United States v. Watzman, H. Marc

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4669
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
H. MARC WATZMAN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 1032—John F. Grady, Judge.
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ARGUED OCTOBER 3, 2006—DECIDED MAY 16, 2007
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Before MANION, KANNE, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Marc Watzman conditionally
pleaded guilty to one count of possessing child pornogra-
phy, 18 U.S.C. § 2252A(a)(5)(B), and nine counts of
receiving child pornography, 18 U.S.C. § 2252A(a)(2)(A),
(b)(1). On appeal he challenges the denial of his motion
to suppress evidence seized from his home, arguing that
the search warrant was not based on probable cause
because it was issued on the basis of illegally obtained
evidence. Watzman also challenges the denial of his mo-
tion to require the government to prove his “intent to
traffic” in connection with the nine counts of receiving
child pornography. He contends the statute is unconstitu-
tionally vague absent this element. We affirm.
2 No. 05-4669
I. Background
In early 2003 a federal investigation based in New
Jersey uncovered a company called “Regpay” located in
Minsk, Belarus, that operated numerous fee-based
websites containing pornographic images of children. By
purchasing memberships to these sites, federal agents
were able to view the websites’ content and confirm that
they advertised and included child pornography. In June
2003 investigators seized the company’s customer data-
base, which consisted of the names, mailing and e-mail
addresses, and credit card numbers of the customers
who bought access to any of its websites, as well as the
dates of purchase and the names of the websites. One
such customer was Marc Watzman, a Chicago resident
who had paid for access to eight of the company’s web-
sites, including sites named “www.lolitacastle.com” and
“www.undergroundlolitastudio.com.”
In April 2003 Watzman began transacting with
“Pedoshop,” a “child pornography production organization”
based in Russia. Through e-mail, Pedoshop offered
Watzman access to its “very big child porno collection,” and
shortly thereafter Watzman placed an order. Between
April and October he ordered 89 video clips that contained
child pornography. Watzman paid $9700 to Pedoshop for
the videos.
Based on information Watzman had supplied in register-
ing for the websites, investigators tracked him to a post
office box in Chicago and from there obtained his home
address and driver’s license records. Through visual
surveillance, investigators confirmed that Watzman, a 37-
year-old pediatrician, lived in a garden apartment at 1454
North Wieland Street in Chicago. On October 22, 2003,
officers from the Chicago Police Department, cooperating
with federal agents, went to Watzman’s apartment and
told him they were following up on a burglary he had
No. 05-4669 3
reported two years earlier. Watzman allowed the officers
to enter his apartment, where they noticed a desktop
computer connected to an active cable modem, as well as
a laptop computer.
On October 24, 2003, federal agents applied for a
warrant to search Watzman’s apartment and seize evi-
dence of his receipt and possession of child pornography,
including credit card records; documents confirming his
ownership of the post office box used to obtain membership
to pornographic websites; computer hardware and soft-
ware; and any sexually explicit images of children, includ-
ing videos, photographs, and digital images. The war-
rant application was supported by a 23-page affidavit by
Ronald Wolflick, a special agent from the Bureau of
Immigration and Customs Enforcement and supervisor of
the Cyber-Crimes Investigations Group in Chicago. Among
the information included in the affidavit were four para-
graphs in which Wolflick described the contact between
Watzman and Chicago police officers two days earlier. The
magistrate judge issued the warrant, and a search was
conducted the following day. Among the items seized were
Watzman’s desktop and laptop computers, which held
thousands of digital images depicting child pornography,
and a number of DVDs with similar content, some en-
crypted and requiring extensive decoding.
Watzman was ultimately charged with one count of
possessing child pornography, nine counts of receiving
it, and one count of money laundering. Among various
pretrial motions he filed was a motion to quash the search
warrant and suppress all evidence seized during its
execution on October 25. He principally argued that the
ruse engaged in by the Chicago police officers to gain
consent to enter his home on October 22 invalidated the
search warrant. Watzman contended the ruse was un-
lawful and any information gleaned during the officers’
visit—in particular, the knowledge that he had two
4 No. 05-4669
computers inside his home—was tainted. Absent this
information, he argued, there was no reason to believe
contraband would be found in the apartment and thus no
basis for the warrant. The district court held that the
October 22 consent search was invalid, but declined to
suppress the evidence obtained on October 25 pursuant to
the warrant. The court reasoned that “the remaining
averments in the affidavit of Agent Wolflick provide
probable cause for the issuance of the warrant.”
Watzman also filed a motion to require the government
to prove, as an element of receiving child pornography,
that he intended to traffic in child pornography. Other-
wise, he argued, no meaningful distinction could be made
between “receiving” and “possessing” child pornography
and therefore the statute was unconstitutionally vague.
The district court denied the motion. Watzman then
entered into a plea agreement with the government,
pleading guilty to one count of possessing and nine counts
of receiving child pornography and reserving his right to
challenge the district court’s rulings on his suppression
motion and his motion challenging the receipt statute. The
district court imposed concurrent sentences of five
years’ imprisonment on each count, the minimum penalty
under the statute and below the advisory guidelines range
of 78 to 97 months.
II. Discussion
On appeal Watzman first argues that the affidavit in
support of the application for a search warrant did not
establish probable cause to believe that evidence of a crime
would be found in his apartment. We review de novo the
district court’s determination that the warrant was
supported by probable cause. United States v. Sidwell, 440
F.3d 865, 868 (7th Cir. 2006). Because this is a case where
the validity of the warrant rests solely on the strength of
No. 05-4669 5
an affidavit, probable cause exists if the affidavit “sets
forth sufficient evidence to induce a reasonably prudent
person to believe that a search will uncover evidence of a
crime.” United States v. Peck, 317 F.3d 754, 756 (7th Cir.
2003); see United States v. Anderson, 450 F.3d 294, 302-03
(7th Cir. 2006). The inquiry is “practical, not technical.”
Anderson, 450 F.3d at 302; see Sidwell, 440 F.3d at 868.
The government has not challenged the district court’s
conclusion that any information gleaned during the phony
“burglary follow-up” on October 22 is tainted. So we must
determine whether the affidavit sworn on October 24,
when purged of these facts, still contained sufficient
information to establish probable cause. Watzman argues
that it did not, primarily because the officers’ observations
on October 22 were the only evidence that his apart-
ment had a working computer and Internet connection,
and without that information the affidavit “failed to
establish that any illegal activity could be found” in his
home. The district court improperly assumed, he argues,
that “pornography necessarily is viewed in the privacy of
one’s own home.” Watzman submits that it is “equally
likely” that one might download child pornography in
“innumerable places, such as offices, public and private
libraries, universities and airports.”
Watzman’s argument is meritless. First, probable cause
is not certainty; it requires “only a probability or substan-
tial chance that evidence may be found.” Sidwell, 440 F.3d
at 869. Thus, Watzman’s assertion that alternative
inferences might have been drawn about where child
pornography might be stored is unavailing. Moreover, a
finding of probable cause “does not require direct evidence
linking a crime to a particular place.” Anderson, 450 F.3d
at 303. Reasonable inferences are permitted. Id.; United
States v. Angle, 234 F.3d 326, 335 (7th Cir. 2000). In his
affidavit Agent Wolflick explained in great detail his
experience with consumers of child pornography and
6 No. 05-4669
specifically averred that these individuals tend to hoard
collections at home. The district court’s reliance on these
expert representations is not an “assumption”; the court
was entitled to rely on Agent Wolflick’s expertise to
conclude that there was a fair probability that child
pornography would be found in Watzman’s home. See
United States v. Hall, 142 F.3d 988, 995 (7th Cir. 1998)
(citing “expert information” in affidavit that “pornograph-
ers tend to maintain their collections of material for long
periods, usually at home”); United States v. Lacy, 119 F.3d
742, 746 (9th Cir. 1997) (holding that affidavit provided
“ample reason” to believe items sought were in defendant’s
apartment, where affiant stated that “collectors and
distributors 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”).
Watzman further contends that the information in the
affidavit was stale. The most recent listed date on which
Watzman downloaded child pornography was in July
2003, and the warrant was not sought until October 2003.
Accordingly, Watzman asserts, there was no evidence that
he still possessed any child pornography, other than
Agent Wolflick’s “uncorroborated assertion” that indi-
viduals who view child pornography tend to make collec-
tions and maintain them for years.
Watzman’s argument is unconvincing. The age of
information contained in an affidavit is only one factor
a judge considers, and it is less important when the
criminal activity in question is apparently continuous.
See United States v. Spry, 190 F.3d 829, 836 (7th Cir.
1999). Moreover, we previously have concluded that
“[i]nformation a year old is not necessarily stale as a
matter of law, especially where child pornography is
concerned.” United States v. Newsom, 402 F.3d 780, 783
No. 05-4669 7
(7th Cir. 2005) (emphasis added). In Newsom, the affidavit
before the judge did not state that child pornographers
tend to hold on to their stashes; rather, “it was clear from
the context” that law enforcement officials believed
that the defendant still possessed such materials. Id.Here, Agent Wolflick specifically averred that individuals
who view child pornography typically “maintain their
collections for many years” and “keep and collect items
containing child pornography over long periods of time.”
Again, despite Watzman’s insistence to the contrary, the
district court was entitled to rely on the experience of an
expert in the field of enforcing child pornography laws
when evaluating the sufficiency of the affidavit. See United
States v. Gourde, 440 F.3d 1065, 1071-72 (9th Cir. 2006)
(en banc) (four-month lapse immaterial where affidavit
explained that consumers of child pornography become
“pack rats” due to the difficulty of obtaining materials);
United States v. Chrobak, 289 F.3d 1043, 1046 (8th Cir.
2002) (rejecting argument that information about images
transmitted ninety-one days before search was stale on
basis of affiant’s statement that “child pornographers
generally retain their pornography for extended periods”).
In this case, where only three months passed, and Agent
Wolflick attested that those who possess child porno-
graphy save their materials, Watzman’s argument that
the information in the affidavit was stale is meritless.
Watzman also challenges the district court’s rejection of
his argument that the statute criminalizing the receipt of
child pornography is unconstitutionally vague “because
it does not define ‘receipt’ or distinguish it from the offense
of mere possession.” Watzman contends that “without any
evidence of trafficking and distributing,” “receipt” cannot
be distinguished from “possession” and, therefore, the
statute “enables arbitrary and discriminatory prosecution.”
A criminal statute is unconstitutionally vague if it does not
define the criminal offense with enough specificity to
8 No. 05-4669
provide people of ordinary intelligence with notice of what
is prohibited or if it fails to provide explicit standards
to prevent arbitrary and discriminatory enforcement. See
Kolender v. Lawson, 461 U.S. 352, 357 (1983); United
States v. Lim, 444 F.3d 910, 915 (7th Cir. 2006). The
statute in question makes it a crime for a person to
“knowingly receive[ ] or distribute[ ] . . . child pornography
that has been mailed, or shipped or transported in inter-
state or foreign commerce by any means, including by
computer.” 18 U.S.C. § 2252A(a)(2). In contrast, the
subsection of § 2252A concerning simple possession targets
any individual who “knowingly possesses any book,
magazine, periodical, film, videotape, computer disk, or
any other material that contains an image of child pornog-
raphy that has been mailed, or shipped or transported
in interstate or foreign commerce by any means, including
by computer.” § 2252A(a)(5)(B).
Watzman has not established that § 2252A(a)(2) fails
either the “notice” or the “arbitrary enforcement” tests for
unconstitutional vagueness. We have previously rejected
the argument that “the distinction between receipt and
possession of child pornography is meaningless, because
anyone in possession of child pornography must have
received it at some time.” United States v. Myers, 355 F.3d
1040, 1042-43 (7th Cir. 2004). We noted in Myers that to
be convicted of receiving, the defendant must have
known the material he was receiving depicted minors
engaged in sexually explicit conduct. See id. at 1042 (citing
United States v. X-Citement Video, Inc., 513 U.S. 64, 78
(1994)). Accordingly, a person who receives child pornogra-
phy by accident (for example, if he sought adult pornogra-
phy but was sent child pornography instead) is not guilty
of knowingly receiving it, though he is guilty of possessing
it if he retains it. Myers, 355 F.3d at 1042; see United
States v. Malik, 385 F.3d 758, 759 (7th Cir. 2004) (positing
that a person who created an image or found it in trash
No. 05-4669 9
could “possess” child pornography without ever receiving
it). We stated that receiving materials that have been
shipped in interstate commerce is conduct more closely
linked to the market for child pornography and so “posses-
sion and receipt are not the same conduct and threaten
distinct harms.” Myers, 355 F.3d at 1042-43; see United
States v. Barevich, 445 F.3d 956, 959 (7th Cir. 2006)
(explaining that “[t]ransporting and receiving child
pornography increases market demand”). This is so
without an element of “intent to traffic.”
Although Myers did not address a vagueness challenge,
the opinion squarely rejected the premise of Watzman’s
constitutional argument—that receipt and possession are
substantially the same offense. By distinguishing receipt
from possession, the two subsections of the statute are
sufficiently clear about what conduct each prohibits. In
addition, it cannot be said that the receiving child pornog-
raphy statute relies on the discretion of those who en-
force it to define its terms. We have recognized that all
receivers are possessors but not all possessors are receiv-
ers, and so the matter of which crime to charge is not
simply a product of the prosecutor’s whims, as Watzman
suggests. Watzman’s conduct violated multiple statutes,
but this is unremarkable, see Malik, 385 F.3d at 760, and
has no bearing on whether the statute is unconstitution-
ally vague.
Finally, Watzman contends that receiving child pornog-
raphy exclusively for his own private use is not the type
of conduct at which the statute is aimed. We have previ-
ously rejected the argument that there is some sort of
“personal use” exception to this statute. See United States
v. Ellison, 113 F.3d 77, 81 (7th Cir. 1997) (“[E]ven the
receipt of the prohibited materials for personal use,
without more, keeps producers and distributors of this
filth in business.”).
AFFIRMED.
10 No. 05-4669
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-16-07