                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          DEC 9 2003
                                TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,
               Plaintiff-Appellee,                      No. 02-5210
          v.                                      (D.C. No. 02-CR-40-C)
 BILLY WAYNE HUTTO,                                     (N.D. Okla.)
                 Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, McKAY and McCONNELL, Circuit
Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f). The case is therefore submitted without

oral argument.

      Defendant-Appellant Billy Wayne Hutto was initially charged in a two-

count indictment with violating 18 U.S.C. § 2252A(a)(2), Receiving Child

Pornography in Interstate Commerce, and 18 U.S.C. § 2253, Criminal Forfeiture.


      *
       This order and judgment is not binding precedent, except under the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.
A superseding indictment charged Appellant with thirty-six counts of Receipt in

Interstate Commerce of Visual Depiction Involving Minor Engaged in Sexually

Explicit Conduct and one count of Criminal Forfeiture. Appellant entered pleas

of not guilty. After the trial judge denied several of Appellant’s motions,

including a motion to suppress the search warrant, Appellant pled guilty to three

substantive counts and consented to the forfeiture count, reserving the right to

appeal the ruling on the motion to suppress. He was convicted and sentenced to

twenty-four months in prison on each substantive count to run concurrently, a

$6,000 fine, and three years of supervised release. Appellant appeals his

conviction and sentence to this court.

      Appellant filed several motions on appeal. By Order dated September 24,

2003, we granted his Motion to Supplement the Record on Appeal and denied his

Motion for Release Pending Appeal and his Motion to Stop the Briefing Schedule.

We are in receipt of Appellant’s supplemental authority and his Brief Relevant to

the Supplementary Material. Appellee chose not to file a response.

      On appeal, Appellant argues that the search warrant on his residence was

issued without probable cause; therefore, all evidence obtained as a result of the

search should be suppressed. We review the district court’s factual findings in a

denial of a motion to suppress for clear error and its legal conclusions regarding

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


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1143, 1146 (10th Cir. 2000).

      The thrust of Appellant’s argument is that the search warrant in this case

was supported by an affidavit which contained a material factual inaccuracy.

Appellant claims that FBI Special Agent Binney knowingly or recklessly stated in

his affidavit that all subscribers to an e-Group website named The Candyman

automatically received e-mails containing images of child pornography. Since

Appellant was a subscriber, this would strongly support an inference that his

computer hard drive contained images of child pornography. After the issuance

of the search warrant, the FBI discovered, and disclosed to Appellant, that e-mail

delivery of website images was not automatic. A subscriber could choose to

receive different types of e-mail or no e-mail at all. Because e-mail delivery was

not automatic, Appellant argues that this destroys the inference that Appellant

would have child pornography on his home computer.

      “Probable cause to issue a search warrant exists only when the supporting

affidavit sets forth facts that would lead a prudent person to believe there is a fair

probability that contraband or evidence of a particular crime will be found in a

particular place.” District Court Order, June 21, 2002, Aple. Supp. App. at 72

(quoting United States v. Basham, 268 F.3d 1199, 1203 (10th Cir. 2001).

Additionally, when there are material omissions in an affidavit supporting a

search warrant, the warrant must be voided if the remaining content is not


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sufficient to establish the required probable cause. Franks v. Delaware, 438 U.S.

154, 155-56 (1978). Pursuant to “Franks, a hearing on the veracity of the

affidavit supporting a warrant is required if the defendant makes a substantial

showing that the affidavit contains intentional or reckless false statements and if

the affidavit, purged of its falsities, would not be sufficient to support a finding

of probable cause.” United States v. Avery, 295 F.3d 1158, 1166-67 (10th Cir.

2002) (internal citations omitted).

      We agree with the district court that the clarification of the e-mail delivery

options does not destroy the inference that Appellant would have child

pornography on his home computer. The affidavit contains several facts that

combine to support a finding of probable cause. The district court stated:

      These facts show that the group’s clear purpose was to share child
      pornography, that the defendant voluntarily became a member of the
      group, and that images containing child pornography were available
      to all members. It is the view of this Court that this evidence
      provided a sufficient basis for the magistrate judge to conclude that
      there was a fair probability that child pornography would be found at
      the defendant’s residence or on his computer.

District Court Order, February 5, 2003, Aple. Supp. App., at 3. Because the

affidavit was sufficient to support a finding of probable cause even without the

incorrect information on e-mail delivery options, Appellant was not entitled to a

Franks hearing and the district court correctly denied Appellant’s motion to

suppress.


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      For substantially the same reasons as set forth by the district court in its

Orders of June 21, 2002, and February 5, 2003, and the reasons stated herein, the

decision of the district court is AFFIRMED.


                                                Entered for the Court


                                                Monroe G. McKay
                                                Circuit Judge




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