663 F.3d 224 (4th Cir. 2011), 10-4689, United States v. Wellman

Docket Nº:10-4689.
Citation:663 F.3d 224
Opinion Judge:BARBARA MILANO KEENAN, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John Charles WELLMAN, Defendant-Appellant.
Attorney:Jonathan D. Byrne, Office of the Federal Public Defender, Charleston, West Virginia, for Appellant. J. Christopher Krivonyak, Office of the United States Attorney, Charleston, West Virginia, for Appellee. Mary Lou Newberger, Federal Public Defender, David R. Bungard, Assistant Federal Public Defe...
Judge Panel:Before KEENAN and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by published opinion. Judge KEENAN wrote the opinion, in which Judge WYNN and Senior Judge HAMILTON joined.
Case Date:December 07, 2011
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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663 F.3d 224 (4th Cir. 2011)

UNITED STATES of America, Plaintiff-Appellee,

v.

John Charles WELLMAN, Defendant-Appellant.

No. 10-4689.

United States Court of Appeals, Fourth Circuit.

December 7, 2011

Argued: Oct. 28, 2011.

Page 225

ARGUED:

Jonathan D. Byrne, Office of the Federal Public Defender, Charleston, West Virginia, for Appellant.

J. Christopher Krivonyak, Office of the United States Attorney, Charleston, West Virginia, for Appellee.

ON BRIEF:

Mary Lou Newberger, Federal Public Defender, David R. Bungard, Assistant Federal Public Defender, Office of The Federal Public Defender, Charleston, West Virginia, for Appellant.

R. Booth Goodwin II, United States Attorney, Charleston, West Virginia, for Appellee.

Before KEENAN and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by published opinion. Judge KEENAN wrote the opinion, in which Judge WYNN and Senior Judge HAMILTON joined.

OPINION

BARBARA MILANO KEENAN, Circuit Judge:

John Charles Wellman was convicted in a jury trial of three offenses related to his possession of child pornography. He raises three challenges in this appeal. Wellman argues that the search warrant that led to his arrest was invalid, that a jury instruction involving the term " obscene" was erroneous because it lacked a knowledge requirement, and that his sentence was imposed in violation of the Eighth Amendment prohibition against cruel and unusual punishment. Upon our review of these issues, we affirm Wellman's convictions and sentences.

I.

On March 14, 2007, Corporal D.C. Eldridge, a member of the West Virginia State Police assigned to the Internet Crimes Against Children Task Force (the Task Force), received a spreadsheet generated by the Wyoming Division of Criminal

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Investigation Task Force. This spreadsheet contained a list of entries purporting to identify instances in which child pornography had been transmitted over the Gnutella computer file sharing network.1 The allegedly pornographic files were not identified by name, type, or description, but by hash value.2 Each entry on the spreadsheet contained a hash value for a digital file, the Internet Protocol (IP) address 3 of the computer offering the file for download, the locality in which that computer operated, the time and date the file was observed, and the officer from the Task Force who identified the file, as well as his or her law enforcement agency.

Corporal Eldridge focused on one IP address from Bluefield, West Virginia on the spreadsheet that was alleged to have hosted five different digital files of suspected child pornography. Using the American Registry of Internet Numbers web site, Eldridge determined that the IP address was assigned to Comcast Corporation (Comcast) and secured an order from a West Virginia state court to obtain the subscriber information associated with that IP address. Comcast identified the subscriber as John Wellman, whose address was located on Walters Avenue in Bluefield, West Virginia.

Using this information, Eldridge conducted a driver's license inquiry and confirmed that a John Wellman was listed at the address provided by Comcast. Wellman's name, address, and telephone number also were corroborated by a background report from the West Virginia Intelligence Exchange database. That database further indicated that Wellman previously had been convicted of first degree sexual abuse in 1987 (the abuse conviction), a felony.

Upon receipt of this information, Eldridge contacted the West Virginia Criminal Identification Bureau and confirmed Wellman's abuse conviction. Eldridge also confirmed with the West Virginia State Police Sex Offender Registration Section that Wellman had not registered with the West Virginia State Police as a sex offender, as required by state law.

Eldridge next obtained and reviewed an abstract of the indictment that led to Wellman's abuse conviction. That abstract indicated that Wellman's victim was a seven-year-old male child, and that Wellman had used physical force to compel the child to submit to sexual intercourse.

Using all this information, Eldridge assembled a 24-page application for a search warrant of the Walters Avenue residence. In the warrant application, Eldridge acknowledged that neither he nor the investigators who conducted the peer-to-peer searches over the Gnutella network possessed supporting documentation regarding the content of the digital files suspected of being child pornography. As

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paragraph 21(c) of attachment D of the application explained:

The information in [the spreadsheet] is believed to be accurate, but no supporting documentation (i.e. downloads of child pornographic files from the suspect computers) was collected by the investigating officers during these searches of the Gnutella networks.

Therefore, the warrant application contained neither an exemplar of an allegedly offending image nor any description of such an image. Ultimately, a state circuit court judge signed each page of the application, concluded that there was probable cause to conduct a search of Wellman's home, and issued the search warrant.

The West Virginia State Police executed the warrant and conducted a search of Wellman's home. Wellman, who was present during the search, voluntarily produced a DVD containing images of child pornography and admitted that other such images were stored in his home on computer " hard drives" and in other electronic formats.

Following his arrest, Wellman was indicted in the United States District Court for the Southern District of West Virginia on three counts relevant to this appeal: (1) receiving a visual depiction of a minor engaging in sexually explicit conduct that is obscene and had been transported in interstate commerce, in violation of 18 U.S.C. § 1466A(a); (2) receiving obscene visual representations of the sexual abuse of children while being required by federal and state law to register as a sex offender, in violation of 18 U.S.C. § 2260A; and (3) knowingly possessing images and videos of child pornography that had been transported in interstate commerce, in violation of 18 U.S.C. § 2252A(a)(5)(B).

Wellman moved to suppress the evidence obtained from the search of his home, arguing that the warrant application was insufficient, and that the issuing judge acted merely as a " rubber stamp." After the district court denied the motion, Wellman was tried by a jury and convicted on all three counts.

The district court sentenced Wellman to a total term of 300 months' imprisonment. He received concurrent sentences of 180 months on Counts One and Three, and a sentence of 120 months on Count Two, to be served consecutively with the other two sentences, as mandated by 18 U.S.C. § 2260A. Wellman later filed a motion challenging his sentence with respect to Count Two, arguing that it violated the Eighth Amendment's prohibition on cruel and unusual punishment. The district court denied his motion, and Wellman now appeals.

II.

Wellman raises three issues on appeal. First, he contends that the district court erred in denying his motion to suppress evidence seized in the search of his home. Second, Wellman asserts that the district court gave the jury an erroneous instruction that failed to include a knowledge requirement regarding the obscene nature of the sexually explicit material at issue in Count One. Third, Wellman argues that the district court's imposition of a 10-year sentence with respect to Count Two violates the Eighth Amendment. We address these arguments in turn.

A.

Wellman asserts that the search warrant authorizing the search of his home was defective, because the warrant application failed to include either an exemplar or a description of an image alleged to be child pornography. He contends that in the absence of such information, the application merely contained the officers' conclusions

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that the material sought constituted child pornography. According to Wellman, this defect in the warrant application precluded the reviewing judge from making an independent probable cause determination.

We review de novo the district court's denial of Wellman's motion to suppress. United States v. Rusher, 966 F.2d 868, 873 (4th Cir.1992). However, we reach our determination mindful of the principle that a judicial officer's determination of probable cause customarily is accorded " great deference" by reviewing courts. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

In determining whether there was probable cause to believe that Wellman's house contained images of child pornography at the time the warrant was issued, the relevant question is whether the known facts and circumstances were sufficient such that a person of reasonable prudence could conclude that the described evidence would be found in that particular place. United States v. Perez, 393 F.3d 457, 461 (4th Cir.2004). The probable cause standard " is not defined by bright lines and rigid boundaries" but " allows a [judicial officer] to review the facts and circumstances as a whole and make a common sense determination" whether there is a fair probability that evidence of a crime will be found. United States v. Grossman, 400 F.3d 212, 217 (4th Cir.2005).

We decline to impose a requirement that a search warrant application involving child pornography must include an image of the alleged pornography. See United States v. Battershell, 457 F.3d 1048, 1052 (9th Cir.2006) (citing New York v. P.J. Video, Inc., 475 U.S. 868, 874 n. 5, 106 S.Ct. 1610, 89 L.Ed.2d 871 (1986)). While the inclusion of such material certainly would aid in the probable cause determination, we do not impose a fixed requirement or a bright-line rule, because law enforcement officers legitimately may choose to include a variety of information when submitting a search warrant application. Instead, when considering the merits of a judicial...

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