UNITED STATES, Appellee, v. Paul V. BURDULIS, Defendant, Appellant.
No. 12-1896.
United States Court of Appeals, First Circuit.
May 23, 2014.
753 F.3d 255
Before THOMPSON, Circuit Judge, SOUTER, Associate Justice,* and KAYATTA, Circuit Judge.
KAYATTA, Circuit Judge.
Paul Burdulis was convicted of possessing child pornography in violation of
I. Background
Burdulis became the subject of investigation by local police in Massachusetts when a note with his first name, email address, and telephone number was given to a thirteen-year-old boy at a golf course. After learning of the boy‘s receipt of the note, and determining that the owner of the phone number, Burdulis, was a registered sex offender, a detective created an email address to communicate with Burdulis posing as “Tye,” the boy who received the note.
Burdulis sent approximately thirty emails to Tye during a span of four days in May 2009. In the emails, Burdulis asked for “naughty pics” of Tye, and sent Tye a naked picture of himself, with his penis exposed. Burdulis also offered to send Tye “pornos” and “internet pics.”
In his emails, Burdulis suggested several times that he and Tye should meet in person, making the following statements (among others):
- “maybe sometime you would join me in a bubble bath?“;
- “if we get together again maybe I could give you a present :)“;
- “wish I could hug you too ... wish we could get together but guess you got school in the morning“;
- “Is there a way to see each other for real today?“;
- “It would be neat if we could work it out that you come over sometime“; and,
- “I have the camera on my phone for now, but that‘s all I have unless you come over and I use my webcam.”
After several days of emailing, the local police sought and received a warrant to search Burdulis‘s home.1 In seeking the warrant, the police claimed that the emails established probable cause to believe that Burdulis had committed two crimes under state law: enticement of a child under sixteen,
Burdulis was prosecuted in federal court for possession of child pornography, found guilty by a jury, and sentenced to 108 months in prison. Before trial, the district court denied Burdulis‘s motion to suppress the evidence found in his home, ruling that the warrant was supported by probable cause.2 The district court also rejected Burdulis‘s claim that the government‘s proof failed to satisfy the jurisdictional element of the child pornography statute, and that the statute, as applied to him, exceeded Congress‘s authority under the commerce clause. Burdulis appeals these rulings.
II. The Constitutionality of the Search Warrant
Burdulis first argues that the warrant to search both his home and the devices inside it violated the Fourth Amendment because the government did not have probable cause to believe that he had committed any crime and because the warrant was too broad. In assessing the district court‘s denial of Burdulis‘s motion to suppress, we review the court‘s legal conclusions de novo while reviewing factual
findings for clear error.3 United States v. Wilder, 526 F.3d 1, 5 (1st Cir. 2008).
Burdulis‘s emаils certainly supplied probable cause to believe that he had committed the state crime of enticement of a child under sixteen. As relevant here, a person commits the crime by “coax[ing] or invit[ing]” another person, believing that person to be under the age of sixteen, to enter a “dwelling ... with the intent that he or another person will violate” specified laws, including the prohibition against unnatural and lascivious acts with а child under 16 and the prohibition on indecent assault and battery on a child under 14.
Similarly, the police had probable cause to believe that Burdulis committed the state crime of dissemination of matter harmful to minors when he sent Tye a naked picture showing his partially erect penis. Massachusetts law defines matter “harmful to minors” to include material that “(1) describes or represents nudity, sexual conduct or sexual excitement, so as to appeal predominantly to the prurient interest of minors; (2) is patently contrary to prevailing standards of adults in the county where the offense was committed as to material suitable for such minors; and (3) lacks serious literary, artistic, political or scientific value for minors.”
Burdulis also argues that, even if the police had probable cause for a limited search of his home, the warrant swept too broadly in allowing the police to look for “[a]ny computer data file containing information regarding the creation and maintaining [of] pornographic material.” To prevent “exploratory rummaging in a person‘s belongings,” Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), a search must be “confined in scope to particularly described evidence relating to a specific crime for which there is demonstrated probable cause,” Davis v. Gracey, 111 F.3d 1472, 1478 (10th Cir. 1997). Here, Burdulis‘s own emails defeat his challenge to the warrant‘s breаdth by showing that the police had probable cause to believe he possessed pornography in electronic form that
he intended to send to Tye over the internet, justifying a search matched in scope to that suspicion. See
In assessing whether the police had probable cause to search for pornography, we acknowledge that, in a different context, we have cautioned that courts should generally not approve a warrant to search for child pornography based solely on a police officer‘s assertion that images he has seen but has not shown to the magistrate constitute such pornography. See United States v. Brunette, 256 F.3d 14, 18-19 (1st Cir. 2001). In cases in which the
III. The Jurisdictional Element
Burdulis next raises a series of arguments related to the jurisdictional element of the stаtute under which he was convicted. The term “jurisdictional element” refers to a statutory provision that limits (or, more commonly, justifies) the reach of a federal statute by linking the offense to conduct that involves “at least some explicit connection with or effect on interstate commerce.” United States v. Morales-de Jesus, 372 F.3d 6, 12 (1st Cir. 2004) (internal quotation marks omitted). Here, the federal prohibition on possession of child pornography applies very broadly to any visual depiction that:
has been mailed, or has been shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer.
In attempting to show that the jurisdictional element was satisfied in this case, the government оffered evidence that Burdulis‘s thumb drive, which contained child pornography, was made in China. Based on this evidence, the government argued that the pornographic images were “produced using materials“—namely, the thumb drive—“shipped or transported ... in ... interstate or foreign commerce.” We discuss below Burdulis‘s objection to the admissibility of the government‘s evidence, but we start by assessing his arguments regarding the meaning of the jurisdictional element аnd its effect on the statute‘s constitutionality. On these purely legal issues, which Burdulis raised below, we review the district court‘s decision de novo.
Burdulis contends that the word “produced” in the statute refers only to the initial creation of the pornography. For example, according to Burdulis, the materials used in producing a pornographic video would include the camera used in capturing the video, but not a hard drive later used to downlоad the video from the internet, nor a disk onto which the video was copied. Burdulis‘s primary support for his argument is a dictionary entry defining “produce” as “bring into existence,” among other definitions. But this definition does not prove Burdulis‘s point, because to create a copy from an original is to bring something into existence: the copy. For instance, someone who photocopies a newspaper article has brought into existence a new copy of the article.
The statute itself embraces this notion of production. It defines “producing” to include “publishing” and “manufacturing.”
Five of the six circuits that have addressed the issue have applied this understanding of production to find that the jurisdictional element is satisfied when someone copies a file оnto a digital medium such as a thumb drive.6 When a person loads an image onto a thumb drive from the internet or another source, that person has created a new copy of the image in the digital memory of the thumb drive. As the Ninth Circuit put it, “[w]hen the file containing the image is copied onto a disk, the original is left intact and a new copy of the image is created, so the process ‘produces’ an image.” United States v. Guagliardo, 278 F.3d 868, 871 (9th Cir. 2002) (per curiam). Contrary to Burdulis‘s contention at oral argument, then, the thumb drive is not merely a “passive receptacle,” such as a frame in which an existing photograph is placed. Rather, it is a tool that produces yet another copy of the photograph.
Burdulis nevertheless maintains that applying the statute in this way would
make it unconstitutional. He says that absent a stronger link to interstate commerce, his conduct sat outside Congress‘s power to regulate. Yet, we have already rejected a nearly identical challenge to a conviction based on the intrastate possession of a photo taken with a camera manufactured out of state. See United States v. Robinson, 137 F.3d 652, 656 (1st Cir. 1998). It would make no sense to then say that the use of a device manufactured abroad to create copies of pornographic material would nevertheless fall outside Congress‘s control. After all, it is the ease of copying with digital devices that now drives the exponential proliferation of child pornography as part of a broad interstate market. See Paroline v. United States, — U.S. —, 134 S. Ct. 1710, 1717, 188 L. Ed. 2d 714 (2014). Congress may act in response to this “substantial influence on ... market conditions.” Gonzales v. Raich, 545 U.S. 1, 19, 125 S. Ct. 2195, 162 L. Ed. 2d 1 (2005). See also National Fed‘n of Indep. Bus. v. Sebelius, — U.S. —, 132 S. Ct. 2566, 2586, 183 L. Ed. 2d 450 (2012) (opinion of Roberts, C.J.) (“Congress‘s power ... extends to activities that [have a substantial effect on interstate commerce] only when aggregated with similar activities of others“). Like our sister circuits that have addressed this issue,7 we reject Burdulis‘s Commerce Clause argument.
IV. The Admissibility of the Inscription
Finally, Burdulis argues that the district court erred by admitting as
Like the district court, we accept for purposes of analysis Burdulis‘s claim that the inscription was hearsay, a statement made outside of court used to prove the truth of the matter asserted.8
ting it will best serve the purposes of these rules and the interests of justice,” along with a fourth requirement not at issue hеre.
Burdulis objected below only on the first prong, arguing that the inscription lacked sufficient indicia of reliability. He now presses that claim on appeal, along with several new arguments that he did not present in the district court. On the reliability issue, we detect no abuse of discretion in the conclusion that the inscription had “circumstantial guarantees of trustworthiness” as required by the rule. The district court rightly considered the fact that inscriptions indicating foreign origin are regulated, see
Burdulis also contends for the first time on appeal that the government failed to give adequate notice before trial as required by
Burdulis faults the notice for failing to inform him that the government would use Rule 807 as a basis for admission, but the rule does not require such procedural information to be part of the notice. Burdulis also complains that the government never provided “contact information for anyone who could be questioned regarding the veracity of the imprint.” We agree with Burdulis that the government fell short under the rule by failing to providе notice to Burdulis that the drive bore the name and mark of SanDisk, a company that manufactures digital devices. The government also should have provided an address for SanDisk.
Nevertheless, Burdulis has failed to show that the admission of the evidence affected his substantial rights and impaired the integrity of the judicial process, as required by our plain error standard. Mardirosian, 602 F.3d at 11. Notably, the drive was taken from Burdulis‘s own home, and Burdulis has never claimed that he was unaware that the drive bore SanDisk‘s name. As for the address, the government correctly points out that SanDisk‘s address could have been “easily ... obtained through a simple online search.” And Burdulis never made any request of the government for information regarding the manufacturer. In these circumstances, where Burdulis had or could easily obtain all of the information he needed to meet the government‘s evidence, and never requested additional information, we find no plain error in admission of the inscription. See United States v. Doe, 860 F.2d 488, 491-92 (1st Cir. 1988) (rejecting a challenge to failure to provide notice under the residual hearsay exception where the defendants did “not appear to have been prejudiced” by the omission); United States v. Brantley, 68 F.3d 1283, 1288-89 (11th Cir. 1995) (finding no prejudice where the government relied on an inscription on the defendant‘s firearm, deeming it “a clear indication of interstate commerce which must have been known by him all along“).
V. Conclusion
For the reasons stated above, we affirm Burdulis‘s conviction.
So ordered.