United States v. Banks

556 F.3d 967, 2009 U.S. App. LEXIS 3696, 2009 WL 455491
CourtCourt of Appeals for the Ninth Circuit
DecidedFebruary 25, 2009
Docket07-30130
StatusPublished
Cited by34 cases

This text of 556 F.3d 967 (United States v. Banks) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Banks, 556 F.3d 967, 2009 U.S. App. LEXIS 3696, 2009 WL 455491 (9th Cir. 2009).

Opinions

Opinion by Judge RAWLINSON; Partial Concurrence and Partial Dissent by Judge ALARCÓN.

RAWLINSON, Circuit Judge:

In this appeal, we determine whether Jerry Levis Banks, Sr.’s (Banks) conviction on multiple counts involving the possession, production, transportation and receipt of images depicting minors engaged in sexually explicit conduct should be reversed based on the denial of his motion to suppress evidence seized pursuant to a warrant, the admission of testimonial evi[971]*971dence provided by Banks’s wife alleged to be protected by the marital communications privilege, or the district court’s adoption or application of definitions for “masturbation” and “lascivious” as they relate to the subject video. We affirm the conviction. The district court did not err when it denied Banks’s motion to suppress or in defining and applying the terms “masturbation” and “lascivious.” Although the ruling addressing the marital communications privilege was erroneous, the error was harmless.

I.

BACKGROUND

This case began when Special Agent Mary Martin (Agent Martin) filed an “Application and Affidavit for Search Warrant.” According to the affidavit, a Canadian investigation into child pornography had resulted in the arrest of a Canadian pedophile who admitted to trading child pornography with Banks. The Canadian pedophile also provided evidence that Banks may have created a pornographic video involving Banks’s two-year-old grandson.

A warrant issued to search Banks’s home for sixteen types of items described in the affidavit. As a result of the evidence seized pursuant to the warrant, Banks was charged with nine criminal counts relating to the possession, production, transportation and receipt of images depicting minors engaged in sexually explicit conduct. Seven of those charges ultimately proceeded to trial.

Prior to trial, Banks moved- to suppress the evidence seized pursuant to the search warrant, asserting that the affidavit lacked foundation and specificity. Banks’s arguments were rejected by the district court, and a bench trial ensued.

At trial, the government called Banks’s wife as a witness. Mrs. Banks primarily testified about her relationship with the minor child in the subject video. She testified that the child was her grandson, with whom she had a close relationship. Mrs. Banks also identified her husband’s ring, watch and couch in the video.1 Mrs. Banks was asked whether her husband had made any statements regarding a video involving their grandson. Over Banks’s objection, Mrs. Banks testified that her husband had admitted to making the video and that he had done so to ensure that “nothing went on in changing the diaper because of past things.”

The district court found Banks guilty on all counts, concluding that Banks had created the subject video. The court relied on the testimony identifying Banks’s ring, watch and couch, as well as testimony that Banks had admitted changing the child’s diaper. The district court also determined that the video contained images of sexually explicit conduct. Specifically, the court concluded that the video depicted the masturbation of a minor child under a definition of masturbation that included the stimulation of genitalia in a manner that would stimulate an adult. The district court found that the video also contained a lascivious exhibition of the genitals of the minor child because it depicted the masturbation of the child “for the purpose of eliciting in the viewer a sexual response.”

II.

STANDARDS OF REVIEW

We review de novo the district court’s rulings on a motion to suppress and [972]*972the validity of a search warrant. See United States v. Crews, 502 F.3d 1130, 1135 (9th Cir.2007).

We also review de novo legal conclusions regarding the marital communications privilege. See United States v. Griffin, 440 F.3d 1138, 1143 (9th Cir.2006). However, we review the admission of evidence for an abuse of discretion. See United States v. Marashi, 913 F.2d 724, 729 (9th Cir.1990). “A district court abuses its discretion if it ‘bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.’ ” Shafer v. Astrue, 518 F.3d 1067, 1070 (9th Cir.2008) (citation and alteration omitted).

Finally, we review de novo the district court’s “construction or interpretation of a statute,” United States v. Carranza, 289 F.3d 634, 642 (9th Cir.2002) (citation omitted), and review for clear error the court’s findings of fact. See United States v. Leos-Maldonado, 302 F.3d 1061, 1063 (9th Cir.2002).

III.

DISCUSSION

A. The affidavit contained an adequate foundation to support issuance of the search warrant.

Statements in an affidavit supporting a search warrant application directed toward “the behavior of a particular class of persons” must be supported by “a foundation which shows that the person subject to the search is a member of the class.” United States v. Weber, 923 F.2d 1338, 1345 (9th Cir.1991), as amended. In the present case, there was ample information in the affidavit to support the notion that Banks was engaging in the production and trade of images depicting minors engaged in sexually explicit conduct, including evidence of the transmission of such images between Banks and a convicted sex offender in Canada. Thus, to the extent Banks argues that the affidavit failed to set forth the proper foundation for later assumptions about pedophiles, the requirements of Weber were met.

Further, to the extent that Banks argues that the contested sections of the affidavit were required to be supported by expert opinion, he is incorrect. The contested sections provided background information about how pedophiles act in the digital age, how law enforcement generally conducts searches of computers, and what likely steps would be taken to search a computer. None of these topics is so esoteric as to require expert explanation to be understood. Additionally, at the outset of the affidavit, Agent Martin explained that she has been investigating the sexual exploitation of children since 1998 and has attended training seminars and classes “related to conducting these types of investigations.” Her extensive background was sufficient to support the generalized statements provided in the first three sections of the affidavit.

Finally, to the extent Banks argues that Agent Martin’s failure to specifically include the source of her information in each section renders the affidavit insufficient to create probable cause, the argument fails because Banks is unable to demonstrate that any omission was material or that, “when supplemented with the omitted information, [the affidavit] would be insufficient to support a probable cause finding.” United States v. Jawara, 474 F.3d 565, 582 (9th Cir.2007), as amended (citation omitted).

B. The warrant was sufficiently specific.

“Specificity has two aspects: particularity and breadth. Particularity is the requirement that the warrant must clearly state what is sought. Breadth deals with the requirement that the scope [973]

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Cite This Page — Counsel Stack

Bluebook (online)
556 F.3d 967, 2009 U.S. App. LEXIS 3696, 2009 WL 455491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-banks-ca9-2009.