                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 05a0549n.06
                                Filed: June 24, 2005

                                                  No. 04-3274

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,

         Plaintiff-Appellee,                                            ON APPEAL FROM THE
                                                                        UNITED STATES DISTRICT
v.                                                                      COURT FOR THE NORTHERN
                                                                        DISTRICT OF OHIO
ROBERT A. NODA,

      Defendant-Appellant.
__________________________/

         Before: BOGGS, Chief Judge; GILMAN, Circuit Judge; and CLELAND,* District Judge.

         CLELAND, District Judge. Robert A. Noda appeals his convictions for aiding and abetting

the receipt and the possession of child pornography by computer under 18 U.S.C. § 2252(a).

Because he fails to demonstrate error in the lower court proceedings, we affirm his convictions. We

vacate Noda’s sentence, however, because it violates the Sixth Amendment, and remand to the

district court for resentencing.

                                                         I.

         On April 16, 2003, Special Agent Gabriel Hagan of the Bureau of Immigration and Customs

Enforcement filed an application and supporting affidavit with a federal magistrate judge seeking

a search warrant for Noda’s residence at 1844 Meadows Road, Madison, Ohio where Noda lived

with co-defendant Lynette Toth and their daughter, who was approximately ten years old at the time.


         *
          Honorable Robert H. Cleland, United States District Judge for the Eastern District of Michigan, sitting by
designation.
        Special Agent Hagan’s affidavit linked Noda’s residence with her investigation of certain

federal child pornography crimes, including violations of the law regarding the production,

importation, distribution, and knowing receipt of child pornography as defined by 18 U.S.C. § 2256.

Hagan’s affidavit offered significantly detailed testimony in support of a search warrant for Noda’s

residence, which the magistrate judge authorized. A few of the important facts contained in the

search warrant affidavit are summarized below.

        After testifying about her background, training, and eleven years of experience investigating

federal crimes relating to the production, distribution, and receipt of child pornography, Hagan

identified the basis for her request for a warrant to search the particular location described. Hagan

stated that, on April 11, 2003, she met with a Geauga County Sheriff’s Department confidential

source. The source had previously been incarcerated and had a criminal history. According to a

sheriff’s department detective, however, this source had provided accurate and truthful information

relating to his past criminal activity.

        The confidential source stated that he had lived with Noda and Toth at 1844 Meadows Road

from approximately April 2000 through December 2001. The source relayed to Hagan information

concerning the activities in the house during his time living with Noda. He explained that it was

common practice for Noda and Toth to host parties of twenty or more people. The party-goers

ranged in age between 12 and 24. The source had personal knowledge that the minors at these

parties were consuming alcohol and that everyone at the parties, including the minors, engaged in

sexually explicit conduct.

        According to the source, Noda would inject people, including minors, with Nubain, a


                                                 2
synthetic narcotic, without their consent, and he and Toth would then videotape the sexually explicit

conduct. Noda would “plug the video camera directly into the computer located in [his] bedroom,

and . . . download the recorded sexual activity onto his computer.” The source indicated that he had

personally observed Noda and Toth produce images and movies of sexually explicit conduct

involving approximately 20 to 30 minors, approximately 30 to 60 times while he resided at Noda’s

home.

        The confidential source described two computers in Noda’s residence and stated that his

bedroom was equipped with an alarm system. Noda would allegedly spend large amounts of time

locked in his bedroom on his computer and the source stated that he personally observed Noda log

onto child pornography websites via the Internet. Noda allegedly had a paid subscription to certain

“Lolita” websites. The affidavit further explains that the source obtained password access to Noda’s

computer and observed a stored image of Noda and his daughter (seven years old at the time)

engaged in sexually explicit conduct.

        The source indicated that he had observed Noda copy images of child pornography on to

compact discs (“CDs”) for an individual named “Rick,” residing in Eastlake, Ohio. The source also

possessed information that there were two telephone lines in the 1844 Meadows Road residence.

The telephone line in Noda’s bedroom was in “Rick’s” name and paid for by this individual.

Independent information from Alltel Communications telephone records established that Mr. Rick

Daniels of 7697 Hidden Valley Dr., Kirkland, Ohio paid for a second phone line at Noda’s

residence.

        The source’s information was also based on two visits to Noda’s residence much closer in

time to the April 16, 2003 search warrant application. First, on March 28, 2003, the source visited


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the residence and observed that Noda had acquired a third computer, a DVD burner, and camera

equipment. He also noticed approximately 1,000 compact discs that Noda had produced. The

source remembered the presence of about twenty people in the home, including a fourteen-year-old

girl. According to the source, a number of men present were attempting to induce the girl into a

state of intoxication in order to have sex with her. He explained that this behavior on March 28,

2003 was consistent with the behavior he had observed while living at the home from April 2000

to December 2001. Second, on April 11, 2003, the source visited the home, at the initiation of Toth.

During this visit, occurring days before the warrant application, Toth stated that the source had

“missed out on a lot of new pictures” and that “nothing’s changed, it’s still the same around here.”



       Hagan also interviewed a second confidential source from the Geauga County Sheriff’s

Department before making application for the search warrant. This second source described

witnessing similar, sexually explicit conduct involving minors at Noda’s residence in the summer

of 2000 and in August of 2001. The second source also visited Noda’s home on April 11, 2003 and

heard Toth state that both sources had “missed a lot of pictures.” The source also noticed a number

of mobile alarm units throughout the house.

       On April 17, 2003, agents from the Bureau of Immigration and Customs Enforcement and

local police executed the federal search warrant for Noda’s home, seizing four computers, computer

equipment, and accessories, and recovering over six hundred CDs, floppy disks, over one thousand

VHS tapes, sex toys, books, magazines, cameras, documents, pictures and other items. A majority

of the CDs were recovered from Noda’s bedroom. Later examination of Noda’s computer hard drive

and CDs seized from his bedroom revealed about 250 images of child pornography on the hard drive


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and about 2250 images of child pornography on twenty-one of the CDs.

       Prior to trial, Noda and co-defendant Toth filed a joint motion to suppress evidence seized

during the search of Noda’s home and his e-mail accounts. On October 27, 2003, the district court

denied the motion in a short form order. On that same day, however, the co-defendants filed an

additional brief in support of their original motion and the district court subsequently issued a

second, more detailed, memorandum opinion and order denying the motion. The district court found

the supplemental arguments to be without merit, ruling that the defendants were not entitled to an

evidentiary hearing and that probable cause supported the magistrate judge’s decision.

       During trial, the government introduced various physical exhibits and presented testimony

from nine witnesses, including Ms. Donna Abbott, a licensed pediatric nurse practitioner. Ms.

Abbott testified as an expert concerning the ages of the children depicted in the government’s

exhibits, opining that many of the images depicted pre-pubescent children. Co-Defendant Firestone

also testified that he and Noda shared a mutual interest in computers and that Noda had informed

him about an Internet newsgroup site containing images of child pornography. Firestone testified

that he downloaded about 1000 images of child pornography from this newsgroup over a period of

several months, copied them onto CDs, and gave them to Noda, who in turn provided them to Rick

Daniels.

       Co-defendant Toth, after entering a guilty plea, testified as a government witness. She stated

that she and Noda had a daughter together and that she had lived with Noda for approximately

fourteen years. Toth explained that the computer in Noda’s bedroom had Internet access and was

the only computer accessing the home’s second phone line. She stated that in October 2002, a high-

speed cable modem was installed for the computer kept in Noda’s bedroom.


                                                 5
       According to Toth, Rick Daniels visited Noda once or twice a month, often spending time

in Noda’s bedroom going through pictures. Toth also testified that she had observed a photo on

Noda’s computer which appeared to be a young female and she commented that the girl looked

young. Noda responded that he was downloading pictures for Daniels.

       Noda presented testimony from four witnesses. Alicia Harmon, Denver Roger Carey, and

Charles Barnes all testified that they never witnessed Noda download child pornography from the

Internet, never saw Noda possess child pornography, and never heard him even discuss the subject

matter. Both Harmon and Carey stayed at Noda’s home, while Barnes was a friend of Noda’s who

asked Noda to help him with computer related issues.

       Noda also testified on his own behalf, explaining that he received social security benefits but

earned extra income on the side repairing and building computers. Noda’s chief defense was that

he had never before seen the pornographic images recovered by the police. He denied having any

knowledge of the child pornography found on his computer or on the CDs in his residence.

According to Noda, thousands of people used his computer, and his computer did not require a

password to obtain access. He testified that one individual using his computer stole his mail and

information from his computer to fraudulently use his credit accounts.

       Noda explained that he reformatted others’ computers using his own and that, during this

process, he would transfer data from computers owned by others. He would, however, keep this

foreign or outside material on his computer even after his reformatting was complete. Noda testified

that he did not look at the information or files taken from these other computers despite the fact that

he continued to store this material on his own hard drives based on his “invasion of privacy”

concerns. Noda claimed that two to three hundred individuals used his computer to burn CDs.


                                                  6
        He acknowledged that Rick Daniels was his friend and that he had fixed and otherwise

assisted in the operations of Daniels’s personal computers. He stated that Daniels paid for the

second phone line in the home so that he could contact Noda. Noda denied that he and Daniels

reached an agreement where Daniels would pay for the phone line in exchange for Noda’s

downloading of child pornography. Noda testified that he never downloaded child pornography for

Daniels, but did agree to download some adult pornography. Noda denied ever downloading or

maintaining possession of child pornography. He also denied ever providing such material to

Daniels. He stated that such images made him sick, and that he had viewed one picture of child

pornography shown to him by Perry Firestone.

                                                  II.

        Noda asserts four defects with the proceedings below. First, he argues that the district court

erred in denying his motion to suppress evidence. Second, he argues that the district court abused

its discretion by permitting the government’s pediatric nurse practitioner to testify regarding the ages

of the children depicted in the images introduced at trial. Third, Noda argues that his trial counsel

was ineffective. Fourth, he asserts that the lower court’s sentence, and its factual findings made to

support a two-level enhancement for obstruction of justice under U.S.S.G. § 3B1.1, violated the

Sixth Amendment.

        We find no error in denying Noda’s motion to suppress, or in the admission of expert witness

testimony on the ages of the children depicted in the pornographic images; we decline to address

Noda’s ineffective assistance claims on direct review; and we remand for resentencing in light of

United States v. Booker, -- U.S. --, 125 S. Ct. 738 (2005).




                                                   7
                                                  A.

        The ultimate question of whether a search was reasonable under the Fourth Amendment is

subject to de novo review. United States v. Spikes, 158 F.3d 913, 922-23 (6th Cir. 1998). We

conduct a de novo review of a district court’s legal conclusions concerning a motion to suppress, but

review the district court’s findings of fact for clear error. Id. at 922. The evidence presented below

“must be viewed in a light most favorable to the party that prevailed in the district court.” Id.

        Noda argues that the district court erred in finding probable cause to support a search warrant

because the information used to establish probable cause was stale and because that the affiant

improperly cited unreliable confidential sources. Neither argument is persuasive. The record

demonstrates that the magistrate judge had a substantial basis to support his finding of probable

cause and there is no indication that the magistrate judge arbitrarily exercised his authority. Illinois

v. Gates, 462 U.S. 213, 236 (1983) (reflecting a strong preference for the pre-screening function of

the warrant process, and stating that “the traditional standard for review of an issuing magistrate’s

probable cause determination has been that so long as the magistrate had a ‘substantial basis for .

. . conclud[ing]’ that a search would uncover evidence of wrongdoing, the Fourth Amendment

requires no more”) (quoting Jones v. United States, 362 U.S. 257, 271 (1960)); United States v.

Allen, 211 F.3d 970, 973 (6th Cir. 2000) (en banc).

        We review the sufficiency of an affidavit underlying a search warrant following the

principles laid down by the Supreme Court in Illinois v. Gates. Allen, 211 F.3d at 972. In Gates,

the Court rejected the rigid tests applied by many federal courts in favor of a “totality of the

circumstances” approach. Gates, 462 U.S. at 230–31. We must weigh all of the evidence presented




                                                   8
in the affidavit in each case to resolve the “commonsense, practical question whether there is

‘probable cause’ to believe that contraband or evidence is located in a particular place.” Id. at 230.

       Whether the information in a search warrant affidavit is stale is determined on the

circumstances in each case. Spikes, 158 F.3d at 923. Courts considering a challenge to a warrant

application based on staleness look at the following variables: (1) the inherent nature or character

of the crime; (2) whether the criminal is nomadic or entrenched; (3) whether the items to be seized

are perishable or easily transferable; and (4) whether the place to be searched is a mere criminal

forum of convenience or a secure operational base for criminal conduct. Id.

       The length of time between events described in an affidavit and the application for a warrant

is salient, but not controlling. Id. (citing Sgro v. United States, 287 U.S. 206, 210-11 (1932)). The

purpose of a staleness inquiry in the search warrant context is not to create an arbitrary time

limitation within which discovered facts must be presented to a magistrate. United States v. Henson,

848 F.2d 1374, 1382 (6th Cir. 1988). We have found that “even if a significant period has elapsed

since a defendant’s last reported criminal activity, it is still possible that, depending on the nature

of the crime, a magistrate may properly infer that evidence of wrongdoing is still to be found on the

premises.” Spikes, 158 F.3d at 923. Probable cause may be found were there is an indication of a

continuing pattern of criminal activity and where recent information corroborates otherwise stale

information. Id. at 923-24.

       The confidential sources identified by Special Agent Hagan described an ongoing pattern

of sexual exploitation of children observed at Noda’s residence. The first source also presented

more recent testimony corroborating the events that he personally observed from April 2000 through

December 2001. On March 28, 2003, approximately one month before the search warrant


                                                  9
application, the first confidential source visited Noda’s residence where he observed computers,

computer equipment, and cameras. He also observed about 20 people present at the residence, with

some of them attempting to intoxicate a fourteen-year-old girl so that they might have sexual

relations with her. This more recent behavior was consistent with the conduct observed while the

source lived at Noda’s residence.

       Both confidential sources visited Noda’s residence on April 11, 2003, approximately one

week before the search warrant affidavit was sworn. During this visit, co-defendant Toth informed

the sources that they had “missed out on a lot of new pictures” and that “nothing’s changed, it’s still

the same around here.” One source noticed mobile alarms present in the house, including on Noda’s

bedroom door, suggesting that Noda was entrenched and maintaining a secure base for his criminal

activity. Hagan also testified, based on her experience and training, that individuals who produce,

obtain, and possess child pornography are likely to retain these materials for an extended period of

time. See United States v. Lawson, 999 F.2d 985, 987 (6th Cir. 1993) (“A judicial officer may give

considerable weight to ‘the conclusion of experienced law enforcement officers regarding where

evidence of a crime is likely to be found.’”) (quoting United States v. Fannin, 817 F.2d 1379, 1382

(9th Cir. 1987)). Because there was a sufficient basis to support a finding of an ongoing pattern of

criminal activity and sufficient recent corroboration that such activity continued at Noda’s residence

in March and April 2003, the magistrate judge was permitted to rely on the information contained

in the warrant application in finding probable cause and issuing the search warrant.

       It is also well established that a magistrate may rely on hearsay evidence in making his

probable cause determination. United States v. Helton, 314 F.3d 812, 819 (6th Cir. 2003) (citing

United States v. Smith, 182 F.3d 473, 477 (6th Cir. 1999) and United States v. Weaver, 99 F.3d 1372,


                                                  10
1377 (6th Cir. 1996)). When confronted with hearsay information from a confidential informant or

an anonymous tipster, the court should consider three factors in giving the information its due

weight within the totality of the circumstances inquiry: (1) the veracity of the tipster; (2) the

reliability of the tip and tipster; and (3) the tipster’s basis of knowledge. See Helton, 314 F.3d at

819. These three factors, however, should not be applied rigidly as a test, but should be considered

in weighing all of the circumstances. Allen, 211 F.3d at 975 (“As the Court observed in Gates, tests

and prongs have an unfortunate tendency to develop a life of their own, and tend to draw more

attention to their individual characteristics than to the totality of the circumstances.”). Although

these three factors are applied to anonymous and confidential tips, the court’s main inquiry in

examining probable cause centers on the totality of circumstances. Gates, 462 U.S. at 232.

       We find that the totality of the circumstances supported a finding of probable cause,

notwithstanding Hagan’s failure to personally attest to the reliability of either source. Another law

enforcement officer informed Hagan that the first confidential source had provided reliable

information in the past, and the veracity and reliability of this source may be inferred from his

provision of correct information regarding the individual paying for a second phone line at Noda’s

home. This information was corroborated by using independent phone records, tending to show that

the confidential source was providing accurate information. The sources’ bases of knowledge also

suggest reliability of the information conveyed. The statements made to Hagan were based on

personal observations made by the sources while they lived at or visited Noda’s residence over an

extended period of time.

       We also find Noda’s argument that probable cause is undermined because only Toth initiated

the more recent visits by the sources unpersuasive. Toth’s statements made to the sources during


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the 2003 visits provided a recent nexus between the location to be searched and the suspected

ongoing criminal activity. The warrant was issued to search Noda’s residence, not his person. The

absence of any reference to conversations in 2003 with Noda personally, therefore, does not

undercut Toth’s statement tying the residence to the suspected criminal activity.

                                                B.

       A district court’s evidentiary rulings, including a decision to permit expert testimony, are

subject to an abuse of discretion standard of review. Paschal v. Flagstar Bank, 295 F.3d 565, 576

(6th Cir. 2002); United States v. Jones, 107 F.3d 1147, 1156 (6th Cir. 1997) (challenge to the

admission of expert testimony reviewed for an abuse of discretion). We find no abuse of discretion

in the admission of the government’s expert witness’s testimony regarding the ages of the children

depicted in the pornographic images introduced at trial.

       We, along with several of our sister circuits, have permitted expert testimony on the ages of

children depicted to be introduced in child pornography cases and find no error in the admission of

testimony from the well-qualified expert in this case. See United States v. Farrelly, 389 F.3d 649,

653 (6th Cir. 2004) (testimony not challenged on appeal, but government expert witness provided

opinion that pornographic images were of children under thirteen); United States v. Rayl, 270 F.3d

709, 714 (8th Cir. 2001) (district court did not abuse its discretion in permitting well-qualified

physician to testify as expert regarding the ages of children in pornographic photos, magazines and

videos); United States v. Anderton, 136 F.3d 747, 750 (11th Cir. 1998) (competing medical expert

testimony offered on ages of persons depicted); United States v. Broyles, 37 F.3d 1314, 1316 (8th

Cir. 1994) (pediatric endocrinologist offered expert testimony on age in child pornography case);

United States v. Nolan, 818 F.2d 1015, 1018 (1st Cir. 1987) (court permitted use of expert testimony


                                                12
to show age of minors in pornographic materials); United States v. Fuller, 77 Fed. App’x. 371, 376

(6th Cir. 2003) (pediatric endocrinologist testified that images depicted minor females at or below

Tanner stage four (average age 13)); United States v. Long, No. 95-6647, 1997 WL 130079, at *3

(6th Cir. Mar. 19, 1997) (finding no error in allowing medical doctor utilizing Tanner scale and

experience to testify regarding ages of models used in sexually explicit material).

                                                 C.

       Generally, we refuse to review ineffective assistance claims on direct appeal. United States

v. Crowe, 291 F.3d 884, 886 (6th Cir. 2002). As explained by the Supreme Court, when a court

examines such a claim on direct appeal, “appellate counsel and the court must proceed on a trial

record not developed precisely for the object of litigating or preserving the claim and thus often

incomplete or inadequate for this purpose.” Massaro v. United States, 538 U.S. 500, 504-05 (2003).

We will consider ineffective assistance claims on direct appeal only when the record is sufficient

to assess the merits of the defendant’s allegations. United States v. Rahal, 191 F.3d 642, 645 (6th

Cir. 1999).

       Both parties suggest that the record is adequate to address the claims of ineffective assistance

of counsel. We, however, find that the record is not sufficiently developed to review Noda’s claims

of ineffective assistance of counsel on direct appeal.

       If facts about the impugned attorney’s decision-making process and strategy must be

determined to resolve the claims of inadequate representation, the record is not adequate. Crowe,

291 F.3d at 886 (citing United States v. Earle, No. 97-3171, 1998 WL 465350, at *3 (6th Cir. July

28, 1998)). Here, Noda argues that his trial counsel was ineffective in several respects, including

his lawyer’s failure to mount a defense or present expert testimony based on the Supreme Court’s


                                                 13
decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). In Free Speech Coalition, the

Court ruled that a provision of the Child Pornography Prevention Act of 1996 that prohibited any

visual depiction that “is or appears to be, of a minor engaging in sexually explicit conduct” was

unconstitutional. 535 U.S. at 258; 18 U.S.C. § 2256(8)(B). The Court determined that the statutory

provision at issue was overbroad because it criminalized images where children were not exploited,

such as computer generated images or the use of child-like but over-age actors. 535 U.S. at 250-55.

       In United States v. Farrelly, we held that Free Speech Coalition “does not require the

Government to do more . . . than present the images [of child pornography] to the jury for a

determination that the depictions were of actual children.” Farrelly, 389 F.3d at 652. The Farrelly

court assumed for argument’s sake that the government had the burden to prove that the images

supporting a charge under 18 U.S.C. § 2252A(a)(5)(B) were of actual children. Id. at 653.

       The record here lacks specific evidence concerning trial counsel’s reasons for not presenting

such an alternative defense and for not calling an expert to testify regarding whether the images

might be computer generated rather than images of actual children. The reasons why Noda’s trial

attorney decided not to challenge the evidence as failing to depict actual children would require us

to consider facts pertaining to the strategy and decision-making process of the attorney and is

therefore more appropriately reviewed under 28 U.S.C. § 2255. See United States v. Sanders, 404

F.3d 980, 986 (6th Cir. 2005) (refusing to consider on direct review ineffective assistance claim

based on trial attorney’s failure to call expert witness during trial). Accordingly, we find no

persuasive reason to depart from our general rule disfavoring resolution of ineffective assistance

claims on direct appeal.




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                                                  D.

         This court applies plain error review in cases where a defendant’s sentence was imposed in

violation of the Sixth Amendment as explained in Booker. United States v. McDaniel, 398 F.3d 540,

547-50 (6th Cir. 2005). Such an error requires a remand for resentencing. Id. In addition, we

presume prejudice as to guideline sentences imposed before Booker was decided, absent explicit

record evidence to rebut that presumption. United States v. Barnett, 398 F.3d 516, 527 (6th Cir.

2005).

         Here, the district court made specific factual findings supporting its determination that Noda

committed perjury, supporting a two-level increase in the offense level for obstruction of justice.

The adjustment increased Noda’s adjusted offense level from 30 to 32, resulting in a guideline

sentencing range of 121-151 months instead of 97-121 months. This increase, based on the district

court’s own factual findings under then-mandatory Guidelines, constitutes plain error warranting

a remand for resentencing. See United States v. Bowman, 126 Fed. App’x. 251, 255 (6th Cir. 2005)

(plain error for district court to impose a two-level increase for obstruction of justice based on

finding that defendant committed perjury, where jury verdict implied that the jury did not believe

defendant, but jury’s verdict could not serve as finding of willfulness required for perjury offense

under 18 U.S.C. § 1621.).

                                                  III.

         For the foregoing reasons, we affirm Noda’s convictions, but vacate his sentence and remand

for resentencing.




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