                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-2447
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Northern District of Iowa.
Todd Hansel,                            *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: February 12, 2008
                                Filed: May 2, 2008
                                 ___________

Before WOLLMAN, JOHN R. GIBSON, and SHEPHERD, Circuit Judges.
                          ___________

WOLLMAN, Circuit Judge.

      Todd Hansel entered a conditional guilty plea to a two-count indictment
charging him with possession of child pornography in violation of 18 U.S.C. §
2252A(a)(5)(B) and (b)(2), and distribution of child pornography in violation of 18
U.S.C. § 2252A(a)(1) and (b)(1). Hansel reserved the right to appeal the district
court’s1 denial of his motion to suppress. Hansel now appeals that issue, arguing that
the warrants to search his residence lacked probable cause. Hansel also appeals his
sentence, contending that the district court improperly applied a three-level

      1
       The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
enhancement to his offense level for distribution of child pornography to a minor. We
affirm.

      I. Background

        Law enforcement officers began investigating Hansel after two minor girls
alleged that while they were in Hansel’s care, he observed them in the nude, took
pictures of them in their swimsuits, and sexually abused them. These allegations led
to three state search warrants and a federal search warrant for Hansel’s residence. The
first state warrant was sought after local law enforcement interviewed the two girls
and their minor brother, who was allegedly physically abused by Hansel. The search
warrant sought items referenced by the two girls, including: a Wal-Mart receipt for
children’s swimsuits, children’s swimsuits, a man’s white briefs, a Britney Spears
movie, sexual devices including a plastic replica of a man’s penis, and children’s
bicycles. When law enforcement arrived at Hansel’s residence and presented him
with the search warrant, Hansel indicated that the swimsuits were in the master
bedroom. Law enforcement began their search in the bedroom and found all of the
items on the search warrant except for the Wal-Mart receipt and the white briefs.
Continuing the search, law enforcement found eight computer-produced 8x10
photographs of nude prepubescent females in the bedroom closet. Each photograph
was imprinted with the date “9/21/99” and an Internet address with the following or
similar language: “www.little-virgins.com.” The search also revealed a computer in
Hansel’s dining room that was connected to a printer, and a webcam located near the
computer. The webcam was pointed at a chair and appeared to be aimed at where the
mid-section or genitals of a person would be if the person were sitting in the chair.
The chair was lined with towels and a nearly empty bottle of baby oil and more towels
were located next to the computer.

       Based upon what was found during the search, officers applied for a second
state search warrant. The affidavit in support of the second warrant stated that while

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conducting the search of Hansel’s residence pursuant to the first state warrant, officers
uncovered “eight 8x10 printed pictures of unknown prepubescent white females
without any clothing on,” two computers, one of which was “hooked up to a printer,”
a 35mm camera, a video camera, several videotapes without labels, and many
photographs of the alleged victims in swimsuits. The affidavit also stated that in the
affiant’s experience, “the printed pictures indicate receipt of child pornography by
means of a computer,” and the camera equipment indicates “a likelihood child
pornography may have been produced.” The second warrant authorized the officers
to search Hansel’s residence for an assortment of electronic devices, photographs, and
videotapes. Thereafter, a third state search warrant was issued authorizing law
enforcement to conduct a forensic analysis on the computer and camera equipment
seized pursuant to the second warrant.

       Subsequently, law enforcement applied for a federal search warrant to search
Hansel’s computer equipment for evidence of violations of 18 U.S.C. §§ 2251, 2252,
or 2252A. The affidavit stated that officers were investigating Hansel based upon
allegations that he had sexually abused minors and that the valid search of his
residence pursuant to the first state search warrant revealed hundreds of pictures of the
alleged victims and other minor children in swimming suits. The affidavit described
the eight 8x10 photographs found in Hansel’s bedroom closet and stated that the color
photographs were printed on 8.5 by 11 white paper and that each photograph was
imprinted with an Internet address such as “www.little-virgins.com.” The affidavit
specifically stated that the photographs did not depict lascivious exhibition of genital
or pubic regions. The affidavit described the computer equipment found in Hansel’s
residence, including the computer hooked up to a printer, the webcam pointed at the
midsection of a chair, and the towels and baby oil next to the computer. The affidavit
also discussed in detail why, in the affiant’s experience, all of this information
established a fair probability that there was child pornography on Hansel’s computer.
Additionally, the affidavit noted that the affiant was not relying on any information
actually found on Hansel’s computer after it was seized pursuant to the state search

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warrants. Following the submission of the affidavit to a United States Magistrate
Judge,2 the federal search warrant was issued.

       Evidence obtained pursuant to the federal search warrant revealed that Hansel
had used his computer, the Internet, and an online chat session to possess and
distribute child pornography. The evidence also indicated that Hansel, while
representing himself as a thirteen-year-old female, distributed child pornography to
an individual whose username was “beccajones13” and who represented herself to be
a thirteen-year-old female.

       At the sentencing hearing, the district court found that Hansel distributed child
pornography to a minor and applied a five-level enhancement pursuant to the United
States Sentencing Guidelines (U.S.S.G.) § 2G2.2(b)(3)(C).

      II. Motion to Suppress

       “We review the district court’s factual findings in support of its denial of a
motion to suppress for clear error and its legal determination of probable cause de
novo.” United States v. Solomon, 432 F.3d 824, 827 (8th Cir. 2005). We must affirm
the district court’s denial of the motion “unless it is not supported by substantial
evidence on the record; it reflects an erroneous view of the applicable law; or upon
review of the entire record, [we are] left with the definite and firm conviction that a
mistake has been made.” United States v. Bell, 480 F.3d 860, 863 (8th Cir. 2007)
(alteration in original) (internal quotation omitted).

      Hansel argues that the district court erred by denying his motion to suppress the
evidence seized from his residence because the second state search warrant and the

      2
       The Honorable John A. Jarvey, then Chief Magistrate Judge for the United
States District Court for the Northern District of Iowa, now United States District
Judge for the Southern District of Iowa.

                                          -4-
federal search warrant did not establish probable cause that child pornography would
be found on his computer. A search warrant is valid under the Fourth Amendment if
it establishes probable cause. United States v. Caswell, 436 F.3d 894, 897 (8th Cir.
2006). “Whether probable cause to issue a search warrant has been established is
determined by considering the totality of the circumstances, and resolution of the
question by an issuing judge ‘should be paid great deference by reviewing courts.’”
United States v. Grant, 490 F.3d 627, 631 (8th Cir. 2007) (quoting Illinois v. Gates,
462 U.S. 213, 236 (1983)). Probable cause to search exists if, under the totality of the
circumstances, “there is a fair probability that contraband or evidence of a crime will
be found in a particular place.” Caswell, 436 F.3d at 897 (quoting Gates, 462 U.S. at
238).

      Regarding the second state search warrant, Hansel argues that the affidavit in
support of the warrant was misleading because the statement that the 8x10
photographs “indicate receipt of child pornography by means of a computer”
suggested that the photographs themselves constituted child pornography, when in
fact the investigating officer testified that they were child erotica, not child
pornography. Hansel contends that without this misleading statement, the affidavit
did not establish probable cause that Hansel had child pornography on his computer.

       A search warrant is void and the fruits of the search must be suppressed if the
defendant proves by a preponderance of the evidence that (1) the government
knowingly and intentionally, or with reckless disregard for the truth, included a false
statement in the affidavit in support of the warrant, and (2) without the false statement,
the affidavit does not establish probable cause. Franks v. Delaware, 438 U.S. 154,
155-56 (1978); United States v. Snyder, 511 F.3d 813, 816 (8th Cir. 2008). In its
order denying Hansel’s motion to suppress, the district court found that the statement
about the photographs indicating receipt of child pornography was misleading, and
therefore the district court did not consider it when it determined whether the affidavit
for the second search warrant established probable cause. Like the district court, we

                                           -5-
need not discuss whether the affiant knowingly and intentionally or with reckless
disregard for the truth included a false statement in the affidavit because we conclude
that, even without the misleading statement, the totality of the circumstances described
in the affidavit established a fair probability that child pornography would be found
on Hansel’s computer.

       Hansel rests his argument that the affidavit did not establish probable cause on
the theory that the possession of child erotica, which is not illegal, cannot establish
probable cause that the individual also possesses child pornography. Hansel’s
argument fails to take into consideration the totality of the circumstances. See Grant,
490 F.3d at 631. It was not the existence of the photographs of nude minors in
Hansel’s bedroom closet that alone established probable cause that Hansel had child
pornography on his computer.3 Rather, it was the presence of the photographs
combined with the other facts included in the affidavit. The affidavit noted the
allegations of sexual abuse, the presence of nude photographs of minors, the computer
equipment, 35mm camera, videocamera, unmarked videotapes, and the pictures of the
alleged victims in swimsuits. Given this information, the district court did not err in
finding that the second state search warrant established probable cause even without
the statement that could have misled the magistrate judge to believe that the 8x10
photographs constituted child pornography as opposed to child erotica.




      3
        The district court found that the possession of child erotica, such as
photographs of nude children that do not constitute child pornography, “might not
alone be sufficient to provide probable cause to believe that Defendant possessed child
pornography.” United States v. Hansel, No. 06-CR-102-LRR, 2006 WL 3004000, at
*11 (N.D. Iowa Oct. 20, 2006) (order denying motion to suppress) (unpublished).
Thus, the district court did not decide, and we do not decide, whether possession of
child erotica alone could ever be enough to establish probable cause that an individual
possesses child pornography. It is sufficient to conclude that in this case, the totality
of the circumstances established probable cause.

                                          -6-
       Even if we assume that the second state search warrant was invalid, the district
court properly concluded that the evidence seized from Hansel’s residence was
admissible under the independent source doctrine. See United States v. Khabeer, 410
F.3d 477, 483 (8th Cir. 2005). Hansel does not challenge the district court’s finding
that even if the second and third state search warrants had not been issued, the
government would have sought the federal search warrant for Hansel’s computer
equipment. Furthermore, Hansel does not challenge the district court’s finding that
the issuance of the federal warrant did not depend on any information obtained
pursuant to the second or third state warrants.

       Hansel’s only challenge to the federal search warrant is that the affidavit in
support of the warrant did not establish probable cause because, he asserts, possession
of child erotica does not establish probable cause that the possessor thereof also
possesses child pornography. For the reasons discussed above, and because the
affidavit in support of the federal warrant described the circumstances in even greater
detail than the affidavit for the second state warrant and did not include any
misleading statements about the 8x10 photographs, we conclude that the affidavit
established probable cause to search Hansel’s computer equipment for child
pornography.

       Hansel further contends that there was no nexus between the photographs and
his computer because the investigation was instigated by allegations of sexual abuse
of minors, the pictures of the alleged victims found in Hansel’s bedroom were photos
of the girls in swimsuits and not nude photos, and the alleged victims did not say
anything about Hansel’s computer or the webcam, nor did they accuse Hansel of
showing them pornography in any medium. The absence of these specific allegations
does not negate the fact that the information that did exist established a fair probability
that there was child pornography on Hansel’s computer. Thus, even if Hansel’s
computer equipment was originally seized improperly because of a defect in the
second state warrant, the district court did not err in finding that the federal search

                                           -7-
warrant was valid and the evidence admissible under the independent source doctrine.
Accordingly, we conclude that the district court properly denied Hansel’s motion to
suppress.

      III. Enhancement for Distribution of Child Pornography to a Minor

       A defendant is subject to a five-level enhancement in his offense level if the
defendant distributed child pornography to a minor. U.S.S.G. § 2G2.2(b)(3)(C).
Distribution to a minor is defined as “the knowing distribution to an individual who
is a minor at the time of the offense.” U.S.S.G. § 2G2.2 cmt. n. 1. A “minor” is

      (A) an individual who had not attained the age of 18 years; (B) an
      individual, whether fictitious or not, who a law enforcement officer
      represented to a participant (i) had not attained the age of 18 years, and
      (ii) could be provided for the purposes of engaging in sexually explicit
      conduct; or (C) an undercover law enforcement officer who represented
      to a participant that the officer had not attained the age of 18 years.

Id.

       The government must prove the facts needed to support a sentencing
enhancement by a preponderance of the evidence. See United States v. Russell, 234
F.3d 404, 408 (8th Cir. 2000). Hearsay is admissible in a sentencing hearing and can
be used to determine facts if the hearsay has sufficient indicia of reliability. United
States v. Tucker, 286 F.3d 505, 510 (8th Cir. 2002). We review the district court’s
application of the sentencing guidelines de novo, and we review its factual findings,
such as whether the defendant distributed child pornography to a minor, for clear
error. United States v. Birdine, 515 F.3d 842, 845 (8th Cir. 2008).

      Hansel accepts the two-level enhancement for distribution of child pornography
under U.S.S.G. § 2G2.2(b)(3)(F). He disputes, however, the additional three-level


                                         -8-
enhancement for distribution to a minor, arguing that the government did not present
any evidence that the recipient was actually a minor. The government did not assert
that the recipient of the child pornography was an undercover officer posing as a
minor. Thus, the issue is whether the district court clearly erred when it found, by a
preponderance of the evidence, that the recipient was a minor. The transcript of the
online chat session in which the child pornography was transferred reveals that the
recipient’s username was “beccajones13” and the recipient represented herself to be
a thirteen-year-old female. Although it is possible that the recipient misrepresented
her age, just as Hansel did, there was evidence before the district court to support the
finding that the recipient was a minor and we are not convinced that the district court
made a mistake in so finding. Thus, the district court did not clearly err by enhancing
Hansel’s offense level for distribution of child pornography to a minor.

      The judgment is affirmed.
                      ______________________________




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