U.S. v. Lapsins

• Decision Date: 07 July 2009
• Docket Number: No. 07-4387.,07-4387.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony V. LAPSINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

570 F.3d 758

UNITED STATES of America, Plaintiff-Appellee, v. Anthony V. LAPSINS, Defendant-Appellant.

No. 07-4387.

United States Court of Appeals, Sixth Circuit.

Argued: April 21, 2009.

Decided and Filed: July 7, 2009.

ARGUED: H. Louis Sirkin, Sirkin Pinales & Schwartz LLP, Cincinnati, Ohio, for Appellant. Christy L. Muncy, Assistant United States Attorney, Cincinnati, Ohio, for Appellee. ON BRIEF: H. Louis Sirkin, Scott Ryan Nazzarine, Sirkin Pinales & Schwartz LLP, Cincinnati, Ohio, for Appellant. Christy L. Muncy, Assistant United States Attorney, Cincinnati, Ohio, for Appellee.

Before: BATCHELDER and COLE, Circuit Judges; LAWSON, District Judge.^*

OPINION

COLE, Circuit Judge.

Anthony Lapsins was indicted on three counts related to the possession and transportation of child pornography. Following the denial of his motion to suppress evidence obtained through a warranted search of his home, he pleaded guilty to one count of transporting and shipping child pornography in violation of 18 U.S.C. § 2252(a)(1), conditional upon his right to appeal the suppression ruling. On appeal, he claims that the search warrant was not supported by probable cause. He also argues that he was erroneously denied a three-point—as opposed to a two-point— reduction for acceptance of responsibility in his criminal offense level under § 3E1.1 of the United States Sentencing Guidelines (the "Guidelines" or "U.S.S.G.") and challenges the procedural and substantive reasonableness of his sentence. For the following reasons, we AFFIRM the district court's denial of the suppression motion and AFFIRM Lapsins's sentence.

I. BACKGROUND

The following facts were set forth in the affidavit of Federal Bureau of Investigation Special Agent Jeffrey Klain, which was submitted to a federal magistrate judge in support of Klain's request for a warrant to search Lapsins's house.

Lapsins came to the attention of law enforcement officials in Ohio through a separate investigation of a suspected child pornographer in Greensburg, Pennsylvania (the "Greensburg Suspect"). On October 27, 2005, Greensburg police officer Robert Jones ("Patrolman Jones" or "Jones"), working as part of a Pennsylvania State Police Computer Crime Task Force, was examining the hard-drive of the Greensburg Suspect's computer and discovered a transcript of a "Yahoo! Instant Messenger" conversation (the "chat"), dated March 27, 2005, between the Greensburg Suspect and a then-unknown person using the screen-name "budmanoh69." In the chat, budmanoh69 made the following statements:

"its so hot to see a young little girls undeveloped body."

"when I see a very young hot little girl alone i cant stop from trying to expose my cock to her or try to fondle or molest her."

In response to the question, "have you had a little one," budmanoh69 replied, "ooohhh yes."

"i let a guy i met online molest my daughter at 8mos ... it was extremely hot" [this was not true, as budmanoh69—later discovered to be Lapsins— does not have a daughter].

"you have any hot xxx baby pics? ... want one that we can look at and talk about on the phone? ? ... you get it? ... sent."

"we going to look at that pic on the phone together? ?"

(Record on Appeal ("ROA") 73-74.) During the chat, budmanoh69 provided the Greensburg Suspect with a phone number so they could discuss the image budmanoh69 had sent.

Patrolman Jones also located an email that budmanoh69 sent to the Greensburg Suspect during the course of the chat from the email address budmanoh69@aol.com. Attached to the email was an image that "depict[ed] a baby girl with an erect adult penis in the foreground and ejaculate covering the exposed vaginal area of the baby girl." (ROA 75.) Patrolman Jones sent the image to the National Center for Missing and Exploited Children ("NCMEC"), a "national clearinghouse that gathers information about missing and sexually exploited children for law enforcement use." (ROA 59-60.) According to Jones, as set forth in Special Agent Klain's affidavit, the NCMEC "concluded that [the image] was a known victim image from the Camille [photograph] series, identifiable by Yves Goethals of the Belgian National Police." (ROA 76.)

On November 3, 2005, Patrolman Jones sent America On-Line ("AOL") a court order directing it to provide him with subscriber and billing information for the individual using the AOL email address "budmanoh69@aol.com." AOL informed Jones that the email account was registered to Anthony Lapsins, who had provided as his address 8065 Kingfisher Lane in West Chester, Ohio. Several AOL screen-names were associated with the budmanoh 69@aol.com email address, including budmanoh69, tonylapl, cincym, carmen4fun, and lapsins. AOL also provided Jones with a telephone number for Lapsins—the same number budmanoh69 had given the Greensburg Suspect. Jones also obtained a court order requiring Yahoo! to provide information about the user of the Yahoo! screen-name budmanoh69 and learned that the user of that screen-name had listed budmanoh69@aol.com as an alternate email address.

Patrolman Jones requested from the NCMEC any "CyberTipline Reports" concerning budmanoh69. According to Klain's affidavit, "CyberTipline Reports" are "reports forwarded from NCMEC to the law enforcement community ... based on information obtained from various sources to include individuals and members of the Internet services industry." (ROA 60.) The NCMEC "neither investigates nor vouches for the accuracy of the information reported to itself [and] forwards all information unedited to law enforcement agencies for investigation and disposition pursuant to its congressional mandate to operate as a clearinghouse." (ROA 60.) Jones received a CyberTipline report stating that, on November 14, 2005, budmanoh69, using IP address 71.64.193.15, uploaded 132 child pornographic images to the website http:// photos.yahoo.com/budmanoh69. The report stated that the IP address was assigned to a server designated "cinci.res.rr.com." Special Agent Klain contacted Time Warner Cable and learned that this server provides residential cable modem service in the Cincinnati area, which "can only be used where the cable modem is installed." (ROA 78.)

A West Chester police officer working with Klain contacted Cincinnati Bell and confirmed that the telephone number Lapsins had given the Greensburg Suspect was a Cincinnati Bell Wireless cellular phone number registered to Anthony Lapsins at the Kingfisher Lane address. Klain confirmed, via Ohio Bureau of Motor Vehicles records, West Chester Police Department records, and Butler County property records, that Lapsins lived at the Kingfisher Lane address.

Based on the above information, a magistrate judge granted Klain a search warrant for Lapsins's house on December 19, 2005. The warrant was executed the following day, and investigators seized Lapsins's computer, various computer-related equipment, and numerous compact discs, Zip disks, and other diskettes. According to the Presentence Investigation Report ("PSR"), these materials contained approximately 1400 images of child pornography, including the image that had been emailed to the Greensburg Suspect, and sixty-nine pornographic videos of children. Also according to the PSR, Lapsins admitted to investigating agents that he sent the image to the Greensburg Suspect, possessed child pornography, and created a Yahoo! group to share child pornography.

The district court found that the warrant to search Lapsins's house was supported by probable cause and denied his motion to suppress the evidence obtained from the search. Lapsins entered a conditional guilty plea and was sentenced to 168 months in prison, followed by supervised release for life.

II. ANALYSIS

A. Suppression motion

Lapsins argues that the warrant authorizing the search of his house was not supported by probable cause. He contends that Klain's supporting affidavit did not provide reason to believe that the pornographic images at issue were photographs of real children, as opposed to computer-generated images, or that evidence related to the suspected crime would be located at Lapsins's house. He also argues that the information on which the warrant relied was stale because one of the major events described in the affidavit, the Yahoo! chat and emailing of the image to the Greensburg Suspect, occurred nine months before the warrant was issued.

1. Standard of review and probable cause standard

In an appeal following the denial of a motion to suppress evidence, we review the district court's factual findings for clear error and its legal conclusions de novo. See United States v. Terry, 522 F.3d 645, 647 (6th Cir.2008). "[W]hen judging the sufficiency of an affidavit to establish probable cause in support of a search warrant, the Supreme Court has `repeatedly said that after-the-fact scrutiny ... should not take the form of de novo review.... Rather, reviewing courts are to accord the magistrate's determination `great deference.''" Id. (quoting United States v. Allen, 211 F.3d 970, 973 (6th Cir.2000) (en banc) (quoting Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983))). "`[S]o long as the magistrate had a `substantial basis for ... concluding' that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more.'" Allen, 211 F.3d at 973 (quoting Gates, 462 U.S. at 236, 103 S.Ct. 2317 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960))).

"In deciding whether to issue a search warrant, the Fourth Amendment requires `the issuing magistrate ... simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Terry, 522 F.3d at 648 (quoting Gates, 462 U.S. at 238, 103 S.Ct. 2317). "[P]robable cause requires only a probability or substantial chance of criminal...