carani said that he used terms

such as “pedo” and “r@ygold” to search Kazaa specifically

for child pornography. Agents testified at trial that both

of these terms are related to child pornography. Carani

also told the agents that the saved video that he had

mentioned before the break was titled “Segundo.” Carani

further indicated that he was particularly interested in

videos involving family incest. He stated that he was

no longer aroused by adult pornography, and had last

viewed child pornography between two weeks and one

month prior to the interview. He told the agents that he

had never intentionally distributed child pornography,

but that he may have done so inadvertently through the

Kazaa program as he did not understand what the “My

Shared Folder” did.

Carani then prepared the following written statement:

I have viewed child pornography in the past and

then deleted it. I have only one saved right now in

the saved section, which is “My Kazaa Lite.” As far

as computers are concerned I am a beginner at

best. I did not distribute any of these videos on

purpose, and I have no explanation as to how these

videos were shared, but I never shared anything.

I don[’]t even know how to do so. The only explanation is that, as I viewed them and deleted them,

they were automatically shared without my knowing of it. Some of these videos I stumbled upon by

accident downloading other videos, and through

[curiosity] I looked up some child pornography and

again deleted it when I saw it. but the more I saw
No. 06-2007 5

the more I felt that it was wrong to do so. My

intentions were never to hurt anybody and forgive

my ignorance but I did not know that this was

against the law via the way it was done (through

Kazaa Lite). I feel extremely bad about what

happened, but I can say that I learned a lot

through this experience.

Carani’s hard drive was sent to Agent Skinner, an ICE

forensic analyst with the Cyber Crimes Center in Fairfax,

Virginia. Agent Skinner made further use of the EnCase

software to analyze the contents of Carani’s hard drive.

Agent Skinner testified that he initially found two child

pornography files in Carani’s temporary Internet folders,

both “BabyJ Sunshine” files, which he determined had

been accessed through a web browser. Agent Skinner used

EnCase to search for “BabyJ” references. His search

turned up a number of such references, including references to the Kazaa My Shared Folder, and the term

“pedophilia.” Agent Skinner then constructed a search

using a variety of terms associated with child pornography:

pedophilia, young Lolita, kiddie, preteen, kindersex, pedo,

BabyJ, Baby J, pedo video, illegal pedophilia, r@ygold,

underage, incest, Lolita, kiddie porn, real kiddie, kinder,

and child lover. This search of the hard drive returned

a large number of separate and distinct hits, including

3,050 hits for “kiddie,” 2,011 hits for “preteen,” 3,603 hits

for “pedo,” 1,799 hits for “r@ygold,” and 3,720 hits for

“Lolita.” Agent Skinner concluded that Carani was

actively seeking out child pornography, as a home computer would not otherwise contain so many references to

terms associated with child pornography. Agent Skinner

also located numerous files in both the My Shared Folder

and the .db folder whose names were suggestive of child

pornography. Agent Skinner testified that when a user

downloads a file from Kazaa, he is able to view the file

name, and when he hovers over the file name, he can see

a file description and keywords. Additionally, the Kazaa
6 No. 06-2007

screen contains a display which notifies the user that

another person is downloading a file from his computer,

and indicates which file.

Agent Skinner also testified regarding Carani’s Kazaa

participation level. Carani’s participation level was 771,

out of a possible 1,000. Agent Skinner determined that

Carani’s high participation level was the result of a

“hack”—an unauthorized technique which caused Carani’s

computer to download files from itself, and artificially

boost his participation level. Use of the hack required

action on the part of the computer user, and there was

evidence that the hack had been used extensively. Agent

Skinner further testified that Carani’s computer and

Kazaa program functioned properly.

Carani called Scott Ellis, a computer business consultant, to testify as an expert on his behalf. Ellis testified

that Carani was not a sophisticated computer user, and

did not know how to use his My Shared Folder on Kazaa.

He also testified that a virus, worm, remotely located

pedophile, or software glitches could have caused the

references to child pornography found on the computer.

Ellis described Kazaa as “a piece of rogue software” that

“can behave in an uncontrolled fashion.” R. 131, p. 464.

Natza and Carani both testified at trial. Each denied

making statements to agents that they had watched child

pornography, and explained that they only saw child

pornography when they mistakenly came across it while

searching for adult pornography. They explained that

they downloaded video files in large blocks, then reviewed it and discarded the child pornography that they

came across. They also emphasized that they were computer novices, and did not fully understand the Kazaa

program.

In rebuttal, Agent Skinner testified that his analysis

showed that child pornography videos were not down-
No. 06-2007 7

loaded in large chunks along with adult pornography;

rather, they were downloaded along with other child

pornography, in groups of five or six. Agent Skinner also

refuted Ellis’s testimony that the Kazaa program was

not running properly on Carani’s computer.

When it came time to instruct the jury, the court used

the Seventh Circuit’s pattern instructions to define

knowingly: “When the word ‘knowingly’ is used in these

instructions, it means that the defendant realized what he

was doing and was aware of the nature of his conduct, and

did not act through ignorance, mistake, or accident.” 7th

Cir. Pattern Jury Inst. 4.06. The court also included an

instruction on deliberate avoidance, also known as an

“ostrich instruction”: “You may infer knowledge from a

combination of suspicion and indifference to the truth.” Id.

This instruction included an example relevant to this

case: “If you find that the defendant had a strong suspicion

that a file was child pornography, but ignored that suspicion and downloaded the file, you may conclude that he

acted knowingly, as I have used that word.” The district

court also instructed the jury on the meaning of possession: “In the context of this case, possession means intentionally retaining child pornography after downloading it.”

After the jury began deliberations, they sent the following question to the district court: “Does downloading,

watching, & deleting constitute possession?” The district

court replied: “The answer to this question depends upon

whether, at the time he downloaded material, the defendant knew or strongly suspected that it was child pornography and downloaded it anyway. If you find beyond a

reasonable doubt that he did, then the answer to your

question is ‘yes.’ If you have a reasonable doubt as to

whether the defendant knew or strongly suspected that

the material was child pornography at the time he downloaded it, then the answer to your question is ‘no.’ ”
8 No. 06-2007

The jury found Carani guilty of possession, but returned

a verdict of not guilty as to one of the receipt counts, and

was unable to reach a unanimous decision as to the other

receipt count.

At the sentencing hearing, the district court heard

arguments from both sides. Carani’s counsel reiterated his

arguments that Carani was not a sophisticated computer

user, and that he only downloaded child pornography

inadvertently. In support of a distribution enhancement,

the government argued that Carani received a “thing of

value” as required by the Sentencing Guidelines, by

increasing his participation level, which improved his

accessibility to other users’ files, and that Carani’s

actions constituted “active trading” in contraband materials. See U.S.S.G. § 2G2.2(b)(3)(B).

The district court found that “[t]he defendant’s position

in regard to whether he knew he possessed child pornography is simply counter to the credible evidence produced

at trial, and therefore I do find that the defendant knowingly obtained child pornography on his computer . . . . And

turning now to the first guideline issue to which that

finding pertains, I do find that the defendant knowingly

distributed child pornography in that he knowingly made

his child pornography on his computer available to other

Kazaa users, who downloaded it from his computer.” Mar.

16, 2006 Tr. 38-39. The district court imposed a two-level

sentencing enhancement for distribution under U.S.S.G.

§ 2G2.2(b)(3)(F). The district court added: “A subsidiary

finding implied in what I have just said is that the defendant was perfectly aware of the shared files folder. He

knew what was in it, he accessed it, and his denial that

he knew what was in there is simply not credible.” Mar.

16, 2006 Tr. 39. The district court sentenced Carani to

72 months’ imprisonment and two years of supervised

release.
No. 06-2007 9

II. ANALYSIS

This appeal presents three issues: (1) whether the

district court abused its discretion by giving the deliberate

avoidance “ostrich” instruction to the jury; (2) whether

the district court’s response to a jury question was in error;

and (3) whether the district court improperly applied a

sentencing enhancement for the distribution of child

pornography.

A. Ostrich Instruction

We review the district court’s decision to give an ostrich

instruction for an abuse of discretion, viewing all evidence

in the light most favorable to the government. United

States v. Leahy, 464 F.3d 773, 796 (7th Cir. 2006); United

States v. Carrillo, 435 F.3d 767, 780 (7th Cir. 2006) (citing

United States v. Fallon, 348 F.3d 248, 253 (7th Cir. 2003)).

An ostrich instruction is appropriate where (1) the

defendant claims a lack of guilty knowledge, and (2) the

government has presented evidence sufficient for a jury to

conclude that the defendant deliberately avoided learning

the truth. Carrillo, 435 F.3d at 780. Deliberate avoidance

is more than mere negligence, the defendant must have

“deliberately avoided acquiring knowledge of the crime

being committed by cutting off his curiosity through an

effort of the will.” Leahy, 464 F.3d at 796 (citing Fallon,

348 F.3d at 253). Deliberate avoidance is not a standard

less than knowledge; it is simply another way that knowledge may be proven. Carrillo, 435 F.3d at 780 (citing

United States v. Ramsey, 785 F.2d 184, 189 (7th Cir.

1986)). “The purpose of the ostrich instruction ‘is to

inform the jury that a person may not escape criminal

liability by pleading ignorance if he knows or strongly

suspects he is involved in criminal dealings but deliberately avoids learning more exact information about the
10 No. 06-2007

nature or extent of those dealings.’ ” Carrillo, 435 F.3d at

780 (quoting United States v. Craig, 178 F.3d 891, 896 (7th

Cir. 1999); United States v. Rodriguez, 929 F.2d 1224, 1227

(7th Cir. 1991)).

Physical acts and outward expressions by the defendant

evidencing his deliberate avoidance, while useful, are not

necessary for a jury to infer that the defendant was curious

but deliberately ignored his suspicions. Carrillo 435 F.3d

at 780-81 (explaining the difference between avoidance

through “overt physical acts” and “purely psychological”

avoidance). The circumstances surrounding the defendant

may be sufficient to infer that, given what the defendant

knew, he must have forced his suspicions aside and

deliberately avoided confirming for himself that he was

engaged in criminal activity. Id. at 781 (citing United

States v. Carrillo, 269 F.3d 761, 769-70 (7th Cir. 2001);

United States v. Farouil, 124 F.3d 838, 844 (7th Cir. 1997);

United States v. Stone, 987 F.2d 469, 472 (7th Cir. 1993);

Rodriguez, 929 F.2d at 1227-28; United States v. Caliendo,

910 F.2d 429, 434 (7th Cir. 1990); United States v. Josefik,

753 F.2d 585, 589 (7th Cir. 1985); United States v. Burns,

683 F.2d 1056, 1060 (7th Cir. 1982)).

The crux of Carani’s argument at trial was that any

child pornography videos he may have downloaded to his

computer were downloaded solely through inadvertence.

In addition to direct evidence that Carani in fact intended

to download child pornography, such as statements he

made to agents at the Highland Park Police Station, the

government also presented evidence from which a jury

could infer that Carani deliberately avoided confirming

that certain files were in fact child pornography. Government witnesses testified that many files that were, or had

once been, on Carani’s computer had words associated

with child pornography in the file names. Those file

names, in addition to file descriptions and keyword
No. 06-2007 11

listings, would have been displayed in the Kazaa search

listings when Carani downloaded them. These words

indicating that the files contained child pornography were,

quite literally, right in front of his face. Thousands upon

thousands of references to child pornography were found

on Carani’s computer; and evidence, such as the hack used

to boost his participation level, suggests that Carani was

not so bungling a computer user as he suggested.

The government presented evidence sufficient for the

jury to infer that Carani suspected that files he was

downloading and sharing with others contained child

pornography, but deliberately pushed those suspicions

aside in order to avoid confirming his criminal activities.

The district court did not abuse its discretion by giving

the ostrich instruction to the jury.

B. Response to Jury Question

“We review a decision to answer a question from the jury

as well as the language used in the response for an abuse

of discretion.” United States v. Hewlett, 453 F.3d 876, 880

(7th Cir. 2006) (citing United States v. Young, 316 F.3d 649

(7th Cir. 2002)). “[T]he district court retains broad discretion in deciding how to respond to a question propounded

from the jury and . . . the court has an obligation to

dispel any confusion quickly and with concrete accuracy.”

United States v. Sims, 329 F.3d 937, 943 (7th Cir. 2003).

When reviewing the language of a supplemental jury

instruction, we consider three factors: “(1) whether the

instructions as a whole fairly and adequately treat the

issues; (2) whether the supplemental instruction is a

correct statement of the law; and (3) whether the district

court answered the jury’s questions specifically.” United

States v. Danford, 435 F.3d 682, 688 (7th Cir. 2006) (citing

Sims, 329 F.3d at 943; Young, 316 F.3d at 662). An error

in a supplemental instruction is only reversible if the
12 No. 06-2007

defendant has been prejudiced. See Young, 316 F.3d at

662.

Carani argues that, in answering the jury’s question

about possession, the district court impermissibly lowered

the burden of proof with respect to knowledge by including the language, “knew or strongly suspected.” Given

the jury’s confusion on such a critical aspect of the instructions, the district court was within its discretion to

provide the jury with an answer. See Sims, 329 F.3d

at 943.

Having concluded that the district court did not abuse its

discretion by providing a supplemental instruction, we

must next evaluate the language used in that instruction

under the three factor rubric. See Danford, 435 F.3d at

688. The first and third factors are easily satisfied. The

district court provided a thorough explanation that was

specifically targeted at the jury’s question regarding

whether the defendant “possessed” child pornography if

he discarded it after he watched it. The second factor,

whether the instruction accurately stated the law, deserves more discussion.

The district court’s supplemental instruction indicated

that Carani could only be guilty of possession if, “at the

time he downloaded material, the defendant knew or

strongly suspected that it was child pornography and

downloaded it anyway.” This definition of possession is

surely too narrow.

Suppose that, unbeknownst to an individual, a stranger

on the street mistakenly slips a bag of marijuana into his

pocket. Moments later, he is arrested on an outstanding warrant and the officer discovers the marijuana. He

is not guilty of the possession of marijuana, because he

does not have the requisite knowledge. But, suppose that

before he is arrested on the outstanding warrant, he

discovers the marijuana and decides to keep it. Then,
No. 06-2007 13

despite the fact that he did not know about the marijuana

at the time that it was put in his pocket, he would have

all of the knowledge required to be guilty of possession.

United States v. Myers, 355 F.3d 1040, 1042 (7th Cir.

2004); see United States v. X-Citement Video, Inc., 513 U.S.

64, 76-78 (1994); United States v. Hall, 142 F.3d 988, 997

(7th Cir. 1998) (explaining that if a defendant had the

opportunity to delete child pornography files on his

computer but chose not to, the requirements of possession

have been met).

It is this second scenario that the district court’s instructions did not take into account. A possessor of child

pornography videos need not know that it is such at the

time of download, so long as he discovers that it is child

pornography after the download and decides to keep it

anyway. The district court’s instruction on possession

crafted too narrow a definition of possession by requiring

knowledge at the time of download.

Thus, the instruction could not have harmed Carani. If

anything, Carani benefitted from giving it. In effect, the

jury was told not to find Carani guilty of possession if

he inadvertently acquired child pornography and subsequently made a conscious decision to keep it. The error in

the supplemental instruction was harmless to Carani.

Additionally, the use of the term “strongly suspected”

in the supplemental instruction was proper given our

analysis of the ostrich instruction.

C. Distribution Enhancement

“We review the district court’s interpretation and

application of the Sentencing Guidelines de novo, and its

findings of fact for clear error.” United States v. Fife, 471

F.3d 750, 752 (7th Cir. 2006) (citing United States v. Ellis,

440 F.3d 434, 436 (7th Cir. 2006)). “A finding of fact is
14 No. 06-2007

clearly erroneous only if, based upon the entire record, we

are left with the definite and firm conviction that a

mistake has been committed.” United States v. Chamness,

435 F.3d 724, 726 (7th Cir. 2006) (citations and quotations

omitted).

Under U.S.S.G. § 2G2.2(a)(1), the base offense level for

possession of child pornography in violation of 18 U.S.C.

§ 2252A(a)(5) is eighteen. The government requested a

five-level enhancement under U.S.S.G. § 2G2.2(b)(3)(B)

for the “[d]istribution [of child pornography] for the

receipt, or expectation of receipt, of a thing of value, but

not for pecuniary gain.” The district court, instead, applied

a two-level enhancement under U.S.S.G. § 2G2.2(b)(3)(F)

for “[d]istribution other than distribution described in

subdivisions (A) through (E).” The district court applied a

number of other enhancements that Carani does not

take issue with, bringing his total offense level to thirtyfive. This yields an advisory guidelines range of 168-210

months. The statutory maximum, however, is ten years

(120 months). 18 U.S.C. § 2252A(b)(2). Thus, the guidelines provide for a sentence of 120 months. After considering the sentencing factors in 18 U.S.C. § 3553(a), the

district court sentenced Carani to seventy-two months’

imprisonment followed by two years’ supervised release.

Carani makes two arguments with respect to the distribution enhancement: (1) that there was insufficient

evidence that he distributed child pornography; and (2)

that if he distributed child pornography, he did not do

so for the receipt of a thing of value.

This court has not previously considered the exact

contours of what constitutes “distribution” in the context

of the Kazaa peer-to-peer file sharing program. The Tenth

Circuit, however, recently held that allowing others to

access one’s files through Kazaa is distribution. United

States v. Shaffer, 472 F.3d 1219 (10th Cir. 2007). The
No. 06-2007 15

appellant in Shaffer, who was convicted of distributing

child pornography, argued that knowing that others were

accessing and downloading the files on his computer

through Kazaa did not amount to distribution. Id. at 1223.

Rather, he argued, an affirmative act must be taken by

the distributor for each file at the time of distribution. Id.

The Tenth Circuit rejected this argument, likening distribution through Kazaa to the operation of a self-serve gas

station: “The owner may not be present at the station, and

there may be no attendant present at all. And neither

the owner nor his or her agents may ever pump gas. But

the owner has a roadside sign letting all passerby know

that, if they choose, they can stop and fill their cars for

themselves, paying at the pump by credit card.” Id.

at 1223-24.

The notion that Carani could knowingly make his child

pornography available for others to access and download

without this qualifying as “distribution” does not square

with the plain meaning of the word. Indeed, this court

rejected a similar argument in United States v. Gunderson,

where the defendant had programmed his computer to

allow others to access his files if they first uploaded files to

his computer. 345 F.3d 471, 473 (7th Cir. 2003). Once the

program was written, it required no action by Gunderson

to allow others to download his files. Id. We described the

passive nature of the program as “irrelevant” to whether

a distribution enhancement was appropriate. Id. Such is

the case here. The district court specifically found that

Carani made his child pornography videos available

through Kazaa, and that he knew other users were

downloading these files from him. This finding was not

clearly erroneous.

Carani’s second argument, that the distribution enhancement was not appropriate because he did not receive a

thing of value in return, misstates the record and is a nonstarter. At sentencing, the government argued for a five-
16 No. 06-2007

level enhancement under U.S.S.G. § 2G2.2(b)(3)(B), which

would require that Carani received something of value in

return for the child pornography that he distributed. In

his opening brief, Carani states: “The court erred by

applying the five-level sentencing enhancement under

U.S.S.G. § 2G2.2(b)(3)(B).” The record clearly shows

that the district court made no such enhancement. The

district court applied a two-point enhancement under

U.S.S.G. § 2G2.2(b)(3)(F), which does not require that

Carani received anything in return for the child pornography he distributed. Thus, there is no factual basis for

this argument.

III. CONCLUSION

For the foregoing reasons, Fabio Carani’s conviction and

sentence are AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-6-07