645 F.3d 37 (1st Cir. 2011), 09-2252, United States v. Crespo-Rios

Docket Nº:09-2252.
Citation:645 F.3d 37
Opinion Judge:TORRUELLA, Circuit Judge.
Party Name:UNITED STATES of America, Appellant, v. Fernando CRESPO-R
Attorney:J. Campbell Barker, Attorney, Appellate Section, Criminal Division, U.S. Department of Justice, with whom Lanny A. Breuer, Assistant Attorney General, Greg D. Andres, Acting Deputy Assistant Attorney General, Rosa Emilia Rodr
Judge Panel:Before LYNCH, Chief Judge, TORRUELLA and STAHL, Circuit Judges.
Case Date:June 08, 2011
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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645 F.3d 37 (1st Cir. 2011)

UNITED STATES of America, Appellant,

v.

Fernando CRESPO-RÍOS, Defendant, Appellee.

No. 09-2252.

United States Court of Appeals, First Circuit.

June 8, 2011

Heard Dec. 6, 2010.

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[Copyrighted Material Omitted]

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J. Campbell Barker, Attorney, Appellate Section, Criminal Division, U.S. Department of Justice, with whom Lanny A. Breuer, Assistant Attorney General, Greg D. Andres, Acting Deputy Assistant Attorney General, Rosa Emilia Rodríguez-Vé lez, United States Attorney, Nelson Pé rez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Richard M. Re, Attorney, Criminal Division, U.S. Department of Justice, were on brief for appellant.

Rachel Brill, for appellee.

Before LYNCH, Chief Judge, TORRUELLA and STAHL, Circuit Judges.

TORRUELLA, Circuit Judge.

Fernando Crespo-Ríos (" Crespo" ) was charged with (1) transferring obscene material to a minor under the age of sixteen in violation of 18 U.S.C. § 1470 and (2) possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). The district court granted his motion to suppress the child pornography that agents discovered on various digital media while they were executing a warrant to search for evidence of (1) transferring obscene material to a minor in violation of 18 U.S.C. § 1470 and (2) enticing or coercing a minor in violation of 18 U.S.C. § 2422(b). The government now appeals the grant of the motion to suppress and the denial of its motion for reconsideration. We reverse and remand with instructions to deny the motion to suppress.

I. Background

In August 2007, Special Agent Odette D. Tavares of the Federal Bureau of Investigation entered a Spanish-language chat room posing as a twelve-year-old Puerto Rican girl. She was part of a covert online investigation aimed at identifying individuals attempting to engage in sexual relations with minors. An individual later identified as Crespo approached Tavares in the chat room and asked if Tavares had " MSN," referring to an instant messaging program. Tavares replied affirmatively, and they continued to chat through MSN's " instant messenger."

During this first conversation and others that followed over the course of approximately the next eight months, Crespo repeatedly communicated with Tavares about matters of a sexual nature despite being informed that she was only twelve years old and in seventh grade. During the majority of Crespo's chat sessions with Tavares, he displayed his bare erect penis to Tavares at some point. Crespo also repeatedly asked Tavares to meet with him and discussed the sexual activities that would take place if they met. He said, among other things, that (1) he would perform oral sex on Tavares, (2) he and Tavares could watch pornographic films before

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having sex, (3) the pair would have sex, (4) he would teach Tavares how to kiss and how to bathe him, and (5) she could model a g-string for him. Crespo also displayed two photos of himself to Tavares and repeatedly asked her to send him photos of herself.

In addition, Crespo mentioned or suggested at various points that he had engaged in sexual activities with minors before. During one chat, he noted that he had had sex with a fourteen-year-old girl. During another conversation, in the context of encouraging Tavares to shave her genital area, he told her that he knew of an individual who shaved her genital area as of the age of eleven.

Based on information learned as a result of the chats with Crespo, information received from the Puerto Rico Telephone Company, and information gleaned from motor vehicle checks, Tavares submitted an affidavit in support of a search warrant. A magistrate judge issued a search warrant for a residence in Mayagüez, Puerto Rico. The warrant authorized agents to search the residence for evidence, fruits, and instrumentalities of a violation of 18 U.S.C. § 1470 (transfer of obscene material to a minor) and 18 U.S.C. § 2422(b) (coercion or enticement of a minor). The warrant incorporated " Attachment B" of Tavares's affidavit, which listed, among other items that could be seized, the following:

2. Records, documents, correspondence (limited to electronic communications), notes and/or any other materials relating to correspondence or contact between [Crespo] and [Tavares], including but not limited to electronic mail, chat logs, and electronic messages.

3. Records, documents, correspondence (including but not limited to electronic communications), notes, and/or any other materials relating to correspondence or contact between [Crespo] and individuals purporting to be minors, or any attempt by [Crespo] to induce any minor to engage in illegal sexual[ ] activity, including but not limited to electronic mail, chat logs, and electronic messages.

....

10. Any magnetic, electronic or optical storage device capable of storing data, such as floppy disks, hard disks, tapes, CD-ROMs, CD-R[s], CD-RWs, DVDs, optical disks, printer or memory buffers, smart cards, PC cards, memory calculators, electronic dialers, electronic notebooks, cellular telephones, and personal digital assistants[.]

....

12. Any computer equipment used to encode or store data....

The main text of Tavares's affidavit referred to child pornography when it described the parameters of the potential search as including, among other things, " any and all chat logs, child pornography, child erotica, information pertaining to the sexual interest in children, [and] images depicting sexual contact between adults and minors." " Attachment B" authorized agents to search for " [c]orrespondence...

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