author: GRUENDER, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Michael HUYCK, Defendant-Appellant United States of America, Plaintiff-Appellee v. Michael Huyck, Defendant-Appellant
    No. 15-3649, No. 15-3652
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 16, 2016
    Filed: February 22, 2017

      Counsel who presented argument on behalf of the appellant was Michael J. Wilson, of Omaha, NE.
    Counsel who presented argument on behalf of the appellee was Michael P. Norris, AUSA, of Omaha, NE.
    Before COLLOTON, BEAM, and GRUENDER, Circuit Judges.
   GRUENDER, Circuit Judge.

Following a jury trial, Michael Huyck was convicted of multiple child pornography-related crimes. On appeal, he raises four issues, claiming that (1) the district court erred in denying his motion to suppress evidence seized pursuant to an allegedly stale search warrant, (2) the district court abused its discretion in admitting various exhibits, (3) the evidence did not support the jury’s verdicts, and (4) the district court abused its discretion in denying his motion for a new trial. We affirm.

I. BACKGROUND

In November 2012, the FBI seized a computer server in Bellevue, Nebraska that hosted child pornography websites on the “Tor” network. The Tor network is designed to allow users to surf the Internet anonymously and access otherwise hidden websites, including illegal websites like “Pedoboard,” which was strictly devoted to child pornography. To access the Tor network, a user downloads special software that obscures a user’s Internet Protocol (“IP”) address, thereby evading traditional law enforcement IP identification techniques. Once on the Tor network, users must have a unique, sixteen-character web address to access the Pedoboard website. Unlike traditional web addresses, a Tor web address does not indicate the services or content available on the site. Thus, a Pedoboard user must obtain the web address from other users or from Internet postings describing Pedoboard’s content. The most common way to find Pedoboard’s web address was to access the “Hidden Wiki”- — a directory of Tor hidden services providing the name of the hidden service, a description of its content, and the Tor web address. To identify people accessing Pe-doboard, the FBI installed Network Investigative Technique (“NIT”) software on the website, which revealed the true IP addresses of people accessing the site, the date and time the user accessed the content, and the user’s computer operating system.

The FBI controlled and monitored Pe-doboard from November 16, 2012 to December 2, 2012. On November 21, 2012, an IP address linked to Huyck’s residence utilized the Tor network and browsed Pe-doboard for at least nine minutes. The computer used Windows XP and a Google Chrome browser. Huyck and his sixteen-year-old daughter were the only people present at his residence that night. No child pornography was downloaded during the visit.

In early April 2013, law enforcement agents conducted physical surveillance of Huyck’s residence. They noted that Huyck utilized an unsecured wireless network, though the signal strength was so weak that agents could not obtain the signal from the front yard of his residence. Agents prépared a search warrant for the residence, which was executed on April 9, 2013, more than four months after the November 2012 Pedoboard access date. Officers went to the basement of Huyck’s residence and discovered a complex computer network. They also found a Hitachi 160GB hard drive, a G-Technology 2GB external storage drive, and a Molex 2GB thumb drive on his desk and among his personal belongings. Two computers were located underneath the desk, and neither used Windows XP or Google Chrome at the time of the search. However, one of the computers had been recently wiped clean of all data, and stickers on the computer towers indicated Windows 7 had been downgraded to Windows XP Pro. Huyck was the only adult living at the residence, and during the search, Huyck told officers that no one else had access to his computers and that he worked at Mo-lex in an information technology position. Finally, Huyck admitted that he was familiar with and had used the Tor network, believing it to be anonymous.

A forensic analysis of the Hitachi hard drive revealed ninety-five thumbnail images of child pornography in the thumbs.db file, though the images were not viewable without special software. Nonetheless, the thumbnail images indicated that original, full-size images were present on the Hitachi hard drive in 2010 but had been deleted by the time of the search. A forensic analysis of the G-Technology external storage drive revealed a text file with instructions on how to configure a computer to access the Tor network using a Google Chrome browser. The forensic analysis also exposed a list of Tor hidden services — including a link to the Onion Pedo Video Archive (OPVA), a different Tor child pornography website — and an image of a young girl, appearing to be under eighteen years of age, taking a picture with her genitalia showing. A forensic analysis of the Molex thumb drive revealed a picture of Huyck; another reference to the OPVA hyperlink; and a text file stating, “[H]ttps://opva2pilscvtwmh.onion/ Need to use download manager downthe-mall is good for some.” The hyperlink was the Tor web address for OPVA. “Downthe-mall” is a download manager that helps a user efficiently download contents of an Internet website, such as child pornography, though it is commonly used for legal purposes.

Based on this evidence, the Government charged Huyck with five offenses in two separate indictments, which were later consolidated for trial. In the first indictment, the Government charged Huyck with two crimes in connection with the Pedoboard activity: (1) receipt or attempted receipt of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2) and (b)(1) (“Pedoboard receipt count”); and (2) accessing with intent to view child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) (“Pedoboard access count”). In the second indictment, the Government charged Huyck with three crimes related to evidence seized from his residence. In relation to the ninety-five images found on the Hitachi hard drive, the Government charged Huyck with (1) receipt or attempted receipt of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2) and (b)(1) (“Hitachi receipt count”); and (2) possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) (“Hitachi possession count”). The last count was for possession of child pornography contained on the G-Technology external storage drive.

Huyck moved to suppress evidence seized during the search of his residence, alleging that a four and one half-month delay between his browsing of Pedoboard and the warrant’s issuance rendered the warrant fatally stale. The magistrate judge recommended denying the motion to suppress, which the district court adopted. Huyck also moved to exclude Exhibits 16, 18, 23, 24, 27, 28, and 32, claiming unfair prejudice. Exhibits 23, 24, and 32 concerned the “downthemall” program, and Exhibits 16, 18, 27, and 28 involved instructions for accessing and anonymizing the Tor network and references and links to OPVA. The district court admitted all of the challenged evidence over Huyck’s objections.

After the close of evidence, the district court granted Huyck’s motion for a judgment of acquittal as to the G-Technology possession count after finding that the Government had not sufficiently demonstrated that the person depicted in the image was under eighteen years of age. The district court provided the jury with a special verdict form for the Pedoboard receipt and Hitachi receipt counts. The verdict- form allowed the jury to convict Huyck of receipt of child pornography, attempted receipt of child pornography, or neither.

The jury began deliberations but asked the district court for supplemental instructions defining intent, knowledge, and access. The court provided minor clarifications but generally referred the jury back to its previous instructions. The jury then found Huyck guilty as to the Pedoboard receipt and access counts. It also returned an inconsistent response to the special verdict form on the Hitachi receipt count, finding Huyck guilty of receiving child pornography but not guilty of attempted receipt of child pornography. The jury concluded by finding Huyck guilty of the Hitachi possession count. The district court denied Huyck’s motion for a judgment of acquittal except for the Hitachi réeeipt count, which it granted. It then denied- Huyck’s motion for a new trial because the remaining verdicts were supported by sufficient evidence. Finally, the court sentenced Huyck to 72 months’ imprisonment on the Pedoboard receipt count, with concurrent 36-month sentences for the Pedoboard access and Hitachi possession counts. This appeal followed.

II, DISCUSSION

A. Motion to Suppress

Huyck first argues that the district court erred in denying his motion to suppress because the search warrant was based on stale information and was thus unsupported by probable cause. “We examine the factual findings underlying the district court’s denial of the motion to suppress for clear error and review de novo the ultimate question of whether the Fourth Amendment has been violated.” United States v. Williams, 577 F.3d 878, 880 (8th Cir. 2009) (quotation omitted). “Probable cause means a fair probability that contraband or evidence of a crime will be found in a particular place, given the circumstances set forth in the affidavit.” United States v. Lemon, 590 F.3d 612, 614 (8th Cir. 2010) (quotations omitted). “A warrant becomes stale if the information supporting the warrant is not sufficiently close in time to the issuance of the warrant and the subsequent search conducted so that probable cause can be said to exist as of the time of the search.” United States v. Brewer, 588 F.3d 1165, 1173 (8th Cir. 2009) (quotation and citation omitted). “There is no bright-line test for determining when information in a warrant is stale.” Lemon, 590 F.3d at 614 (quotation omitted).' Instead, we look to “the lapse of time since the warrant was issued, the nature of the criminal activity, and the kind of property subject to the search.” United States v. Estey, 595 F.3d 836, 840 (8th Cir. 2010) (quotation omitted).

Huyck contends that the affidavit did not establish probable cause because briefly browsing a child pornography website is not sufficiently likely to result in evidence of child pornography possession four-and-one-half months later. He acknowledges that the Eighth Circuit has upheld time lapses of similar or longer durations, see Lemon, 590 F.3d at 614 (upholding a search warrant issued eighteen months after discovering information related to child pornography), but he argues that there is a difference between someone who downloads child pornography and someone who browses through child pornography. Huyck, however, does not proffer any evidence demonstrating a difference in the habits of those browsing through child pornography and those downloading child pornography. See Estey, 595 F.3d at 840 (“Meanwhile, Estey does not offer evidence contrary to the FBI statements regarding the habits of child pornography collectors”). More importantly, his argument misrepresents the facts of this case.

Here, Huyck did not simply and accidentally navigate to Pedoboard for a few meaningless minutes. Instead, the evidence shows he accessed Pedoboard after taking a number of intermediate steps that indicated his knowledge that Pedoboard trafficked in child pornography. First, Pe-doboard was not some random website that any Internet user could randomly stumble upon by chance. It was located on the Tor network, and Huyck had to download specific software to access the Tor network. Second, accessing Pedoboard required knowledge of Pedoboard’s exact Tor web address. According to the warrant affidavit, that Tor web address was not common information; users could only obtain the Pedoboard web address directly from other users or from Internet postings detailing the child pornography content available. In United States v. DeFoggi, a case which dealt with a different child pornography website hidden on the Tor network, we held that “[a]ccessing Pedo-Book therefore required numerous affirmative steps by the user, making it extremely unlikely that a user would stumble upon it without knowing that its purpose was to advertise and distribute child pornography and understanding the content to be found there.” 839 F.3d 701, 707 (8th Cir. 2016). That logic applies here with equal force. And coupled with the fact that “child pornographers generally retain their pornography for extended periods,” Unit ed States v. Chrobak, 289 F.3d 1043, 1046 (8th Cir. 2002), this evidence is sufficient to demonstrate that probable cause existed at the time of the search. See United States v. Wagers, 452 F.3d 534, 540 (6th Cir. 2006) (“[E]vidence that a person has visited or subscribed to websites containing child pornography supports the conclusion that he has likely downloaded, kept, and otherwise possessed the material.”).

We also note that the warrant sought not just contraband — that is additional child pornography — :but evidence related to Huyck’s prior November 21, 2012 crimes of receiving child pornography and accessing with intent to view child pornography. The warrant affidavit noted that “[d]igital information can also be retained unintentionally ... (e.g., temporary files or ISP client software, among others)” and described how “a computer user’s Internet activities generally leave traces or ‘footprints’ in the web cache and history files of the browser used.” Thus, law enforcement officials had probable cause to search Huyck’s residence, as there was a fair probability that they would unearth evidence of the completed crime in Huyck’s possession at the time of the search. See United States v. McArthur, 573 F.3d 608, 612 n.4 (8th Cir. 2009) (“When a user deletes a file, it is not erased completely from the computer.”); United States v. Lewis, 605 F.3d 395, 402 (6th Cir. 2010) (“[I]mages typically persist in some form on a computer hard drive even after the images have been deleted and ... can often be recovered by forensic examiners.” (quotation omitted)). As a result, the district court properly denied Huyck’s motion to suppress.

B. Evidentiary Issues

Huyck next challenges the admission of a number of exhibits, claiming that their probative value was substantially outweighed by the danger of unfair prejudice. See Fed. R. Evid. 403. However, “Rule 403 does not offer protection against evidence that is merely prejudicial in the sense of being detrimental to a party’s ease. The rule protects against evidence that is unfairly prejudicial.” United States v. McCourt, 468 F.3d 1088, 1092 (8th Cir. 2006) (quotation omitted). “Unfair prejudice means an undue tendency to suggest decision on an improper basis,” including “[e]vidence which is so inflammatory on its face as to divert the jury’s attention from the material issues in the trial.” United States v. Betcher, 534 F.3d 820, 825 (8th Cir. 2008) (citations and quotation omitted). With this in mind, we review a trial court’s evidentiary rulings for abuse of discretion and give “great deference” to the district court’s balancing of the probative value and prejudicial impact of the evidence. United States v. Farrington, 499 F.3d 854, 859 (8th Cir. 2007) (quotation omitted).

1. The “downthemall” evidence

Exhibits 23, 24, and 32 pertain to the “downthemall” program, which allows users to efficiently download content from websites. Huyck claims that this evidence’s probative value is substantially outweighed by its unfair prejudice. Huyck notes he was charged with browsing Pedoboard, not the mass downloading of child pornography. He contends that admitting evidence of “downthemall” violated Rule 403 because it unfairly implied that he downloaded mass images of child pornography and thus suggested an improper basis for convicting him. These arguments are unavailing, and we find the district court did not abuse its discretion in admitting the “downthemall” exhibits.

Among other things, Huyck was charged with receipt of child pornography and accessing with intent to view child pornography on the Pedoboard website. Exhibits 24 and 32 demonstrated how “downthemall” worked and how it was often used to download child pornography. Exhibit 23 was a text file found on Huyck’s computer, which referred to “downthemall” immediately following a link to OPVA, another child pornography website hidden on the Tor network. Thus, the evidence was probative of the charged crimes because it indicated Huyck’s personal knowledge of the Tor network and specifically how it could be utilized to access hidden child pornography websites. In context then, the exhibits were admissible as they tended to show that Huyck had an interest in child pornography and knew about child pornography on the purportedly anonymous Tor network. The district court did not abuse its discretion in admitting Exhibits 23, 24, and 32.

2. The OPVA evidence

Huyck also challenges the admission of Exhibits 16, 18, 27, and 28 — the OPVA evidence — on similar grounds. He claims that this evidence is unfairly prejudicial because he was charged with conduct related to Pedoboard, not OPVA, and thus, the exhibits improperly suggest that he should be convicted for reasons unrelated to the crimes charged.

We reject Huyck’s challenge to the admission of the OPVA evidence. While it is true that Huyck was charged with conduct relating only to Pedoboard, the OPVA evidence illustrates Huyck’s awareness of the Tor network and his knowledge of how to access it and utilize it to find child pornography websites — all relevant to the Pedoboard receipt and access counts. We reiterate that “Rule 403 does not offer protection against evidence that is merely prejudicial in the sense of being detrimental to a party’s case. The rule protects against evidence that is unfairly prejudicial.” McCourt, 468 F.3d at 1092 (quotation omitted). Because the OPVA evidence is directly relevant to Huyck’s knowledge of the Tor network and his intent to use it to view child pornography, there is no undue tendency to suggest a decision on an improper basis. Thus, as with the “downthemall” evidence, we conclude that the district court did not abuse its discretion in admitting the OPVA evidence.

C. Sufficiency of the Evidence

Huyck also claims that the district court erred in denying his motion for a judgment of acquittal. He maintains the evidence was insufficient to support the jury’s verdicts that he knowingly received, accessed with intent to view, and possessed child pornography. “We review the sufficiency of the evidence de novo, viewing evidence in the light most favorable to the government, resolving conflicts in the government’s favor, and accepting all reasonable inferences that support the verdict.” United States v. Yarrington, 634 F.3d 440, 449 (8th Cir. 2011) (quotations omitted). “If there is an interpretation of the evidence that would allow a reasonable-minded jury to find the defendant guilty beyond a reasonable doubt, then we must uphold the verdict.” United States v. McCloud, 590 F.3d 560, 565-66 (8th Cir. 2009) (quotations omitted). Essentially, our review of the trial evidence is “highly deferential.” United States v. Muhlenbruch, 634 F.3d 987, 1000 (8th Cir. 2011). “If evidence consistent with guilt exists, we will not reverse simply because the facts and the circumstances may also be consistent with some innocent explanation. Even where the evidence rationally supports two conflicting hypotheses, the reviewing court will not disturb the conviction.” United States v. Griffith, 786 F.3d 1098, 1102 (8th Cir. 2015), cert. denied — U.S. —, 137 S.Ct. 70, 196 L.Ed.2d 66 (2016) (citation and quotation omitted).

1. Pedoboard receipt and access counts

For activity related to Pedoboard on November 21, 2012, Huyck was convicted of violating 18 U.S.C. §§ 2252A(a)(2) and 2252A(a)(5)(B). Section 2252A(a)(2) makes it a crime to “knowingly receive[]” “any child pornography” that has been transported in interstate commerce “by any means, including by computer.” See also United States v. Manning, 738 F.3d 937, 945 (8th Cir. 2014). Section 2252A(a)(5)(B) makes it a crime to “knowingly possess[ ], or knowingly access[ ] with intent to view, any ... computer disk, or any other material that contains an image of child pornography” that has been transported in interstate commerce or produced using materials that have been transported in interstate commerce “by any means, including by computer.” See also Yarrington, 634 F.3d at 450.

Huyck contends no reasonable jury could have convicted him on these counts because the evidence did not prove that he was the person who received and 'accessed the child pornography on Pedo-board. The Government could not find devices owned by Huyck that used Windows XP or Google Chrome — the software and program that the NIT indicated had accessed Pedoboard on November 21, 2012. As a result, Huyck argues that there is insufficient evidence to uphold his Pedo-board receipt and access convictions. Instead, he claims that the “far more rational inference” is that “a device running the Windows XP operating system and the [Google] Chrome web browser used Huyck’s unsecured wireless network to access the Pedoboard website.”

We disagree. The evidence presented at trial demonstrated that Huyck received and accessed with intent to view child pornography from Pedoboard. The NIT linked Huyck’s IP address to the November 21, 2012 access to Pedoboard, and though his wireless network was unsecured, the signal was so weak that when surveilling his residence, law enforcement agents could not detect it from the front yard. Huyck was the only adult living at his residence. He concedes that no one besides his daughter was present at his house on November 21, 2012 and never suggests that his daughter was the person who accessed Pedoboard. Furthermore, as noted above, users cannot accidentally navigate to Pedoboard. Users have to download specific software to access the Tor network anonymously and know the exact, unique Tor web address for Pedoboard. Huyck admitted to law enforcement agents that he was familiar with the Tor network, believed it to be anonymous, and had used it. More notably, Huyck saved text files on his computer detailing instructions on how to access the Tor network along with links to OPVA, another hidden child pornography website on the Tor network, thereby demonstrating his knowledge and intent to use the Tor network to receive and access child pornography.

While the devices seized from Huyck did not have Windows XP or Google Chrome installed, Huyck’s computer towers had stickers indicating Windows XP Pro may have been used on the computers. Additionally, a forensic analysis of the G-Teeh-nology external storage drive revealed a text file with instructions on how to configure a computer using a Google Chrome browser to access the Tor network. Most importantly, Huyck’s computers had been wiped clean just prior to the search, thus rendering any data unrecoverable. These facts would allow a jury to reasonably infer that the computer used Windows XP and Google Chrome at one point. As we noted, “If evidence consistent with guilt exists, we will not reverse simply because the facts and the circumstances may also be consistent with some innocent explanation.” See Griffith, 786 F.3d at 1102. Accordingly, Huyck’s sufficiency-of-the-evidence challenge as to the Pedoboard convictions fails.

2. Hitachi possession count

Huyck was also convicted of knowing possession of child pornography, see 18 U.S.C. § 2252A(a)(5)(B), based on ninety-five thumbnail images discovered on the Hitachi hard drive. Testimony demonstrated that the thumbnail images could only have existed if the full-size, viewable images had been on the hard drive at some time in 2010. Huyck claims, however, that the Government did not prove that he was the person who possessed the Hitachi hard drive when the original, full-size images were last viewable.

In United States v. Manning, 738 F.3d at 945-46, we rejected a similar argument. The defendant in Manning argued that though a disc containing child pornography was found during a search of his home, that fact was insufficient to prove he was the person who possessed the disc. Id. at 946. In affirming the conviction, we focused on the defendant’s living arrangements and the abundance of circumstantial evidence indicating his knowledge and interest in child pornography. See id. Specifically, the defendant “lived alone in his home when the disc was recovered from the desk where the laptop was seized,” and the defendant’s “extensive knowledge of, and interest in, child pornography [was] probative as circumstantial evidence regarding [his] knowing possession of the Memorex disc.” Id. That reasoning applies equally here.

First, though the ninety-five thumbnail images on the Hitachi hard drive were not viewable without special software, they nonetheless constituted evidence of prior possession of child pornography. See United States v. Reed, 641 F.3d 992, 994 n.2 (8th Cir. 2011) (“The presence of child pornography in ... [inaccessible] orphan files on a computer’s hard drive is evidence of prior possession of that pornography.” (quotation and italics omitted)). Additionally, Huyck told law enforcement agents during the search that he was the only adult living at his residence. While Huyck’s daughter often stayed with him, she testified that she only used his computer to print school assignments and that she never saw anyone besides Huyck use the downstairs computer. Furthermore, the Hitachi hard drive, just like the disc in Manning, was recovered from Huyck’s computer desk — along with his personal belongings,' the G-Technology external storage drive, and the Molex- thumb drive — and the “downthemall” and OPVA evidence detailing Huyck’s “knowledge of, and interest in, child pornography, were probative as circumstantial evidence regarding [Huyck’s] knowing possession of the [Hitachi hard drive].” See 738 F.3d at 946. Accordingly, we find that the evidence was sufficient to support the jury’s verdict regarding knowing possession of child pornography contained on the Hitachi hard drive.

D. Motion for a New Trial

Huyck’s final argument is that the district court abused its discretion in denying his motion for a new trial. He contends that the jury’s questions regarding intent, knowledge, and access — as well as the inconsistent response to the special verdict form on the Hitachi receipt count — indicate the jury was confused. This confusion, he alleges, led to an unjust outcome and requires a new trial.

“Upon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). “The decision to grant a Rule 33 motion is within the sound discretion of the District Court, and we will reverse only for an abuse of that discretion.” United States v. Amaya, 731 F.3d 761, 764 (8th Cir. 2013) (quotation omitted). The district court is permitted to “weigh the evidence, disbelieve witnesses, and grant a new trial even where there is substantial evidence to sustain the verdict,” United States v. Campos, 306 F.3d 577, 579 (8th Cir. 2002) (quotation omitted), though “this broad discretion should be exercised sparingly and with caution,” United States v. Schropp, 829 F.3d 998, 1005 (8th Cir. 2016) (quotation omitted). “Corresponding to the district court’s broad discretion is the limited scope of our review: we will reverse the district court’s ruling on the motion for new trial only if we find that ruling to be a clear and manifest abuse of discretion.” Amaya, 731 F.3d at 764 (quotation and citation omitted). “We will find a district court abused its discretion if it fails to consider a factor that should have been given significant weight, considers and gives significant weight to an improper or irrelevant factor, or commits a clear error of judgment in considering and weighing only proper factors.” Id. (quotation and citation omitted).

Here, the district court did not abuse its discretion in denying the motion for a new trial. Though Huyck claims the jury instructions confused the jury, he does not identify an improper or erroneous instruction. Indeed, he cannot, as the instructions accurately define the relevant terms and “taken as a whole ... adequately advise the jury of the essential elements of the offenses charged and the burden of proof required of the government.” United States v. Rice, 449 F.3d 887, 895 (8th Cir. 2006) (quotation omitted).

Instead, his argument centers on the inconsistent response to the verdict form for the Hitachi receipt count. However, we have previously held that the presence of an inconsistent verdict is insufficient justification for a new trial. United States v. McDonald, 826 F.3d 1066, 1073 (8th Cir. 2016). “A jury may acquit a defendant as to one or more charges, for any number of reasons, including an inclination to be merciful, and yet come to the reasonable conclusion that the defendant was guilty of other related charges.” Id. at 1073-74 (quotation omitted). Because “[w]e are reluctant to delve into the minds of jurors to determine the reasons for apparently inconsistent verdicts,” for doing so would be based on “pure speculation,” “we only ask whether the government presented sufficient evidence to' support the conviction.” United States v. Opare-Addo, 486 F.3d 414, 416-17 (8th Cir. 2007) (quotation and citation omitted). As noted previously, the Government presented sufficient evidence to support the Pedoboard receipt and access convictions and the Hitachi possession conviction. The district court recited these same facts when it denied Huyck’s motion for a new trial. Moreover, the district court acquitted Huyck as to the Hitachi receipt count in an abundance of caution. Accordingly, we cannot say the district court “fail[ed] to consider a factor that should have been given significant weight, considered] and [gave] significant weight to an improper or irrelevant factor, or committed] a clear error of judgment in considering and weighing only proper factors.” Amaya, 731 F.3d at 764 (quotation and citation omitted). Therefore, the district court did not abuse its discretion in denying Huyck’s motion for a new trial.

III. CONCLUSION

For the foregoing reasons, we affirm the judgment of the district court.

      . The Honorable Joseph F. Bataillon, United States District Judge for the District of Nebraska.

      . Normally, an Internet Service Provider ("ISP”) assigns an IP address to an individual computer using its Internet service and associates the IP address with the physical address of the user. If law enforcement officials know a user’s IP address, they can subpoena the user’s ISP to provide the physical address.

      . The Honorable Thomas D. Thalken, United States Magistrate Judge for the District of Nebraska.

      . Exhibit 23 was a text file created in 2012 and located on Huyck’s Molex thumb drive. It stated, ' '[H]ttps://opva2pilscvtwmh.onion/ Need to use download manager downthemall is good for some.” Exhibit 24 was a demonstrative exhibit showing how “downthemall” worked. Exhibit 32 was a two-page document showing a search of PedoBoard for "downthemall,” and the document reflected comments where users discuss the utility of "downthemall” for child pornography purposes.

      . Exhibit 16 was a text file located on the G-Technology hard drive containing instructions on how to configure a computer to access the Tor network and the link to the OPVA web address. Exhibit 18 listed Huyck’s Firefox browser bookmarks, which also included the link to OPVA. Exhibit 27 was a screenshot of the homepage of the OPVA bookmark in Exhibit 18. Exhibit 28 contained the Tor web address for the Hidden Wiki and OPVA.


source: Caselaw Access Project

author: KELLY, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee v. Larry Rick MIKAWA, Defendant-Appellant
    No. 15-3954
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 15, 2016
    Filed: February 22, 2017

      Counsel who presented argument on behalf of the appellant was Rebecca L. Kurz, AFPD, of Kansas City, MO.
    Counsel who presented argument on behalf of the appellee was Jane Pansing Brown, AUSA, of Kansas City, MO.
    Before RILEY, Chief Judge, WOLLMAN and KELLY, Circuit Judges.
   KELLY, Circuit Judge.

After being found not guilty by reason of insanity of false personation of a federal officer in November 2012, Larry Mikawa was civilly committed pursuant to 18 U.S.C. § 4243. Two years later, the mental health facility treating Mikawa determined he had recovered from his mental illness sufficiently to be eligible for discharge from the psychiatric hospital. The government opposed release, and the district court held an evidentiary hearing. In its order, the district court denied release, finding that Mikawa posed a substantial risk of danger to other persons or property. Mikawa appealed, and we now affirm finding no clear error.

I. Background

On April 6, 2010, Larry Mikawa was indicted for false personation of a federal officer in violation of 18 U.S.C. § 912. Based on a stipulated psychiatric report, the district court found Mikawa incompetent to proceed and ordered him committed to determine if competency could be restored. Mikawa was transferred to the Federal Medical Center (FMC) in Butner, North Carolina for treatment. On September 11, 2012, the district court found Mi-kawa competent to proceed based on an updated psychiatric evaluation. Mikawa was transferred to the U.S. Penitentiary in Leavenworth, Kansas for further proceedings in his criminal case. While there, Mikawa stopped taking his psychiatric medications, and his psychotic symptoms returned.

Shortly thereafter, the parties filed a stipulation of facts in support of an insanity plea based on a doctor’s conclusion that Mikawa was unable to appreciate the nature and quality or wrongfulness of his acts at the time of the offense. On November 27, 2012, the district court found Mika-wa not guilty by reason of insanity and, per the stipulation, committed him pursuant to 18 U.S.C. § 4243. Mikawa was subsequently transferred to the FMC in Rochester, Minnesota in March 2013.

On January 7, 2015, the warden of FMC Rochester filed a “Certificate of Recovery and Request to Discharge from Psychiatric Hospital,” which stated that clinicians believe that Mikawa “has recovered from his mental disease or defect to such ah extent that his release would no longer create a substantial risk of bodily injury to another person or serious damage to the property of another.” Attached were the reports of two Risk Assessment Panels (RAP) — composed of at least two non-treating psychiatric professionals and chaired by the facility’s chief of psychology — dated April 8, 2014, and November 12, 2014. Both panels concluded that Mikawa had suffered from a severe mental illness, diagnosed as “schi-zoaffective disorder, bipolar type,” for at least three decades. After reviewing multiple psychiatric evaluations and treatment notes and conducting interviews of Mikawa and his ex-wife, the April 2014 panel recommended unconditional release because there was no record of Mikawa causing injuries or serious property damage, and his age and lack of substance abuse suggested future violence was unlikely. The panel did acknowledge that it was unlikely Mikawa — who did not believe he had a mental illness or needed medications— would independently continue treatment, and thus his mental status would likely deteriorate upon release. Because Mika-wa’s treating psychologist was on extended medical leave in April 2014, another RAP was convened in November 2014. The second RAP found no reason to alter its prior recommendation of unconditional release. The second panel found little risk of injury or property damage as Mikawa had no intent or history of causing harm, although it predicted he “likely” would engage in “nuisance or bizarre behavior that may, bring him to the attention of law enforcement.”

On January 13, 2015, the government objected to the release recommendation and requested a discharge hearing. In support of its request, the government attached a declaration from Mikawa’s treating psychiatrist, Dr. Dionne Hart, who opined that Mikawa should not be unconditionally released. The government also had Mikawa evaluated by Dr. Dawn Peuschold, who concluded that he should not be released.

Because the government opposed unconditional release, another RAP convened on March 17, 2015, to offer an .opinion on a proposed conditional release plan. The conditional release plan placed Mikawa, who was primarily a resident of Alaska prior to his arrest, at Marenah’s Assisted Living Home in Anchorage. The home had surveillance cameras and an onsite care worker who assisted with administering medications, hygiene, and programming. Mikawa would be required to receive mental health treatment provided by Anchorage Community Mental Health and to take all prescribed medications. Further, Mika-wa would be supervised by Tim Astle of the U.S. Probation Office in Anchorage, who would have access to all of Mikawa’s treatment records and to the home. Mika-wa also would be required to submit to drug testing. His failure to comply with the conditions of release could result in his return to custody. The March 2015 panel unanimously agreed that the proposed conditional release would “adequately control and minimize any risk related to Mr. Mikawa’s release from custody.”

The district court held a discharge hearing on October 5 and 6, 2015, and heard testimony from ten witnesses. Three of the witnesses, doctors Jason Gabel, Daniel Carlson, and Andrew Simcox, participated as members of one or more of Mikawa’s three RAPs. Each of them opined that either conditional or unconditional release would be appropriate as Mikawa was one of the “least dangerous” committed patients they had seen, and he,had no history of substance abuse, weapon ownership, or infliction of serious injury on others. Two of Mikawa’s mental health professionals— his psychologist at FMC Rochester, Dr. Emily Wakeman, and the mental health coordinator at Leavenworth, Jeff Cowan— testified that Mikawa was not a “threat to anyone” and had not had any physical altercations while committed. Astle and Elizabeth Meyer, a social worker at FMC Rochester, testified about the proposed conditional release plan and Astle’s inspection of the facilities and services Mikawa would rely on in Anchorage if conditionally released.

Dr. Dionne Hart, Mikawa’s treating psy-' chiatrist at FMC Rochester, disagreed with her fellow clinicians, opining that Mi-kawa should not be released. In her declaration, she cited three observations that led her to conclude that Mikawa “has not reached the maximum benefit from hospitalization:” first, he repeatedly insists he does not have a mental illness and will not take his medications; second, he continues to have delusions about Sarah Palin, the officers who arrested him, and being a law enforcement officer; and third, he has a preoccupation with his ex-wife, who does not want to have any contact with him. At the hearing, Dr. Hart expressed concern that Mikawa would contact his ex-wife, citing two letters and a package he had recently addressed to homes on the street where she lived. Dr. Hart recommended that Mikawa remain at FMC Rochester for further treatment, as she did not believe he would be able to comply with the conditions of release.

Dr. Dawn Peuschold, the government’s independent psychologist, testified consistently with her report that Mikawa had not recovered to such an extent that his unconditional or conditional release would no longer create a substantial risk of bodily injury to another person or serious damage to the property of another. Her conclusions were based on a review of Mikawa’s records as well as a four-hour and forty-minute interview with him. Dr. Peuschold agreed that Mikawa suffers from schizoaf-fective disorder, bipolar type and that he experiences symptoms, which are sometimes severe, both during and absent treatment. Mikawa’s symptoms cause him to misperceive external reality, giving him the mistaken belief that he does not have a mental illness and does not need treatment. Dr. Peuschold found that Mikawa’s mental illness causes him to “display[] a multidimensional pattern of disturbing, aggressive, or intimidating behaviors,” which he intends to continue and often lacks the ability to control. She found his behaviors “concerning” and subjectively “threatening.” In addition, Dr. Peuschold testified that she does not believe Mikawa will continue to take medications outside of a hospital setting and “is not stable enough” to comply with the other conditions of release.

The final witness was Mikawa’s second ex-wife, Cynthia Mikawa. She was married to Mikawa from 1999 to 2008 and the couple has one child, who was thirteen at the time of Ms. Mikawa’s testimony. During their marriage, Mikawa was primarily medication compliant and held a steady job in Alaska, but in 2007 he abruptly disappeared, stopped taking medication, and traveled to Missouri. After his disappearance, Mikawa called and wrote emails that Ms. Mikawa found threatening: calling her a “demon,” stating she needed “to be killed” and was going to “go to hell,” and threatening to take their daughter to the wilderness. She obtained a protective order against Mikawa in 2008, which he was found guilty of violating when he showed up at her house late at night yelling. According to Ms. Mikawa, after her ex-husband’s arrest in 2010 and as recently as August 2015, he wrote letters to her and her daughter from prison, most of which she returned to sender. On the outside of the envelopes, Mikawa wrote notes saying, among other things, that he was going to arrange for Ms. Mikawa to be killed. At the hearing, Ms. Mikawa testified that Mi-kawa’s release makes her afraid for her and her daughter’s safety because he will not stay on his medications or be able to abide by the conditions of release.

In an order dated December 1, 2015, the district court denied Mikawa discharge from commitment, adopting the conclusions of the government’s expert and finding that Mikawa failed to carry his burden to prove that his release would not create a substantial risk of bodily injury to another person or serious damage to property of another. Mikawa appeals this order.

II. Discussion

A person found not guilty by reason of insanity of an offense that did not involve a substantial risk of bodily injury or property damage is eligible for release, or conditional release, if he can prove by a preponderance of the evidence that “his release would not create a substantial risk of bodily injury to another person or serious damage of property of another due to a present mental disease or defect.” 18 U.S.C. § 4243(d). If the standard is met, the district court shall order the commitment be completely discharged, or 'order “that he be conditionally discharged under a prescribed regimen of medical, psychiatric, or psychological care or treatment that has been prepared for him, that has been certified to the court as appropriate by the director of the facility in which he is committed, and that has been found by the court to be appropriate.” 18 U.S.C. § 4243(f)(2)(A). We review an appeal of a district court’s order continuing commitment under 18 U.S.C. § 4243 and its dangerousness finding for clear error. See United States v. Bilyk, 949 F.2d 259, 261 (8th Cir. 1991) (citing United States v. Steil, 916 F.2d 485, 488 (8th Cir. 1990) (holding that the “clearly erroneous standard governs our review of a district court’s ... finding of dangerousness” under 18 U.S.C. § 4246)).

Although the warden recommended both Mikawa’s unconditional and then conditional release, on appeal Mikawa challenges only the district court’s refusal to order conditional release. Mikawa also does not challenge the finding that he presently suffers from a severe mental disease, namely schizoaffective disorder, bipolar type, which causes him to experience delusions, hallucinations, periods of disorganization, and mood symptoms. Thus, the central question in this appeal is whether the district court clearly erred in concluding that because of his mental illness, Mikawa’s conditional release would create a substantial risk of bodily injury to another person or serious damage to the property of another.

The district court found the government’s expert, Dr. Peuschold, to be credible and found her conclusions “persuasive and consistent with the record as a whole.” Mikawa argues that Dr. Peuschold’s conclusions should not be credited because she documents only one instance of physical injury to another person — Mikawa punching his first wife twenty-five years ago — and fails to connect Mikawa’s rude, annoying, and disturbing behaviors to any substantial risk of bodily injury or property damage. Instead, Mikawa argues the preponderance of the evidence supports the conclusion of the three RAPs that the absence of violence, substance abuse, and weapon use in Mikawa’s history makes it unlikely that he poses a physical danger to others.

The district court rejected Mikawa’s argument and refused to credit the opinions of the doctors who served on the RAPs, finding they were “not supported by the record.” Although the district court highlighted several facts to support its dangerousness finding, the RAP doctors’ conclusions deserve due consideration given their cumulative experience serving on thousands of risk panels for committed patients and their consideration of a plethora of Mikawa’s forensic, health, and legal records and a multi-year course of observation, interviews, and testing of Mikawa. Nevertheless, the district court substantiated its dangerousness finding, citing to fourteen acts by Mikawa which “were violent or pose a risk of bodily injury to another person or serious damage to property pf another,” including that he: (1) used a Samurai sword to destroy property at his apartment in 1988; (2) hit his first wife several times during a single incident in the late 1980s; (3) had protective orders issued against him by his second ex-wife, a gay rights organization, and workers at a sports arena in. Anchorage, Alaska; (4) left threatening letters at a Kansas City, Missouri federal courthouse in 2010; (5) was placed in leg irons and transported by stretcher at FMC Butner in August 2011 after verbally assaulting and pulling away from an escorting officer; (6) sent letters to his second ex-wife from FMC Butner indicating that she needed to be killed; (7) threw water on an electric fan outside his cell in an effort to shock his cellmate; (8) threw a milk carton with feces and urine at a correctional officer in July 2011; (9) spit at employees while temporarily housed at the Federal Correctional Institution in Oxford, Wisconsin in 2013; (10) called his treating psychiatrist, Dr. Hart, a “chemical terrorist”; (11) pretended to “shoot” at correctional officers by pointing his fingers at them in the shape of a gun; (12) pounded and kicked his cell door at FMC Rochester; (13) made near-daily reports to FMC Rochester doctors and employees about other patients’ behavior, considering himself a law enforcement officer; and (14) sent letters to his daughter (directly and through a friend of hers) in August 2015 with a notation to not show the letter to her mother. Given these detailed findings and our deference to them, we cannot conclude it was clear error for the district court to reject the opinions of some experts and adopt the opinion of another. See Bilyk, 949 F.2d at 261 (“Given ‘the trial judge’s awesome responsibility to the public to ensure that a clinical patient’s release is safe,’ the district court may reject experts’ conclusions when their reasoning supports different results.” (quoting United States v. Clark, 893 F.2d 1277, 1282 (11th Cir. 1990))).

We recognize that perhaps as compared to other committed patients, Mikawa has few documented incidents of physical injury to another person. The absence of prior violent acts certainly can be a key factor in analyzing whether discharge of commitment is appropriate, but “overt acts of violence are not required to prove dangerousness.” United States v. LeClair, 338 F.3d 882, 885 (8th Cir. 2003) (dangerousness proven by clear and convincing evidence where defendant had only one aggressive act, an assault, and had not shown any aggressive behavior while in treatment); United States v. Williams, 299 F.3d 673, 677 (8th Cir. 2002) (commitment appropriate even though defendant had “minimal history of actual violence” and a “relatively problem-free incarceration”); Steil, 916 F.2d at 487-88 (threatening letters and belief that delusions are real enough to prove dangerousness even though defendant had no history of violent behavior). Here, the district court pointed to one act of overt violence — Mikawa’s admitted attack of his first wife — as well as several threats of violence, harassing and assaultive behaviors, and aggressive and menacing acts. It was not clear error to rely on these alarming behaviors in finding Mikawa’s release created a substantial risk' of harm. See Williams, 299 F.3d at 677 (considering “significant episodes of bizarre, defiant, and explosive behavior” during incarceration). It is true that Mikawa’s assault of his first wife is entitled to less weight because it occurred over twenty-five years ago, but it need not be entirely discounted. See United States v. Evanoff, 10 F.3d 559, 563 (8th Cir. 1993) (“[T]he recency or remoteness of any particular activity simply affects the weight the court will give to that particular evidence.”). While none of the actions cited by the district court independently may have been enough to support a finding of dangerousness, together they provided sufficient evidence from which the district court could conclude that Mikawa posed a substantial risk of bodily injury to another person or serious damage to the property of another. See United States v. Dixon, 963 F.2d 377, at *3 (8th Cir. 1992) (unpublished table decision) (per curiam) (holding there was clear and convincing evidence of a substantial risk of future harm to another under § 4246 where defendant “verbally threatened his former wife with bodily harm, exhibited antisocial behavior, and could not control his temper and emotions”).

Mikawa also challenges the district court’s conclusion that the conditional release plan developed for him was insufficient to ameliorate the substantial risk of injury he posed to others. Among other things, the district court was concerned that if conditionally released, Mikawa could fail to take his medication and de-compensate psychiatrically, exhibit disturbing, aggressive, or intimidating behaviors in the community, walk away from the group home, harm his ex-wife or daughter, or stalk Sarah Palin. Mikawa argues that by requiring that he continue to take psychiatric medications, consent to drug testing, and risk recommitment for noncompliance, the conditional release plan adequately addressed any risk of injury from the possibility that he would stop taking his medications.

The conditional release plan included terms and conditions that would result in close monitoring of Mikawa’s compliance with treatment for his mental illness, which in some circumstances would be sufficient to alleviate the district court’s concerns. Given Mikawa’s long-term and frequent insistence that he does not suffer from a mental illness and does not want to be on and has a repeated history of refusing psychiatric medications, however, the district court did not clearly err in concluding that the proposed conditions did not sufficiently address the substantial risk that Mikawa would stop taking his medications, decompensate, and cause bodily harm or property damage. See LeClair, 338 F.3d at 885 (upholding continued commitment where patient had “little insight into his mental illness and need for treatment” and there was “no assurance of compliance with treatment outside a strac-r tured setting”); see also United States v. Jackson, 19 F.3d 1003, 1008 (5th Cir. 1994) (“Section 4243 does not require that Jackson be [conditionally] released simply because there are mechanisms whereby he could be ciosely monitored on an outpatient basis.”). Although the district court could have imposed additional conditions to allay its concerns, see United States v. Franklin, 435 F.3d 885, 889 (8th Cir. 2006), we cannot fault the district court for failing to consider hypothetical conditions not presented to it. In this case, it was not reversible error for the district court to deny conditional discharge based on the plan presented in the reports and at the hearing. See United States v. Phelps, 288 F.3d 1176, 1184 (9th Cir. 2002) (“If adequate conditions cannot be or are not developed to the satisfaction of the court to ensure public safety, then the court has the responsibility to deny the release.”).

While we do not find that the court clearly erred in denying the discharge of Mikawa’s commitment on the record presented here, we are mindful that the statutory maximum sentence for Mikawa’s offense is three years imprisonment. See 18 U.S.C. § 912. Mikawa has been in federal custody for nearly seven years, and his burden is to prove his eligibility for release only by a preponderance of the evidence. 18 U.S.C. § 4243(d). “It has to be recalled that the government’s role here is not that of punitive custodian of a fully competent inmate, but benign custodian of one legally committed to it for medical care and treatment — specifically for psychiatric treatment.” Steil, 916 F.2d at 488 (quoting United States v. Charters, 863 F.2d 302, 312 (4th Cir. 1988)). A person committed pursuant to 18 U.S.C. § 4243 is entitled to an annual evaluation of his mental condition and the need for continued commitment. 18 U.S.C. § 4247(e)(1)(B). At oral argument, it was disclosed that Mikawa has not received such an evaluation since his prior RAP in March 2015. “In its custodial role, the government of course must fulfill its statutory duties,” Steil, 916 F.2d at 488, and we are confident that the government will ensure Mikawa is reevaluated in due course to determine whether there is a need for his continued hospitalization. See also 18 U.S.C. § 4247(h) (stating that Mikawa’s counsel may file a motion for a hearing to determine Mikawa’s eligibility for discharge “at any time”).

III. Conclusion

For the foregoing reasons, we affirm the order of the district court.

      . The Honorable Dean Whipple, United States District Court for the Western District of Missouri.

      . The parties agree that Mikawa’s offense, false personation of a federal officer in violation of 18 U.S.C. § 912, did not involve a substantial risk of bodily injury or property damage.

      . Whereas 18 U.S.C. § 4243 concerns the commitment of a person found not guilty by reason of insanity, 18 U.S.C. § 4246 addresses the commitment of a hospitalized person following expiration of his or her sentence. The standard used to discharge commitment under §§ 4243 and 4246 is the same; however, depending on the procedural posture, the burdens of proof may differ. Compare 18 U.S.C. §§ 4243(d), (f) with 18 U.S.C. §§ 4246(d), (e).


author: KAVANAUGH, Circuit Judge:

text:
    CENTER FOR REGULATORY REASONABLENESS, Petitioner v. ENVIRONMENTAL PROTECTION AGENCY, Respondent
    No. 14-1150
    United States Court of Appeals, District of Columbia Circuit.
    Argued October 21, 2016
    Decided February 28, 2017
    John C. Hall argued the cause for petitioner. With him on the briefs were Gary B. Cohen and Philip D. Rosenman.
    Jeffrey S. Longsworth was on the brief for amicus curiae The National Association of Clean Water Agencies in support of petitioner.
    Andrew J. Doyle, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief were John C. Cruden, Assistant Attorney General, and Richard T. Witt, Attorney, U.S. Environmental Protection Agency. Michele L. Walter, Attorney, U.S. Department of Justice, entered an appearance.
    Before: KAVANAUGH and WILKINS, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
   KAVANAUGH, Circuit Judge:

As a general matter, the Clean Water Act prohibits discharge of pollutants into the Nation’s waters except in accordance with a permit. The Environmental Protection Agency promulgates rules governing those permits. Some of the permitting rules apply to publicly owned water treatment facilities. In 2011, EPA issued policy letters that explained and arguably changed two EPA policies with respect to publicly owned water treatment facilities. A group representing the interests of municipalities then sued to challenge the new EPA policy letters in the Eighth Circuit. The group prevailed in the Eighth Circuit. See Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013).

Beginning in 2013, EPA made statements indicating that it would not acquiesce in or follow the Eighth Circuit’s decision outside of that circuit. We will refer to those EPA statements collectively as “EPA’s non-acquiescence statement.” In this Court, an industry group — the Center for Regulatory Reasonableness— then sued EPA. The Center raised multiple challenges to the non-acquiescence statement’s legality, including claims that the non-acquiescence statement was itself a rule promulgated without proper notice and comment and in excess of the agency’s statutory authority.

The key threshold question here is whether this Court has jurisdiction to hear this kind of challenge at this time. We do not. In general, district courts have jurisdiction to review final agency actions unless a statutory provision provides for direct review in a court of appeals. To be sure, the Clean Water Act authorizes direct court of appeals review of EPA-promulgated effluent or other limits on discharge of pollutants. 33 U.S.C. § 1369(b)(1)(E). We need not determine whether EPA’s non-acquiescence statement constitutes a “promulgation” because EPA’s non-acquiescence statement does not announce an effluent or other limit on discharge of pollutants. The non-acquiescence statement merely articulates how EPA will interpret tbe Eighth Circuit’s decision. Therefore, to the extent the Center wants to directly challenge EPA’s non-acquiescence statement, it must follow the usual path of suing in district court under the Administrative Procedure Act, assuming other reviewability criteria are satisfied. See 5 U.S.C.. §§ 702-704; 28 U.S.C. § 1331.

To the extent the Center seeks to directly challenge the 2011 policy letters, direct review of those letters in a court of appeals had to be sought within 120 days (as another petitioner did in the Eighth Circuit). See 33 U.S.C. § 1369(b)(1). The Center is well outside the 120-day window to directly challenge the 2011 policy letters in this Court. To the extent the Center believes EPA is violating the Eighth Circuit’s mandate, it may of course try to seek mandamus or other appropriate relief in the Eighth Circuit. See 28 U.S.C. § 1651(a).

In sum, this Court lacks jurisdiction to directly review EPA’s non-acquiescence statement. The petition for review is dismissed.

So ordered.

      . In determining jurisdiction, this Court generally will assume the merits as the plaintiff or petitioner pleads them, but that is not the approach we follow when, as here, "the men-its of th[e] APA challenge are inextricably linked to our jurisdiction to hear that challenge.” Cement Kiln Recycling Coalition v. EPA, 493 F.3d 207, 226 (D.C. Cir. 2007).


author: LYNCH, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Michael J. GALATIS, Defendant, Appellant.
    No. 15-1322
    United States Court of Appeals, First Circuit.
    February 24, 2017

      Robert L. Sheketoff, Boston, MA, for appellant.
    Kelly Begg Lawrence, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
    Before HOWARD, Chief Judge, LYNCH and LIPEZ, Circuit Judges.
   LYNCH, Circuit Judge.

Michael Galatis was convicted by a jury of conspiracy to commit healthcare fraud, in violation of 18 U.S.C. § 1349; healthcare fraud, in violation of 18 U.S.C. § 1347; and money laundering, in violation of 18 U.S.C. § 1957. The fraudulent activity took place from about January 1, 2006 to about October 2, 2012 and it involved billing Medicare for $27.6 million in false claims, about $19.9 million of which the government paid out to Galatis’ company, At Home YNA (“AHVNA”).

Galatis appeals his convictions, arguing there was trial error. He particularly argues that the district court committed reversible error by (1) allowing Galatis’ associate to testify that the associate had pled guilty to one count of healthcare fraud arising from the same scheme, without sua sponte giving a limiting instruction; (2) permitting certain lay and expert witness testimony, which Galatis characterizes as concerning the meaning of terms in the applicable Medicare regulations; and (3) denying Galatis’ preferred jury instruction as to the meaning of a particular certification requirement in the relevant Medicare provisions. We affirm the convictions. There is no appeal from the sentence.

I.

Home health services are eligible for coverage under Medicare if the individual who is the beneficiary of the services is (1) “confined to the home” (the “homebound” requirement); (2) “under the care of a physician who establishes the plan of care”; (3) in need of at least one of a number of enumerated “skilled services as certified by a physician”; (4) “under a plan of care” as specified under the relevant regulation; and (5) receiving services “furnished by, or under arrangements made by, a participating [home health agency].” 42 C.F.R. § 409.42. In order to prove a beneficiary’s eligibility for Medicare payment for home health services, providers must submit two forms to the U.S. Department of Health and Human Services (“HHS”). The first is a checklist known as an OASIS Form, a “voluminous document” that “details the beneficiary’s condition.”

In the second document, a Form 485 Health Certification and Plan of Care (“Form 485”), a physician certifies under pain of “fine, imprisonment, or civil penalty under applicable Federal laws,” that the beneficiary meets the requirements for Medicare coverage of home health services. For any care starting on or after April 1, 2011, the Form 485 also requires a physician to certify in a separate addendum that a “face-to-face patient encounter” has occurred. This requires that there be an in-person meeting between a physician or a qualified non-physician practitioner and the beneficiary, which must be “related to the primary reason” for the beneficiary’s home health services.

Michael Galatis set up and owned MJG Management, a home health agency, which operated under the name At Home VNA. The prosecution presented evidence from AHVNA nurses and AHVNA’s Medical Director that AHVNA had recruited individual patients by sending nurses to host “wellness clinics” at assisted living centers and public housing facilities, where the nurses provided services like flu shots, and in doing so collected insurance information and “convinc[ed residents] to sign on with [AHVNA].” Nurses would also sometimes recruit patients door-to-door. AHVNA nurses testified that a patient’s insurance coverage was the only criterion they used to determine whether that person was eligible to be signed up for AHVNA’s services. Specifically, nurses were instructed to only sign up patients who were on Medicare.

These nurses also testified that Galatis and/or Janice Troisi, his former colleague and codefendant, instructed the nurses to fill out OASIS Forms inaccurately, telling the nurses never to score a patient as a “zero” in the “activities of daily living” category (a zero signifying full independence and no need for home health services); never to check a box indicating that a patient was “alert and oriented times three” (signifying that the patient 'was extremely alert and not in need of home health services); and to write their nurses’ notes using words that made the care provided appear like skilled nursing services, even when it was not, and words that emphasized the patients’ need for care. The nurses testified that Galatis and/or Troisi would review the OASIS Forms and nurses’ notes at regular meetings and would force nurses to “correct” materials that did not' make a sufficiently persuasive case for the patients’ eligibility and need for services. Further, Galatis and Troisi would demand that nurses continue visits to patients whom the nurses had recommended be discharged, or would reassign those patients to new nurses as patients in continuing need of AHVNA’s services.

Dr. Spencer Wilking, AHVNA’s Medical Director, was responsible for signing the Form 485s submitted to HHS. Dr. Wilking testified that in the first year after he joined AHVNA, around 2006, he conducted visits with patients before completing, these forms. But beginning in 2007, as the business expanded, Dr. Wilking began signing the forms without conducting the necessary visits or any other review. By 2011, Dr. Wilking was signing approximately one hundred and fifty Form 485 certifications at each weekly AHVNA staff meeting.

Starting in 2007, Dr. Wilking was paid a monthly consulting fee — initially $2,500 per month, and then $3,500 per month as AHVNA’s patient population increased— for his services to AHVNA. Dr. Wilking admitted that he knew he was engaging in misconduct and said he expressed concern about this to Galatis “three or four times.” Dr. Wilking “chose to ignore” his own concerns and continued to sign the Form 485 certifications “because [he] was being" paid quite a lot of money to do so.” He estimated he had certified and re-certified thousands of AHVNA patients between 2006 and 2012 (including the ten patients named in the indictment), none of whom he had in fact seen or could guarantee actually needed home health services. Before Galatis’ trial, Dr. Wilking was separately indicted and pled guilty to one count of Medicare fraud arising from his conduct at AHVNA.

Galatis and Troisi were indicted in September 2013. Galatis was charged with conspiracy to commit healthcare fraud, see 18 U.S.C. § 1349, eleven counts of healthcare fraud, see kL § 1347, and seven counts of money laundering, see id. § 1957. At the end of a sixteen-day trial, the jury convicted Galatis on all submitted counts. The district court sentenced him to 92 months in prison and three years of supervised release, and ordered him to pay a $50,000 fine and $7,000,000 in restitution. This appeal from his convictions followed.

II.

Galatis does not dispute the sufficiency of the evidence supporting his convictions, but does make three claims that the district court committed reversible error at trial. He argues that the district court should have given sua sponte a limiting instruction as to Dr. Wilking’s testimony regarding Dr. Wilking’s guilty plea. He argues that the court wrongly permitted testimony interpreting the legal meaning of the applicable Medicare regulations. And he argues that the district court erroneously rejected his preferred jury charge regarding the face-to-face encounter regulation. None of these claims succeeds. We address each in turn.

A. Admission of Evidence of Dr. Wilk-ing’s Guilty Plea

Galatis argues that the district court erred by not giving a limiting instruction after admitting evidence of Dr. Wilking’s guilty plea and that this purported error and questions from the government permitted the jury impermissibly to use Dr. Wilking’s plea as substantive evidence of Galatis’ guilt. Galatis never requested that the district court give an instruction limiting the use of Dr. Wilk-ing’s guilty plea. Accordingly, his claim is reviewable for at most plain error. See United States v. Rodriguez, 759 F.3d 113, 121 (1st Cir. 2014). Galatis must demonstrate “(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant’s substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). Galatis cannot meet this standard.

During his testimony, Dr. Wilking was asked by the prosecutor, “Did anything happen to you as a result of your involvement with At Home VNA?” After the district court overruled an objection from defense counsel, Dr. Wilking answered that he had “pleaded guilty to a count of Medicare fraud,” and, in response to further questioning, said that he had entered into a plea agreement. The prosecution moved to admit a copy of Dr. Wilking’s plea agreement into evidence. The district court initially stated that it would not admit a copy of the plea agreement itself, but after defense counsel affirmatively stated that he had “no objection” to the document’s admission, the court allowed the plea agreement into evidence.

Dr. Wilking further testified that, pursuant to the plea agreement, he had “agreed to tell the truth” in the hope of a reduced sentence and that, if he did not testify truthfully, he would “lose [the benefit of] the agreement and [ ] m[ight] be subject to a charge of perjury.” He then testified, in response to the prosecutor’s question, “Can you describe in your own words what it is that you did that resulted in your guilty plea?”, about his role in the Medicare-fraud scheme at AHVNA.

Then, when asked by the prosecutor about who else was involved in the fraud, Dr. Wilking stated that Galatis and Troisi had participated in the fraud and that Galatis “was the director ... and the planner and the executor of the fraud.” Defense counsel objected to this answer, citing a lack of foundation, and the court overruled the objection, stating “[i]t c[ould] be developed in testimony ... and then on cross-examination.” Defense counsel cross-examined Dr. Wilking about his plea agreement and asked him whether he was testifying because of the benefit he would receive from the government for cooperation.

The prosecutor argued in closing that “Dr. Wilking[] pleaded guilty to health care fraud. He’s taken responsibility for his part in this fraud scheme,” and emphasized that while Dr. Wilking had entered a plea agreement, that agreement was contingent on truthful testimony. The prosecutor also argued:

And Dr. Wilking testified, Yeah, I committed a fraud, but he told you that he didn’t do it alone. He told you that Mike Galatis ran the show, that Janice Troisi pushed the nurses to enroll those patients, and [that] he was the one who signed those forms. Every one of them did their part, a three-legged stool.

Defense counsel, referencing the plea agreement, argued in closing that Dr. Wilking had testified against Galatis out of self-interest and characterized Dr. Wilking as the “rotten apple” of AHVNA. The defense did not ask for instructions limiting the use of Dr. Wilking’s plea.

At oral argument on appeal, defense counsel maintained that our opinions in United States v. Dworken, 855 F.2d 12 (1st Cir. 1988), and United States v. Foley, 783 F.3d 7 (1st Cir. 2015), create a per se rule obliging the district court to give a limiting instruction when a co-conspirator’s guilty plea is admitted into evidence. The limiting instruction would have advised the jury not to use Dr. Wilking’s plea as evidence of Galatis’ guilt.

The cases do not support Galatis’ proposition. Dworken involved an improper closing argument, which we reviewed for harmless error. 855 F.2d at 29-32. We did not consider whether limiting instructions, which were in fact given in that case, must be given sua sponte. Id. In Foley, we found that the district court had not abused its discretion by admitting, accompanied by a limiting instruction, testimony from an associate of the defendant regarding that associate’s guilty plea. 783 F.3d at 17-18. Again, the case said nothing about requiring a district court sua sponte to provide a limiting instruction. The absence of a limiting instruction here, then, was not error.

In any event, Galatis cannot demonstrate that the absence of a limiting instruction “affected [his] substantial rights” and “seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” See Duarte, 246 F.3d at 60. Galatis does not show that the government in fact used Dr. Wilking’s guilty plea as substantive evidence of Galatis’ guilt. The two moments in the trial to which Galatis points do not bear out his claim. The first is when Dr. Wilking testified about Galatis and Troisi’s involvement in the scheme. This was proper testimony by one participant in the fraud about other participants. The second was when the prosecutor referenced Dr. Wilking’s guilty plea during closing arguments, and said “[h]e’s taken responsibility for his part in this scheme.” This was an entirely proper use of Dr. Wilking’s admission of guilt to strengthen Dr. Wilking’s credibility and to blunt uses of the guilty plea by the defense to attack his credibility. See United States v. Torres-Colón, 790 F.3d 26, 30 (1st Cir.), cert. denied, — U.S. -, 136 S.Ct. 185, 193 L.Ed.2d 148 (2015).

Galatis has not demonstrated that the lack of a limiting instruction made any difference to the outcome of the trial. The government presented overwhelming evidence against him. This evidence included testimony from AHVNA patients, AHVNA nurses, and primary care providers that showed that AHVNA plainly had not met the requirements for home health services under Medicare and that Galatis and Troi-si had falsified the necessary forms to make it appear as if the patients were eligible. The jury reviewed OASIS Forms and Form 485s, submitted by AHVNA to HHS, that made assertions flatly contradicted by the testimony of AHVNA patients, their nurses, and their primary care providers. Dr. Wilking testified that he had routinely certified at the weekly staff meetings that patients were eligible under Medicare, even though he had not actually met with or examined the patients, and that Galatis had known this. The lack of a limiting instruction as to Dr. Wilking’s guilty plea did not affect the jury’s verdict. See Torres-Colón, 790 F.3d at 31-32 (finding no plain error when there was “overwhelming evidence” to convict defendant).

B. Admission of Witness Testimony about Medicare Regulations and Jury Charge

We put this next set of challenges in context. Generally, it is up to the judge to instruct the jury on the meaning of the law, including law set forth in statutes and regulations. See United States v. Prigmore, 243 F.3d 1, 17-18 & n.2 (1st Cir. 2001); Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 99 (1st Cir. 1997). The trial court did so here in the final instructions and limited the witness testimony. Galatis claims the judge got it wrong. We will return to that topic after addressing claims that the trial judge erred by allowing others, in testimony, to address the law, which we review for abuse of discretion, see United States v. Weekes, 611 F.3d 68, 70 (1st Cir. 2010).

1. Lay Witnesses

The judge allowed lay witnesses— an AHNVA patient, two primary care providers, and three AHVNA nurses — to testify as to their understandings of certain Medicare terms such as “skilled nursing services” and “homebound” in describing what they had done and why. The defense objected at trial, but the testimony was perfectly permissible “lay experiential expertise ... ‘founded on personal knowledge and susceptible to cross-examination,’ ” United States v. Vega, 813 F.3d 386, 394 (1st Cir. 2016) (quoting United States v. Ayala-Pizarro, 407 F.3d 25, 28 (1st Cir. 2005)), which is admissible under Federal Rule of Evidence 701 as “the product of reasoning processes familiar to the average person in everyday life,” Vega, 813 F.3d at 394 (quoting United States v. Garcia, 413 F.3d 201, 215 (2d Cir. 2005)).

The challenged lay testimony helped the jury to understand what AHVNA patients, nurses, and primary care providers had observed and what they had been told to do. It also was relevant to refute Galatis’ articulated defense at trial that he was trying, in good faith, to comply with the regulations. The testimony never purported to tell the jury what the law meant. See id. at 395 (distinguishing permissible lay witness testimony from improper lay witness testimony in which witnesses “lend[ed] the jury their knowledge of Medicare law to provide definitive commentary on the matter”). And during the testimony of one of the AHVNA nurses, the district court, in overruling defense counsel’s objection, explained to the jury that although the AHVNA nurses’ testimony illustrated their perception of the patients’ qualifications under the regulations, the legal significance of the regulations would be explained by the court. There was no abuse of discretion in allowing the testimony.

2. Expert Witness

Galatis also objected to the testimony of an expert witness, Stephanie Fox, a Medicare-fraud investigator. He focuses his attack on three passages in Fox’s testimony: her assertion that a physician signing a “plan of care” would normally have an “intimate relationship with th[e] beneficiary”; her explanation of what constitutes “skilled nursing services”; and her discussion of the relationship between and hierarchy among the federal Social Security Act, the Medicare regulations in the Code of Federal Regulations, and the Medicare Policy Manual.

Fox’s testimony was admissible under Federal Rule of Evidence 702. The district court made clear during a pretrial ruling that Fox could “introduce to the jury the regulatory regime that is out there,” but that she could not “opine about [the relevant] provisions” or “be someone who comes in and says when people do this [then it] is fraud.” Fox never transgressed these proper limitations on her testimony.

Fox never purported to offer an interpretive gloss on the legal meaning of the regulations. Her explanation of “skilled nursing services” hewed closely to the letter of the regulations themselves. Her testimony about the relationship between physicians and patients — and about the hierarchy among the statute, regulations, and policy manual — was based on her professional experience as a Medicare investigator, not on legal expertise. She never applied the regulations to the facts of the case or suggested that any actions by AHVNA had violated the law. Her testimony aided the jury in understanding the regulatory framework without displacing the district court’s role in instructing the jury as to that framework’s legal significance.

C. Jury Charge

Since we have rejected Galatis’ attacks on the admission of lay and expert testimony, we leap over the claims that the district court somehow compounded any such error in the jury instructions and get to the heart of the matter. We also reject the argument, as contradicted by the record, that the jury was not told the witness testimony was not the law.

An important theory of the defense was that Galatis had. made a good-faith, though unsuccessful, attempt at compliance with the Medicare provisions. Specifically, the defense argued in its closing statement that Galatis had attempted to satisfy the face-to-face encounter requirement by sending “letters to other physicians [who] might have seen the patient.” Galatis now challenges the district court’s refusal to give Ms preferred instruction on the face-to-face encounter requirement. He cites the principle that defendants are “entitled to have their intent assessed in the light of the interpretation of the [relevant law] that is most congenial to their case theory and yet also objectively reasonable.” Prigmore, 243 F.3d at 17. Galatis argues that the instruction the district court chose to give violated this principle by undermining his theory that he had not intended to violate the regulation. Not so. As the district court properly ruled, because Galatis presented no evidence to support this theory, there was no error in the refusal to give his instruction.

During the charge conference, defense counsel asked that the court, when instructing the jury on the “face-to-face encounter” requirements of the relevant regulations, include all the types of personnel qualified to perform face-to-face encounters, including qualified non-physician personnel. See 42 C.F.R § 424.22(a)(l)(v)(A)(l)-(5). The court refused, stating that there was no evidence that any qualified non-physicians had performed face-to-face encounters, and it rejected defense counsel’s suggestion that some AHVNA nurses could be qualified. The next day, before the jury charge, defense counsel again requested that the district court list all personnel qualified to make a face-to-face encounter. The district court again refused and stated that it would not “charg[e] the jury about things that [we]ren’t relevant to the ease.”

In its charge, the court directed the jury to the Medicare Policy Manual, which was in evidence, and noted that the Manual “outlines in chapter and verse the various elements of what you have to do to get entitlement to [ ] Medicare benefits.” The court then gave a “short form” explanation of these requirements, which included the following:

In addition, after April 1, 2011, the establishment of a plan of care, as relevant to the evidence developed in this case, must have been the result of a face-to-face encounter. related to the primary reason for the home health care services, between either the certifying physician or a physician who has cared for the patient in an acute or post-acute facility. The encounter must have occurred within 90 days prior to the start of care or within 30 days after the start of care. The encounter must be documented by the certifying physician in a distinct section of the Form 485 signed by the certifying physician.

Defense counsel then again objected to the omission of qualified non-physician personnel from the instruction on the face-to-face encounter requirement, and the district court again denied the objection.

We review de novo properly preserved claims of legal error based on the district court’s refusal to give a requested instruction. United States v. Figueroa-Lugo, 793 F .3d 179, 191 (1st Cir.), cert. denied, — U.S. -, 136 S.Ct. 559, 193 L.Ed.2d 445 (2015). Challenges to refused requested instructions succeed where the requested instruction was “(1) substantively correct; (2) not substantially covered elsewhere in the charge; and (3) [related to] a sufficiently important point that the failure to give it seriously impaired the defendant’s ability to present his or her defense.” Prigmore, 243 F.3d at 17.

Galatis cannot meet this standard. His good-faith theory rested on his claim that he had attempted to contact other physicians who might have seen AHVNA’s patients. He presented no evidence that qualified non-physician personnel had performed face-to-face encounters or that he had had a factual basis to believe that to be the case. See United States v. Lopez-Lopez, 282 F.3d 1, 18 (1st Cir. 2002) (explaining that a defendant’s right to a preferred instruction “extends only to those defenses for which there is sufficient evi-dentiary support”). There was no error in the district court’s instruction.

III.

We affirm Galatis’ convictions.

      . Troisi fell ill during trial and the district court declared a mistrial as to her. She was later convicted after a bench trial and sentenced to 36 months in prison, three years of supervised release with special conditions, and a special assessment of $1,100. We decide her appeal in a companion case, United States v. Troisi, No. 16-1046, 849 F.3d 490, 2017 WL 727554 (1st Cir. Feb. 24, 2017), issued on the same date as this opinion.

      . The court eventually dismissed Count 9, one of the fraud counts, on the government’s motion.

      . For example, Nurse Julissa Batres-Baraho-na was asked by the prosecutor, "And roughly how many of your patients do you think needed skilled nursing services?”, to which she responded, "I don’t think any of them did.” Nurse Lety Rodasologaistoa was asked, "The patients you were seeing, were those patients homebound?”, to which she responded, "By what I know now, they weren’t.”

      . Rule 701 permits lay opinion testimony if it is "(a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scopfe of Rule 702 [which governs expert testimony].” Fed. R. Evid. 701.

      . Rule 702 specifies that a witness may testify as an expert if "(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.” Fed. R. Evid. 702.

      . Defense counsel did assert during opening statements that the face-to-face encounter regulation "called for that visit to be conducted and [stated that it] can be conducted by the nurses and other practitioners who are the eyes and ears of the physician.” But Galatis does not assert in his appellate brief that his good-faith compliance theory relied on this aspect of the regulations, nor does he suggest on appeal that he presented any evidence that he attempted to comply with the regulations by having qualified non-physicians perform face-to-face encounters.

      . The government argues that Galatis has forfeited or waived this claim because he argued to the district court that his preferred instruction was appropriate because AHVNA nurses were in fact qualified non-physicians under the requirement, not because he had made a good-faith effort at compliance by contacting other physicians. We need not decide this issue, because even if properly preserved, the argument fails.