U.S. v. Banks

Decision Date25 February 2009
Docket NumberNo. 07-30130.,07-30130.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jerry Levis BANKS, Sr., Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Dennis M. Charney, Charney and Associates, Eagle, ID, for the defendant-appellant.

James M. Peters (briefed), Assistant United States Attorney, Boise, ID; and Alexandra Gelber (briefed and argued), United States Department of Justice, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the District of Idaho, William B. Shubb, District Judge, Presiding. D.C. No. CR-06-00051-BLW-WBS-1.

Before: ARTHUR L. ALARCÓN, SUSAN P. GRABER, and JOHNNIE B. RAWLINSON, Circuit Judges.

Opinion by Judge RAWLINSON; Partial Concurrence and Partial Dissent by Judge ALARCÓN.

RAWLINSON, Circuit Judge:

In this appeal, we determine whether Jerry Levis Banks, Sr.'s (Banks) conviction on multiple counts involving the possession, production, transportation and receipt of images depicting minors engaged in sexually explicit conduct should be reversed based on the denial of his motion to suppress evidence seized pursuant to a warrant, the admission of testimonial evidence provided by Banks's wife alleged to be protected by the marital communications privilege, or the district court's adoption or application of definitions for "masturbation" and "lascivious" as they relate to the subject video. We affirm the conviction. The district court did not err when it denied Banks's motion to suppress or in defining and applying the terms "masturbation" and "lascivious." Although the ruling addressing the marital communications privilege was erroneous, the error was harmless.

I. BACKGROUND

This case began when Special Agent Mary Martin (Agent Martin) filed an "Application and Affidavit for Search Warrant." According to the affidavit, a Canadian investigation into child pornography had resulted in the arrest of a Canadian pedophile who admitted to trading child pornography with Banks. The Canadian pedophile also provided evidence that Banks may have created a pornographic video involving Banks's two-year-old grandson.

A warrant issued to search Banks's home for sixteen types of items described in the affidavit. As a result of the evidence seized pursuant to the warrant, Banks was charged with nine criminal counts relating to the possession, production, transportation and receipt of images depicting minors engaged in sexually explicit conduct. Seven of those charges ultimately proceeded to trial.

Prior to trial, Banks moved to suppress the evidence seized pursuant to the search warrant, asserting that the affidavit lacked foundation and specificity. Banks's arguments were rejected by the district court, and a bench trial ensued.

At trial, the government called Banks's wife as a witness. Mrs. Banks primarily testified about her relationship with the minor child in the subject video. She testified that the child was her grandson, with whom she had a close relationship. Mrs. Banks also identified her husband's ring, watch and couch in the video.1 Mrs. Banks was asked whether her husband had made any statements regarding a video involving their grandson. Over Banks's objection, Mrs. Banks testified that her husband had admitted to making the video and that he had done so to ensure that "nothing went on in changing the diaper because of past things."

The district court found Banks guilty on all counts, concluding that Banks had created the subject video. The court relied on the testimony identifying Banks's ring, watch and couch, as well as testimony that Banks had admitted changing the child's diaper. The district court also determined that the video contained images of sexually explicit conduct. Specifically, the court concluded that the video depicted the masturbation of a minor child under a definition of masturbation that included the stimulation of genitalia in a manner that would stimulate an adult. The district court found that the video also contained a lascivious exhibition of the genitals of the minor child because it depicted the masturbation of the child "for the purpose of eliciting in the viewer a sexual response."

II. STANDARDS OF REVIEW

We review de novo the district court's rulings on a motion to suppress and the validity of a search warrant. See United States v. Crews, 502 F.3d 1130, 1135 (9th Cir.2007).

We also review de novo legal conclusions regarding the marital communications privilege. See United States v. Griffin, 440 F.3d 1138, 1143 (9th Cir.2006). However, we review the admission of evidence for an abuse of discretion. See United States v. Marashi, 913 F.2d 724, 729 (9th Cir.1990). "A district court abuses its discretion if it `bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.'" Shafer v. Astrue, 518 F.3d 1067, 1070 (9th Cir.2008) (citation and alteration omitted).

Finally, we review de novo the district court's "construction or interpretation of a statute," United States v. Carranza, 289 F.3d 634, 642 (9th Cir.2002) (citation omitted), and review for clear error the court's findings of fact. See United States v. Leos-Maldonado, 302 F.3d 1061, 1063 (9th Cir.2002).

III. DISCUSSION
A. The affidavit contained an adequate foundation to support issuance of the search warrant.

Statements in an affidavit supporting a search warrant application directed toward "the behavior of a particular class of persons" must be supported by "a foundation which shows that the person subject to the search is a member of the class." United States v. Weber, 923 F.2d 1338, 1345 (9th Cir.1991), as amended. In the present case, there was ample information in the affidavit to support the notion that Banks was engaging in the production and trade of images depicting minors engaged in sexually explicit conduct, including evidence of the transmission of such images between Banks and a convicted sex offender in Canada. Thus, to the extent Banks argues that the affidavit failed to set forth the proper foundation for later assumptions about pedophiles, the requirements of Weber were met.

Further, to the extent that Banks argues that the contested sections of the affidavit were required to be supported by expert opinion, he is incorrect. The contested sections provided background information about how pedophiles act in the digital age, how law enforcement generally conducts searches of computers, and what likely steps would be taken to search a computer. None of these topics is so esoteric as to require expert explanation to be understood. Additionally, at the outset of the affidavit, Agent Martin explained that she has been investigating the sexual exploitation of children since 1998 and has attended training seminars and classes "related to conducting these types of investigations." Her extensive background was sufficient to support the generalized statements provided in the first three sections of the affidavit.

Finally, to the extent Banks argues that Agent Martin's failure to specifically include the source of her information in each section renders the affidavit insufficient to create probable cause, the argument fails because Banks is unable to demonstrate that any omission was material or that, "when supplemented with the omitted information, [the affidavit] would be insufficient to support a probable cause finding." United States v. Jawara, 474 F.3d 565, 582 (9th Cir.2007), as amended (citation omitted).

B. The warrant was sufficiently specific.

"Specificity has two aspects: particularity and breadth. Particularity is the requirement that the warrant must clearly state what is sought. Breadth deals with the requirement that the scope of the warrant be limited by the probable cause on which the warrant is based." United States v. Hill, 459 F.3d 966, 973 (9th Cir.2006) (citation omitted).

"The prohibition of general searches is not ... a demand for precise ex ante knowledge of the location and content of evidence ... The proper metric of sufficient specificity is whether it was reasonable to provide a more specific description of the items at that juncture of the investigation." United States v. Meek, 366 F.3d 705, 716 (9th Cir.2004) (citation omitted). The warrant in this matter sought evidence that Banks was engaged in the production and transmission of child pornography. In doing so, it limited its range to items containing a connection to "child pornography," "child erotica," or "minors engaged in sexually explicit conduct" as defined by statute. This description was sufficiently particular to overcome Banks's argument that the items to be seized were not specifically identified. Id.

Banks's contention that the warrant's lack of a time frame rendered it insufficiently particular is unpersuasive because the record and affidavit do not demonstrate knowledge on the part of the government that the illegal conduct was limited to any particular time frame. Cf. United States v. Kow, 58 F.3d 423, 427 (9th Cir.1995) (invalidating a warrant where the affidavit indicated that the criminal activity began at a specific time period but the warrant was not limited to a particular time frame).

Banks's final suggestion that the warrant was insufficiently particular because it did not specifically seek to recover the videos known to have been transmitted and because it failed to identify the name of the internet chat room that Banks moderated also fails. Although the government may have known the name of certain files that supported the finding of probable cause, there is no requirement that the warrant be tailored to obtain only that evidence already known to exist. In fact, this heightened limitation has been specifically rejected. See Meek, 366 F.3d at 716.

Banks also challenges the breadth of the warrant, asserting that the items seized could have been described more specifically and that the warrant should have excluded a...

To continue reading

Request your trial
43 cases
  • United States v. Richards, 08-6465
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 24 d1 Outubro d1 2011
    ...427 U.S. 463, 482 n.11 (1976); see also Stabile, 633 F.3d at 234 (applying Andresen to a computer search); United States v. Banks, 556 F.3d 967, 973 (9th Cir. 2009) (holding that search warrant for a computer and other items, for evidence of child pornography, was not overbroad, noting, "[a......
  • U.S. v. Richards
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 31 d2 Janeiro d2 2012
    ...96 S.Ct. 2737, 49 L.Ed.2d 627 (1976); see also Stabile, 633 F.3d at 234 (applying Andresen to a computer search); United States v. Banks, 556 F.3d 967, 973 (9th Cir.2009) (holding that search warrant for a computer and other items, for evidence of child pornography, was not overbroad, notin......
  • United States v. Yazzie
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 27 d4 Fevereiro d4 2014
    ...Mendoza, 530 F.3d 758, 762 (9th Cir.2008). We review the district court's interpretation of a statute de novo, see United States v. Banks, 556 F.3d 967, 972 (9th Cir.2009), and review the court's application of the statute to the facts for abuse of discretion, Advanced Micro Devices, Inc. v......
  • Am. Beverage Ass'n v. City of S.F.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 19 d2 Setembro d2 2017
    ... ... of federal constitutional law, which does not limit our deference to a trial court on matters of witness credibility, but which generally requires us to review the finding of facts by a [trial court] ... where a conclusion of law as to a Federal right and a finding of fact are so intermingled as to ... ...
  • Request a trial to view additional results
6 books & journal articles
  • Witness
    • United States
    • James Publishing Practical Law Books Trial Objections
    • 5 d4 Maio d4 2022
    ...had overwhelmingly abandoned the existence of a marital relationship as grounds for incompetency to testify. United States v. Banks , 556 F.3d 967, 974-77 (9th Cir. 2009) Although error was ultimately harmless, in adopting an approach that considers a marital relationship as concerns testim......
  • Table of cases
    • United States
    • James Publishing Practical Law Books Deposition Objections
    • 31 d3 Março d3 2021
    ...v. Baker , 926 F.2d 179, 180 (2d Cir. 1991), §11:31 United States v. Ball, 988 F.2d 7 (5th Cir. 1993), §23:02 United States v. Banks , 556 F.3d 967 (9th Cir. 2009), §§8:11, 8:21 United States v. Bell, 367 F.3d 452 (5th Cir. 2004), §§23:02, 23:11, 23:21 United States v. Bolander , 722 F.3d 1......
  • Family communications privileges
    • United States
    • James Publishing Practical Law Books Deposition Objections
    • 31 d3 Março d3 2021
    ...extend to all children present in the home - for example, foster children and children being given day care. See United States v. Banks, 556 F.3d 967, 975-76 (9th Cir. 2009) (limiting the exception to children and grandchildren). Two judges dissented in Banks , noting that many states exten......
  • Family Communication Privileges
    • United States
    • James Publishing Practical Law Books Discovery Collection. James' Best Materials - Volume 2 Deposition Objections
    • 29 d3 Abril d3 2015
    ...Ludwig v. State, 931 S.W.2d 239, 2444 (Tex. Crim. App. 1996) (exception applies to any child in the household); United States v. Banks, 556 F.3d 967, 974-75 (9th Cir. 2009) (holding that privilege extends to all “functional equivalent[s] of birth children” and collecting recent cases); 735 ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT