U.S. v. Bach

• Decision Date: 14 March 2005
• Docket Number: No. 04-1211.,04-1211.
• Parties: UNITED STATES of America, Plaintiff — Appellee, v. Dale Robert BACH, Defendant — Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

400 F.3d 622

UNITED STATES of America, Plaintiff — Appellee, v. Dale Robert BACH, Defendant — Appellant.

No. 04-1211.

United States Court of Appeals, Eighth Circuit.

Submitted: October 18, 2004.

Filed: March 14, 2005.

COPYRIGHT MATERIAL OMITTED

William M. Orth, argued, Minneapolis, MN, for appellant.

Tracy T. Braun, argued, Asst. U.S. Atty., Minneapolis, MN, for appellee.

Before MURPHY, HEANEY, and BEAM, Circuit Judges.

MURPHY, Circuit Judge.

A jury convicted Dale Robert Bach for possessing visual depictions of a minor engaged in sexually explicit activity, for transporting such an image, for using a minor to produce such material, and for the receipt of child pornography, all in interstate or foreign commerce. The district court¹ sentenced Bach to 180 months on the manufacturing count and 121 months on each of the other three counts, all to run concurrently. Bach appeals, arguing that there was no probable cause for the search of his residence, that his convictions are constitutionally infirm, and that the district court erred by applying a mandatory minimum sentence on the manufacturing count. We affirm.

I.

In October 2000 Sergeant Brook Schaub of the St. Paul Police Department was contacted by a mother concerned about a document on her family computer. It contained a partial log of a communication between her minor son (AM)² and someone using the name "dlbch15," asking if AM wanted to see dlbch15 again and to suggest a place where he could hide something for AM. Dlbch15 added that he would like to see AM if he were going to drive to St. Paul to deliver it. When the police questioned AM about this message, he said it had been received in a chat room on the website www.yahoo.com and that dlbch15 planned to hide Playboy magazines for him in the bushes near a business on Ford Parkway. AM admitted that he had met dlbch15 on Ford Parkway, but he denied any sexual contact with him. Police showed AM a photo of Bach, but he did not identify him as dlbch15.

When Sergeant Schaub accessed the user profile³ for dlbch15 at Yahoo!, he found it listed a male named Dale, age 26, from Minneapolis. Schaub also discovered that the nickname dlbch15 was linked to the email address dlbch15@prodigy.com, and he sent an administrative subpoena to Prodigy seeking subscriber information. Prodigy identified Dale Bach as the subscriber and listed his address and telephone number. Further investigation revealed that Bach was a registered sex offender because of a 1995 state conviction for criminal sexual conduct in the third degree, involving sex with a fourteen year old boy.

Schaub sent a letter to Yahoo!, requesting that it retain on its server any incoming or outgoing email messages associated with the account dlbch15@yahoo.com. He then obtained a Ramsey County search warrant on January 3, 2001, seeking Yahoo! emails between dlbch15 and possible victims of criminal sexual conduct, including but not limited to AM. The warrant also sought internet protocol addresses (IPs)⁴ linking dlbch15 to possible victims of criminal sexual conduct or of online enticement for sexual purposes. The warrant was faxed from Minnesota to Yahoo! in Santa Clara, California.

Five days later Schaub received a package from Yahoo!. Inside was a zip disk containing all of the emails preserved in the accounts belonging to AM and Bach (dlbch15@yahoo.com). Yahoo! also sent printed copies of six emails retrieved from Bach's account. Among them was one dated August 1, 2000, apparently a reply to a message from dlbch15@yahoo.com about meeting the next day and exchanging pictures. Other email messages concerned dlbch15's meeting and exchanging pictures with various individuals.

One email in Bach's account had been received from Fabio Marco in Italy; that transmission is the basis for Bach's conviction for receiving child pornography. Marco's email to Bach had an attached photograph which showed a young nude boy sitting in a tree, grinning, with his pelvis tilted upward, his legs opened wide, and a full erection. Below the image was the name of AC, a well known child entertainer. Evidence at trial showed that a photograph of AC's head had been skillfully inserted onto the photograph of the nude boy so that the resulting image appeared to be a nude picture of AC posing in the tree.

In some of his email messages, dlbch15 directed the recipient to visit a particular site to view a picture of himself. The individual pictured at that site looks like Bach's driver license photo. The Yahoo! files also revealed that dlbch15 used other screen names, including "seeknboyz" and one incorporating Bach's telephone number. The registration material associated with the Yahoo! account listed Minneapolis as dlbch15's residence and December 27, 1958 as his birthdate, the same day as Bach's. Since Yahoo! was not Bach's internet service provider, it was unable to generate and provide IPs linking him to other addresses.

Officers obtained a search warrant to search Bach's residence near the end of January 2001. The warrant authorized seizure of computer hard drives, storage devices, and other evidence tending "to show the possession or distribution of child pornography or the enticement of children online." The warrant was executed on January 29, and officers seized various items, including Bach's computer, his disks, and a digital camera. Among the effects seized were seven digital camera images which Bach had taken in August 2000 of a boy engaging in sexually explicit conduct. These pictures were of RH, who testified at trial that he was the boy in the photos and that he had been sixteen at the time they were made. The trial evidence also showed that one photograph of RH had been sent on the internet from Bach's computer to another minor with whom he corresponded.

Bach was indicted on August 7, 2001 in eight counts: for possessing visual depictions produced by using a minor engaged in sexually explicit conduct in interstate or foreign commerce, in violation of 18 U.S.C. § 2252(a)(4) (count 1); for transmitting in interstate or foreign commerce a visual depiction produced by using a minor engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(1) (count 4); for receiving visual depictions produced by using a minor engaged in sexually explicit conduct in interstate or foreign commerce, in violation of 18 U.S.C. § 2252(a)(2) (count 5); for possessing child pornography in interstate or foreign commerce, in violation of 18 U.S.C. § 2252A(a)(5) (count 2); for transmitting child pornography in interstate or foreign commerce, in violation of 18 U.S.C. § 2252A(a)(1) (count 3); for receiving child pornography in interstate or foreign commerce, in violation of 18 U.S.C. § 2252A(a)(2) (count 6); and for employing a minor to produce visual depictions involving sexually explicit conduct in interstate or foreign commerce, in violation of 18 U.S.C. § 2251(a) (count 7). An eighth count charged forfeiture under 18 U.S.C. § 2253, but Bach stipulated to that count before trial.

Bach moved to suppress the evidence obtained by the search warrants. The district court suppressed the evidence obtained from Yahoo! on the ground that a police officer had not been present when the warrant was executed, but the court declined to suppress the evidence from Bach's residence, finding independent probable cause for that warrant. The government filed an interlocutory appeal from the order suppressing evidence, and we reversed and remanded. United States v. Bach, 310 F.3d 1063 (8th Cir.2002), cert. denied, 538 U.S. 993, 123 S.Ct. 1817, 155 L.Ed.2d 693 (2003).

Before trial Bach moved to dismiss counts 2, 3, and 6, which all charged offenses under 18 U.S.C. § 2252A. He argued that the same criminal conduct had been charged in counts 1, 4, and 5 under 18 U.S.C. § 2252. After the district court granted the motion, the government moved for reconsideration. The court decided on reconsideration that the government could proceed to trial under § 2252A for the charge in count 6 rather than being limited to the § 2252 charge in count 5, ruling that that prosecution was not barred by the Supreme Court's decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002).

The indictment was redacted as a result of the pretrial motions, and the case was presented to the jury on four counts. Count 1 charged Bach with possession of visual depictions whose production involved the use of a minor engaged in sexually explicit conduct in interstate or foreign commerce, in violation of 18 U.S.C. § 2252(a)(4). Count 4 charged Bach with transmission in interstate or foreign commerce of a visual depiction whose production involved the use of a minor engaged in sexually explicit conduct (one picture of RH), in violation of 18 U.S.C. § 2252(a)(1). Count 6 charged Bach with receiving child pornography in interstate or foreign commerce (the picture with AC's face), in violation of 18 U.S.C. § 2252A(a)(2). Count 7 charged Bach with employing a minor to produce visual depictions of the minor involved in sexually explicit conduct in interstate or foreign commerce (pictures of RH), in violation of 18 U.S.C. § 2251(a). Bach was convicted on all four counts, and the district court imposed concurrent sentences of 121 months for counts 1, 4, and 6 and 180 months for count 7.

II.

On appeal, Bach argues that there was not probable cause to search his residence, that the images he took of RH were protected under Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), that his prosecution for receipt of child pornography under 18 U.S.C. § 2252A was unconstitutional under Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), and that the district court erred in imposing a 15 year mandatory minimum sentence for his conviction for manufacturing visual depictions of a minor involved in sexually explicit conduct. The government responds that ...