United States v. Jeremy Schenck ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-2353
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JEREMY SCHENCK,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 19-cr-127-jdp — James D. Peterson, Chief Judge.
____________________
ARGUED APRIL 1, 2021 — DECIDED JULY 2, 2021
____________________
Before MANION, ROVNER, and ST. EVE, Circuit Judges.
MANION, Circuit Judge. Jeremy Schenck produced child
pornography. He moved to suppress the evidence, arguing
the search warrant was not supported by probable cause be-
cause the underlying affidavit did not identify how the affiant
knew a few particular pieces of information. The district
judge agreed with the magistrate judge’s recommendation
and denied suppression. Schenck pleaded guilty to one count
of violating 18 U.S.C. § 2251(a), conditioned on reserving his
2 No. 20-2353
right to appeal. The district judge sentenced him to 240
months in prison. Schenck appeals the denial of suppression.
But we agree with the district judge that there is nothing to
criticize in the magistrate judge’s report and recommenda-
tion. The affidavit, read as a whole with common sense, estab-
lished a reasonable probability that the search would produce
evidence of child pornography.
I.
Jeremy “Emily” Schenck: Defendant-Appellant. Born
March 21, 1995. Biological father of ABC. 1 Former partner of
Christina Davis.
Christina Davis: Biological mother of ABC. Former part-
ner of Schenck.
ABC: Daughter of Davis and Schenck. Born in 2016.
Melissa Schenck: Jeremy Schenck’s mother.
Detective Paul Bauman: Madison police detective. Signed
the affidavit supporting the warrant.
Officer Joseph Buccellato: Madison police officer. Investi-
gated Davis’s report.
Officer Amber Flores: Madison police officer. Interviewed
Melissa Schenck.
Melissa Garecht: Social worker. Investigated Davis’s re-
port.
Katelyn Schneibel: Schenck’s friend in Williston, North
Dakota. Told Davis that Schenck sent images to her.
1 We changed the child’s initials throughout this opinion.
No. 20-2353 3
Detective Alexius Enget: Williston police detective. Inter-
viewed Schneibel.
II.
Jeremy Schenck and Christina Davis have a young biolog-
ical child together: ABC. Schenck took sexually explicit pho-
tos of ABC and sent them to his friend Schneibel on the inter-
net.
Schneibel told Davis, who told Melissa Schenck, who told
Detective Bauman. Bauman then spoke with Davis directly.
At Bauman’s arrangement, Detective Enget spoke with
Schneibel directly. During that interview, Schneibel described
the images she received from Jeremy Schenck. Enget gave an
audio recording of her interview of Schneibel to Bauman.
Bauman then applied to a Wisconsin state judge for a warrant
to search Jeremy Schenck’s apartment for child pornography.
Bauman wrote and submitted an affidavit explaining why
there was probable cause to support the search. This case cen-
ters on Bauman’s affidavit.
The affidavit contains seven numbered paragraphs de-
scribing factual details Bauman learned during his investiga-
tion.
Based on this affidavit, the Wisconsin state judge issued a
search warrant. Police executed the warrant on February 20,
2019. They seized Schenck’s computer and iPhone. They
found four pornographic images of ABC when she was about
1.5 to 2 years old.
The federal government charged Schenck with three
counts of production of child pornography and one count of
distribution. Schenck moved to suppress all evidence discov-
ered during the search. He argued the affidavit lacked
4 No. 20-2353
probable cause because it failed to demonstrate ABC was a
child, and it failed to demonstrate the images were sexually
explicit.
The magistrate judge issued a thorough report recom-
mending denial of the motion. The district judge adopted the
report and wrote: “when read as a whole from a common-
sense perspective, [the affidavit] establishes a reasonable
probability that the search would yield evidence of child por-
nography.”
Schenck pleaded guilty to one count of production of child
pornography, conditioned on preserving his right to appeal.
The district judge sentenced him to 240 months in prison.
Schenck appeals the denial of suppression.
III.
We review a district judge’s denial of a motion to suppress
under a dual standard: we review legal conclusions de novo
but we review findings of fact for clear error. United States v.
Hammond, 996 F.3d 374, 383 (7th Cir. 2021). We give great def-
erence to the judge issuing the warrant. United States v. Wood-
fork, 999 F.3d 511, 516 (7th Cir. 2021). We uphold a finding of
probable cause “so long as the issuing judge had a substantial
basis to conclude that the search was reasonably likely to un-
cover evidence of wrongdoing … .” United States v. Aljabari,
626 F.3d 940, 944 (7th Cir. 2010).
Probable cause is not a high standard. It simply means
there is a reasonable likelihood evidence of wrongdoing will
be found. Probable cause exists when “the known facts and
circumstances are sufficient to warrant a man of reasonable
prudence in the belief that contraband or evidence of a crime
will be found … .” Ornelas v. United States, 517 U.S. 690, 696
No. 20-2353 5
(1996). Probable cause requires “only a probability or substan-
tial chance of criminal activity, not an actual showing of such
activity.” Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983). Proba-
ble cause is a flexible, common-sense, totality-of-the-circum-
stances standard.
Schenck challenges the affidavit. He argues it failed to es-
tablish a reasonable basis to think ABC was a child. This is
significant because if ABC were an adult at the relevant times,
then the photos of her would not be criminal (or at least they
would not be child pornography).
Bauman included a 2016 date of birth for ABC in para-
graph 2 of his affidavit. This would make her less than 3 years
old at the relevant times. But Schenck argues the affidavit’s
“glaring flaw” is that it never provides a source for its allega-
tions about ABC’s age. Schenck argues that paragraph 2,
which lists the date of birth of ABC, “relies entirely on the con-
clusory statement of the affiant,” Bauman. Schenck argues
Bauman never explains how he knows ABC’s birthdate.
It is true that mere conclusory statements will not suffice.
United States v. Reddrick, 90 F.3d 1276, 1280 (7th Cir. 1996). And
it is true that the affidavit is not overly detailed about how
Bauman knows ABC is a child. Bauman lists her date of birth,
but does not explicitly and separately cite his source for this
particular piece of information.
But considering the totality of the circumstances, and ap-
plying common sense, we find it abundantly clear that there
were very good reasons for the state judge to think ABC was
a child at the relevant times. The magistrate judge and the dis-
trict judge each performed a superb analysis demolishing
Schenck’s argument. For example, the magistrate judge noted
6 No. 20-2353
that the warrant application showed Schenck had a juvenile
case filed against him in 2011. So the oldest he could have
been at that time in 2011 was 17. So for ABC to have been an
adult in February 2019 when Bauman applied for the search
warrant, Schenck would have had to have fathered her when
he was a very young child himself:
For ABC to have been 18 years old in February 2019,
Schenck would have had to have fathered her when he
was six or seven years old. Common sense and a rudi-
mentary knowledge of human reproductive biology
lead to the conclusion that ABC must have been a mi-
nor at the time Det. Bauman applied for the challenged
warrant.
(R. & R., A-8, p. 8.)
Also, the district judge correctly noted that a fair reading
of the affidavit suggests that Bauman learned all the infor-
mation in paragraph 2 from Buccellato. Paragraph 2 opens by
referencing Buccellato and his involvement in this matter.
Paragraph 2 explicitly references Buccellato as the source of
the report that Garecht said Davis made allegations. And par-
agraph 2 explicitly references Buccellato as the source of the
report of an interview with Davis about the allegations. More-
over, Bauman goes on in the following paragraphs to explain
his investigation. Each of those paragraphs contains infor-
mation Bauman received from a particular source. Paragraph
3 contains information from Davis. Paragraph 4 contains in-
formation from Flores, who interviewed Melissa Schenck.
Paragraph 5 contains information from a further interview
with Davis. Paragraph 6 contains information from Enget.
Paragraph 7 contains information from the Wisconsin Circuit
Court Access database. So the structure of paragraph 2 itself,
No. 20-2353 7
which mirrors the structure of the other paragraphs, shows
that Bauman’s immediate source for ABC’s date of birth was
Buccellato. We have never required an application for a search
warrant to have an explicit, separate citation for every piece
of information in all circumstances.
But Schenck remains unsatisfied. He argues on appeal that
even if Buccellato is the source of ABC’s date of birth listed in
paragraph 2, there is nothing in the affidavit about how Buc-
cellato knows this information. It seems Schenck did not raise
this argument properly below, but it also seems the govern-
ment does not urge forfeiture. But we need not wade through
an analysis of forfeiture and potential forfeiture of forfeiture.
Nor need we weigh in on whether a reference to only Buccel-
lato as the source would be enough. It is easier to note that
paragraph 2 does reflect the ultimate source for ABC’s date of
birth: Christina Davis, ABC’s mother. We agree with the mag-
istrate judge: “Common sense suggests—and it is imminently
reasonable to infer—that Davis provided the [birth date of
ABC] to Garecht, who passed [that date] to Buccellato, who
passed [it to] Bauman, who put [it] into his warrant applica-
tion.” (R. & R., A-8, p. 7.) Schenck does not question how Da-
vis knows her daughter ABC’s birthday. Besides, the affidavit
need not prove the truth of its every assertion beyond a rea-
sonable doubt. Probable cause does not even require proof by
a preponderance of the evidence. United States v. Jones, 763
F.3d 777, 795 (7th Cir. 2014).
Schenck also argues the affidavit failed to establish a rea-
sonable basis to think ABC was his child. This is significant
because the fact of his age and the fact that he is the biological
father of ABC are part of the grounds (but not the only
grounds) to think ABC was a child. But, again, Schenck’s
8 No. 20-2353
argument fails. The district judge correctly found, for reasons
already discussed regarding ABC’s date of birth, that “the af-
fidavit attributes that information to Buccellato, who got it ul-
timately from Davis, perhaps through Garecht, the social
worker.”
Schenck also argues the affidavit failed to establish a rea-
sonable basis to think the images were pornographic. This is
significant because “mere nudity” is not pornographic in this
context. He maintains that the officers had probable cause
only to think they would find an image of female genitalia.
“But, so what? ‘Mere nudity’ is not lewd,” he argues. (Appel-
lant’s Br., p. 21.) He argues nudity is only lewd when it in-
cludes an unnatural or unusual focus on the child’s genitals.
The search warrant cited section 948.12(1m) of the Wiscon-
sin Statutes, which prohibits possession of a photograph of a
child engaged in “sexually explicit conduct.” Wis. Stat.
§ 948.12(1m). Wisconsin defines “sexually explicit conduct”
as including “Lewd exhibition of intimate parts.” Id.§ 948.01(7)(e). Before the instant crime, the Supreme Court of
Wisconsin explained three concepts generally included in de-
fining “lewd” and “sexually explicit”:
First, the photograph must visibly display the child’s
genitals or pubic area. Mere nudity is not enough. Sec-
ond, the child is posed as a sex object. … The photo-
graph is lewd in its “unnatural” or “unusual” focus on
the juvenile’s genitalia … . Last, the court may remind
the jurors that they should use these guidelines to de-
termine the lewdness of a photograph but they may
use common sense to distinguish between a porno-
graphic and innocent photograph.
No. 20-2353 9
State v. Petrone, 468 N.W.2d 676, 688 (Wis. 1991), overruled in
part on other grounds by State v. Greve, 681 N.W.2d 479, 489 n.7
(Wis. 2004). After the instant crime, Wisconsin codified the
definition of “Lewd exhibition of intimate parts” as “the dis-
play of less than fully and opaquely covered intimate parts of
a person who is posed as a sex object or in a way that places
an unnatural or unusual focus on the intimate parts.” Id. §
948.01(1t). Wisconsin defines “Intimate parts” as including
the “vagina or pubic mound of a human being.” Id. §
939.22(19).
Federal law is similar. Schenck pleaded guilty to violating
18 U.S.C. § 2251(a), production of child pornography. That
statute prohibits using a minor to engage in “any sexually ex-
plicit conduct for the purpose of producing any visual depic-
tion of such conduct … .” 18 U.S.C. § 2251(a). The Code de-
fines “sexually explicit conduct” to include the “lascivious ex-
hibition of the anus, genitals, or pubic area of any person.” Id.§ 2256(2)(B)(iii). 2 The Code does not define “lascivious exhi-
bition.” We have recognized that “more than nudity is re-
quired to make an image lascivious; the focus of the image
must be on the genitals or the image must be otherwise sex-
ually suggestive.” United States v. Griesbach, 540 F.3d 654, 656
(7th Cir. 2008). Whether an image is lascivious “is left to the
factfinder to resolve, on the facts of each case, applying com-
mon sense.” United States v. Russell, 662 F.3d 831, 843 (7th Cir.
2011).
Again, Schenck’s argument fails. The affidavit quotes
Schneibel saying Schenck sent pictures of female genitalia.
2This amended version of the definition took effect after the instant
crime. But the differences are immaterial here.
10 No. 20-2353
The word used is vulgar slang. These are not descriptions of
innocent photos containing mere non-lewd nudity. We agree
with the district judge that the vulgar word “unquestionably
connotes a focus on the genitals … .” We reject as frivolous the
argument than an image so labeled would not likely be sex-
ually explicit. And the complete content and context of the af-
fidavit also gave the issuing judge ample grounds to find
probable cause that a search would produce evidence of
crime. Besides, the affidavit need not prove the search will de-
finitively produce evidence of crime.
Invoking Ferris Bueller’s Day Off, the magistrate judge com-
pares Schenck to a character who looks askance at Georges
Seurat’s A Sunday Afternoon on the Island of La Grande Jatte
hanging in the Art Institute of Chicago. The famous painting
employs pointillism. Small dots of color—indecipherable in
isolation—add up to an intelligible, stunning, tranquil whole.
Schenck tries to criticize a tiny fraction of dots, or the tiny
space between a few dots, but he misses the whole picture.
IV.
Schenck’s other arguments do not require further discus-
sion. The district judge did not err in denying suppression.
We affirm.