           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                        December 13, 2007

                                       No. 06-41679                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

CHARLES HARRIST, JR

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                         for the Eastern District of Texas
                             USDC No. 2:04-CR-6-ALL


Before REAVLEY, SMITH, and GARZA, Circuit Judges.
PER CURIAM:*
       Charles Harrist, Jr. was indicted on one count of possessing child
pornography and on one count of receiving child pornography. See 18 U.S.C.
§ 2252(a)(2), (a)(4)(B), (b)(2). A jury convicted Harrist on both counts. On
appeal, Harrist argues that the district court erred by denying his motion to
suppress and by allowing the jury to hear evidence concerning his
subscriptions to legal pornographic websites. For the reasons that follow, we
affirm.


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                          No. 06-41679
1.   Harrist contends that his Fourth Amendment rights were
     violated when the computer at issue was seized pursuant to a
     search warrant. Because the relevant facts are undisputed, we
     review the sufficiency of the warrant de novo. See United States
     v. Shugart, 117 F.3d 838, 843 (5th Cir. 1997).
           As a threshold issue, Harrist claims that the Texas
     exclusionary rule applies because Texas law enforcement officers
     were acting pursuant to a warrant issued by a Texas judge
     relating to an alleged violation of Texas law. In support of his
     contention, Harrist points to United States v. Fossler, 597 F.2d
     478, 482 n.3 (5th Cir. 1979), where this court noted that the
     “lawfulness of an arrest by state officers is determined by the law
     of the state where the arrest takes place, subject to federal
     constitutional standards.” The issue here, however, is not the
     lawfulness of an arrest, but whether to apply the state or federal
     exclusionary rule. And in federal court, the federal exclusionary
     rule applies. See United States v. Coleman, 162 F. Supp. 2d 582,
     586–91 (N.D. Tex. 2001) (discussing cases). With that out of the
     way, we turn to Harrist’s substantive arguments.
           Harrist first argues that his Fourth Amendment rights
     were violated because the affidavit in support of the warrant did
     not set out probable cause. But because the federal exclusionary
     rule applies, even if the warrant was not based on probable cause,
     the evidence obtained pursuant to the warrant should not be
     suppressed if it was obtained “by law enforcement officials acting
     in objectively reasonable good-faith reliance upon a search
     warrant.” Shugart, 117 F.3d at 843 (internal citations and
     quotations omitted). Harrist has made no argument suggesting

                                2
                     No. 06-41679
that the good-faith exception should not apply—and there is no
evidence suggesting the exception should not apply. See United
States v. Davis, 226 F.3d 346, 351 n.1 (5th Cir. 2000) (listing
situations in which the good-faith exception should not apply).
Accordingly, Harrist’s argument fails.
      Harrist next argues that the warrant was not particular
enough because the computer was misdescribed as a “Western
Digital 20 Gig.” A warrant is particular enough “if the
description in the warrant would permit an executing officer to
reasonably know what items are to be seized.” United States v.
Beaumont, 972 F.2d 553, 560 (5th Cir. 1992). But even if the
warrant lacks particularity, the evidence seized pursuant to the
warrant is admissible if the officer relied in good faith on the
warrant. Id. at 562. Here, it is apparent that Garrett made a
mistake in referring to the entire computer to be seized as a
“Western Digital 20 Gig,” which was the name of the hard drive.
But it is equally apparent that the judge who signed the warrant
knew that the item at issue was the computer. This is made clear
from reading the affidavits in support of the warrants, which the
warrants incorporated by reference. Moreover, Garrett knew the
computer was to be seized. Finally, the warrant could have been
made unambiguous by penciling in a few words to clarify that the
Western Digital 20 gig was the hard drive for the computer to be
seized. Thus, Garrett was acting in good-faith reliance on the
warrant, even if the description of the item to be seized could
have been worded differently. See Beaumont, 972 F.2d at 560–61.




                           3
                            No. 06-41679
           Harrist also argues that the warrant was not particular
     enough because Garrett had to rely on a third party, Warren, to
     identify the computer. Garrett, however, reasonably relied on
     Warren to retrieve Harrist’s computer, and there is no evidence
     suggesting that Warren could not have provided documentation
     to Garrett if he had any question about whether the computer she
     retrieved was in fact the one he was there to pick up.
           Accordingly, the district court properly denied Harrist’s
     motion to suppress.
2.   Harrist also complains that the district court abused its
     discretion when it allowed the jury to hear about the legal
     pornography websites he subscribed to. We review the district
     court’s decision to admit or exclude evidence for an abuse of
     discretion. United States v. Hicks, 389 F.3d 514, 522 (5th Cir.
     2004).
           Harrist is essentially arguing that the district court erred
     in performing its “Beechum analysis”; as this court stated in
     United States v. Beechum, Rule 404(b) of the Federal Rules of
     Evidence, which deals with “other acts” evidence, requires a two-
     step process: “First, it must be determined that the extrinsic
     offense evidence is relevant to an issue other than the defendant’s
     character. Second, the evidence must possess probative value
     that is not substantially outweighed by its undue prejudice . . . .”
     582 F.2d 898, 911 (5th Cir. 1978) (en banc). While there is a
     question as to whether Harrist waived this issue below, we need
     not address that question because the district court did not abuse
     its discretion here.



                                 4
                             No. 06-41679
              Harrist’s website subscriptions were probative of something
        other than character. Harrist put his interest in pornography at
        issue when his ex-wife testified that she had never seen him view
        pornography during their marriage. The fact that Harrist had
        subscribed to pornographic websites was therefore relevant to
        combat that point. While Harrist complains that the evidence
        was irrelevant to that issue because his subscriptions occurred
        after he divorced his ex-wife, that argument goes to the weight of
        the evidence, not its relevancy.
              It is undoubtedly true that reading the jury inflammatory
        descriptions of the websites could constitute unfair prejudice. See
        United States v. Grimes, 244 F.3d 375, 383–85 (5th Cir. 2001). It
        is uncontested here, however, that at least some of the
        descriptions were read to the jury without Harrists’s objecting to
        them at trial, and he does not argue before this court that the
        jury should not have heard those descriptions. The district court
        did not abuse its discretion in determining that the relevancy of
        the evidence was not substantially outweighed by its unfair
        prejudice.
AFFIRMED.




                                   5
