United States v. Newsom, Ernest ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3366
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ERNEST NEWSOM,
Defendant-Appellant.
____________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. IP 03-26-CR-01 M/F—Larry J. McKinney, Chief Judge.
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ARGUED APRIL 5, 2004—DECIDED APRIL 1, 2005
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Before BAUER, POSNER, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Ernest Newsom was caught with
child pornography on his computer, including pictures of his
own daughter and his ex-girlfriend’s daughter. He was
charged and found guilty of receipt, possession, and produc-
tion of child pornography. Newsom appeals from the district
court’s denial of his motion to suppress evidence recovered
from his home and computer and from two sets of sentenc-
ing enhancements. We affirm the district court’s denial of
his motion to suppress and the sentencing enhancements.
We order a limited remand to the district court for consider-
2 No. 03-3366
ation whether Newsom’s sentence would be different in
light of United States v. Booker, 125 S.Ct. 738 (2005), in
keeping with the procedure established in United States v.
Paladino, Nos. 03-2296 et al., 2005 WL 435430 (7th Cir.
Feb. 25, 2005). In order to allow the court to take into ac-
count the sentence that the Guidelines would advise, along
with other pertinent factors, we discuss Newsom’s Guidelines
arguments in this opinion.
I
From 1996 until 2001, Audry Edwards lived with Newsom
at his Lawrence, Indiana, home. Edwards’s daughter,
Jane Doe #1, and Newsom’s daughter, Jane Doe #2, also
lived with the couple. In July 2001, Edwards found images
of nude and partially nude children engaged in sexually ex-
plicit acts on Newsom’s computer. She confronted Newsom
but did not alert the police. She moved out, taking her
daughter with her.
Despite Edwards’s disturbing discovery, she remained in
contact with Newsom. A year later, in July 2002, Edwards
was watching Newsom’s house while he was out of town. She
looked on Newsom’s computer and discovered two video
clips of her daughter, Jane Doe #1, getting out of the shower
with a towel wrapped around her and then dropping the
towel. Edwards recognized the room Jane Doe #1 was in as
her former bedroom in the house.
With the help of some neighbors, Edwards copied the
video clips onto a CD and brought the disk to the Lawrence
Police Department. She filed a report about the video clips
and also reported finding the child pornography the previous
year. Based on that information, Sergeant Miller obtained
a search warrant to search Newsom’s house and computer
equipment. The searches turned up compromising video-
tapes of both Jane Doe #1 and Jane Doe #2 as well as other
children; a video camera and a television that Newsom had
No. 03-3366 3
rigged to tape the girls; a pair of Jane Doe #1’s underwear
from Newsom’s briefcase; and numerous images of child
pornography.
On March 12, 2003, Newsom was charged by superseding
indictment with one count of producing child pornography,
in violation of 18 U.S.C. § 2251(a); one count of possessing
child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B);
and 23 counts of receiving child pornography, in violation of
18 U.S.C. § 2252(a)(2). Newsom moved to suppress the
evidence seized in the search, arguing that the information
on which the warrant was based was too old to furnish
probable cause to search. The district court denied the mo-
tion on April 2, 2003. Newsom also waived his right to a
jury trial at that time.
After a bench trial on April 9 and 10, 2003, the district
court found Newsom guilty of the production and possession
counts and 22 of the 23 receiving counts. The court sen-
tenced Newsom to 324 months’ imprisonment and 3 years’
supervised release. Newsom appeals from the denial of his
motion to suppress and challenges two specific aspects of
his Guidelines sentence as well as the sentence as a whole.
II
The Fourth Amendment permits a search of a person’s
home only if there is probable cause to believe that the au-
thorities will recover the items subject to seizure at the
time they execute the warrant. United States v. Rambis,
686 F.2d 620, 622 (7th Cir. 1982). “The task of the issuing
magistrate is simply to make a practical, common-sense
decision whether, given all the circumstances set forth in
the affidavit before him, including the ‘veracity’ and ‘basis
of knowledge’ of persons supplying hearsay information,
there is a fair probability that contraband or evidence of a
crime will be found in a particular place.” Illinois v. Gates,
462 U.S. 213, 238 (1983) (quoting Jones v. United States, 362
4 No. 03-3366
U.S. 257, 271 (1960)). In reviewing de novo a magistrate’s
issuance of a search warrant based on probable cause, the
magistrate’s decision will be upheld “so long as the
magistrate had a ‘substantial basis for . . . conclud[ing]’ that
a search would uncover evidence of wrongdoing.” Id. at 236
(quoting Jones, 362 U.S. at 271). A magistrate’s determina-
tion of probable cause “is to be given considerable weight and
should be overruled only when the supporting affidavit,
read as a whole in a realistic and common sense manner,
does not allege specific facts and circumstances from which
the magistrate could reasonably conclude that the items
sought to be seized are associated with the crime and
located in the place indicated.” United States v. Spry, 190
F.3d 829, 835 (7th Cir. 1999) (citations omitted). When
considering whether information is stale, our circuit has
held “that the age of inculpatory information is only one fac-
tor that magistrates should consider in determining whether
probable cause exists, and if other factors indicate that the
information is reliable the magistrate should not hesitate to
issue the warrant.” Id. at 836 (citations omitted).
The state court judge who issued the warrant here had
two relevant pieces of information before him. The first was
the fact that Edwards had seen pornographic images of very
young children in that location a year earlier. Second, the
judge knew that Edwards recently had discovered videos of
her daughter, apparently taped with a hidden camera. The
affidavit also stated that computers provide ample storage
space for hundreds or thousands of images, that computers
make it easier to make and swap images, and, at least by
implication, that one could hold on to these images for long
periods of time because of the immense amount of storage
space provided on newer machines.
Information a year old is not necessarily stale as a matter
of law, especially where child pornography is concerned.
United States v. Lacy, 119 F.3d 742, 745 (9th Cir. 1997)
No. 03-3366 5
(upholding search warrant based on information ten months
old because “the [agent] explained that collectors and dis-
tributors of child pornography value their sexually explicit
materials highly, ‘rarely if ever’ dispose of such material,
and store it ‘for long periods’ in a secure place, typically in
their homes.”); United States v. Harvey, 2 F.3d 1318, 1322-
23 (3d Cir. 1993) (concluding that a warrant was not based
on stale information, in part because those who collect child
pornography tend to keep it); United States v. Ricciardelli,
998 F.2d 8, 12 n.4 (1st Cir. 1993) (stating, “history teaches
that [pornography] collectors prefer not to dispose of their
dross, typically retaining obscene materials for years”);
United States v. Rabe, 848 F.2d 994, 996 (9th Cir. 1988) (up-
holding warrant despite two-year delay between original
seizures and warrant because more recent letters indicated
that pornographic material was still being kept by the
defendant).
In this case, although the affidavit before the judge did
not explain specifically that collectors of child pornography
tend to hold onto their stash for long periods of time, it was
clear from the context that the police believed that Newsom
probably still had the year-old images or something similar
on his computer. Also, the police did not base the search
warrant on the year-old pornographic images alone; they
also relied on Edwards’s recent discovery of the tape of her
daughter. Newsom points out that the images of Jane Doe
#1 were not themselves pornographic, as they “only” showed
Doe #1 naked. Even so, it was reasonable for the police to
regard this video clip as an ominous hint of what might be
found in Newsom’s home.
Edwards had seen child pornography on Newsom’s com-
puter. She also had seen videos suggesting that Newsom
secretly was taping her daughter. Reading the affidavit as
a whole and taking the two discoveries of Edwards together,
it was reasonable for the judge to conclude that probable
cause existed to believe that Newsom had child pornogra-
phy in his home.
6 No. 03-3366
III
Before turning to Newsom’s sentencing arguments, a word
about the applicable standard of review and the procedure
we have adopted is in order. Newsom concedes that he
never raised any argument to the effect that the Sentencing
Guidelines were unconstitutional before the district court,
or indeed in this court before the Supreme Court decided
Blakely v. Washington, 124 S.Ct. 2531 (2004). In a supple-
mental filing lodged with this court after Booker was handed
down, however, he urges us to remand his case for re-sen-
tencing, with or without a finding of plain error.
Because Newsom never raised this point before the district
court, we conclude (consistent with our ruling in Paladino)
that he is subject to the plain error standard of review. He
is therefore not entitled to have his sentence vacated at this
point; instead, we will follow the procedure outlined
in Paladino by ordering a limited remand to the district
court, while retaining jurisdiction over the appeal, to see
whether the district court is inclined to stay with the original
sentence or to resentence. For the district court’s guidance,
we will address the particular arguments under the Sen-
tencing Guidelines that Newsom has raised, recognizing that
the Guidelines range is now advisory only.
Grouping Enhancement
Newsom first argues that the district court erred in the
way it handled his counts of conviction under U.S.S.G.
§ 3D1.1, which sets forth rules for grouping multiple counts
together for the purpose of obtaining the proper offense
level. Adopting the recommendation of the Presentence
Investigation Report (PSR), the court created three groups
from Newsom’s convictions. The first group included all the
counts of receiving pornography. See U.S.S.G. § 3D1.2(d).
The second group included the production and possession
counts. See U.S.S.G. § 3D1.2(b). The third group was titled
No. 03-3366 7
“Uncharged Relevant Conduct—Production of Child Pornog-
raphy,” for Jane Doe #2. Newsom argues, and it appears
that he is correct, that the district court relied upon un-
charged conduct to make up the third group. We have held
before that offense levels are not to be raised “by the
inclusion of unconvicted offenses in the multiple-count
grouping provision.” United States v. Dawson, 1 F.3d 457,
463 (7th Cir. 1993). This was therefore error. The next ques-
tion is whether the error made any difference to the ultimate
result under the Guidelines.
In our view, the following groups reflect the proper group-
ing of Newsom’s counts of conviction:
Group 1 includes the 22 counts of conviction for receipt
of child pornography, in violation of 18 U.S.C.
§ 2252(a)(2). The Guidelines call for related charges to
be grouped together, including counts sentenced pur-
suant to § 2G2.2(a), which these were. The adjusted
offense level for this group is 30.
Group 2 covers the one count of production of child por-
nography, in violation of 18 U.S.C. § 2251(a). Although
the Guidelines call for counts involving the same victim
to be grouped, see § 3D1.2(a), which would mean the
production and possession of the Jane Doe #1 por-
nography should be grouped together, § 2G2.1(c) states
that counts sentenced under § 2G2.1 are to be excluded
from grouping. Making production its own group results
in an adjusted offense level of 35.
Group 3 includes the conviction for possession of child
pornography, in violation of 18 U.S.C. § 2252(a)(4)(B).
The adjusted level for possession is 33. The Guidelines
instruct that production of pornography can count as
relevant conduct to possession. This accounts for the fact
that Newsom produced the pornography that he pos-
sessed. See United States v. Dawn, 129 F.3d 878, 881-82
8 No. 03-3366
(7th Cir. 1997). The creation of the pornography depict-
ing Jane Doe #1 is already accounted for, however, in
the production count, which makes up Group 2. This
leaves just the possession count with no other relevant
conduct. In the end, however, this makes no difference,
because the adjusted offense level for the group is the
highest offense level of the included counts. The pos-
session count alone has an offense level of 33, while the
production of Jane Doe #2 pornography has an offense
level of 31, and so even if we exclude it altogether, the
group still has an adjusted level of 33.
Calculating the multiple count adjustment, pursuant to
§ 3D1.4, 2½ units are to be added to the greater adjusted
offense level of 35 (the offense level from Group 2). The
Guidelines instruct us to round up, and thus we have a total
offense level of 38 (35 + 3). The district court had also come
up with 38 as the adjusted offense level. Thus, any mistake
in applying the Guidelines had no effect on Newsom’s
Guidelines range.
Vulnerable Victim Enhancement
The district court added two levels to Newsom’s offense
level pursuant to U.S.S.G. § 3A1.1(b), which provides for an
enhancement if the defendant “knew or should have known
that a victim of the offense was a vulnerable victim.”
Application Note 2 of § 3A1.1 states that “[f]or purposes of
subsection (b), ‘vulnerable victim’ means a person (A) who
is a victim of the offense of conviction and any conduct for
which the defendant is accountable under § 1B1.3 (Relevant
Conduct); and (B) who is unusually vulnerable due to age,
physical or mental condition, or who is otherwise particu-
larly susceptible to the criminal conduct.”
The district court found that Jane Doe #1 was unusually
vulnerable because she was asleep at the time she was filmed.
The court explained that “[s]he [was] unable to express any
No. 03-3366 9
kind of discontent . . . . She [was] unable to resist or express
any kind of objection. She [couldn’t] do anything until the
act [was] either underway or over.” See United States v.
Plenty, 335 F.3d 732, 735 (8th Cir. 2003) (upholding the
enhancement because a sleeping burglary victim “did not
have the ability to phone law enforcement, to run away, to
move the location of the assault away from her children, or
to fight back.”); United States v. Wetchie, 207 F.3d 632, 634
(9th Cir. 2000) (upholding enhancement because sleeping
victim was unable to resist, cry out, express objection, or re-
act in any way until offense was underway or complete, and
that if she had been awake, the defendant likely would not
have committed the offense).
We are a bit troubled by the district court’s findings. It
implies that any victim who surreptitiously is watched is
vulnerable, and we are hesitant to assume that the Sentenc-
ing Commission designed the enhancement to be this broad.
No one who is asleep or more generally who—perhaps
because she is simply out in public unaware of who is
focusing on her—does not know that she is being videoed or
watched is able to resist or to act to protect herself. On the
facts of this case, however, the district court properly
applied the enhancement. The videotape admitted into evi-
dence and viewed by the district court shows Newsom
moving Jane Doe #1’s underwear so as to get better shots of
her genitals. Such an attempt would have been impossible
had Jane Doe #1 been awake. The purpose of the vulnerable
victim enhancement, which is to punish more severely those
who target the helpless, is satisfied on these facts.
Before concluding, we add a few words about Newsom’s
overall sentence. As we noted, the result of the application
of the Guidelines was a sentence of 324 months’ imprison-
ment, or 27 years. Those who think that the idea of marginal
deterrence should play some part in criminal sentences—
that is, that the harshest sentences should be reserved for
the most culpable behavior—might find little room left above
Newsom’s sentence for the child abuser who physically
10 No. 03-3366
harms his victim, who abuses many different children, or
who in other ways inflicts greater harm on his victims and
society. Compare A. Mitchell Polinsky & Steven Shavell,
“The Optimal Trade-Off Between the Probability and
Magnitude of Fines,” 69 Am. Econ. Rev. 880 (1979); see also
Tracey L. Meares, Neal Katyal, & Dan Kahan, “Updating
the Study of Punishment,” 56 Stan. L. Rev. 1171 (2004)
(discussing, among other things, the substitution effects from
one crime to another induced by very high penalty levels);
Mitchell Edmund O’Neill, “Old Crimes in New Bottles:
Sanctioning Cybercrime,” 9 Geo. Mason L. Rev. 237, 274
(2000). The factors outlined in 18 U.S.C. § 3553(a), which
now must directly inform criminal sentencing, reflect the
need to take into account factors like the full nature and
circumstances of the offense, the need for the sentence to
reflect the seriousness of the offense, and the need to afford
adequate deterrence. The district judge may conclude, on
remand, that these and the other parts of § 3553(a) can be
satisfied by something less than the 324-month sentence
derived from the Guidelines grid.
IV
We therefore AFFIRM the judgment of conviction. We order
a LIMITED REMAND to the district court for further consider-
ation of Newsom’s sentence, which should be undertaken in
conformity with the procedures spelled out in Paladino.
This court will retain jurisdiction over the appeal during
the pendency of the limited remand.
No. 03-3366 11
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-1-05