United States of America v. Benjamin Tyler Gentry

United States Court of Appeals
For the Eighth Circuit
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No. 24-1322
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Benjamin Tyler Gentry
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: February 10, 2025
Filed: November 12, 2025
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Before LOKEN, BENTON, and STRAS, Circuit Judges.
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LOKEN, Circuit Judge.
In October 2021, Department of Homeland Security Special Agent Aaron
Simon downloaded prepubescent child pornography videos that were traced to a
device with an IP address at Benjamin Tyler Gentry’s residence in Boone, Iowa. At
the time of the downloads, Gentry resided at this address with his girlfriend and her
minor child, who were both out of town during that period. During a warrant search

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of the home in March 2022, officers seized an iPhone, a Samsung tablet, and two
firearms. Gentry denied knowing the password to the Samsung device.
After investigators bypassed the Samsung tablet’s security, a forensic search
revealed 181 images of mostly prepubescent child pornography in unallocated space
on the device.1 The images, deleted before the search, had been stored locally on the
device between January 2020 and two days before it was seized. Nearly every
application -- including BitTorrent, which is used to obtain child pornography -- was
linked to Gentry’s email address. Analysts also discovered search terms associated
with child pornography in the tablet’s web history. Gentry admitted to investigators
that he accessed and downloaded pornography of minors as young as 14.
A Southern District of Iowa grand jury indicted Gentry, a convicted felon, on
three counts of receipt and possession of child pornography in violation of 18 U.S.C.
§ 2252A(a)(2), (b)(1), (a)(5)(B), and (b)(2), and with being a felon in possession of
a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
Gentry pleaded guilty only to the felon in possession charge. The child
pornography charges proceeded to a jury trial. At the close of the government’s case,
Gentry moved for judgment of acquittal on all three counts:
Taking the facts presented . . . in the light most favorable to the
Government . . . we don’t believe that the Government has shown
sufficiently that Mr. Gentry had knowledge about these images that were
allegedly found . . . on the [Samsung] tablet device. And so, for that, we
would make our motion for judgment of acquittal.
1“Unallocated space” is the term used for information on a device’s hard drive
that has not been assigned or allocated to active files. A file in unallocated space was
once physically on the device but was then deleted.
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(Emphasis added.) The district court2 denied the motion:
The only contested element or aspect of an element appears to be
knowing receipt. . . . At this time, there is more than sufficient evidence
for a reasonable jury to conclude the defendant is guilty of all three
counts.
After denying the motion, the court asked if there was “[a]ny additional record in that
regard.” Gentry replied that there was not.
After the jury convicted Gentry of the three receipt and possession charges, he
filed written motions for judgment of acquittal and a new trial, arguing that “no
reasonable jury could find beyond a reasonable doubt the defendant knew that within
the thousands of images and videos he was downloading there was child pornography
present.” The district court denied the motion: “Overwhelming evidence, including
search engine queries directly related to child pornography, supports the jury’s guilty
verdicts on each count.” The court then granted the government’s motion to dismiss
without prejudice the two convictions for possession of child pornography because
they are lesser included offenses of the receipt conviction and sentenced Gentry to
168 months imprisonment.
At sentencing, in discussing Gentry’s objections to the Presentence
Investigation Report (PSR), defense counsel agreed with the court that “the facts [in
the PSR] are consistent with what was admitted at trial,” but Gentry “is still
maintaining . . . his objection about knowledge, his objection about whether . . . any
of the alleged child pornography was downloaded in the Southern District of Iowa for
jurisdiction.” The court then asked, “are there any other objections that need to be
addressed by the Court?” Defense counsel replied, “I don’t think so, Judge.” Asked
2The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.
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by the court, Gentry then agreed that “[a]side from the specific objections you’ve
made, the [PSR] report is factually accurate or correct.” The court then found that
“[a]ll of the information presented at trial is consistent with the information set forth
in the offense conduct section” of the PSR and overruled Gentry’s objections to those
paragraphs.
Gentry appeals the denial of his motions for judgment of acquittal. On appeal,
he argues for the first time that no evidence was presented permitting a reasonable
jury to find, by a preponderance of the evidence, that the locus delicti or place of the
crime of knowingly receiving the child pornography occurred in the Southern District
of Iowa. Instead, the government merely inferred venue for the receipt offense from
the seizure of deleted files on the Samsung device in Gentry’s possession in the
Southern District of Iowa, without proof that he knowingly received (downloaded)
any of the child pornography videos in that district. We need not address his claims
because, applying our venue precedents, we agree with the government that Gentry
waived this issue in the district court. We therefore affirm.
Discussion
“Proper venue is required by Article III, § 2 of the United States Constitution
and by the Sixth Amendment, as well as Rule 18 of the Federal Rules of Criminal
Procedure. A federal crime may be prosecuted in any district in which such offense
began, continued, or was completed.” United States v. Mink, 9 F.4th 590, 601 (8th
Cir. 2021) (quotation omitted). “Venue is a fact which must be proved at the trial . . .
[and] the government has the burden of proving that the criminal activity took place
in the district where the prosecution was undertaken.” United States v. Morrissey,
895 F.3d 541, 550 (8th Cir. 2018) (cleaned up). But venue is an “essential element”
of a criminal case, not an “‘essential element’ of an offense.” Therefore, venue does
not need to be proven beyond a reasonable doubt; it can be waived, and a court does
not commit error by failing to instruct on it unless it is in issue. Id. at 551-52.
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Though a question for the jury if disputed, “proof of venue may be so clear in some
cases that the failure to instruct on the issue is not reversible error.” United States v.
Moeckly, 769 F.2d 453, 461 (8th Cir. 1985), cert. denied 476 U.S. 1104 (1986); see
United States v. Romero, 150 F.3d 821, 826 (8th Cir. 1998). As with other fact
questions, circumstantial evidence can establish venue. United States v. Netz, 758
F.2d 1308, 1312 (8th Cir. 1985) (citation omitted).
When a defendant fails to object to venue before, during, or at the conclusion
of trial, he either waives the right to object to venue or forfeits it. If the defendant
“has no notice of a defect of venue until the government rests its case, the objection
is timely if made at the close of the evidence.” United States v. Black Cloud, 590
F.2d 270, 272 (8th Cir. 1979). Absent evidence the defendant expressly or
intentionally abandoned his right to object to venue, “we construe such inadvertent
failure as forfeiture and review the challenge on appeal for plain error.” Mink, 9
F.4th at 601; see United States v. McCorkle, 688 F.3d 518, 522-23 (8th Cir. 2012) (no
plain error because the theft of government funds in Illinois was completed when the
checks were cashed in Iowa).
In this case, Gentry neither moved for a change of venue before trial nor
objected to venue in the Southern District of Iowa at trial. His motion for judgment
of acquittal at the close of the government’s case never mentioned venue, nor any
jurisdictional issue. The motion clearly stated that it concerned the alleged lack of
evidence that Gentry “knowingly receive[d] or distribute[d]” child pornography, an
element of the charged 18 U.S.C. § 2252A offense.
Nor did Gentry explicitly raise any issue regarding venue at any other time
before, during, or after trial. The jury need only consider the question of venue “if in
issue.” Mink, 9 F.4th at 602. Gentry did not request that the jury be instructed to
consider venue, either in the joint proposed jury instructions or in discussing
proposed instructions with the court. He did not object to the final jury instructions,
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which did not include a venue instruction. Likewise, his post-trial motion for
judgment of acquittal again argued the alleged lack of evidence of knowing receipt
or possession but never raised any claim relating to any other issue, including venue
or jurisdiction. The motion was denied and the case proceeded to sentencing.
Gentry’s objections to the PSR also raised no issue regarding venue. At the
sentencing hearing, defense counsel stated that Gentry “is still maintaining . . . his
objection about knowledge, his objection about whether, you know, any of the
alleged child pornography was downloaded in the Southern District of Iowa for
jurisdiction.” Jurisdiction of course is distinct from appropriate venue. The word
“venue” is not to be found in the sentencing transcript.
When a defendant has heard trial testimony that child pornography images that
were found on his device may have been received when he and the device were in
another district but fails to raise the issue of venue at the close of evidence, he has
“waived any objection to improper venue, and thus venue cannot be reviewed on
appeal.” Morrissey, 895 F.3d at 550-51. “Because [Gentry] raised specific
challenges [in his motion for acquittal] -- but made no mention of venue -- he waived
any defect in venue.” Id. at 551 n.6. (citation omitted).
On appeal, Gentry argues he did not waive his right to address venue on appeal
because his motions for judgment of acquittal “specifically identified sufficiency of
the evidence” as the issue:
Venue is an essential element of the crime alleged and must be
sufficiently proven, even if to the lower burden of preponderance of the
evidence. . . . Mr. Gentry moved for judgment of acquittal specifically
on the mens rea knowledge element and impliedly on the remaining
elements which also require sufficient proof.
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As we have explained, this contention is simply contrary to controlling Eighth Circuit
precedents. First, venue is not an essential element of the crime alleged. It is an
“essential element” of a criminal case, not an “‘essential element’ of an offense.”
Morrissey, 895 F.3d at 551-52. Defense counsel acknowledged this in the district
court -- when the court denied Gentry’s initial acquittal motion, it stated that “the only
contested element or aspect of an element appears to be knowing receipt” and when
asked if there was “[a]ny additional record in that regard,” defense counsel replied
there was not. Knowing that venue is a fact requiring the government to prove by a
preponderance of the evidence “that the criminal activity took place in the district
where the prosecution was undertaken,” Gentry’s failure to raise the issue at that time
was an affirmative act of waiver. Morrissey, 895 F.3d at 550 (quotations omitted).
Second, an acquittal motion based on the knowingly element of the crime does
not “impliedly” include the remaining elements of the crime, and certainly does not
encompass the sufficiency of the evidence to prove venue, which is not an element
of the crime. “Because he raised specific challenges [in his motion for acquittal] --
but made no mention of venue -- he waived any defect in venue.” Id. at 551 n.6.
Gentry acknowledges that he chose not to “specifically present[] this issue” and
argues that he should be allowed to let the issue “quietly pass” during the trial so as
to not “alert” the government (or the court) to the alleged venue deficiency. His “trial
strategy” was to wait until after the child pornography convictions were dismissed --
because there was clearly evidence that he possessed in the Southern District of Iowa
child pornography videos that were deleted from the Samsung device two days before
the device was seized at his home -- and after the government no longer had the
ability to establish that he received one or more of the videos in the Southern District
of Iowa with additional trial evidence. This is further indication of waiver.
Under 18 U.S.C. § 3237(a), “any offense . . . begun in one district and
completed in another, or committed in more than one district, may be inquired of and
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prosecuted in any district in which such offense was begun, continued, or completed”
(emphasis added). A crime is a continuing offense if it “involv[es] . . . transportation
in interstate or foreign commerce” and “may be inquired of and prosecuted in any
district from, through, or into which such commerce, mail matter, or imported object
or person moves.” § 3237(a). Venue is proper “in any district along the way.” Netz,
758 F.2d at 1312. “[W]here a crime consists of distinct parts which have different
localities, the whole may be tried where any part can be proved to have been done.”
United States v. Rodriguez-Moreno, 526 U.S. 275, 281 (1999) (quotation omitted).
Thus, Gentry’s decision not to raise the issue before this appeal is affirmative
evidence he waived the issue. His suggestion that the district court should have
raised and decided the issue in response to his acquittal motions is without merit. The
court explicitly asked if there were additional sufficiency issues. Defense counsel
chose not to disclose this issue. We will not now disturb the jury verdict for an
argument waived below and raised for the first time on appeal.
On appeal, the government argues that, under 18 U.S.C. § 3237(a), there was
sufficient evidence that Gentry received child pornography images deleted from his
Samsung device in the Southern District of Iowa under Supreme Court and Eighth
Circuit venue precedents because 18 U.S.C. § 2252A(a)(2) is an offense involving
“transport[ation] in interstate or foreign commerce,”3 and downloading child
pornography through applications such as BitTorrent involves interstate commerce,
3As relevant here, 18 USC § 2252A provides (emphasis added):
“(a) Any person who . . . (2) knowingly receives or distributes --
* * * * *
(B) any material that contains child pornography using any means or
facility of interstate or foreign commerce or that has
been . . .transported in or affecting interstate or foreign commerce by
any means . . . shall be punished as provided in subsection (b).
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as the jury found in its verdict. See United States v. Cameron, 699 F.3d 621, 636 (1st
Cir. 2012). Therefore, the government argues, Gentry both possessed and received
the child pornography videos found on his Samsung device in the Southern District
of Iowa, even if he downloaded and stored the videos when the devices were located
in another district and then brought the devices to the Southern District of Iowa where
they were seized. This is a venue issue of first impression in this circuit. We would
review for plain error if Gentry’s failure to raise an objection to venue was
inadvertent and therefore the issue is forfeiture. But Gentry affirmatively waived the
issue, so we leave this rather complex question for another day.
For the foregoing reasons, the judgment of the district court is affirmed.
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