                                                              NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    _____________

                                         No. 12-2434
                                        _____________

                              UNITED STATES OF AMERICA

                                               v.

                                MICHAEL STRAUSBAUGH,

                                                                Appellant



                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                        (District Court No. 1-11-cr-00096-001)
                    District Judge: Honorable William W. Caldwell


                       Submitted under Third Circuit LAR 34.1(a)
                                   on July 15, 2013

                                (Filed: August 9, 2013)

                Before: RENDELL, SMITH and ROTH, Circuit Judges



                                     OPINION


RENDELL, Circuit Judge:

      On October 26, 2011, after a three-day bench trial, Defendant Michael

Strausbaugh was found guilty of offenses involving the sexual exploitation of a child and
distribution and possession of child pornography. After he was sentenced on May 8,

2012, Strausbaugh, proceeding through appointed counsel, appealed the District Court’s

judgment of conviction. On July 13, 2013, Strausbaugh filed a pro se motion to stay

proceedings. We denied this motion on July 25, 2013.

       For the reasons discussed below, we will affirm the District Court’s judgment of

conviction.

                                     I. Background1

       After executing a search warrant pursuant to a child pornography investigation in

Canada, Canadian police alerted the United States Postal Inspection Service (USPIS) that

a resident of the United States had distributed, and possibly produced, images of child

pornography. The Canadian police highlighted an email exchange between the subject of

the Canadian investigation and the owner of an email address in the United States, in

which the United States resident stated that he had nude images of an eight-month-old

female infant and attached a photograph of the child with the comment “here’s a

preview.”2 An examination of the digital image revealed that the photo of the infant had

been taken with a Konica Minolta Dimage digital camera on December 28, 2010. After

the Canadian police forwarded this information, the USPIS issued a subpoena to Google,

seeking the Internet Protocol (IP) address for the email account. Google provided the IP

address, which was part of a Verizon wireless services account. A subsequent subpoena

1
  The District Court had jurisdiction pursuant to 28 U.S.C. § 3231 and this Court has
jurisdiction pursuant to 28 U.S.C. § 1291.
2
 We refer to the picture attached to the email as the “Canada picture,” as Strausbaugh
does in his brief.
                                            2
to Verizon revealed that the wireless services were registered to Rebecca Strausbaugh of

New Oxford, Pennsylvania. After investigating other email accounts with the same IP

address and the residents of that home, the USPIS sought and obtained a search warrant

from a magistrate judge for the Strausbaugh home.

       Federal agents executed the search warrant on March 18, 2011. Upon execution

of the warrant, agents identified furniture that matched furniture in the photograph sent to

Canada, and seized the camera and other computing equipment. After the initial search,

agents subsequently discovered a pair of external computer hard drives. After the media

and storage devices were taken to a mobile crime lab, agents discovered several

photographs depicting, inter alia, the infant nude from the waist down, the infant being

held by Rebecca Strausbaugh, the infant’s legs and genitals, and the infant with an erect

adult penis pressed against her. Agents also found additional child pornography images

and video on the electronic storage devices.

       During the execution of the search warrant, Strausbaugh was questioned by federal

agents. Before any questioning, Strausbaugh was read his Miranda rights and given a

written copy of those rights. Strausbaugh initialed a written copy of his rights to indicate

that he understood and received the copy. Strausbaugh then signed a waiver of those

rights and investigators went over his Miranda rights again orally before he answered

questions. During questioning, Strausbaugh confessed to the identity of the infant in the

photographs; that he had taken the photos; that it was his and his wife’s hands that spread

the infant’s legs and genitals in several photographs; and that it was his penis pressed

against the infant in several photographs.

                                               3
      The USPIS filed a criminal complaint against Strausbaugh on the day it executed

the search warrant, alleging that Strausbaugh had committed crimes involving the sexual

exploitation of children. On March 23, 2011, a grand jury in the Middle District of

Pennsylvania returned a three-count indictment naming Michael Strausbaugh and

Rebecca Strausbaugh as defendants. Subsequently, on May 4, 2011, a grand jury in the

Middle District of Pennsylvania returned a six-count superseding indictment, again

naming Strausbaugh and his wife as defendants, and charging them with three counts of

sexual exploitation of a child in violation of 18 U.S.C. §§ 2251(a) and (e) and 18 U.S.C.

§ 2. Strausbaugh was also charged with one count of distribution of child pornography in

violation of 18 U.S.C. §§ 2252(a)(2) and (b), and one count of possession of child

pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(b). Finally, there was a forfeiture

count under 18 U.S.C. § 2253.

      Strausbaugh and his wife both proceeded to a bench trial before the Honorable

William W. Caldwell. During the course of the trial, the District Court heard testimony

from Postal Inspector Michael Corricelli, who described the investigation, the execution

of the search warrant, and Strausbaugh’s statements under questioning. Strausbaugh then

took the stand in his own defense. He admitted to committing the acts with which he was

charged; he admitted to sending a picture to Canada and trading pictures on the internet

roughly eight to a dozen times; and he admitted to taking—or helping to take—the

photographs at issue. On October 26, 2011, Strausbaugh was found guilty of all charges.

      In preparation for sentencing, the United States Probation Office assembled a Pre-

Sentence Report, in which Strausbaugh’s total offense level was 43 and his criminal

                                            4
history category was V. Based on these calculations, Strausbaugh’s Guideline range

called for life imprisonment, but the range was restricted to 2,520 months by virtue of the

statutory maximums set for his sentences of conviction. The District Court conducted a

sentencing hearing for Strausbaugh on May 8, 2012, and ultimately sentenced

Strausbaugh to 540 months’ imprisonment.

       Strausbaugh’s timely appeal followed.

                                        II. Discussion

       Strausbaugh raises the following issues on appeal: (1) whether evidence was

obtained in violation of the Mutual Legal Assistance Treaty (“MLAT”) in effect between

the United States and Canada; (2) whether the District Court erred in refusing to suppress

evidence obtained during the execution of a search warrant at Strausbaugh’s home; (3)

whether the District Court erred in failing to suppress the evidence obtained during

Strausbaugh’s custodial interrogation; (4) whether the District Court erred when it denied

Strausbaugh’s motion for acquittal based on sufficiency of the evidence grounds; and (5)

whether the District Court’s sentence amounted to cruel and unusual punishment.

                                    A. Treaty Violation

       Strausbaugh, for the first time on appeal, asserts that evidence presented at his trial

was obtained in violation of the MLAT between the United States and Canada. We will

review this issue for plain error. Puckett v. United States, 556 U.S. 129 (2009). Under

plain error review, in order to reverse, we must find (1) an error; (2) that is plain or

obvious; and (3) that affected substantial rights. United States v. Dobson, 419 F.3d 231,

236 (3d Cir. 2005).

                                               5
       In this case, it is clear that there was no error. The treaty itself states that:

       This Treaty is intended solely for mutual legal assistance between the
       Parties. The provisions of this Treaty shall not give rise to a right on the
       part of a private party to obtain, suppress or exclude any evidence or to
       impede the execution of a request.

24 I.L.M. 1092. Under its very terms, Strausbaugh cannot use the treaty to suppress

evidence used in his trial. Indeed, “under international law, it is the contracting foreign

government, not the defendant, that would have the right to complain about a [treaty]

violation.” United States v. Cordero, 668 F.2d 32, 38 (1st Cir. 1981). Thus,

Strausbaugh’s argument has no merit.

                         B. Evidence Obtained by Search Warrant

       Strausbaugh next challenges the admittance of evidence seized during the search

of Strausbaugh’s home: he argues that the search warrant was not supported by probable

cause and was overbroad, insisting that the evidence should have been suppressed. We

exercise plenary review over the district court’s legal conclusions, and clear error review

of its factual findings. United States v. Torres, 534 F.3d 207, 209 (3d Cir. 2008).

                                      1. Probable Cause

       Strausbaugh makes several arguments attacking the probable cause underlying the

search warrant. “The test for probable cause is not reducible to ‘precise definition or

quantification.’” Florida v. Harris, 133 S. Ct. 1050, 1055 (2013) (quoting Maryland v.

Pringle, 540 U.S. 366, 371 (2003)). As the Supreme Court has noted, all that is required

is the kind of “fair probability” on which “reasonable and prudent [people,] not legal

technicians, act.” Id. (alteration in original, citation omitted). Probable cause exists


                                                6
when, viewing the “totality of the circumstances, ‘there is a fair probability that

contraband or evidence of a crime will be found in a particular place.’” United States v.

Miknevich, 638 F.3d 178, 182 (3d Cir. 2011) (quoting Illinois v. Gates, 462 U.S. 213, 238

(1983)). In reviewing a magistrate judge’s finding of probable cause, we must look at the

“factual context[]” and must uphold the finding if a “substantial basis” supports it, even if

a different magistrate judge might not have made the same finding. Id.

       Strausbaugh argues that the method with which the USPIS determined the

Strausbaugh IP address did not establish probable cause. Specifically, Strausbaugh

argues that the IP address obtained by the USPIS was used 20 days after the email to

Canada, and that Strausbaugh’s name and address was just one of a number of different

names that could have been associated with that “dynamic” IP address. Strausbaugh’s

argument fails to take into account that a probable cause determination must consider the

“totality of the circumstances.” The circumstances in this case show that the USPIS

linked the IP address at issue with the email address used in the Canada email exchange,

several email addresses associated with the Strausbaughs, a business operated by

Strausbaugh, and to the Strausbaugh property itself. Thus, the probable cause

determination was not based merely on the USPIS’s determination that the email to

Canada was sent from that particular IP address—rather, it was based on several other

facts linking the Strausbaugh home to the IP address.

       Strausbaugh also argues that the search warrant was based on the “Canada

picture,” which, he argues, does not constitute child pornography, and therefore, there

was no probable cause to support the warrant. This argument is without merit. Even if

                                              7
the “Canada picture” was not “lascivious” under United States v. Dost, 636 F. Supp. 828

(S.D. Cal 1986), aff’d sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir.

1987)—which is not a foregone conclusion, as it appears that several Dost factors are

satisfied—we must look at the totality of the circumstances. We also must remember that

the test is whether there is a “fair probability”—not absolute certainty—of criminal

activity. Any reasonable magistrate considering the photograph, which depicted the nude

infant, the email exchange, in which it was clear that the purpose was to exchange nude

pictures of infants for the purpose of sexual excitement, and the fact that the email

originated from the Strausbaugh home would find a “fair probability” that criminal

activity was taking place at the Strausbaugh home.

       Examining the factual context and the totality of the circumstances, it is clear that

there was a “substantial basis” to support the finding of probable cause.

                                  2. Breadth of Evidence

       Strausbaugh also argues that any evidence seized pursuant to the search warrant,

beyond one camera and specific pictures, was too broad. When the USPIS applied for

the warrant, it produced evidence that the internet, email, and electronic equipment had

been used to distribute child pornography. This provided a “fair probability” that

evidence of child pornography-related crimes would be found within the Strausbaugh

home. Additionally, Postal Inspector Corricelli, whose affidavit supported the warrant,

had specialized knowledge and experience as to the typical manner in which child

pornographers create, distribute, receive, and store their contraband. A law enforcement

official’s specialized experience and training is a legitimate consideration in determining

                                              8
probable cause. United States v. Yusuf, 461 F.3d 374, 390 (3d Cir. 2006) (citing United

States v. Arvizu, 543 U.S. 266, 275 (2002)). In light of that, it was not an error for the

District Court to uphold the search and seizure of evidence beyond the camera and

specific photographs.

                       C. Evidence Obtained by Custodial Interrogation

          Strausbaugh also challenges the admission of statements he made during a

custodial interrogation, arguing that they were the result of improper coercion. The

record does not support his contention. We exercise plenary review over the district

court’s legal conclusions, and clear error review of its factual findings. Torres, 534 F.3d

at 209.

          An admission made during a custodial interrogation may only be used if it is clear

that the defendant waived his rights under Miranda v. Arizona, 348 U.S. 436 (1979), and

that the waiver was made as a free, deliberate, and fully aware choice absent intimidation,

coercion, or deception. Berghuis v. Thompkins, 130 S. Ct. 2250, 2260 (2010). The

record indicates that Strausbaugh deliberately waived his Miranda rights—his Miranda

rights were read to him, he was presented with a written copy of the rights, which he

signed, and he initialed that written copy as each right was explained. Then, Strausbaugh

signed an express waiver of those rights before he answered any questions, and

investigators went over his rights against self-incrimination again before beginning

questioning. Furthermore, the record contradicts Strausbaugh’s argument that the Postal

Inspector who interviewed him coerced Strausbaugh into giving statements by promising



                                               9
him that he would go to a rehabilitation center instead of jail. Thus, the District Court did

not err by allowing Strausbaugh’s admissions into the record.

                              D. Sufficiency of the Evidence

       Strausbaugh next challenges the District Court’s denial of his motion for acquittal

based on sufficiency of the evidence. We exercise plenary review over the grant or

denial of a motion for acquittal. United States v. Mike, 655 F.3d 167, 174 (3d Cir. 2011).

We must sustain a conviction if “any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt” when the evidence is viewed in the

light most favorable to the government. Id.

       In support of his argument, Strausbaugh again contends that the “Canada picture”

was not child pornography and urges that the government did not show a nexus to

interstate commerce. Even if the picture that Strausbaugh emailed to the Canadian

citizen did not constitute child pornography—and again, that is far from clear—several

other photographs that Strausbaugh admitted to taking or helping to take certainly did.

See Dost, 636 F. Supp. at 832 (listing factors courts consider in determining whether a

visual image of a child is proscribed by 18 U.S.C. § 2256). Additionally, the government

produced pictures and videos depicting child pornography seized from Strausbaugh’s

home, which supports Strausbaugh’s possession conviction. Finally, there is no dispute

that the Konica Minolta Dimage camera was used to take the photographs and that it was

manufactured in Korea. This satisfies the interstate commerce jurisdictional “hook.” See

United States v. Galo, 239 F.3d 572, 575-76 (3d Cir. 2001) (citing United States v. Rodia,

194 F.3d 465 (3d Cir. 1999)) (“[T]he requirement that at least one of the materials used to

                                              10
produce the child pornography travel in interstate commerce provides the jurisdictional

hook.”). Accordingly, there was sufficient evidence to uphold the convictions on all

charges.

                               E. District Court’s Sentence

       Our review of a defendant’s Eighth Amendment challenge to his sentence is

plenary. We note, however, that the Eighth Amendment only proscribes punishment

grossly disproportionate to the severity of the crime, and therefore “‘only an

extraordinary case will result in a constitutional violation.’” Miknevich, 638 F.3d at 185-

86 (quoting United States v. Walker, 473 F.3d 71, 79 (3d Cir. 2007)). Furthermore, a

sentence that falls within the limits imposed by a statute is neither excessive nor cruel and

unusual. Id. at 187. In this case, Strausbaugh’s 45-year sentence on his five separate

convictions was decidedly less than the maximum sentence that could have been imposed

under the statutes of conviction. Additionally, in other cases involving multiple counts of

production and/or distribution of child pornography, sentences have exceeded 45 years

and have been upheld. See, e.g., United States v. Sarras, 575 F.3d 1191 (11th Cir. 2009)

(upholding a 100-year sentence on convictions on three counts of sexual exploitation of a

minor and one conviction of possession of child pornography); United States v. Paton,

535 F.3d 829 (8th Cir. 2008) (upholding a life sentence for convictions on five counts of

production of child pornography). We cannot say that Strausbaugh’s sentence was

grossly disproportionate to the severity of the crime. It simply does not amount to cruel

and unusual punishment, and his sentence must therefore be affirmed.



                                             11
                                    III. Conclusion

      For the reasons stated above, we will affirm the District Court’s judgment of

conviction and sentence.




                                           12
