U.S. v. Stults

• Decision Date: 14 August 2009
• Docket Number: No. 08-3183.,08-3183.
• Citation: 575 F.3d 834
• Parties: UNITED STATES of America, Appellee, v. Harold STULTS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

575 F.3d 834

UNITED STATES of America, Appellee, v. Harold STULTS, Appellant.

No. 08-3183.

United States Court of Appeals, Eighth Circuit.

Submitted: May 13, 2009.

Filed: August 14, 2009.

Michael P. Norris, AUSA, argued, Omaha, NE, for Appellee.

David R. Stickman, Federal Public Defender's Office, argued, Omaha, NE, for Appellant.

Before RILEY, SMITH, and COLLOTON, Circuit Judges.

SMITH, Circuit Judge.

Harold Stults was indicted for possessing one or more photographs and other matter containing images of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). The indictment further charged that Stults possessed child pornography after having previously been convicted for attempted sexual assault of a child in the second degree, a predicate offense requiring the imposition of a ten-year mandatory minimum sentence pursuant to 18 U.S.C. § 2252(b)(2). Stults initially pleaded not guilty to the indictment but, after the district court¹ denied his motion to suppress evidence obtained from a court-authorized search warrant, Stults conditionally pleaded guilty. The district court sentenced Stults to 144 months' imprisonment, followed by a lifetime of supervised release.

Stults appeals, arguing that: (1) his Fourth Amendment rights were violated because law enforcement conducted an illegal search of his computer without a warrant or a valid exception to the warrant requirement; (2) the affidavit submitted in support of the search warrant was the fruit of the illegal search and was insufficient to establish probable cause; (3) his prior conviction for attempted sexual assault in the second degree is not a predicate offense that triggers the ten-year mandatory minimum sentence under 18 U.S.C. § 2252(b)(2); (4) the district court erred in applying a five-level enhancement for distribution for receipt of a thing of value under U.S.S.G. § 2G2.2(b)(3)(B); (5) his 144-month sentence is unreasonable because it is greater than necessary to promote the goals of 18 U.S.C. § 3553(a); and (6) four of the special conditions of supervised release imposed by the district court constitute a deprivation of liberty more burdensome than necessary to serve federal sentencing goals. We now affirm the judgment of the district court.

I. Background

Special Agent Brent Morral of the Department of Homeland Security, Bureau of Immigration and Custom Enforcement, applied for a federal search warrant for 8042 Maywood Street, Omaha, Nebraska — Stults's residence. The application and affidavit requested permission to seize computers, computer files, and other documents pertaining to child pornography, in violation of 18 U.S.C. §§ 2252 and 2252A. The application and affidavit also described a method of communication known as peer-to-peer ("P2P") computer file sharing that utilizes the Internet to allow individuals to share data contained in computer files. P2P file sharing can be used to share child pornography and trade digital files containing images of child pornography. Using the P2P file-sharing method, when two users actively participate, files may be sent from one user's computer to another user's computer without the permission or knowledge of the other user. It is not possible for one user to send or upload data, including child pornography, to another user or his computer without that user's active participation.

In the search warrant application and affidavit, Agent Morral recounted his experience and training in computer usage and investigation of child pornography cases. Additionally, he incorporated details of an investigation by Special Agent Joseph Cecchini of the Federal Bureau of Investigation (FBI) who used a P2P file-sharing program called "LimeWire." Agent Cecchini, in an online undercover capacity, conducted a search looking for users accessing known child pornography sites. After signing on to LimeWire, he entered the search term "PTHC" ("preteen hard core"), a term associated with images of child pornography. Agent Cecchini received responses from Internet Protocol (IP) address 24.252.31.129. Cecchini connected with the computer using this IP address and viewed a list of files available from the computer for sharing. He downloaded 14 files from the computer that seemed consistent with child pornography. The file names included: (1) Photo by Carl — pedo incest 13yr girl f* * * *d by daddy (2) Pedo 13Yo Haley.jpg; (3) fdsa7-10 girl and 6yo boy pedo R ygold hyssfan lolitaguy ... baby shivid.mpg; (4) 5yo Girl Raped By Mommy; and (5) 8yo Preteen Girl Raped by 16yo Brother. Among the 14 files downloaded from the computer, Agent Cecchini observed a nude prepubescent female being vaginally penetrated by a young male's penis; a nude prepubescent female with an adult penis touching her vaginal area; and a nude prepubescent female with her underwear down and her legs spread.

Pursuant to a subpoena, Cox Communications, the Internet provider, identified the subscriber using the IP address 24.252.31.129 as "Harold Stults, 8042 Maywood Street, Omaha, Nebraska." A public records check using LexisNexis, a postal service mail delivery check, and a motor vehicle registration check all confirmed that a "Harold Stults" was the resident of 8042 Maywood Street.

Agent Morral received the warrant to search Stults's residence, and, when the search warrant was executed, agents seized hard drive towers, computer storage media, and various documents from the residence. Forensic analysis revealed 60 videos and numerous images of child pornography on Stults's computer. The files were stored on the C:drive and on compact disks. The videos and images were sent to the National Center for Missing and Exploited Children (NCMEC). NCMEC identified one movie and 71 image files as portraying known child victims. Many of the images involved prepubescent children. Two of the videos portrayed sadistic or masochistic conduct or depictions of violence. One video portrayed an apparent ten-year-old female whose hands and legs were bound providing oral sex to an adult male. A second video portrayed a 12-year-old girl bound in red rope being digitally penetrated.

When confronted by law enforcement, Stults admitted to using LimeWire to download music and pornography; using the search terms "pthc," "young girls," and "pre teen" to download child pornography; keeping the pornography in his shared folders; and recently viewing child pornography a few days earlier.

Stults was charged with one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). Because he had previously been convicted in November 1993 of attempted sexual assault of a child, he was subject to a ten-year mandatory minimum and 20-year maximum sentence pursuant to 18 U.S.C. § 2252(b)(2).²

Stults filed a motion to suppress all evidence obtained as a result of the execution of the federal search warrant at his residence. The initial motion to suppress challenged the validity of the warrant's issuance. Stults contended that the affidavit failed to set forth sufficient facts and circumstances to justify a belief that evidence of a crime would be located at Stults's residence. Stults later supplemented his motion, alleging that the federal search warrant was obtained following an illegal P2P search of his home computer. According to Stults, Agent Cecchini conducted a warrantless search when he viewed the files from IP address 24.252.31.129, Stults's IP address, after Agent Cecchini launched the P2P program searching for child pornography. Stults argued that Agent Cecchini was able to determine the contents of Stults's computer, retrieve files from his computer, and view those files at a distant location without Stults's consent. Stults asserted that without the information from the P2P search information, the search warrant for his premises or computer files could not have been supported by probable cause.

The magistrate judge recommended to the district court that it deny Stults's motion to suppress, finding that sufficient probable cause existed to believe that the items sought in the application and affidavit would be found on the premises to be searched. In the alterative, the magistrate judge found that the good-faith exception of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), would apply, allowing for the admissibility of the evidence seized.

The district court adopted the magistrate judge's report and recommendation denying the motion to suppress. First, the district court found that "[t]here is no reasonable expectation of privacy in computer files that are accessible to users of a computer network." United States v. Stults, 2007 WL 4284721, at * 1 (D.Neb. Dec.3, 2007) (unpublished). As a result, the district court "agree[d] with the magistrate's assessment that the warrantless downloading of files from defendant's computer by law enforcement officers did not implicate Fourth Amendment concerns." Id. The district court also reviewed the search warrant and found that it contained probable cause to support the search. Id. at *2. Furthermore, the court found that even if the affidavit was not sufficient to establish probable cause, "there has been no showing that any of these exceptions to the operation of Leon apply to this case." Id.

Thereafter, Stults entered a conditional plea of guilty. The conditional plea reserved the right to appeal the adverse decision of the district court denying the motion to suppress.

The United States Probation Office prepared a PSR. The PSR calculated a base offense level of 18. The PSR stated that the following enhancements applied: (1) a two-level increase for material depicting prepubescent minors; (2) a five-level increase for distribution for a thing of value but not for pecuniary gain; (3) a four-level increase for material that portrays sadistic or masochistic images; (4) a two-level increase for use of a computer; and (5) a five-level increase for possessing more than 600 images. The...