United States v. Christopher Brackett , 846 F.3d 987 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 15-2694
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Christopher D. Brackett
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: May 19, 2016
Filed: January 20, 2017
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Before WOLLMAN, LOKEN, and BENTON, Circuit Judges.
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WOLLMAN, Circuit Judge.
A federal grand jury returned a superseding indictment charging Christopher
D. Brackett with transporting, producing, and attempting to produce child
pornography and with possessing one or more computer files and other matter
containing child pornography, all after having been previously convicted of a state-
law offense involving the sexual abuse of a minor. 18 U.S.C. §§ 2252A(a)(1) & (b),
2251(a), 2252(a)(4)(B). The district court1 denied Brackett’s motion to suppress
evidence seized from his residence pursuant to a search warrant, as well as his later
motion for an evidentiary hearing to challenge allegedly false statements included in
the search-warrant affidavit. A jury convicted Brackett of the charged offenses, and
the district court sentenced him to 360 months of imprisonment and 240 months of
supervised release. Brackett appeals, arguing that the court erred in denying his
motion to suppress and his motion for an evidentiary hearing. We affirm.
On September 17, 2013, Detective Roy Howell of the Bellevue, Nebraska,
Police Department applied for a warrant to search Brackett’s residence. The warrant
application included a seven-page affidavit in which Howell set forth the following
facts. Earlier that day, Howell, a member of the Cyber Crimes Task Force, had
spoken with Investigator Michael Gunias of the Cuyahoga County, Ohio, prosecutor’s
office. Gunias told Howell that R.H., a sixteen-year-old girl who lived in Ohio, had
reported that Christopher Allen Brackett, a dark-haired white male standing 5’11” to
6’ tall and weighing 150 to 185 pounds, had twice traveled to Ohio from his home in
Nebraska to meet her; that she and Brackett had engaged in sexual intercourse at a
hotel on both occasions; and that Brackett had taken nude photographs of her with his
cell phone.
R.H. and Brackett had begun communicating in May 2013 while playing an
online video game, had eventually exchanged cell phone numbers, and had then
begun communicating through text messages and calls on their respective cell phones.
Brackett told R.H. that his name was Christopher Allen Brackett; that he lived in
Omaha, Nebraska; that he was thirty-six years old; that he owned a truck and a Jeep;
and that he had a younger brother. In late June 2013, Brackett drove to Ohio to meet
1
The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska, adopting the Findings and Recommendation of the Honorable Thomas D.
Thalken, United States Magistrate Judge for the District of Nebraska.
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R.H. in person. Brackett arrived to pick R.H. up in a black Jeep SUV with Nebraska
license plates and drove her to a local hotel, where he had rented a room. The two
stayed at the hotel for one night and engaged in sexual intercourse.
R.H. attempted to end her relationship with Brackett in July 2013, but changed
her mind after Brackett threatened and pleaded with her. Fearful of Brackett’s
reaction if she refused, R.H. agreed to another visit from Brackett. In August 2013,
Brackett again drove from Nebraska to Ohio to meet R.H., this time driving a yellow
Chevy Cavalier with tinted windows and racing stripes. Brackett drove R.H. to the
same hotel, where Brackett had reserved a room for three nights. Brackett and R.H.
stayed at the hotel together for two nights and again engaged in sexual intercourse.
Brackett used his cell phone to take nude photographs of R.H. After two days at the
hotel, Brackett drove R.H. back to her parents’ house. Sometime later, Brackett told
R.H. that he had transferred the photographs from his cell phone to a flash drive.
R.H. again attempted to end her relationship with Brackett. In response,
Brackett threatened to erase her parents’ social security numbers, to have warrants
issued for her parents’ arrest, and to send nude photographs of her to her parents and
her high school. Eventually, Brackett posted a series of nine advertisements on
Craigslist in the Ohio area where R.H. lived. Each of these advertisements implied
that R.H. was available for sexual activity and included her name, cell phone number,
address, and photograph. R.H. received several calls and texts on her cell phone in
response to these advertisements.
Gunias obtained a photograph of Brackett from the Nebraska Sex Offender
Registry, and R.H. confirmed that the Christopher Brackett in the photograph was the
individual who was the subject of her report. Brackett sent multiple text messages
to R.H.’s phone after R.H. had surrendered it to Gunias. Gunias informed Howell of
this activity and provided him with Brackett’s cell phone number.
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Detective Howell then took steps to corroborate the information he had
obtained from Guinas. Howell first searched Brackett’s name in the Nebraska
Criminal Justice Information System, which revealed that Brackett had previously
used the “Christopher Allen Brackett” alias he had provided to R.H. Howell also
identified a Bellevue, Nebraska, address from Brackett’s state driver’s license and
determined that Brackett’s cell phone number was registered to an individual at that
address and that a black 2002 Jeep Grand Cherokee was registered to Brackett at that
address. Howell learned that Brackett was required to register as a sex offender
because of a 2002 Iowa conviction for possessing a videotape that he made of a 15-
year-old girl performing a sex act on him. Howell also discovered that Brackett had
been convicted in February 2012 for failing to register as a sex offender in Nebraska,
but that he now listed the Bellevue address as his current residence in the Nebraska
Sex Offender Registry. Howell confirmed that Brackett had a younger brother, and
he also learned that a different female victim had reported that Brackett had posted
false Craigslist advertisements in her name that were similar to those Brackett had
made in R.H.’s name.
Detective Howell included the affidavit in his application for a warrant to
search Brackett’s residence and vehicles for “any type of digital media,” including
computers, cell phones, and USB and external storage devices, that could contain
“[i]mages of the child pornography of the victim who is 16 years old.” The affidavit
set forth in detail Howell’s training and experience in child-pornography
investigations, and then provided comprehensive background information on the use
of computers and mobile devices like cell phones to produce child pornography, and
the use of removable or online storage devices and services to possess child
pornography. It twice stated Howell’s belief that the facts set forth in the affidavit
established probable cause to believe that a search of Brackett’s residence for digital
media would result in “evidence showing violation(s) of Nebraska State Statute[] 28-
813.01 Sexually Explicit Conduct.”
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Based on Howell’s September 17 affidavit, a Nebraska state judge issued a
search warrant, which Howell and other Bellevue police officers executed later that
evening. The officers seized from Brackett’s residence his cell phone, laptop
computer, and desktop computer. A forensic examination of these devices uncovered
sexually explicit images of R.H. on the laptop and desktop computers; the cell phone
had been “wiped” and returned to factory settings. When Brackett was arrested by
Bellevue police officers on October 7, 2013, he was in possession of a different cell
phone, which Howell also seized and later examined. That examination led to the
recovery of the text messages between Brackett and R.H., as well as additional
sexually explicit images of R.H.
The matter was eventually referred to federal authorities, and Brackett was
indicted by a federal grand jury on the three offenses set forth above. Brackett filed
a motion to suppress the evidence seized during the search of his residence, arguing
that the affidavit in support of the warrant was insufficient to establish probable cause
to believe that there would be illegal contraband discovered at his residence.
Following a hearing, the magistrate judge recommended that the motion be denied
because under applicable federal constitutional standards the “affidavit contained
probable cause that images of child pornography of R.H. on digital media storage
devices would be found at” Brackett’s residence. The magistrate judge further
reasoned that even if the affidavit was insufficient, the officers’ reliance on the search
warrant was objectively reasonable such that the Leon good-faith exception applied.
See United States v. Leon, 468 U.S. 897 (1984). As earlier stated, the district court
adopted the magistrate judge’s recommendations and denied the motion to suppress,
following which the case proceeded to trial.
During, and again at the close of, the government’s case-in-chief, Brackett
moved for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). He
alleged that it had become apparent from their testimony that R.H., Investigator
Gunias, and Detective Howell had not actually seen the photographs Brackett
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allegedly had taken of R.H., and thus they could not be sure that any such
photographs existed or that they constituted prohibited images. Brackett further
alleged that this testimony revealed that because R.H. had not admitted to Gunias that
she had sent nude photographs of herself to Brackett until after the search warrant
was executed, Howell’s reference to any such photographs in his affidavit was a
fabrication. Thus, Brackett argued, Howell’s affidavit omitted a material fact and
included a deliberate false statement, each of which was sufficient to defeat probable
cause for issuance of the warrant. The district court denied the motion for a Franks
hearing.
“We review the denial of a motion to suppress de novo but review underlying
factual determinations for clear error, giving due weight to the inferences of the
district court and law enforcement officials.” United States v. Hager, 710 F.3d 830,
835 (8th Cir. 2013) (quoting United States v. Nichols, 574 F.3d 633, 636 (8th Cir.
2009)). We will affirm “unless the district court’s decision ‘is unsupported by
substantial evidence, based on an erroneous interpretation of applicable law, or, based
on the entire record, it is clear a mistake was made.’” Id. (quoting United States v.
Hastings, 685 F.3d 724, 727 (8th Cir. 2012)).
Brackett first argues that Howell’s affidavit was insufficient to establish
probable cause under the standards announced by the Nebraska Supreme Court in
State v. Nuss, 781 N.W.2d 60, 67-68 (Neb. 2010). Relying on the Fourth Amendment
to the U.S. Constitution, the Nebraska Supreme Court held in Nuss that, “to establish
probable cause to search for evidence of [state-law] crimes involving visual depiction
of sexually explicit conduct involving minors,” a supporting affidavit must include
either copies of the images themselves or “a detailed verbal description of the conduct
depicted in [those] images.” Id. at 67. Brackett argues that Nuss is controlling with
respect to the validity of the affidavit, because Detective Howell was a state police
officer applying for a state search warrant in a state court to search for evidence of a
state crime. Because Howell’s affidavit did not include the photographs of R.H. and
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only described them as “child pornography” or “nude” photographs, the affidavit was
insufficient to establish probable cause.
We conclude that the facts set forth in the affidavit in this case are readily
distinguishable from those that the Nebraska Supreme Court found insufficient to
establish probable cause in Nuss. First, the warrant in Brackett’s case relied upon a
different (although related) Nebraska statute, § 28-813.01, which renders unlawful
the knowing possession of “any visual depiction of sexually explicit conduct . . .
which has a child . . . as one of its participants or portrayed observers.” The affidavit
then specifically referred to “sexually explicit conduct,” the critical statutory recital
absent in Nuss, by recounting, as set forth earlier, R.H.’s description of how Brackett
had engaged in sexual intercourse with her on two separate occasions, during which
he had taken nude photographs of her. Finally, and perhaps most important to our
analysis, Nebraska statute § 28-1463.02(5) defines sexually explicit conduct to
include “Real or simulated intercourse,” which is precisely the conduct that R.H.
described, and the lack of which vitiated the affidavit in Nuss. 782 N.W.2d at 68.
Given the additional information contained in Detective Howell’s affidavit, we
conclude that the Nebraska Supreme Court would have no difficulty in upholding the
validity of the warrant under the analysis set forth in Nuss.
A supporting affidavit establishes probable cause to issue a search warrant if
it “sets forth sufficient facts to establish that there is a fair probability that contraband
or evidence of criminal activity will be found in the particular place to be searched.”
United States v. Snyder, 511 F.3d 813, 817 (8th Cir. 2008); see also United States v.
Berkus, 428 F.2d 1148, 1152 (8th Cir. 1970) (noting that “the Fourth Amendment
contains no prescription as to the form or manner in which probable cause must be
shown”). “Whether probable cause to issue a search warrant has been established is
determined by considering the totality of the circumstances, and resolution of the
question by an issuing judge ‘should be paid great deference by reviewing courts.’”
United States v. Brewer, 588 F.3d 1165, 1170 (8th Cir. 2009) (quoting United States
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v. Hansel, 524 F.3d 841, 845 (8th Cir. 2008)). Not only may an issuing judge “draw
reasonable inferences from the totality of the circumstances in determining whether
probable cause exists to issue a warrant, we have also recognized that law
enforcement officers may make reasonable inferences in preparing affidavits in
support of a warrant.” United States v. Thompson, 210 F.3d 855, 860 (8th Cir. 2000)
(citations omitted). We will not disturb a court’s finding of probable cause “unless
there was no substantial basis for that finding.” United States v. Montgomery, 527
F.3d 682, 686 (8th Cir. 2008). Because the warrant in this case sought evidence of
a violation of Nebraska Revised Statute § 28-813.01, we must determine whether, in
the totality of the circumstances, the affidavit established probable cause that
evidence of such a violation would be found at Brackett’s residence. Section 28-
813.01 prohibits the knowing possession of “any visual depiction of sexually explicit
conduct” involving a minor. “Sexually explicit conduct” is defined to include “erotic
nudity,” which “means the display of the human . . . female genitals or pubic area [or]
breasts” for “sexual gratification or sexual stimulation.” Neb. Rev. Stat. § 28-
1463.02.
We agree with the district court that the information set forth in the affidavit
in this case established probable cause to believe that Brackett’s residence would
contain evidence of the prohibited images of R.H. The affidavit was based on
information provided to police officers by R.H., the sixteen-year-old victim, who
identified herself to officers and voluntarily provided a detailed statement regarding
her interactions with Brackett—including that Brackett had driven from Nebraska to
Ohio on two occasions, that she and Brackett had engaged in sexual intercourse on
both occasions, that Brackett had taken several nude photographs of her with his cell
phone, and that she had sent an additional forty to fifty nude photographs of herself
to Brackett’s cell phone. The affidavit indicated that Howell had corroborated much
of R.H.’s report, confirming the information she provided about Brackett’s name, age,
cell phone number, vehicles, and younger brother. The affidavit also stated that R.H.
had identified Brackett from a photograph obtained from the Nebraska Sex Offender
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Registry. The affidavit explained the specific circumstances leading to Brackett’s
status as a registered sex offender. The affidavit also described Brackett’s posting of
a Craigslist advertisement in R.H.’s area that included her photograph, cell phone
number, and address and explained that police had received a report from another
female victim complaining of similar conduct by Brackett. The affidavit further
identified the criminal activity at issue, citing the Nebraska statute Brackett had
allegedly violated. Given the sexual relationship between Brackett and R.H., his
status as a registered sex offender, and the details of the crime resulting in that status,
the issuing judge could reasonably infer that the “child pornography” or “nude
photographs” of R.H. described in the affidavit were prohibited images of sexually
explicit conduct involving a minor. See, e.g., United States v. Allen, 297 F.3d 790,
794 (8th Cir. 2002) (noting that we consider all of the facts set forth in an affidavit
“for their cumulative meaning”); see also Brewer, 588 F.3d at 1170-71 (citing state-
law definition of “child pornography” and applying federal Fourth Amendment
standards to determine whether the affidavit set forth sufficient detail to provide
probable cause that evidence of a state-law violation would be recovered if the
warrant issued).
Considering the totality of the circumstances in this case, the information set
forth in Howell’s affidavit was sufficient to establish a fair probability that prohibited
images of R.H. would be found in Brackett’s residence and thus enable the issuing
judge to determine that probable cause existed to issue the warrant to search
Brackett’s residence. See Thompson, 210 F.3d at 860 (noting that both issuing judges
and affiant officers “may draw reasonable inferences from the totality of the
circumstances in determining whether probable cause exists”). Accordingly, we
affirm the district court’s denial of Brackett’s motion to suppress.
For Brackett to succeed on his mid-trial motion for a Franks hearing, he was
required to make “a substantial preliminary showing that a false statement knowingly
and intentionally, or with reckless disregard for the truth, was included by the affiant
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in the warrant affidavit” and that the allegedly false statement was necessary to the
finding of probable cause. Franks, 438 U.S. at 155-56. This substantiality
requirement is “not lightly met,” and it requires a defendant to offer specific
allegations of deliberate falsehood along with supporting affidavits or similarly
reliable statements. Id. at 171-72; see United States v. Williams, 477 F.3d 554, 558
(8th Cir. 2007). We review the denial of a motion for a Franks hearing for abuse of
discretion. United States v. Gonzalez, 781 F.3d 422, 430 (8th Cir.), cert. denied, 136
S. Ct. 139 (2015).
Brackett argues that the trial testimony of R.H., Gunias, and Howell
contradicted the information set forth in Howell’s affidavit and established that
Howell had included facts therein that he could not have known until several days
after the warrant was executed. His argument fails, for it is based upon supposition
and isolated testimonial statements taken out of context, and so we conclude that the
district court did not abuse its discretion by denying the motion.
The judgment is affirmed.
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