United States v. Burdulis , 753 F.3d 255 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 12-1896
UNITED STATES,
Appellee,
v.
PAUL V. BURDULIS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor IV, U.S. District Judge]
Before
Thompson, Circuit Judge,
Souter, Associate Justice,*
Kayatta, Circuit Judge.
Judith H. Mizner, Assistant Federal Public Defender, for
appellant.
Elana Nightingale Dawson, with whom Carmen M. Ortiz,
United States Attorney, was on brief, for appellee.
May 23, 2014
*
Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
KAYATTA, Circuit Judge. Paul Burdulis was convicted of
possessing child pornography in violation of 18 U.S.C.
§ 2252(a)(4)(B) after the police found such pornography on a thumb
drive (a kind of data storage device) in his home. To show that
the pornography was "produced using materials which have been . . .
shipped or transported" in interstate commerce, as required by the
statute, the prosecution relied solely on an inscription on the
thumb drive stating, "Made in China." We agree with the district
court that copying pornography onto a thumb drive is "produc[ing]"
pornography under the statute, and we reject Burdulis's challenge
to the admission of the drive's inscription. We also reject
Burdulis's claim that our interpretation of the law puts it beyond
Congress's authority to regulate interstate commerce. After
discussing these issues, along with Burdulis's objections to the
warrant used to search the thumb drive, we affirm his conviction in
all respects.
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
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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?";
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• “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, Mass. Gen. Laws ch. 265,
§ 26C, and dissemination of matter harmful to minors, Mass. Gen.
Laws ch. 272, § 28. The warrant granted authorization to seize all
digital devices in Burdulis's home, and to search them for any
information linking Burdulis to the emails and for any "information
regarding the creation and maintaining [of] pornographic material.”
The police took several digital devices from Burdulis's
home, including a thumb drive. When an officer viewed a gallery of
images on the thumb drive, he saw several images of child
pornography. Burdulis does not dispute on appeal that the thumb
1
The police received two subsequent warrants in this case,
but the government relies only on the first warrant, issued on May
12, 2009, to justify its searches on this appeal.
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drive contained child pornography or that it belonged to him.
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).
2
The court initially granted Burdulis's motion in part but
later amended its order to reject the motion entirely.
3
The government contends that Burdulis forfeited parts of
his Fourth Amendment argument below. Because we find that
Burdulis's challenges fail on their merits, we need not decide
whether they were forfeited.
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Burdulis's emails 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 a child under 16 and the prohibition on indecent assault and
battery on a child under 14. Mass. Gen. Laws ch. 265, §§ 26C, 13B,
ch 272, § 35A. In context, the emails we have described above
could self-evidently be viewed as constituting enticement.
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." Mass. Gen. Laws ch. 272, § 31. The statute prohibits
purposeful dissemination of material that the distributor knows is
harmful to minors to someone the distributor believes to be a
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minor. Mass. Gen. Laws ch. 272, § 28. The Massachusetts Supreme
Judicial Court has held that an image displaying a man's genitals,
even if not obscene, could be found by a jury to be matter harmful
to minors depending on the surrounding circumstances. See
Commonwealth v. Kereakoglow, 456 Mass. 225, 228 & n.6 (2010). That
the picture here purported to be of the distributor himself, and
was employed as a lure, certainly enhanced the reasonableness of
deeming it harmful.4 See Florida v. Harris, 133 S. Ct. 1050, 1055
(2013) (explaining that the police have probable cause for a search
where "the facts available to [them] would warrant a person of
reasonable caution in the belief that . . . evidence of a crime is
present" (internal quotation marks omitted)).
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 (1971), a search must be "confined in scope to particularly
4
In these respects, and in its availability for direct
review by the factfinder, the photo was quite unlike the Playboy
magazine at issue in Commonwealth v. Militello, 66 Mass. App. Ct.
325, 332-33 (2006) (holding that oral description of photos, which
"left a good deal to the imagination," could not support a jury
finding that the magazine was matter harmful to minors).
Militello, in any event, is a lower state court decision pre-dating
Kereakoglow.
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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 breadth 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 Mass. Gen. Laws 272, § 29
(prohibiting the possession of material harmful to minors with the
intent to distribute to someone believed to be a minor). After Tye
mentioned watching videos that a friend stole from his grandfather,
Burdulis asked if the videos were "pornos." When Tye responded
affirmatively, Burdulis wrote, "I like porno too at times -- what
kinds do you like to watch and do you d/l from the internet too?"
In the same email, Burdulis said, "What would you like me to send
to you? I will try to send if I can." And in his next email,
Burdulis asked if Tye wanted him to send "internet pics." The
emails were certainly enough to create a reasonable suspicion that
Burdulis intended to send Tye pornography electronically, and the
police could reasonably believe that the pornography would
constitute material harmful to minors under the Massachusetts
statute.5 Accordingly, the scope of the search fit the suspected
crime, so we reject Burdulis's argument that the warrant was overly
5
Not surprisingly, we reject Burdulis's argument that the
police could not reasonably believe that he was referring to
pornography when he used the word "pornos."
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broad.
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 warrant request hinges on a judgment by an officer that
particular pictures are pornographic, the officer must convey to
the magistrate more than his mere opinion that the images
constitute pornography. Here, though, the warrant was not based on
any officer's opinion that certain pictures were pornographic.
Instead, the officer submitted to the magistrate Burdulis's own
statements that are reasonably read as indicating that he intended
to send pornography to Tye. These statements, combined with the
fact that Burdulis had already sent an image likely qualifying as
matter harmful to minors (which the police did provide to the
magistrate), created a reasonable inference that a search of
Burdulis's digital devices would turn up evidence that he possessed
pornography and thereby support a conclusion that he intended to
send it to Tye. Consequently, we see no basis for reversing the
district court's denial of Burdulis's motion to suppress.
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III. The Jurisdictional Element
Burdulis next raises a series of arguments related to the
jurisdictional element of the statute 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 Jesús, 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.
18 U.S.C. § 2252(a)(4)(B).
In attempting to show that the jurisdictional element was
satisfied in this case, the government offered 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
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element and 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 download 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."
18 U.S.C. § 2256(3). In ordinary usage, both words encompass the
creation of new copies from an original. For example, a publishing
house is involved in the publication of a book when it prints
copies of the book for sale, regardless of whether it participated
in writing and editing the book or even in creating the first bound
copy. We also note that in describing production, the statute
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specifically mentions computers, which are often (and perhaps
primarily) used to view and store copies of previously created
digital files.
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 onto
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.
6
See United States v. Dickson, 632 F.3d 186, 189-90 (5th
Cir. 2011); United States v. Caley, 355 F. App'x 760, 761 (4th Cir.
2009); United States v. Maxwell, 386 F.3d 1042, 1052 (11th Cir.
2004), vacated but later reinstated in relevant part, see 446 F.3d
1210, 1211 (11th Cir. 2006); United States v. Angle, 234 F.3d 326,
341 (7th Cir. 2000); United States v. Lacy, 119 F.3d 742, 750 (9th
Cir. 1997). Even the Tenth Circuit, which reached a different
conclusion, has more recently offered cause to question its earlier
decision. See United States v. Schene, 543 F.3d 627, 636-39 (10th
Cir. 2008).
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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, 134 S. Ct. 1710,
1717 (2014). Congress may act in response to this "substantial
influence on . . . market conditions." Gonzales v. Raich, 545 U.S.
1, 19 (2005). See also National Fed'n of Indep. Bus. v. Sebelius,
132 S. Ct. 2566, 2586 (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.
7
See, e.g., United States v. Bowers, 594 F.3d 522, 527-30
(6th Cir. 2010) (rejecting a challenge similar to Burdulis's, and
collecting cases from other circuits doing the same).
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IV. The Admissibility of the Inscription
Finally, Burdulis argues that the district court erred by
admitting as evidence the inscription on his thumb drive, "Made in
China," over his hearsay objection. Without the inscription,
Burdulis points out, the government would have had no evidence that
the thumb drive traveled in interstate commerce and therefore no
evidence that the jurisdictional element was satisfied. When
presented with a preserved evidentiary objection, we review the
district court's decision for abuse of discretion, reversing if we
are "left with a definite and firm conviction that the court made
a clear error of judgment." United States v. Trenkler, 61 F.3d 45,
57 (1st Cir. 1995) (internal quotation marks omitted). Where an
evidentiary objection is not preserved, we review for plain error,
requiring the appellant to show that the error, if any, was "clear
or obvious," "affected his substantial rights," and "seriously
impaired the fairness, integrity, or public reputation of judicial
proceedings." United States v. Mardirosian, 602 F.3d 1, 11 (1st
Cir. 2010).
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 Fed. R. Evid. 801(c). While the federal rules
8
Three circuits have found that similar inscriptions are not
statements falling within the hearsay rule. See United States v.
Koch, 625 F.3d 470, 480 (8th Cir. 2010); United States v. Thody,
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of evidence generally prohibit hearsay, they include several
exceptions to that rule, including a "residual exception." Fed. R.
Evid. 807. That exception allows the admission of hearsay if “the
statement has equivalent circumstantial guarantees of
trustworthiness [to hearsay statements falling under a specified
hearsay exception]"; "it is more probative on the point for which
it is offered than any other evidence that the proponent can obtain
through reasonable efforts"; and, "admitting it will best serve the
purposes of these rules and the interests of justice,” along with
a fourth requirement not at issue here. Fed. R. Evid. 807(a).
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
19 U.S.C. § 1304, and federal law prohibits false or misleading
designations of origin, see 15 U.S.C. § 1125(a). Moreover, under
the federal rules of evidence trade inscriptions are self-
authenticating, Fed. R. Evid. 902(7), meaning they "require no
978 F.2d 625, 630-31 (10th Cir. 1992); United States v. Alvarez,
972 F.2d 1000, 1004 (9th Cir. 1992).
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extrinsic evidence of authenticity in order to be admitted," Fed.
R. Evid. 902. An authentic inscription, of the kind made regularly
by manufacturers in accordance with federal law, bears significant
similarity to other forms of evidence admissible under the
enumerated hearsay exceptions. See Fed. R. Evid. 803(6) (records
of regularly conducted activity), (9) (certain information reported
to a public office in accordance with a legal duty). Common sense,
too, suggests a low probability that someone would stamp "Made in
China" on a device made in the United States and presumably
marketed here. Certainly the record here contains no reason to
think otherwise. As to the other prongs of Rule 807(a), Burdulis's
new arguments are largely perfunctory and provide no cause to treat
as plain error any doubt that the inscription was more probative
than other evidence reasonably available to the government or that
admission of the evidence served the interests of justice.
Burdulis also contends for the first time on appeal that
the government failed to give adequate notice before trial as
required by Rule 807(b). That paragraph requires notice of "intent
to offer the statement and its particulars, including the
declarant's name and address," in order to ensure that the opposing
party has "a fair opportunity to meet it." Fed. R. Evid. 807(b).
Here, the government notified the district court and the defendant
before trial that it sought to establish an interstate nexus by
"introduc[ing] into evidence the thumb drive containing images and
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videos of child pornography . . . [which] bears a manufacturer's
label that . . . reads, 'Made in China.'"
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 provide 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
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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.
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