U.S. v. Lacy

Decision Date10 July 1997
Docket NumberNo. 95-30370,95-30370
Citation119 F.3d 742
Parties97 Cal. Daily Op. Serv. 5466, 97 Daily Journal D.A.R. 8856 UNITED STATES of America, Plaintiff-Appellee, v. Scott Douglas LACY, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

C. James Frush, Helsell Fetterman, Seattle, WA, for defendant-appellant.

Kathy L. McClure and Patricia Toth, United States Department of Justice, Washington, DC, for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington; William L. Dwyer, District Judge, Presiding. D.C. No. CR-95-00297-1-WLD.

Before: BROWNING, WRIGHT and T.G. NELSON, Circuit Judges.

JAMES R. BROWNING, Circuit Judge.

Scott Douglas Lacy appeals his conviction for possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). We affirm.

I.

The United States Customs Service was informed that child pornography from a Danish computer bulletin board system called BAMSE was being brought into the United States by computer. BAMSE's records indicated several people, including a caller from Seattle who identified himself as "Jim Bakker," had received material from BAMSE by telephone. 1 "Bakker" had called BAMSE sixteen times and had downloaded six picture files containing computerized visual depictions known as GIFs. 2 Customs agents traced the caller's phone number to an apartment occupied by a computer analyst named Scott Lacy. Telephone records reflected calls made from Lacy's telephone to BAMSE on the dates shown in BAMSE's records.

A warrant was issued authorizing the search of Lacy's apartment and seizure of computer equipment and records, and documents relating to BAMSE. Customs agents seized Lacy's computer, more than 100 computer disks, and various documents. 3 The computer hard drive and disks contained GIF files depicting minors engaged in sexually explicit activity.

Lacy was indicted for possessing child pornography. 4 Lacy's motion to suppress was denied, with inconsequential exceptions. 5 Lacy was tried and convicted. He appealed, challenging the suppression ruling, the jury instructions, and the sufficiency of the evidence on the crime's jurisdictional element.

II.

Lacy argues the affidavit supporting the application for the warrant was insufficient to establish probable cause because it rested on stale information and demonstrated only that he "might have attempted to order" obscene pictures.

Evidence the defendant has ordered child pornography is insufficient to establish probable cause to believe the defendant possesses such pornography. See United States v. Weber, 923 F.2d 1338, 1344 (9th Cir.1990). However, the affidavit stated Lacy downloaded at least two GIFs depicting minors engaged in sexual activity from BAMSE, providing sufficient evidence Lacy actually received computerized visual depictions of child pornography.

The information in the affidavit was not stale. An affidavit must be based on facts " 'so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.' " Durham v. United States, 403 F.2d 190, 193 (9th Cir.1968) (quoting Sgro v. United States, 287 U.S. 206, 210, 53 S.Ct. 138, 140, 77 L.Ed. 260 (1932)). We held in Durham that probable cause was not established by an affidavit relying on events that occurred four months earlier. Id. at 194-95. The information relied on in this case was ten months old. However, "[t]he mere lapse of substantial amounts of time is not controlling in a question of staleness." United States v. Dozier, 844 F.2d 701, 707 (9th Cir.1988). "We evaluate staleness in light of the particular facts of the case and the nature of the criminal activity and property sought." United States v. Pitts, 6 F.3d 1366, 1369 (9th Cir.1993) (internal quotation omitted). The information offered in support of the application for a search warrant is not stale if "there is sufficient basis to believe, based on a continuing pattern or other good reasons, that the items to be seized are still on the premises." United States v. Gann, 732 F.2d 714, 722 (9th Cir.1984).

The affidavit in this case provided ample reason to believe the items sought were still in Lacy's apartment. Based on her training and experience as a Customs agent, the affiant explained that collectors and distributors of child pornography value their sexually explicit materials highly, "rarely if ever" dispose of such material, and store it "for long periods" in a secure place, typically in their homes. 6 Cf. United States v. Rabe, 848 F.2d 994, 995-96 (9th Cir.1988). We are unwilling to assume that collectors of child pornography keep their materials indefinitely, but the nature of the crime, as set forth in this affidavit, provided "good reason[ ]" to believe the computerized visual depictions downloaded by Lacy would be present in his apartment when the search was conducted ten months later. See Gann, 732 F.2d at 722; cf. Dozier, 844 F.2d at 707 (long-term nature of marijuana cultivation justified magistrate's reliance on information that was five months old).

Lacy also argues the warrant was too general because it authorized the seizure of his entire computer system. 7 Lacy relies primarily upon United States v. Kow, 58 F.3d 423 (9th Cir.1995), in which we invalidated a warrant authorizing seizure of all the defendant's computer hardware and software, as well as "essentially all" of its "records ... files, ledgers, and invoices." See id. at 425. Unlike the affidavit in Kow, the affidavit in this case established probable cause to believe Lacy's entire computer system was "likely to evidence criminal activity." See id. at 427. And while the warrant in Kow "contained no limits on which documents within each category could be seized or suggested how they related to specific criminal activity," id., the Lacy warrant contained objective limits to help officers determine which items they could seize--allowing seizure only of documents linked to BAMSE, for example.

Both warrants described the computer equipment itself in generic terms and subjected it to blanket seizure. However, this type of generic classification is acceptable "when a more precise description is not possible," United States v. Cardwell, 680 F.2d 75, 78 (9th Cir.1982) (internal quotation omitted); see also United States v. Kimbrough, 69 F.3d 723, 727 (5th Cir.1995), and in this case no more specific description of the computer equipment sought was possible. The government knew Lacy had downloaded computerized visual depictions of child pornography, but did not know whether the images were stored on the hard drive or on one or more of his many computer disks. In the affidavit supporting the search warrant application, a Customs agent explained there was no way to specify what hardware and software had to be seized to retrieve the images accurately.

We conclude that Lacy's challenge to the district court's suppression ruling is without merit.

III.

Lacy contends the district court improperly instructed the jury on the mens rea and jurisdictional elements of § 2252(a)(4)(B).

A. Mens Rea

Lacy argues the instructions were improper because they omitted a necessary mens rea element. The instructions required the jury to find that Lacy knowingly possessed "the matters charged" and that those "matters contained a visual depiction of a minor engaging in sexually explicit conduct," but the instructions did not require a finding Lacy knew the matters contained the visual depictions. The omission was critical, Lacy contends, because his defense was that he had attempted to erase the illegal images from his computer disks and believed he had succeeded. He argues the instruction allowed the jury to convict him without finding he knew the computer hard drive and disks in his possession contained pornographic visual depictions that violated § 2252(a)(4)(B).

The government responds that the instruction was correct as given--an argument that can be interpreted as denying that knowledge of the presence of the pornographic depictions is required, or denying that the instructions omitted this element. We consider both possibilities.

1.

The statutory language is of little help. 8 It is not clear whether the word "knowingly" was intended to modify only the first or all of the words in the series that follows. See United States v. Gendron, 18 F.3d 955, 958 (1st Cir.1994). However, a scienter requirement is presumed to apply "to each of the statutory elements which criminalize otherwise innocent conduct," even if this is not the "most natural grammatical reading" of the statutory language. United States v. X-Citement Video, Inc., 513 U.S. 64, 72, 115 S.Ct. 464, 469, 130 L.Ed.2d 372 (1994). Applying this rule to a subsection of § 2252 that bars transportation of child pornography, the Supreme Court held in X-Citement Video that the knowledge requirement extended to the sexually explicit nature of the material and the age of the performer even though those elements were "set forth in independent clauses separated by interruptive punctuation." Id. at 68, 82, 115 S.Ct. at 467, 474. This interpretation was necessary, the Court held, because the elements at issue were crucial to establishing liability. Distribution of sexually explicit material involving adults is legal, while distribution of sexually explicit material involving minors is not. Unless a distributor knew the performers were underage, the Court reasoned, he would have reasonably expected his conduct to be legal. Id. at 71-73, 115 S.Ct. at 469.

The same is true of § 2252(a)(4)(B)'s requirement that a matter "contain" an unlawful visual depiction. Possession of computer drives and disks, like possession of books, is ordinarily lawful. The presence of illegal images on the disks or in the books is a "crucial element separating legal innocence from wrongful conduct." See id. Accordi...

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