U.S. v. Harvey

• Decision Date: 23 August 1993
• Docket Number: No. 92-3273,92-3273
• Citation: 2 F.3d 1318
• Parties: UNITED STATES of America v. Andrew M. HARVEY, III, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 1318

2 F.3d 1318

UNITED STATES of America v. Andrew M. HARVEY, III, Appellant.

No. 92-3273.

United States Court of Appeals, Third Circuit.

Aug. 23, 1993.

Thomas R. Ceraso (argued), Ceraso & Tarosky, Greensburg, PA, for appellant.

Bonnie R. Schlueter (argued), Paul J. Brysh, Office of U.S. Atty., Pittsburgh, PA, for appellee.

Argued Dec. 8, 1992.

Before: SCIRICA, ALITO and HIGGINBOTHAM ^*, Circuit Judges.

Reargued May 20, 1993.

Before: BECKER, SCIRICA and ALITO, Circuit Judges.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

Andrew Harvey entered a conditional plea of guilty to one count of possession of child pornography in violation of Sec. 2252(a)(4)(B) of The Protection of Children from Sexual Exploitation Act, as amended, 18 U.S.C. Sec. 2251-57 (1988). Under the terms of the conditional plea, Harvey preserved his right to appeal the denial of his motion to suppress evidence discovered in a search of his residence. Because we believe substantial evidence supported the issuance of the search warrant, we will affirm. Harvey also challenges his sentence on several grounds. We will vacate and remand for resentencing. ¹

I.

The Federal Bureau of Investigation conducted a two-year investigation of Harvey. On October 22, 1991, agent John McCarthy sought a search warrant for Harvey's residence, believing contraband child pornography was on the premises. In support of his application, McCarthy summarized his training and experience investigating child pornography and pedophilic offenses. He provided a general profile of pedophilic behavior and, specifically, of the "tendency for pedophiles to retain or rarely dispose of sexually explicit material involving children."

In the course of his investigation, McCarthy accumulated several significant items, which he described in the warrant application, including:

1) Pennsylvania State Police records that Harvey pled guilty to corrupting a minor, indecent assault, and involuntary deviate sexual intercourse with a male minor in February of 1977;

2) a letter from the Commissioner of the Philippines' Bureau of Immigration and Naturalization that Harvey had been deported in 1988 for "being a pedophile;"

3) results of a criminal investigation by the postal service that, ten times between April and July 1990 and three times in August 1991, Harvey received mailings from organizations that were either known to distribute or suspected of distributing child pornography. Four of the mailings were third-class bulk mailings.

On the basis of this information, the magistrate judge issued a warrant to search Harvey's residence for "visual depictions of naked children."

At Harvey's house, the FBI found 75 photographs of naked children engaged in sexually explicit conduct--many of which, Harvey admitted, he had taken himself. The FBI also found an assortment of advertisements and catalogues for child pornography. Along with the array of photographs and other items, the FBI discovered a file of 560 index cards. The hand-written text of each index card described, in graphic detail, Harvey's deviant sexual activities with boys--as young as ages seven and nine--while on trips to the Philippines.

Harvey moved to suppress evidence uncovered by the search. After the district court denied the motion, Harvey entered a conditional plea of guilty.

At the sentencing hearing, after initially finding a base offense level of 13, see U.S.S.G. Sec. 2G2.2(a), ² the district judge subtracted two levels for acceptance of responsibility, then added two levels because he found Harvey's offense involved prepubescent children. The judge then determined an upward departure was "required by the evidence of defendant's past criminal conduct and the likelihood that the defendant will commit other such crimes in the future." He increased Harvey's base offense level to 22 and imposed a sentence of 48 months in prison, with 3 years supervised release. The judge also required Harvey to pay the costs of incarceration and make a $5,000 donation to the Pittsburgh Coalition Against Pornography.

II.

Harvey contends the district court should have suppressed evidence discovered in a search of his home. We disagree.

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Supreme Court defined the applicable standards for issuing and reviewing a search warrant:

[t]he task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of the reviewing court is simply to ensure that the magistrate had a "substantial basis for ... conclud[ing]" that probable cause existed.

462 U.S. at 238-39, 103 S.Ct. at 2332-33 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), overruled on other grounds, United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980)).

Recognizing a probable cause determination "should be paid great deference," Harvey nevertheless maintains the warrant application contained stale information, false and misleading statements, and uncorroborated hearsay.

A.

Harvey claims "[t]he time periods set forth with regard to the information cited in the affidavit, even if believable, w[ere] so dissipated by the time the warrant was finally issued that probable cause no longer existed." Delivery of suspect materials to Harvey's residence occurred between two and fifteen months before execution of the search warrant. Therefore, according to Harvey, the warrant application's information was stale. We disagree.

Age of the information supporting a warrant application is a factor in determining probable cause. See United States v. Forsythe, 560 F.2d 1127, 1132 & n. 6 (3d Cir.1977); see also United States v. McNeese, 901 F.2d 585, 596 (7th Cir.1990). If too old, the information is stale, and probable cause may no longer exist. McNeese, 901 F.2d at 596. Age alone, however, does not determine staleness. "The determination of probable cause is not merely an exercise in counting the days or even months between the facts relied on and the issuance of the warrant." United States v. Williams, 897 F.2d 1034, 1039 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2064, 114 L.Ed.2d 469 (1991). Rather, we must also examine the nature of the crime and the type of evidence. See United States v. Tehfe, 722 F.2d 1114, 1119 (3d Cir.1983), cert. denied, 466 U.S. 904, 104 S.Ct. 1679, 80 L.Ed.2d 154 (1984); Forsythe, 560 F.2d at 1132; see also United States v. McCall, 740 F.2d 1331, 1135-36 (4th Cir.1984).

In United States v. Rabe, 848 F.2d 994 (9th Cir.1988), the Court of Appeals for the Ninth Circuit evaluated staleness in a child pornography case. In 1984, the U.S. Customs service seized two packages addressed to Rabe that contained child pornography. In 1986, a police investigator, under an assumed name, corresponded with Rabe and established Rabe maintained a collection of child pornography. The last correspondence took place in June 1986. Setting this forth in a warrant application in August 1986, police executed a search warrant for Rabe's residence and seized child pornography. Id.

Rabe argued the search warrant was improper "because the information upon which it issued was stale and thus failed to establish probable cause." Id. The court disagreed and held the correspondence, even though exchanged two months before the search, established probable cause there was child pornography at Rabe's residence. Id. at 997.

The United States District Court for the District of Vermont affirmed the issuance of a search warrant in similar circumstances. United States v. Rakowski, 714 F.Supp. 1324, 1330-31 (D.Vt.1987). Rakowski established a post office box and received two mailings from organizations known to distribute child pornography. The mailings occurred one month and six months before the issuance of the warrant. The court found probable cause because "[t]he affidavit described a continuing offense of receiving child pornography and the enduring utility of that material to their holder." Id. at 1331; see also United States v. Koelling, 992 F.2d 817, 819-20, 23 (8th Cir.1993) (warrant containing statement that "pedophiles ... keep these materials [child pornography] for many months and years, and rarely, if ever, dispose of their collections" upheld); Rabe, 848 F.2d at 996 (expert affirmed in warrant application that "[a] pedophile maintains a collection of child pornography gathered over many years and does not destroy or discard his materials"). The court found a "substantial basis for concluding that the defendant set up the box to receive one genre of mail under a fictitious name." Id.

We agree with this reasoning and, accordingly, we believe the information in the warrant application here was not stale. Agent McCarthy stated Harvey established a post office box under the name of "Harvey Andrews," and received the mailings under this and other assumed names. Harvey had received thirteen mailings from organizations known to distribute, or suspected of distributing, child pornography. Although ten mailings occurred thirteen to fifteen months prior to issuing the warrant, three occurred only two months before. McCarthy stated that, in his experience, "[p]edophiles rarely, if ever, dispose of sexually explicit material." Moreover, McCarthy provided ample information that Harvey was a pedophile. See United States v. Weber, 923 F.2d 1338, 1345 (9th Cir.1990) (warrant application must establish that pedophiles retain child pornography and that defendant is a pedophile). We agree there was a reasonable probability the several mailings from child pornographers would be at Harvey's residence at the time of the search. See Rabe, 848 F.2d at 997; Rako...