          Case: 15-11015   Date Filed: 04/15/2016   Page: 1 of 10


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-11015
                        Non-Argument Calendar
                      ________________________

              D.C. Docket No. 3:13-cr-00058-MMH-JRK-1


UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

RICHARD DALE BROOKS,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                             (April 15, 2016)




Before WILLIAM PRYOR, FAY, and EDMONDSON, Circuit Judges.
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PER CURIAM:



      After a jury trial, Richard Brooks appeals his convictions for knowingly

receiving and possessing child pornography, in violation of 18 U.S.C. §

2252(a)(2), (a)(4)(B), for which he was sentenced to 95 months’ imprisonment.

No reversible error has been shown; we affirm.



                                          I.



      On appeal, Brooks challenges the denial of his motion to suppress evidence

seized pursuant to a search warrant. In support of his motion to suppress, Brooks

contends (1) the search warrant was unconstitutionally overbroad; and (2) the

search warrant was executed unreasonably because the government failed to return

Brooks’s property within a reasonable time.

      In considering the district court’s denial of a motion to suppress, we review

fact determinations for clear error and application of law to the facts de novo.

United States v. Boyce, 351 F.3d 1102, 1105 (11th Cir. 2003). We construe all

facts in the light most favorable to the prevailing party below. Id.




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                                         A.



      The Fourth Amendment requires a search warrant to describe particularly

the place to be searched and the things to be seized. U.S. Const. amend. IV. A

search warrant’s “description is sufficiently particular when it enables the searcher

reasonably to ascertain and identify the things to be seized.” United States v.

Santarelli, 778 F.2d 609, 614 (11th Cir. 1985). We apply the Fourth Amendment’s

particularity requirement “with a practical margin of flexibility, depending on the

type of property to be seized.” United States v. Wuagneux, 683 F.2d 1343, 1349

(11th Cir. 1982). Thus, in determining the sufficiency of a warrant’s description,

we consider whether the description “is as specific as the circumstances and nature

of activity under investigation permit.” Id.; see also United States v. Blum, 753

F.2d 999, 1001 (11th Cir. 1985) (search warrant for “miscellaneous merchandise

fraudulently obtained” was sufficiently specific where probable cause existed to

believe defendants possessed merchandise obtained by fraud but the government

“did not know precisely what the merchandise was or from whom it had been

obtained.”).

      We reject Brooks’s contention that the search warrant was unconstitutionally

overbroad. In an introductory paragraph, the search warrant stated that probable

cause existed to believe that a computer or other digital device at Brooks’s


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residence was being used knowingly to possess child pornography, in violation of

Florida’s child pornography statutes. The search warrant then set forth a detailed

list of items-to-be-seized, including computer hardware, software, and digital

storage devices.

       That some of the descriptions of the items-to-be-seized contained no express

reference to child pornography or to the exploitation of children fails to render the

search warrant impermissibly overbroad. When read within the context of the

entire warrant, the descriptions are sufficiently particular to enable officers to

“reasonably ascertain and identify the things to be seized” as being only those

items pertinent to an investigation related to child pornography. Given that child

pornography images may be stored anywhere on a computer or digital device, the

search warrant in this case was “as specific as the circumstances and nature of

activity under investigation [would] permit.” See Wuagneux, 683 F.2d at 1349.

Moreover, nothing requires a search warrant to contain a “search protocol”

specifying the computer files subject to being searched. See United States v.

Khanani, 502 F.3d 1281, 1290 (11th Cir. 2007).1




1
  We also agree with the district court’s alternative ground for denying Brooks’s motion: the
good-faith exception. Nothing evidences that the officers’ search exceeded the scope of the
warrant’s authorization, that the warrant was obtained improperly, or that “a reasonably well
trained officer would have known that the search was illegal despite the [search warrant’s]
authorization.” See United States v. Leon, 104 S. Ct. 3405, 3420 n.23 (1984); United States v.
Travers, 233 F.3d 1327, 1330-31 (11th Cir. 2000).
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                                              B.



       Brooks contends that the government violated his Fourth Amendment rights

by holding his non-contraband property for over ten months. As a result, Brooks

argues he was entitled to suppression of all evidence obtained pursuant to the

search warrant. 2

       Exclusion of evidence is an “extreme sanction” to be used only as a “last

resort.” Herring v. United States, 129 S. Ct. 695, 700 (2009). A Fourth

Amendment violation, in and of itself, does not require necessarily the exclusion of

evidence. Id. “To trigger the exclusionary rule, police conduct must be

sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently

culpable that such deterrence is worth the price paid by the justice system.” Id. at

702. “[T]he exclusionary rule serves to deter deliberate, reckless, or grossly

negligent conduct.” Id.

       The record shows that Brooks’s property was seized, pursuant to a search

warrant, on 2 August 2012. The government began its forensic examination of

Brooks’s computer files five days later and completed the examination in mid-


2
 In support of his argument, Brooks relies mainly on two cases: United States v. Mitchell, 565
F.3d 1347 (11th Cir. 2009), and United States v. Laist, 702 F.3d 608 (11th Cir. 2012). These
cases, however, involve the reasonableness of the government’s delay in obtaining a search
warrant after evidence had already been seized without a warrant. Mitchell and Laist say nothing
about the circumstances in which a delay in returning property seized lawfully pursuant to a
search warrant may trigger the exclusionary rule.
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December 2012. On 26 April 2013, Brooks filed a motion for return of all

property seized during the search, pursuant to Fed.R.Crim.P. 41(g). 3 The district

court granted Brooks’s motion on 7 June 2013, ordering the return of all property

“not commingled with contraband and that can be located with Defendant’s

assistance.” The government complied with the court’s order by 17 June 2013.

          On this record, Brooks has failed to demonstrate that the government

engaged in “deliberate, reckless, or grossly negligent conduct.” The government

acted with reasonable diligence in conducting its forensic examination. The

government also returned Brooks’s requested non-contraband property within a

reasonable time after the district court granted Brooks’s Rule 41(g) motion. Thus,

even if the government’s retention of Brooks’s property constituted some Fourth

Amendment violation -- which we reject -- the facts of this case do not rise to the

level necessary to justify the “extreme sanction” of exclusion. The district court

committed no error in denying Brooks’s motion to suppress.



                                                   II.



          Brooks next challenges the district court’s denial of his motion for an

acquittal on Counts One through Five, which charged Brooks with receipt of five


3
    Brooks made no request -- formal or informal -- for the return of his property before this date.
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named files containing child pornography. Brooks argues that insufficient

evidence existed that he “knowingly received” the charged images.

      “We review de novo a district court’s denial of judgment of acquittal on

sufficiency of evidence grounds.” United States v. Rodriguez, 732 F.3d 1299,

1303 (11th Cir. 2013). In determining the sufficiency of the evidence, “we

consider the evidence in the light most favorable to the government, drawing all

reasonable inferences and credibility choices in the government’s favor.” Id. We

will not overturn a jury’s verdict unless no “reasonable construction of the

evidence would have allowed the jury to find the defendant guilty beyond a

reasonable doubt.” Id.

      To obtain a conviction for receiving child pornography, the government

must prove, among other things, that the defendant “knowingly receive[d]” child

pornography through means affecting interstate commerce, “including by

computer.” 18 U.S.C. § 2252(a)(2). A person “knowingly receives” child

pornography by viewing, acquiring, or accepting intentionally child pornography

on a computer from an outside source. United States v. Pruitt, 638 F.3d 763, 766

(11th Cir. 2011) (interpreting substantively identical child pornography offense in

18 U.S.C. § 2252A).

      The government may use circumstantial evidence to prove that pornography

was obtained via the internet. United States v. Dodds, 347 F.3d 893, 900 (11th Cir.


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2003) (evidence that images on defendant’s computer were traded frequently on

the internet and that defendant had access to and was familiar with the internet was

sufficient to support the jury’s finding that the images were obtained using the

internet). We have also concluded that “[e]vidence that a person has sought out --

searched for -- child pornography on the internet and has a computer containing

child-pornography images . . . can count as circumstantial evidence that a person

has ‘knowingly receive[d]’ child pornography.” Pruitt, 638 F.3d at 766.

      Evidence presented at trial showed that Brooks was familiar with and used

regularly file-sharing software to search for and to receive pornography. Brooks

explained to officers that, when he wanted to keep a file, he would move it from

the file-sharing download folder into a user-created folder on his computer.

Brooks also admitted that he had downloaded inadvertently child pornography in

the past, but he claimed he always deleted those files immediately. Yet, Brooks’s

computer contained several images of child pornography (including the five

charged files) that were saved in user-created folders. These images were titled

using terms commonly used to identify child pornography images on the internet.

Evidence also showed that child pornography files had been made available on

peer-to-peer networks from Brooks’s IP address and that Brooks had used a search

term indicative of child pornography. On this record, the government presented




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sufficient circumstantial evidence to allow the jury to infer that Brooks received

knowingly the charged images via the internet.4

       Brooks argues that he was entitled to judgment of acquittal based on

evidence that Brooks possessed a CD containing the five charged images that pre-

dated the files on his computer and based on testimony that the government’s

forensic expert could not confirm that Brooks downloaded the charged images

from the internet. That this evidence might support a reasonable hypothesis of

innocence, however, is not enough: “the issue is not whether a jury reasonably

could have acquitted but whether it reasonably could have found guilt beyond a

reasonable doubt.” See United States v. Jiminez, 564 F.3d 1280, 1285 (11th Cir.

2009) (emphasis added). Brooks failed to show that no reasonable jury could have

found him guilty; we affirm the district court’s denial of the motion for judgment

of acquittal.



                                              III.



       Brook next challenges the denial of his motion to dismiss Count Six of the

indictment, which charged Brooks with transportation of child pornography. 5 We


4
 We reject Brooks’s contention that the jury had to stack inferences impermissibly to reach a
guilty verdict; the circumstantial evidence of Brooks’s knowing receipt of child pornography was
ample.
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review the sufficiency of an indictment de novo. United States v. Pena, 684 F.3d

1137, 1147 (11th Cir. 2012).

       In charging Brooks with knowingly transporting child pornography, the

indictment cited to and tracked the language of 18 U.S.C. § 2252(a)(1)(B) and

(b)(1). Because the indictment (1) set forth the essential elements of the charged

offense; (2) provided Brooks with adequate notice of the charge; and (3) enabled

Brooks to rely upon the resulting judgment for purposes of double jeopardy, we

conclude it was sufficient. See id.

       That the indictment identified no intended or actual recipient of the charged

images does not render the indictment insufficient: the identity of the alleged

recipient is no element of the offense. See 18 U.S.C. § 2252(a)(1)(B); United

States v. Crippen, 579 F.2d 340, 342 (5th Cir. 1978) (an indictment need not allege

factual details beyond the essential elements of the charged offense). Moreover,

although the indictment specified no exact time of the alleged offense, it included

sufficient details -- including the date of the alleged transport and name of the file

allegedly shared -- to protect Brooks from double jeopardy. See United States v.

Steele, 178 F.3d 1230, 1234-35 (11th Cir. 1999).

       AFFIRMED.



5
 The jury acquitted Brooks of the transportation charge and convicted him, instead, of the lesser-
included offense of possession of child pornography.
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