United States Court of Appeals 

For the First Circuit 

No. 14-1764 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

GERALD J. SILVA, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF RHODE ISLAND 

[Hon. William E. Smith, Chief U.S. District Judge] 

Before 

Lynch, Kayatta, and Barron, 

Circuit Judges. 

Robert B. Mann, with whom Mann and Mitchell was on brief, for 

appellant. 

Donald C. Lockhart, Assistant United States Attorney, with 

whom Peter F. Neronha, United States Attorney, was on brief, for 

appellee. 

July 20, 2015 
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BARRON, Circuit Judge. Gerald Silva raises a number of 

challenges to his convictions for receipt and possession of child 

pornography, in violation of 18 U.S.C. § 2252(a)(2) and (4). Silva 

first contends that the child pornography statutes under which he 

was charged were unconstitutionally vague. He then argues that 

the District Court should have dismissed one count of the 

indictment for which, he contends, there was no evidence submitted 

to the grand jury. He also argues that the District Court abused 

its discretion in barring the testimony of Silva's proposed expert 

witness and in instructing the jury. And finally, Silva argues 

that the District Court wrongly denied his motion for a judgment 

of acquittal under Federal Rule of Criminal Procedure 29. We find 

no merit to any of these challenges and therefore affirm the 

conviction. 

I. 

According to evidence offered at trial, this case arises 

from an investigation by Canadian police who, in cooperation with 

law enforcement in the United States, were investigating a company, 

Azov Films, due to its alleged production and distribution of 

materials featuring nude, young boys. Azov operated a website 

that offered a variety of materials, including some films produced 

by other companies and some Azov-produced films. A United States 

postal inspector testified at trial that there had been citizen 
- 3 - 

complaints "in which people stated that they were selling child 

pornography on the website." 

On May 1, 2011, Canadian authorities executed a search 

warrant on Azov's Toronto premises and shut down the website. 

Canadian law enforcement seized business records -- including 

customer purchase and shipping information -- and passed the 

records along to the United States Postal Inspection Service. The 

records listed Gerald Silva as a customer and showed that he placed 

twenty-two orders between October 2010 and April 2011 and bought 

seventy-five items, eleven of which are listed in the indictment. 

Silva was charged with six counts of receipt of child 

pornography in violation of 18 U.S.C. § 2252(a)(2) and with one 

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

§ 2252(a)(4). Silva was found guilty on all counts after a jury 

trial in the District of Rhode Island. He was sentenced to a 72-

month term of imprisonment. He now appeals. 

II. 

We begin with Silva's challenge to the constitutionality 

of the statute. The statutory provisions under which Silva was 

charged both define child pornography as "any visual 

depiction . . . if -- (A) the producing of such visual depiction 

involves the use of a minor engaging in sexually explicit conduct; 

and (B) such visual depiction is of such conduct." 18 U.S.C. 

§ 2252(a)(2); see also id. § 2252(a)(4). The statute cross-
- 4 - 

referenced by these measures defines "sexually explicit conduct" 

to include the "lascivious exhibition of the genitals or pubic 

area of any person." Id. § 2256(2)(A)(v).1 

Silva contends that "lascivious exhibition" is too vague 

to provide notice of what depictions fall within the definition of 

child pornography and to provide standards for law enforcement to 

prevent the arbitrary enforcement of the statute. He therefore 

contends that his convictions under the statutes violate his Fifth 

Amendment due process rights, a challenge we review de novo. 

United States v. Zhen Zhou Wu, 711 F.3d 1, 11-12 (1st Cir. 2013). 

The Supreme Court in United States v. X-Citement Video, 

Inc., 513 U.S. 64 (1994), however, rejected a constitutional 

vagueness challenge to the same definitional provision of the 

statute. The Court described the vagueness claim raised by the 

defendants as "insubstantial," and adopted the reasoning of the 

Ninth Circuit. Id. at 78-79. The Court of Appeals had found that 

"'[l]ascivious' [was] no different in its meaning than 'lewd,' a 

commonsensical term whose constitutionality [had been] 

specifically upheld in" the Supreme Court's prior precedents. 

 1 The full text of the definition in 18 U.S.C. § 2256(2)(A) 

provides: 

"[S]exually explicit conduct" means actual or 

simulated -- (i) sexual intercourse . . .; 

(ii) bestiality; (iii) masturbation; (iv) 

sadistic or masochistic abuse; or (v) 

lascivious exhibition of the genitals or pubic 

area of any person; . . . . 
- 5 - 

United States v. X-Citement Video, Inc., 982 F.2d 1285, 1288 (9th 

Cir. 1992) (citing Miller v. California, 413 U.S. 15 (1973), and 

New York v. Ferber, 458 U.S. 747 (1982)); see also United States 

v. Frabizio, 459 F.3d 80, 85 (1st Cir. 2006) ("The courts are also 

in agreement that the term 'lascivious' is sufficiently well 

defined to provide . . . notice of what is permissible and what is 

impermissible."). Silva's constitutional due process challenge is 

thus without merit. 

III. 

Silva next challenges the District Court's denial of his 

motion to dismiss count seven of the indictment, which charged 

Silva with knowing possession of child pornography under 18 U.S.C. 

§ 2252(a)(4). Silva contends the grand jury heard no evidence to 

support count seven and thus that the District Court erred in 

denying his pretrial motion to dismiss it. But see Kaley v. United 

States, 134 S. Ct. 1090, 1098 (2014) ("The grand jury gets to say 

-- without any review, oversight, or second-guessing -- whether 

probable cause exists to think that a person committed a crime."); 

Costello v. United States, 350 U.S. 359, 363-64 (1956). But the 

grand jury clearly heard evidence to support count seven as it was 

written in the indictment and thus the argument Silva makes is 

without foundation.2 

 2 Count seven of the indictment stated: 
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That is so even though Silva contends that there was no 

evidence to support count seven as it was framed in a subsequently 

furnished bill of particulars. That bill of particulars, which 

the government provided Silva in response to his motion requesting 

that it do so, did identify three specific films that would be 

used as evidence for count seven at trial, while the count set 

forth in the indictment itself was not limited to any particular 

films. But the bill of particulars is not the indictment, and 

thus the specificity of the bill of particulars does not change 

the fact that the government supplied the grand jury with evidence 

to support count seven of the indictment as it was stated. See 

Roberts v. United States, 752 A.2d 583, 592 (D.C. 2000) ("Although 

the specific details of the carnal knowledge incident specified in 

the bill of particulars had not been individually presented to the 

grand jury, that body heard ample evidence of the entire series of 

events of which that incident was a part."). The District Court 

 

From in or about April 2010 to on or about 

September 27, 2012, in the District of Rhode 

Island and elsewhere, the defendant, GERALD J. 

SILVA, did knowingly possess one or more 

matters which contained a visual depiction of 

sexually explicit conduct, the production of 

which involved the use of a minor engaging in 

sexually explicit conduct, that had been 

transported in interstate and foreign commerce 

and which was produced using materials which 

had been transported in interstate and foreign 

commerce. All in violation of 18 U.S.C. 

§2252(a)(4). 
- 7 - 

therefore properly rejected Silva's challenge to the sufficiency 

of the evidence before the grand jury. See United States v. 

Capozzi, 486 F.3d 711, 727 (1st Cir. 2007). 

IV. 

Silva also argues that the District Court erred in 

preventing the testimony of the defendant's proposed expert 

witness. We review this ruling for abuse of discretion. United 

States v. Tetioukhine, 725 F.3d 1, 6 (1st Cir. 2013). 

Silva offered Professor John Leo, a retired Professor of 

English from the University of Rhode Island, as an expert under 

Federal Rule of Evidence 702. The District Court conducted an 

evidentiary hearing on the matter, at which Professor Leo 

testified. The District Court then declined to permit Professor 

Leo to appear as an expert witness. 

Silva argues that the District Court erred in excluding 

Professor Leo’s testimony because Silva asserts it "would have 

helped the jury understand the pictures" because Professor Leo's 

"technical understanding of film" would have "enhance[d] the 

[jury's] understanding of the videos in question in this case." 

In particular, Silva contends that Professor Leo was expected to 

testify to his opinion that the settings for the films were 

generally not sexually suggestive, and that the poses and conduct 

of the children were not suggestive. 
- 8 - 

The District Court has discretion, however, to evaluate 

whether an expert witness will provide helpful testimony in this 

context. See Frabizio, 459 F.3d at 85 & n.8 ("[W]hether a given 

depiction is lascivious is a question of fact for the jury" and 

"expert testimony is not required on the subject."); United States 

v. Arvin, 900 F.2d 1385, 1390 (9th Cir. 1990) ("Because the jury 

was fully capable of making its own determination on the issue of 

'lasciviousness,' the district court did not abuse its discretion 

in excluding the expert testimony."); cf. Hamling v. United States, 

418 U.S. 87, 100 (1974) ("Expert testimony is not necessary to 

enable the jury to judge the obscenity of material which, as here, 

has been placed into evidence."). And here we see no error in the 

District Court's reasonable assessment and exclusion of the 

proposed expert testimony. See Arvin, 900 F.2d at 1390. 

The District Court evaluated the testimony that 

Professor Leo expected to offer and considered "the reliability 

and helpfulness of the proposed expert testimony, the importance 

and the quality of the eyewitness evidence it addresses, and any 

threat of confusion, misleading of the jury, or unnecessary delay." 

United States v. Rodríguez-Berríos, 573 F.3d 55, 71 (1st Cir. 

2009). The District Court then supportably found that Professor 

Leo did not purport to "know any of the purposes or reasons why a 

purchaser would purchase these videos," that he "did not express 

any expertise that would allow him to help the jury on the why or 
- 9 - 

the intent of the producer," and that he did not "appear to have 

any opinions about" European film, nudity, or nudism. And as to 

the points that Silva expected Professor Leo to make in his trial 

testimony, the District Court reasonably concluded that the jurors 

could reach their own conclusions about the contents of the films 

from their own viewing. See United States v. Mehanna, 735 F.3d 

32, 67 (1st Cir. 2013) ("It is common ground that a trial court 

may bar expert testimony if that testimony will not assist the 

jury to sort out contested issues."). 

Nor did the District Court err in preventing Professor 

Leo from testifying as a summary witness under Federal Rule of 

Evidence 1006, which permits summaries "to prove the content of 

voluminous writings, recordings, or photographs that cannot be 

conveniently examined in court." See United States v. Casas, 356 

F.3d 104, 119 (1st Cir. 2004) (applying Fed. R. Evid. 1006 to a 

summary witness). Here, too, we review for an abuse of discretion. 

See Tetioukhine, 725 F.3d at 6. The record supports the District 

Court's conclusion that Professor Leo -- in his testimony at the 

evidentiary hearing conducted to determine whether he could 

testify -- "was rambling and unfocused, talking about one video 

and another video, and he was all over the place." The District 

Court was thus well within its discretion in rejecting a proposed 

summary witness who had demonstrated his inability to provide the 
- 10 - 

concise review of the evidence that the rule is written to allow 

to aid the jury. 

V. 

Silva next argues that the district court erred in 

instructing the jury. Silva objects to two instructions on the 

ground that each was unfairly prejudicial, a challenge we review 

for abuse of discretion. United States v. Sasso, 695 F.3d 25, 29 

(1st Cir. 2012). 

First Silva objects to the District Court's instruction 

that "[i]f the Defendant incorrectly believed what does and does 

not constitute child pornography, that does not relieve him of 

responsibility as long as the Government has proven the elements 

that I've outlined above." Silva argues that the instruction was 

prejudicial because he contends that the instruction functioned as 

a "comment on the testimony of the defendant" and that "the effect 

of the contested instruction was to inappropriately focus on the 

defendant's belief, when the real issue was whether the government 

had proved the defendant's knowledge."3 

 3 To the extent Silva argues that the instruction improperly 

"diminishe[d] the Government's burden with respect to proving 

knowledge," he is wrong. In order to prove the "knowing" element 

of the child pornography statutes, "[t]he defendant must believe 

that the picture contains certain material, and that material in 

fact (and not merely in his estimation) must meet the statutory 

definition." United States v. Williams, 553 U.S. 285, 301 (2008); 

United States v. Knox, 32 F.3d 733, 754 (3d Cir. 1992) ("[T]o 

fulfill the knowledge element of § 2252, a defendant simply must 

be aware of the general nature and character of the material and 
- 11 - 

We disagree. "When an instruction is pertinent to the 

issues submitted to the jury and constitutes an accurate statement 

of the law, it is hard to imagine any basis for a claim of error." 

United States v. Nascimento, 491 F.3d 25, 34 (1st Cir. 2007). And 

here, the District Court delivered the instruction to clarify what 

the government had to prove about the defendant's knowledge in the 

face of Silva's assertions in testimony that the materials were 

not child pornography. See id. ("We see no realistic possibility 

that [the instruction] [was] a source of juror confusion. 

Consequently, the district court did not abuse its discretion in 

charging the jury as it did."). 

Silva also objects to the District Court's instruction 

that the jury should consider "whether the witness had anything to 

gain or lose from the outcome of this case. In other words, was 

the witness totally impartial, or did the witness have some stake 

in the outcome or some reason to favor one side or the other." 

Silva contends that this instruction must have been referring to 

him, even though it was phrased in general terms, because he was 

the only person with an interest in the case. He thus argues the 

instruction functioned as an impermissible comment on his 

credibility. See United States v. Dwyer, 843 F.2d 60, 63 (1st 

 

need not know that the portrayals are illegal."). The challenged 

instruction correctly articulated this principle. 
- 12 - 

Cir. 1988) ("A charge containing denigrating implications should 

not be given unless it serves some useful purpose or need."). 

Silva does not explain, however, how the District 

Court's instruction to consider witness credibility generally -- 

phrased neutrally and without reference to the defendant -- could 

be taken as a comment as to his lack of credibility. Instead, as 

the government notes, law enforcement agents also might have an 

interest in the successful outcome of a case they have 

investigated. The instruction thus simply served to remind the 

jury of its responsibility to evaluate and assess witness 

credibility, see United States v. Maguire, 918 F.2d 254, 269 (1st 

Cir. 1990) (approving instructions in which the district court 

"repeatedly emphasized that the final resolution of the issues 

rested with the jury and that it had the sole responsibility for 

determining the credibility of the witnesses and finding the 

facts"), and so the District Court did not abuse its discretion by 

issuing it. 

VI. 

Silva also argues that the District Court erred in 

denying his motion for a judgment of acquittal because there was 

insufficient evidence to support the convictions. We review this 

preserved challenge de novo, viewing the evidence in the light 

most favorable to the government to determine whether the evidence 

would allow a rational factfinder to conclude the defendant 
- 13 - 

committed the charged crime beyond a reasonable doubt. United 

States v. Almeida, 748 F.3d 41, 52 (1st Cir. 2014). 

Silva moved for a judgment of acquittal at the conclusion 

of the government's case, and renewed his motion at the conclusion 

of all the evidence. He presented two arguments. As to all counts 

he argued that the government did not prove that the images were 

child pornography. As to the first six counts, for receipt of 

child pornography under 18 U.S.C. § 2252(a)(2), he argued that the 

government did not prove that he "knowingly received" child 

pornography. The District Court denied the motion. Silva now 

challenges that ruling, and we consider each aspect of his 

challenge to the sufficiency of the evidence in turn. 

A. 

Silva argues first that while the question "whether a 

given depiction is lascivious is a question of fact for the jury," 

Frabizio, 459 F.3d at 85, the government failed to provide enough 

evidence to prove beyond a reasonable doubt that the materials 

covered by the seven counts depicted the "lascivious exhibition of 

genitals" as defined in 18 U.S.C. § 2256. Silva argues that the 

"depictions take place in a variety of settings," and that "mostly, 

the boys are playing." Though Silva acknowledges that the 

depictions are of boys who are "unquestionably nude," he suggests 

that "the films might be better viewed as a paean to naturalism 

and nudism." Silva thus argues that there was insufficient 
- 14 - 

evidence to show that the depictions met the standard of 

lasciviousness. 

The problem for Silva is that, even though he contends 

that the films "might be better viewed as a paean to naturalism 

and nudism," a rational juror could reach a different conclusion 

based on the evidence presented at trial. See United States v. 

Wilder, 526 F.3d 1, 12 (1st Cir. 2008) ("The question for our 

determination on appellate review . . . is whether a reasonable 

jury could have reached the conclusion that the images were of 

sexually explicit conduct."). After all, the jury watched the 

footage of the films, and the jurors were entitled to evaluate and 

determine whether the films involved the "lascivious exhibition of 

genitals" based upon the images they saw. See Frabizio, 459 F.3d 

at 85 ("[W]hether the item to be judged is lewd, lascivious, or 

obscene is a determination that lay persons can and should make. 

. . . In making this determination, the standard to be applied by 

the jury is the statutory standard. The statutory standard needs 

no adornment." (internal quotation marks and citation omitted)). 

We have previously explained that lascivious is a 

"commonsensical" term and that there is no exclusive list of 

factors -- such as the so-called Dost factors -- that must be met 

for an image (or a film) to be "lascivious." See Frabizio, 459 

F.3d at 85 (citing United States v. Dost, 636 F. Supp. 828, 832 

(S.D. Cal. 1986)); see also United States v. Amirault, 173 F.3d 
- 15 - 

28, 31-32 (1st Cir. 1999). Here, it is enough to note from our 

review that -- as the District Court also concluded -- the evidence 

reveals that the films showed young boys almost always depicted 

fully nude, with no evident storyline or discernible artistic 

explanation for the footage. Moreover, each film showed boys 

engaged in some activity or activities, which -- though varying 

from film to film -- displayed their genitalia in a manner that, 

as the District Court concluded, a jury reasonably could deem to 

be intended to sexually arouse the viewer. See Amirault, 173 F.3d 

at 31-32 (finding "whether the image is intended or designed to 

elicit a sexual response in the viewer" a relevant factor "in 

evaluating whether the display in question is lascivious" (citing 

Dost, 636 F.Supp. at 832)). 

It is true that the films combined included 

approximately twenty three hours of footage, with certain images 

in which the boys' clothing or the activity temporarily obscured 

the view of the boys' genitalia. But each of the films also 

included scenes, for example, of the boys wrestling or showering 

in positions that gave the camera a clear shot of their genitalia, 

or lounging, standing, or sitting in postures that prominently 

displayed their genitalia in the camera shot. Considering the 

films as whole under count seven, and the images depicted in each 

of the films listed in the other counts, the jury's determination 

that the films depicted "sexually explicit conduct," in the form 
- 16 - 

of "lascivious exhibition of genitals" of children, was thus a 

rational conclusion drawn from the evidence. See Wilder, 526 F.3d 

at 12. 

B. 

Silva's second argument is that the government did not 

prove that he knowingly received child pornography as required by 

counts one through six. See 18 U.S.C. § 2252(a)(2) (prescribing 

punishment for any person who "knowingly receives" depictions of 

minors engaged in sexually explicit conduct). Unlike count seven, 

each of these counts identified a specific film, or set of films, 

that Silva had received. For this charge, the government had to 

prove the material that Silva received as described in each count 

in fact met the statutory definition for child pornography and 

that Silva knew "the facts that ma[d]e his conduct fit the 

definition of the offense" at the time of receipt. Elonis v. 

United States, 135 S. Ct. 2001, 2009 (2015) (quoting Staples v. 

United States, 511 U.S. 600, 608, n.3 (1994)); see also X-Citement 

Video, Inc., 513 U.S. at 78 ("[T]he term 'knowingly' in § 2252 

extends both to the sexually explicit nature of the material and 

to the age of the performers."); United States v. Gendron, 18 F.3d 

955, 959 (1st Cir. 1994). 

The government did not need to show, however, that the 

defendant knew the material was in fact illegal at the time of 

receipt. See United States v. Knox, 32 F.3d 733, 754 (3d Cir. 
- 17 - 

1994) ("[T]o fulfill the knowledge element of § 2252, a defendant 

simply must be aware of the general nature and character of the 

material and need not know that the portrayals are illegal."). 

Instead "a defendant generally must 'know the facts that make his 

conduct fit the definition of the offense,' even if he does not 

know that those facts give rise to a crime." Elonis, 135 S. Ct. 

at 2009 (quoting Staples, 511 U.S. at 608 & n.3); see also United 

States v. Williams, 553 U.S. 285, 301 (2008) ("The defendant must 

believe that the picture contains certain material, and that 

material in fact (and not merely in his estimation) must meet the 

statutory definition."); Hamling, 418 U.S. at 123 ("To require 

proof of a defendant's knowledge of the legal status of the 

materials would permit the defendant to avoid prosecution by simply 

claiming that he had not brushed up on the law."). 

In arguing that the government failed to provide 

sufficient evidence from which a jury rationally could find beyond 

a reasonable doubt that he knowingly received unlawful materials, 

Silva contends that, even if some of the materials he received 

were illegal child pornography, the Azov website also sold 

materials that did not contain child pornography. He thus argues 

that the government failed to show that when he placed his orders 

on the Azov website -- which he contends contained, at most, both 

legal and illegal materials -- he knew that he was going to receive 

materials that fell into the latter category. 
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But the government presented evidence about what Silva 

knew about the specific materials he ordered at the time that he 

placed those orders. And in consequence of that evidence, the 

jury could rationally conclude that Silva knew -- with respect to 

the specific films identified in each of these six counts -- that 

he was ordering and receiving films that did show nude children 

engaged in sexually explicit conduct. 

We start with the evidence the government provided about 

what Silva would have encountered on the Azov website when he 

placed his orders. There was testimony that indicated a customer 

perusing the Azov Films' website would encounter a brief 

description of the material for sale. The jurors were then 

presented with the website pages for the films listed in the 

indictment. 

In other words, the jury saw the actual pages from which 

Silva would have placed his order for each of the films listed in 

the indictment's six receipt counts. These pages included photos 

of the boys who were featured in each particular film, clothed or 

in swimsuits. The jury thus could conclude -- from viewing the 

descriptions and photos -- that Silva would know the boys were 

underage. Further, the website provided editorial content about 

each film. This content clearly communicated to its website 
- 19 - 

audience that each of the films Silva ordered would feature the 

boys nude.4 

In addition, the website pages included descriptions 

that conveyed that these specific films would show the boys 

engaging in various types of activities but without offering any 

semblance of a plot or storyline. And the descriptions for each 

of the films went on to describe the activities in which the boys 

would be engaging using language that the jury clearly could have 

perceived as indicating the presence of sexually explicit content.5 

 4 For the film in count one, FKK Waterlogged, the description 

listed the activities on "today's nudist menu." The film in count 

two, Vladik Remembered Vol. 1, was described to "compile a series 

of lengthy Vladik nudist scenes" in "this wonderful homage to the 

boy who helped establish Azov Films." The film in the third count, 

Vladik Remembered Vol. 2, is described as a "continued celebration 

in honor of Vladik's 18th birthday and official indoctrination 

into adulthood," -- showing "footage" of Vladick from when he was 

"between 14 and 16" -- in what was described as a "compilation of 

the best of the best Vladik naturist scenes" from "Crimea's most 

famous naturist." For the film in count four, Paul & Calin's Home 

Video, the website said that "the personalities of our on camera 

nudists, Calin and Paul, shine through" and the boys "get into 

some nudist fun." The film in count five, Cutting Room Floor: 

Vlaviu, carries a description of "Vlaviu and his buddies going 

commando in a very unique way" with "nudist food fighting." The 

film in count six, Raw Rewind Vol. 2, according to the website, 

consisted of "unedited naturist raw footage." 

5 The film in count one described "a cold shower" and "general 

horsing around . . . [which] gives way to some relaxing physical 

therapy in the form of a deep massage." The film in count two was 

a "compilation of scenes" of one featured boy and his "naturist 

buddies" in "sauna and beach antics." The film in count three 

described that the boys were featured "as they wreak havoc in some 

of Crimea's most exclusive saunas." The film in count four was 

described as including "probably one of the best wrestling matches 

(if not the best) we've ever filmed in the history of the Boy 

Fights line of nudist DVDs." The film in count five was promoted 
- 20 - 

So while Silva argues that "[t]he descriptions of the 

DVDs . . . did not provide notice that they contain child 

pornography," the descriptions clearly conveyed that the films 

offered seemingly no semblance of a story, with little dialogue or 

with foreign language dialogue left untranslated for viewers, and 

featured nude boys engaging in activities the jury could reasonably 

conclude he would have known to be sexually explicit. Thus, the 

website pages for the films that Silva ordered hardly require -- 

or even permit -- the benign characterization he contends must be 

given to them. 

Relevant, too, is the fact that the website's film 

descriptions also identify particular boys as the stars of the 

productions and direct their "fans" to search among their other 

films.6 In other words, the films did not advertise themselves as 

 

as "discs of ooey-gooey slippery goodness." Some of Azov's film 

titles, like Raw Rewind Vol. 2 named in count six, also replicated 

the suggestive tone. See, e.g., United States v. Downsbrough, No. 

3:13-CR-61, 2013 WL 5781570, at *13 (E.D. Tenn. Oct. 24, 2013) 

("The names of some of the DVDs ordered by the Defendant from this 

same company [Azov] . . . [including] Raw Rewind Volumes 1–3 are 

sexually suggestive."). 

6 Specifically, the website's description for the film in 

count one said that "[i]f you're a fan of Paul, this is a must 

get" and "[s]ame with Calin fans." The Azov website described 

that the film in count two was created in "celebration" of "Azov 

Films' superstar, Vladik." The description for the film in count 

three addressed "Vladik fans" and described that "90% of the 

visitors to Azov Films are Vladik fans, and about half of those 

are die-hard Vladik fans." The description in the film from count 

four noted about one of a three-disc set that "this disc is not 

subtitled but will certainly be enjoyed, especially for fans of 
- 21 - 

"a paean to naturalism and nudism" as Silva suggested, but rather, 

as an exhibition of particular nude young boys. 

Indeed, a United States postal inspector testified that 

"[t]hese videos have, and I hate to use the word but I can't think 

of a better one, their own stars and their own following" such 

that "the videos of particular boys [were] particularly sought by 

people who prefer that particular boy." And, by marketing the 

films as showcasing particular boys, the film descriptions 

indicated that, as to each film Silva ordered, the exhibition of 

those underage boys, who were also described as being nude and 

active in suggestive settings, was the point of the production. 

The jury thus could have found that this language about "fans" and 

the satisfaction they would derive from particular films -- given 

the rest of the descriptions -- would have alerted Silva, as a 

prospective purchaser, to the fact that these films were "intended 

or designed to elicit a sexual response in the viewer." Amirault, 

173 F.3d at 31 (citing Dost, 636 F. Supp. at 832). 

Finally, and further supporting the government's case, 

the jury received evidence of Silva's comments offering his own 

evaluation of the Azov website. Though made after the 

investigation was underway and he had already received the 

 

Paul." The film from count five was described as "a must get for 

the true Vlaviu fan." The description for the film in count six 

told readers that "[y]ou'll recognize a young Igor, and Sasha." 
- 22 - 

materials, these comments -- when read in light of the evidence 

concerning the information conveyed by the website pages for the 

films he ordered -- provide a basis from which a jury could 

reasonably infer that Silva found the sexually explicit nature of 

the available materials evident from the face of the website. In 

other words, though Silva insists that a purchaser might have 

believed the materials to be benign at the time of ordering, the 

comments the jury heard about his own characterization of the 

website undercut the plausibility of such an assessment. 

Specifically, the jury saw emails that Silva sent, soon 

after the website was shut down by Canadian authorities, to a 

professional acquaintance in the Rhode Island state police. These 

emails set forth Silva's own concerns with the Azov website. Silva 

wrote that the website "claim[s] to be a 'European Naturist' 

website" but noted that "the only naturist films that they have 

are of nude boys." He stated that "[t]hey sell mainstream films 

as well" but added that he suspected "that they do this to provide 

an 'air' of legitimacy." He wrote that he suspected that "the 

boys featured in their 'Naturist' films are being groomed to 

perform in the pornographic adult films when they come of age." 

Silva also explained that he feared Azov was "doing more with these 

boys than they are presenting" and that he had "a really bad 

feeling about what may be happening to those boys." And, 

underscoring the basis for inferring that Silva was himself 
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concerned about the website, Silva implicitly denied in his email 

to law enforcement that he had placed any orders with Azov, and he 

also wrote that he did "not intend to find out" about the website’s 

"special offers." 

Moreover, during a subsequent search of his house, 

according to the testimony of one law enforcement agent present at 

the search, Silva also "stated that he was concerned about a lot 

of things surrounding Azov Films. One of his concerns was that he 

felt that the children may be being groomed for something later on 

in a sexual nature within this connotation. He stated that he 

knew the children were being exploited." And when told that the 

Azov website operators were likely in prison, the agent testified, 

Silva responded, "Good, they should be." 

These comments thus provide a basis from which a rational 

jury could conclude that Silva understood the Azov website to be 

selling sexually explicit materials at the time he placed his 

orders, rather than that he would have been surprised by the 

content of the films that he eventually possessed. And though 

Silva at trial and during the investigation offered an innocent 

explanation for his purchases -- namely, that he had purchased the 

films because he was working on a PowerPoint presentation related 

to his work with sex offenders at the probation office -- the jury 

was entitled to disbelieve what reasonably might have seemed like 
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a "dubious claim[] of innocence." United States v. Hill, 750 F.3d 

982, 988 (8th Cir. 2014). 

Given the cumulative force of these reasons, a rational 

jury could have concluded beyond a reasonable doubt that Silva had 

knowledge that the contents of the materials he ordered and 

received were of a kind that would bring such materials within the 

Act's coverage, whether or not Silva knew at that time that such 

contents rendered the films contraband as a legal matter. The 

District Court therefore did not err in denying Silva's motion for 

a judgment of acquittal. 

VII. 

For the foregoing reasons, the judgment of the District 

Court is affirmed.