United States v. Djelilate

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4789
ALAIN DJELILATE,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CR-98-128-PJM)
Submitted: August 17, 1999
Decided: September 3, 1999
Before HAMILTON and WILLIAMS, Circuit Judges,
and PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
James Wyda, Federal Public Defender, Beth Farber, Chief Assistant
Federal Public Defender, Baltimore, Maryland, for Appellant. Lynne
A. Battaglia, United States Attorney, Sandra Wilkinson, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Alain D. Djelilate appeals his convictions for child pornography
and counterfeiting. Djelilate pled guilty to these charges and reserved
the right to appeal denial of his motion to suppress evidence obtained
in a search of his home. Finding no error, we affirm.
As part of an undercover operation, the United States Customs Ser-
vice established an Internet website that offered child pornography for
sale. An e-mail message, under a screen name traced to Djelilate, was
received by the Government at this website requesting that a customer
interest questionnaire be sent to "Alain Delila" at Djelilate's Maryland
address. After receiving the completed questionnaire listing Djeli-
late's preferences in child pornography, the Government mailed a
catalogue. On January 3, 1998, the Government received an order
from "Alain Delila" for two videocassettes listed in the catalogue,
"Randy Boys" and "Young Boys."
The Government then obtained an anticipatory search warrant for
Djelilate's residence. The affidavit in support of the warrant, which
was prepared by a Customs Service investigator, contained extensive
"profile information" that was based on the"affiant's knowledge,
training, experience, as well as the training and experience of other
law enforcement personnel and experts from whom your affiant has
received training . . . ." The affidavit, for instance, averred that child
pornographers have a tendency to collect and secret pornographic
materials on computer disks and hard drives. Another characteristic
noted in the affidavit is the tendency of persons receiving child porno-
graphic material over the Internet to correspond with others with simi-
lar interests and to share, buy and sell pornographic materials. The
warrant authorized an expansive search of Djelilate's residence for
the videocassettes ordered from the catalogue as well as "[a]ny and
all originals and all copies and all prints, videos, videotapes, photo-
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graphs, negatives, and computer data which may contain images of
visual depictions of minors engaged in sexually explicit conduct . . . ."
(J.A. 29).
The warrant was executed shortly after the controlled delivery of
the package containing one of the tapes ordered by Djelilate. The
search uncovered the tape as well as CD-ROMs containing hundreds
of images of child pornography. Djelilate was charged with one count
of possession of child pornography and one count of counterfeiting,
in violation of, respectively, 18 U.S.C. § 2252(a)(4) and 18 U.S.C.
§ 471. The district court denied Djelilate's motion to suppress the
fruits of the search of his residence, and he pled guilty to both counts
while reserving the right to appeal the suppression ruling. He was sen-
tenced to thirty months' imprisonment.
On appeal, Djelilate argues that the affidavit's omission of a mate-
rial fact vitiated the search warrant's legality. Under Franks v.
Delaware, 438 U.S. 154 (1978), a warrant may be voided and the
fruits of the search suppressed in some limited circumstances in
which the underlying affidavit contains material falsehoods. Prior to
even obtaining a hearing on the matter, however, a defendant must
make a preliminary showing that the false statement was made know-
ingly or with reckless disregard for the truth and that "the false infor-
mation [was] essential to the probable cause determination." United
States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990).
The affidavit for the warrant alleged that "an order for two child
pornography tapes was received from Djelilate." (J.A. 15). However,
the affidavit did not note that the envelope containing the order for
the two tapes bore a postmark from the State of Washington. Djeli-
late, who resides in Maryland, contended that the postmark should
have been disclosed to the magistrate judge because it tended to show
that the purchase order did not originate with him. In denying the
request for a Franks hearing, the court determined the postmark was
not a material matter because there was sufficient evidence connect-
ing Djelilate to the order.
When allegedly false information is included in an affidavit, the
materiality question is whether, "when material that is the subject of
the alleged falsity or reckless disregard is set to one side, there
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remains sufficient content in the warrant affidavit to support a finding
of probable cause." Franks, 438 U.S. at 71-72. Omissions of material
from an affidavit may also be subjected to a Franks inquiry, although
there is a somewhat different standard of materiality:
[T]o be material under Franks, an omission must do more
than potentially affect the probable cause determination: it
must be necessary to the finding of probable cause. For an
omission to serve as the basis for a hearing under Franks,
it must be such that its inclusion in the affidavit would
defeat probable cause for arrest. Omitted information that is
potentially relevant but not dispositive is not enough to war-
rant a Franks hearing.
Colkley, 899 F.2d at 301 (internal quotation and citations omitted).
We examine the information in the affidavit together with the omitted
information to determine whether there would have been probable
cause to believe the tape had been ordered by Djelilate. See id. at 300-
01.
Although the postmark may have been relevant to the issue of the
order's origin, other factors support a conclusion that Djelilate placed
the order. Djelilate initially contacted the pornographic website; he
requested, received and filled out a questionnaire, and he asked for a
catalogue to be sent to his Maryland residence under the name "Alain
Delila." A few months later, an order from that catalogue was
received, under the same name, "Delila," that requested that the tapes
be mailed to the same Maryland residence. We agree with the district
court that disclosure of the postmark would not have defeated the
finding of probable cause.
Djelilate's second argument is that the affidavit's"profile informa-
tion" provided an insufficient basis for probable cause to permit the
police to search for anything except the tape ordered from the Gov-
ernment. Djelilate relies on United States v. Weber, 923 F.2d 1338(9th Cir. 1991), which also involved an anticipatory warrant and a
controlled delivery of pornographic material. In Weber, the Ninth Cir-
cuit held that information about the proclivities of"child pornogra-
phers," in the absence of any evidence that the focus of the search had
done anything other than place a single order for pornographic mate-
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rial, was insufficient to establish probable cause that other porno-
graphic material would be found. Djelilate argues that the affidavit
similarly failed to establish probable cause to believe that he had any
pornography in his house other than the tape sent by the Government.
The use of profiles in conjunction with other evidence is permissi-
ble to establish probable cause. See United States v. Aguiar, 825 F.2d
39, 40-41 (4th Cir. 1987) (approving use of drug courier profile in
warrant application). Djelilate argues that except for the single order
for the tapes, the Government failed to demonstrate probable cause
that he belonged to any of the categories profiled in the affidavit.
Djelilate contends that nothing in the affidavit would indicate that the
order he placed with the undercover website was anything other than
an isolated occurrence.
We review the factual findings underlying the district court's legal
conclusions in regard to a motion to suppress under the clearly erro-
neous standard and the court's legal conclusions de novo. See United
States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992). In assessing a
search warrant application for probable cause, the magistrate judge is
to "make a practical, common sense decision whether, given all the
circumstances set forth in the warrant affidavit, . . . there is a fair
probability that contraband or evidence of crime will be found in a
particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983). We then
assess on appeal whether the magistrate judge had a"substantial
basis" for finding probable cause. Id. at 239.
We conclude that there was a substantial basis for the magistrate
judge's finding of probable cause. Unlike the situation in Weber, there
are other factors in this case beyond a single order supporting proba-
ble cause to believe Djelilate would have other pornographic materi-
als in his home. Djelilate contacted the undercover pornography
website only a week or so after it commenced operation, sought a
questionnaire, and answered it frankly, indicating preferences for por-
nography portraying young boys. One of his Internet personal profiles
listed his age as eleven, presumably to facilitate communication with
others that age. We find there was a substantial basis for finding prob-
able cause that the tapes that were the subject of the controlled deliv-
ery would not be the only pornographic material in Djelilate's home
and thus the district court properly denied his motion to suppress. We
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therefore affirm Djelilate's convictions. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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