United States v. Gene Schave ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 22-1305
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United States of America
Plaintiff - Appellee
v.
Gene Paul Schave
Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: October 20, 2022
Filed: December 16, 2022
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Before LOKEN, GRUENDER, and GRASZ, Circuit Judges.
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GRASZ, Circuit Judge.
Gene Paul Schave was convicted by a jury of his peers for possession of child
pornography. Schave challenges the district court’s 1 denial of his motion to suppress
and admission of certain evidence. We affirm.
1
The Honorable Eric C. Tostrud, United States District Judge for the District
of Minnesota, adopting the report and recommendation of the Honorable Becky R.
Thorson, United States Magistrate Judge for the District of Minnesota.
I. Background
The Minneapolis Police Department received Cybertips2 connecting child
pornography to a residence on Como Avenue in Minneapolis. The tips were
generated by the computer search engine Microsoft Bing, which flagged eight
images as matching child-exploitation images. Those images were associated with
four IP addresses 3 assigned to Paul Sutton at the Como residence.
Minneapolis Police Officer Dale Hanson began to investigate. Officer
Hanson confirmed that Sutton lived at the Como residence. But he discovered
Schave lived there, too. Officer Hanson learned Sutton had a previous conviction
for molesting a child, and Schave had a previous conviction for possession of child
pornography. Officer Hanson also noticed a room at the Como residence was
available for rent.
Based on his extensive experience investigating internet exploitation of
children, Officer Hanson suspected the Como residence was being used to access
child pornography. Officer Hanson submitted a search warrant application
alongside an affidavit to a Minnesota state court. The state judge then issued a
warrant to search the Como residence. Law enforcement executed the warrant and
found child pornography on an electronic tablet that was plugged in and placed
inside the nightstand next to Schave’s bed. Schave was indicted for possession of
child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2).
Schave filed a motion to suppress evidence gathered during the search. After
a hearing on the motion, the magistrate judge concluded there was no Fourth
2
Cybertips are reports generated by an online service provider that illegal
activity is taking place on its network.
3
An IP address is a unique numerical label associated with a device connected
to the internet.
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Amendment violation. Over Schave’s objections, the district court adopted the
recommendation and denied the motion to suppress.
The government later filed a motion in limine. It sought to introduce evidence
under Rule 414 of the Federal Rules of Evidence, including Schave’s prior
conviction for possession of child pornography and past admissions of molesting
children. Over Schave’s objections, the district court admitted almost all the
evidence. A jury ultimately found Schave guilty of possessing child pornography.
II. Analysis
Schave timely appealed the denial of his motion to suppress and the admission
of evidence under Rule 414.
A. Motion to Suppress
Schave first challenges the district court’s denial of his motion to suppress,
arguing the warrant was not sufficiently particular and lacked the requisite nexus.
We review the district court’s factual findings for clear error and the ultimate
conclusion of whether the Fourth Amendment was violated de novo. United States
v. Hay, 46 F.4th 746, 750 (8th Cir. 2022).
We begin with particularity. Schave argues the warrant runs afoul of the
Fourth Amendment because it did not particularly describe the place to be searched.
Instead of authorizing a search of the Como residence, Schave insists the Fourth
Amendment required the issuing judge to limit the warrant to Sutton’s room. We
disagree.
The Fourth Amendment provides “no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing the place to be
searched.” U.S. Const. amend. IV. “The Fourth Amendment’s particularity
requirement is a standard of practical accuracy rather than a hypertechnical one.”
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United States v. Maccani, 49 F.4th 1126, 1131 (8th Cir. 2022) (cleaned up) (quoting
United States v. Summage, 481 F.3d 1075, 1079 (8th Cir. 2007)). We consider “the
purpose for which the warrant was issued, the nature of the items to which it is
directed, and the total circumstances surrounding the case.” United States v. Fiorito,
640 F.3d 338, 346 (8th Cir. 2011) (quoting Milliman v. Minnesota, 774 F.2d 247,
250 (8th Cir. 1985)).
Here, the warrant authorized law enforcement to search the Como residence.
The primary purpose of the warrant was to search the property for child pornography
because there were four IP addresses flagged for child pornography that were
connected to the physical address. While the IP addresses were registered to Sutton,
Officer Hanson’s affidavit explained it is common for one resident to pay for the
internet while other residents use it. Given the number of IP addresses and the reality
that child pornography is frequently stored in digital format, there was a fair
probability that child pornography would be located on multiple devices within the
Como residence. Most importantly here, Officer Hanson’s affidavit informed the
court that two different men who lived at the address were registered sex offenders,
including Schave, who had a prior conviction for possessing child pornography.
Schave nonetheless insists the warrant was improper because Officer Hanson
should have investigated whether anyone other than Sutton had access to the entire
property and internet. Adopting this reasoning despite the quantity and substance of
evidence before the state judge in this child pornography case would risk turning the
Fourth Amendment into a hypertechnical exercise. Doing so would also verge on
demanding perfection before obtaining a warrant—a measure the Fourth
Amendment does not demand. See United States v. Pitts, 173 F.3d 677, 680 (8th
Cir. 1999).
Schave next analogizes rented rooms within the dwelling to apartment units.
See Maryland v. Garrison, 480 U.S. 79, 85 (1987). He reasons the warrant was
unconstitutional because it did not limit the search to Sutton’s room. To be sure, the
necessary degree of specificity under the Fourth Amendment depends on the
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circumstances. United States v. James, 3 F.4th 1102, 1106 (8th Cir. 2021). And it
is true that what once was a single-family home can be converted to contain separate
living units. But under these circumstances, we are satisfied the search warrant did
not violate the Fourth Amendment’s particularity requirement by authorizing a
search of the entire residence.
For similar reasons, we reject Schave’s argument that there was not a
sufficient nexus between the child pornography and the Como residence. Our
precedent requires “a ‘nexus’ between the evidence to be seized and the place to be
searched, considering ‘the nature of the crime and the reasonable, logical likelihood
of finding useful evidence.’” United States v. Smith, 21 F.4th 510, 515 (8th Cir.
2021) (quoting United States v. Johnson, 848 F.3d 872, 878 (8th Cir. 2017)). “The
question is whether there was a reasonable probability that evidence of child-
pornography crimes would be found on the electronic devices . . . inside the house.”
United States v. Green, 954 F.3d 1119, 1123 (8th Cir. 2020). Under these standards,
we previously rejected a nexus argument when law enforcement obtained a search
warrant after an account requested child pornography, that account was affiliated
with an IP address, and that IP address was registered to the address law enforcement
searched. Id.In this case, multiple child pornography images were flagged by a search
engine, those images were affiliated with four IP addresses, and those IP addresses
were registered to the address that was searched. In addition, the state court was
aware that Schave had a previous conviction for possession of child pornography
and lived at the address flagged for child pornography. Considering these
circumstances, we conclude there was a sufficient nexus between the evidence to be
seized and the place to be searched.
In sum, the district court did not err by denying Schave’s motion to suppress.
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B. Admission of Evidence
Schave also challenges the district court’s admission of evidence under Rule
414 of the Federal Rules of Evidence. Evidentiary rulings are reviewed for abuse of
discretion. United States v. Weber, 987 F.3d 789, 793 (8th Cir. 2021). A district
court’s interpretation and application of the rules of evidence are reviewed de novo.
United States v. Willins, 992 F.3d 723, 726 (8th Cir. 2021).
Rule 414(a) provides: “In a criminal case in which a defendant is accused of
child molestation, the court may admit evidence that the defendant committed any
other child molestation.” Fed. R. Evid. 414(a). Here, the charged crime of
possession of child pornography falls under Rule 414’s definition of “child
molestation.” Fed. R. Evid. 414(d)(2)(B); 18 U.S.C. § 2252. If evidence falls under
Rule 414(a), it can be used for any relevant purpose, including propensity to commit
the offense and a sexual interest in minors. United States v. Splettstoeszer, 956 F.3d
545, 547 (8th Cir. 2020); United States v. Bartunek, 969 F.3d 860, 864 (8th Cir.
2020). Rule 414 reveals a “strong legislative judgment that evidence of prior sexual
offenses should ordinarily be admissible.” United States v. LeCompte, 131 F.3d 767,
769 (8th Cir. 1997).
Schave first argues the district court erred by admitting evidence he previously
molested prepubescent girls and evidence related to his prior conviction for
possession of child pornography. “Evidence of a prior child molestation is relevant
if it was ‘committed in a manner similar to the charged offense.’” United States v.
Emmert, 825 F.3d 906, 909 (8th Cir. 2016) (quoting United States v. Never Misses
A Shot, 781 F.3d 1017, 1027 (8th Cir. 2015)).
We have affirmed a district court’s admission of Rule 414 evidence of prior
sexual abuse of minor females in a child pornography case because the abuse was
probative of the defendant’s interest in underage girls. Id. In doing so, we relied on
the similar ages of the sexual abuse victims and the girls depicted in the child
pornography. Id. We also relied on evidence the defendant “performed or possessed
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images depicting similar explicit acts on each victim.” Id.; see also Splettstoeszer,
956 F.3d at 548 (observing the admitted Rule 414 evidence “tracks” the content of
the child pornography).
The same reasoning applies here. The testimony at trial describes Schave
abusing young females by touching or examining their genitalia. The indictment
describes child pornography involving young females and similar conduct. Further,
the district court “tempered the prejudicial effect of this evidence by providing a jury
instruction on propensity evidence.” Emmert, 825 F.3d at 909. We agree with the
district court that, under these circumstances, evidence related to Schave’s prior
sexual abuse of young girls shows a sexual interest in prepubescent females.
We also agree with the district court that Schave’s prior conviction for
possession of child pornography has probative value because of its similarity to the
charged offense. A prior offense must be “similar enough” to the charged crime so
as “to be probative of the defendant’s propensity to commit that specific offense.”
United States v. Luger, 837 F.3d 870, 874 (8th Cir. 2016). We have held, for
example, a district court did not abuse its discretion by admitting evidence about a
defendant’s prior child pornography conviction because the prior conviction was
“basically the same crime, the same criminal type of conduct.” United States v.
Stefanyuk, 944 F.3d 761, 764 (8th Cir. 2019). So too here. In 2010, Schave was
convicted of possessing child pornography depicting prepubescent females, and
those images were found on an electronic device in his bedroom. In this case, Schave
was charged with possession of child pornography depicting prepubescent females,
and those images were found on an electronic device in his bedroom.
Lastly, Schave insists the district court erred by allowing Rule 414 testimony
that went “well beyond the mere fact” of his other acts and that delved “into the
minute details.” In other words, he believes the district court’s balancing of Rules
403 and 414 resulted in the admission of unfairly prejudicial evidence.
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A district court must balance admissible evidence under Rule 414 with Rule
403. Splettstoeszer, 956 F.3d at 547; LeCompte, 131 F.3d at 769. Under Rule 403,
a “court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403. “Unfair
prejudice means an undue tendency to suggest decision on an improper basis,
including evidence which is so inflammatory on its face as to divert the jury’s
attention from the material issues in the trial.” United States v. Richardson, 40 F.4th
858, 867 (8th Cir. 2022) (quoting United States v. Huyck, 849 F.3d 432, 440 (8th
Cir. 2017)). A “district court’s balance of the prejudicial and probative impacts of
evidence is accorded great deference.” Never Misses A Shot, 781 F.3d at 1027
(quoting United States v. Crow Eagle, 705 F.3d 325, 328 (8th Cir. 2013)). But that
discretion is not unlimited. See id. at 1028 & n.6.
To decide whether a district court properly balanced the probative value of the
proposed Rule 414 evidence with the risk of unfair prejudice under Rule 403, we
consider whether the district court placed limits on the testimony and provided
cautionary jury instructions. Emmert, 825 F.3d at 909; Crow Eagle, 705 F.3d at 328.
The district court in this case issued cautionary jury instructions about the Rule 414
evidence. The district court also excluded one piece of evidence: Schave’s sexual
behavior while in treatment. And while the district court acknowledged evidence of
prior sexual abuse presented a risk of unfair prejudice because the government
already planned to introduce evidence regarding Schave’s propensity, the district
court ultimately admitted all the evidence related to Schave molesting children.
The government’s presentation of Rule 414 evidence at trial was expansive,
including four witnesses. Two of those witnesses provided straightforward Rule 414
testimony. Officer Hanson testified that he investigated Schave in 2010, discovered
Schave was using peer-to-peer file sharing to distribute child pornography, located
child pornography on Schave’s computer, and learned Schave was ultimately
convicted under state law for possession. Bobbie Chevalier-Jones testified that, as
Schave’s supervised release agent, she was familiar with his prior child pornography
conviction and sexual interest in prepubescent girls.
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The other two witnesses went beyond the mere presence of a conviction or
Schave’s sexual interests. Ann Moran, Schave’s probation officer, described the
images related to the prior conviction as depicting pubescent and prepubescent
females. Schave told Moran that he searched for three- and four-year-old children
but preferred eight- to twelve-year-old girls because of “their slim, undeveloped
shape.” Schave reported that he used the images for “arousal and masturbation
purposes,” viewing child pornography on “five to six sittings for ten to 12 hours per
sitting, masturbating one to two times daily.”
Moran then testified she asked Schave whether he had sexual contact with any
minor. While he originally denied any such contact, Schave eventually admitted to
multiple instances of molesting children. All victims were female and children of
people Schave knew. Moran was permitted to describe each incident with each child
in extended, sexually graphic, and inflammatory detail. The first victim was a five-
year-old developmentally disabled female. Moran described Schave’s multiple
incidents of sexual contact with the child. A second victim was an eight-year-old
female Schave abused on multiple occasions, a third victim was a seven-year-old
female, and a fourth victim was a two- to three-year-old female.
Annette Maurer was the next witness who discussed evidence covered by Rule
414. Maurer was Schave’s first supervised release agent. She described a letter,
published to the jury, in which Schave apologized for lying to her and admitted he
had “other undisclosed victims.” The first victim discussed in the letter was a two-
to three-year-old girl. The second was a nine-year-old girl, and the third was a four-
year-old girl. Maurer, like Moran, provided graphic descriptions of the molestation.
We are troubled by the quantity and level of detail presented to the jury as
Rule 414 evidence. While Schave’s prior molestation was relevant for the purpose
of establishing his sexual interest in prepubescent girls, the evidence went beyond
the mere presence of his interest. See United States v. Kelly, 510 F.3d 433, 438 (4th
Cir. 2007) (crediting the government’s presentation of an official conviction record
under Rule 414 rather than “inflammatory testimony”). When evaluating a district
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court’s balancing under Rules 403 and 414, the D.C. Circuit has considered, among
other factors, whether the Rule 414 evidence was “especially graphic” in the context
of the crimes for which the defendant was charged. United States v. Lieu, 963 F.3d
122, 128–29 (D.C. Cir. 2020). Here, the Rule 414 testimony included numerous
graphic descriptions of child molestation after the government introduced evidence
related to Schave’s propensity to commit the offense and sexual interest in
prepubescent females. These graphic descriptions present a particular risk of undue
prejudice given the prior, uncharged sexual offenses are arguably more serious and
therefore more prejudicial, Luger, 837 F.3d at 874, than the charged crime. Cf.
United States v. Thompson, 653 F.3d 688, 692 (8th Cir. 2011) (noting distribution
of child pornography “is a more serious offense than mere possession”).
Even assuming the district court abused its discretion here, we conclude the
error is harmless in light of the other overwhelming evidence of Schave’s guilt. “We
will not reverse a conviction if an error was harmless.” United States v. Petroske,
928 F.3d 767, 771 (8th Cir. 2019) (alteration omitted) (quoting United States v.
Donnell, 596 F.3d 913, 919 (8th Cir. 2010)). “The test for harmless error is whether
the erroneous evidentiary ruling had a substantial influence on the jury’s verdict.”
Id.; see also Fed. R. Crim. P. 52(a).
The electronic tablet containing thousands of child pornography images was
plugged in and placed inside the nightstand next to Schave’s bed. Schave
acknowledged the tablet containing child pornography was his and that he did not
have permission from his supervising authorities to possess one. He even admitted
he used the tablet in the past, which is hardly surprising given Schave’s other ties to
the tablet. Schave also told the jury the tablet was plugged in as “an emergency
backup.”
Although Schave told the jury he had no idea the pornography was on the
tablet, the jury considered other evidence painting a more complete picture. When
Officer Hanson examined the tablet while executing the search warrant, a child
pornography image immediately popped up. A forensic examination of the micro
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SD card inside the tablet revealed child pornography, and some of the images were
added years before Schave moved to the Como residence. Schave’s personal
documents were also on the tablet, which were added after child pornography. The
child pornography also focused on prepubescent females, which matches the images
involved in Schave’s prior conviction and the victims of his molestation.
At trial Schave blamed Sutton, who Schave let use the tablet for three days.
Schave, however, did not initially point to Sutton. Instead, when Officer Hanson
originally asked Schave whether there was child pornography on any of his devices,
he responded, “I don’t know.” After Schave was arrested, Chevalier-Jones told
Schave there might be federal charges against him. Schave responded, “You know
what’s on there and I know what’s on there and they know what’s on there, so what’s
the point?” Schave told the jury he was not confessing to possession of child
pornography. But he also admitted at trial that he lied on more than one occasion
about molesting prepubescent females.
As this overview of the trial illustrates, the non-Rule 414 evidence connecting
Schave to the child pornography on his tablet was overwhelming. And the
government’s case was only marginally strengthened by the excess propensity
evidence. See Never Misses A Shot, 781 F.3d at 1028; see also United States v.
Piette, 45 F.4th 1142, 1158 (10th Cir. 2022). We thus hold any error in admitting
evidence under Rule 414 was harmless.
III. Conclusion
The district court did not err in denying the motion to suppress, and any error
in balancing Rules 403 and 414 of the Federal Rules of Evidence was harmless. We
therefore affirm the judgment.
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