Lead Opinion
On thе spring afternoon of June 13, 2001, thirty-eight-year-old Kenneth J. Ra-ney pulled his gray station wagon into the parking lot of a McDonald’s restaurant in Forest Park, Illinois. He parked the car, walked inside the restaurant to a pay phone, and called a fourteen-year-old girl named “Dena” to tell her that he was there, waiting for her. He and Dena had been exchanging e-mails for the past three months at an Internet chatroom entitled, in relevant part, “I LOVE OLDER MEN.” Raney believed that Dena was a young virgin, who wanted to have sex with him and was willing to let him take photographs of the acts.
Fortunately, Dena was only a figment of Raney’s imagination, conjured up by Cоok County (Illinois) deputy sheriff William Plahm, who had played the role of Dena during the three-month Internet exchange, and deputy sheriff Janet Montecelo, who had posed as Dena in some photographs that Officer Plahm had e-mailed to Raney and who on occasion had answered Ra-ney’s telephone calls to Dena.
Raney and Dena had begun chatting on April 24, 2001. Officer Plahm, identifying himself by the username “ilgirl4u” entered the “I LOVE OLDER MEN” chatroom and was immediately contacted by Raney, who, employing the username “masterice-man,” requested a private communication. During this first chat, Raney claimed to be “Ken,” a thirty-eight-year-old man from sоuthern Wisconsin. After learning that the user “ilgirl4u” was claiming to be “Dena, a fourteen-year-old-girl from Forest Park, Illinois,” Raney asked her, “What do you like to do with older men?” When Dena replied that she was a virgin, Raney offered to teach her personally about sexual intercourse and oral sex. To preempt any concerns she might have about pregnancy, he informed Dena, “I’m surgically safe ... have a vacectamy [sic].” (Tr. at 46.)
Over the next several months, Raney tried to convince Dena to meet with him to have sexual intercourse and perform fellatio on him. He sent Dena nude pictures of himself. Officer Plahm, in turn, sent Ra-ney pictures оf Officer Montecelo, clothed, posing as Dena. Receipt of these pictures prompted Raney to inquire, “You have any not covering yourself up?” (Tr. at 60.) Officer Plahm also gave Raney an undercover telephone number to contact Dena to arrange for a meeting. When he called, Officer Montecelo answered and she agreed to meet Raney at the McDonald’s parking lot on April 28, 2001. Dena later e-mailed Raney to postpone that meeting.
A number of the communications between Raney and Dena discussed Raney’s desire to take sexually explicit photographs of her. When discussing thе prospect of engaging in sexual intercourse and oral sex with her, Raney asked Dena, “you want me to take some pics of you when we are doing it?” He told her he’d “like to
Over e-mail on June 7 and 11, 2001, Raney and Dena made plans to meet on June 13 at the McDonald’s in Forest Park. Dena asked Raney whether he planned on bringing his camera with him to their meeting. Raney initially declined but then relented, saying “good, take some nudes then to [sic]” and “good, take a pic of you sucking me to [sic] and when I fuck you you’ll have a pic to see that, how many girls can say that.” (Tr. at 104.) Raney and Dena had two additional on-line communications regarding their planned June 13 meeting.
That morning, Raney and Dena e-mailed each other one last time before their scheduled rendezvous. Raney asked Dena if she still wanted him to bring his camera. Dena replied, “If you want to, sure,” to which Raney said, “I have to stop and get some film.” (Tr. at 111.)
When Raney placed the call at McDonald’s, it was Officer Montecelo who answered and told him that she, Dena, was on her way. Raney then returned to his car in the parking lot to wait for Dena. A short time later, Officer Montecelo walked up to Raney’s car. When Raney suggested that she get in the car with him, Monte-celo idеntified herself as a police officer and other officers lying in wait converged upon the car to arrest Raney.
After his arrest, Raney signed written consent forms authorizing agents to search his car, residence, computer, and on-line computer accounts for materials “in the nature of’ child abuse, child exploitation, and child erotica. From his station wagon, police recovered a pair of swim trunks, a condom, sexual lubricant, a camera loaded with film, and an empty Kodak film box.
From his residence in Janesville, Wisconsin, police discovered and seized a large stack of photographs, which included рhotos of homemade amateur pornography depicting a naked Raney engaging in sex acts (sexual intercourse and oral sex) with an adult female. That female was later identified as Raney’s ex-wife. Also in the stack were photos of clothed children, later identified as Raney’s sons.
Police confiscated Raney’s computer. Postal Inspector Ronald Redus would later conduct a forensic analysis of its hard drive, which would reveal numerous images of child pornography as well as a scanned naked photo of Raney, which he had e-mailed to Dena, several additional pieces of Raney’s homemade pornography, and the photographs of Officer Montecelo, which Raney had believed to be of Dena.
Back at the scene of his arrest, Raney was advised of his constitutional rights. He signed a written Miranda waiver and agreed to discuss his case. The police then showed Raney copies of all the on-line communications between Raney and Dena that they had monitored.
Raney acknowledged to his arresting officers that he participated in these on-line communications as “mastericeman.” Ra-ney stated that in April 2001, he began corresponding with a person he believed to be a fourteen-yeаr-old girl named Dena. He stated that he talked explicitly with Dena about meeting her and the possibility of the two having sex. He further admitted that he had traveled that day from Janesville, Wisconsin to Forest Park, Illinois in order to meet with Dena. He claimed, however, that his purpose in meeting her was to talk her out of having sex with him. He nonetheless admitted that had his efforts at persuasion proven unsuccessful, he might have succumbed to temptation. He also admitted to possessing four or five “father-daughter video clips,” which he had obtained over the Internet.
At trial, Officers Plahm and Montecelo and Inspector Redus testified regarding their knowledge of Raney’s ermail and telephone communications with Dena and the materials recovered from his computer’s hard drive. The government introduced into evidence all the on-line communications between Raney and Dena, including the photographs that the two had exchanged. It also introduced the evidence found in Raney’s car, which included the camera, film, empty film box, condom and sexuаl lubricant.
From the results of Inspector Redus’s forensic analysis of Raney’s computer, the government introduced into evidence six images of child pornography, which depicted young girls engaged in sexual intercourse or oral sex with adult males. The government further introduced into evidence the stack of photographs found at Raney’s house. The jury viewed four of the pieces of homemade adult pornography depicting Raney engaged in sexual intercourse and oral sex with his ex-wife.
Raney testified in his own defense and denied having the intent either to have sex with Dena when he traveled to Illinois or to take sexually expliсit photographs of her once he arrived. He admitted that he had been communicating with Dena (and several other underage girls for that matter) in a sexually explicit manner in order to arouse himself sexually so that he could masturbate. And Raney said that he had traveled to Illinois on June 13 for the purpose of meeting Dena, but added, consistent with his post-arrest statement, that his true intentions were to dissuade her from having sex with him. He also stated that he was going to buy and sell some baseball cards in Illinois.
When confronted on cross-examination with the evidence that police had recov-éred a condom and sexual lubricant from his cаr, Raney testified that he had those items with him because he was supposed to meet an adult male named “Nathan” later that day in Elgin, Illinois. He admitted that he had never before mentioned Nathan to anyone, including his lawyer.
On the question of his intent to manufacture child pornography, Raney admitted that he had told Dena that he was going to take photos of her performing fellatio on him and of the two of them engaging in intercourse. He also admitted that he had loaded his camera with a new roll of film and had brought it with him to his meeting with Dena. He claimed, however, that in spite of his previous e-mail statements, he brought along the camera and film оnly to take pictures of his day with Dena and not for the purpose of taking sexually explicit photographs of her. Raney also admitted to having been in possession of child pornography, which he had downloaded from the Internet to his computer. He also admitted to having taken the homemade
The jury found Raney guilty on both counts of the indictment. The district court sentenced Raney to 145 months imprisonment.
Raney appeals his conviction arguing (1) that the seizure of homemade adult pornography from his home exceeded the scope of his сonsent search; (2) that he was denied effective assistance of counsel when his trial attorney failed to move to suppress the homemade adult pornography; (3) that the district court erred in allowing the government to introduce the homemade adult pornography into evidence; and (4) that his indictment for attempting to manufacture child pornography was defective.
ANALYSIS
Before trial Raney filed a motion to suppress his post-arrest statements and all the evidence seized from his car and house, arguing they were obtained as fruits of an arrest unsupported by probable cause. The motion was denied. The motion did not raise the particular argument that Raney asserts here — that the seizure of the particular items of homemade adult pornography was outside the scope of his consent. Raney has thus failed timely to raise a specific objection and by doing so has forfeited his argument. Consequently, our review is for plain error only. United States v. Harris,
We do not think it plain that the homemade adult pornography seized from Ra-ney’s apartment should have been suppressed. Raney notes that his possession of the adult pornography was perfectly legal and argues that the adult pornography seized from his home had no nexus to child abuse, child exploitation, or child erotica. Because Raney consented only to a search for evidence in the nature of child abuse, child exploitation, and child erotica, Raney argues that the four photographs depicting himself and his ex-wife in various stages of undress and participating in oral sex and sexual intercourse should have been suppressed as exceeding the scope of his consent.
We have stated that “[t]he scope of a consent search is limited by the breadth of actual consent, and whether the search remained within the boundaries of the consent is a question of fact to be determined from the totality of all the circumstances.” United States v. Torres,
We have long recognized that “[gjovernment agents may not obtain consent to search on the representation that they intend to look only for certain specified items and subsequently use that consent as a license to conduct a general exploratory search.” United States v. Dichiarinte,
Likewise, in United States v. Carey,
From these cases and others like them, see, e.g., United States v. Turner,
Instead, it is the homemade nature of the photos and the particular sex acts depicted therein in combination with Raney’s clearly stated intention to make homemade child pornography with Dena depicting those very same acts that the government argues places the items within the scope of a search for materials “in the nature of’ child abuse, child erotica, and child exploitation. In several of his computer communications with Dena just before his arrest, Raney stated his intention to take photographs of Dena and him engaging in sexual intercourse and oral sex. For example, just two days before his arrest, Raney sent Dena an e-mail in which he stated that he was going to bring his camera with him in order to “take some nudes then to [sic]” and “take a pic of you sucking me to [sic] and when I fuck you you’ll have a pic to see that.” ■ (Tr. 104.) This communication fell on the heels of another in which Raney stated that he would “like to take some of you nude and sucking me.” (Tr. 100.) And the day of his arrest, Raney had told Dena he would need to make a stop before their scheduled meeting to pick up some film for his camera. It was in fight of these on-line communications as well as the discovery of the camera, empty box of film, condom, and sexual lubricant in his car that the agents conducting the search found the homemade adult pornography depicting Raney engaging in oral sex and sexual intercourse. Under these circumstances, it was not plainly erroneous reasonably to con
Besides paying little heed to the particular circumstances of his case, Raney’s argument also ignores the breadth of the language of the consent form he signed. He consented to a search for “materials which are evidence in the nature of’ child abuse, child erotica, or child exploitation. The use of the “in the nature of’ phrase broadens the scope of the search beyond that necessary for the retrieval of only the specific items listed in the form.
Raney’s rebanee upon cases such as Dichiarinte, Carey, and Turner is therefore misplaced. For example, had the agents in Dichiarinte obtained consent to search for evidence “in the nature of’ narcotics, the search would have been broad enough to include thе seizure of drug paraphernalia, scales, and even drug ledgers; such language also would have enabled the agents to read the defendant’s private papers and seize them if they discovered some link to narcotics. Restated, we agree with the government when it argues that the situation in Dichiarinte would be analogous to Raney’s case assuming the following additional hypothetical circumstances: (1) the agents had received information from the defendant that he sold illegal narcotics in old prescription bottles; (2) the defendant gave the agents consent to search his residence for “evidence in the nature of illegal narcotics,” rather than simply narcotics themselves; and (3) during the search of defendant’s home the agents came across prescription bottles containing legaby prescribed narcotics. Under these hypothetical circumstances, the consent given would include the seizure of those prescription bottles, even if they were legal for the defendant to possess, because they pertain to the manner in which the defendant distributed the narcotics and would thus be evidence “in the nature of’ narcotics.
Likewise, the homemade adult pornography seized here, although legal for Ra-ney to have madе and possessed, reasonably could be construed to be evidence “in the nature of’ child abuse, child erotica, or child exploitation given the broad nature of the consent given and in light of Raney’s communications regarding his intent to manufacture child pornography depicting the same sexual acts with Dena.
Unlike the cases upon which Raney re-bes, where law enforcement officers seized items wholly unrelated to the stated purpose of the search and the charges under investigation (and thus outside of any objectively reasonable construction of the defendant’s consent), the agent’s seizure of the homemade adult pornography in this case was related to the issue of Ra-ney’s intent to abuse and exploit a minor sexually. Based on the totality of these circumstances, including most prominently Raney’s stated intention to manufacture pornography depicting himself engaging in sexual intercourse and oral sex with a minor, we find that a reasonable person would have construed Raney’s consent to search his home for evidence “in the nature of’ child erotica broadly enough to justify the seizure of evidence that showed Raney’s ability and intent to manufacture pornography depicting himself engaging in those sexual acts. We thus find no plain error in the district court’s failure to suppress this evidence.
Further, even if the agents were operating outside the scope of Raney’s consent when they seized the photographs, the agents would have properly seized the material under the plain-view doctrine, which abows for seizure of material if (1) a
Here, the agents were properly in Raney’s residence executing a consensual search of the complete premises when they discovered the photographs in plain view. The agents had probable cause to believe the adult pornography depicted was linked to criminal activity given its homemade nature, the particular acts depicted, and Raney’s stated intention to photograph Dena engaging in those same acts; thus, the plain-view doctrine applies.
That the items themselves were perfectly lawful for Raney to have possessed does not bar the apрlication of the doctrine. See, e.g., Bruce,
In fact, in each of the cases relied upon by Rаney, the deciding courts recognized the potential application of the plain-view doctrine. In Dichiarinte, we held the plain-view doctrine did not apply because the criminal character of the documents was not apparent during a surface inspection; the documents had to be opened and read.
Finally, even if we were to assume arguendo that the seizure of the homemade adult pornography was outside the scope of consent and that the incriminating nature of the items was not so readily apparent as to fall within the plain-view doctrine’s reach, Raney would still be unable to satisfy his burden under the plain-error standard because he could not show that the introduction of the evidence at his trial affected substantial rights and seriously undermined the fairness, integrity, or public reputation of the judicial proceedings. United States v. Ramirez,
We will not belabor the obvious conclusion that Raney’s remaining challenges regarding the introduction of this evidence at trial must also fail. Given our observation that the homemade nature of the photos and the particular acts depicted therein were probative of Raney’s intent to photograph himself engaging in those same acts with Dena, we don’t think his attorney erred in failing to move to suppress them (for, given our analysis, his challenge likely would have failed) nor that the district court erred by admitting them for the limited purpose of showing intent. Accord United States v. Esch,
We can dispense with Raney’s final argument — that he can’t be convicted under an indictment that charged him with attempting to manufacture child pornography in violation of § 2251 — with similar brevity. Section 2251 reаds as follows:
(a) Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in ... any sexually explicit conduct for the purpose of producing any visual depiction of such conduct, shall be punished as provided under subsection (e), if [defendant’s conduct satisfies the statute’s jurisdictional interstate-commerce element]
(e) Any individual who violates, or attempts or conspires to violate, this section shall be fined under this title and imprisoned not less than 15 years nor more than 30 years....
18 U.S.C. § 2251 (2003) (emphasis added). Under the plain reading of § 2251, it is a violation of the statute to manufacture child pornography, to conspire to manufacture child pornography, or tо attempt to manufacture child pornography. Id. Ra-ney tries to parse the statute by arguing that the “charging” language of subsection (a) and the “punishment” language of subsection (e) should be treated as separate offenses. Because the word “attempt” does not appear in subsection (a), Raney argues that it is not a violation of the
Other courts that have had occasion to construe § 2251 have concluded that it plainly proscribes not only the manufacture of child pornоgraphy, but also the inchoate crimes of attempt and conspiracy. See United States v. Crow,
CONCLUSION
Because we find the homemade adult pornography within the scope of the consent search and probative of Raney’s intent to manufacture homemade child pornography, we find no Fourth Amendment violation nor error in allowing the material to be introduced into evidence at trial. But even if we had found error, it would have been harmless given the overwhelming evidence implicating Raney’s guilt. And because 18 U.S.C. § 2251 clearly proscribes attempts to manufacture child pornography, Raney’s argument that the second count of the indictment was defective is wholly without merit. We, therefore, Affirm.
Notes
. Raney’s indictment charged him with violating § 2251(a) & (d), but while this appeal was pending, Congress amended the statute by adding a new subsection (c), which prohibits the extraterritorial production of child pornography for distribution in the United States. Subsection (d) was changed — without alteration material to any of the arguments Raney asserts here — to subsection (e), and the statute’s internal references were modified accordingly. See PROTECT Act § 10, S. Res. 151, 108th Cong. (2003) (enacted). In this opinion, we will therefore address Raney’s challenges with reference to the current version of § 2251.
Concurrence Opinion
concurring in the judgment.
I do not agree that the evidence was properly seized as evidence “in the nature of’ child abuse or as evidence of an incriminating nature under the plain view doctrine. The photographs at issue were lawful photographs of consenting adults and have no relationship to child abuse. In addition, there is no reason to believe that those lawful photographs of adults were “linked to criminal activity.” Although the evidence may well have been admissible at trial if properly seized, аs relevant to his claim that he had no intent to take explicit photographs, that is not the same question as whether it is “in the nature of’ child abuse for purposes of the initial seizure, or as whether it is of “an incriminating nature that is immediately apparent” for the plain view doctrine.
Although I disagree with the majority on those points, I agree that the admission of the evidence does not constitute reversible error. Raney cannot demonstrate the failure to suppress the photographs constitutes plain error because he cannot establish that it affected his substantial rights, or prejudiced him. Raney stated in his emails his intention to tаke pictures of the