           Case: 17-14073   Date Filed: 08/03/2018   Page: 1 of 12


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-14073
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 5:16-cr-00028-RH-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                 versus

MICHAEL RAY ALFORD,

                                                         Defendant-Appellant.

                       ________________________

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

                             (August 3, 2018)



Before WILSON, JORDAN and BLACK, Circuit Judges.

PER CURIAM:
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      Michael Ray Alford appeals his conviction for knowingly receiving and

attempting to receive material containing child pornography. Alford brings three

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

conviction.

                                 I. DISCUSSION

A. Motion to Suppress

      Alford first argues the district court erred by refusing to suppress evidence

obtained as a result of a Montana search warrant issued to Google after concluding

the warrant was sufficiently particular. The warrant requested that Google

provide:

      Any and all records, files, data, and/or other forms of information
      including names, user names, dates of birth, IP addresses, home
      addresses, phone numbers, e-mail addresses, photos, videos, e-mail
      content, search history, call history, or other information held by
      Google Inc. which may aid in obtaining the identification and/or
      location of the individual whom contacted K-mart in Hamilton, MT
      via phone call [to various phone numbers] on September 16th, 2014 at
      approximately 2145 hours MST.

      A search warrant must “particularly describ[e] the place to be searched, and

the persons or things to be seized.” U.S. Const. amend IV. The Fourth

Amendment requires searches be as limited as possible, and the goal is to prevent

“rummaging” through a person’s belongings by requiring warrants to include a

particular description of the things to be seized. United States v. Blake, 868 F.3d

960, 973 (11th Cir. 2017), cert. denied 138 S. Ct. 1580 (2018). In Blake, we
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concluded a warrant requiring Microsoft to turn over all e-mails containing

potentially incriminating evidence was constitutional because that limitation

prevented a general rummaging through the defendant’s e-mails. Blake, 868 F.3d

at 973. However, we concluded warrants requiring Facebook to disclose “virtually

every kind of data that could be found in a social media account” were

unconstitutional because, for example, the warrants could have limited the search

of private messages to only those sent or received from persons suspected of being

involved with the offense. Id. at 974. We also noted the warrants should have

only requested data from the period of time during which the defendant was

suspected of taking part in a conspiracy. Id. We ultimately concluded, however,

that although the Facebook warrants violated the particularity requirement, they

were not so facially deficient the officers could not have reasonably believed them

to be valid. Id. at 975.

      The district court did not err when it denied Alford’s motion to suppress all

evidence found as a result of the Montana search warrant because the warrant was

sufficiently particular and not overbroad. See United States v. Hollis, 780 F.3d

1064, 1068 (11th Cir. 2015) (stating when reviewing the denial of a motion to

suppress, we review the district court’s legal conclusion de novo and its findings of

fact for clear error). The warrant here falls somewhere between the Microsoft and

Facebook warrants in Blake because, like the Facebook warrants, it requested


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nearly every kind of data that could be found in a Google account, but like the

Microsoft warrant, the information requested was all potentially incriminating

because it could have identified the K-Mart caller. See Blake, 868 F.3d at 973-74.

However, using a practical margin of flexibility, the warrant here was as specific as

the circumstances and nature of the activity under investigation permitted. See

United States v. Bradley, 644 F.3d 1213, 1259 (11th Cir. 2011) (explaining the

particularity requirement must be applied with a practical margin of flexibility);

United States v. Moody, 977 F.2d 1425, 1432 (11th Cir. 1992) (stating a

description of the property to be seized will be acceptable if it is as specific as the

circumstances and nature of the activity under investigation permit). The only

information Officer Brunner-Murphy had when drafting the language of the

warrant was a phone call to K-Mart from an anonymous Google Voice phone

number. Under those circumstances, the warrant was as limited as possible

because it requested the account information of only the Google user who called

the K-Mart at the specific time in question. Although the warrant requested nearly

every kind of data that could be found in a Google account, any of that data could

have helped identify the owner of the account. Brunner-Murphy was not merely

rummaging around Alford’s Google account to find whatever he could, but rather

was trying to find the identity of the caller and potential victim. See Blake, 868

F.3d at 973. As to Alford’s argument that it was wrong for Brunner-Murphy to


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look for a victim under the language of the search warrant, that question was

related to the identity of the caller because the caller claimed the victim was his

daughter. Thus, under the specific circumstances and nature of the activity under

investigation, the warrant was as limited as possible because all of the evidence

seized could have helped identify the owner of the Google account.

      The district court also did not err in concluding that, even if the warrant was

insufficiently particular and overbroad, the evidence would not need to be

suppressed under the good-faith exception. See Blake, 868 F.3d at 974-75

(explaining even where a search warrant was overbroad, the evidence seized need

not be suppressed where it was obtained in objectively reasonable reliance on a

subsequently invalidated search warrant). Alford does not contend on appeal that

the search was so lacking in indicia of probable cause as to render official reliance

on it unreasonable. Moreover, as in Blake, the warrant was not so facially deficient

that Brunner-Murphy could not have reasonably presumed it to be valid. See

United States v. Leon, 468 U.S. 897, 923 (1984) (stating exclusion could still be

warranted if: (1) the warrant was based on an affidavit “so lacking in indicia of

probable cause as to render official belief in its existence entirely unreasonable;” or

(2) the warrant was “so facially deficient—i.e., in failing to particularize the place

to be searched or the things to be seized—that the executing officers [could not

have] reasonably presume[d] it to be valid”). The goal of the warrant was to


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identify the K-Mart caller, and all of the evidence furthered that goal. Even if the

warrant should have been further limited in scope, it is a close question and the

warrant was not so obviously flawed that Brunner-Murphy could not have

reasonably believed it to be valid. See Blake, 868 F.3d at 975. Accordingly, even

if the warrant was insufficiently particular and overbroad, the evidence need not

have been suppressed because Brunner-Murphy’s reliance on it was objectively

reasonable.

B. Propensity Evidence

      Second, Alford argues the district court abused its discretion by admitting

improper propensity evidence at trial, specifically, child erotica found on Alford’s

computer. “Evidence of a crime, wrong, or other act is not admissible to prove a

person’s character in order to show that on a particular occasion the person acted in

accordance with their character.” Fed. R. Evid. 404(b)(1). However, such

evidence may be admissible for another purpose, such as proving intent,

knowledge, absence of mistake, or lack of accident. Fed. R. Evid. 404(b)(2).

      The district court did not abuse its discretion by allowing the Government to

present evidence of child erotica found on the computer. See United States v.

Edouard, 485 F.3d 1324, 1343 (11th Cir. 2007) (stating a district court’s

evidentiary rulings are ordinarily reviewed for an abuse of discretion). First, Rule

404(b) does not apply because the evidence of child erotica was intrinsic to the


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charged offenses. See United States v. Ford, 784 F.3d 1386, 1394 (11th Cir. 2015)

(stating Rule 404(b) does not apply to evidence that is intrinsic to the charged

offenses). The child erotica was an integral and natural part of Dowdy’s testimony

about the search of the computers because it provided further context about the

search records found on the computers. See United States v. Ramsdale, 61 F.3d

825, 829 (11th Cir. 1995) (explaining evidence is intrinsic if it arose out of the

same transaction or series of transactions as the charged offense, is necessary to

complete the story of the crime, or is inextricably intertwined with the evidence

regarding the charged offense). Although the child erotica was not illegal, its

presence on the computers was an important part of the circumstances surrounding

the offense given the existence of search terms like “7yro+preteen,” even if it

reflected negatively on Alford’s character. See Edouard, 485 F.3d at 1344 (stating

evidence is inextricably intertwined with evidence regarding the charged offense,

and therefore admissible, if it forms an “integral and natural part of the witness’s

accounts of the circumstances surrounding the offenses”).

      Second, even if the evidence of child erotica was extrinsic, it was admissible

under Rule 404(b) because it helped prove intent, knowledge, and lack of mistake

or accident. This case is analogous to United States v. Kapordelis, 569 F.3d 1291,

1313 (11th Cir. 2009), where we concluded that the defendant’s prior trips to the

Czech Republic to engage in sexual trysts with underage boys were admissible


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under Rule 404(b) as proof of knowledge, identity, or absence of mistake or

accident with regard to his collection of child pornography. Id. Here, the user of

the computer legally downloaded a large amount of child erotica, and the district

court properly concluded the child erotica was admissible under Rule 404(b) as

proof of knowledge, identity, or absence of mistake or accident. This was not

merely a propensity argument because someone who downloads child erotica is

more likely to recognize child pornography and not download it by mistake. See

Fed. R. Evid. 404(b)(1). Although the court stated that “somebody who is

interested in [child erotica] is more likely to be interested in child pornography,” it

was referring to the probative value of the evidence for proving intent or lack of

mistake, not merely a propensity argument.

      Finally, under Rule 403, the probative value of the child erotica was not

substantially outweighed by its prejudicial effect because the jury was already

shown examples of child pornography and they were not likely to convict Alford

on the child pornography charges based on the child erotica. See Fed. R. Evid. 403

(providing the district court may exclude relevant evidence if its probative value is

substantially outweighed by a danger of unfair prejudice). And Alford specifically

challenged the knowledge element of the offense, which increased the probative

value of the child erotica. See Kapordelis, 569 F.3d at 1313-14 (concluding the

probative value of the prior-bad-acts evidence was substantial and outweighed the


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prejudicial effect where the defendant specifically challenged the knowledge

element of the offense). Notably, the court told Alford it would give an instruction

to the jury about the proper consideration of the child erotica evidence if he

requested one, but Alford never requested the instruction at trial and did not object

to the court’s instructions. As a result, the court gave an instruction regarding the

proper consideration of Alford’s prior conviction, but not the child erotica.

Accordingly, the district court did not abuse its discretion by allowing the

Government to present evidence of child erotica found on the computer because it

was either intrinsic, and thus outside the scope of Rule 404(b), or admissible under

Rule 404(b) because it helped prove intent, knowledge, and lack of mistake or

accident.

C. Sufficiency of the Evidence

      Finally, Alford argues the Government presented insufficient evidence to

prove that he knowingly received or attempted to receive child pornography. Any

person who knowingly receives or distributes any child pornography that has been

shipped or transported in interstate commerce by any means, including by

computer, violates the law. 18 U.S.C. § 2252A(a)(2). A person “knowingly

receives” child pornography when he intentionally views, acquires, or accepts

child pornography on a computer from an outside source. United States v. Pruitt,

638 F.3d 763, 766 (11th Cir. 2011). An intentional viewer of child pornography


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may be convicted regardless of whether he saves the images to a hard drive, edits

them, or otherwise exerts more control over them. Id. However, inadvertent

receipt of child pornography is not a violation of the statute. Id. Evidence that a

person has searched for child pornography on the internet and has a computer

containing child-pornography images, whether in the hard drive, cache, or

unallocated spaces, can count as circumstantial evidence that they knowingly

received child pornography. Id.

      As an initial matter, plain error review applies because Alford’s motion for a

judgment of acquittal was insufficient to preserve the specific argument he now

raises. See United States v. Joseph, 709 F.3d 1082, 1103 (11th Cir. 2013) (stating

plain error review applies where a defendant raises a general insufficient evidence

argument below and then seeks to challenge the sufficiency of the evidence

supporting a specific element of the crime on appeal). However, regardless of

whether reviewed de novo or for plain error, the Government presented sufficient

evidence that Alford knowingly received or attempted to receive child

pornography. A reasonable jury could have concluded that it was Alford who

downloaded the child pornography, not someone else, based on the evidence that:

(1) the “michellecuty013” e-mail address belonged to Alford; (2) his parents could

not use the computer without his help; and (3) both computers were used to sign on

to the “michellecuty013” account and were used as part of Alford’s business.


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      Second, a reasonable jury could have concluded that Alford had previously

viewed the images in the thumbcache based on Investigator Dowdy’s testimony

that these images would not exist as thumbnails if they had not been viewed on the

computer. Dowdy also testified that the computer contained a program that could

recover deleted files and that child pornography was in a folder created by the

program. Although Alford presented testimony that it was not uncommon for

computers to save thumbnails of images that were never opened, the jury was

entitled to believe Dowdy’s testimony, and this court must resolve all reasonable

credibility evaluations in favor of the jury’s verdict. See United States v. Doe, 661

F.3d 550, 560 (11th Cir. 2011) (stating this Court must draw all reasonable

inferences in favor of the jury’s verdict).

      Third, a reasonable jury could have concluded Alford did not access the

child pornography inadvertently based on the evidence that the search history on

both computers included terms that would normally return child pornography.

These search terms, combined with the existence of child pornography on the

computer, were circumstantial evidence that Alford knowingly received child

pornography. See Pruitt, 638 F.3d at 766. Finally, a reasonable jury could have

concluded that Alford had opened or viewed the e-mails containing child

pornography because, although there was no direct evidence that Alford opened or

viewed the e-mails, there would have been no record of the e-mails had he deleted


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them. Given this evidence, the jury could have reasonably drawn the inference that

Alford knowingly received child pornography. See Doe, 661 F.3d at 560; Pruitt,

638 F.3d at 766. Accordingly, the Government presented sufficient evidence that

Alford knowingly received or attempted to receive child pornography.

                                 II. CONCLUSION

      The district court did not err by refusing to suppress evidence obtained as a

result of a search warrant issued to Google because the warrant was sufficiently

particular and not overbroad under the specific circumstances and the nature of the

activity under investigation. Second, the district court did not abuse its discretion

by allowing the Government to present evidence of child erotica found on a

computer because it helped prove intent, knowledge, and lack of mistake or

accident. Finally, the Government presented sufficient evidence for a reasonable

jury to conclude that Alford knowingly received or attempted to receive child

pornography where it presented evidence supporting an inference that he used the

e-mail and computers containing child pornography, he searched for and viewed

the child pornography, and he had not deleted the e-mails containing child

pornography. Accordingly, we affirm Alford’s conviction.

      AFFIRMED.




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