                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________               FILED
                                                                  U.S. COURT OF APPEALS
                                            No. 10-13756            ELEVENTH CIRCUIT
                                        Non-Argument Calendar          AUGUST 9, 2011
                                      ________________________           JOHN LEY
                                                                          CLERK
                            D.C. Docket No. 1:09-cr-00031-SPM-AK-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                             Plaintiff - Appellee,

                                                versus

OCTAVIUS LEE DURDLEY,

llllllllllllllllllllllllllllllllllllllll                          Defendant - Appellant.

                                     ________________________

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

                                           (August 9, 2011)




Before BARKETT, MARCUS and BLACK, Circuit Judges.

PER CURIAM:
       Octavius Durdley appeals his conviction for receipt or distribution, or

attempted receipt or distribution, of child pornography, in violation of 18 U.S.C.

§ 2252A(a)(2)(A) and (b)(1), and his conviction for possession of child

pornography, in violation of § 2252A(a)(5)(B) and (b)(2). Durdley raises several

issues on appeal, which we address in turn. After review, we affirm Durdley’s

convictions.

                                                  I.

       Durdley first argues the district court erred in denying his motion to

suppress.1 Specifically, Durdley argues his Fourth Amendment rights were

violated when: (1) his supervisor, a county employee, searched a thumb drive

Durdley left in a county-owned, common-use computer; (2) law enforcement’s

subsequent review of the thumb drive exceeded the scope of the supervisor’s

initial search of the thumb drive; and (3) the search warrant affidavit relating to

Durdley’s residence included false and misleading information from Bradford

County Sheriff Detective Kevin Mueller.

       1
         We review the district court’s denial of a motion to suppress under a mixed standard of
review, reviewing the district court’s findings of fact for clear error and the application of law de
novo. United States v. King, 509 F.3d 1338, 1341 (11th Cir. 2007). In reviewing a motion to
suppress, “all facts are construed in the light most favorable to the party prevailing in the district
court.” United States v. Ramirez, 476 F.3d 1231, 1235-36 (11th Cir. 2007). We review whether
an affidavit established probable cause de novo and findings of historical fact for clear error.
United States v. Jiminez, 224 F.3d 1243, 1248 (11th Cir. 2000).


                                                  2
      When alleging an unconstitutional search, the party challenging the search

“must establish both a subjective and an objective expectation of privacy. The

subjective component requires that a person exhibit an actual expectation of

privacy, while the objective component requires that the privacy expectation be

one that society is prepared to recognize as reasonable.” United States v. King,

509 F.3d 1338, 1341 (11th Cir. 2007) (citation and quotation omitted). We have

held that the threshold issue is whether the defendant had a legitimate expectation

of privacy. Id.

      With regard to the validity of a search warrant affidavit, in order to establish

probable cause, a search warrant affidavit must “state facts sufficient to justify a

conclusion that evidence or contraband will probably be found at the premises to

be searched.” United States v. Martin, 297 F.3d 1308, 1314 (11th Cir. 2002)

(citation and quotation omitted). “Specifically, the affidavit should establish a

connection between the defendant and the residence to be searched and a link

between the residence and any criminal activity.” Id. With respect to the affidavit

supporting a search warrant, there is a presumption of validity. Franks v.

Delaware, 438 U.S. 154, 171 (1978). The Fourth Amendment is violated if,

however, the warrant is obtained by using a false statement made intentionally or

recklessly. Id. at 155-56. “In the event that . . . the allegation of perjury or

                                           3
reckless disregard is established by the defendant by a preponderance of the

evidence, and, with the affidavit’s false material set to one side, the affidavit’s

remaining content is insufficient to establish probable cause, the search warrant

must be voided and the fruits of the search excluded to the same extent as if

probable cause was lacking on the face of the affidavit.” Id. at 156.

      We conclude Durdley did not have a reasonable expectation of privacy in

the thumb drive he left in a county-owned, common-use computer. See King, 509

F.3d at 1341 (holding a defendant did not have a reasonable expectation of privacy

in the contents of his laptop, which contained child pornography, when he

connected the laptop to his military base’s computer network). Furthermore, the

search warrant affidavit supported a finding of probable cause to search Durdley’s

residence, even if the statements regarding Detective Mueller’s training and

experience are redacted. Therefore, we conclude the district court did not err

when it denied Durdley’s motion to suppress.




                                           4
                                               II.

       Next, Durdley argues the evidence at trial was insufficient to support a

conviction because the Government failed to prove the child pornography had

affected interstate or foreign commerce.2

       Under § 2252A(a)(2)(A), it is unlawful for any person to knowingly receive

or distribute “any child pornography that has been mailed, or using any means or

facility of interstate or foreign commerce shipped or transported in or affecting

interstate or foreign commerce by any means, including by computer.” 18 U.S.C.

§ 2252A(a)(2)(A). Under § 2252A(a)(5)(B), it is unlawful when a person:

       knowingly possesses, or knowingly accesses with intent to view, any
       book, magazine, periodical, film, videotape, computer disk, or any
       other material that contains an image of child pornography that has
       been mailed, or shipped or transported using any means or facility of
       interstate or foreign commerce or in or affecting interstate or foreign
       commerce by any means, including by computer, or that was
       produced using materials that have been mailed, or shipped or
       transported in or affecting interstate or foreign commerce by any
       means, including by computer.

Id. § 2252A(a)(5)(B).




       2
         We review “de novo whether sufficient evidence supports a conviction, resolving all
reasonable inferences in favor of the verdict.” United States v. Farley, 607 F.3d 1294, 1333 (11th
Cir.), cert. denied, 562 U.S. -- (2010). When considering a sufficiency challenge, we “must
determine whether the evidence, construed in the light most favorable to the government, would
permit the trier of fact to find the defendant guilty beyond a reasonable doubt.” Id. (quotation
omitted).

                                                5
      We conclude that the evidence at trial was sufficient to support Durdley’s

convictions for receipt or distribution, or attempted receipt or distribution, of child

pornography, and for possession of child pornography. See United States v.

Maxwell, 466 F.3d 1210, 1211-12, 1219 (11th Cir. 2006) (upholding a conviction

that was based upon the government satisfying the jurisdictional element by

showing that the equipment used to store the child pornography was involved in

interstate commerce).

      Upon review of the entire record on appeal, and after consideration of the

parties’ appellate briefs, we affirm.

      AFFIRMED.




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