U.S. v. Wilder

• Decision Date: 12 May 2008
• Docket Number: No. 06-2213.,06-2213.
• Citation: 526 F.3d 1
• Parties: UNITED STATES, Appellee, v. Darren F. WILDER, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

526 F.3d 1

UNITED STATES, Appellee, v. Darren F. WILDER, Defendant, Appellant.

No. 06-2213.

United States Court of Appeals, First Circuit.

Heard November 5, 2007.

Decided May 12, 2008.

Judith H. Mizner, Assistant Federal Public Defender, was on brief for appellant.

Dana Gershengorn, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, and Kayla Bakshi, Trial Attorney, United States Department of Justice, were on brief for appellee.

Before LYNCH, Circuit Judge, CAMPBELL and STAHL, Senior Circuit Judges.

CAMPBELL, Senior Circuit Judge.

Appellant-defendant Darren Wilder appeals from his conviction after a jury trial for possession, transmission and receipt of child pornography, in violation of 18 U.S.C. §§ 2252(a)(1), (2) and (b)(1) and § 2252(a)(4)(B) in the United States District Court for the District of Massachusetts. He challenges his conviction on five grounds: (1) that the warrant permitting seizure of materials from his home was issued without probable cause; (2) that the evidence at trial was insufficient to establish knowing receipt of child pornography as required by 18 U.S.C. § 2252(a)(2); (3) that the evidence was insufficient to establish the knowing possession required by 18 U.S.C. § 2252(a)(4)(B); (4) that the evidence was insufficient to support a finding that the images alleged to evidence the transportation and receipt of child pornography in Counts One and Two depicted real children; and (5) that the evidence was insufficient to support a finding that the images listed in Count One of the indictment depicted a minor engaging in sexually explicit conduct. We affirm the conviction.

Background and Facts

A three-count superceding indictment charged Wilder with knowingly transporting pornography involving minors, in violation of 18 U.S.C. § 2252(a)(1) (Count One); knowingly receiving and attempting to receive pornography involving minors, in violation of 18 U.S.C. §§ 2252(a)(2) and (b)(1) (Count Two); and knowingly possessing pornography involving minors, in violation of 18 U.S.C. § 2252(a)(4)(B) (Count Three). The district court denied Wilder's motion to suppress the evidence that was obtained pursuant to the search warrant, ruling that the affidavit that had accompanied the warrant application provided probable cause to issue the warrant. After a week-long trial, the jury convicted Wilder on all three counts in the indictment. The district court sentenced him to fifteen years in prison, followed by five years' supervised release.

The following facts are not in dispute. In 2002-03, federal agents investigating online child pornography found a pay-for-membership website called "Lust Gallery: A Secret Lolitas Archive." A preview page through which users visited the website showed naked female children who were identified on the page as being under fourteen years old. Some of the children were shown in the act of urinating. The page also noted that "everyone understands there are reasons not to reveal everything right here." An undercover investigator, John Johnson, joined the Lust Gallery website. After entering contact and credit card information, he received a confirmation email and a password from the site. The charge on his credit card bill for the membership was from a company called "Iserve." Johnson entered the site and saw several photo galleries, each of which held 80-100 images of nude women in different poses. Another investigator accessed the site and observed thousands of pictures of children in sexually explicit activity or states of undress.

During their investigation, the agents identified Wilder as being among the subscribers to Lust Gallery. In March 2003, Wilder bought a one-month subscription to the site for $57.90. His credit card bills also showed entries from a company called "Iserve." Wilder had a previous conviction for possession of child pornography and was still on supervised release when investigators uncovered his subscription to Lust Gallery. When his house was searched in connection with the earlier offense, investigators had found fourteen computer disks containing child pornography.

The agents obtained and on January 15, 2004 executed a warrant to search Wilder's home in Dracut, Massachusetts. Wilder was not at home when agents arrived, but agent Colleen Forgetta called him, and he returned to the house. After being advised of the search warrant, Wilder agreed to speak with agents. He told the agents, inter alia, that he "liked teenage girls" and that he was "enticed by certain websites." When he was asked if had subscribed to any child pornography websites, he said he had and that he thought the name of the site was Lust Gallery. Asked whether he thought agents would discover child pornography on his computer, he responded, "Well, you're here so you must think there is."

Wilder initially told agents he had only an office computer in his house. He later admitted, though, that he kept a second computer in the basement. Agents took both computers and a number of handwritten notes from Wilder's residence. One of these notes contained an email address which was the same address used by Wilder to subscribe to Lust Gallery. Other notes contained, inter alia, a list, marked "downloaded," of 24 file names, including "pedo raygold, 10yofuck + cum in pussy," "childlover little collection videos 0154," "pthc open-f09," and "raygold 12yo daughter gets fucked," and the names of websites related to child pornography, including "www.lolita-photo.com," "www. youngxlolita," "pre-12 host," "lolitabuffet.com/index.html," "alt.binaries.pictures.erotica.young," and "www. preteendigest.net." Government witnesses testified that "pthc" was an abbreviation for "pre-teen hard core," that "pedo" was short for "pedophile," and that "r@ygold" referred to a "set of videos of child pornography out on the Internet." Another note listed the site, "www.evidence-eliminator. com/product."

All the files and programs on Wilder's office computer were examined, and agents used software tools to discover what files the computer user had deleted. The investigation revealed a posting that had appeared on a newsgroup called "alt.sex.young."¹ The posting was from the email address springbegins@hotmail. com and stated, "I have many pics of my 12 yr old daughter in the shower and dressing. I am looking for more of the same. Send me your private pics and I'll send mine." Wilder had responded to the posting with an email titled "trade pics." The posting contained four explicit photos of child pornography and the statement, "Now it's your turn." Investigators found six images of child pornography showing a very young child located in the newsgroup folder on the computer, nine images of child pornography which had been downloaded from different websites, and several other child pornography images, some of which were current and some of which had been deleted. Several were images that had been posted on the Lust Gallery website.² About 14,000 images had been downloaded from the newsgroup "Youth and Beauty" and thousands from one called "Hussy." Some child pornography images from "Hussy" were charged in the indictment.

Investigators also found a number of child pornography video files, some of which had the same titles as those written on the handwritten list found in Wilder's home. At least one video, called "pedo r@ ygold — 10-year-old fuck and cum in pussy1.mpg" had been accessed from a CD-ROM in a drive of the computer. Also on the computer was an email from Wilder to the support section of a site to which he wrote,

Why is it each time I try and access your site I keep getting put over to other adult sites with content I do not wish to see. I joined to see Anya and her friends. I have seen no videos and am quite disappointed. I want to make sure I will not be rebilled. I have a platinum member for 60 days. Why is your site so hard to navigate and why do you have so many links to adult content sites?

Investigators found on Wilder's computer an image called "luda + anya092.jpg" showing three nude prepubescent children engaged in sexually explicit conduct. The websites saved on Wilder's computer as "favorites" included "Lolita Buffet free youngest girls on the net galleries.url" and other sites with analogous names.

Discussion

I. Probable Cause to Issue the Search Warrant

Wilder argues that the district court erred in denying his motion to suppress the evidence found at his home because the 42-page affidavit submitted to the magistrate judge in support of the search warrant application did not provide probable cause. We disagree and conclude that the district court did not err in denying the motion to suppress. We apply a mixed standard of review to the district court's denial of a motion to suppress, reviewing findings of fact for clear error and its conclusions of law, including whether a particular set of facts constitutes probable cause, de novo. United States v. Dickerson, 514 F.3d 60, 65-66 (1st Cir. 2008) (citing United States v. Woodbury, 511 F.3d 93, 95 (1st Cir.2007)).

The affidavit summarized the investigation that had resulted in the identification of Wilder, explaining that the investigators had found information identifying individuals who had purchased memberships to websites known to contain child pornography. Investigators learned that Wilder had purchased a one-month subscription to Lust Gallery in March 2003. The affidavit contained information about the content of the website, describing in detail six images showing one or more prepubescent females with their genital areas exposed. The affidavit also detailed the appearance of the website's "preview page," which suggested that child pornography would be available on the site. The description of the preview page included the fact that thumbnail images featuring unclothed minors were displayed across the width of the page. Some images focused on the minor's genitalia. The top of the...