                                                                               FILED
                            NOT FOR PUBLICATION                                DEC 02 2014

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10274

              Plaintiff - Appellee,              D.C. No. 5:08-cr-00361-RMW-1

  v.
                                                 MEMORANDUM*
GARY JAMES ROLLER,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Northern District of California
                 Ronald M. Whyte, Senior District Judge, Presiding

                     Argued and Submitted November 18, 2014
                             San Francisco, California

Before: REINHARDT, THOMAS, and CHRISTEN, Circuit Judges.

       Gary Roller appeals his conviction for possession of child pornography

under 18 U.S.C. § 2252(a)(4)(B) (2006). We affirm.

       Roller’s first argument on appeal is that the warrant that authorized the

search and seizure of his computer equipment was not supported by probable cause



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
and that the evidence seized pursuant to that warrant should therefore be

suppressed.

      The affidavit that supported the warrant application provided evidence that

Roller had purchased access to multiple websites distributing child pornography in

2002, 2003, 2006 and 2007. This is sufficient to establish probable cause. See

United States v. Gourde, 440 F.3d 1065, 1071 (9th Cir. 2006) (en banc) (holding

that evidence that someone “paid for access for two months to a website that

actually purveyed child pornography” was sufficient to establish probable cause).

Even assuming, as Roller argues, that the evidence about the 2002 and 2003

subscriptions had become stale by the time of the affidavit in 2007, the evidence

about Roller’s subscriptions in 2006 and 2007 was sufficient to establish probable

cause under Gourde. See id. at 1067–69, 1071 (concluding that warrant was

supported by probable cause where defendant subscribed to one child pornography

website for two months, ending four months before police obtained a search

warrant).

      Roller next argues that the affidavit intentionally or recklessly omitted

exculpatory information because it did not mention that ICE agents had already

interviewed Roller in 2004 in connection with his 2002 and 2003 subscriptions,

and those agents decided, after the interview, to close the case because there was


                                          2
not enough evidence to charge Roller. Roller argues that the district court erred by

not granting him a hearing in which to challenge the validity of the affidavit on that

basis under Franks v. Delaware, 438 U.S. 154, 171–72 (1978) (a “Franks

hearing”).

      A defendant is entitled to a Franks hearing if he “makes a ‘substantial

preliminary showing that (1) the affidavit contains intentionally or recklessly false

statements or misleading omissions, and (2) the affidavit cannot support a finding

of probable cause without the allegedly false information.’” United States v.

Martinez-Garcia, 397 F.3d 1205, 1215 (9th Cir. 2005) (quoting United States v.

Reeves, 210 F.3d 1041, 1044 (9th Cir. 2000)). There is no reason to believe that

the fact that the agents had already interviewed Roller in 2004 and decided to close

the investigation would negate the probable cause supplied by Roller’s

subscriptions to child pornography websites in 2006 and 2007. The district court

thus correctly denied Roller a Franks hearing because Roller made no “substantial

preliminary showing” that a corrected affidavit would not support a finding of

probable cause. See Cameron v. Craig, 713 F.3d 1012, 1019 (9th Cir. 2013)

(finding no Franks violation because “[e]ven if the omitted material had been

included, the warrant would still be supported by probable cause”).




                                          3
       Roller finally argues that there was insufficient evidence to support the

interstate nexus requirement in 18 U.S.C. § 2252(a)(4)(B) (2006).1 As relevant

here, at the time of Roller’s offense, to support a conviction under 18 U.S.C. §

2252(a)(4)(B) the visual depictions of child pornography must have been

“produced using materials” which have been “mailed, or ha[ve] been shipped or

transported in interstate or foreign commerce.” It was stipulated at trial that

Roller’s zip disk containing child pornography (which was found in Roller’s home

in Castroville, California) had been manufactured outside the state of California.

Under our precedents, this is sufficient to prove that the visual depictions in that

disk were “produced using materials” which have traveled in interstate commerce.

See United States v. Lacy, 119 F.3d 742, 750 (9th Cir. 1997) (holding that the

interstate nexus requirement in 18 U.S.C. § 2252(a)(4)(B) was satisfied where the

government offered undisputed evidence that the computer equipment onto which

defendant had downloaded child pornography had traveled in interstate

commerce); see also United States v. Guagliardo, 278 F.3d 868, 870–71 & n.2 (9th

Cir. 2002) (per curiam) (holding that the similarly worded interstate nexus

requirement in 18 U.S.C. § 2252A(a)(5)(B) (1996) was satisfied because the



       1
        Roller was convicted under the version of 18 U.S.C. § 2252 in effect between July 27,
2006 and October 7, 2008.

                                              4
defendant possessed “three computer disks containing pornographic images of

preadolescent girls,” and he conceded that “his disks must have been produced”

outside the state). Thus, Roller’s argument is foreclosed.

      Accordingly, the judgment of the district court is AFFIRMED.




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