                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-4052



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellant,

           versus


GRAYSON RAMSBURG, JR.,

                                              Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge. (CR-
02-366-CCB)


Argued:   October 1, 2004               Decided:     November 12, 2004


Before WIDENER and WILKINSON, Circuit Judges, and Robert E. PAYNE,
United States District Judge for the Eastern District of Virginia,
sitting by designation.


Reversed by unpublished per curiam opinion.


ARGUED: Jonathan Mark Mastrangelo, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellant.    Sarah Sargent Gannett, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellee.     ON
BRIEF: Thomas M. DiBiagio, United States Attorney, Baltimore,
Maryland, for Appellant. James Wyda, Federal Public Defender, Beth
M. Farber, Assistant Federal Public Defender, Baltimore, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                               2
PER CURIAM:

     The Federal Bureau of Investigation (“FBI”) secured a warrant

to search appellee’s home.   The agents who conducted the search

found computer equipment containing images of child pornography.

Appellee also confessed to the investigating officers that he had

possessed and distributed such material.     The government later

disclosed that the affidavit supporting the warrant contained a

falsehood. Appellee moved to suppress the evidence obtained during

the search of his home and his related confession.     The district

court granted the motion; the government now appeals.

     Even with the erroneous information redacted, the affidavit

supports the magistrate’s finding of probable cause.    Appellee had

been a member of two internet groups whose primary purpose was to

facilitate the distribution of child pornography.    He had also e-

mailed an illegal image to an officer several years earlier.     On

this record, we conclude that the affidavit provided probable cause

that evidence of a crime would be found at appellee’s residence.

We accordingly reverse.



                                I.

     This prosecution is one of several resulting from a prolonged

investigation by the FBI.    In early 2001, Special Agent Binney

began an undercover probe of suspected online providers of child

pornography.   As part of this inquiry, Binney joined the Candyman


                                 3
e-group in January 2001.        Candyman’s website stated that “[t]his

group is for People who love kids.            You can post any type of

messages you like too or any type of pics and vids you like too.

P.S. IF WE ALL WORK TOGETHER WE WILL HAVE THE BEST GROUP ON THE

NET.”    Membership in Candyman entitled users to receive e-mails

compiled by the site’s administrator.           The website also had a

“Files” link, through which members could post and view images.

During the time that Binney was a member of the Candyman e-group,

most material he uploaded via the “Files” function illegally

depicted prepubescent children engaged in sexual activity.                The

agent remained a member of Candyman until February 6, 2001, when

the group was shut down.

       Binney joined a similar e-group, named Shangri_la, on February

7, 2001.      He maintained his membership in this organization until

it too was shut down on March 6, 2001.

       After Binney’s reassignment, Special Agent Kornek inherited

this investigation.        Kornek submitted an affidavit to Magistrate

Grimm on December 27, 2001, in support of her application for a

search    warrant.      The   affidavit   recounted     that,   during    his

membership, Binney had received 498 e-mails from the Candyman e-

group.    Attached to some of these e-mails were 105 images of child

pornography.      Binney had also received 22 such images in e-mails

from    the   Shangri_la   group.    Kornek   further    averred   that   an

individual using the e-mail address “zigdude@aol.com” had joined


                                     4
Candyman on December 24, 2000.               This person had also joined

Shangri_la on February 2, 2001, and had remained a member of both

groups until their disbandment. The FBI determined that the e-mail

address “zigdude@aol.com” was registered to Grayson Ramsburg of

Frederick, Maryland. Ramsburg, who had owned the account since May

1994, had also used the screen name “OriolesGuy.”

       The   affidavit   contained     two      other    important       pieces    of

information.        First,    Kornek       stated        that     the    owner     of

“zigdude@aol.com” had received approximately 178 images of child

pornography while a member of Candyman and Shangri_la.                     Second,

Kornek recounted that, during another undercover investigation, an

agent had received an illicit electronic image from an individual

using the screen name “OriolesGuy.”             This transmission occurred on

April 18, 1995.

       Judge Grimm issued a search warrant based on the information

that Kornek supplied. Agents conducted a search of Ramsburg’s home

on January 3, 2002. A subsequent examination of computer equipment

seized during the search revealed many illegal images.                    Ramsburg

also    admitted   his   involvement       in    child    pornography      to     the

investigators.

       On August 14, 2002, the government notified Ramsburg of an

inaccuracy    in   Kornek’s   affidavit.           The    agent    had    told    the

magistrate that Ramsburg had received about 178 images of child

pornography from Candyman and Shangri_la.               This claim was based on


                                       5
Binney’s receipt of e-mails from the two groups during the relevant

period.     But there were several methods of joining Candyman and

Shangri_la.       The method that Binney claimed to have selected

resulted in automatic inclusion on the mailing list.             As a result,

the agent would have received illicit images by default.                  Those

members who joined via the webpage, by contrast, could elect to

receive no e-mails at all.           The majority of members had in fact

signed    up   using   this   method    and   declined   the   e-mail    option.

Kornek’s statement that Ramsburg had received 178 images of child

pornography solely by virtue of his membership in Candyman and

Shangri_la thus rested on an erroneous assumption.

     Ramsburg protested the invalidity of the warrant and moved to

exclude the evidence seized during the search of his residence and

his associated confession.             Judge Blake found that Binney had

recklessly disregarded the truth in alleging that Ramsburg had

received 178 illegal images.             Following the rule of Franks v.

Delaware, 438 U.S. 154 (1978), the district court excised this

erroneous statement from Kornek’s affidavit and reexamined the

remaining information.          Judge Blake found that the corrected

affidavit      would   not    have   established    probable    cause.      She

suppressed the evidence seized during the search and Ramsburg’s

subsequent confession.

     On appeal, the government concedes the reckless falsity of

Kornek’s claim.        It also admits that, if the corrected affidavit


                                         6
provides no probable cause, Ramsburg’s statements must also be

suppressed.        But the government maintains that the affidavit

supported probable cause even without the erroneous information.



                                      II.

       Probable cause is an issue of law and therefore receives de

novo review.       See United States v. Wilhelm, 80 F.3d 116, 118 (4th

Cir. 1996); United States v. Colkley, 899 F.2d 297, 301-02 (4th

Cir. 1990).

       In determining probable cause, we apply the “totality-of-the-

circumstances” test that the Supreme Court articulated in Illinois

v. Gates, 462 U.S. 213, 238 (1983).             This standard applies with

equal force when we review an affidavit which has been corrected

following a Franks hearing.          See Colkley, 899 F.2d at 301-02.      We

must therefore make “a practical, common-sense decision whether,

given all the circumstances set forth in the affidavit . . . there

is a fair probability that contraband or evidence of a crime will

be found in a particular place.”            Gates, 462 U.S. at 238.

       The warrant affidavit, excised of its incorrect assertions,

established that an e-mail address registered to appellee had been

used   to   join    Candyman   and   Shangri_la.     The   address   remained

associated with the sites until their closures in 2001.                   The

affidavit also supported the inference that Candyman’s primary

purpose was to facilitate the exchange and distribution of child


                                        7
pornography.    Kornek noted that the salient feature of Candyman’s

website was the “Files” function.          This link enabled members to

upload images for viewing and downloading by the remainder of the

group.    Kornek recounted that, during Binney’s membership in

Candyman, he had captured about 100 images and video clips from the

website using the “Files” feature.         The majority of these files

illegally depicted prepubescent minors engaged in sexual activity.

Viewed   in    light   of   this   fact,   the   website’s   proclamation

encouraging users to post “any type of pics and vids you like”

assumes a decidedly sinister meaning.         The fact that most of the

website’s traffic was illicit rightly colors a determination of its

purpose. Quite apart from Kornek’s incorrect assertion, therefore,

there were defensible recitations in the affidavit suggesting that

Candyman’s raison d’etre was to facilitate the exchange of child

pornography.

     Appellee notes that Candyman also provided unobjectionable

services.1 The “Chat” function, for instance, permitted members to


     1
      Appellee also describes these services as “legal activities”
protected under the First Amendment in his argument to invalidate
the original search.     His implication is that probable cause
determinations should be more scrupulously examined when the
alleged misbehavior on which they rest implicates free speech. But
the Supreme Court has rejected this notion. See New York v. P.J.
Video, Inc., 475 U.S. 868, 875 (1986)(“[A]n application for a
warrant authorizing the seizure of materials presumptively
protected by the First Amendment should be evaluated under the same
standard of probable cause used to review warrant applications
generally.”)


                                     8
engage in online conversations with each other.                  Standing alone,

therefore, membership in Candyman could not support probable cause.

Although a user could engage in illicit activities, he might also

visit the site for entirely innocuous purposes.                    The corrected

affidavit contains an allegation of affiliation, and                    “proof of

mere membership . . . without a link to actual criminal activity”

is insufficient to support probable cause. United States v. Brown,

951 F.2d 999, 1003 (9th Cir. 1991).

     Contrary to appellee’s suggestion, however, we need not reach

the question of whether mere membership in a predominantly illicit

organization    can    support    probable       cause,2   for    the   corrected

affidavit submitted by Kornek contained more than an allegation of

affiliation.3   The agent also informed the magistrate that another

e-mail address registered to Ramsburg had transmitted an image of

child    pornography    to   an   agent      several   years     earlier.    This

information not only strengthened the case for probable cause in

its own right, it also bolstered the inference that Ramsburg had

participated    in     Candyman    and       Shangri_la    to    download   child


     2
      In cases based on the same investigation, however, two
circuits have found probable cause in affidavits that, after
redaction under Franks, contained only allegations of membership in
Candyman and Shangri_la. See United States v. Froman, 355 F.3d
882, 891 (5th Cir. 2004); United States v. Hutto, 84 Fed. Appx. 6,
8 (10th Cir. 2003). These holdings undermine appellee’s claim that
affiliation with the e-groups alone cannot support probable cause.
     3
      On this ground we distinguish the opposing decisions in
United States v. Perez, 247 F. Supp. 2d 459 (S.D.N.Y. 2003) and
United States v. Strauser, 247 F. Supp. 2d 1135 (E.D. Mo. 2003).

                                         9
pornography and not for more innocuous purposes.                          Indeed, such a

cross-weighting of the elements underpinning a probable cause

determination is precisely what the “totality-of-the-circumstances”

test invites.        See United States v. Rabe, 848 F.2d 994, 995-97 (9th

Cir. 1988)(considering two-year-old evidence in light of recent

suspicious activity in finding probable cause to search for child

pornography).

       Appellee      suggests      that       we    should      discredit       the    prior

transmission of an illegal image as a stale basis for probable

cause.   Since this event occurred in 1995, it could not support the

inference that evidence of a crime would be found in Ramsburg’s

home in 2001, when Kornek sought the warrant.                             We have held,

however,     that     “[t]he      vitality         of   probable     cause      cannot       be

quantified by simply counting the number of days between the

occurrence      of    the   facts        supplied       and    the   issuance         of    the

affidavit.” United States v. McCall, 740 F.2d 1331, 1336 (4th Cir.

1984)(quoting United States v. Johnson, 461 F.2d 285, 287 (10th

Cir.   1972)).        We    have       also   joined     several     other      courts       in

emphasizing that findings of staleness become less appropriate when

the    instrumentalities          of    the    alleged        illegality     tend      to    be

retained.    See United States v. Farmer, 370 F.3d 435, 439-40 (4th

Cir.   2004).        Here   the    undisturbed          portions     of   the    affidavit

established that Ramsburg, the registrant of “OriolesGuy,” had

possessed and distributed an image of child pornography.                              And, as


                                              10
Kornek averred to Magistrate Grimm, most collectors of child

pornography “rarely . . . dispose of their sexually explicit

materials.”       See also United States v. Lacy, 119 F.3d 742, 745-46

(9th Cir. 1997)(noting that possessors of child pornography are

unlikely to promptly dispose of it).

       It   is    no   defense   that   the   affidavit   contained     only   one

allegation of a prior transmission of only one illicit image.

Given the evident difficulty of obtaining child pornography, it is

very unlikely that an individual would acquire a single image

mistakenly or on a whim.           And it is even more improbable that an

unknowing or casual possessor would e-mail his lone image to

another internet user.           The earlier distribution from an e-mail

account traced to Ramsburg thus strongly suggests that he was a

collector of child pornography.

       Staleness is shorthand for the notion that some evidence of

wrongdoing is so old that it cannot support probable cause on its

own.        The   concept   does   not   automatically     ban   from    warrant

affidavits information of a certain vintage, as appellee would have

it.    Indeed, some information that may be stale standing alone

becomes an appropriate basis for a probable cause determination

when viewed in light of relatedly suspicious behavior.                The prior

transmission of an illicit image was a proper consideration in the

totality of the circumstances inquiry mandated by Gates.                       This

information, together with appellee’s membership in Candyman and


                                         11
Shangri_la, was sufficient to establish a fair probability that

Ramsburg’s domicile contained evidence of a crime. The judgment of

the district court is therefore

                                                        REVERSED.




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