United States v. Brown, Frank L. ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-2613
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRANK L. BROWN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 00-CR-112-C-01—Barbara B. Crabb, Chief Judge.
____________
ARGUED SEPTEMBER 19, 2002—DECIDED JUNE 27, 2003
____________
Before CUDAHY, DIANE P. WOOD, and WILLIAMS, Circuit
Judges.
WILLIAMS, Circuit Judge. Officers executing a no-knock
search warrant discovered over 2000 images of child por-
nography on Frank Brown’s computer. Although Brown
subsequently pleaded guilty to knowingly possessing child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B),
he challenges here the district court’s five-level increase
of his base offense level for “distributing” child pornogra-
phy under § 2G2.2(b)(2) of the Sentencing Guidelines.
Brown also argues that the evidence retrieved pursuant
to the warrant should have been suppressed because
reasonable suspicion did not exist to justify the issuance
of a no-knock warrant. We find the district court’s appli-
2 No. 01-2613
cation of § 2G2.2(b)(2) to be proper because Brown’s trad-
ing of images was appropriately considered to be “distrib-
ution.” We also find that the district court did not err
in denying Brown’s motion to suppress because, under
United States v. Langford, 314 F.3d 892, 894 (7th Cir.
2002), a violation of the knock and announce rule does
not authorize the exclusion of the evidence. Therefore,
we affirm.
I. BACKGROUND
On several occasions in late 1999 and early 2000, an
undercover New York State police officer entered an
internet chat room under an assumed identity of a
fifteen-year-old female. While online, the officer engaged
in conversations with a person using the online nick-
name “ProudMom” who was subsequently identified as
Frank Brown. During at least three of these conversa-
tions, Brown transmitted numerous images of minors
engaged in sexually-explicit conduct to the officer. After
tracing the messages to Brown, Special Agent Elizabeth
Hanson of the United States Customs Service placed
an undercover phone call to Brown’s address, and Brown’s
wife told Hanson that their family owned five computers.
Based on this information, Hanson applied for a war-
rant to search Brown’s residence and seize his computer
software, computer files, and other evidence relating to
child pornography. In the affidavit for the warrant, Hanson
requested permission to enter the residence without
knocking or announcing the officers’ presence. The magis-
trate judge issued the warrant, including the no-knock
provision.
When the warrant was executed, officers seized a com-
puter that contained over 2000 sexually-explicit images
involving minors. Brown was subsequently indicted for
three counts of violating the Child Pornography Preven-
No. 01-2613 3
tion Act of 1996, 18 U.S.C. § 2251 et seq. In one of several
pretrial motions, Brown moved to suppress evidence
from the search claiming that the no-knock search war-
rant violated the Fourth Amendment. The magistrate
judge determined that although he erred in authorizing
the no-knock entry, the officers acted in good faith when
they relied upon the warrant. The district court adopted
the magistrate judge’s report and recommendation and
denied Brown’s motion to suppress.
Brown then pleaded guilty to knowingly possessing
matters that contained visual depictions of child pornogra-
phy under 18 U.S.C. § 2252A(a)(5)(B), and agreed to for-
feit his interest in the computer equipment and materials
containing child pornography. At Brown’s sentencing
hearing, his attorney admitted that Brown had traded
pornographic images, although not on a one-for-one basis
and not for commercial purposes. When determining
his sentence, the district court, among other things, en-
hanced his base-level offense by five levels after deter-
mining that Brown’s trading qualified as “distribution”
under § 2G2.2(b)(2) of the Sentencing Guidelines. Brown
was sentenced to 60 months’ imprisonment, a three-year
term of supervised release, and a $100 criminal assess-
ment. Brown appeals.
II. ANALYSIS
In the district court and in his brief, Brown argued that
portions of the Child Pornography Prevention Act vio-
late the First Amendment under the reasoning of Ash-
croft v. Free Speech Coalition, 535 U.S. 234, 257 (2002)
(holding that the statute’s ban on “virtual” child pornogra-
phy was overbroad). At oral argument, however, Brown’s
counsel admitted that images of actual children were
involved in Brown’s case and announced that he is not
continuing to pursue this issue. Therefore, we move di-
4 No. 01-2613
rectly to the two issues remaining in his appeal: the
issuance of a no-knock warrant and the application of
the Sentencing Guidelines.
A. No-knock search warrant
Brown first claims that the district court erred in deny-
ing his motion to suppress the evidence seized from his
residence because the officers improperly obtained and
relied upon a no-knock warrant. It goes without saying
that the requirement that officers knock and announce
before entering a home is part of the protection against
an “unreasonable” search or seizure guaranteed by the
Fourth Amendment. Wilson v. Arkansas, 514 U.S. 927, 934
(1995). Indeed, before a no-knock entry is justified, “the
police must have a reasonable suspicion that knocking
and announcing their presence, under the particular
circumstances, would be dangerous or futile, or that it
would inhibit the effective investigation of the crime by, for
example, allowing the destruction of the evidence.” Rich-
ards v. Wisconsin, 520 U.S. 385, 394 (1997). In this case, the
magistrate judge relied on Officer Hanson’s affidavit in
authorizing a no-knock warrant. The request that the
warrant issue with a no-knock provision was based on a
description in the affidavit of commercial encryption
products that allow a user to encrypt an entire hard
drive by striking a single key. Brown argues that this
fact does not provide any particular circumstances that
justify a no-knock warrant in his case, and thus the no-
knock warrant should not have been issued.
Unfortunately, Brown’s argument is cut short by this
court’s recent decision in United States v. Langford. In
Langford, this circuit held that a violation of the knock
and announce rule “does not authorize exclusion of the
evidence seized pursuant to the ensuing search.” 314 F.3d
at 894. Whether the Supreme Court will endorse this
No. 01-2613 5
conclusion remains to be seen; its decision to grant certio-
rari to review the Ninth Circuit’s decision in United States
v. Banks, 282 F.3d 699 (9th Cir. 2002), cert. granted, 123
S.Ct. 1252 (2003), places the issues raised in Langford
squarely before the Court. Until the Supreme Court acts,
however, we are bound by this circuit’s opinion in Langford
and therefore affirm the denial of Brown’s motion to
suppress.
B. Application of § 2G2.2(b)(2)
Brown also challenges the district court’s application of
a five-level increase in his base-level offense under
§ 2G2.2(b)(2) of the Sentencing Guidelines. Brown argues
that the district court interpreted the term “distribution”
too broadly and that his conduct does not fall within an
accurate reading of that term. We review the district
court’s legal interpretations of the Sentencing Guidelines
de novo. See, e.g., United States v. Matthews, 116 F.3d
305, 307 (7th Cir. 1997).
Brown was sentenced under the 1998 version of the
Guidelines, which provides that “if the offense in-
volved distribution, increase by the number of levels
from the table in § 2F1.1 corresponding to the retail level
of the material, but in no event by less than five levels.”
U.S.S.G. § 2G2.2(b)(2).1 Application Note 1 of § 2G2.2(b)(2)
states that, with respect to this section, the term “dis-
1
In 2000, § 2G2.2(b)(2) was amended to provide for a five-level
enhancement if the offense involves “distribution for the re-
ceipt, or expectation of receipt, of a thing of value, but not for
pecuniary gain.” See Guideline Amendment 592. Application Note
1 of the 2000 Guidelines explains that one example of a “thing
of value” is “child pornographic material received in exchange
for other child pornographic material . . . bartered in considera-
tion for the material received.”
6 No. 01-2613
tribution” “includes any act related to distribution for
pecuniary gain, including production, transportation, and
possession with intent to distribute.” Brown argues that
Application Note 1 means that in order to qualify as “distri-
bution,” an exchange must be made for pecuniary gain.
Brown admits to “trading” images, but he claims that
because the images he sent to others were not ex-
changed for commercial purposes, his activity was not
“distribution.”
In United States v. Black, 116 F.3d 198, 203 (7th Cir.
1997), this court took note of the fact that the description
of “distribution” in Application Note 1 refers to “pecuniary
gain” but also recognized that “pecuniary gain is a broad
concept itself, and it does not exclude the possibility of
swaps, barter, in-kind transactions, or other valuable
consideration.” This broad interpretation—that “distribu-
tion” requires an expectation of something valuable in
return—is an entirely reasonable interpretation of
§ 2G2.2(b)(2). To decide otherwise, and limit its applica-
tion to cases involving an exchange of money, would miss
a great deal of economic activity that takes place
through trades, barter, and other transactions.
Brown argues that Black’s interpretation of “pecuniary
gain” should be tempered by the facts of that case. While
Black did affirm the lower court’s decision to decline
application of the enhancement, in that case the govern-
ment stipulated that Black did not distribute pornogra-
phy for “commercial purposes or monetary gain,” id. at
200, and the court made clear that the distribution in
that case was not for any kind of gain. Id. at 203. Here,
no such stipulation exists, and the district court found
that Brown actively bartered or exchanged child pornog-
raphy in order to acquire more pornography. This falls
within Black’s description of “pecuniary gain,” and was
properly understood by the district court to be “distribu-
tion.”
No. 01-2613 7
Our conclusion is further buoyed by holdings from other
circuits that have applied the enhancement in similar
or less compelling cases. See, e.g., United States v. Williams,
253 F.3d 789, 792-93 (4th Cir. 2001) (holding that act
of mailing pictures was sufficient to constitute “distribu-
tion”); United States v. Probel, 214 F.3d 1285, 1290-91 (11th
Cir. 2000) (finding enhancement applied when defendant
sent pictures over the internet, even when he received
no benefit for the pictures); United States v. Imgrund, 208
F.3d 1070, 1072-73 (8th Cir. 2000) (explaining that en-
hancement is appropriate when a trade, barter, or ex-
change of images takes place); United States v. Lorge, 166
F.3d 516, 519 (2d Cir. 1999) (affirming enhancement
when defendant exchanged pornographic images of chil-
dren with others); United States v. Laney, 189 F.3d 954,
959-61 (9th Cir. 1999) (finding defendant who delivered
child pornography in order to receive other pornography
engaged in “distribution”); United States v. Hibbler, 159
F.3d 233, 237-38 (6th Cir. 1998) (holding that “distribu-
tion” included trading images over internet for other
pornographic pictures); United States v. Canada, 110 F.3d
260, 263-64 (5th Cir. 1997) (deciding that enhancement
was appropriate when defendant distributed pornographic
materials as a way of enticing a minor to have sex with
him).2 Brown’s trading of images was properly consid-
ered to be “distribution” by the district court, and his
sentence was appropriately enhanced by five levels.
2
Many of our sister circuits have gone beyond our holding here
and have found that no pecuniary gain of any kind is required
under § 2G2.2(b)(2). We do not adopt their reasoning today,
but only find that, under the interpretation of “pecuniary gain”
outlined in Black, Brown’s trading constitutes “distribution.”
8 No. 01-2613
III. CONCLUSION
For the reasons stated above, the judgment of the dis-
trict court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-27-03