United States v. Keith Novak
2017 U.S. App. LEXIS 14654
| 8th Cir. | 2017Background
- FBI seized Novak’s laptop and an external USB hard drive during a warrant search; forensic exam recovered hundreds of child‑pornography images and videos in an encrypted volume (folder “C”) on the external drive.
- Novak claimed he did not know about the encrypted child‑pornography files, asserting someone else (a friend/other soldiers) must have put them there; he admitted some nude “selfie” images of himself were present but denied placing them in the encrypted volume.
- Forensic evidence: a Foxtab browser cache on the laptop stored thousands of images (including searches like “jailbait” and “sib‑so”), timestamps linking laptop activity to files saved to the encrypted drive, and other folders organized by porn categories, some containing Novak’s photos.
- FBI decrypted the TrueCrypt volume and linked specific Foxtab images and Craigslist posts to Novak (showing activity at Fort Bragg and in Minnesota around his move), supporting both possession and interstate transportation theories.
- At trial Novak was convicted of interstate transportation and possession of child pornography; he was sentenced to 144 months (a downward variance from an advisory range of 151–188 months).
Issues
| Issue | Novak’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Admission of adult pornographic evidence (Agent Crowe’s testimony about adult/deviant folders) | Evidence was unfairly prejudicial under Rule 403 and cumulative; should have been excluded | Highly probative to show one person created and organized the encrypted collection and to link laptop activity to the external drive | No plain error; evidence was highly relevant to disputed knowledge and less prejudicial than alternatives |
| Admission of laptop Foxtab transsexual‑sex searches | These references were prejudicial and irrelevant to child‑pornography charges | Foxtab images tied laptop usage to files saved in encrypted folder C and to Craigslist postings linking Novak across locations | No plain error; probative of knowing possession and interstate transport |
| Willful blindness jury instruction | Instruction was unsupported by evidence; improperly allowed conviction on deliberate‑ignorance theory when defense was inability to know due to encryption | Evidence supported inference Novak deliberately avoided knowledge (organization, timestamps, personal images, activity during move) | No plain error; instruction appropriate and cautions against mere negligence were given |
| Substantive reasonableness of sentence | Guideline for child pornography is arbitrary; sentence still excessive | District court lawfully calculated guideline, varied downward, and exercised broad discretion | Sentence affirmed as substantively reasonable (below advisory range) |
Key Cases Cited
- United States v. Pirani, 406 F.3d 543 (8th Cir.) (en banc) (plain‑error standard for unpreserved jury‑instruction issues)
- United States v. Demery, 674 F.3d 776 (8th Cir. 2011) (plain‑error standard for unpreserved evidentiary objections)
- Old Chief v. United States, 519 U.S. 172 (1997) (Rule 403 balancing and alternatives to prejudicial evidence)
- United States v. Pruneda, 518 F.3d 597 (8th Cir. 2008) (admission of pornographic images not abuse of discretion)
- United States v. Kelley, 861 F.3d 790 (8th Cir. 2017) (no plain error admitting relevant pornographic evidence)
- United States v. Delgrosso, 852 F.3d 821 (8th Cir. 2017) (standards for willful‑blindness instruction)
- United States v. Florez, 368 F.3d 1042 (8th Cir. 2004) (deliberate ignorance definition and when instruction is warranted)
- United States v. Fast Horse, 747 F.3d 1040 (8th Cir. 2014) (jury‑instruction error principles; cited as contrast)
- United States v. Parker, 364 F.3d 934 (8th Cir. 2004) (caution that willful‑blindness instruction should not permit negligence standard)
- United States v. Trejo, 831 F.3d 1090 (8th Cir. 2016) (willful‑blindness instruction and sufficiency of evidence)
- United States v. Burns, 834 F.3d 887 (8th Cir. 2016) (appellate review of child‑pornography guideline challenges)
- United States v. Deering, 762 F.3d 783 (8th Cir. 2014) (deference to district court sentencing discretion)