                                                                                         FILED
                                                                                 United States Court of A
                                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                                         DEC 20 2000
                                   TENTH CIRCUIT
                                                                                      PATRICK FISH
                                                                                             Clerk

 UNITED STATES OF AMERICA,

        Plaintiff-Appellee,
 v.
                                                             No. 00-5045
 RUSSEL RAY WOLFE,                                     (D.C. No. 99-CR-47-BU)
                                                             (N.D. Okla.)
        Defendant-Appellant.


                               ORDER AND JUDGMENT*



Before BRORBY, EBEL and BRISCOE, Circuit Judges.



      Appellant Russel Ray Wolfe (“Wolfe”) entered a guilty plea on one count of

counterfeiting under 18 U.S.C. § 474, and a conditional guilty plea on one count of

possession of child pornography under 18 U.S.C. § 2252. Wolfe’s guilty plea on the

pornography charge was conditioned upon his right to appeal the district court’s denial of

his motion to suppress evidence seized during a search of his computer’s hard drive. The

search was conducted pursuant to a warrant issued by United States Magistrate Judge

Frank McCarthy, but Wolfe contends that the affidavit relied upon by Judge McCarthy to


        * This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
establish probable cause for the warrant was insufficient as a matter of law and thus that

the warrant was invalid. We AFFIRM the district court’s decision to deny Wolfe’s

motion to suppress.



                                    BACKGROUND

       Wolfe came to the attention of agents of the United States Secret Service after his

friend, Randy Ray Scott, was arrested in Garland, Texas for trying to pass counterfeit

United States currency. Scott informed the agents that he and Wolfe had engaged in the

counterfeiting venture together, and provided the agents with information about

counterfeiting equipment and evidence of illegal counterfeiting activity possessed by

Wolfe. The agents used Scott’s information to obtain a search warrant for Wolfe’s

residence.1 Pursuant to the warrant, federal agents seized Wolfe’s personal computer and

numerous floppy and compact disks as evidence related to the counterfeiting charge.

During the course of this search, the agents also saw three items unrelated to the

counterfeiting enterprise that nevertheless caused them concern: (1) an 11" x 14" black

and white photograph of a nude, prepubescent girl with a “blank” expression on her face;

(2) an 8 ½" x 11" pencil drawing of a nude, prepubescent girl holding a child’s stuffed

animal and engaging in sexual activity with a nude adult male; and (3) several dozen


1
 Neither the issuance nor the execution of the first search warrant has been contested by
Wolfe.

                                            -2-
adult magazines which featured nude photographs of what appeared to be adult women

with “immature” features. The agents did not seize these items at the time because they

did not believe them to be contraband.

       The agents then interviewed Scott again and asked him about Wolfe’s possible

possession of child pornography. Scott stated that Wolfe had shown him an image of a

nude, prepubescent girl on his computer monitor, had offered to show Scott additional

similar images, and had told Scott that he used his telephone modem to download such

images to his computer.

       The agents then submitted an affidavit ("Affidavit") seeking a second search

warrant to search the hard drive of Wolfe’s personal computer and the seized floppy and

compact disks. The Affidavit identified Scott by name, outlined the information received

from him, and contained detailed descriptions of the items listed above. It did not explain

that Scott had been arrested on counterfeiting charges, but stated both that Scott “has

cooperated with [the agents’] investigation” and that “the investigative foundation for the

affidavit for the [first] warrant was derived primarily” from information provided by

Scott. The Affidavit asked for a warrant to search Wolfe’s computer hard drive and the

seized disks for evidence of possession of child pornography.2

2
  The Affidavit also requested permission to search the hard drive of Wolfe’s personal
computer, as well as the seized floppy and compact disks, for evidence of counterfeiting
activity. Specifically, the agents sought computer files that would include templates from
which counterfeit United States currency could be produced. Because the government
has not argued that the child pornography found on Wolfe’s computer would inevitably

                                            -3-
        The magistrate issued the second search warrant. The agents’ search of Wolfe’s

computer hard drive, floppy disks and compact disks revealed extensive evidence of

possession of child pornography. Based upon this evidence, Wolfe was subsequently

indicted on one count of possession of child pornography in violation of 18 U.S.C. §

2252.

        Wolfe filed a motion in limine seeking to exclude the evidence obtained pursuant

to the second search warrant. Wolfe argued that the Affidavit was insufficient to support

the second search warrant because the items’ descriptions did not provide probable cause

to believe that Wolfe possessed contraband and because the Affidavit excluded material

information that impacted Scott’s credibility. The government argued in response that the

Affidavit was sufficient to support probable cause that Wolfe possessed contraband, and

that the magistrate was aware that Scott was cooperating with the authorities such that his

credibility was “squarely before the judge.” The district court denied Wolfe’s motion.

See United States v. Wolfe, No. 99-CR-47-BU (N.D. Okla. June 16, 1999). Wolfe



have been discovered during the agents’ search of the computer for evidence of
counterfeiting activity, we do not address that question. We note, however, that while
this court in United States v. Carey, 172 F.3d 1268 (10th Cir. 1999), held that a
warrantless search of closed computer files could not be justified under the plain view
doctrine, Carey does not foreclose an argument that agents searching pursuant to a
warrant for counterfeit currency templates, some of which could conceivably have
computer graphics-type file extensions such as .GIF or .JPG, would inevitably have
uncovered computer graphics files of the type at issue in this case during the course of the
search.

                                            -4-
thereafter entered a conditional plea on the child pornography charge and filed timely

notice of appeal with this court.



                                      DISCUSSION

       The district court had jurisdiction over this case pursuant to 18 U.S.C. §3231. This

court has jurisdiction pursuant to 28 U.S.C. §1291.

       We have stated that a magistrate judge’s decision to issue a warrant is “entitled to

‘great deference’” from the reviewing court. See United States v. Le, 173 F.3d 1258,

1265 (10th Cir. 1999) (quoting United States v. Wittgenstein, 163 F.3d 1164, 1172 (10th

Cir. 1998)). Accordingly, we need only ask whether, under the totality of the

circumstances presented in the affidavit, the magistrate judge had a “‘substantial basis’”

for determining that probable cause existed. See id.; see also Illinois v. Gates, 462 U.S.

213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527 (1983)); United States v. Cusumano,

83 F.3d 1247, 1249-50 (10th Cir. 1996). Probable cause exists where the evidence

presented to the magistrate establishes a fair probability that contraband or evidence of a

crime would be found in the desired search area. See Le, 173 F.3d at 1267; Wittgenstein,

163 F.3d at 1171.

       The statute in question, 18 U.S.C. §2252(a)(4)(B), prohibits the knowing receipt or

distribution of “one or more books, magazines, periodicals, films, videotapes, or other

matter which contain any visual depiction that has been mailed, or has been shipped or

                                            -5-
transported in interstate or foreign commerce, or which was produced using materials

which have been mailed or so shipped or transported, by any means including by

computer . . . if–(i) the producing of such visual depiction involves the use of a minor

engaging in sexually explicit conduct; and (ii) such visual depiction is of such conduct.”3

See 18 U.S.C. §2252(a)(4)(B). The definition of “sexually explicit conduct” is found in

18 U.S.C. §2256, which states that the term includes actual or simulated sexual

intercourse,4 bestiality, masturbation, sadistic or masochistic abuse, or lascivious

exhibition of the genitals or pubic area of any person. See 18 U.S.C. §2256(2)(A)-(E).

Black’s Law Dictionary defines “lascivious” to mean “[t]ending to excite lust; lewd;

indecent; obscene; sexual impurity; tending to deprave the morals in respect to sexual

relations; licentious.” See Black’s Law Dictionary 794 (5th ed. 1979). The term

“lascivious” in 18 U.S.C. §2256(2)(E) has been interpreted to include visual depictions in

which the child does not present herself in a lustful or sexual manner but where “the

photographer arrayed [the photograph] to suit his peculiar lust,” because in some cases “it

would be almost incredible that a child of these years would register sexual coyness.” See




3
  “Visual depiction” has been defined to include computer graphic interchange format
(GIF) files from which pornographic images can be retrieved. See United States v.
Hockings, 129 F.3d 1069 (9th Cir. 1997).
4
  This includes sexual intercourse that is “genital-genital, oral-genital, anal-genital, or
oral-anal, whether between persons of the same or opposite sex.” 18 U.S.C. §2256(2)(A).

                                            -6-
United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987) (quotations omitted); see

also United States v. Villard, 885 F.2d 117 (3d Cir. 1989).

       We believe the evidence presented to the magistrate judge in this case established

a fair probability that a search of Wolfe’s computer would reveal contraband within the

meaning of 18 U.S.C. §§2252, 2256, such that the magistrate had a “substantial basis” to

determine that probable cause existed to issue the second search warrant.

       The Affidavit described items seen by the agents during the execution of the first

warrant that caused them to believe that Wolfe might possess contraband: (1) the black

and white photograph of a nude prepubescent girl; (2) the pencil drawing of a nude

prepubescent girl holding a child’s stuffed animal and engaging in sexual activity with an

adult male; and (3) several dozen adult magazines with pictures of seemingly adult

women with immature features. As the agents acknowledged in the affidavit for the

second search warrant, they did not seize these items at the time of the first warrant

because they did not believe the items were necessarily contraband. This was the proper

thing for the agents to do under these circumstances because the first warrant allowed

them to seize only items related to Wolfe’s counterfeiting enterprise and because the

sexually explicit items in question were not illegal on their face. See Washington v.

Chrisman, 455 U.S. 1, 5-6, 102 S. Ct. 812, 70 L. Ed. 2d 778 (1982) (holding that the plain

view doctrine "permits a law enforcement officer to seize what is clearly incriminating

evidence or contraband when it is discovered in a place where the officer has a right to

                                            -7-
be") (emphasis added). The fact that the items were not immediately seized does not

demonstrate that their possession was legal, only that the agents could not immediately

determine that their possession by Wolfe was “clearly” illegal based upon what the agents

knew at the time of the first search.

       The agents were nevertheless concerned about the items in question and continued

to investigate whether they were evidence that Wolfe might possess child pornography in

violation of federal law. The agents interviewed Scott, who had provided them credible

information to support the first search warrant, and Scott confirmed that he had seen a

visual image similar in nature to the questionable items on Wolfe’s computer monitor.

He further stated that Wolfe had offered to show him additional computer images of the

same type, which Wolfe had downloaded onto his computer using a modem and a

telephone connection. Based upon this information, the agents submitted the Affidavit

for the second search warrant which requested permission to search Wolfe’s computer

hard drive, floppy disks and compact disks for evidence of child pornography. Again,

this was the proper thing for the agents to do in these circumstances. See United States v.

Carey, 172 F.3d 1268, 1273 (10th Cir. 1999) (holding that a warrant must be obtained to

search closed computer files on a defendant’s personal computer); United States v.

Blount, 123 F.3d 831, 839 n. 6 (5th Cir.1997) (en banc) (noting that items legally

observed in plain view may be referenced in an affidavit to obtain a search warrant).



                                           -8-
       The magistrate was thus presented with several pieces of information from which

he was asked to determine whether, under a totality of circumstances, there was a “fair

probability” that evidence of possession of child pornography would be found on the hard

drive of Wolfe’s personal computer or on the computer disks seized from his home. We

believe the magistrate correctly determined that there was such a “fair probability.”

       First, the 11”x14” photograph depicting a nude, prepubescent girl with a blank

expression indicated that, even if the photograph itself was not contraband, Wolfe was

apparently interested in possessing pictures of seemingly prepubescent females who were

unclothed. The fact that the child in the picture was not described as presenting herself in

an overtly sexual manner, but was instead described as having a “blank expression,” does

not negate the probative value of that evidence. See Weigand, 812 F.2d at 1243-44.

       Second, the pencil drawing of a prepubescent girl holding a child’s stuffed animal

and engaging in sexual activity with an adult male, while again perhaps not contraband on

its face because it did not necessarily depict “persons” within the meaning of 18 U.S.C.

§3356(2)(E), indicated that Wolfe was interested in seeing visual depictions of apparently

underage girls engaging in sexual activity with adult men.

       Third, while they are admittedly marginal evidence of Wolfe’s interest in underage

girls due to the models’ apparent legal age, the adult magazines depicting what appeared

to be adult women with “immature features” provided some indication that Wolfe was



                                            -9-
interested in sexually provocative materials featuring women who were immature at least

in appearance, if not in actual age.

       All of these items could have been legitimately used by the magistrate to infer that

Wolfe likely possessed additional visual images of immature subjects that would be

contraband within the meaning of 18 U.S.C. §§2252, 2256. Accord United States v.

Wood, 695 F.2d 459, 464 (10th Cir. 1982) (“In judging probable cause, issuing

magistrates are not to be confined by niggardly limitations or by restrictions on their use

of common sense.”) (citing Spinelli v. United States, 393 U.S. 410, 419, 89 S. Ct. 584,

591, 21 L. Ed. 2d 637 (1969)); Gates, 462 U.S. at 231 (noting that the practical, non-

technical approach that courts should follow in reviewing the sufficiency of warrant

affidavits should allow for common sense inferences about human behavior).

       Finally, the statement by Scott that he had seen an image of a nude, prepubescent

girl on Wolfe’s computer, and that he was told by Wolfe that he had downloaded more

such pictures onto his computer, provided the necessary nexus between the suspected

criminal activity and the place to be searched. See United States v. Corral-Corral, 899

F.2d 927, 937 (10th Cir. 1990). Although Wolfe challenges whether Scott’s credibility

was adequately ascertained by the magistrate judge, the fact that Scott was identified by

name, that he related evidence obtained through personal observation and interaction with

Wolfe, and that he had provided credible information to support the issuance of the first



                                           - 10 -
warrant was more than sufficient to support Scott’s veracity and basis of knowledge.5

The fact that Scott was not specifically identified as having himself engaged in illegal

activity that might influence his decision to cooperate with the investigation does not

vitiate that conclusion. Accord United States v. Hager, 969 F.2d 883, 887 (10th Cir.

1992) (noting that the agents’ failure to apprise the magistrate of an informant's criminal

history “does not rise to the level . . . which would affect a magistrate's conclusion

regarding the issuance of this warrant”), abrogated on other grounds by Bailey v. United

States, 516 U.S. 137, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995).




5
  We are aware that we cannot look to the prior affidavit itself to support a finding that
the magistrate was aware that Scott had provided credible information in the past because
the first affidavit was not attached to the second warrant application. See Federal Rule of
Criminal Procedure 41(c) (“A warrant . . . shall issue only on an affidavit or affidavits
sworn to before the federal magistrate judge or state judge and establishing the grounds
for issuing the warrant.”) However, the second Affidavit makes clear that Scott had
provided information regarding Wolfe to the agents in the past, that his information
supported the first warrant affidavit, and that items identified in the first warrant affidavit
were in fact located and seized during the execution of the first warrant. We think this
information, coupled with the identification of Scott by name and his personal
observation of the facts to which he attested, was sufficient to establish his credibility
before the magistrate judge. Accord United States v. Baca, 480 F.2d 199, 203 (10th Cir.
1973) (noting that officers can establish the credibility of their informants from personal
knowledge and from prior experiences with the informants); United States v. Danhauer,
229 F.3d 1002, 1006 (10th Cir. 2000) (“When there is sufficient independent
corroboration of an informant’s information, there is no need to establish the veracity of
the informant.”).

                                            - 11 -
                                      CONCLUSION

       For these reasons, we hold that the district court correctly concluded that, based on

the information presented in the Affidavit for the second warrant, the magistrate correctly

found that there was a “fair probability,” see United States v. Janus Indus., 48 F.3d 1548,

1552 (10th Cir. 1995), that contraband within the meaning of 18 U.S.C. §§ 2252, 2256

would be found on Wolfe’s computer hard drive, floppy disks or compact disks seized

during the execution of the first warrant.

       The decision of the district court is therefore AFFIRMED.



                                                ENTERED FOR THE COURT


                                                David M. Ebel
                                                Circuit Judge




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