                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 31 2001
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 00-6331
v.                                             (Western District of Oklahoma)
                                                 (D.C. No. CR-99-206-L)
MICHAEL ALBERT CERVINI,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before EBEL, ANDERSON, and MURPHY, Circuit Judges.


I. INTRODUCTION

      Defendant Michael Cervini entered a conditional guilty plea to one count

of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) .

Cervini appeals from the district court’s final judgment, asserting the district

court erred in denying his motion to suppress and his request for an evidentiary

hearing. See Fed. R. Crim. P. 11(a)(2) (providing that a defendant, with approval


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
of the court and consent of the government, may enter conditional guilty plea and

reserve right to appeal an adverse determination of pretrial motion). This court

exercises jurisdiction pursuant to 28 U.S.C. § 1291 and   affirms the district court.

II. BACKGROUND

      In April 1999, two images of child pornography were posted to an Internet

newsgroup. Accompanying the postings were message headers that included an

Internet protocol address linked to the Internet service provider account of

Michael Cervini. After an investigation, a search warrant for Cervini’s residence

was issued and executed.

      In December 1999, Cervini was indicted for knowingly transporting and

shipping child pornography in interstate commerce in violation of 18 U.S.C. §

2252A(a)(1) and knowingly possessing an image of child pornography that was

produced using materials shipped and transported in interstate commerce in

violation of 18 U.S.C. § 2252A(a)(5)(B). Cervini filed a motion to suppress the

evidence obtained during the search of his residence, arguing the affidavit in

support of the warrant provided insufficient probable cause that evidence of

criminal activity would be found at his residence. The district court denied

Cervini’s motion and ruled that he was not entitled to an evidentiary hearing.

      Cervini entered a conditional guilty plea to possessing child pornography,

and the government dismissed the other charge. Cervini comes before this court


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on appeal from the district court’s denial of his motion to suppress and its denial

of his request for an evidentiary hearing on his motion.

III. DISCUSSION

      Cervini challenges the district court’s denial of his motion to suppress,

arguing the affidavit supporting the search warrant provided insufficient probable

cause to establish a nexus between the criminal activity and Cervini’s residence.

In reviewing the denial of a motion to suppress, this court reviews the district

court’s factual findings for clear error and its legal conclusions regarding the

sufficiency of the search warrant de novo. See United States v. Campos, 221 F.3d

1143, 1146 (10th Cir. 2000); United States v. Simpson, 152 F.3d 1241, 1246 (10th

Cir. 1998). This court reviews the district court’s denial of an evidentiary hearing

on a motion to suppress for abuse of discretion. See United States v. Chavez-

Marquez, 66 F.3d 259, 261 (10th Cir. 1995).

      “In determining whether probable cause exists to issue a warrant, the

issuing judge must decide whether . . . there is a fair probability that contraband

or evidence of a crime will be found in a particular place.” Simpson, 152 F.3d at

1246 (quotations omitted). The judge may draw reasonable inferences from the

affidavit in support of the search warrant application. See United States v.

Rowland, 145 F.3d 1194, 1205 (10th Cir. 1998). The issuing judge must

ultimately make a practical, common-sense decision based on the totality of the


                                          -3-
circumstances. See United States v. Corral-Corral, 899 F.2d 927, 931 (10th Cir.

1990). This court affords great deference to the judge’s final determination. See

id.

      On appeal, Cervini claims the information in the affidavit does not

establish that the transmission of pornographic images originated from a computer

at his residence or that he even owned a computer. Cervini further argues the

second telephone line in his residence could have been used for a purpose other

than establishing an Internet connection.

      Affording great deference to the issuing judge’s determination, this court

concludes the search warrant affidavit asserted sufficient facts to establish

probable cause that evidence of criminal activity would be found in Cervini’s

residence. Terry Wade, a Special Agent for the Federal Bureau of Investigation

and former agent for the Oklahoma Bureau of Investigation, applied for a warrant

to search Cervini’s residence, attaching a personal affidavit to the application in

support of the warrant. The affidavit describes in some detail the process by

which an individual may post a message to an Internet newsgroup and the manner

in which the individual may be traced from his posting.

      In addition, the affidavit includes details of the specific crime for which the

search warrant was sought. Special Agent Wade indicated in his affidavit that

two images of child pornography were posted to an Internet newsgroup just before


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1:00 a.m. on April 27, 1999. The message header accompanying the transmission

contained the Internet protocol (IP) address 206.154.188.85 and revealed that the

message was posted from a news server owned by Innovative Technology, Ltd.,

an Internet service provider (ISP). The ISP’s records revealed that the account

responsible for the posting had been in use for four hours and was not logged off

until just before 3:00 a.m. In response to a grand jury subpoena, the ISP

identified the account holder from the IP address as Michael Cervini. The ISP

provided Cervini’s address and indicated that his customer account status was

active. Cervini’s residential address was corroborated through both a records

check of Southwestern Oklahoma State University and an Oklahoma driver’s

license query.

      Further, current telephone listings revealed that Cervini’s residence

contained two active telephone lines. Special Agent Wade indicated that based

upon his knowledge and training, it is common practice for individuals utilizing a

home computer for access to the Internet to have a second telephone line in their

home. Wade further indicated that he conducted an interview with Cervini’s

neighbor who revealed that Cervini was knowledgeable about computers and had

worked on a computer-related project for a family member of the neighbor’s at

Cervini’s home.




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      In his brief, Cervini pays little regard to the standard for establishing

probable cause. The search warrant affidavit must demonstrate a “fair

probability” that a search of Cervini’s residence would uncover evidence

connecting Cervini to the pornographic postings. Simpson, 152 F.3d at 1246. It

need not eliminate all other possible conclusions which could be derived from the

alleged facts. The issuing judge reasonably could have inferred from the facts

provided in the affidavit that (1) an individual is likely to generate child

pornography in a location where he has the greatest expectation of privacy; (2) a

computer would be found at an ISP subscriber’s residence; (3) Cervini was most

likely at home at 1:00 a.m.; and (4) as the account holder, Cervini was the person

using the account. Contrary to Cervini’s claim, these conclusions do not require

the issuing judge to pile inference upon inference. The totality of the facts enable

a reasonable person to draw the common-sense conclusion that evidence of the

crime would be found at Cervini’s residence. 1 See United States v. $149,442.43

in U.S. Currency, 965 F.2d 868, 874 (10th Cir. 1992) (“Where an affidavit

describes circumstances which would warrant a person of reasonable caution to




      1
        Cervini claims the information gathered from his neighbor was stale
because no time frame was given for the alleged computer-related project
performed at his home. This court need not determine whether the information
was stale. Even without this information, the affidavit contains sufficient facts to
support the issuance of a search warrant.

                                          -6-
believe that the articles sought would be at appellant’s residence, then a sufficient

nexus has been established.”).

      Cervini also argues on appeal that the district court erred in not holding an

evidentiary hearing on the issues he raised in his motion to suppress. Cervini

alleges that the search warrant affidavit recklessly omitted information that would

have vitiated probable cause. Specifically, Cervini claims (1) the affidavit lists

the e-mail address eyeBme@fish.net as the source of the pornographic postings,

while Cervini’s e-mail address was mike@ITLnet.net during the relevant time

period; (2) the affiant discovered that Cervini was a student at Southwestern

Oklahoma State University and that, in the course of learning this information, the

affiant also should have learned that Cervini was employed by the University as a

Library Computer Technician with access to many computers; and (3) the

affidavit was void of information that the pornographic images could have been

posted on the Internet from anywhere in the world through the use of a computer

at any location. Because Cervini failed to raise the last two arguments before the

district court, this court deems them waived and only addresses his argument

regarding the e-mail address. See United States v. Dewitt, 946 F.2d 1497, 1502

(10th Cir. 1991).

      A defendant is entitled to a hearing only if he can make a “substantial

preliminary showing that a false statement knowingly and intentionally, or with


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reckless disregard for the truth, was included by the affiant in the warrant

affidavit, and if the allegedly false statement is necessary to the finding of

probable cause.” Franks v. Delaware, 438 U.S. 154, 155-56 (1978). The rule

entitling a defendant to a hearing also applies to material omissions if the

omissions are so probative as to negate probable cause. See United States v.

Kennedy, 131 F.3d 1371, 1377 (10th Cir. 1997); DeLoach v. Bevers, 922 F.2d

618, 622 (10th Cir. 1990). A defendant makes a preliminary showing if he

demonstrates that the exclusion of a false statement contained in the affidavit or

the inclusion of a material omission not contained in the affidavit would have

vitiated probable cause. See Stewart v. Donges, 915 F.2d 572, 581-83 (10th Cir.

1990); Corral-Corral, 899 F.2d at 933.

      Although Cervini characterizes the problem with the affidavit as an

omission, his claim in fact includes both an allegation of a false statement and an

allegation of a material omission. The inclusion of eyeBme@fish.net as the e-

mail address connected to Cervini’s Internet account is more properly

characterized as an alleged false statement, while the exclusion of Cervini’s e-

mail address as mike@ITLnet.net is accurately characterized as an alleged

material omission. Regardless of how the issue is framed, however, Cervini did

not demonstrate to the district court that the exclusion of the eyeBme@fish.net e-




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mail address or the inclusion of the mike@ITLnet.net e-mail address in the

affidavit would have vitiated probable cause. 2

      Even if the eyeBme@fish.net e-mail address is excluded from the affidavit,

a connection between the pornographic postings and Cervini arises through the IP

address linked to his ISP account. Hence, the exclusion of the eyeBme@fish.net

e-mail address from the affidavit would not have negated a finding of probable

cause. An examination of the alleged material omission results in the same

conclusion. Including mike@ITLnet.net as Cervini’s alleged e-mail address

would not create an inconsistency in the affidavit, nor would it render the

affidavit insufficient to establish probable cause.

      The affidavit sets forth the following relevant information. When an

individual posts a message to an Internet newsgroup, the message is sent through

a newsgroup computer server that automatically attaches a “message header” to

the message. In this case, the “message header” on the messages that

accompanied the pornographic images showed an IP address of 206.154.188.85,

which is the IP address linked to Cervini’s ISP account. The individual who

posted the pornographic images placed a text return address of eyeBme@fish.net



      2
         This court need not address whether the affidavit actually contained a
false statement or omitted material information because Cervini cannot
demonstrate that the alleged false statement or material omission were necessary
to the finding of probable cause.

                                         -9-
in each of the messages accompanying the images. According to the affidavit,

however, this text return address is not automatically attached to the message as is

the IP address. It would be reasonable for an issuing judge to infer that an

automatically-attached identifier is more accurate than an e-mail address imputed

by the individual posting the pornographic images who might want to conceal his

identity. Even with the inclusion of the e-mail address mike@ITLnet.net, the IP

address still links Cervini’s ISP account to the posting of pornographic images.

      The exclusion of the alleged false statement and inclusion of the alleged

material omission would not have undermined the probable cause determination.

Cervini made no such showing in his motion to suppress to the district court to

warrant a hearing. Thus, this court holds the district court did not abuse its

discretion in denying Cervini an evidentiary hearing on his motion to suppress.

IV. CONCLUSION

      For the reasons stated above, this court affirms the district court’s denial

of Cervini’s motion to suppress and affirms the district court’s refusal to hold an

evidentiary hearing on the matter.



                                                Entered for the Court



                                                Michael R. Murphy
                                                Circuit Judge

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