U.S. v. Hale

• Decision Date: 21 March 1986
• Docket Number: No. 85-5163,85-5163
• Citation: 784 F.2d 1465
• Parties: UNITED STATES of America, Plaintiff/Appellee, v. Robert S. HALE, Defendant/Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1465

784 F.2d 1465

UNITED STATES of America, Plaintiff/Appellee, v. Robert S. HALE, Defendant/Appellant.

No. 85-5163.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 8, 1986.

Decided March 21, 1986.

Joan P. Weber, Asst. U.S. Atty., argued, Peter K. Nunez, U.S. Atty., Roger W. Haines, Jr., Asst. U.S. Atty., on the brief, San Diego, Cal., for plaintiff/appellee.

Thomas F. Homann, San Diego, Cal., for defendant/appellant.

Appeal from the United States District Court for the Southern District of California.

Before FARRIS, PREGERSON and NORRIS, Circuit Judges.

FARRIS, Circuit Judge:

Robert S. Hale appeals from his conviction for receiving child pornography in violation of 18 U.S.C. Sec. 2252(a)(2) and for receiving obscene merchandise imported contrary to law in violation of 19 U.S.C. Sec. 1305 and 18 U.S.C. Sec. 545. We affirm in part.

STATEMENT OF THE CASE

On May 4, 1984 Hale placed an order by mail with Delta Books, a distributor in the Netherlands, for two magazines and four sets of photographs to be sent to him by mail. He enclosed a check in full payment, and noted the order and $58.00 payment in his journal, along with the notation, (1) "Joe and His Uncle," (2) "Bambino," and that there were ten photos in each photoset.

On May 21, 1984, the Child Protection Act of 1984, P.L. No. 28-292, 98 Stat. 204 (1984) became effective, amending 18 U.S.C. Sec. 2252(a)(2) to make it illegal to On May 24, 1984, Hale received notice from Customs authorities advising him that a set of ten photos addressed to him had been intercepted, appeared to be obscene within the meaning of 19 U.S.C. Sec. 1305, and was therefore subject to seizure and forfeiture. ² Hale stipulated that he read the notice and elected to waive or abandon any interest he might have in the material by not responding.

receive by mail any material depicting minors engaged in sexually explicit conduct. ¹

On May 29, 1984, a Customs Mail Technician opened and inspected an envelope arriving in the country from the Netherlands addressed to Hale. Inside the envelope was a magazine entitled "Bambino 6." It had been ordered by Hale on May 4, 1984, and contained sexually explicit pictures.

On June 1, 1984 and June 12, 1984, Customs inspectors intercepted and inspected three more envelopes arriving from the Netherlands. The envelopes contained the remaining three sets of ten photographs that Hale had ordered on May 4, 1984. Customs officials considered the sexually explicit "Bambino" magazine and the three sets of pictures to be obscene and on that basis seized the contents of all four envelopes. No notice of the seizures was sent to Hale by the Customs Service and no forfeiture proceedings were ever commenced pursuant to 19 U.S.C. Sec. 1305 in the appropriate district court.

On the basis of this evidence, a Customs Agent sought a search warrant for Hale's home. In his affidavit, the Agent recounted the inspection and seizure of the four envelopes, and provided copies of the seized materials to the magistrate. The agent stated his intention "to have the previously described envelopes delivered as addressed by an employee of the United States Postal Service," and then to execute On June 22, 1985, a magistrate issued a warrant authorizing the search of Hale's home for the "Bambino" magazine and the three sets of ten photographs which were to be delivered to Hale. The warrant also authorized search and seizure of "correspondence, receipts, bills of sale, order forms, advertisement brochures and other documents related to the importation, receipt, sale and/or distribution of said magazine and photographs or any other books, magazines, photographs, negatives, or films depicting obscene, lewd, lascivious or indecent sexual conduct, which are evidence, fruits and instrumentalities...."

the search warrant after delivery was confirmed.

On June 25, 1984, the four envelopes containing the magazine and photographs were delivered to Hale at his home by a United States Postal Service carrier. The packages were handed to Hale in the front yard of his home at 12:40 p.m. The residence was then kept under constant surveillance by Customs officials until 2:30 p.m. when agents served the search warrant.

Upon entering the residence, an agent advised Hale of his Miranda rights, which Hale waived. Hale told the agents that the envelopes were in his bedroom on the second floor of the residence. The agents seized the envelopes. Hale had not opened them, although it was apparent that they had been opened and inspected by Customs. Also seized from Hale's home were 45 books and magazines, among them "Joe and His Uncle" and Hale's handwritten records of his order for the two magazines and four sets of photographs.

The grand jury handed down a ten-count indictment. Five counts were based on violations of 18 U.S.C. Sec. 2252, in that Hale knowingly received child pornography in the form of 3 sets of photos and 2 magazines. The other five counts were based on 19 U.S.C. Sec. 1305 and 18 U.S.C. Sec. 545, in that Hale knowingly received merchandise imported contrary to law.

Hale's motions to suppress, for return of property, and to dismiss were denied. Hale and the government thereafter stipulated that Hale did not intend to sell or distribute any of the magazines or pictures and that he intended to use all the magazines and pictures for his own personal use inside his home. It was further stipulated that an expert for the government would testify that the material shows minors under the age of 18 engaged in sexually explicit conduct within the meaning of 18 U.S.C. Sec. 2255, including actual or simulated oral sex, masturbation, sexual intercourse and lewd exhibition of the genitals, in violation of 18 U.S.C. Sec. 2252(a)(2), and that the materials are obscene. Hale also stipulated that he would not challenge on appeal the sufficiency of the evidence to support a finding of obscenity.

Hale was found guilty in a bench trial on all ten counts. His sentence was suspended, and he was granted three years probation and fined $500.00. Hale filed a timely appeal. We have jurisdiction under 28 U.S.C. Sec. 1291.

DISCUSSION

1. Was the warrant invalid?

The issues raised by Hale regarding the validity of the search warrant involve an application of law to fact requiring the consideration of legal principles. In such circumstances, particularly when constitutional rights are implicated, our review is de novo. United States v. McConney, 728 F.2d 1195, 1201-4 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

Hale argues first that the warrant is invalid because it was issued before the pornography was delivered. When evidence, however, is on a sure course to its destination, as in the mail, the prior issuance of a warrant is permissible. United States v. Goff, 681 F.2d 1238, 1240 (9th Cir.1982). Hale's reliance on United States v. Hendricks, 743 F.2d 653 (9th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1362, 84 L.Ed.2d 382 (1985) is misplaced. In Hendricks, the evidence was not on a sure and irreversible course to its destination; the defendant in that case was required to pick it up personally, an act which he might or might not have done if the government had not taken that decision out of his hands by attempting a controlled delivery. In the instant case, the evidence was in the mail addressed to Hale for home delivery; a controlled delivery pursuant to a warrant issued earlier is, in this situation, permissible.

Hale argues also that the warrant is invalid because it allowed for the search and seizure of unnamed "obscene, lewd, lascivious or indecent" material. Partial invalidity of a warrant (assuming arguendo that this portion of the warrant is invalid) does not taint the entire warrant. United States v. Gomez-Soto, 723 F.2d 649, 654 (9th Cir.), cert. denied, 466 U.S. 977, 104 S.Ct. 2360, 80 L.Ed.2d 831 (1984); United States v. Cardwell, 680 F.2d 75, 78 (9th Cir.1982). The portion of the warrant that specifically described "Bambino" and the three sets of photographs is valid.

The only item which formed the basis for the indictment and conviction but was not specified in the warrant was the magazine "Joe and His Uncle." Under Supreme Court and Ninth Circuit precedent, the "First Amendment imposes special constraints on searches for and seizures of presumptively protected material ... and requires that the Fourth Amendment be applied with 'scrupulous exactitude' in such circumstances." Maryland v. Macon, --- U.S. ----, 105 S.Ct. 2778, 2781-2, 86 L.Ed.2d 370 (1985); United States v. Sherwin, 572 F.2d 196, 199-200 (9th Cir.1977), cert. denied, 437 U.S. 909, 98 S.Ct. 3101, 57 L.Ed.2d 1140 (1978); United States v. Tupler, 564 F.2d 1294, 1297 (9th Cir.1977). As we have held, "Because of the First Amendment, the seizure of all publications must meet higher procedural standards than normal." Sherwin, 572 F.2d at 200.

These "higher procedural standards" take two forms. First, the warrant must specifically describe the material to be seized. Blanket clauses that do not refer to specific items and to material directly related to specific items are not proper bases for constitutional searches and seizures. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 325, 99 S.Ct. 2319, 2323-24, 60 L.Ed.2d 920 (1979); Roaden v. Kentucky, 413 U.S. 496, 506, 93 S.Ct. 2796, 2802, 37 L.Ed.2d 757 (1973); Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511-12, 13 L.Ed.2d 431 (1965); Sherwin, 572 F.2d at 200. Second, the exceptions to the warrant requirement are narrowly construed. The plain view exception argued by the government, for example, cannot be used to search for or seize alleged obscenity or alleged child pornography that is unspecified in the warrant. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326 n. 5, 99 S.Ct. 2319, 2324 n. 5, 60 L.Ed.2d 920 (1979); Sherwin, 572 F.2d at 200. Otherwise, police officers could seize any...