United States v. Novak

• Decision Date: 09 August 2017
• Docket Number: No. 16-1911,16-1911
• Citation: 866 F.3d 921
• Parties: UNITED STATES of America, Plaintiff-Appellee v. Keith Michael NOVAK, Defendant-Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

866 F.3d 921

UNITED STATES of America, Plaintiff-Appellee

v.Keith Michael NOVAK, Defendant-Appellant

No. 16-1911

United States Court of Appeals, Eighth Circuit.

Submitted: February 10, 2017

Filed: August 9, 2017

Rehearing and Rehearing En Banc Denied September 20, 2017

Counsel who presented argument on behalf of the appellant was Keala C. Ede, AFPD, of Minneapolis, MN.

Counsel who presented argument on behalf of the appellee was David Genrich, AUSA, of Minneapolis, MN.

Before LOKEN, COLLOTON, and KELLY, Circuit Judges.

LOKEN, Circuit Judge.

During a warrant search of Keith Michael Novak's apartment in Maplewood, Minnesota, FBI agents seized more than thirty electronic devices. Agents then obtained a new search warrant for child pornography and conducted time-consuming forensic searches of a heavily encrypted Dell laptop computer and an external USB hard drive that was connected to the laptop when the devices were seized. Hundreds of images and videos of children engaged in sexually explicit activities were recovered. At a three-day trial, the government introduced forensic evidence linking Novak to the encrypted child pornography on the external hard drive and internet pornography searches on the laptop. The jury convicted Novak of one count of interstate transportation of child pornography and one count of possession of child pornography in violation of 18 U.S.C. §§ 2252(a)(1), (a)(4)(B), (b)(1), and (b)(2). Varying downward from the advisory guidelines range, the district court¹ sentenced Novak to 144 months in prison.

Novak appeals, arguing the district court erred in admitting evidence of adult pornographic materials found on his devices, and in providing a willful blindness instruction to the jury, contentions we review for plain error. See United States v. Pirani , 406 F.3d 543, 550 (8th Cir.) (en banc), cert. denied , 546 U.S. 909, 126 S.Ct. 266, 163 L.Ed.2d 239 (2005). He also argues the district court imposed a substantively unreasonable sentence, an issue we review under a highly deferential abuse-of-discretion standard. See United States v. Roberts , 747 F.3d 990, 992 (8th Cir. 2014). We affirm.

I. Evidentiary Issues.

Novak argues the district court committed plain error when it permitted the government to introduce two types of unfairly prejudicial evidence. First, FBI Special Agent Christopher Crowe's testimony described adult pornographic materials found on the laptop computer's encrypted external hard drive. Second, Agent Crowe's testimony described images saved to the laptop's internal hard drive as reflecting searches for sexual encounters with a transsexual woman. Having failed to object to this evidence at trial, Novak can prevail on appeal only by showing that admission was "an obvious error that affected his substantial rights, and that the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Demery , 674 F.3d 776, 780 (8th Cir. 2011).

At trial, the government introduced evidence that five images the jury found to be child pornography had been downloaded and saved to an encrypted folder "C" on the external hard drive (Exhibit 4) attached to Novak's laptop computer (Exhibit 3). The central issue was whether Novak "knowingly" possessed and transported this contraband. His defense was that he had no knowledge of the child pornography on the external hard drive, that he only used the hard drive to store movies and music, and that someone else must have used his devices to search for child pornography and store it without his knowledge.

When the devices were seized, the laptop's internet history, cache, and cookies were wiped clean, and a program called "Eraser" made deleted data unreviewable. However, the FBI discovered that a "Foxtab" extension on the laptop's Firefox web browser had stored over 5,500 images of websites viewed between April 2012 and October 2012 in a file on the laptop's hard drive. These images included searches conducted under Novak's login for child-pornography-related terms. For example, a search was conducted under Novak's login on April 28, 2012 for "jailbait," and a July 10 Foxtab image showed a search for "sibso." Agent Crowe testified that jailbait is a term commonly used to search for child pornography, and sibso is a child pornography term that stands for "sibling significant other."

Encryption software also made files difficult to detect and view on the external hard drive until agents discovered the presence of TrueCrypt, an encryption software that Novak's work as an Army intelligence analyst gave him the proficiency to use to encrypt his personal devices. The FBI's Cryptographic Electronic Analysis Unit was able to identify the password for an encrypted volume stored on the hard drive. Inside this volume, agents discovered thousands of files organized into roughly two dozen folders, including folder "C" containing hundreds of images and videos of child pornography. Most folders were named with one or two letters. One was labeled "X Pics" and others had explicitly pornographic titles. The folders contained pornographic images grouped neatly into categories—for example, "B" for bestiality, "CL" for Craigslist postings seeking sex meet-ups with transsexuals, "L" for cartoon anime depicting children engaged in sex, and "X Pics" for nude images of Novak.

Novak testified that he acquired the Dell laptop in April 2012 when his friend, Lee Smith, who worked at Fort Bragg as a handyman, asked Novak to take the laptop from a secure area of the Fort Bragg Rec Center and install a new operating system. Novak used the laptop at Fort Bragg until Smith helped him move from North Carolina to Minnesota in mid-July. Smith controlled the laptop in a separate vehicle throughout the move and sold it to Novak at the end of the trip for $200. Novak testified that he had no knowledge of the encrypted files on the hard drive, which he used to store movies and iTunes. According to Novak, other soldiers frequently borrowed his laptop while he was at Fort Bragg; someone else created a TrueCrypt volume on the external hard drive and saved child pornography and other images in the encrypted volume. Novak admitted that "selfie" images in the folder labeled "X Pics" were of him, but denied that he placed them in the encrypted volume.

To link Novak to the encrypted "C" folder containing child pornography found on the external hard drive, FBI Special Agent Christopher Lester, a member of the Computer Analysis Response Team who searched Novak's apartment and helped decrypt his devices, testified that Foxtab images showed child pornography viewed on the laptop within seconds of identical images being saved to the encrypted "C" folder on the external hard drive, evidence the two devices were connected when the child pornography was accessed, as they were when seized in Novak's apartment. Agent Crowe then explained, in the testimony here at issue, how each of the folders in the encrypted hard drive volume evidenced Novak as the file creator. For example, the "X Pics" folder contained nude photos of Novak. The "CL" folder contained transsexual Craigslist postings similar to Foxtab images found on Novak's laptop. Crowe's testimony supported an inference that pornographic images in the "C" folder were part of a larger pornography collection carefully organized into categories:

Q: Can you give us a ... a brief overview of what you found between [the] "C" and "X Pics" [folders in the encrypted volume]?

A: I can. Every single one of these folders contains pornography. This one, the "CL", contains files saved from Craigslist.... This is just pornography where women are involved in having sperm ejaculated on them.... This picture right here is a picture of the Defendant. This picture right here, there's a video in the file called "P" where it is a female being urinated on by several men. I believe that it is pornography dealing with transsexuals. I believe "B" is pornography that deals specifically with bestiality....

Q: Was there any anime on—

A: Well, there was Japanese anime. I'm not sure if that was in "L". I believe "L", now that you mention it, was pornographic cartoons that were downloaded on the Internet or off the Internet.... Japanese anime of cartoon children. They are not real children.

Crowe testified that the volume was bulk transferred from another device between 11:56 p.m. on July 5 and 12:08 a.m. on July 6. Images recovered from the laptop showed Novak used the laptop to call his girlfriend on Skype three hours before the transfer. Similarities in the files' locations, creation times, and contents confirmed, in Crowe's view, that a single person created all the folders.

Government Exhibit 10, a summary of fifty images saved in the laptop's Foxtab folder, further connected Novak to the external hard drive folders containing child pornography and provided evidence that Novak transported the child pornography across state lines. Agent Crowe briefly described each individual image and its link to Novak. For example, Exhibit 12 was a Papa John's order from a store in Fort Bragg, North Carolina from "KeithMNovak@gmail.com" on a day Novak was stationed at Fort Bragg. Exhibit 51 was a July 10, 2012, search by the same user that returned five child pornography images; the tab was closed fifteen minutes after the five images were saved in folder "C" on the external hard drive. In the testimony here at issue, Crowe testified that Exhibit 57 was a July 17 Craigslist posting titled "In need of ! ! ! M4T-24," which is a Craigslist redaction meaning "male for transsexual or transvestite." Exhibit 60 was a Minneapolis Craigslist post seeking a "casual encounter" with "T4M in St. Paul" on August 4, the day Novak completed his move to Minnesota.

Novak argues this evidence was unfairly prejudicial under Federal Rule of Evidence 403, which provides: "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more...