United States v. Ramsburg , 114 F. App'x 78 ( 2004 )

UNPUBLISHED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Reversed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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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
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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
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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
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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.”)
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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).
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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
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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
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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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