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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-14073
Non-Argument Calendar
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D.C. Docket No. 5:16-cr-00028-RH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL RAY ALFORD,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(August 3, 2018)
Before WILSON, JORDAN and BLACK, Circuit Judges.
PER CURIAM:
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Michael Ray Alford appeals his conviction for knowingly receiving and
attempting to receive material containing child pornography. Alford brings three
issues on appeal, which we address in turn. After review, we affirm Alford’s
conviction.
I. DISCUSSION
A. Motion to Suppress
Alford first argues the district court erred by refusing to suppress evidence
obtained as a result of a Montana search warrant issued to Google after concluding
the warrant was sufficiently particular. The warrant requested that Google
provide:
Any and all records, files, data, and/or other forms of information
including names, user names, dates of birth, IP addresses, home
addresses, phone numbers, e-mail addresses, photos, videos, e-mail
content, search history, call history, or other information held by
Google Inc. which may aid in obtaining the identification and/or
location of the individual whom contacted K-mart in Hamilton, MT
via phone call [to various phone numbers] on September 16th, 2014 at
approximately 2145 hours MST.
A search warrant must “particularly describ[e] the place to be searched, and
the persons or things to be seized.” U.S. Const. amend IV. The Fourth
Amendment requires searches be as limited as possible, and the goal is to prevent
“rummaging” through a person’s belongings by requiring warrants to include a
particular description of the things to be seized. United States v. Blake,
868 F.3d
960, 973 (11th Cir. 2017), cert. denied
138 S. Ct. 1580 (2018). In Blake, we
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concluded a warrant requiring Microsoft to turn over all e-mails containing
potentially incriminating evidence was constitutional because that limitation
prevented a general rummaging through the defendant’s e-mails.
Blake, 868 F.3d
at 973. However, we concluded warrants requiring Facebook to disclose “virtually
every kind of data that could be found in a social media account” were
unconstitutional because, for example, the warrants could have limited the search
of private messages to only those sent or received from persons suspected of being
involved with the offense.
Id. at 974. We also noted the warrants should have
only requested data from the period of time during which the defendant was
suspected of taking part in a conspiracy.
Id. We ultimately concluded, however,
that although the Facebook warrants violated the particularity requirement, they
were not so facially deficient the officers could not have reasonably believed them
to be valid.
Id. at 975.
The district court did not err when it denied Alford’s motion to suppress all
evidence found as a result of the Montana search warrant because the warrant was
sufficiently particular and not overbroad. See United States v. Hollis,
780 F.3d
1064, 1068 (11th Cir. 2015) (stating when reviewing the denial of a motion to
suppress, we review the district court’s legal conclusion de novo and its findings of
fact for clear error). The warrant here falls somewhere between the Microsoft and
Facebook warrants in Blake because, like the Facebook warrants, it requested
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nearly every kind of data that could be found in a Google account, but like the
Microsoft warrant, the information requested was all potentially incriminating
because it could have identified the K-Mart caller. See
Blake, 868 F.3d at 973-74.
However, using a practical margin of flexibility, the warrant here was as specific as
the circumstances and nature of the activity under investigation permitted. See
United States v. Bradley,
644 F.3d 1213, 1259 (11th Cir. 2011) (explaining the
particularity requirement must be applied with a practical margin of flexibility);
United States v. Moody,
977 F.2d 1425, 1432 (11th Cir. 1992) (stating a
description of the property to be seized will be acceptable if it is as specific as the
circumstances and nature of the activity under investigation permit). The only
information Officer Brunner-Murphy had when drafting the language of the
warrant was a phone call to K-Mart from an anonymous Google Voice phone
number. Under those circumstances, the warrant was as limited as possible
because it requested the account information of only the Google user who called
the K-Mart at the specific time in question. Although the warrant requested nearly
every kind of data that could be found in a Google account, any of that data could
have helped identify the owner of the account. Brunner-Murphy was not merely
rummaging around Alford’s Google account to find whatever he could, but rather
was trying to find the identity of the caller and potential victim. See
Blake, 868
F.3d at 973. As to Alford’s argument that it was wrong for Brunner-Murphy to
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look for a victim under the language of the search warrant, that question was
related to the identity of the caller because the caller claimed the victim was his
daughter. Thus, under the specific circumstances and nature of the activity under
investigation, the warrant was as limited as possible because all of the evidence
seized could have helped identify the owner of the Google account.
The district court also did not err in concluding that, even if the warrant was
insufficiently particular and overbroad, the evidence would not need to be
suppressed under the good-faith exception. See
Blake, 868 F.3d at 974-75
(explaining even where a search warrant was overbroad, the evidence seized need
not be suppressed where it was obtained in objectively reasonable reliance on a
subsequently invalidated search warrant). Alford does not contend on appeal that
the search was so lacking in indicia of probable cause as to render official reliance
on it unreasonable. Moreover, as in Blake, the warrant was not so facially deficient
that Brunner-Murphy could not have reasonably presumed it to be valid. See
United States v. Leon,
468 U.S. 897, 923 (1984) (stating exclusion could still be
warranted if: (1) the warrant was based on an affidavit “so lacking in indicia of
probable cause as to render official belief in its existence entirely unreasonable;” or
(2) the warrant was “so facially deficient—i.e., in failing to particularize the place
to be searched or the things to be seized—that the executing officers [could not
have] reasonably presume[d] it to be valid”). The goal of the warrant was to
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identify the K-Mart caller, and all of the evidence furthered that goal. Even if the
warrant should have been further limited in scope, it is a close question and the
warrant was not so obviously flawed that Brunner-Murphy could not have
reasonably believed it to be valid. See
Blake, 868 F.3d at 975. Accordingly, even
if the warrant was insufficiently particular and overbroad, the evidence need not
have been suppressed because Brunner-Murphy’s reliance on it was objectively
reasonable.
B. Propensity Evidence
Second, Alford argues the district court abused its discretion by admitting
improper propensity evidence at trial, specifically, child erotica found on Alford’s
computer. “Evidence of a crime, wrong, or other act is not admissible to prove a
person’s character in order to show that on a particular occasion the person acted in
accordance with their character.” Fed. R. Evid. 404(b)(1). However, such
evidence may be admissible for another purpose, such as proving intent,
knowledge, absence of mistake, or lack of accident. Fed. R. Evid. 404(b)(2).
The district court did not abuse its discretion by allowing the Government to
present evidence of child erotica found on the computer. See United States v.
Edouard,
485 F.3d 1324, 1343 (11th Cir. 2007) (stating a district court’s
evidentiary rulings are ordinarily reviewed for an abuse of discretion). First, Rule
404(b) does not apply because the evidence of child erotica was intrinsic to the
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charged offenses. See United States v. Ford,
784 F.3d 1386, 1394 (11th Cir. 2015)
(stating Rule 404(b) does not apply to evidence that is intrinsic to the charged
offenses). The child erotica was an integral and natural part of Dowdy’s testimony
about the search of the computers because it provided further context about the
search records found on the computers. See United States v. Ramsdale,
61 F.3d
825, 829 (11th Cir. 1995) (explaining evidence is intrinsic if it arose out of the
same transaction or series of transactions as the charged offense, is necessary to
complete the story of the crime, or is inextricably intertwined with the evidence
regarding the charged offense). Although the child erotica was not illegal, its
presence on the computers was an important part of the circumstances surrounding
the offense given the existence of search terms like “7yro+preteen,” even if it
reflected negatively on Alford’s character. See
Edouard, 485 F.3d at 1344 (stating
evidence is inextricably intertwined with evidence regarding the charged offense,
and therefore admissible, if it forms an “integral and natural part of the witness’s
accounts of the circumstances surrounding the offenses”).
Second, even if the evidence of child erotica was extrinsic, it was admissible
under Rule 404(b) because it helped prove intent, knowledge, and lack of mistake
or accident. This case is analogous to United States v. Kapordelis,
569 F.3d 1291,
1313 (11th Cir. 2009), where we concluded that the defendant’s prior trips to the
Czech Republic to engage in sexual trysts with underage boys were admissible
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under Rule 404(b) as proof of knowledge, identity, or absence of mistake or
accident with regard to his collection of child pornography.
Id. Here, the user of
the computer legally downloaded a large amount of child erotica, and the district
court properly concluded the child erotica was admissible under Rule 404(b) as
proof of knowledge, identity, or absence of mistake or accident. This was not
merely a propensity argument because someone who downloads child erotica is
more likely to recognize child pornography and not download it by mistake. See
Fed. R. Evid. 404(b)(1). Although the court stated that “somebody who is
interested in [child erotica] is more likely to be interested in child pornography,” it
was referring to the probative value of the evidence for proving intent or lack of
mistake, not merely a propensity argument.
Finally, under Rule 403, the probative value of the child erotica was not
substantially outweighed by its prejudicial effect because the jury was already
shown examples of child pornography and they were not likely to convict Alford
on the child pornography charges based on the child erotica. See Fed. R. Evid. 403
(providing the district court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of unfair prejudice). And Alford specifically
challenged the knowledge element of the offense, which increased the probative
value of the child erotica. See
Kapordelis, 569 F.3d at 1313-14 (concluding the
probative value of the prior-bad-acts evidence was substantial and outweighed the
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prejudicial effect where the defendant specifically challenged the knowledge
element of the offense). Notably, the court told Alford it would give an instruction
to the jury about the proper consideration of the child erotica evidence if he
requested one, but Alford never requested the instruction at trial and did not object
to the court’s instructions. As a result, the court gave an instruction regarding the
proper consideration of Alford’s prior conviction, but not the child erotica.
Accordingly, the district court did not abuse its discretion by allowing the
Government to present evidence of child erotica found on the computer because it
was either intrinsic, and thus outside the scope of Rule 404(b), or admissible under
Rule 404(b) because it helped prove intent, knowledge, and lack of mistake or
accident.
C. Sufficiency of the Evidence
Finally, Alford argues the Government presented insufficient evidence to
prove that he knowingly received or attempted to receive child pornography. Any
person who knowingly receives or distributes any child pornography that has been
shipped or transported in interstate commerce by any means, including by
computer, violates the law. 18 U.S.C. § 2252A(a)(2). A person “knowingly
receives” child pornography when he intentionally views, acquires, or accepts
child pornography on a computer from an outside source. United States v. Pruitt,
638 F.3d 763, 766 (11th Cir. 2011). An intentional viewer of child pornography
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may be convicted regardless of whether he saves the images to a hard drive, edits
them, or otherwise exerts more control over them.
Id. However, inadvertent
receipt of child pornography is not a violation of the statute.
Id. Evidence that a
person has searched for child pornography on the internet and has a computer
containing child-pornography images, whether in the hard drive, cache, or
unallocated spaces, can count as circumstantial evidence that they knowingly
received child pornography.
Id.
As an initial matter, plain error review applies because Alford’s motion for a
judgment of acquittal was insufficient to preserve the specific argument he now
raises. See United States v. Joseph,
709 F.3d 1082, 1103 (11th Cir. 2013) (stating
plain error review applies where a defendant raises a general insufficient evidence
argument below and then seeks to challenge the sufficiency of the evidence
supporting a specific element of the crime on appeal). However, regardless of
whether reviewed de novo or for plain error, the Government presented sufficient
evidence that Alford knowingly received or attempted to receive child
pornography. A reasonable jury could have concluded that it was Alford who
downloaded the child pornography, not someone else, based on the evidence that:
(1) the “michellecuty013” e-mail address belonged to Alford; (2) his parents could
not use the computer without his help; and (3) both computers were used to sign on
to the “michellecuty013” account and were used as part of Alford’s business.
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Second, a reasonable jury could have concluded that Alford had previously
viewed the images in the thumbcache based on Investigator Dowdy’s testimony
that these images would not exist as thumbnails if they had not been viewed on the
computer. Dowdy also testified that the computer contained a program that could
recover deleted files and that child pornography was in a folder created by the
program. Although Alford presented testimony that it was not uncommon for
computers to save thumbnails of images that were never opened, the jury was
entitled to believe Dowdy’s testimony, and this court must resolve all reasonable
credibility evaluations in favor of the jury’s verdict. See United States v. Doe,
661
F.3d 550, 560 (11th Cir. 2011) (stating this Court must draw all reasonable
inferences in favor of the jury’s verdict).
Third, a reasonable jury could have concluded Alford did not access the
child pornography inadvertently based on the evidence that the search history on
both computers included terms that would normally return child pornography.
These search terms, combined with the existence of child pornography on the
computer, were circumstantial evidence that Alford knowingly received child
pornography. See
Pruitt, 638 F.3d at 766. Finally, a reasonable jury could have
concluded that Alford had opened or viewed the e-mails containing child
pornography because, although there was no direct evidence that Alford opened or
viewed the e-mails, there would have been no record of the e-mails had he deleted
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them. Given this evidence, the jury could have reasonably drawn the inference that
Alford knowingly received child pornography. See
Doe, 661 F.3d at 560;
Pruitt,
638 F.3d at 766. Accordingly, the Government presented sufficient evidence that
Alford knowingly received or attempted to receive child pornography.
II. CONCLUSION
The district court did not err by refusing to suppress evidence obtained as a
result of a search warrant issued to Google because the warrant was sufficiently
particular and not overbroad under the specific circumstances and the nature of the
activity under investigation. Second, the district court did not abuse its discretion
by allowing the Government to present evidence of child erotica found on a
computer because it helped prove intent, knowledge, and lack of mistake or
accident. Finally, the Government presented sufficient evidence for a reasonable
jury to conclude that Alford knowingly received or attempted to receive child
pornography where it presented evidence supporting an inference that he used the
e-mail and computers containing child pornography, he searched for and viewed
the child pornography, and he had not deleted the e-mails containing child
pornography. Accordingly, we affirm Alford’s conviction.
AFFIRMED.
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