                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1888
                                   ___________

United States of America,            *
                                     *
           Plaintiff-Appellee,       *
                                     * Appeal from the United States
     v.                              * District Court for the District
                                     * of North Dakota.
Douglas Eugene Gleich,               *
                                     *
           Defendant-Appellant.      *
                                ___________

                             Submitted: December 14, 2004
                                 Filed: February 8, 2005
                                 ___________

Before BYE, HANSEN, and GRUENDER, Circuit Judges.
                           ___________

BYE, Circuit Judge.

      Douglas Eugene Gleich entered a conditional plea of guilty to the offenses of
receipt of material involving the sexual exploitation of minors, in violation of 18
U.S.C. § 2252(a)(2); and possession of material involving the sexual exploitation of
minors, in violation of 18 U.S.C. § 2252(a)(4)(B). Gleich conditioned his guilty plea
on the ability to appeal the district court’s denial of his motion to suppress and all
sentencing issues. We affirm the denial of the motion to suppress, but we vacate his
sentence and remand for resentencing.
                                         I

       On February 6, 2003, Agent Phil Pfennig of the North Dakota Bureau of
Criminal Investigation (BCI) interviewed a twelve-year-old male child who
complained Gleich had sexually assaulted him, photographed him in a sexually
explicit pose and exposed him to pornographic images of children on his computer
and in magazines. Armed with this information, Agent Pfennig secured Gleich’s
residence while he sought and obtained a search warrant. The search warrant, dated
February 6, 2003, permitted the search of Gleich’s home and personal computer for
child pornography and objects which may contain child pornography. Upon
completing the search, the BCI seized three computers, a number of computer
diskettes, and found, but did not seize, a digital camera.

       Agent Pfennig delivered the seized items to Agent Tim Erickson for forensic
examination, who examined the image files on all three seized computers. After
conducting an examination of the images, he noticed the recovered photos appeared
to be taken with a digital camera. He advised Agent Pfennig, if a camera were
analyzed, the BCI lab could determine whether a specific image was taken with a
specific camera. Agent Pfennig next applied for and obtained a second search
warrant, dated February 13, 2004, for the purposes of searching for and seizing the
digital camera discovered in the earlier search.

      Subsequently, on February 18, 2003, Erickson informed Pfennig that, while
conducting a forensic examination of the computers for evidence of sex crimes
against the complainant minor child, he had fortuitously discovered images of child
pornography unrelated to the offense under investigation. Apparently to avoid
running afoul the Fourth Amendment, Erickson suspended his forensic examination
while Pfennig applied for and obtained a third search warrant for purposes of
expanding the search of Gleich’s computers for evidence of child pornography
unrelated to the complainant minor child. The expanded forensic examination of

                                        -2-
Gleich’s computers resulted in numerous images of child pornography. The
investigation also uncovered evidence of Gleich having photographed the
complainant minor child in a “mooning” position.

       A federal grand jury indicted Gleich on sexual exploitation of minors, in
violation of 18 U.S.C. § 2251(a) & (c) (Count One); receipt of material involving the
sexual exploitation of minors, in violation of 18 U.S.C. § 2252(a)(2) & (b)(1) (Count
Two); possession of material involving the sexual exploitation of minors, in violation
of 18 U.S.C. § 2252(a)(4)(b) (Count Three); and enticing a minor via the Internet, in
violation of 18 U.S.C. § 2422(b) (Count Four).

       Gleich filed a motion to suppress the evidence seized in the searches claiming
the first and third warrants were overbroad; the second warrant was issued without
probable cause; and Agent Pfennig made false or reckless statements in the
application for the third warrant. After the district court denied the motion to
suppress, Gleich entered a conditional guilty plea on Count Two and Count Three
allowing him to appeal the denial of his suppression motion as well as any sentencing
issues.

       The district court sentenced Gleich pursuant to United States Sentencing
Guideline (U.S.S.G.) § 2G2.2 (2002), the proper guideline for offenses falling within
Title 18, § 2252 of the United States Code. The base offense level under § 2G2.2 is
seventeen. An individual with an offense level of seventeen and a criminal history
similar to that of Gleich's (Category I) should receive a sentence between twenty-four
and thirty months. The district court, however, added several enhancements to
Gleich's base offense level, including: a two-level enhancement based on
§ 2G2.2(b)(1) for material involving a prepubescent minor under the age of twelve
years; a five-level enhancement based on § 2G2.2(b)(2)(B) for distribution or the
receipt, or expected receipt, of a thing of value; and a two-level enhancement based
on § 2G2.2(b)(5) for using a computer for the transmission, receipt or distribution of

                                         -3-
the material. The district court also added, over Gleich’s objection, a five-level
enhancement based on § 2G2.2(b)(4) for engaging in a pattern of activity involving
the sexual abuse or exploitation of a minor. After figuring in a three-level decrease
under § 3E1.1 for acceptance of responsibility, the resulting guideline range was
seventy-eight to ninety-seven months. Following the imposition of a ninety-seven
month sentence, Gleich appealed asserting the district court erred in denying his
motion to suppress and in enhancing his sentence five levels pursuant to
§ 2G2.2(b)(4).1

                                          II

       We begin with discussion of the search and seizure issues. The Fourth
Amendment requires a search warrant to be based upon probable cause, supported by
oath, and to describe particularly the place to be searched and items to be seized.
U.S. Const. amend. IV.; United States v. Thomas, 263 F.3d 805, 807 (8th Cir. 2001).
Gleich alleges the first and third search warrants did not particularly describe which
files within the computers were to be searched and seized. To satisfy the particularity
requirement of the Fourth Amendment, the items to be seized and the places to be
searched must be described with sufficient particularity as to enable the searcher to
locate and identify the places and items with reasonable effort and to avoid
mistakenly searching the wrong places or seizing the wrong items. Thomas, 263 F.3d
at 807 (citing United States v. Gitcho, 601 F.2d 369, 371 (8th Cir. 1979)).




      1
       On appeal, Gleich also asserts a “Blakely” claim. Blakely v. Washington, 125
S.Ct. 21 (2004). We do not address the merits of Gleich’s arguments because many
were addressed by the Supreme Court in United States v. Booker, 534 U.S. __ (2005)
and we conclude our remand moots the remainder.


                                         -4-
       The first warrant identified the computer files to be searched as those, among
other things, that could contain “photographs, pictures, visual representations or
videos in any form that include sexual conduct by a minor, as defined by N.D.C.C.
§ 12.1-27.2-04.”2 The third warrant described the items to be searched for as
“photographs, pictures, visual representations, or videos in any form that include
sexual conduct by a minor, as defined by N.D.C.C. 12.1-27.2-01(1) and/or (4), or
children posing for a camera.”3 We find the first and third warrants sufficiently
satisfy the particularity requirement because the language contained within the
warrants sufficiently limit the BCI’s search to the items specifically prohibited by
statute. United States v. Koelling, 992 F.2d 817, 821 (8th Cir. 1993). These
descriptions adequately allowed the police to avoid searching and seizing the wrong
items. Thus, the district court correctly denied the motion to suppress on the
overbroadness grounds advanced by the defendant.


      Next, Gleich contends the first search warrant authorized the search and seizure
of only one computer, thus the BCI exceeded the scope of the warrant by searching
and seizing three computers. As the district court stated, the defendant’s reading of
the warrant is nonsensical. The search warrant authorized the search of his home and


      2
        Section 12.1-27.2-04 of the North Dakota Century Code states “[a] person is
guilty of a class C felony if, knowing the character and content of a performance, that
person produces, directs, or promotes any performance which includes sexual conduct
by a person who was a minor at the time of the performance.”
      3
        Section 12.1-27.2-01(1) of the North Dakota Century Code defines “obscene
sexual performance” as “any performance which includes sexual conduct by a minor
in any obscene material or obscene performance, as defined in section 12.1-27.1-01.”

       Section 12.1-27.2-01(4) of the North Dakota Century Code defines “sexual
conduct” as the “actual or simulated sexual intercourse, sodomy, sexual bestiality,
masturbation, sadomasochistic abuse, or lewd exhibition of the genitals, including the
further definitions of sodomy and sadomasochistic abuse under section 12.1-27.1-01.”
                                         -5-
personal computer for evidence containing “photographs, pictures, visual
representations or videos in any form that include sexual conduct by a minor, as
defined by N.D.C.C. § 12.1-27.2-04.” This warrant plainly authorized the search and
seizure of anything within his home which could contain evidence of the conduct
prohibited by statute. In the search of the home, the BCI discovered, seized and
searched three computers along with a number of computer diskettes, each of which
could independently contain evidence of prohibited conduct. Thus, the district court
correctly denied the defendant’s motion to suppress based on his asserted grounds of
the BCI exceeding the scope of the warrant.


       Gleich further argues the BCI did not have probable cause sufficient to support
the issuance of the second warrant. He contends there was no connection between
the pictures and the digital camera, and if anything, the seven days which had passed
made the knowledge of the digital camera observed at the scene stale. Probable cause
exists where there is a fair probability that contraband or evidence of a crime will be
found in particular place. United States v. Oropesa, 316 F.3d 762, 768 (8th Cir.
2003). A totality of the circumstances test is used to determine whether probable
cause exists. Id. Courts should apply a common sense approach and, considering all
relevant circumstances, determine whether probable cause exists. United States v.
Buchanan, 167 F.3d 1207, 1211 (8th Cir. 1999). A district court’s decision on
probable cause is reviewed under a clearly erroneous standard and substantial
deference is granted to the issuing judge. United States v. Bieri, 21 F.3d 811, 815
(8th Cir. 1994).


       Once more, Gleich’s argument is nonsensical. Agent Pfennig in his affidavit
stated the photographs found on the computer appeared to be taken with a digital
camera. The affidavit also stated, if a camera were analyzed, the BCI lab could
determine whether a specific image was taken with a specific camera. Pfennig and



                                         -6-
other BCI agents saw a digital camera during the first search. This information
provided probable cause.

       The staleness argument is also meritless. There is no specific formula for
determining when information has become stale. United States v. Horn, 187 F.3d
781, 785 (8th Cir. 1999). “The timeliness of the information supplied in an affidavit
depends on the circumstances of the case, including the nature of the crime under
investigation; the lapse of time is least important when the suspected criminal activity
is continuing in nature and when the property is not likely to be destroyed or
dissipated.” Id. “[T]he vitality of probable cause cannot be quantified by simply
counting the number of days between the occurrence of the facts supplied and the
issuance of the affidavit.” Koelling, 992 F.2d at 822. “Time factors must be
examined in the context of a specific case and the nature of the crime under
investigation.” Id. Here, a mere seven days had passed since the execution of the
first warrant. In seven days, the defendant would be unlikely to dispose of a tool as
expensive as a digital camera. It was therefore highly probable the camera remained
in the residence where it had been spotted only days before.


       Finally, Gleich argues Agent Pfennig made false and reckless statements in
support of his application for the third warrant. A search warrant may be deemed
invalid if the issuing judicial officer’s probable cause determination was based upon
an affidavit containing a deliberate or reckless falsehood. United States v. Box, 193
F.3d 1032, 1034 (8th Cir. 1999) (citing Franks v. Delaware, 438 U.S. 154, 171
(1978)). A defendant challenging such a warrant must make a substantial preliminary
showing that the false statement knowingly and intentionally, or with reckless
disregard for the truth, was included by the affiant in the warrant affidavit. Id. at
1034-35. If the defendant can make such a showing, and if the alleged false statement
forms the basis for probable cause, the Fourth Amendment requires the court to
conduct a hearing at the defendant’s request. United States v. Searcy, 181 F.3d 975,


                                          -7-
980 n.6 (8th Cir. 1999). If the defendant presents no proof that the affiant lied or
recklessly disregarded the truth, the court is not required to conduct a hearing. United
States v. Mathison, 157 F.3d 541, 548 (8th Cir. 1998).


        In his affidavit in support of the third search warrant, Agent Pfennig stated the
first search warrant authorized the seizure of three computers and authorized the BCI
to conduct an analysis of the computers. Gleich contends these statements were
deliberately or recklessly false, relating back to his previous argument the first
warrant authorized the search and seizure of only one computer. Contrary to his
contention, as mentioned in the preceding paragraphs, Pfennig’s statements were in
fact accurate, thus these statements accurately reflected the scope of the first search.
The district court therefore correctly found Gleich failed to make a showing of
Pfennig having made deliberately or recklessly false statements.


                                           III


       We now turn to the claim of error at sentencing and hold the district court erred
in applying the five-level enhancement for engaging in a pattern of activity involving
the sexual abuse or exploitation of a minor under § 2G2.2(b)(4). Section 2G2.2(b)(4)
provides for a five-level enhancement to a guideline “if the defendant engaged in a
pattern of activity involving the sexual abuse or exploitation of a minor.” A “pattern
of activity” is defined as “any combination of two or more separate instances of
sexual abuse or sexual exploitation of a minor by the defendant.” § 2G2.2(b)(4) cmt.
n.1. The district court correctly found an incident of physical contact between the
minor and Gleich constituted one instance of sexual abuse or exploitation. See
United States v. Pharis, 176 F.3d 434, 436-37 (8th Cir. 1999) (discussing physical
sexual contact as sexual abuse or exploitation). The district court, however,
incorrectly found an incident involving the defendant taking a “mooning” picture of
the minor and transmitting it over the Internet constituted a second instance of sexual

                                          -8-
abuse or exploitation. The “mooning” picture at issue did not constitute an instance
of sexual exploitation because taking pictures of a non-pubic area such as the
buttocks does not meet the definition of “sexually explicit conduct.” Thus, the record
shows this defendant committed only one instance of sexual abuse or exploitation and
this one instance does not rise to the level of a pattern.


      We will explain further. Application Note 1 of § 2G2.2 defines “sexual abuse
or exploitation” as:


      conduct constituting criminal sexual abuse of a minor, sexual
      exploitation of a minor, abusive sexual contact of a minor, any similar
      offense under state law, or an attempt or conspiracy to commit any of
      the above offenses. ‘Sexual abuse or exploitation’ does not include
      trafficking in material related to the sexual abuse or exploitation of a
      minor.


§ 2G2.2 cmt. n.1. Here, there are no allegations the taking of the mooning picture
constituted criminal sexual abuse or abusive sexual contact, thus we are exclusively
concerned with the question whether the conduct constituted “sexual exploitation.”


       The federal crime of sexual exploitation of a minor prohibits any person from
employing, using, persuading, inducing, enticing or coercing any minor to
intentionally engage in any sexually explicit conduct for the purpose of producing any
visual depiction of such conduct. 18 U.S.C. § 2251(a) (emphasis added). Thus, by
its very terms, the crime of sexual exploitation requires the photographs to depict
sexually explicit conduct. Pharis, 176 F.3d at 436-37. The United States Code
defines “sexually explicit conduct” as “sexual intercourse, including genital-genital,
oral-genital, anal-genital, or oral-anal, whether between persons of the same or
opposite sex; bestiality; masturbation; sadistic or masochistic abuse; or lascivious

                                         -9-
exhibition of genitals or pubic area of any person.”4 18 U.S.C. § 2256(2)(A)
(emphasis added). Because the partial buttocks exhibited in the mooning picture is
not of genitals or of a pubic area and because the conduct does not otherwise meet the
definition of sexually explicit conduct, the district court erred in applying
§ 2G2.2(b)(4).5


        The government does not aggressively contest the issue of the buttocks not
being part of the genital or pubic region. Rather, its argument centers around
Gleich’s conduct which allegedly met the definition of attempted sexual exploitation
of a minor. According to the government, the record shows the defendant wanted the
child to show more than his buttocks so he could send the pictures to an accomplice
over the Internet. This attempt to get the child to show more, argues the government,
is sufficient to satisfy the definition of attempted sexual exploitation of a minor.
Upon our independent review of the transcript, we do not believe the record supports
the government’s contention. The transcript indicates the defendant wanted to see
more of the child’s buttocks, nothing more. (Tr. at 22.) His conduct in requesting to
see more buttocks, disturbing as it may be, does not meet the definition of attempted
sexual exploitation of a minor because, as mentioned, the buttocks is not a pubic
region. Thus, the district court erred in applying the five-level enhancement pursuant
to § 2G2.2(b)(4) because the record does not reflect that Gleich committed two or
more instances of sexual abuse or sexual exploitation of a minor.



      4
       Application Note 1 of § 2G2.2 cross-references the definition of sexually
explicit conduct in 18 U.S.C. § 2256.
      5
        Schmidt’s Attorney’s Dictionary of Medicine defines pubic as “pertaining to,
or located in, the region of sex organs (which is also the region of the pubic bones)
or pertaining to the pubic bone(s).” The “pubic bone” is defined as “same as pubis,
the front part of the hipbone, which with its fellow bone of the opposite side forms
the bony arch at the lower part of the abdomen.” P-518 (Release 37, Dec. 2003).
                                        -10-
                                         IV


       Accordingly, we affirm the judgment of the district court on the suppression
issues, but we vacate the sentence and remand for resentencing consistent with this
opinion. Upon resentencing, the district court shall apply the advisory guideline
regime outlined in United States v. Booker, 543 U.S. ___ (2005) (“The district courts,
while not bound to apply the Guidelines, must consult those Guidelines and take them
into account when sentencing.”).
                      ________________________________




                                        -11-
