USA v. Campos, No. 99-5050

• Decision Date: 20 July 2000
• Docket Number: No. 99-5050
• Parties: (10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TERRY JOE LEE CAMPOS, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1143

221 F.3d 1143 (10th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TERRY JOE LEE CAMPOS, Defendant-Appellant

No. 99-5050

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

July 20, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA. D.C. No. 98-CR-75-C

[Copyrighted Material Omitted] Scott Troy, Tulsa, Oklahoma, for Defendant-Appellant.

Neal Kirkpatrick, Assistant United States Attorney (Stephen C. Lewis, United States Attorney, with him on the brief), Tulsa, Oklahoma, for Plaintiff-Appellee.

Before TACHA, McKAY, and HENRY, Circuit Judges,

HENRY, Circuit Judge.

Terry Joe Lee Campos appeals his conviction following a jury trial for transporting child pornography through interstate commerce via computer, a violation of 18 U.S.C. 2252(a)(1). Mr. Campos argues that: (1) the search of his residence violated the Fourth Amendment, because the warrant purporting to authorize it was overbroad; (2) the district court erred in allowing the jury to view the two photographs that he allegedly transported because he had stipulated that they constituted child pornography; (3) pursuant to Fed. R. Evid. 404(b), testimony regarding the meaning of a screen name registered to his on-line account should not have been admitted; (4) the evidence was insufficient to support his conviction. For the reasons set forth below, we reject Mr. Campos's arguments and affirm his conviction.

I. BACKGROUND

The government alleged that Mr. Campos transmitted two photographs constituting child pornography from his home in Broken Arrow, Oklahoma, to a resident of Aurora, Illinois (hereafter "the complainant"). The complainant testified at trial that, on the evening of April 16-17, 1997, he participated in a gay and lesbian chat room on America Online (AOL). While in the chat room, he exchanged messages and photographs with several people, including another AOL subscriber who used the screen name "IAMZEUS." After spending two hours in the chat room, the complainant signed off AOL and went to bed.

When he awoke at approximately 4:00 a.m. on April 17, the complainant signed onto AOL again. He discovered that IAMZEUS had sent him electronic mail, including several images of adult male men, and two images of children engaged in sexually explicit conduct. The complainant copied the images of the child pornography to a floppy disk, notified the Federal Bureau of Investigation (FBI), and gave the disk to the special agent who interviewed him.

Law enforcement agents determined that the AOL subscriber who used the name "IAMZEUS" was Mr. Campos, a resident of Broken Arrow, Oklahoma. Based on this information, the FBI obtained a warrant to search Mr. Campos's home and computer. On October 1, 1997, the agents conducted a search of the Broken Arrow residence occupied by Mr. Campos and Lester Hibbs. They discovered a computer in a back room of the house and seized it. In examining the hard drive of the computer, the agents found the two images that had been transmitted to the complainant, six similar images of children engaging in sexually explicit conduct, and a copy of a newspaper article describing the conviction and sentencing of a defendant in Wisconsin federal court for possessing and transporting child pornography. Prior to trial, Mr. Campos filed a motion to suppress the evidence obtained from the search, but the district court denied the motion.

During the trial, the government presented several witnesses to bolster its contention that it was Mr. Campos who had sent the pornographic images to the complainant. Alissa Simon, an employee with AOL, testified that the credit card on the AOL account belonged to Mr. Campos and that Mr. Campos' account was terminated by AOL for transferring illegal pictures that violated the terms of service. An FBI agent who had spoken with Mr. Campos during the search of his residence reported that Mr. Campos had given an explanation of the AOL account that was inconsistent with the information provided by Ms. Simon. According to the agent, Mr. Campos had said that the computer belonged to Lester Hibbs and that Mr. Hibbs had paid for the AOL account with Mr. Hibbs's credit card.

Gary Szabo, a document examiner with the Tulsa Police Department, testified that he examined two documents found in Mr. Campos's residence. One of the documents contained the notation "13Bysk," which resembled the name of one of the pornographic files described in the indictment. Mr. Szabo also testified that, based upon his comparison of the notation with exemplars provided by Mr. Campos, Mr. Campos probably wrote the notation.

Additionally, the government offered testimony from Donald Rehman, a retired state law enforcement agent with experience in investigating computer crime involving child pornography. Mr. Rehman testified about the meaning of the screen name "Chicken Hawk," which resembled one of the screen names assigned to Mr. Campos's AOL account ("ChknHawk15"). See Aplt's App. at 271-74.

In response to the government's allegations, Mr. Campos presented testimony from three friends and his mother. Mr. Campos's friends testified that Mr. Hibbs had told them that the pornographic photographs in question were his, not Mr. Campos's. According to Ms Campos's mother, Mr. Hibbs told her, "Terry is not the one that did it, that he [Mr. Hibbs] did it." Id. at 311.

After hearing all the evidence, the jury convicted Mr. Campos. The district court sentenced him to thirty-seven months' imprisonment.

II. DISCUSSION

A. Computer Search

Mr. Campos first argues that the district court erred in denying his motion to suppress the evidence obtained from the search of his residence. According to Mr. Campos, the law enforcement agents who sought the warrant had grounds to search only for the two images that had been sent to the complainant by IAMZEUS. He, therefore, maintains that the warrant authorizing agents to search for other evidence of child pornography was overly broad and that therefore violated the Fourth Amendment. We review de novo the district court's legal conclusion regarding the sufficiency of the warrant. See United States v. Simpson, 152 F.3d 1241, 1246 (10th Cir. 1998).¹

"The Fourth Amendment requires that a search warrant describe the things to be seized with sufficient particularity to prevent a general exploratory rummaging in a person's belongings." United States v. Carey, 172 F.3d 1268, 1271 (10th Cir. 1999). It was adopted in response to the evils of general warrants--those that allow such exploratory rummaging. See O'Rourke v. City of Norman, 875 F.2d 1465, 1472-73 (10th Cir. 1989).

Upon review of the record, we are not convinced that the warrant was overly broad. Rather than authorizing an unfocused inspection of all of Mr. Campos's property, the warrant was directed at items relating to child pornography. It authorized the agents to seize computer equipment "which may be, or [is] used to visually depict child pornography, child erotica, information pertaining to the sexual activity with children or the distribution, possession, or receipt of child pornography, child erotica or information pertaining to an interest in child pornography or child erotica." Aplt's App. at 27. It also authorized the seizure of books, magazines, films, and videos containing images of minors engaged in sexually explicit conduct.

Additionally, the affidavit presented by an FBI agent in support of the warrant provided an explanation of the ways in which computers facilitate the production, communication, distribution, and storage of child pornography. Moreover, the FBI agent provided an explanation as to why it was not usually feasible to search for particular computer files in a person's home:

Computer storage devices . . . can store the equivalent of thousands of pages of information. Especially when the user wants to conceal criminal evidence, he often stores it in random order with deceptive file names. This requires searching authorities to examine all the stored data to determine whether it is included in the warrant. This sorting process can take weeks or months, depending on the volume of data stored, and it would be impractical to attempt this kind of data search on site; and

Searching computer systems for criminal evidence is a highly technical process requiring expert skill and a properly controlled environment. The wide variety of computer hardware and software available requires even computer experts to specialize in some systems and applications, so it is difficult to know before a search which expert should analyze the system and its data. . . . Since computer evidence is extremely vulnerable to tampering or destruction (both from external sources or from destructive code embedded into the system as "booby trap"), the controlled environment of a laboratory is essential to its complete analysis.

Id. at 17-18.

In the district court proceedings, Mr. Campos presented no evidence to rebut the agent's justification of the search of computer files. Moreover, in neither the district court proceedings nor in his appellate brief has Mr. Campos offered any case law in support of his contention that law enforcement agents must limit their inquiries in the manner he suggests: restricting their searches to the very documents of which they have already seen copies. In fact, a number of courts have upheld warrants similar to the one he challenges here. See, e.g., United States v. Hall, 142 F.3d 988, 996-97 (7th Cir. 1998) (holding "that the search warrants were written with sufficient particularity because the items listed on the warrants were qualified by phrases that emphasized that the items sought were those related to child pornography"); United States v. Lacy, 119 F.3d 742, 746 (9th Cir. 1997) (upholding warrant authorizing search of the defendant's entire computer system, noting that "[t]he government knew that [the defendant] had downloaded computerized visual depictions...