United States v. Griesbach, Paul R. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-3357
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
P AUL R. G RIESBACH,
Defendant-Appellant.
____________
A ppeal from the U nited States District Court
for the W estern District of W isconsin.
N o. 07-CR-044-C— Barbara B. Crabb, Chief Judge.
____________
A RGUED A UGUST 5, 2008—D ECIDED S EPTEMBER 2, 2008
____________
Before P OSNER, C OFFEY, and M ANION, Circuit Judges.
P OSNER, Circuit Judge. The defendant was convicted of
knowingly possessing child pornography, in violation of
18 U.S.C. § 2252(a)(4)(B), and was sentenced to 10 years
in prison. The appeal challenges the denial of his motion
to suppress pornographic images found on his com-
puter. The ground of the motion was absence of probable
cause to support the warrant to search the computer’s
2 No. 07-3357
files in which the images on which his conviction is
based were found.
The warrant, issued by a Wisconsin state judge, was
based on the affidavit of a state police officer who was
investigating the defendant’s possible violation of a
Wisconsin statute that makes it a crime to possess images
of a “child engaged in sexually explicit conduct,” defined
to include “lewd exhibition of intimate parts.” Wis. Stat.
§§ 948.12(1), 948.01(7). The Supreme Court of Wisconsin
has explained that to satisfy this definition “the photo-
graph must visibly display the child’s genitals or pubic
area. Mere nudity is not enough . . . . [T]he child [must be]
posed as a sex object . . . . The photograph is lewd in its
‘unnatural’ or ‘unusual’ focus on the juvenile’s genitalia,
regardless of the child’s intention to engage in sexual
activity.” State v. Petrone, 468 N.W.2d 676, 688 (Wis. 1991);
see also United States v. Lowe, 516 F.3d 580, 586 (7th Cir.
2008).
The affidavit described three images that the police
investigator had found on the Internet and traced to the
defendant. The first “depicts a prepubescent female
posing by a body of water. She has her top pulled up to
expose her breasts.” The second “depicts a female who
appears to be under the age of 18 posing naked. She is
standing to expose her full body.” The third “depicts a
naked female exposing her vagina. The female is lying
on her back and her vagina is the primary focus of the
image. The female appears to be under the age of 18. The
image is from identified child pornography series ‘Chelsea’
where law enforcement has identified the child victim.”
No. 07-3357 3
The government distinguishes between “child erotica”
and “child pornography,” places the first two images
described in the affidavit in the first box, and so defends
the finding of probable cause solely on the basis of the
third image. Although there is non-erotic photography
of nude children, one might have doubted that “child
erotica” was a legitimate photographic genre. But perhaps
it is; for there is a vein of high-culture child-erotic art,
illustrated in literature by Vladimir Nabokov’s famous
novel Lolita and in the visual arts by the erotic paintings
of prepubescent girls by the distinguished modern artist
Balthus (Balthasar K » ossowski de Rola), such as The
Guitar Lesson (1934). In any event, the Wisconsin legisla-
ture (as well as the U.S. Congress, as we are about to
see) has decided to draw the line between child erotica
and child pornography, and the government concedes
that if the affidavit failed to establish probable cause
to believe that the third image was pornographic, the
warrant was unconstitutional.
We note that it would have made no difference had the
warrant been sought in federal court to obtain evidence
of violation of the federal child pornography statute
under which the defendant was convicted. The federal
statute is identical to the Wisconsin statute so far as
the issues in this case are concerned. It criminalizes
possession of images depicting a minor “engaged in
sexually explicit conduct,” defined to include “lascivious
exhibition of the genitals or pubic area.” 18 U.S.C.
§§ 2252(a)(4), 2256(2)(B)(iii). And under the federal law as
under the state law, more than nudity is required to
make an image lascivious; the focus of the image must
4 No. 07-3357
be on the genitals or the image must be otherwise sexually
suggestive. United States v. Soderstrand, 412 F.3d 1146,
1151 (10th Cir. 2005); United States v. Kemmerling, 285 F.3d
644, 645-46 (8th Cir. 2002); United States v. Grimes, 244 F.3d
375, 380 (5th Cir. 2001); United States v. Knox, 32 F.3d 733,
743-44 (3d Cir. 1994).
The failure of the state investigator to submit the
image itself with her affidavit to the state judge is the
strangest thing about this case—unless it is the statement
by the federal government’s lawyer that it is the policy
of his office not to submit pornographic images to a
judge when seeking a search warrant, for fear of “dissemi-
nating pornography.” That position is hard to understand,
since in any prosecution for child pornography the es-
sential evidence is the pornography rather than a
verbal description of it, and it becomes part of the
official record of the case. It is true that the Adam Walsh
Child Protection and Safety Act, 18 U.S.C. § 3509(m)(1),
provides that “in any [federal] criminal proceeding, any
property or material that constitutes child pornography
(as defined by section 2256 of this title) shall remain in
the care, custody, and control of either the Government or
the court.” See United States v. Shrake, 515 F.3d 743, 744-47
(7th Cir. 2008). But neither that nor any other statute
of which we are aware forbids submitting child pornog-
raphy to a judge in support of a request for a search
warrant, since, like other evidence in a case, it would
remain in the court’s control.
A picture may be worth a thousand words, but the
affidavit’s 20-word description of the third image (“a
No. 07-3357 5
naked female exposing her vagina. The female is lying
on her back and her vagina is the primary focus”) is not
worth even one picture. The judge to whom the
affidavit was submitted should have asked to see the
image. Still, we think the verbal description was sufficient
to justify an inference that a search of the defendant’s
computer files would turn up pornographic images, as
it did. When the “primary focus” in a photograph of a
naked girl (apparently a teenager, since only the girl in
the first photograph is described as prepubescent) is her
vagina, and the photo is part of a known “child pornogra-
phy series,” there is probable cause to believe that it is
a pornographic image—that the subject of the photo is
being presented to the viewer as a sex object—and that a
search of the computer from which the image had been
uploaded to the Internet (where it was noticed by Yahoo
and eventually reported to the Wisconsin authorities,
touching off the investigation that led to the search)
will yield additional such images. The fact that the
third image was part of a known series of pornographic
images is especially telling. Not all the photos in such a
series are bound to be pornographic, but most will be, and
if the suspect is discovered to possess one image in
the series the inference that he is a consumer of porno-
graphic images and possesses such images found in this
or some other pornographic series is strong.
A FFIRMED.
9-2-08