United States v. Shields

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
8-16-2006
USA v. Shields
Precedential or Non-Precedential: Precedential
Docket No. 05-3662
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-3662
UNITED STATES OF AMERICA
v.
ERIC SHIELDS,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. No. 01-cr-00384)
Honorable Malcolm Muir, District Judge
Argued June 30, 2006
BEFORE: AMBRO, FUENTES, and GREENBERG,
Circuit Judges,
(Filed: August 16, 2006)
Thomas A. Marino
United States Attorney
Martin C. Carlson
Assistant United States Attorney
Theodore B. Smith, III (argued)
Assistant United States Attorney
Federal Building
228 Walnut Street
Harrisburg, PA 17108
Attorneys for Appellee
James V. Wade
Federal Public Defender
Middle District of Pennsylvania
Ronald A. Krauss (argued)
Assistant Federal Public Defender-Appeals
100 Chestnut Street, Suite 306
Harrisburg, PA 17101
Attorneys for Appellant
OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. INTRODUCTION
This matter comes on before the court on appeal from a
judgment of conviction and sentence entered in the district court
on July 28, 2005, and from an order entered in the district court
on April 14, 2004, denying defendant Eric Shields’ motion to
suppress evidence the FBI obtained from a search of his home
pursuant to a search warrant and to suppress statements that he
made at his home following the search. Shields asserts that the
warrant was based on an affidavit containing intentionally or
recklessly false statements and that, purged of these statements,
the affidavit does not supply probable cause for the warrant. The
district court denied Shields’ request for a hearing on his motion
pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674(1978), as it concluded that the affidavit supports a finding of
probable cause even with the purportedly false statements
excised. For the following reasons, we will affirm the judgment
and order of the district court.
II. FACTUAL AND PROCEDURAL HISTORY
On January 2, 2001, FBI Special Agent Geoffrey Binney,
working in an undercover capacity, subscribed online to an
2
entity called the “Candyman” e-group.1 The Candyman e-group
was a free website to which one could subscribe by providing an
e-mail address. The purpose of the Candyman e-group, as
stated on its own website, was as follows:
This group is for People who love kids. You can
post any type of messages you like too [sic] or any
type of pics and vids you like too [sic]. P.S. IF
WE ALL WORK TOGETHER WE WILL HAVE
THE BEST GROUP ON THE NET.
App. at 79, ¶ 10. As this pronouncement suggests, members of
the Candyman e-group could discuss their shared interests, as
well as exchange images and video files. The website also
provided: a “polls” feature, which allowed members to
participate in surveys; a “links” section, which allowed members
to share website addresses for websites containing similar
content; and a “chat” section, which allowed members to engage
in realtime conversations with other members online. In
particular, Agent Binney was interested in investigating the use
of the Candyman e-group to transmit child pornography in
violation of 18 U.S.C. § 2252A.2 As a member of the Candyman
e-group, Agent Binney received e-mails containing hundreds of
images and video clips depicting children engaged in sexual
activities.
Through his membership in the Candyman e-group,
1
In general, individuals form e-groups on the Internet to allow
those with similar interests to associate with one another via the world
wide web, often exchanging information regarding their mutual interests.
2
18 U.S.C. § 2252A prohibits, inter alia, the knowing
transportation, possession, receipt, distribution, or reproduction of visual
depictions of children engaged in sexually explicit conduct mailed,
shipped or transported in interstate or foreign commerce. 18 U.S.C. §§
2252A(a)(1)-(6), 2256(8). The statute defines “child pornography” as
“any visual depiction, including any photograph, film, video, picture, or
computer or computer-generated image or picture” of, inter alia, “a
minor engaging in sexually explicit conduct.” 18 U.S.C. § 2256(8).
3
Agent Binney learned of another e-group called “Girls12-16,”
the purpose of which it stated on its website as follows:
Hi all, This group is for all those ho [sic]
appreciate the young female in here [sic] finest
form. Watching her develop and grow is like
poetry in motioon [sic], to an age where she takes
an interest in the joys and pleasures of sex. There
is probably nothing more stimulating than
watching a young teen girl discover the pleasures
of the orgasm. The joy of feeling like she is
actually coming into womanhood. Its [sic] an age
where they have no preconditions about anything,
just pure opennes [sic]. What a joy to be part of
that wonderful experience and to watch the
development of this perfect form. This is the place
to be if you love 11 to 16 yr olds. You can share
experiences with others,. [sic] share your views
and opinions quite freely without censorship.. [sic]
YOu [sic] can share all kinds of other information
as well regarding - your current model: if you are a
photographer. Where the best place to meet gitls
[sic] is. The difficulties you experience in your
quest. The best ways to chat up. Good places to
pick up girls. Girls you would like to share with
others. The choice is all yours. Welcome home!
Post videos and photographs . . . and how about
your true life experiences with them so other
viewers can paint a mental picture andin [sic] some
ways share the experience with you. You could
connect with others from the same country as you
and get together sociall [sic] if you wish. The
choice is all yours. How about a model resource
for photographers? It’s all up to you and is only
limited by your own imaginations. Membership is
open to anyone but you will need to post
something first. Mybe [sic] a little bit about
yourself/what your interests are (specifically),
what your age looking for (specifically), your age,
location . . . and a pic or vid would be a good to
[sic]. By doing this, other members (or potential
4
members) with the same interest may then contact
you if you wish them to.
App. at 82-83, ¶ 15. As with the Candyman e-group, Agent
Binney was interested in investigating the use of the Girls12-16
e-group to transmit child pornography in violation of 18 U.S.C.
§ 2252A. To this end, Agent Binney joined the Girls12-16 e-
group from February 2, 2001, through February 15, 2001, and
during this time he received numerous e-mails containing images
of child pornography.
In the course of his investigation, Agent Binney served a
federal grand jury subpoena on Yahoo Services (Yahoo), said to
be the owner and operator of the e-groups, directing Yahoo to
divulge information regarding the members of the e-groups
under investigation. On February 6, 2001, Yahoo shut down the
Candyman e-group and provided the FBI with a list of
approximately 3,397 members’ e-mail addresses. With this
information, the FBI issued subpoenas to the e-mail providers
requesting identifying information, including the members’
names, addresses, and phone numbers. The FBI then transmitted
this information to local FBI offices, which were assigned to
investigate individual members as part of a national investigation
dubbed “Operation Candyman.”
To assist the local offices with their investigations, Agent
Binney provided a template for a search warrant affidavit
containing general information obtained during the course of his
investigation. Of particular importance, Agent Binney explained
how he purportedly joined the e-groups and the workings of
them, including in pertinent part:
11. As a result of SA Binney’s investigation, the FBI
determined the following about the Candyman Egroup:
(a) Voluntary Egroup Membership: In order to
join the Egroup, a person had to visit the URL and
send an email to the group moderator requesting
permission to join. The moderator would then
send a confirmation notice to the requestor’s email
account, advising him that he now had access to
5
the Egroup. . . .
(b) Website Features: The Candyman Egroup’s
website had several different features. First, the
‘Files’ section provided an area for members to
post images or video files for others to download .
. . . Second, all new members of the Egroup were
immediately added to the Candyman e-mail list.
Every e-mail sent to the group was distributed to
every member automatically. Therefore, when an
individual uploaded and transmitted child
pornography to the Candyman group, those images
were transmitted to every one of the group
members . . . .
(c) Images Posted on the Web-site: The primary
feature of the Candyman Egroup’s website was the
‘Files’ section. This allowed members to upload
and download images directly to the website. . . .
[W]hen someone uploaded a file to the website,
the moderator sent a notice via e-mail to all
members advising them of the nature of the file,
the date and time the file was posted, which folder
it had been posted in, and the e-mail address of the
person who posted it.
...
12. [The other] Egroups were set up in very much
the same format as the Candyman [Egroup]. Each
[including the Girls12-16 Egroup] contained the
same e-mail group list feature so that each member
received any child pornography or erotica that was
transmitted to the group.
App. at 80-81, ¶¶ 11-12 (emphases added). These statements
were significant because they represented to any judge from
whom the FBI sought a search warrant that all members of the
Candyman and Girls12-16 e-groups automatically received all e-
mails and that therefore all members must have received e-mails
that contained child pornography.
6
Special Agent Keith Cutri of the FBI’s Philadelphia
Division used Agent Binney’s template to investigate certain
members, including Shields, who signed up for the Candyman
and Girls12-16 e-groups using the e-mail address
“LittleLolitaLove@aol.com.” In addition to the representations
contained in Agent Binney’s template, the search warrant
affidavit Agent Cutri submitted contained certain particularized
representations with regard to Shields. The affidavit explained
that information obtained from AOL revealed that the
“LittleLolitaLove” e-mail address was registered to Shields.
Also, the affidavit explained that the “LittleLolitaLove” e-mail
address appeared on both the Candyman and Girls12-16 e-group
member lists obtained from Yahoo, and the affidavit further
specified the membership registration dates. As a member of the
two e-groups in question, Shields had access to downloadable
images of child pornography for a period exceeding one month
until Yahoo shut down the groups. Finally, the affidavit stated
the following with regard to Shields:
25. From 01/02/2001 through 02/06/2001,
LittleLolitaLove@aol.com received e-mail
containing images of nude children engaged in
sexual activity and/or posing in provocative
positions.
App. at 86, ¶ 25. Paragraph 25 of the affidavit included
examples by file name and description. See, e.g., app. at 86, ¶
25 (“Little boy simulating intercourse with little girl, both
nude.”). This representation apparently derived from the general
representation made in Agent Binney’s template affidavit that
“Every e-mail sent to the group was distributed to every member
automatically.” App. at 80, ¶ 11(b).
The search warrant affidavit Agent Cutri submitted also
included statements regarding the “Methods and Habits of Child
Pornographers,” which described certain “usual” or “typical”
behaviors of such persons, see app. at 88-92, ¶ 29, and explained
the specialized meaning of the term “Lolitas” in the vernacular
of child pornographers. App. at 88, ¶ 29(a). Agent Cutri’s
affidavit concluded with a statement concerning the highly
technical expertise needed to search computer systems, which
7
necessitated the need to seize Shields’ computer equipment.
Agent Cutri submitted the search warrant affidavit to a
magistrate judge, who in turn determined that there was probable
cause to search Shields’ home. On November 29, 2001, FBI
agents executed the search warrant at Shields’ residence and
seized computer equipment belonging to Shields. At the time of
the search, agents had an opportunity to speak with Shields, who
waived his Miranda3 rights and agreed to an interview.
Significantly, Shields provided a handwritten statement
acknowledging that he had viewed, obtained, received and
possessed child pornography from the Internet with his
computer. Shields’ statement was consistent with the results of a
subsequent search of his computer which contained hundreds of
images of child pornography, including images that reflected
cruel sexual abuse and mistreatment of minors, and numerous
saved e-mails evidencing his receipt of the child pornography.
FBI agents also discovered a cache of binders and notebooks
containing child pornography.
On December 5, 2001, a federal grand jury returned a
single count indictment against Shields charging him with
possession of computer disks and other material containing
images of child pornography in violation of 18 U.S.C. §§
2252A(a)(5)(B) and 2252A(b)(2).4 Shields entered a plea of
guilty on February 27, 2002.
Following Shields’ guilty plea, the prosecution notified
3
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).
4
18 U.S.C. § 2252A(a)(5)(B) makes it unlawful to “knowingly
possess[] any book, magazine, periodical, film, videotape, computer
disk, or any other material that contains an image of child pornography
that has been mailed, or shipped or transported in interstate or foreign
commerce by any means, including by computer, or that was produced
using materials that have been mailed, or shipped or transported in
interstate or foreign commerce by any means, including by computer,”
which offenses are punishable as provided in 18 U.S.C. § 2252A(b).
8
defense counsel of certain erroneous factual assertions made in
the search warrant affidavit. Most notably, in a letter dated July
9, 2002, the prosecution advised defense counsel that the
statement in the affidavit that “[e]very e-mail sent to the group
was distributed to every member automatically” was “apparently
not accurate.” App. at 98. In fact, the prosecution explained,
members could select from three delivery options: receiving all
e-mails, receiving only a daily digest of e-mails, or receiving no
e-mails at all. Thus, the government’s representation that mere
membership in the e-groups equated with receipt of child
pornography by “every member automatically” was false.
Indeed, an individual could have been a member of the e-groups
without receiving any e-mails transmitting images of child
pornography. As an analytical matter, this revelation also
undermined both the statement in paragraph 25 that
“LittleLolitaLove@aol.com received e-mail containing images
of nude children engaged in sexual activity and/or posing in
provocative positions,” and the list of specific examples of files
received. Without specifying which e-mail delivery option
Shields chose, the government would not have been able to
make this particularized representation in the affidavit.
By letter to defense counsel dated October 9, 2002, the
prosecution wrote “to provide [counsel] further information”
regarding the inaccuracies in the affidavit. App. at 116. The
prosecution explained that during a hearing in another district
court pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct.
2674, certain evidence “provide[d] a basis for challenging Agent
Binney’s testimony” regarding his registration with the
Candyman e-group, on which he purportedly based statements in
the affidavit. App. at 117. In particular, Yahoo produced
evidence demonstrating that a person could register in either of
two ways as an e-group member: (1) via the e-group’s website,
in which case “[Agent Binney] would have automatically been
presented with e-mail delivery options;” and (2) via e-mail to the
e-group moderator, in which case the delivery options would not
have been presented automatically. App. at 117. The
prosecution explained that, although Agent Binney testified that
he subscribed via e-mail and thus was not presented with the e-
mail delivery options, Yahoo produced contradictory evidence
demonstrating that Agent Binney, in fact, registered via the e-
9
group’s website, thus providing him with the e-mail delivery
options. In closing its letter, however, the prosecution cautioned
that it believed there was “reason to question” the accuracy of
Yahoo records “based on past experience.” App. at 117.
Any reason to question Yahoo’s records vanished,
however, after an internal FBI investigation verified the
accuracy of Yahoo’s records and thus confirmed that Agent
Binney’s testimony was false. By letter to defense counsel dated
January 3, 2003, the prosecution revealed the specifics of the
FBI investigation and explained its ramifications:
[O]n December 5, 2002, representatives of the FBI
Cyber Operation Deployment Unit’s Special
Technologies Applications Section traveled to
Yahoo! headquarters to review the source code for
the eGroups.com website. As a result of this
review, the FBI concluded that Special Agent
Binney’s subscription to ‘thecandyman’ e-group
was generated as a direct result of Special Agent
Binney clicking on a button on a subscription web
page that displayed e-mail delivery options. As a
result, Special Agent Binney would have been
confronted by e-mail delivery options.
App. at 121. In sum, contrary to Agent Binney’s statements in
his template affidavit, he had various e-mail delivery options
when he joined the Candyman e-group, one of which would
have resulted in him not receiving any e-mails. Thus, contrary
to his subsequent testimony at the district court hearing in
another case, he did have the delivery options when he
registered.
In light of the emerging factual inaccuracies in the search
warrant affidavit, Shields moved to revise his guilty plea to a
conditional plea pursuant to Federal Rule of Criminal Procedure
11(a)(2), which preserved his right to appeal from the denial of a
motion to suppress and the district court granted his request. On
February 13, 2004, Shields filed a motion to suppress the
evidence obtained pursuant to the search warrant as well as the
statements he made after the search. Shields claimed that
10
because of the false statements in the affidavit, the court should
suppress the evidence the FBI obtained from his home, and he
further claimed that the court should suppress his subsequent
statements to the FBI as fruit of the illegal search. Shields
requested a hearing pursuant to Franks v. Delaware in order to
test the veracity of the search warrant affidavit.
In an order entered April 14, 2004, the district court
denied his request for a Franks hearing and denied his motion to
suppress. The court assumed for purposes of its decision that the
affidavit contained intentionally or recklessly false statements
but held that even purged of the offending material the affidavit
supported a finding of probable cause. App. at 13-15.
Specifically, the court concluded:
The affidavit, even after being purged of
inaccurate statements, contains several asserted
facts that combine to support a finding of probable
cause. Those facts show (1) that the purpose of the
‘Candyman’ and ‘Girls12-16' websites clearly was
to share child pornography, (2) that Shields
voluntarily became a member of the websites, and
(3) that images containing child pornography were
available to all members. The affidavit contains
extensive background information regarding
subscribers to such websites and the proclivity of
members to use such websites to collect, trade and
retain images of child pornography. It is also clear
that Shields subscribed or joined the websites.
The affidavit in this case directly tied
Shields to two child pornography websites and
documented the distribution of more than 100
images of child pornography from those sites
while Shields participated in the websites. The
affidavit then tied Shields’s residence to this
activity through the email address used by Shields,
‘LittleLolitaLove@aol.com’ an email address
which was itself strongly suggestive of
pornographic activity, and was directly connected
through billing records to Shields’s home. Read in
11
a commonsense fashion, these facts clearly link
Shields’s home to criminal activity.
App. at 15 (footnote omitted).
The court ultimately entered a judgment of conviction
against Shields on July 28, 2005, which included, inter alia, an
18-month custodial term. Shields timely filed this appeal on July
29, 2005.
III. JURISDICTION AND STANDARD OF REVIEW
The district court had jurisdiction under 18 U.S.C. §
3231, and we have jurisdiction under 28 U.S.C. § 1291. In
reviewing the district court’s denial of a motion to suppress, we
review its factual findings for clear error and exercise plenary
review over its legal determinations. See United States v. Ritter,
416 F.3d 256, 261 (3d Cir. 2005). Where, as here, “a district
court, in reviewing a magistrate’s determination of probable
cause, bases its probable cause ruling on facts contained in an
affidavit, we exercise plenary review over the district court’s
decision.” Id. (citing United States v. Conley, 4 F.3d 1200, 1204
(3d Cir. 1993)); see also United States v. Martin, 426 F.3d 68, 74
(2d Cir. 2005) (“Whether the untainted portions [of the affidavit]
suffice to support a probable cause finding is a legal question,
and we review the district court’s ruling on that question de
novo.”) (internal quotation marks and citation omitted).
IV. DISCUSSION
We note at the outset of our discussion that while this
case seems to be the only one that has come before this court
arising from “Operation Candyman,” numerous other courts
have addressed similar challenges. With over three thousand
members linked to the e-groups in question, Agent Binney’s
misrepresentations have spawned a veritable cottage industry of
12
Franks challenges by Candyman defendants across the country.5
See, e.g., Martin, 426 F.3d 68; United States v. Ramsburg, 114
Fed. Appx. 78 (4th Cir. 2004); United States v. Froman, 355
F.3d 882 (5th Cir. 2004); United States v. Hutto, 84 Fed. Appx.
6 (10th Cir. 2003); United States v. Kunen, 323 F. Supp. 2d 390(E.D.N.Y. 2004); United States v. Bailey, 272 F. Supp. 2d 822(D. Neb. 2003); United States v. Strauser, 247 F. Supp. 2d 1135(E.D. Mo. 2003); United States v. Perez, 247 F. Supp. 2d 459(S.D.N.Y. 2003).
The rule governing allegedly misleading search warrant
affidavits is well established. See United States v. Frost, 999
F.2d 737, 742 (3d Cir. 1993) (following Franks v. Delaware, 438
U.S. 154, 98 S. Ct. 2674). Where a defendant demonstrates by a
preponderance of the evidence “that a false statement knowingly
and intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit, and [that] the
allegedly false statement is necessary to the finding of probable
cause,” the Fourth Amendment requires that “the fruits of the
search” be excluded “to the same extent as if probable cause was
lacking on the face of the affidavit.” Franks, 438 U.S. at 155-56,
98 S. Ct. at 2676. Accordingly, in order to void the warrant and
suppress the evidence, the defendant “must show both [1] that
bad faith or reckless disregard existed on the part of the affiant,
and [2] that there would have been no probable cause but for the
incorrect statement.” Frost, 999 F.2d at 743; see also United
States v. Harvey, 2 F.3d 1318, 1323 (3d Cir. 1993).
1. Intentional or Reckless Falsehood
In denying Shields’ request for a Franks hearing, the
district court did not make any findings with regard to the first
element of the two-part Franks test and instead assumed for
purposes of its decision that the affidavit contained intentionally
or recklessly made false statements. In this regard we point out
that it is beyond question that the police cannot insulate a
deliberate falsehood from a Franks inquiry simply by laundering
5
Agent Binney no longer is with the FBI. See United States v.
Perez, 247 F. Supp. 2d 459, 463 (S.D.N.Y. 2003).
13
the falsehood through an unwitting affiant who is ignorant of the
falsehood. Franks, 438 U.S. at 164 n.6, 98 S.Ct. at 2680 n.6;
United States v. Calisto, 838 F.2d 711, 714 (3d Cir. 1988)
(holding that conduct of officers who relayed facts to the affiant
was relevant to Franks inquiry). To this end, Shields cites two
cases in which district courts conducted evidentiary hearings on
the affidavit of Agent Binney that Agent Cutri utilized in this
case as a portion of Cutri’s affidavit, and determined that it
contained false statements made with reckless disregard for the
truth. Appellant’s br. at 16-17; 19-20 (citing Perez, 247 F. Supp.
2d at 479; Strauser, 247 F. Supp. 2d at 1143). Shields asserts
that these factual findings “are binding on the Government as a
matter of offensive collateral estoppel.” Appellant’s br. at 16;
see also United States v. Coreas, 419 F.3d 151, 156 (2d Cir.
2005) (“These factual findings [from Perez and Strauser], which
the Government chose not to appeal, are therefore binding on the
Government.”). We, however, need not address the application
of nonmutual offensive collateral estoppel inasmuch as we agree
with the district court that Cutri’s affidavit even purged of the
offending material supports a finding of probable cause.
2. Probable Cause
In Illinois v. Gates, the Supreme Court enunciated the
principles that animate a probable cause determination:
The task of the issuing magistrate is simply to
make a practical commonsense decision whether,
given all the circumstances set forth in the affidavit
before him . . . there is a fair probability that
contraband or evidence of a crime will be found in
a particular place. And the duty of a reviewing
court is simply to ensure that the magistrate had a
‘substantial basis for . . . concluding’ that probable
cause existed.
462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332 (1983) (internal
quotation marks and citation omitted). “Probable cause is a fluid
concept – turning on the assessment of probabilities in particular
factual contexts – not readily, or even usefully, reduced to a neat
set of legal rules.” Id. at 232; 103 S.Ct. at 2329. The Fourth
14
Amendment, however, “generally bars officials from
undertaking a search or seizure absent individualized suspicion.”
Chandler v. Miller, 520 U.S. 305, 308, 117 S.Ct. 1295, 1298
(1997). It is well established that a search “must be supported
by probable cause particularized with respect to that person,”
and that “mere propinquity to others independently suspected of
criminal activity does not, without more, give rise to probable
cause to search that person.” Ybarra v. Illinois, 444 U.S. 85, 91,
100 S.Ct. 338, 342 (1979).
Shields asserts that the excised affidavit does not include
sufficient particularized information to support a finding that
there was probable cause for issuance of the warrant in his case
and that his mere propinquity to other e-group members is an
insufficient basis on which to establish probable cause per
Ybarra. In addition, Shields asserts that the district court erred
in concluding that the websites fairly can be characterized as
having wholly illegal purposes and that, in any event, nothing in
the affidavit links the generic profile of child pornography
collectors to him. The prosecution counters by arguing that
Shields premises his challenge on “one narrow aspect of the
affidavit,” Appellee’s br. at 13, namely, the assertion that every
member, including Shields, automatically received every e-mail
containing images of child pornography.
To be sure, the prosecution understates the import of this
so-called “narrow aspect.” Although the prosecution states that
“the error was not recognized,” thus resulting in submission of
the affidavit “without further clarification on this point,” id., it is
hard to conceive what “clarification” it believes could remedy
the unquestionably false representation and which several courts,
after full evidentiary hearings, concluded was made with
reckless disregard for its truth. See Perez, 247 F. Supp. 2d at
479-80; Strauser, 247 F. Supp. 2d at 1142-43. Considering that
the investigation targeted potentially thousands of e-group
members, inclusion of the false statements in the “template”
affidavit was a blunder of great proportion. What is more, the
representation that every e-group member received every e-mail
that contained images of child pornography was perhaps the
strongest and most direct link between Shields and the suspected
illegal activity, and its inclusion is troubling. Indeed, the
15
government deduced from this misrepresentation that Shields, as
a member, received images of child pornography via e-mail. In
the circumstances, we are satisfied that these misrepresentations
were important in establishing probable cause.
Yet, despite their importance, these misrepresentations
were not necessary to a finding of probable cause inasmuch as
without them other, unchallenged portions of Cutri’s affidavit
support a finding of probable cause. We find significant, among
other facts tying Shields to the e-groups in question, that Shields
voluntarily registered for two e-groups that were devoted
principally to sharing and collecting child pornography and in
doing so used an e-mail address strongly suggestive of an
interest in collecting child pornography.
A. Registration with Multiple E-groups
Inasmuch as unchallenged portions of the search warrant
affidavit demonstrated that Shields subscribed to not one, but
two e-groups devoted largely to exchanging child pornography,
this case is distinguishable from those on which he principally
relies, Perez and Strauser, as in those cases the affidavits alleged
that the putative defendant belonged only to the Candyman e-
group. See Perez, 247 F. Supp. 2d at 462, 486; Strauser, 247 F.
Supp. 2d at 1137. Moreover, this difference is not merely
quantitative but also qualitative inasmuch as the Girls12-16 e-
group’s stated purpose, which repeatedly urged members to
share images and photographs of “the young female in here [sic]
finest form,” was far more explicit than that of the Candyman
group, compare app. at 79, ¶ 10 (Candyman proclamation), with
app. at 82-83, ¶15 (Girls12-16 proclamation), and thus increased
the fair probability that Shields downloaded available
pornographic images such that evidence of his possession would
be found.
The Court of Appeals for the Second Circuit recognized
as much in Martin when it affirmed the denial of a Franks
challenge a member of Girls12-16 brought, explaining that the e-
group’s “welcome message unabashedly announced that its
16
essential purpose was to trade child pornography,” and that its
very title “further made plain the site’s focus was on minor
girls.” 426 F.3d at 75; see also id. at 77 (“At its core, the modus
operandi of the Girls12-16 website was criminal, and that is
determinative in this case.”). We agree with the court’s
characterization of the Girls 12-16 group. Indeed, the Perez
court recognized that the defendant’s absence of membership in
the Girls12-16 e-group set that case apart from other Candyman
cases in which Franks challenges failed:
The Coplan case is distinguishable, at least to an
extent, because the search warrant affidavit there
also noted that the defendant was a member of, in
addition to the Candyman group, another Egroup
apparently centered around disturbing child
pornography, entitled ‘Girls12-16.’
247 F. Supp. 2d at 486 (emphasis added).6 Although Shields
suggests that an individual such as himself simply might have
“stumbl[ed] upon the sites,” never to return after discovering
their content, see Appellant’s br. at 26, this possibility is remote
given his registrations with these e-groups and his subsequent
failure to cancel his memberships, one of which continued for
more than a month and ended only when Yahoo shut down the e-
group. See app. at 84, 86, ¶ ¶ 18, 24 (stating that Shields joined
the Candyman e-group on January 2, 2001, and remained a
member until February 6, 2001, when Yahoo terminated the
group); accord United States v. Gourde, 440 F.3d 1065, 1070-71
(9th Cir. 2006) (en banc) (affirming denial of motion to suppress
in child pornography prosecution and finding probable cause
based on, among other things, the defendant’s continuing
membership on “Lolitagurls.com” website, which he maintained
until the FBI shut down the site).7
6
When it cited Coplan the Perez court was referring to a bench
ruling in United States v. Coplan, No. CR 02-319 (E.D.N.Y. Aug 15,
2002). See Perez, 247 F. Supp. 2d at 485.
7
Although the Candyman and Girls 12-16 e-groups at issue had
been defunct for nearly nine months by the time the FBI filed its warrant
application and supporting affidavit, Shields does not raise a staleness
17
B. Suggestive E-mail Address
In addition to registering with multiple e-groups, we find
significant Shields’ self-selected e-mail moniker,
“LittleLolitaLove,” which carries much meaning in light of the
unchallenged statements in the affidavit regarding the use of the
term “Lolitas” in the parlance of child pornography.
Specifically, the affidavit explained that “[s]ometimes
individuals whose sexual objects are minors will refer to these
images as “‘Lolitas,’” a term whose etymology “comes from the
titles of old child pornography magazines.” App. at 88, ¶ 2(a).8
Accordingly, Shield’s use of the name “LittleLolitaLove”
registering for multiple e-groups where such images were
available and disseminated bolsters “a practical, commonsense
decision” that Shields likely downloaded such images, and thus
there existed “a fair probability that contraband or evidence of a
crime [would] be found.” Gates, 462 U.S. at 238-39, 103 S.Ct.
challenge. While we need not discuss the issue separately, we note that
a staleness challenge would not have altered our decision. The
determination of staleness requires more than simply counting the
months between the facts relied on and the issuance of the warrant and
is instead context dependant. See Harvey, 2 F.3d at 1322. We have
noted that collectors of child pornography often store their material and
rarely discard it. See id. at 1322-23 (citing with approval cases that
dismissed staleness challenges and noted that collectors of child
pornography rarely, if ever, dispose of their collections). Furthermore,
we have recognized that information suggesting a “continuing offense”
is more durable than information of discrete offenses. See United States
v. Urban, 404 F.3d 754, 774 (3d Cir. 2005) (“[W]here the facts adduced
to support probable cause describe a course or pattern of ongoing and
continuous criminality, the passage of time between the occurrence of
the facts set forth in the affidavit and the submission of the affidavit
itself loses significance.”).
8
Of course, as noted by the district court, despite the
appropriation of the term by child pornographers, the term actually has
a more distinguished pedigree rooted in the literature of Vladimir
Nabokov, and, before him, Heinz von Lichberg. Nonetheless, given the
context of this case and the lack of any representation to the contrary, we
reject the possibility that Shields’ use of the name “LittleLolitaLove”
was related to the texts of Nabokov or von Lichberg.
18
at 2332. Moreover, Shields’ use of this e-mail address
undermines his present argument that the generalized
information regarding the behavior of child pornography
collectors has no bearing on probable cause absent “a foundation
demonstrating that Shields has, in fact, exhibited that behavior.”
Appellant’s br. at 25. His choice of e-mail address supports a
practical commonsense inference to the contrary.
Shields’ use of the “LittleLolitaLove” e-mail address sets
his case even further apart from Perez and Strauser than does his
membership in two e-groups devoted largely to exchanging child
pornography rather than one e-group as was true in those cases.
In Perez, the defendant did not have a suggestive e-mail address
or screen name. See 247 F. Supp. 2d at 471
(“navajablade@aol.com”). While the defendant in Strauser had
used mildly suggestive screen names, “EZ2bhrdnla” and
“EZ2bhrdnSTL,” 247 F. Supp. 2d at 1137, these names fell far
short of “LittleLolitaLove,” which pertains more precisely to
child pornography and the criminal offense being investigated.
Shields’ use of “LittleLolitaLove” makes this case more like
Froman, in which the Court of Appeals for the Fifth Circuit
determined that certain of the defendant’s screen names, namely
“Littlebuttsue” and “Littletitgirly,” “reflected his interest in child
pornography.” 355 F.3d at 890. If anything, “LittleLolitaLove”
with its express reference to “Lolitas,” understood in this context
as images of child pornography, can be characterized as more
overtly suggestive of offenses related to collecting child
pornography than the screen names deemed suggestive in
Froman.
Finally, Shields’ use of “LittleLolitaLove” to register for
both the Candyman and Girls12-16 e-groups and his failure to
cancel his memberships, further undermine any suggestion that
he may have “stumbl[ed] upon the sites,” never to return after
discovering their content. See Appellant’s br. at 26. Thus,
Shields’ choice of e-mail address largely eliminates a concern
the district court articulated in Strauser “that one could not be
sure that the site contained child pornography until after one had
subscribed,” 247 F. Supp. 2d at 1144, for the e-mail address
Shields chose suggests that he likely collected or at least sought
out such images. Although Shields submits that his e-mail
19
address was simply “tasteless and sophomoric,” Appellant’s br.
at 26, this is an understatement given the context in which he
used it.
We have reviewed Shields’ remaining arguments and find
them to be without merit, and thus we need not discuss them at
length. In particular, we find unavailing the suggestion that
probable cause was lacking because the FBI could have
determined with certainty whether he actually downloaded
illegal images. Whether the FBI could have provided more
information is not the benchmark, and other courts of appeals
have rejected similar arguments. Gourde, 440 F.3d at 1073 n.5
(“[T]he benchmark is not what the FBI ‘could have’ done. An
affidavit may support probable cause even if the government
fails to obtain potentially dispositive information.”); United
States v. Ozar, 50 F.3d 1440, 1446 (8th Cir. 1995) (holding that
trial court “erred in focusing [its] Franks v. Delaware analysis on
what the FBI could have learned with more investigation.”). For
purposes of our analysis, it is of no import that the FBI could
have discovered more corroborating evidence, such as actual
downloads, so long as the valid information it supplies satisfies
the “fair probability” standard articulated in Gates. 462 U.S. at
238-39, 103 S.Ct. at 2332.9
V. CONCLUSION
In sum, if there were a Candyman defendant well-suited
to champion Fourth Amendment protections, clearly it is not
Shields. In making a practical commonsense decision required
by Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332, we conclude
that the untainted portions of Cutri’s affidavit seeking the search
warrant contained sufficient facts to support a finding that there
was a fair probability that Shields possessed child pornography
and that there was evidence of such possession in the locations
9
In view of our result, we need not address the applicability of
the good faith exception articulated in United States v. Leon, 468 U.S.
897, 104 S.Ct. 3405 (1984), that the government advances.
20
described in the affidavit. The order of April 14, 2004, and the
judgment of July 28, 2005, will be affirmed.
21