United States v. Larson ( 2020 )

United States Court of Appeals
For the First Circuit
Nos. 18-1924, 18-1985
UNITED STATES OF AMERICA,
Appellee,
v.
BRYAN LARSON,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Timothy S. Hillman, U.S. District Judge]
Before
Lynch, Circuit Judge,
Souter, Associate Justice,
and Lipez, Circuit Judge.
Benjamin L. Falkner, with whom Krasnoo, Klehm & Falkner LLP
was on brief, for appellant.
Alexia R. De Vincentis, Assistant United States Attorney,
with whom Andrew E. Lelling, United States Attorney, and Matthew
D. Kim, Harvard Law School, were on brief, for appellee.
February 28, 2020

Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. Defendant Bryan Larson
pleaded guilty to possession of child pornography in violation of
18 U.S.C. § 2252A(a)(5), but reserved his right to appeal the
district court's denials of his motions to suppress and for a
hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). He
now appeals those denials. We affirm.
I
On June 11, 2015, a magistrate judge issued a warrant to
search a residence at 11 Manchaug Street, in Douglas,
Massachusetts. The warrant was based on an affidavit sworn by
Homeland Security Investigations Special Agent Edward Bradstreet.
The affidavit stated that on May 29, an investigator
with the Royal Canadian Mounted Police (RCMP) was reviewing
accounts on the website http://imgsrc.ru, a Russia-based image
hosting site known to contain sexually suggestive images of minor
children. The investigator noticed that an individual with the
username "ilovemackenzie" had posted three photo albums entitled
"Kenzie"; "my toy"; and "new and nice". The "Kenzie" album
contained 15 non-pornographic images of a prepubescent female who
appeared to be around five years old and three images of the same
female with a prepubescent male. The "my toy" album contained 26
images of what the affidavit characterized as a "life-like infant
torso with a vagina and anus." In about a dozen of these
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photographs, the torso was shown beneath or being penetrated by an
erect adult penis. Some photographs showed the "torso" partially
clothed with children's Cinderella underwear. The "new and nice"
album contained five non-pornographic images of children who
appeared to be less than five years old.
The RCMP investigator sent the following message from an
undercover email account to an email address displayed on
"ilovemackenzie"'s account: "I would like to trade with you! Here
is a little video of my 9 year old daughter!" and included a link.
From a different undercover account, the investigator sent the
user another message: "Here is a little something........ I am
into girls no boy shit please," followed by eight links containing
URLs similar to this: www.myvirtualfolder.com/ main.php?pthc-2015
the beautiful amanda.avi001. Agent Bradstreet stated in the
affidavit that, based on his training and experience, he knew
"pthc" stood for "preteen hard core." The URLs linked to an RCMP-
controlled website designed to capture the Internet Protocol (IP)
address of the person attempting access. Over the next few days,
an individual with the IP address 24.151.90.79 attempted to gain
access to the links on eleven separate occasions.
On June 1, the Department of Homeland Security (DHS)
issued a summons to Charter Communications, Inc. for the subscriber
information associated with the IP address mentioned above. This
information, along with more uncovered from a Registry of Motor
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Vehicles records search, led Agent Bradstreet to focus on 11
Manchaug Street in Douglas, Massachusetts, a two-unit residence
occupied by a woman, to whom the IP address was assigned, and Bryan
Larson. A search of the Massachusetts Sex Offender Registry
revealed that Larson was a Level 2 sex offender, having been
convicted of statutory rape of two children in 1994.
Agent Bradstreet sought a warrant to search Larson's
residence and to seize evidence of the crimes of attempted receipt
and attempted possession of child pornography, 18 U.S.C.
§ 2252A(a)(2)(A), (a)(5)(B). Agents executing the warrant found
digital files containing images and videos of child pornography on
Larson's computers.
Larson filed a motion to suppress the evidence obtained
from the search of his residence and, in the alternative, for a
hearing under the rule in Franks v. Delaware, 438 U.S. 154 (1978).
After the district court had denied both motions, Larson entered
the conditional guilty plea. The district court sentenced him to
138 months imprisonment.
II
The defendant's exercise of his reserved appeal rights
includes two challenges to the validity of the search and
admissibility of the evidence obtained: 1) that he has made an
adequate showing that the warrant was issued on the basis of an
affidavit containing a knowingly false or reckless description of
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the images in the "my toy" album, so that under the Franks rule,
it was error to deny him a hearing to demonstrate the warrant's
consequent invalidity; and 2) that in the absence of the
misstatements claimed (and even on the assumption of their truth)
the affidavit supporting the warrant application failed to provide
probable cause to believe that a search of Larson's home and the
computers kept there would reveal evidence that he had attempted
to obtain or possess child pornography. We find no merit in either
claim.1
As to the former, a Franks hearing is warranted only
"where the defendant makes a substantial preliminary showing that
a false statement knowingly and intentionally, or with reckless
disregard for the truth, was included by the affiant in the warrant
affidavit, and if the allegedly false statement is necessary to
the finding of probable cause." 438 U.S. at 155-156. The focus
of Larson's request for a Franks hearing was the agent's
description of the female child figure in the "my toy" photos as
1Larson raised two other issues requiring no extended
consideration. He argues that the warrant was "overbroad" because
probable cause to believe that the premises held evidence of
attempt does not authorize search or seizure of evidence of the
completed crime. But evidence of completion is competent evidence
of attempt. He also asserts that the good faith exception, see
United States v. Leon, 468 U.S. 897, 923-924 (1984), is
inapplicable here. But because we hold that probable cause was
adequately made out, no issue of good faith reliance can arise.
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a "life-like infant torso." The defendant argues that the
photographs, not submitted with the warrant application but
produced in the district court suppression hearing, show that none
of those three terms was fairly descriptive. His claim here is
not that the affidavit falsely claimed that an actual child was
shown; the photos were in the "my toy" album and the agent's
characterization of the figure shown as "life-like" make it
apparent that the affiant was referring to the image of a doll or
a sex toy.
Like the district court, we have examined the pictures
in question, and we think the agent's quoted reference to them was
unexceptional. They show the lower torso, front and back, of an
obviously female figure. The fact that they depict only the
genital area and buttocks does not render the affidavit's reference
simply to "torso" misleading in this legal context. Nor does the
fact that they show the skin of the female figure by less than a
perfect simulation of a young child's flesh leave the overall
description of "life-like" misleading; toys are not understood to
include replications of the texture of a young human body that
would fool an adult observer. Finally, the agent's identification
of the toy figure as an "infant" was most obvious in several
pictures that show an erect penis positioned across the center of
the buttocks, which appears proportionally diminutive. We note
also that, in several photographs, the toy is depicted next to
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children's Cinderella underwear. In sum, there is no serious
argument that the affidavit contained "egregious
misrepresentations" sufficient to "necessitat[e] a Franks hearing"
to attack the warrant application, let alone to render the warrant
invalid owing to any misrepresentation. United States v. Santana,
342 F.3d 60, 66 (1st Cir. 2003).
The defendant's second claim fares no better: that even
when the "my toy" testimony is considered, there was no showing to
the level of probable cause to believe that his house and computers
kept there would contain evidence of attempts to obtain and to
possess forbidden child pornography. To be sure, possession of
the "my toy" photos was not subject to prosecution, since their
subject was not an actual child. See Ashcroft v. Free Speech
Coalition, 535 U.S. 234, 258 (2002). But the "my toy" album as
described by the agent was posted along with two other albums that
did show actual children. And although these were not
pornographic, the association of pictures of real children with
the "virtual" child pornography suggests that the defendant was
interested in forbidden pornography showing actual children. That
allusion was confirmed by other evidence described in the warrant
application.
Canadian authorities had alerted DHS investigators to an
American computer user's account on the Russian site, which site
contained for the most part merely suggestive images of minor
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children but known to display actual child pornography for short
periods of time. To trace the user's location, the authorities
had sent two undercover email messages to the user, one purporting
to link to "a little video of my 9 year old daughter," and another
containing eight links identified by, among other things, "pthc,"
which the agent's affidavit explained meant "preteen hard core."
The defendant soon made eleven attempts to reach those sites. DHS
was able to trace the user's IP address to the defendant's house.
While a woman and others also living in the house could have
produced the albums, the defendant was the most likely source of
the material since he was identified as the man convicted and
imprisoned at the age of twenty-one, some twenty years ago, for
the rape of two underage girls. The agent also stated that, in
his experience as an investigator concerned with the subject
matter, those who seek the forbidden pornography tend to keep the
examples they obtain.
There is no serious question that this record would
justify a reasonable belief that the house and home computers would
contain evidence of attempts by the defendant to obtain and possess
child pornography. See United States v. Reiner, 500 F.3d 10, 15
(1st Cir. 2007) ("Probable cause to issue a search warrant exists
when '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.'" (citing Illinois v. Gates,
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462 U.S. 213, 238 (1983))). The defendant simply argues on an
evidentiary item-by-item basis that probable cause was wanting,
whereas the sufficiency of evidence to justify the warrant must be
evaluated on the record as a whole. United States v. Flores, 888
F.3d 537, 544 (1st Cir. 2018) ("Attempting to analyze each piece
of evidence in a vacuum is inconsistent with Supreme Court case
law, which makes pellucid that each item is to be considered as
part of the totality of the circumstances."). As the defendant
says, for example, not everyone who may click on a "pthc" link may
understand that signal, but for purposes of probable cause it is
enough to know that the combination of the four letters is commonly
understood to be shorthand for what the agent testified based on
his experience and thus subject to some weight in association with
the other evidence mentioned.
The warrant was adequately supported and the evidence
obtained was admissible.
Affirmed.
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