United States v. Gayle Patrick , 365 F. App'x 834 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 17 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 09-30113
Plaintiff - Appellee, D.C. No. CR-08-105-GF-SEH
v.
MEMORANDUM *
GAYLE EVERETT PATRICK,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted February 4, 2010
Seattle, Washington
Before: W. FLETCHER and RAWLINSON, Circuit Judges, and LASNIK, **
Chief District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Robert S. Lasnik, United States Chief District Judge
for the Western District of Washington, sitting by designation.
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Gayle Everett Patrick appeals his jury conviction and sentence for
possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).
Patrick’s home computer contained over 2,800 images of child pornography,
which were initially discovered by a computer repair technician who reported what
he saw to local law enforcement.
On appeal, Patrick contends that the search warrants for his computer were
not supported by probable cause. This court has explained, “To withstand review,
we must determine that the warrant application made a sufficient showing that
there was probable cause for the magistrate to believe that the pictures likely to be
found on [the defendant’s] computer depicted: (1) sexually explicit conduct; and
(2) a minor engaged in that conduct.” United States v. Battershell, 457 F.3d 1048,
1051 (9th Cir. 2006). In this case, the computer technician informed law
enforcement that he personally observed images on Patrick’s computer of “very
young girls in sexual acts, and some were fully undressed.” ER 234. The
application for the search warrant indicated that the computer technician had
observed on Patrick’s computer “pornographic pictures of children involved in
sexual acts.” ER 99. The warrant application continued, “Scheffelmear saw what
he described as pictures of young children engaged in sexual activities.
Scheffelmear estimated that the children so depicted were younger than sixteen
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years of age.” ER 100. The warrant application described conduct that falls within
the statutory definition of “sexually explicit conduct.” 18 U.S.C. § 2256(2)(A).
Accordingly, the affidavit in this case met both of the Battershell requirements and
was sufficient to demonstrate probable cause.
Patrick complains that the technician’s report was uncorroborated and
unreliable. Corroboration was not required under the circumstances because the
technician’s report was based on first-hand knowledge and reliable. Because the
citizen informant did not provide his information anonymously, he could have
been subject to prosecution if he was untruthful, which supports a finding of
reliability. Battershell, 457 F.3d at 1052. Moreover, there were no inconsistencies
in the technician’s report, no evidence of any motive to lie, and no evidence of
other issues that should have caused the officers or the justice of the peace who
issued the warrant to question his veracity. Although Patrick complains that the
technician’s description of what he saw was insufficiently detailed and the warrant
application failed to attach copies of the pornographic images, neither additional
description nor attachment of copies was required because the images depicted
pornographic conduct. See, e.g., United States v. Hurt, 795 F.2d 765, 772 (9th Cir.
1986), as amended, 808 F.2d 707, 708 (9th Cir. 1987) (“Any rational adult person
can recognize sexually explicit conduct engaged in by children under the age of 16
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when he sees it.”); Battershell, 457 F.3d at 1053 (explaining that “failing to include
a photograph in a warrant application is not fatal to establishing probable cause;”
“a judge may properly issue a warrant based on factual descriptions of an image.”).
Therefore, the warrant application to seize the computer was supported by probable
cause. Although Patrick contends that the warrant application to search its
contents was also deficient, that contention is based on the same arguments set
forth above and fails for the same reasons. In addition, by that point, Patrick had
made incriminating admissions that the child pornography images on the computer
were his. The warrants were supported by probable cause.
Patrick also argues that the district court erred in refusing to allow him to
cross-examine the local sheriff regarding his statement in the warrant application
that people who possess child pornography can hide images and “booby trap” the
computer to avoid detection. However, the topic was well beyond the scope of
direct examination and was undisputedly not relevant to the sheriff’s bias or
motivation. In addition, the district court permitted Patrick to briefly cross-
examine the sheriff on the topic, and it permitted him to cross-examine the
government’s forensic examiner regarding the same issue. The testimony elicited
from both witnesses was sufficient to permit Patrick to later argue his theory to the
jury. Accordingly, the district court did not err.
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Patrick also contends that there was insufficient evidence to convict him of
knowingly possessing child pornography. However, there was ample evidence to
convict: at trial, Patrick stipulated that 2,823 images of child pornography were
found on his computer, that those images had traveled in interstate or foreign
commerce via the Internet, and that he was the owner of the computer. Moreover,
there was evidence that only Patrick had access to the password-protected files on
the computer where the pornographic images were located.
Although Patrick contends that his sentence was too long for a seventy-one-
year-old first-time offender, Patrick’s sentence was not unreasonable given the
number and nature of the images and his refusal to accept responsibility. The
district court also appropriately considered the advisory Sentencing Guidelines and
the 18 U.S.C. § 3553(a) factors.
AFFIRMED.
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FILED
U.S. v. Patrick, Case No. 09-30113 FEB 17 2010
Rawlinson, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the result.