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United States v. Loren Samuel Williamson
Citations: 439 F.3d 1125; 2006 U.S. App. LEXIS 6047; 2006 WL 590359Docket: 05-30150
Court: Court of Appeals for the Ninth Circuit; March 13, 2006; Federal Appellate Court
Federal agents and local police seized a home computer and related equipment from Loren Samuel Williamson in connection with the international transmission of child pornography. The investigation began in June 2000 when Croatian police discovered 19 child pornographic images posted online and traced them to a computer in Roseburg, Oregon, notifying the FBI. FBI Agent Victor Nielsen submitted an affidavit for a search warrant, asserting probable cause based on his review of the images, which he determined depicted minors engaged in sexually explicit conduct as defined under 18 U.S.C. 2256 and 2252, part of the Child Pornography Prevention Act of 1996. The search warrant sought a broad range of property, specifically targeting items related to the visual depiction of child pornography and child erotica. It included provisions for seizing computers, hardware, software, correspondence, and various materials associated with the possession, distribution, or receipt of such images. The affidavit highlighted that all 19 photographs involved minors under 18 years old, showcasing them in states of sexual arousal and various sexual acts. The documentation from trained agents confirmed that the majority of these images depicted minors in actual or simulated sexual conduct. A "minor" is defined as any person under eighteen years old according to 18 U.S.C. 2256(1). In 2001, "child pornography" was defined to include any visual depiction of sexually explicit conduct involving a minor, with specific criteria detailing the involvement or appearance of a minor. Subsections (B) and (D) of this definition were deemed unconstitutionally overbroad in prior cases (Free Speech Coalition v. Reno, 198 F.3d 1083; Ashcroft v. Free Speech Coalition, 535 U.S. 234). On July 5, 2001, FBI agents executed a search warrant at the residence of 50-year-old Williamson and his mother. Four FBI agents, led by Agent Nielsen, and two local police officers were present. Agent Nielsen first showed the warrant's face page to Williamson's mother and then retrieved Williamson from his residence. He informed both parties of the search's purpose, specifically looking for child pornography. Although he had a copy of the warrant, he did not provide it to them, nor did they request it. As the search proceeded, two agents searched Williamson's room while Nielsen conversed with him and his mother. Williamson's father arrived during the search and was uncooperative, requesting a copy of the warrant, to which an agent responded that it would be provided along with a receipt for seized items. After the search, agents provided a copy of the warrant and a receipt listing the seized items, which included 19 photographs sent to Croatia, computer equipment, a digital camera, editing software, hard drives, CD-ROMs, Zip disks, and numerous pornographic photographs. Agents found thousands of additional child pornographic images on the seized digital media. Williamson acknowledged that the government could prove the existence of 19 photographs depicting actual minors engaged in sexually explicit conduct. He also accepted that FBI agents found thousands of visual depictions of child pornography, including images of minors under 18. Agent Nielsen, who executed the search warrant, admitted to being unaware of the requirement to provide a copy of the warrant at the start of the search, which the government conceded was an error. Nielsen stated that it was standard protocol to leave a copy of the warrant at the end of the search, which he intended to do. The district court denied Williamson's motion to suppress the evidence, finding no deliberate disregard for Federal Rule of Criminal Procedure 41(d), which aims to inform individuals of what is being seized and affirm law enforcement's authority. Citing United States v. Gantt, the court concluded that suppressing the evidence would prioritize form over substance and would not serve the rule's purpose. On June 17, 2003, Williamson was convicted in a stipulated facts trial, and on March 8, 2005, he was sentenced to the maximum of 180 months in prison. The court calculated his final Guideline sentence with an offense level of 34, incorporating various factors including the use of a computer and a pattern of sexual abuse. Testimonies from family members highlighted Williamson's history of sexual abuse, including the molestation and photographic exploitation of his granddaughter. During sentencing, the district court deemed 180 months as the only reasonable sentence given the circumstances. Williamson subsequently appealed his conviction and sentence, arguing that the agents' execution of the search warrant violated Rule 41(d) and that the evidence should have been suppressed. In Gantt, the court examined Rule 41(d) regarding the execution of search warrants, highlighting a situation where law enforcement failed to present the warrant to Gantt upon entering her residence. The agents conducted a three-hour search without showing Gantt the warrant until she requested to see it, at which point they only displayed the face of the warrant, omitting the list of items to be seized. After the search, they left a copy of the warrant behind but arrested Gantt before she could review it fully, showing her the complete warrant only later at the FBI office. The court emphasized that the purpose of a warrant is to inform the individual of the officers' lawful authority and the scope of the search. It concluded that, absent exigent circumstances, Rule 41(d) mandates the warrant's service at the beginning of the search for those present. The district court's finding of no Rule 41(d) violation was deemed erroneous, as the legal precedent set by Gantt takes precedence over the officers' reasonable execution of the search. Consequently, the search was determined to have violated Rule 41(d), leading Williamson to seek suppression of the seized evidence. However, the court noted that suppression is not typically warranted for Rule 41 violations unless the violation is "fundamental," which would effectively render the search unconstitutional under Fourth Amendment standards. The court outlined three specific circumstances that would necessitate suppression: 1) the violation amounts to a constitutional infringement; 2) the defendant suffered prejudice that would have altered the search outcome; or 3) officers acted with intentional disregard for the Rule. Williamson does not argue that the violation of Rule 41 rises to a constitutional level, categorizing it instead as a "mere technical error." Suppression of evidence is warranted only if there is demonstrated prejudice to Williamson or if the violation was intentional. He concedes there was no prejudice, as the search would have occurred regardless of adherence to the Rule. Williamson claims Agent Nielsen acted with "intentional and deliberate disregard" for the Rule by failing to provide a copy of the search warrant before the search began. During the hearing, Agent Nielsen acknowledged that his failure was "intentional" but not "deliberate." The parties dispute whether Nielsen's actions were volitional; Williamson asserts they were, while the government contends they stemmed from a misunderstanding of the law. Citing precedent, the court notes that a violation of Rule 41 is not considered deliberate or prejudicial if the executing agent is unaware of the requirement and acts in good faith. The court has previously held that "deliberate and intentional disregard" implies bad faith, necessitating evidence of such to invoke the exclusionary rule. In this case, the court finds that Agent Nielsen acted in good faith, Williamson suffered no prejudice, and the error was not constitutionally significant, leading to the proper denial of the suppression motion. Williamson challenges the validity of the search warrant on two main grounds. First, he claims the warrant lacked probable cause because the supporting Affidavit did not clarify whether the 19 pornographic images were legal or illegal under 18 U.S.C. 2256(8), specifically whether they fell within the valid subsections (A) and (C) or the unconstitutional subsections (B) and (D). Second, he argues that even if probable cause existed, the warrant was overly broad, failing to differentiate between prohibited child pornography and constitutionally protected "virtual child pornography." Williamson asserts that the Affidavit did not provide enough information for the magistrate to determine if the images sought were legally valid. The document references the ruling in Free Speech Coalition, which asserts that while possession of sexually explicit materials involving minors is illegal, possession of "virtual child pornography" is constitutionally protected if it does not depict actual minors. The case of United States v. Hay is also cited, where the court rejected an overbreadth challenge by affirming that the definition of "child pornography" must involve actual minors. The Affidavit indicated that all 19 images depicted unclothed minors engaged in sexual acts, thus aligning with the definitions upheld in Hay. The Affidavit’s language specifically excluded virtual child pornography, focusing solely on materials that remain illegal post-Free Speech Coalition. The Supreme Court has determined that the standard for seizing materials potentially implicating the First Amendment is the same as for general warrant applications, requiring only a "practical, common-sense decision" indicating a "fair probability" of finding actual child pornography. The court concludes that the Affidavit adequately established probable cause, specifically targeting materials that do not have constitutional protection. Williamson contends that the search warrant was overbroad, failing to differentiate between prohibited virtual child pornography and constitutionally protected materials. However, the warrant specifically limited the seizure to "visual depictions of minors engaged in sexually explicit conduct" as defined by 18 U.S.C. § 2256, which classifies "minors" as individuals under eighteen. The search warrant's Attachment B referenced "minors" multiple times, ensuring that only illegal materials were targeted, in line with legal standards established in Free Speech Coalition and the definition used in the case of Hay. Williamson further argues that the district court made three errors in sentencing: a discrepancy between oral and written sentencing, improper use of "expanded relevant conduct" under the 1998 Guidelines, and an overall unreasonable sentence. Charged under 18 U.S.C. § 2252A(a)(1), the applicable Guideline is U.S.S.G. § 2G2.2, with the 1998 Guidelines being relevant. The district court found sentencing enhancements supported beyond a reasonable doubt. Although the Sentencing Guidelines are advisory rather than mandatory, courts must still consider the correct Guidelines range when sentencing, as outlined in United States v. Menyweather. Williamson claims a "clear error and disparity" in the sentencing process but fails to provide legal authority or specific arguments to support his assertion, which results in the abandonment of this claim. Citing Leer v. Murphy, the court notes that issues lacking substantial argumentation are deemed waived. Additionally, Williamson argues that the district court improperly factored in "uncharged and adjudicated behavior" when determining his sentence. Nonetheless, the court asserts that any errors related to the Guideline range or authority to deviate from it could hinder proper sentencing. Therefore, the reasonableness of the sentence hinges on the proper application of the Guidelines by the district court. A sentencing judge may consider "uncharged and unadjudicated" conduct as "relevant conduct" under U.S.S.G. 1B1.3(a)(1) for sentencing, which includes only acts occurring during the offense's commission. In contrast, "expanded relevant conduct" under 1B1.3(a)(2) pertains to conduct that is part of the same scheme or plan as the offense. Guideline 3D1.2(d) specifies groupable offenses but does not include 2G2.2, which means the narrower category applies, limiting relevant conduct to acts committed during the offense of conviction. Williamson was sentenced under 2G2.2 for trafficking in materials involving sexual exploitation of minors. The district court could only consider the 19 images sent to Croatia for sentencing purposes, despite Williamson's argument that images of prepubescent minors and the pattern of sexual abuse of his granddaughter should be classified as "expanded relevant conduct," which the 1998 Guidelines prohibit from consideration. The district court enhanced Williamson's sentence based on the inclusion of images of prepubescent minors. The enhancement was justified by the fact that the relevant conduct constituted the pictures associated with the offense, specifically those transmitted to Croatia. The Pre-Sentence Report indicated that Williamson posted images depicting prepubescent minors in sexually explicit contexts, and the district court confirmed these images were relevant for enhancement. Regarding Williamson's claim that the enhancement for a pattern of sexual abuse was improper, U.S.S.G. 1B1.3 limits relevant conduct to actions during the offense's commission. Guideline 2G2.2(b)(4) application note 1 clarifies that a "pattern of activity" includes any combination of separate instances of sexual abuse or exploitation by the defendant, regardless of whether they occurred during the offense. U.S.S.G. 2G2.2, cmt. n. 1 (1998) allows for the consideration of expanded relevant conduct under 1B1.3(a)(2) to enhance sentences under 2G2.2(b)(4). This interpretation aligns with the Eighth and Eleventh Circuits' rulings, confirming that the enhancement can apply to conduct unrelated to the conviction offense, regardless of when the abuse occurred. The five-level enhancement under 2G2.2(b)(4) was deemed appropriate, as was the further enhancement under Application Note 2 for the seriousness of the violation. Williamson argued that his sentence was unreasonable because a judge, not a jury, determined the facts that led to the increase; he contended the sentence should be 37 months instead of 15 years. However, this argument is countered by the precedent set in Booker, which permits judges to find additional facts as long as the Guidelines are treated as advisory. The judge did not make these findings under a mandatory regime, thus no Sixth Amendment violation occurred. Williamson also claimed his sentence was unreasonable under 18 U.S.C. 3553(a), but the district court adequately considered various factors, including the nature of the offense and the seriousness of Williamson's actions, which involved abusing his granddaughter, creating child pornography, and showing no remorse. A psychiatric evaluation indicated he posed a continuing high risk to the community. The court concluded that the maximum sentence was necessary to serve the purposes of 3553, and similar sentences have been upheld in comparable cases. Thus, the district court's sentencing decision was affirmed. Two types of child pornography are identified: "actual" child pornography, which features real minors in sexual acts and is not constitutionally protected, and "virtual" child pornography, which depicts individuals resembling minors but are not, and is constitutionally protected. Following Williamson's sentencing hearing, the Supreme Court issued the Blakely decision, leading the district court to postpone sentencing pending the outcome of United States v. Booker, after which the Sentencing Guidelines were treated as advisory. The district court's denial of a motion to exclude evidence is subject to de novo review, while factual findings are reviewed for clear error. The government argues that post-Gantt decisions raise doubts about the validity of Gantt. In Groh v. Ramirez, the Supreme Court indicated that serving a warrant on the property owner before a search is not a requirement under the Fourth Amendment or federal rules. However, the Ninth Circuit in United States v. Mann acknowledged Groh's implications but maintained that Gantt's holding was not definitively overruled. In the case at hand, Williamson did not claim prejudice from the warrant's execution. The agents conducted the search properly, introducing themselves, displaying identification and the warrant, discussing the search's purpose, and allowing Williamson to review the seized items. This contrasts with Gantt, where the suspect was denied access and information about the search. Although Smith involved a warrant served prior to Gantt, Gantt did not establish new law, and the agent's lack of awareness of Gantt does not equate to a violation of the rule. The government’s interpretation of "deliberate" is further supported by additional considerations. One cannot be said to "deliberately disregard" a rule if unaware of it, countering Williamson's assertion. If "deliberate and intentional disregard" encompasses innocent mistakes, then any volitional act could justify suppression, undermining the doctrine of technical errors and the principle that suppression is generally not appropriate for Rule 41 violations. Probable cause is assessed de novo, while factual findings are reviewed for clear error. The standard for probable cause is a practical, nontechnical assessment based on everyday life considerations. The affidavit in question explicitly sought actual child pornography; there is no indication it was seeking virtual child pornography. Williamson conceded the government could demonstrate the images involved actual children. Even if the affidavit did not specify "minors," it would still suffice to establish probable cause. The First Circuit has previously determined that a search warrant need not differentiate between actual and virtual child pornography as long as there is probable cause to expect actual children’s depictions would be found. Additional restrictions govern the seizure of obscene materials, requiring a magistrate to thoroughly evaluate obscenity in large-scale seizures, necessitating a prompt post-seizure judicial determination. However, these restrictions are inapplicable here since the seizure does not constitute a prior restraint and involves illegal materials, not merely allegedly obscene content. Comparisons to cases involving materials presumptively protected by the First Amendment, such as Lee Art Theatre, are irrelevant because actual child pornography lacks such protection. The court found that the instructions in United States v. Ellyson were unconstitutional due to overbreadth, as they included "appears to be" language that was impermissibly broad. However, this issue was not present in the current case. Sentences under the Sentencing Reform Act, after the Booker decision, are evaluated for reasonableness, and the interpretation and application of the Guidelines are reviewed de novo, while factual findings during sentencing are assessed for clear error. Williamson contended a due process and ex post facto violation due to being sentenced retroactively under Booker, despite his crime being committed and conviction occurring under prior cases, Apprendi and Blakely. The court referenced United States v. Dupas, which established that "fair warning" is essential for retroactivity under the Due Process Clause. As Williamson could have accessed the U.S. Code at the time of his crime and was aware of the 15-year statutory maximum, he had the necessary fair warning, negating any claims of due process or ex post facto violations. The district court must apply the Guidelines in effect at the time of sentencing unless it raises ex post facto concerns. Williamson's challenge to the enhancement under subsection (b)(4) implicitly includes a related four-level enhancement, though he does not contest the enhancement under 5K2.0, which was based on his possession of numerous images of minors in sexually explicit conduct and a psychiatric evaluation indicating a high risk to the community. The case of United States v. Kemmish identified that enhancement under 2G2.2(b)(4) requires a more direct involvement in child exploitation beyond merely trafficking in child pornography. Kemmish did not resolve whether Application Note 1 permits consideration of broader conduct related to the offense of conviction, which was addressed by the Sentencing Commission in 1996 following circuit court decisions that insisted on relevance to the offense committed.