United States Court of Appeals For the First Circuit
No. 21-1120
UNITED STATES,
Appellee,
v.
HANFORD CHIU,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Lynch, Selya, and Kayatta, Circuit Judges.
Paul J. Garrity for appellant. Karen L. Eisenstadt, Assistant United States Attorney, with whom Rachel S. Rollins, United States Attorney, was on brief, for appellee.
June 2, 2022 KAYATTA, Circuit Judge. Hanford Chiu appeals from his
jury convictions for receipt and possession of child pornography.
He challenges both the denial of his pre-trial motion to suppress
evidence obtained pursuant to an allegedly defective search
warrant and the district court's ruling that barred certain text-
message evidence from Chiu's trial. Upon review, we find that the
warrant affidavit provided an adequate basis to support probable
cause and that the district court did not abuse its discretion in
excluding the text messages as inadmissible hearsay. We therefore
affirm Chiu's convictions. Our reasoning follows.
I.
The investigation culminating with Chiu's arrest began
with the search and arrest of another man, Warren Anderson.
Anderson came to the attention of law enforcement by way of the
messaging app Kik, which identified and reported suspected child
pornography sent from an IP address that law enforcement tracked
to Anderson. Special Agent (SA) Joseph Iannaccone of the
Department of Homeland Security (DHS) applied for a search warrant
with an affidavit ("the First Affidavit") that included a
description of the image transmitted from Kik. When law
enforcement approached Anderson to execute the search warrant on
August 21, 2018, he provided them with extensive information about
his interest in underage pornography, which included "depictions
of boys as young as eight years old."
- 2 - During his initial interviews on August 21, Anderson
informed law enforcement that he had met an individual online named
Hanford Chiu, who shared his interest in child pornography. The
following day, SA Iannaccone, relying primarily on details from
Anderson's initial interviews, prepared and filed a second search
warrant affidavit ("the Second Affidavit") in support of a request
for a warrant to search Chiu's residence, specifically the bedroom
he used within a multifamily house.
According to the Second Affidavit, beginning around
February of 2018, Anderson and Chiu met weekly at either man's
residence to view child pornography. Anderson provided details
about the layout of Chiu's residence and Chiu's custom-built PC,
which the two used to view child pornography as recently as two
days before the interview. Anderson told DHS that Chiu's computer
included an extensive collection of downloaded child pornography.
When agents asked Anderson to define "child pornography," he
"indicated that it would involve children under 18." Anderson
discussed a specific website, known to law enforcement to be
"dedicated to the exchange of child pornography," which the two
accessed via the anonymous internet browser Tor. He noted that
Chiu was an attorney -- a fact which law enforcement later verified
-- and that Chiu was cautious about his viewing of child
pornography, rarely communicating with others on the dark-web
sites he visited. Anderson also described some of the videos the
- 3 - two viewed in their most recent session, "which included depictions
of boys as young as 10 years old involved in sexual conduct."
Unlike the First Affidavit, however, the Second Affidavit did not
discuss any particular piece of contraband that law enforcement
had viewed, and SA Iannaccone did not attach any such images.
The magistrate judge authorized the second warrant on
August 22, and agents executed the search of Chiu's bedroom the
same day. They found in his bedroom a custom-built computer tower
with three hard drives, on which agents identified over a thousand
images of child pornography in their preliminary on-scene review.
Chiu was arrested that day. Later forensic analysis identified
the Tor browser installed on multiple drives on Chiu's computer,
with bookmarks to known child-pornography sites, as well as over
23,000 downloaded child-pornography files. A grand jury then
indicted Chiu on charges of: (I) receiving child pornography, in
violation of 18 U.S.C. § 2252A(a)(2)(A) and (b)(1); and
(II) possessing child pornography, in violation of
sections 2252A(a)(5)(B) and (b)(2).
Before trial, Chiu moved to suppress the evidence
obtained from the search under the theory that the warrant and the
supporting Second Affidavit failed to describe sufficiently the
basis for probable cause. Specifically, he claimed that the Second
Affidavit did not attach any pornographic images to be found and
lacked the necessary alternative: descriptions of the illicit
- 4 - images and videos to be found. The district court denied the
motion, and Chiu proceeded to trial.
Chiu's defense at trial was that someone else had
downloaded all the contraband to his computer. In support of this
theory, he testified without objection that he had provided
Anderson -- with whom he had been in a relationship for five years
-- with several of his passwords and that he would occasionally
bring his computer to Anderson's house for gaming and technical
repairs. For further support, Chiu sought to introduce certain
text messages between him and Anderson that, according to his
counsel, showed that "the computer had crashed, [that] it was
brought to Mr. Anderson to be repaired, and that Mr. Anderson
requested various e-mail passwords from Mr. Chiu." The district
court excluded the messages as hearsay.
Among the evidence in favor of the government, Chiu
acknowledged on cross-examination that, on two different occasions
within a week of his arrest, someone had accessed child pornography
on his computer within minutes of accessing legal work files. Chiu
recognized the legal work files and acknowledged having probably
been the one to open them, but denied accessing the child
pornography -- without providing any explanation for the nearly
contemporaneous access.
After two days of trial, the jury convicted Chiu on both
counts. The district court sentenced him to 110 months'
- 5 - imprisonment and five years' supervised release. Chiu timely
appealed.
II.
Chiu raises two claims of error in this appeal. First,
he contends that the district court erred in denying his motion to
suppress because the Second Affidavit failed to attach or
sufficiently describe the pornographic images to be found. He
then argues that the court erroneously excluded from trial his
proposed text-message evidence that purportedly showed that Chiu
had shared certain passwords with Anderson and had brought his PC
to Anderson's home. We take up these arguments in turn.
A.
"In assessing the district court's denial of [a] motion to
suppress, we review the court's legal conclusions de novo while
reviewing factual findings for clear error." United States v.
Burdulis, 753 F.3d 255, 259 (1st Cir. 2014). The ultimate
determination of probable cause is a legal conclusion that we
typically review de novo. United States v. O'Neal, 17 F.4th 236, 243
(1st Cir. 2021). With that said, when reviewing affidavits supporting
search warrants, "we give significant deference to the magistrate
judge's initial evaluation, reversing only if we see no 'substantial
basis' for concluding that probable cause existed." United States
v. Mendoza-Maisonet, 962 F.3d 1, 16 (1st Cir. 2020) (quoting United
States v. Ribeiro, 397 F.3d 43, 48 (1st Cir. 2005)); see also United
- 6 - States v. Cordero-Rosario, 786 F.3d 64, 69 (1st Cir. 2015) (same, in
reviewing a child-pornography prosecution). The judicial task in a
probable-cause determination "is simply to make a practical,
common-sense decision whether, given all the circumstances set
forth in the affidavit . . . , there is a fair probability that
contraband or evidence of a crime will be found in a particular
place." Illinois v. Gates, 462 U.S. 213, 238 (1983); see also
United States v. Syphers, 426 F.3d 461, 464 (1st Cir. 2005)
(observing, in reviewing a child-pornography prosecution, that
"hypertechnical readings" of warrants and affidavits "should be
avoided" (quoting United States v. Baldyga, 233 F.3d 674, 683 (1st
Cir. 2000))).
We start with the crime for which evidence was sought.
The Second Affidavit explained that SA Iannaccone believed he would
find in Chiu's bedroom evidence of a violation of 18 U.S.C.
§ 2252A, which criminalizes the receipt and possession of "child
pornography." That term is then defined in section 2256 to include
"any visual depiction" "of a minor engaging in sexually explicit
conduct." 18 U.S.C. § 2256(8). The statute further defines
"sexually explicit conduct" to include: "sexual intercourse,"
"bestiality," "masturbation," "sadistic or masochistic abuse," and
"lascivious exhibition of," inter alia, "genitals." Id.
§ 2256(2)(A)(i)–(iv).
- 7 - Chiu's argument against the sufficiency of the affidavit
supporting the warrant to search his bedroom relies on our holding
in United States v. Brunette, 256 F.3d 14 (1st Cir. 2001). We held
there that an affidavit based on a law enforcement officer's personal
review of pornographic images that had been flagged by an internet
service provider did not support probable cause where the officer did
not attach or describe the images and the affidavit "did not specify
with any detail the basis for believing that those images were
pornographic." Brunette, 256 F.3d at 15, 17. Instead, the affidavit
merely included the officer's assertion that the images depicted a
"prepubescent boy lasciviously displaying his genitals," id. at 17,
language which tracks nearly verbatim one prong of the statutory
definition of "sexually explicit conduct," see 18 U.S.C.
§ 2256(2)(A)(V). But because the identification of specific images
as child pornography will often be, at least in part, a subjective
exercise, "the determination should be made by a judge, not an agent."
Brunette, 256 F.3d at 18. We thus found error there in "issu[ing]
the warrant absent an independent review of the images, or at least
some assessment based on a reasonably specific description." Id. at
19. Put another way, Brunette held that "[i]n cases in which the
warrant request hinges on a judgment by an officer that particular
pictures are pornographic, the officer must convey to the magistrate
more than his mere opinion that the images constitute pornography."
Burdulis, 753 F.3d at 261.
- 8 - According to Chiu, the Second Affidavit was likewise
insufficient because it did not attach or describe any specific
pictures that law enforcement expected to find in Chiu's bedroom --
in contrast to the approach taken with the First Affidavit, which did
describe the specific image flagged by Kik. Chiu contends that the
Second Affidavit simply substituted an officer's opinion that
particular images were pornographic with the same opinion held by
another third party: the defendant's criminal associate Anderson.
To be sure, the Second Affidavit included numerous indications
that Anderson considered the material he viewed with Chiu to be
"child pornography." And the most detailed description of the
subject matter viewed was Anderson's statement that the two men
had recently watched videos "includ[ing] depictions of boys as
young as 10 years old involved in sexual conduct." This language
does closely resemble some of the language defining "child
pornography," which includes "visual depiction[s] . . . of a minor
engaging in sexually explicit conduct." See 18 U.S.C.
§ 2256(8)(B).
But we need not consider whether Anderson's description
of the most recently watched videos alone would suffice because
the affidavit does not stop there. The totality of the
circumstances described by the Second Affidavit included much
"more than . . . mere opinion" that particular images were
pornographic. Burdulis, 753 F.3d at 261. The affidavit also
- 9 - detailed Anderson's recounting of his and Chiu's joint activity:
that he met Chiu online and later learned they shared an interest
in child pornography; that Chiu showed Anderson how to use the
dark-web browser Tor to access a specific website known for its
use in viewing and downloading child pornography; that Chiu "was
very careful about his online activities as they related to child
pornography," such that he would only download images posted by
others, without communicating with the posters; and that Chiu
maintained a personal collection of this downloaded material
amounting to some eighty gigabytes stored on the "custom-built
desktop computer" in Chiu's bedroom.
In Brunette, we observed that including similar
contextual and investigatory details in an affidavit may have put
the government on firmer probable-cause footing than the mere
anodyne parroting of statutory language. See 256 F.3d at 18–19.
We distinguished the skeletal affidavit in Brunette from one in
another child-pornography case, in which the Ninth Circuit had
upheld a warrant notwithstanding its failure to include or describe
any particular images. See United States v. Smith, 795 F.2d 841,
847–48 (9th Cir. 1986). The Smith affidavit, unlike the one in
Brunette, "was bolstered by a much stronger investigation prior to
applying for the warrant, including interviews with the suspect,
some of the victims, and a pediatrician who confirmed that the
- 10 - girls pictured were under eighteen" -- all of which provided "other
indicia of probable cause." Brunette, 256 F.3d at 19.
The Second Affidavit is much closer to the one in Smith.
It detailed multiple interviews with an associate in the criminal
activity and described particulars of how the search target came
to acquire, store, and view the contraband -- including Chiu's
efforts to evade detection and his history of accessing a website
well-known for its use in obtaining child pornography. See also
Syphers, 426 F.3d at 466 (recounting the details of a child-
pornography investigation from an affidavit that "may" have
established probable cause, which included interviews with victims
and evidence that the defendant had frequented a specialized
website for child-pornography enthusiasts).
In sum, the inquiry here trains on whether the affidavit
provided the magistrate judge with a "common-sense" basis for
finding a fair probability that the target location would contain
evidence of the possession of child pornography. In Brunette, we
answered "no" because the affidavit, in effect, called for the
magistrate judge to defer to the officer's evaluation without any
basis for assessing that evaluation. Here, the affidavit provided
a bit more detail concerning the images ("depict[ing] boys as young
as ten years old involved in sexual conduct"), and the affidavit's
chronology of events provided a basis for the magistrate judge to
give weight to Anderson's description of what Chiu was doing. We
- 11 - therefore cannot say that, "given all the circumstances set forth
in" the affidavit, it provided "no substantial basis" for probable
cause to believe that evidence of child-pornography offenses would
be found on Chiu's computer. See Cordero-Rosario, 786 F.3d at 69
(cleaned up). We thus find no error in the district court's denial
of Chiu's motion to suppress.
B.
We turn next to Chiu's argument that the district court
improperly barred evidence of certain statements, in the form of
text messages, from his trial. Before trial, Chiu sought a ruling
that text messages exchanged between Chiu and Anderson in 2015
would be admissible. According to Chiu's counsel, the messages
showed that Chiu had brought his computer tower to Anderson's house
in November of 2015 to be repaired and that Chiu shared various
passwords with Anderson. While Chiu contended that he was offering
the messages for a non-hearsay purpose -- that is, not for the
truth of their content -- the court found that the messages were
"being offered for the truth of [the] movement of the computer
between the two places," thus rendering the messages hearsay
without any apparent exception available. After the defense rested
at trial, the court confirmed that counsel had sufficiently
preserved the objection to its pretrial ruling.
When a defendant preserves a claim that the district
court improperly excluded evidence, we review that claim for abuse
- 12 - of discretion. United States v. Sabean, 885 F.3d 27, 38–39 (1st
Cir. 2018). The government, however, argues for the more stringent
plain-error standard because Chiu never argued below the specific
theory now raised for overcoming the rule against hearsay, only
that the statements were not being offered for their truth.
However, we need not wade into that dispute because Chiu's claim
fails under even his preferred abuse-of-discretion standard.
On appeal, Chiu argues that the messages ought to have
been admitted as prior consistent statements. Under Federal Rule
of Evidence 801(d)(1), a witness's prior statement is excluded
from the rule against hearsay -- and thus may be admissible --
"when (1) the declarant testifies at trial and is subject to cross-
examination; (2) the prior statement is consistent with the
declarant's trial testimony; and (3) the prior statement is
offered 'to rebut an express or implied charge against the
declarant of recent fabrication or improper influence or motive.'"
United States v. Jahagirdar, 466 F.3d 149, 155 (1st Cir. 2006)
(emphasis omitted) (quoting Fed. R. Evid. 801(d)(1)(B)).1
Here, Chiu was the declarant of the statements he sought
to introduce, and he did testify at trial, thus satisfying the
1 Chiu does not make any argument that the text messages ought to have been admissible under the most recent addition to Rule 801(d), for prior consistent statements that are used "to rehabilitate the declarant's credibility as a witness when attacked on another ground," Fed. R. Evid. 801(d)(1)(B)(ii), so we need not discuss that alternative basis.
- 13 - first prong of our inquiry.2 On the "consistency" prong, Chiu
argues that the text messages are consistent with his testimony
that he gave Anderson some passwords and occasionally brought his
computer to Anderson for gaming or repairs. The government
contests only the degree of consistency, but not that general
premise.
The disagreement turns instead on the "fabrication"
prong. For this inquiry, we consider the degree of fit between
the putative prior consistent statement and the charge of
fabrication that it is offered to rebut. See United States v.
Wilkerson, 411 F.3d 1, 5 (1st Cir. 2005) ("[P]rior consistent
statements must at least have 'some rebutting force beyond the
mere fact that the witness has repeated on a prior occasion a
statement consistent with his trial testimony.'" (quoting United
States v. Simonelli, 237 F.3d 19, 27 (1st Cir. 2001))); Simonelli,
237 F.3d at 28 ("There is no rule admitting all prior consistent
statements simply to bolster the credibility of a witness who has
been impeached by particulars.").
To assess that fit for the statements offered here, we
therefore ask: Did the government make an express or implied
charge that Chiu recently fabricated the claim that Anderson had
2 To be sure, Anderson authored some of the messages in the larger set of text exchanges that Chiu initially sought to introduce. Chiu's argument on appeal, however, focuses on the text messages that he sent to Anderson.
- 14 - occasionally possessed Chiu's computer and passwords? The record
shows that the government certainly challenged Chiu's credibility
broadly, as well as his claim that someone else had downloaded the
images to his computer without his knowledge. But the government
never bothered to contest the predicate yet separate claim that
Anderson could occasionally access the computer and passwords.
Chiu contends that the government's challenge to his
alternate-downloader theory necessarily implied that Chiu
fabricated the specific claim that Anderson had occasional access.
But clearly it did not: Chiu could certainly do the downloading
himself whether or not Anderson was able to do so. And the
government's distinction between these claims makes sense in light
of its theory at trial. In proving that Chiu possessed the
material, the government did not rely on his exclusive ability to
access his computer. Rather, it pointed to evidence that someone
had actually accessed the pornographic files nearly
contemporaneously with actual access of Chiu's work files.
More expansively, Chiu argues that the government's
broader attacks on his credibility "strongly implied" that Chiu
fabricated "the entirety of [his] testimony," and thus, Chiu should
be able to introduce statements consistent with some portion of
his testimony. This argument runs headlong into our precedent
requiring some degree of fit between the alleged fabrication and
the prior statement, as well as the Supreme Court's admonition
- 15 - that "[p]rior consistent statements may not be admitted to counter
all forms of impeachment or to bolster the witness merely because
she has been discredited." Tome v. United States, 513 U.S. 150,
157 (1995).
In arguing that a more generalized attack on credibility
may open the door to prior consistent statements, Chiu points us
to United States v. Washington, 434 F.3d 7 (1st Cir. 2006). There,
we found no abuse of discretion in a trial court's admission of a
prior consistent statement where the party opposing its admission
"had suggested that the entirety of [the declarant-witness's]
testimony on direct examination had been false." Id. at 15.
However, closer review of Washington reveals that it does not
support the broad door-opening theory for which Chiu invokes it.
A critical component of the testimony presented by the
witness there concerned the identity of an individual from whom he
had purchased drugs. Id. at 14. Cross-examination of the witness
indeed levied "a charge of fabrication which went to all of [the
witness]'s testimony," painting him as "a habitual liar" with "a
motive to lie about anything and everything in order to please the
DEA." Id. But that examination also suggested the witness
specifically fabricated "his testimony about the name of the drug
dealer." Id. at 14 & n.11. The government then introduced the
challenged evidence: the declarant's contemporaneous and
consistent report to law enforcement naming the person who had
- 16 - sold him the drugs. Id. Thus, there was no serious question that
the witness had in fact been impeached on the specific subject of
the rehabilitative, prior consistent statement, even if the cross-
examination also levied indiscriminate charges of fabrication.
Here, by contrast, the government's broad attacks on Chiu's
credibility did not also specifically home in on Chiu's assertions
that Anderson could occasionally access his computer.3
Accordingly, the district court did not abuse its
discretion by excluding Chiu's proposed evidence.
III.
For the foregoing reasons, the judgment of the district
court is affirmed.
3 Chiu also argues that certain statements made by the government during pre-trial conferences and at sentencing somehow levied the kind of fabrication charge that we could consider for the purposes of Rule 801(d)(1)(B), but a witness plainly cannot be impeached at trial by arguments made outside of that trial.
- 17 -