Todd Hansel entered a conditional guilty plea to a two-count indictment charging him with possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2), and distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(l) and (b)(1). Hansel reserved the right to appeal the district court’s 1 denial of his motion to suppress. Hansel now appeals that issue, arguing that the warrants to search his residence lacked probable cause. Hansel also appeals his sentence, contending that the district court improperly applied a three-level enhancement to his offense level for distribution of child pornography to a minor. We affirm.
I. Background
Law enforcement officers began investigating Hansel after two minor girls alleged that while they were in Hansel’s care, he observed them in the nude, took pictures of them in their swimsuits, and sexually abused them. These allegations led to three state search warrants and a federal search warrant for Hansel’s residence. The first state warrant was sought after local law enforcement interviewed the two girls and their minor brother, who was allegedly physically abused by Hansel. The search warrant sought items referenced by the two girls, including: a Wal-Mart receipt for children’s swimsuits, children’s swimsuits, a man’s white briefs, a Britney Spears movie, sexual devices including a plastic replica of a man’s penis, and children’s bicycles. When law enforcement arrived at Hansel’s residence and presented him with the search warrant, Hansel indicated that the swimsuits were in the master bedroom. Law enforcement began their search in the bedroom and found all of the items on the search warrant except for the Wal-Mart receipt and the white briefs. Continuing the search, law enforcement found eight computer-produced 8x10 photographs of nude prepubescent females in the bedroom closet. Each photograph was imprinted with the date “9/21/99” and an Internet address with the following or similar language: “www.little-virgins.com.” The search also revealed a computer in Hansel’s dining room that was connected to a printer, and a webcam located near the computer. The webcam was pointed at a chair and appeared to be aimed at where
Based upon what was found during the search, officers applied for a second state search warrant. The affidavit in support of the second warrant stated that while conducting the search of Hansel’s residence pursuant to the first state warrant, officers uncovered “eight 8x10 printed pictures of unknown prepubescent white females without any clothing on,” two computers, one of which was “hooked up to a printer,” a 35mm camera, a video camera, several videotapes without labels, and many photographs of the alleged victims in swimsuits. The affidavit also stated that in the affiant’s experience, “the printed pictures indicate receipt of child pornography by means of a computer,” and the camera equipment indicates “a likelihood child pornography may have been produced.” The second warrant authorized the officers to search Hansel’s residence for an assortment of electronic devices, photographs, and videotapes. Thereafter, a third state search warrant was issued authorizing law enforcement to conduct a forensic analysis on the computer and camera equipment seized pursuant to the second warrant.
Subsequently, law enforcement applied for a federal search warrant to search Hansel’s computer equipment for evidence of violations of 18 U.S.C. §§ 2251, 2252, or 2252A. The affidavit stated that officers were investigating Hansel based upon allegations that he had sexually abused minors and that the valid search of his residence pursuant to the first state search warrant revealed hundreds of pictures of the alleged victims and other minor children in swimming suits. The affidavit described the eight 8x10 photographs found in Hansel’s bedroom closet and stated that the color photographs were printed on 8.5 by 11 white paper and that each photograph was imprinted with an Internet address such as “www.little-virgins.com.” The affidavit specifically stated that the photographs did not depict lascivious exhibition of genital or pubic regions. The affidavit described the computer equipment found in Hansel’s residence, including the computer hooked up to a printer, the webcam pointed at the midsection of a chair, and the towels and baby oil next to the computer. The affidavit also discussed in detail why, in the affiant’s experience, all of this information established a fair probability that there was child pornography on Hansel’s computer. Additionally, the affidavit noted that the affiant was not relying on any information actually found on Hansel’s computer after it was seized pursuant to the state search warrants. Following the submission of the affidavit to a United States Magistrate Judge, 2 the federal search warrant was issued.
Evidence obtained pursuant to the federal search warrant revealed that Hansel had used his computer, the Internet, and an online chat session to possess and distribute child pornography. The evidence also indicated that Hansel, while representing himself as a thirteen-year-old female, distributed child pornography to an individual whose username was “becca-jonesl3” and who represented herself to be a thirteen-year-old female.
At the sentencing hearing, the district court found that Hansel distributed child pornography to a minor and applied a five-
II. Motion to Suppress
“We review the district court’s factual findings in support of its denial of a motion to suppress for clear error and its legal determination of probable cause de novo.”
United States v. Solomon,
Hansel argues that the district court erred by denying his motion to suppress the evidence seized from his residence because the second state search warrant and the federal search warrant did not establish probable cause that child pornography would be found on his computer. A search warrant is valid under the Fourth Amendment if it establishes probable cause.
United States v. Caswell,
Regarding the second state search warrant, Hansel argues that the affidavit in support of the warrant was misleading because the statement that the 8x10 photographs “indicate receipt of child pornography by means of a computer” suggested that the photographs themselves constituted child pornography, when in fact the investigating officer testified that they were child erotica, not child pornography. Hansel contends that without this misleading statement, the affidavit did not establish probable cause that Hansel had child pornography on his computer.
A search warrant is void and the fruits of the search must be suppressed if the defendant proves by a preponderance of the evidence that (1) the government knowingly and intentionally, or with reckless disregard for the truth, included a false statement in the affidavit in support of the warrant, and (2) without the false statement, the affidavit does not establish probable cause.
Franks v. Delaware,
Hansel rests his argument that the affidavit did not establish probable cause on the theory that the possession of child erotica, which is not illegal, cannot establish probable cause that the individual also possesses child pornography. Hansel’s argument fails to take into consideration the totality of the circumstances.
See Grant,
Even if we assume that the second state search warrant was invalid, the district court properly concluded that the evidence seized from Hansel’s residence was admissible under the independent source doctrine.
See United States v. Khabeer,
Hansel’s only challenge to the federal search warrant is that the affidavit in support of the warrant did not establish probable cause because, he asserts, possession of child erotica does not establish probable cause that the possessor thereof also possesses child pornography. For the reasons discussed above, and because the affidavit in support of the federal warrant described the circumstances in even greater detail than the affidavit for the second state warrant and did not include any misleading statements about the 8x10 photographs, we conclude that the affidavit established probable cause to search Hansel’s computer equipment for child pornography.
Hansel further contends that there was no nexus between the photographs and his computer because the investigation was instigated by allegations of sexual abuse of minors, the pictures of the alleged victims found in Hansel’s bedroom were photos of the girls in swimsuits and not nude photos, and the alleged victims did not say anything about Hansel’s computer or the web-cam, nor did they accuse Hansel of showing them pornography in any medium.
III. Enhancement for Distribution of Child Pornography to a Minor
A defendant is subject to a five-level enhancement in his offense level if the defendant distributed child pornography to a minor. U.S.S.G. § 2G2.2(b)(3)(C). Distribution to a minor is defined as “the knowing distribution to an individual who is a minor at the time of the offense.” U.S.S.G. § 2G2.2 cmt. n. 1. A “minor” is
(A) an individual who had not attained the age of 18 years; (B) an individual, whether fictitious or not, who a law enforcement officer represented to a participant (i) had not attained the age of 18 years, and (ii) could be provided for the purposes of engaging in sexually explicit conduct; or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.
Id.
The government must prove the facts needed to support a sentencing enhancement by a preponderance of the evidence.
See United States v. Russell,
Hansel accepts the two-level enhancement for distribution of child pornography under U.S.S.G. § 2G2.2(b)(3)(F). He disputes, however, the additional three-level enhancement for distribution to a minor, arguing that the government did not present any evidence that the recipient was actually a minor. The government did not assert that the recipient of the child pornography was an undercover officer posing as a minor. Thus, the issue is whether the district court clearly erred when it found, by a preponderance of the evidence, that the recipient was a minor. The transcript of the online chat session in which the child pornography was transferred reveals that the recipient’s user-name was “beccajonesl3” and the recipient represented herself to be a thirteen-year-old female. Although it is possible that the recipient misrepresented her age, just as Hansel did, there was evidence before the district court to support the finding that the recipient was a minor and we are not convinced that the district court made a mistake in so finding. Thus, the district court did not clearly err by enhancing Hansel’s offense level for distribution of child pornography to a minor.
The judgment is affirmed.
Notes
. The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa.
. The Honorable John A. Jarvey, then Chief Magistrate Judge for the United States District Court for the Northern District of Iowa, now United States District Judge for the Southern District of Iowa.
. The district court found that the possession of child erotica, such as photographs of nude children that do not constitute child pornography, "might not alone be sufficient to provide probable cause to believe that Defendant possessed child pornography."
United States v. Hansel,
No. 06-CR-102-LRR,