United States v. Robert Franz , 772 F.3d 134 ( 2014 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-2406
_____________
UNITED STATES OF AMERICA
v.
ROBERT FRANZ,
Appellant
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 12-cr-00003-1)
District Judge: Honorable Berle M. Schiller
_______________
Argued
September 9, 2014
Before: FISHER, JORDAN, and HARDIMAN Circuit
Judges.
(Filed: November 4, 2014)
_______________
Richard Q. Hark [ARGUED]
Hark & Hark
1835 Market Street, Suite 2626
Philadelphia, PA 19103
Counsel for Appellant
Alicia M. Freind [ARGUED]
Robert A. Zauzmer
Office of United States Attorney
615 Chestnut Street - #1250
Philadelphia, PA 19106
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Robert Franz appeals from his conviction in the United
States District Court for the Eastern District of Pennsylvania
on one count of receipt of child pornography in violation of
18 U.S.C. § 2252(a)(2). The appeal requires us to decide
whether the exclusionary rule applies when agents executing
an otherwise-valid search warrant fail to provide to the
homeowner a list of items sought. The appeal also raises
questions about a separate warrant for the search of Franz’s
computer and about several evidentiary issues, including
whether evidence that was shown to the jury but later stricken
from the case was prejudicial and whether the remaining
evidence was sufficient to send the case to the jury. We will
affirm.
2
I. Background
In 2009, the Bureau of Land Management (“BLM”)
learned that Franz may have stolen a wooly mammoth tusk
and other paleontological items from BLM-managed land in
Alaska and smuggled them to his house in Plymouth Meeting,
Pennsylvania. The BLM’s interest in Franz arose while it
was conducting an investigation of Equinox Wilderness
Expeditions (“Equinox”), an outfitting and wilderness-guide
business suspected of taking expeditions onto protected BLM
land without obtaining proper permits or abiding by BLM
regulations. The Equinox website displayed several
photographs from previous expeditions, including one
showing Franz posing with the fossilized mammoth tusk.
As part of the BLM’s investigation into Equinox, it
sent an undercover agent to participate in one of Equinox’s
expeditions in June 2009. Franz participated in that trek, and
the undercover agent interacted with him on several
occasions. Franz volunteered that he had gone on fourteen
prior Arctic expeditions since 1988, including four with
Equinox. He also noted his appearance on the Equinox
website, pointing out that he was “the one holding the
mammoth tusk.” (App. at 75.) He elaborated that he had a
36-inch mammoth tusk and a 6- to 8-inch mammoth tusk
from earlier trips, both on display in his house. Franz
conveyed to the undercover agent his ideas on the importance
of memorializing their trip, and he offered to collect
photographs from the participants in the expedition and
assemble a compact disc to send to all of the participants.
Based on the evidence obtained from the undercover
investigation and from the website, the BLM sought a search
warrant for Franz’s house.
3
A. The Nardinger Warrant
With the assistance of federal prosecutors, BLM Agent
Joseph Nardinger prepared the warrant application. Where
the face sheet of the warrant asked for a description of the
property that the agents expected to seize, it read, “See
attached sheet.” One of the attachments, Attachment B, listed
a series of items to be seized,1 including the mammoth tusks,
other illegal artifacts, maps of Alaska, financial records,
photographs, emails, and any related information contained
on computer hard drives or other electronic storage devices.
A magistrate judge approved the warrant (the “Nardinger
Warrant”) on July 30, 2009. The United States Attorney
moved to seal the search warrant, affidavit, and
accompanying papers, citing “the government’s interest in
protecting cooperating witnesses, maintaining the secrecy of
grand jury investigations, and ongoing criminal
investigations.” (App. at 66.) The magistrate judge granted
the motion.
BLM agents executed the warrant on August 3, 2009.
Franz was present at the time, and Nardinger provided Franz
with a copy of the face sheet of the warrant. He did not,
however, give him copies of the warrant attachments, even
when Franz requested them. Nardinger mistakenly believed
that, because the warrant and affidavit had been sealed, he
could not reveal those attachments. Nardinger nonetheless
explained to Franz the circumstances giving rise to the
warrant, including the allegation of stealing a mammoth tusk
1
Attachment A contained a detailed description of
Franz’s house.
4
from protected lands, and he thoroughly described the items
the warrant authorized him to seize.
During the search, agents noticed that on the walls of
Franz’s house were several framed photographs of young,
nude girls. And, while searching for other items listed in
Attachment B, agents came across pamphlets containing
several images of nude minors engaged in sexually explicit
conduct.2 After consulting federal prosecutors for guidance,
the agents collected the contraband in plain view. One of the
agents briefly examined Franz’s computer to determine
whether it had too many files to search on site and whether
the files were encrypted. In doing so, he noticed a file
thumbnail depicting a partially nude girl and saw another file
name that suggested the presence of child pornography. The
agents seized, among other things, the pamphlets, the
computer, and an external hard drive. They then referred the
child pornography case to the Federal Bureau of Investigation
(“FBI”).
B. The Herrick Warrant
On August 12, 2009, FBI Special Agent Brian Herrick
obtained a warrant (the “Herrick Warrant”) to search the
digital storage devices and other items that the BLM had
2
Franz refers to the evidence as “pamphlets,” and the
government refers to the same items as “magazines.”
(Appellant’s Opening Br. at 12; Government’s Br. at 6.) The
District Court generally adopted Franz’s characterization,
although it sometimes referred to the items as picture books
or magazines. For simplicity and consistency with the
District Court, we refer to them as pamphlets.
5
seized. The Herrick Warrant was sealed, and the government
did not move to unseal it or provide a copy to Franz until
thirty-one months after issuance and over two months after
Franz’s indictment in the present case. The search conducted
pursuant to the Herrick Warrant produced two digital images
found on Franz’s external hard drive that, along with the
pamphlets, served as the basis for the charges in the present
case: an image labeled 2024372669.jpg (the “202.jpg image”)
and one labeled 196667053.jpg (the “196.jpg image”).
C. Indictments and the Motion to Suppress
In August 2010, Franz was charged with theft of
government property and conspiracy to defraud the United
States because of his smuggling of the tusk. He eventually
pled guilty to those charges and did not challenge either
warrant in that case. Then, on January 5, 2012, a grand jury
indicted him for two child pornography crimes: receipt of
child pornography in violation of 18 U.S.C. § 2252(a)(2) and
(b)(1); and possession of child pornography in violation of 18
U.S.C. § 2252(a)(4)(B).
In the ensuing prosecution, Franz filed a motion to
suppress all evidence collected pursuant to both the Nardinger
and Herrick Warrants. Among other things, he argued that
the Nardinger Warrant failed to satisfy the Fourth
Amendment’s particularity requirement. The District Court
concluded the warrant was valid at the time it was issued;
however, the Court also ruled that because Nardinger did not
provide Franz with Attachment B to the warrant, which
described the items to be seized, the warrant was facially
invalid when it was executed. The Court went on to consider
the possible deterrent effect that would be achieved by
6
excluding the evidence in this case and decided that the
exclusionary rule did not apply. It based its decision on
Nardinger’s behavior. Specifically, the Court noted that
Nardinger consulted with the United States Attorney’s Office
in deciding which documents the government would seek to
seal, he verbally described to Franz the items to be searched
for and seized when executing the warrant, and he allowed
Franz to be present during the search. The Court also noted
that the warrant was the first that Nardinger had ever prepared
or executed. Looking at the totality of the circumstances, the
Court determined that Nardinger had no intention to
wrongfully conceal the purpose of the search and that the
decision to withhold the attachments was a “reasonable
misunderstanding” based in part on unclear language in the
sealing order. Therefore, the Court concluded, no appreciable
deterrent effect would be gained by applying the exclusionary
rule.
Franz challenged the Herrick Warrant based on a lack
of particularity and probable cause, and he argued that it was
tainted by the problems with the Nardinger Warrant. The
District Court ruled that the Herrick Warrant appeared valid
on its face and that, even if the Nardinger Warrant were
invalid, the exclusionary rule did not require suppression of
evidence obtained pursuant to the Herrick Warrant.
Importantly, Franz’s motion to suppress did not include the
argument he now advances on appeal: namely, that the
government’s failure to provide Franz with a copy of the
Herrick Warrant and an inventory until thirty-one months
after it was executed violated his due process rights and Rule
41 of the Federal Rules of Criminal Procedure. Franz
advanced that argument in a motion for reconsideration,
which the District Court denied.
7
D. Trial
Franz’s trial began on February 11, 2013. The
government presented the two digital images found on
Franz’s external hard drive: the 202.jpg image, proffered as to
the receipt charge; and the 196.jpg image, proffered as to the
possession charge. Donald Justin Price testified for the
government as an expert witness in computer forensics. He
stated that he found a deleted internet browser history
showing that a user who logged in as “Robert Franz” viewed
the 202.jpg image on the internet (App. at 776-78, 807), and
later viewed it on Franz’s computer in a folder named
“Downloads” (App. at 778-80). Price explained that the
202.jpg image was also “found in a folder named ‘Internet
Downloads 14’” on Franz’s external hard drive. (App. at
770.) He further testified that an external hard drive would
not automatically name folders or files or assign them
numbers. On cross-examination, defense counsel elicited
testimony from Price that, in theory, the image file could have
come from anywhere, such as a thumb drive or compact disc.
Nevertheless, Price said that the most likely scenario was that
someone viewed it in a web browser and then downloaded
and copied it to the external hard drive. He gave similar
testimony regarding the 196.jpg image, noting that he found it
“on the external hard drive in a folder called, ‘Internet
Downloads 5.’” (App. at 771.)
The government also called as a witness Special Agent
James Wines from the FBI Child Exploitation Task Force in
New Haven, Connecticut. He testified that he knew the
identity of the girl depicted in the 202.jpg image and that he
had actually met with her. He also testified that he knew the
8
identity of the person who took the picture. The photograph
in question, he said, was taken in a bedroom in Greenwich,
Connecticut, when the girl was between nine and eleven years
old, and it was subsequently uploaded to the internet.
Prior to trial, the government had filed a motion in
limine to admit the two pamphlets as evidence for the
possession charge. On the back cover of each pamphlet was
the following inscription:
Printed in Denmark
Copyright 1973
Color Climax Corporation
Kastrupvej 124
2300 Copenhagen S
Denmark
(App. at 534.) One of the elements of the crime of possession
is that the images at issue have traveled in interstate or
foreign commerce. 18 U.S.C. § 2252(a)(4)(B). The
government argued that the publication information noted on
the pamphlets was sufficient to meet that requirement. The
government also argued that the pamphlets were self-
authenticating, see Fed. R. Evid. 902(7),3 and admissible
3
Rule 902 states, in part, “The following items of
evidence are self-authenticating; they require no extrinsic
evidence of authenticity in order to be admitted: … (7) Trade
Inscriptions and the Like. An inscription, sign, tag, or label
purporting to have been affixed in the course of business and
indicating origin, ownership, or control.” Fed. R. Evid.
902(7).
9
under an exception to the rule against hearsay, see Fed. R.
Evid. 807(a).4
Franz objected to the motion in limine, but the District
Court granted the government’s motion and allowed it to
present the pamphlets to the jury. The government displayed
selected images from the pamphlets to the jury using an
overhead projector and also provided a German-language
expert as a witness to testify that the language on the front of
the pamphlets was German and that signs visible in the
images were in German. No witness, however, was able to
prove any additional link to Germany or Denmark beyond the
language and the printed inscriptions.
After closing arguments, Franz sought acquittal,
arguing that the evidence was insufficient to establish the
elements of the crimes charged. Regarding the two
pamphlets, Franz argued that the government failed to
provide sufficient evidence that they had moved in interstate
4
Rule 807 is the so-called “residual exception” to the
hearsay rule and allows for the admission of hearsay under
the following circumstances:
(1) the statement has equivalent circumstantial
guarantees of trustworthiness; (2) it is offered as
evidence of a material fact; (3) it is more
probative on the point for which it is offered
than any other evidence that the proponent can
obtain through reasonable efforts; and (4)
admitting it will best serve the purposes of these
rules and the interests of justice.
Fed. R. Evid. 807(a).
10
commerce. The Court denied the motion for judgment of
acquittal but agreed that the pamphlets should be struck from
the record. Therefore, only the two digital images, one
supporting each count of the indictment, remained as
evidence.
Immediately after ruling on the motion for judgment of
acquittal, the Court informed the jury of its decision and
stated that the pamphlets were no longer in evidence:
I’ve also granted a motion by the defense to
exclude the two pamphlets that you saw
because there was no proof of interstate
commerce as to those two pamphlets, which the
law requires in this kind of case. We heard the
agent get on the stand and say they couldn’t
verify that this came in interstate commerce and
so on. The only thing was a copyright with no
way of knowing who printed it, what was – and
that, to me, is too tenuous a thread, so those two
pamphlets are out of the case.
(App. at 845-46.) At Franz’s request, the Court then modified
the verdict form, striking the portion of the form related to the
possession charge insofar as it referred to the pamphlets, and
leaving for that charge only a subpart that referred to the
second computer image, 196.jpg.
Again at Franz’s request, the District Court gave
further instructions regarding the pamphlets in its final charge
to the jury. First, it instructed the jury not to let the content of
any photographic evidence stir passion or prejudice against
Franz. The Court said,
11
Various photographs were admitted in evidence.
You should not let the content stir up your
emotions to the prejudice of the Defendant.
Your verdict must be based on a rational and
fair consideration of all the evidence and not on
passion or prejudice against the Defendant, the
Government, or anyone else connected with the
case.
(App. at 878.) The Court immediately followed that
instruction with a charge to disregard the pamphlets in
reaching its decision:
I have ordered that all testimony concerning the
pamphlets or magazines [be] stricken from the
record. This is not proper evidence in this case.
You must disregard it entirely. Do not consider
this evidence, including the images contained in
the pamphlets or magazines in reaching your
decision.
(Id.) The Court then clarified the evidentiary bases of the
remaining charges in the case:
At the beginning of the trial I described the
charges against the Defendant. At this time, the
charge of possession of the pamphlets or
magazines is no longer before you. … You
should not consider or be concerned with, nor
should you speculate about the reason the
charges are no longer part of this trial. The
Defendant is on trial only for the receipt and
possession of the computer images. You may
12
consider the evidence presented in the case only
as it relates to the remaining charges.
(Id.) Franz moved for a mistrial on the basis of the pamphlets
being shown to the jury, and, when that was denied, he asked
the District Court to repeat the curative instructions. The
Court denied that request but noted that the jury would have
copies of the curative instructions with them.
After deliberation, the jury found Franz guilty of
receipt of child pornography and not guilty of possession of
child pornography.5 Following trial, Franz again moved for
5
It may seem logically inconsistent that Franz was
convicted of receipt of child pornography and, at the same
time, acquitted of possession. Indeed, our sister circuits have
recognized that possession of child pornography under
§ 2252(a)(4)(B) is a lesser-included offense of receipt of child
pornography under § 2252(a)(2). United States v. Benoit, 713
F.3d 1, 14 (10th Cir. 2013); United States v. Brown, 701 F.3d
120, 127-28 (4th Cir. 2012); United States v. Muhlenbruch,
634 F.3d 987, 1003-04 (8th Cir. 2011); United States v.
Schales, 546 F.3d 965, 977-78 (9th Cir. 2008); see also
United States v. Miller, 527 F.3d 54, 64 n.10, 71-72 (3d Cir.
2008) (concluding that possession of child pornography under
§ 2252A(5)(B), which is “materially identical” to possession
under § 2252(a)(4)(B), is the lesser-included offense of
receipt of child pornography under § 2252A(a)(2), which is
“materially identical” to receipt under § 2252(a)(2) (internal
quotation marks omitted)). But any seeming inconsistency is
explained by the manner in which the government chose to
present the case, tying each digital image to a specific charge.
The possession charge on which Franz was acquitted was
13
judgment of acquittal or, in the alternative, for a new trial,
both of which the Court denied. On May 13, 2013, the Court
sentenced Franz to sixty months imprisonment, five years of
supervised release, and a $10,000 fine. This timely appeal
followed.
II. Discussion6
On appeal, Franz challenges the District Court’s denial
of his motion to suppress and his motions for judgment of
acquittal or for a new trial. Those challenges, while not
without some persuasive force, ultimately fail.
A. The Nardinger Warrant and the Motion to
Suppress7
The Nardinger Warrant was facially valid when issued
but the execution of it violated Franz’s Fourth Amendment
rights because, as presented to Franz, it did not contain a
particularized list of items to be seized. See Bartholomew v.
Pennsylvania, 221 F.3d 425, 429-30 (3d Cir. 2000)
(“[G]enerally speaking, where the list of items to be seized
based on conduct separate from that underlying the charge for
receipt.
6
The District Court had jurisdiction under 18 U.S.C.
§ 3231; we have jurisdiction pursuant to 28 U.S.C. § 1291.
7
We “review[] the District Court’s denial of a motion
to suppress for clear error as to the underlying factual
findings and exercise[] plenary review of the District Court’s
application of the law to those facts.” United States v. Perez,
280 F.3d 318, 336 (3d Cir. 2002).
14
does not appear on the face of the warrant, sealing that list,
even though it is ‘incorporated’ in the warrant, would violate
the Fourth Amendment.”). The question before us is thus not
whether there was a constitutional violation; there was.8 The
question is whether that violation necessitates the suppression
of the evidence obtained pursuant to the Nardinger Warrant.
Franz contends that the constitutional defect in the
execution of the warrant rendered it facially invalid and that
no further analysis is required or allowed. Based on the
comment in United States v. Leon, 468 U.S. 897 (1984), that
“a warrant may be so facially deficient – i.e., in failing to
particularize the place to be searched or the things to be
seized – that the executing officers cannot reasonably
presume it to be valid[,]” id. at 923, Franz argues that the
exclusionary rule applies without exception to facially invalid
warrants. He says that the District Court erred by looking
beyond the facial invalidity of the warrant and assessing
Nardinger’s culpability. He further argues that, even if
culpability is considered, the exclusionary rule should still
apply because Nardinger acted deliberately, in consultation
with federal prosecutors.
8
The government concedes a “mistake” was made in
light of Bartholomew. (Government’s Br. at 18.) But it
argues that Bartholomew was wrongly decided. We need not
spend time on that argument; sitting as a panel of this Court,
we cannot overrule prior precedent. Reich v. D.M. Sabia Co.,
90 F.3d 854, 858 (3d Cir. 1996) (“[A] panel of this court is
bound by, and lacks authority to overrule, a [precedential]
decision of a prior panel … .”).
15
We disagree and hold that there is no need to exclude
evidence based on Nardinger’s mistake in failing to present
Attachment B to Franz in executing the warrant.9 More
particularly, we reject Franz’s argument that a good-faith
analysis is unnecessary. While our case law may not always
have been clear on the need to consider good faith,10 see
United States v. Graves, 951 F. Supp. 2d 758, 769-71 & n.5
(E.D. Pa. 2013) (discussing Virgin Islands v. John, 654 F.3d
412 (3d Cir. 2011), United States v. Tracey, 597 F.3d 140 (3d
Cir. 2010), and United States v. Wright, 493 F. App’x 265 (3d
Cir. 2012)), both the Supreme Court’s precedents and our
own have been consistent in requiring a case-specific analysis
of whether the exclusionary rule applies, rather than a
categorical approach.
9
Although Attachment A was also withheld, Franz
challenges only the withholding of Attachment B. We limit
our discussion accordingly.
10
A circuit split also exists on the issue of whether an
officer’s culpability is relevant to an exclusionary rule
analysis when dealing with a facially invalid warrant.
Compare United States v. Lazar, 604 F.3d 230, 237-38 (6th
Cir. 2010) (holding that a culpability analysis does not apply
when dealing with a facially invalid warrant), with United
States v. Rosa, 626 F.3d 56, 64-66 (2d Cir. 2010) (concluding
that “[n]ot every facially deficient warrant … will be so
defective that an officer will lack a reasonable basis for
relying on it”), United States v. Allen, 625 F.3d 830, 838 (5th
Cir. 2010) (same), United States v. Hamilton, 591 F.3d 1017,
1028-29 (8th Cir. 2010) (same), and United States v. Otero,
563 F.3d 1127, 1133-34 (10th Cir. 2009) (same).
16
The Fourth Amendment provides that “no Warrants
shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” U.S. Const.
amend. IV. The exclusionary rule is a prudential doctrine
designed to enforce the Fourth Amendment by deterring law
enforcement from unreasonable searches and seizures. The
rule achieves that end by preventing the government from
relying at trial on evidence obtained in violation of the
Amendment’s strictures. Davis v. United States, 131 S. Ct.
2419, 2426 (2011); United States v. Katzin, --- F.3d ----, No.
12-2548, 2014 WL 4851779, at *3 (3d Cir. Oct. 1, 2014) (en
banc). Because it comes at the cost of hiding often crucial
evidence from a fact-finder, though, “[s]uppression of
evidence … has always been our last resort, not our first
impulse.” Hudson v. Michigan, 547 U.S. 586, 591 (2006);
see also Leon, 468 U.S. at 918 (stating that evidence should
be suppressed “only in those unusual cases in which
exclusion will further the purposes of the exclusionary rule”).
In determining whether the exclusionary rule applies,
we engage in a cost-benefit analysis, balancing the
“deterrence benefits of suppression” against its “‘substantial
social costs.’” Davis, 131 S. Ct. at 2427 (quoting Leon, 468
U.S. at 907); accord Herring v. United States, 555 U.S. 135,
141 (2009); Leon, 468 U.S. at 910. “To trigger the
exclusionary rule, police conduct must be sufficiently
deliberate that exclusion can meaningfully deter it, and
sufficiently culpable that such deterrence is worth the price
paid by the justice system.” Herring, 555 U.S. at 144; accord
Katzin, 2014 WL 4851779, at *4, 17. In other words, “the
deterrence benefits of exclusion ‘var[y] with the culpability of
the law enforcement conduct’ at issue.” Davis, 131 S. Ct. at
17
2427 (alteration in original) (quoting Herring, 555 U.S. at
143). When law enforcement “exhibit[s] ‘deliberate,’
‘reckless,’ or ‘grossly negligent’ disregard for Fourth
Amendment rights, the deterrent value of exclusion is strong
and tends to outweigh the resulting costs.” Id. (quoting
Herring, 555 U.S. at 144); accord Katzin, 2014 WL 4851779,
at *4. Similarly, “the exclusionary rule serves to deter …
recurring or systemic negligence.” Herring, 555 U.S. at 144.
“But when the police act with an objectively reasonable good-
faith belief that their conduct is lawful, or when their conduct
involves only simple, isolated negligence, the deterrence
rationale loses much of its force, and exclusion cannot pay its
way.” Davis, 131 S. Ct. at 2427-28 (citations and internal
quotation marks omitted); Herring, 555 U.S. at 137; accord
Leon, 468 U.S. at 919; Katzin, 2014 WL 4851779, at *4.
Indeed, the Supreme Court recently suggested that the
absence of culpability is dispositive of the deterrence
balancing test. See Davis, 131 S. Ct. at 2428-29 (“[T]his
acknowledged absence of police culpability dooms Davis’s
claim.”).
In Leon, the Supreme Court identified several
scenarios in which officers would not be able to establish an
objectively reasonable good-faith belief that their actions
were lawful, including reliance on a facially deficient
warrant:
[D]epending on the circumstances of the
particular case, a warrant may be so facially
deficient – i.e., in failing to particularize the
place to be searched or the things to be seized –
that the executing officers cannot reasonably
presume it to be valid.
18
468 U.S. at 923.11 Franz relies on that language to argue that,
because the Nardinger Warrant was facially deficient when it
was presented to him, we should automatically apply the
exclusionary rule. Any balancing of costs and benefits has,
he says, already been performed by the Supreme Court in
Leon. But Franz ignores the introductory language in Leon,
which conditions its discussion “on the circumstances of the
particular case.” Id.; see also id. at 918 (noting that
“suppression of evidence obtained pursuant to a warrant
should be ordered only on a case-by-case basis”).
The Supreme Court’s recent cases concerning the
exclusionary rule have focused on the culpability of law
enforcement officers, as in Herring v. United States, 555 U.S.
11We have paraphrased those scenarios as follows:
1) where the magistrate judge issued the
warrant in reliance on a deliberately or
recklessly false affidavit;
2) where the magistrate judge abandoned his or
her judicial role and failed to perform his or her
neutral and detached function;
3) where the warrant was based on an affidavit
so lacking in indicia of probable cause as to
render official belief in its existence entirely
unreasonable; or
4) where the warrant was so facially deficient
that it failed to particularize the place to be
searched or the things to be seized.
Tracey, 597 F.3d at 151.
19
135, 143-45 (2009), and on the knowledge of such officers, as
in Davis v. United States, 131 S. Ct. 2419, 2428-29 (2011).
Those cases are not, however, a departure. The Court’s
earlier applications of Leon also make clear that a fact-
specific analysis is required and that the need to weigh the
costs and benefits of exclusion is constant. So, for example,
while Leon dealt with a facially valid warrant, 468 U.S. at
902, the Supreme Court applied the reasoning of Leon to a
facially deficient warrant in Massachusetts v. Sheppard, 468
U.S. 981 (1984), a companion case issued the same day as
Leon. Rather than categorically excluding evidence due to
the facially deficient warrant, the Supreme Court examined
the circumstances of the case. Sheppard, 468 U.S. at 989-91.
The Court focused particularly on the officer’s knowledge
and actions, including his reliance on the statements of a
district attorney and the judge who issued the warrant. Id. at
989. The Court ruled that the deterrent purposes of the
exclusionary rule would not be served by suppression in that
case. Id. at 988, 990-91. The Supreme Court’s application of
Leon in Sheppard thus forecloses the argument that there is a
categorical rule that automatically resolves the question of
suppression when there is a facially deficient warrant.12
12
Franz ignores Sheppard and instead points to Groh
v. Ramirez, 540 U.S. 551 (2004), a qualified immunity case in
which the Supreme Court relied on the “facial deficiency”
language in Leon to conclude that it would have been clear to
a reasonable officer that his conduct was unlawful when he
executed a warrant that did not contain a particularized list on
its face and the supporting documents were not incorporated
by reference. Id. at 557, 565. But the Supreme Court did not
adopt a categorical rule in Groh that ignored the
reasonableness of the officer’s actions under the
20
We have, of course, followed the Supreme Court’s
lead. In United States v. Tracey, 597 F.3d 140 (3d Cir. 2010),
we addressed the application of the exclusionary rule to a
case involving a warrant that failed to incorporate an attached
affidavit that would have cured the warrant’s lack of
particularity. Id. at 149. We stated that the “limited
exceptions [identified in Leon, including the facially deficient
warrant exception,] are consistent with the approach taken in
Herring because each of these circumstances involve conduct
that is ‘deliberate, reckless, or grossly negligent,’ and thus the
benefits of deterring future misconduct ‘outweigh the costs’
of excluding the evidence.” Id. at 151 (quoting Herring, 555
U.S. at 141, 144). We then examined whether the nature of
the deficiency in the warrant made the warrant “‘so facially
deficient’ that no reasonable officer could rely on it,” id. at
152-53, and whether the officer’s actions in obtaining and
executing the warrant indicated that the deterrent purposes of
the exclusionary rule would be served, id. at 153.
circumstances. Rather, the Court considered the “glaring”
nature of the deficiency and the officer’s knowledge and
actions – including his preparation of the warrant and the
department guidelines that would have alerted him to the
deficiency. See id. at 563-64. Thus, the Court rejected the
officer’s argument that he was simply negligent, and
concluded that the warrant was “‘so facially deficient – i.e., in
failing to particularize the place to be searched or the things
to be seized – that the executing officers cannot reasonably
presume it to be valid.’” Id. at 565 (quoting Leon, 468 U.S. at
923). Groh does not contradict that an officer’s knowledge
and actions are important components of a good faith
analysis.
21
We took a similar approach in Virgin Islands v. John,
654 F.3d 412 (3d Cir. 2011), a case involving a warrant
affidavit that did not support a finding of probable cause to
search for evidence of the crime listed on the face of the
warrant. Id. at 413. After determining that one of Leon’s
four scenarios applied, we turned to the culpability of the
officer, determining that “her behavior was, at a minimum,
grossly negligent.” Id. at 420-21. Most recently, in an en
banc opinion in a case involving a warrantless search, we
rejected the argument that a good-faith analysis is applicable
only in certain situations already identified by the Supreme
Court. Katzin, 2014 WL 4851779, at *9-10 (stating that to
apply the Supreme Court’s precedent in such a limited
manner would “improperly elevate [the Court’s previous]
holding[s] above the general good faith analysis from whence
[they] came”).
Franz’s argument that a facially deficient warrant
renders Nardinger’s culpability irrelevant thus runs counter to
numerous cases emphasizing that, in examining the totality of
the circumstances, we consider not only any defects in the
warrant but also the officer’s conduct in obtaining and
executing the warrant and what the officer knew or should
have known.
Nardinger’s conduct was, on the whole, objectively
reasonable. He sought and obtained a valid warrant and acted
in consultation with federal prosecutors. See Sheppard, 468
U.S. at 989-90 (highlighting as evidence of reasonableness
the fact that the officer consulted with the district attorney
and sought a warrant from a neutral magistrate); Katzin, 2014
WL 4851779, at *15 (same); Tracey, 597 F.3d at 153
22
(same).13 The District Court found that Nardinger had “no
intention of concealing the subject matter of the warrant or
the information on Attachment B.” (App. at 21.) In
executing the search, Nardinger explained to Franz what
items the warrant authorized him to search for and seize, and
the agents did not exceed the scope of that authorization. See
Tracey, 597 F.3d at 153 (highlighting as evidence of
reasonableness that the agent who led the search told the
occupants what he was authorized to search for and limited
the search accordingly). While Franz disputes that the search
of his home was appropriately limited, he has not established
and, given the record, cannot establish that the District
Court’s finding on that point was clearly erroneous. Finally,
the District Court concluded that Franz presented no evidence
that the constitutional violation in question was “recurring or
systemic.” Herring, 555 U.S. at 144. Although Franz argues
on appeal that “this case is [a] small example of the systemic
problems in criminal investigatory practices that are
sanctioned through legal counsel” (Appellant’s Reply Br. at
5), he has cited no support for that bald assertion. Here, an
inexperienced agent made a mistake, but it appears to have
been only that: an isolated mistake.14
13
Franz appears to argue that consultation with legal
counsel somehow makes the officer’s actions more culpable.
That argument is inconsistent with Sheppard, Katzin, and
Tracey. In Katzin, however, we cautioned that we should
“not place undue weight on this factor” because prosecutors
are “not neutral judicial officers.” Katzin, 2014 WL 4851779,
at *15-16 (internal quotation marks omitted).
14
Franz takes issue with the District Court’s finding
that this was the first warrant that Nardinger had applied for
and executed. But Franz has not shown that this finding is
23
Our conclusion is confirmed by looking at the
magistrate judge’s order sealing the attachment, which
Nardinger thought prohibited him from showing the
attachment to Franz. The order stated that “agents executing
the search warrant are authorized, as required by
Fed.R.Crim.P. 41(d), to leave a copy of the search warrant
and a receipt for the property seized with the person searched
or at the property searched.” (App. at 68.) As the District
Court noted, that language is somewhat unclear, and the
officer understood from it that he was authorized to leave the
warrant face sheet and an inventory but not the supporting
documents. In Sheppard, the Supreme Court emphasized that
a reasonable officer should be expected to rely on a judge’s
assurances that a particular course of action is authorized, not
to disregard those assurances. See 468 U.S. at 989-90 (“[W]e
refuse to rule that an officer is required to disbelieve a judge
who has just advised him, by word and by action, that the
warrant he possesses authorizes him to conduct the search he
has requested.”).15 Even though Nardinger was mistaken, his
clearly erroneous.
15
The state of the law is a relevant, though not the
sole, factor in the deterrence analysis. Davis, 131 S. Ct. at
2428-29; Leon, 468 U.S. at 919; Katzin, 2014 WL 4851779,
at *6, 10-17 (“Davis did not begin, nor end, with binding
appellate precedent. Rather, binding appellate precedent
informed – and ultimately determined – the Supreme Court’s
greater inquiry: whether the officers’ conduct was deliberate
and culpable enough that application of the exclusionary rule
would ‘yield meaningfu[l] deterrence,’ and ‘be worth the
price paid by the justice system.’” (quoting Davis, 131 S. Ct.
at 2428)). Based on Bartholomew, Nardinger should have
known that he was required to present Attachment B to Franz,
24
reliance on the sealing order mitigates the blame that
necessarily follows his error.
In light of the foregoing, we cannot say that Nardinger
acted deliberately, recklessly, or with gross negligence in
executing the warrant. Nardinger should have shown the
attachment to Franz, but that misstep – stemming from his
inexperience and misunderstanding of the magistrate judge’s
order – does not mean that he deliberately violated Franz’s
Fourth Amendment rights. In short, application of the
exclusionary rule would provide little deterrent effect and
would not justify the costs of suppression. Therefore, we will
affirm the District Court’s denial of Franz’s motion to
suppress the evidence obtained pursuant to the Nardinger
Warrant.
see 221 F.3d at 429-30 (“[G]enerally speaking, where the list
of items to be seized does not appear on the face of the
warrant, sealing that list, even though it is ‘incorporated’ in
the warrant, would violate the Fourth Amendment.”), despite
the possibility of rare exceptions to that rule, see id. at 430(acknowledging the “rare case” where sealing may be
justified); United States v. Leveto, 540 F.3d 200, 211-12 (3d
Cir. 2008) (stating that an overbroad warrant was cured by a
subsequent search that was limited to the narrower confines
of the sealed, unattached, unincorporated affidavit).
However, Nardinger’s “simple, isolated negligence” does not
warrant the heavy price of exclusion. See Davis, 131 S. Ct. at
2427-28 (“[W]hen [law enforcement] conduct involves only
simple, isolated negligence, the deterrence rationale loses
much of its force, and exclusion cannot pay its way.” (citation
and internal quotation marks omitted)).
25
B. The Herrick Warrant and the Motion to
Reconsider
Franz also attacks the Herrick Warrant, which
authorized a search of the computer drives seized from his
house. The Herrick Warrant was sealed, and Franz did not
receive a copy of it or its supporting documents until March
2012, thirty-one months after it was executed and just over
two months after he was indicted for receipt and possession
of child pornography. He contends that the failure to serve
the warrant at the time of the search violated Rule 41(f)(1)(C)
of the Federal Rules of Criminal Procedure16 and amounted to
a due process violation, so that the evidence obtained from
the warrant must be suppressed.
The government responds that Franz waived his
challenge to the Herrick Warrant by failing to timely raise it
before the District Court. “[A] suppression argument raised
for the first time on appeal is waived (i.e., completely barred)
absent good cause.” United States v. Rose, 538 F.3d 175, 182
(3d Cir. 2008) (applying Fed. R. Crim. P. 12). That rule
applies “not only where the defendant failed to file a
suppression motion at all in the district court, but also where
he filed one but did not include the issues raised on appeal.”
Id. (citing United States v. Lockett, 406 F.3d 207, 212 (3d Cir.
2005)). Furthermore, “[a] fleeting reference or vague allusion
16
Rule 41 states, “The officer executing the warrant
must give a copy of the warrant and a receipt for the property
taken to the person from whom, or from whose premises, the
property was taken or leave a copy of the warrant and receipt
at the place where the officer took the property.” Fed. R.
Crim. P. 41(f)(1)(C).
26
to an issue will not suffice to preserve it for appeal[.] Rather,
a party must unequivocally put its position before the trial
court at a point and in a manner that permits the court to
consider its merits.” United States v. Dupree, 617 F.3d 724,
728 (3d Cir. 2010) (alterations in original) (citation and
internal quotation marks omitted).
Franz did not challenge the Herrick Warrant based on
Rule 41 until his motion for reconsideration following the
District Court’s ruling on his motion to suppress. Although
he claims that he raised the issue in the motion to suppress
itself, that motion challenged the Herrick Warrant based only
on arguments of a lack of probable cause and a lack of
particularity. During the suppression hearing, defense
counsel elicited testimony from a prosecution witness stating
that Franz was not served a copy of the warrant until March
2012, but the defense did not argue at that time that the delay
amounted to a violation of due process or Rule 41. At the end
of the hearing, the District Court asked Franz and the
government to provide briefing on the meaning of the
language in both the Nardinger and Herrick Warrants
authorizing a copy of the warrants to be left with Franz
pursuant to Rule 41.
Franz later submitted proposed findings of fact and
conclusions of law that included a finding that the Herrick
Warrant provided “that agents executing the search warrant
[were] authorized as required by Federal Rule of Criminal
Procedure 41(d) to leave a copy of the search warrant and
receipt for the property with the person searched or at the
property searched.” (App. at 295.) Franz also proposed a
finding that the government had not given him a copy of the
Herrick Warrant until March 2012. Franz did not present any
27
legal argument asserting that the delay constituted a basis for
relief. Nor did he propose any legal conclusions invoking
Rule 41 or due process. Rather, he simply proposed a
conclusion that the Herrick Warrant was a “piggy back
warrant” that would not have been issued but for the invalid
Nardinger Warrant. (App. at 302.) Therefore, the proposed
findings did not preserve the issue for appeal because they
failed to call it to the District Court’s attention and permit the
Court to rule on the argument as Franz later advanced it in his
motion for reconsideration.17
The question thus becomes whether Franz’s
subsequent motion for reconsideration was sufficient to
preserve the issue for appeal. In United States v. Dupree, we
concluded that raising an argument for the first time in a
motion for reconsideration results in waiver of that argument
for purposes of appeal. 617 F.3d at 732; see also id. at 738(Fisher, J., concurring in part and concurring in the judgment)
(agreeing with the lead opinion’s waiver analysis regarding
motions to reconsider). We held that the government had
“waived its … argument by failing to raise it before the
District Court ruled on [the] motion to suppress – i.e., by the
‘deadline’ set by Rule 12(e).” Id. at 732 (lead opinion).
17
The government, on the other hand, submitted
proposed findings of fact and conclusions of law stating that
the failure to serve the Herrick Warrant on Franz for thirty-
one months did not constitute a violation of Rule 41(f). Franz
did not respond to that point in his reply to the government’s
proposed findings of fact and conclusions of law. Nor did
Franz respond to that point in a supplemental memorandum,
which the docket identified as an affidavit, filed after the
hearing in support of his motion to suppress.
28
Furthermore, the government had not established good cause
under Rule 12(e) of the Federal Rules of Criminal Procedure
for failing to raise the theory earlier.18 Id. Under Dupree,
then, Franz’s Rule 41 and due process arguments are waived
because he raised them for the first time in his motion for
reconsideration, and he has not established good cause for his
failure to raise the arguments earlier.19
18
Barring Congressional action to prevent the change,
the “good cause” exemption now in Rule 12(e) will be
relocated to subpart (c)(3) of Rule 12, effective December 1,
2014. Fed. R. Crim. P. 12 Committee Notes on Rules – 2014
Amendment. The amendment also removes any reference to
“waiver” from what will be subpart (c)(3). Id. The parties
have not raised, and we thus have no occasion to consider, the
impact of the amendment on our prior holding that Rule 12
completely bars review. See Rose, 538 F.3d at 184(concluding that plain error review is unavailable given Rule
12’s explicit use of the term “waiver”).
19
In Dupree, we concluded that the challenge to the
initial ruling on the motion to suppress was waived but the
challenge to the denial of the motion for reconsideration was
not. Dupree, 617 F.3d at 732. Thus, while Franz’s challenge
to the denial of the suppression motion is unpreserved, we
may still review the denial of the motion for reconsideration
to determine whether his Rule 41 and due process arguments
should be considered. A motion for reconsideration is “not
for addressing arguments that a party should have raised
earlier.” Id. (internal quotation marks omitted). The purpose
of such motions “is to correct a clear error of law or to
prevent a manifest injustice in the District Court’s original
ruling.” Id. Here, the District Court ruled that even if the
Herrick Warrant was tainted by the particularity problems in
29
C. The Pamphlets and Related Motions20
Next, Franz turns to arguments concerning the two
pamphlets that the District Court initially admitted but later
excluded from evidence. Graphic pictures from the
pamphlets “depict[ing] children being sexually assaulted”
(Appellant’s Opening Br. at 45) were displayed to the jury,
using a projector that enlarged them on a screen. Franz
the Nardinger Warrant, the exclusionary rule should not apply
to the Herrick Warrant. The District Court’s analysis thus
focused on whether suppressing evidence obtained pursuant
to the Herrick Warrant would serve to deter the kind of
particularity problems evident in the Nardinger Warrant as
presented to Franz. The requirements of the Due Process
Clause and the requirement of Rule 41 that a warrant and
inventory be given “to the person from whom, or from whose
premises, the property was taken,” Fed. R. Crim. P.
41(f)(1)(C), do not establish that the District Court’s ruling
constituted a clear error of law or a manifest injustice. We
therefore cannot say that the District Court abused its
discretion in denying the motion for reconsideration.
20
Franz does not frame the issues with precision in this
part of his argument, but our review is for abuse of discretion,
regardless of whether our focus is on the District Court’s
initial evidentiary ruling, its denial of Franz’s motion for a
mistrial, or its denial of Franz’s motion for a new trial. See
United States v. Quinn, 728 F.3d 243, 261 (3d Cir. 2013)
(new trial), cert. denied, 134 S. Ct. 1872 (2014); United
States v. Self, 681 F.3d 190, 199 (3d Cir. 2012) (mistrial);
United States v. Vosburgh, 602 F.3d 512, 537-38 (3d Cir.
2010) (evidentiary issues).
30
argues that, despite the District Court’s ultimate decision to
strike the pamphlets from the record, the Court abused its
discretion when it initially admitted them and allowed images
from them to be published to the jury. He contends that,
despite the curative instructions, the pictures displayed from
the pamphlets contributed to the guilty verdict on the receipt
charge because they have “highly reprehensible and offensive
content which might lead a jury to convict on emotion.”
(Appellant’s Opening Br. at 45.)
The government responds that showing the images to
the jury was harmless because the District Court ultimately
excluded them from evidence and “emphatically and
repeatedly told the jury not to consider [them].”
(Government’s Br. at 50.) The government also argues that
the split verdict – guilty for receipt of child pornography but
not guilty for possession, the latter being the only charge
associated with the pamphlets – indicates that the jury heeded
the Court’s instructions, thus proving that the admission of
the pamphlets was harmless.
“‘The test for harmless error is whether it is highly
probable that the error did not contribute to the judgment.
This [h]igh probability requires that the court possess a sure
conviction that the error did not prejudice the defendant.’”
United States v. Cunningham, 694 F.3d 372, 391-92 (3d Cir.
2012) (alteration in original) (quoting United States v.
Vosburgh, 602 F.3d 512, 540 (3d Cir. 2010)). The
government bears the burden of establishing harmlessness.
United States v. Reynolds, 710 F.3d 498, 515 (3d Cir. 2013).
Regarding the curative instructions, “‘the almost
invariable assumption of the law [is] that jurors follow their
31
instructions.’” United States v. Olano, 507 U.S. 725, 740
(1993) (quoting Richardson v. Marsh, 481 U.S. 200, 206
(1987)). Therefore, “‘[we] presum[e] that jurors, conscious
of the gravity of their task, attend closely the particular
language of the trial court’s instructions in a criminal case
and strive to understand, make sense of, and follow the
instructions given them.’” Id. (second alteration in original)
(quoting Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985)).
But “[c]ases may arise in which the risk of prejudice inhering
in material put before the jury may be so great that even a
limiting instruction will not adequately protect a criminal
defendant’s constitutional rights.” Francis, 471 U.S. at 324
n.9. Such cases present “extraordinary situations.” Id.;
United States v. Lee, 573 F.3d 155, 164 (3d Cir. 2009)
(identifying the “highly unusual circumstance[]” where the
improperly admitted evidence “was the missing link in the
prosecution’s case”). “The risk that a jury will be unable to
follow the court’s instruction to ignore information depends
on a number of factors including the strength of the proper
evidence against the defendant, the nature of the information,
and the manner in which the information was conveyed.”
Lee, 573 F.3d at 163. “Absent … extraordinary situations,
however, we adhere to the crucial assumption underlying our
constitutional system of trial by jury that jurors carefully
follow instructions.” Francis, 471 U.S. at 324 n.9.
Here, immediately after the District Court ruled on the
admissibility of the pamphlets, the Court informed the jury of
its ruling and stated that the pamphlets were “out of the case.”
(App. at 845-46.) Furthermore, at Franz’s request, the Court
gave several instructions relating to the pamphlets in its final
charge to the jury. It first instructed the jury not to let the
inflammatory nature of the photographic evidence stir up
32
“passion or prejudice.” (App. at 878.) The Court
immediately followed that instruction with a directive to
disregard the pamphlets “entirely” and not to consider them in
reaching its decision. (Id.) The Court further instructed the
jury that the possession-of-child-pornography charge based
on the pamphlets was no longer part of the case and that it
should only consider the charges of receipt and possession on
the basis of the computer images: “The Defendant is on trial
only for the receipt and possession of the computer images.
You may consider the evidence presented in the case only as
it relates to the remaining charges.”21 (Id.) The District
Court’s curative instructions were thus clear, comprehensive,
and direct, and, under the circumstances, sufficient to address
the difficulty presented by the withdrawal of the pamphlets.
We are not unmindful that child pornography cases are
particularly fraught with the danger of unfair prejudice, even
before evidence has been admitted, let alone after graphic
depictions of abuse have been admitted and then withdrawn.
“Child pornography is so odious, so obviously at odds with
common decency, that there is a real risk that offenders will
be subjected to indiscriminate punishment based solely on the
repugnance of the crime ... .” United States v. Goff, 501 F.3d
250, 260 (3d Cir. 2007). But there is no per se rule that juries
are incapable of following instructions when disturbing
evidence is involved. Cf. Cunningham, 694 F.3d at 390-91
(noting that the admission of videos or images depicting child
pornography is not per se improper but turns on “the nature
21
While the District Court spoke in terms of
“remaining charges,” the criminal charges never changed.
Only the evidence available to prove the charges was
different, so, to be precise, there was no acquittal.
33
and severity of the acts depicted” (internal quotation marks
omitted)). While a bell as horrifyingly loud as that
represented by the pamphlet pictures in this case can never be
un-rung, that does not mean that a jury cannot be trusted to
focus, and be shown to have focused, on the evidence to
which it is told to confine its attention. The role of the district
court is always to manage the evidence with care
commensurate with the rights of the public and the person
being prosecuted. The Court here did just that, adjusting its
ruling on the pamphlets’ admissibility as it thought necessary
to protect the defendant, and instructing the jury accordingly.
On the present record, it appears highly probable that the
repulsive nature of the pamphlets did not undermine the
efficacy of the District Court’s instructions. Cf. United States
v. Finley, 726 F.3d 483, 493-94 (3d Cir. 2013) (ruling that the
probative value of several videos was not outweighed by the
danger of unfair prejudice, even though some of the videos
were “extremely disturbing and absolutely prejudicial”).
The jury’s split verdict confirms that conclusion in this
instance. Whether a split verdict supports or undermines a
finding of harmless error depends on the circumstances of the
case. Compare United States v. Shannon, 766 F.3d 346, 352,
359-60 (3d Cir. 2014) (concluding, despite a split verdict, that
the prosecutor’s comment on defendant’s post-arrest silence
was not harmless beyond a reasonable doubt because the
evidence was “largely circumstantial,” “not ‘overwhelming,’”
and turned on the credibility of the defendant, which was
directly undermined by the error), United States v. Price, 13
F.3d 711, 730-31 (3d Cir. 1994) (concluding that an
erroneous jury instruction was not harmless regarding one
defendant because the evidence, “albeit sufficient, was not
overwhelming,” and noting defendant’s acquittal on the
34
substantive charge in considering the strength of the evidence
supporting a defendant’s conspiracy conviction), and United
States v. Riggi, 951 F.2d 1368, 1371-72, 1377 (3d Cir. 1991)
(concluding that a split verdict did not render a Confrontation
Clause violation harmless beyond a reasonable doubt,
because the testimony “may have been dispositive on some
counts”), with United States v. Pelullo, 14 F.3d 881, 899 (3d
Cir. 1994) (stating that “a discriminating acquittal on one of
the counts” can constitute “evidence that the jury was able to
overcome any prejudice”). Cf. Connecticut v. Johnson, 460
U.S. 73, 87 (1983) (plurality opinion) (“[I]f the erroneous
instruction was given in connection with an offense for which
the defendant was acquitted and if the instruction had no
bearing on the [lesser included] offense for which he was
convicted, it would be appropriate to find the error
harmless.”).
Here, the pamphlets were introduced as evidence of
the possession charge alone. The verdict form specifically
indicated what items of evidence supported each count. The
District Court struck the portions of the verdict form
referencing the pamphlets, leaving only the part that
referenced the 196.jpg image as support for the possession
charge, and also leaving the receipt charge, which was based
solely on the 202.jpg image. When the jury returned its
verdict, it convicted Franz of receipt of child pornography but
acquitted him of the possession charge. In other words, Franz
was convicted of the charge that the pamphlets were never
used to support, and he was acquitted of the charge for which
they were used. The totality of the circumstances – including
the manner in which the evidence and charges were presented
to the jury – strongly suggests that the jury was able to keep
35
the evidence and charges separate in their minds and was not
swayed by the prejudicial character of the pamphlets.
Thus, when the split verdict is viewed in light of the
relation between the charges and the evidence, as well as the
District Court’s direct, repeated, and thorough curative
instructions, we think it fair to say it is highly probable that
any error in the admission of the pamphlets did not contribute
to the judgment of guilt on the charge for receipt of child
pornography.
36
D. Sufficiency of the Evidence and the Post-
Verdict Motion for Judgment of Acquittal22
Franz’s final set of arguments focus on the District
Court’s denial of his post-verdict motion for judgment of
acquittal under Rule 29 of the Federal Rules of Criminal
22
“We review de novo an appeal of a district court’s
ruling on a ‘Rule 29 motion [for judgment of acquittal] and
independently appl[y] the same standard as the District
Court.’” United States v. Freeman, 763 F.3d 322, 343 (3d
Cir. 2014) (second alteration in original) (quoting United
States v. Bobb, 471 F.3d 491, 494 (3d Cir. 2006)). “‘A Rule
29 motion for judgment of acquittal obliges a district court to
review the record in the light more favorable to the
prosecution to determine whether any rational trier of fact
could have found proof of guilt beyond a reasonable doubt
based on the available evidence.’” Id. (quoting Bobb, 471
F.3d at 494). “Furthermore, ‘we review the evidence as a
whole, not in isolation … .’” United States v. Caraballo-
Rodriguez, 726 F.3d 418, 430 (3d Cir. 2013) (en banc)
(quoting United States v. Boria, 592 F.3d 476, 480 (3d Cir.
2010)) (discussing the standard for reviewing a post-verdict
grant of a motion for judgment of acquittal). Thus, “‘[t]he
question is whether all the pieces of evidence against the
defendant, taken together, make a strong enough case to let a
jury find him guilty beyond a reasonable doubt.’” Id. at 432
(alteration in original) (quoting United States v. Cooper, 567
F.2d 252, 254 (3d Cir. 1977)). “The evidence does not need
to be inconsistent with every conclusion save that of guilt if it
does establish a case from which the jury can find the
defendant guilty beyond a reasonable doubt.” Cooper, 567
F.2d at 254 (internal quotation marks omitted).
37
Procedure. He contends that the government failed to
establish three elements regarding the receipt charge: a
jurisdictional nexus, mens rea, and the sexually explicit
nature of the digital image.
1. Jurisdictional Nexus
Section 2252 of the criminal code prohibits the
knowing receipt of child pornography that has been
transported in interstate or foreign commerce. 18 U.S.C.
§ 2252(a)(2).23 Transportation in interstate or foreign
23
Section 2252(a) provides, in pertinent part, as
follows:
(a) Any person who –
…
“(2) knowingly receives, or distributes, any
visual depiction using any means or facility
of interstate or foreign commerce or that has
been mailed, or has been shipped or
transported in or affecting interstate or
foreign commerce, or which contains
materials which have been mailed or so
shipped or transported, by any means
including by computer, … if –
(A) the producing of such visual
depiction involves the use of a
minor engaging in sexually
explicit conduct; and
(B) such visual depiction is of such
conduct;
…
38
commerce – an essential element of the offense – provides the
“jurisdictional nexus” that allows Congress to criminalize the
conduct. United States v. MacEwan, 445 F.3d 237, 244-45
(3d Cir. 2006). Downloading images from the internet
satisfies that element. Id. at 246 (“[T]he government is not
required to prove that the child pornography images crossed
state lines before being downloaded and received by the
defendant, but rather only must prove that the images were
downloaded from the Internet, which is properly regulated by
Congress as a channel and instrumentality of interstate
commerce … .”).
Franz argues that judgment of acquittal should have
been granted because the government presented no evidence
that the 202.jpg image was downloaded from the internet. He
argues that the image instead “could have come from any
external source (thumb drive, [compact disc], or other
external media).” (Appellant’s Opening Br. at 47.)
Viewing the evidence in the light most favorable to the
government, a rational juror could certainly conclude that the
government had proven the jurisdictional element beyond a
reasonable doubt. Price, the government’s computer
forensics expert, testified that someone using Franz’s
computer viewed the image on a website and that, on June 9,
2008, someone viewed the image in a folder called
“Downloads,” located on his hard drive. Price further
testified that, on December 24, 2008, the image was stored to
shall be punished as provided in subsection (b)
of this section.
18 U.S.C. § 2252(a).
39
a folder named “Internet Downloads 14” on Franz’s external
hard drive. Although not direct proof of the actual download
itself, Price’s testimony presents circumstantial evidence
sufficient for a rational juror to conclude that the image was
in fact downloaded from the internet. See Caraballo-
Rodriguez, 726 F.3d at 425 (“Circumstantial inferences drawn
from the evidence must bear a ‘logical or convincing
connection to established fact.’” (quoting United States v.
Cartwright, 359 F.3d 281, 291 (3d Cir. 2004))); cf. United
States v. Miller, 527 F.3d 54, 67-69 (3d Cir. 2008)
(concluding sufficient evidence of knowing receipt existed
despite the lack of any direct, forensic evidence that images
had been downloaded on the defendant’s computer or that
defendant had ever visited child pornography websites).
And if that evidence were not enough, the government
presented testimony from an investigator establishing that the
image in question was a photograph taken in Connecticut. If
we accept Franz’s alternative theory as true – that the image
was placed on the external hard drive from a thumb drive or
compact disc and never downloaded from the internet – the
image would still have had to get to Pennsylvania from
Connecticut. A rational juror thus could have inferred that
Franz received a “visual depiction … that ha[d] been mailed,
or ha[d] been shipped or transported in or affecting interstate
or foreign commerce, or which contain[ed] materials which
have been mailed or so shipped or transported.” 18 U.S.C.
§ 2252(a)(2). Either way, the District Court did not err in
denying the motion for judgment of acquittal on the
jurisdictional element of the receipt charge.
40
2. Mens Rea
Franz also challenges the element of knowing receipt.
In United States v. Miller, we identified a number of factors
relevant to the inquiry of whether receipt of child
pornography was accomplished knowingly:
(1) whether images were found on the
defendant’s computer; (2) the number of images
of child pornography that were found … ; (3)
whether the content of the images was evident
from their file names … [;] (4) defendant’s
knowledge of and ability to access the storage
area for the images … [; and (5)] the number of
occasions that the images were copied [or
downloaded].
527 F.3d at 67, 69 (citations and internal quotation marks
omitted). Applying those factors, Franz argues that the
evidence was not sufficient to allow a jury to find beyond a
reasonable doubt that his receipt of the 202.jpg image was
“knowing.”24 We disagree.
24
Franz also argues that the government was required
to prove the specific date on which he received the image.
We reject that argument. He relies on an unpublished district
court case that states, without citation to authority, that when
receipt of child pornography is alleged, “the government [is]
obliged to prove that the material traveled in interstate
commerce, and also the date of receipt.” United States v.
MacEwan, No. CRIM.A.04-262, 2004 WL 3019316, at *1 n.1
(E.D. Pa. Dec. 29, 2004), aff’d on other grounds, 445 F.3d
237 (3d Cir. 2006). Proof of the specific date of receipt
41
Two images were found on Franz’s computer. The
number is admittedly small, and he may not have known the
content of the images from file names alone. But Price
testified that someone viewed the 202.jpg image on the
internet and again in Franz’s download folder and then saved
it to his external hard drive. That chain of events strongly
suggests that whoever received the image did so knowingly.
Cf. United States v. Brown, 862 F.2d 1033, 1037-38 (3d Cir.
1988) (concluding that evidence of ordering child
pornography is circumstantial evidence of knowing receipt of
child pornography). Price further testified that Franz’s
computer had one user-created profile, that Franz lived alone,
and that the image was viewed on the computer when the user
was logged in as Franz. Finally, Price testified that the folder
“Internet Downloads 14” – which was stored on the root drive
of the external hard drive and would have been visible to
would doubtless strengthen the overall evidentiary picture for
purposes of establishing the defendant’s mens rea. But when
Congress has not identified time as an essential element of an
offense, “proof of the acts charged on any date within the
statute of limitations and before the return date of the
indictment is sufficient to support a conviction.” United
States v. Somers, 496 F.2d 723, 745 (3d Cir. 1974)
(addressing variances between indictment and proof).
Furthermore, “[b]y the use of the qualifying phrase ‘on or
about’, the grand jury indicates its unwillingness to pinpoint
the date of the offense charged.” Id. Here, the indictment
charged Franz with knowing receipt “[o]n or about June 9,
2008.” (App. at 44.) Price testified that someone using
Franz’s computer viewed the image on a website, and then on
June 9, 2008, someone viewed the same image on Franz’s
computer in a folder titled “Downloads.” That is enough.
42
anyone who used that device – was not created or named by
default; rather, someone created and named the file folder.
Thus, three of the five Miller factors (the first, fourth, and
fifth) point to Franz knowingly receiving the image in
question. Because a rational juror could conclude, based on
that evidence, that Franz knowingly received the image, his
Rule 29 challenge fails. Viewing the evidence as a whole, a
rational jury could – and did – conclude that Franz knowingly
received the image at issue.
3. Sexually Explicit Conduct
Finally, Franz challenges the sufficiency of the
evidence to establish that the 202.jpg image was child
pornography. That picture is of a nine- to eleven-year-old
girl, fully nude, sitting on a bed, with her legs spread and her
genitals exposed. The minor’s head, arms, and legs are
cropped from the picture.
To be guilty of knowing receipt of child pornography,
the visual depiction must be “of a minor engaging in sexually
explicit conduct.” 18 U.S.C. § 2252(a)(2)(A), (B). The
statute defines “sexually explicit conduct” as including
“lascivious exhibition of the genitals or pubic area of any
person.” Id. § 2256(2)(A)(v). In determining whether a
visual depiction involves “lascivious exhibition of the genitals
or pubic area,” we have adopted what have come to be called
the Dost factors:
“1) whether the focal point of the visual
depiction is on the child’s genitalia or pubic
area; 2) whether the setting of the visual
depiction is sexually suggestive, i.e., in a place
43
or pose generally associated with sexual
activity; 3) whether the child is depicted in an
unnatural pose, or in inappropriate attire,
considering the age of the child; 4) whether the
child is fully or partially clothed, or nude; 5)
whether the visual depiction suggests sexual
coyness or a willingness to engage in sexual
activity; 6) whether the visual depiction is
intended or designed to elicit a sexual response
in the viewer.”
United States v. Villard, 885 F.2d 117, 122 (3d Cir. 1989)
(quoting United States v. Dost, 636 F. Supp. 828, 832 (S.D.
Cal. 1986), aff’d sub nom. United States v. Wiegand, 812 F.2d
1239 (9th Cir. 1987) and aff’d, 813 F.2d 1231 (9th Cir.
1987)). The sixth factor is not “a separate substantive inquiry
about the photographs.” Id. at 125. Rather, it is simply
“useful as another way of inquiring into whether any of the
other five Dost factors are met.” Id. Furthermore, “the Dost
factors are not dispositive and serve only as a guide.” United
States v. Larkin, 629 F.3d 177, 182 (3d Cir. 2010); see also
United States v. Knox, 32 F.3d 733, 746 n.10 (3d Cir. 1994)
(“The analysis is qualitative and no single factor is
dispositive.”). “In addition to the considerations detailed in
Dost, we are guided by Black’s Law Dictionary, which
defines ‘lascivious exhibition’ as a depiction which displays
or brings forth to view in order to attract notice to the genitals
and pubic area of children, in order to excite lustfulness or
sexual s[t]imulation in the viewer.” Larkin, 629 F.3d at 182(internal quotation marks omitted). “We may also consider
any other relevant factors given the particularities of the
case.” Id. (internal quotation marks omitted).
44
According to Franz, “the setting of the visual depiction
is not alone sexually suggestive, although the background is
in a bed room” (Appellant’s Opening Br. at 54); the minor is
not inappropriately attired considering the age of the child;
the nature of the pose cannot be determined from the image
because the child’s head, arms, and legs are cropped from the
picture; “absent any expression, look, or even gesture the
depiction can suggest nothing at all,” let alone sexual coyness
or a willingness to engage in sexual activity (Appellant’s
Reply Br. at 15); and the picture is not intended or designed
to elicit a sexual response in the viewer.
His arguments are wholly unpersuasive. This is no
mere baby-in-the-bathtub picture. Common sense and
consideration of the Dost factors are enough to lead to the
conclusion that the picture shows a minor engaging in
sexually explicit conduct. First, the focal point of the image
is the child’s genitals. Second, the image depicts a child in a
bedroom, sitting on a bed, thus placing the image in a
sexually suggestive setting. Villard, 885 F.2d at 124(identifying a bed or mattress as a place commonly associated
with sexual activity, though that alone is not enough to
establish lasciviousness). Third, the child’s legs are spread
and her genitals exposed, thus depicting a pose often
associated with sexual activity. See Knox, 32 F.3d at 747(concluding that pictures exhibited sexually explicit conduct
when, among other things, the minors “were shown
specifically spreading or extending their legs to make their
genital and pubic region entirely visible to the viewer”).
Fourth, although it is true the child is not wearing any
sexually suggestive clothing, that is because she is wearing
45
nothing at all.25 Fifth, sitting on a bed nude with legs spread
can be understood as suggesting a willingness to engage in
sexual activity. Cf. United States v. Amirault, 173 F.3d 28, 33
(1st Cir. 1999) (concluding that a girl’s posture did not
demonstrate a willingness to engage in sexual activity
because, among other facts, “her legs are not widespread”).
Sixth, all of the facts addressed above suggest that the image
was intended to elicit a sexual response in the viewer.26
25
Franz argues that the image is protected speech –
rather than child pornography – because it is a “‘depiction[]
of nudity, without more.’” (Appellant’s Reply Br. at 16
(alteration in original) (quoting Osborne v. Ohio, 495 U.S.
103, 112 (1990)); see also Appellant’s Opening Br. at 54.)
As our discussion of the Dost factors indicates, the image is
not simply a “depiction[] of nudity, without more.” Osborne,
495 U.S. at 112.
26
Franz claims that the depiction in this case is similar
to the one at issue in United States v. Amirault, in which the
First Circuit concluded that a photograph was not sexually
explicit because, even though it depicted a minor’s genitals,
“there is no zooming in on the genitals and the focus is not on
the genital area.” (Appellant’s Opening Br. at 54.) Franz’s
attempt to align his case with Amirault is unavailing.
Amirault addressed whether “a photograph of a young naked
female, probably a teenager, standing or kneeling in a hole on
a beach” depicted “sexually explicit conduct.” 173 F.3d at
30. Applying the Dost factors, the First Circuit concluded
that the photograph did not depict sexually explicit conduct.
Id. at 33. The court thrice noted the fact that the girl’s legs
were not widespread – as it discussed the focus of the
photograph, the girl’s pose, and whether the girl’s expression
or posture demonstrated a willingness to engage in sexual
46
The nature of the 202.jpg image is certainly such that a
rational juror could conclude beyond a reasonable doubt that
the image depicted “lascivious exhibition of the genitals or
pubic area,” 18 U.S.C. § 2256(2)(A)(v), and thus satisfied the
requirement that the image depict “a minor engaging in
sexually explicit conduct,” id. § 2252(a)(2)(A), (B).
III. Conclusion
For the foregoing reasons, we will affirm the judgment
of conviction.
activity. Id. The court also noted that the setting was “unlike
a bedroom.” Id. Thus, the image in question here is different
from that discussed in Amirault in significant ways.
47