[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT MAY 27, 2010 No. 08-16442 JOHN LEY ________________________ CLERK
D. C. Docket No. 08-20377-CR-UU
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HILARIO ALFARO-MONCADA,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida _________________________
(May 27, 2010)
Before CARNES and HULL, Circuit Judges, and LAWSON,* District Judge.
CARNES, Circuit Judge:
* Honorable Hugh Lawson, United States Senior District Judge for the Middle District of Georgia, sitting by designation. A lot of child pornography cases come through our court, and most of them
present fairly routine issues. This one, however, brings in tow a Fourth
Amendment issue with important implications for the national security of the
United States. When a foreign cargo vessel enters this country and is subject to a
border search, may the cabins of its crew members be searched for contraband
without reasonable suspicion?
I.
On April 16, 2008, the MV RIO MIAMI, a foreign cargo ship, docked at the
Antillean Marine inside Miami, Florida after traveling from the Dominican
Republic. The Antillean Marine is located approximately three miles inland on
the Miami River. It was the ship’s first port of entry into the United States. A
couple of hours after the ship came into this country, officials with United States
Customs and Border Protection, which is part of the Department of Homeland
Security, went on board the ship to conduct an agricultural re-boarding.1 The
1 The agricultural re-boarding was the second inspection of the RIO MIAMI. Shortly after it arrived in the United States, Customs and Border Protection officials performed an initial boarding. During the initial boarding, a passenger processing team issued landing permits to the people on the RIO MIAMI, and an agricultural team completed paperwork clearing the ship’s food waste and garbage for unloading.
2 purpose of an agricultural re-boarding, or at least the primary purpose of the one in
this case, is to inspect a ship for prohibited agricultural materials, including seeds.2
The re-boarding of the RIO MIAMI was performed by a group of Customs
and Border Protection officials called the Agricultural Enforcement Team.
Among its seven members were five people trained in detecting threats to
agriculture: three agricultural specialists, including Specialist Luis Meyer, plus a
senior agricultural officer and a supervisor. The other two members were Customs
and Border Protection officers, one of whom was Officer Ernesto Quiñones.3 The
2 The Homeland Security Act of 2002 transferred personnel and authority for agricultural border inspections from the United States Department of Agriculture to Customs and Border Protection. See 6 U.S.C. §§ 202(7), 231. Customs and Border Protection performs agricultural inspections at ports of entry in order to enforce various animal and plant protection laws. Ruth Ellen Wasem, Cong. Research Serv., Border Security: Inspections Practices, Policies, and Issues 8–9 (2004); see § 231 (requiring the Department of Homeland Security to conduct agricultural import and entry inspection activities under the following laws: The Honeybee Act, 7 U.S.C. §§ 281–286; The Federal Seed Act, 7 U.S.C. §§ 1581–1586 (Title III); The Plant Protection Act, 7 U.S.C. §§ 7701–7786; The Animal Health Protection Act, 7 U.S.C. 8301–8322; The Lacey Act Amendments of 1981, 16 U.S.C. §§ 3371–3378; The Virus-Serum-Toxin Act, 21 U.S.C. §§ 151–159; and The Endangered Species Act of 1973, § 11, 16 U.S.C. § 1540). 3 See Introducing the New CBP Agriculture Specialist, Customs & Border Protection Today, May 2004, http://www.cbp.gov/xp/CustomsToday/2004/May/agSpec.xml (Agricultural specialists “determine the admissibility of agriculture commodities while preventing the introduction of harmful pests, diseases, and potential agro/bioterrorism into the United States”); Jim Monke, Cong. Research Serv., Agroterrorism: Threats and Preparedness 17 (rev. 2006) (Agricultural specialists attend an 8-week training program at a Department of Agriculture facility on agricultural issues and 2-weeks of law enforcement classes); Fed. Law Enforcement Training Ctr., Dep’t of Homeland Sec., Catalog of Training Programs 145 (rev. 2007) (Customs and Border Protection “[o]fficers are trained in basic law enforcement skills, including: Anti- Terrorism; Detection of Contraband; . . . Immigration and Naturalization laws; U.S. Customs Export and Import laws; . . . [and] Examination of Cargo, Bags, and Merchandise.”); Gen. Accounting Office, Homeland Security: Management and Coordination Problems Increase the
3 Team met with the captain of the RIO MIAMI and told him that they would be
inspecting the ship from bow to stern. After the Team inspected the bridge,
Specialist Meyer and Officer Quiñones went below to inspect the crew members’
cabins. The captain, who was with them, had a master key that unlocked the
cabins, which were arranged like hotel rooms—one right beside another. The
captain went from cabin to cabin, unlocking and opening each door so that the
cabins could be searched. The master key would not open the cabin of Hilario
Alfaro-Moncada, a citizen of El Salvador, who was the ship’s cook.
While Specialist Meyer and Officer Quiñones waited in the hall, the captain
went and got Alfaro-Moncada who unlocked his cabin door with his key and
opened it. Specialist Meyer asked Alfaro-Moncada if the cabin was his, if he
owned everything in it, and if Meyer could inspect it. After Alfaro-Moncada
Vulnerability of U.S. Agriculture to Foreign Pests and Disease 15 (2006) (Customs and Border Protection officers receive 16 hours of training on agricultural issues); Introducing the New CBP Agriculture Specialist (noting that Customs and Border Protection officers perform different duties than Agricultural Specialists but “receive agriculture fundamentals training that [allows] them to recognize the signs of possible agriculture anomalies”).
(In keeping with Eleventh Circuit Internal Operating Procedure 10, “Citation to Internet Materials in an Opinion,” under Federal Rule of Appellate Procedure 36, a copy of the internet materials cited in this opinion is available at this Court’s Clerk’s Office.)
4 answered “yes” to all three questions, Meyer entered the cabin and began
inspecting it.4
Alfaro-Moncada’s cabin was small and its only furniture was a couch, bed,
and desk. Specialist Meyer started his inspection on the left side of the cabin
where the couch was located. He searched some luggage and sifted through some
clothes that were strewn on the couch. Finding nothing of interest, Meyer moved
on to Alfaro-Moncada’s bed, which was positioned in the center of the cabin.
Meyer lifted the mattress and rummaged through some drawers running down the
side of the bed. Again finding nothing of interest, he moved on.
Specialist Meyer’s efforts then focused on Alfaro-Moncada’s desk, which
was located to the right of the bed and had a DVD player sitting on top of it.
Meyer searched the top of the desk and then opened the desk’s only drawer.
Inside the drawer were cases for CDs and DVDs. Meyer took some of them out of
the drawer and began examining them. He looked at the covers of the cases. One
of the DVD covers caught his attention because on that cover were ten images of
what appeared to be young girls engaging in a variety of sexual acts. Suspecting
4 The government did not argue before the district court that the search was permissible because of Alfaro-Moncada’s consent, and it does not make that argument to us either. So we will not consider that possibility. See Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc) (“[T]he general rule of this Circuit [is] that issues not raised before the district court will not be considered on appeal.”).
5 that the images were child pornography, Meyer called for Officer Quiñones who
by that time had started searching another crew member’s nearby cabin.
When Officer Quiñones arrived, Specialist Meyer handed him the DVD
case and Quiñones examined it. Quiñones then asked Alfaro-Moncada whether it
belonged to him and whether he knew what was on the DVD inside. Alfaro-
Moncada admitted that it was his and that he knew there was pornography on the
DVD and when asked what kind of pornography, he said “little girls.” Quiñones
got Alfaro-Moncada’s permission to watch the DVD, but then continued the
search of the desk drawer that Meyer had begun. He found a second DVD case
that depicted young girls engaging in sex acts. The title of that DVD was
“Vacanales del Porno,” which translates to “Porno Parties.” The actual DVD
inside the case had Alfaro-Moncada’s initials—“H.A.M.”—on it, as well as “del
X,” which translates to “triple X.”
After finding the second DVD, Officer Quiñones asked Alfaro-Moncada if
it also belonged to him and if Quiñones could watch it. Alfaro-Moncada again
answered “yes” to both questions. Quiñones then used Alfaro-Moncada’s player
to watch portions of both DVDs and confirmed that they contained child
pornography. After that, Alfaro-Moncada’s cabin was secured and he was taken
into custody.
6 II.
A grand jury sitting in the Southern District of Florida returned an
indictment charging Alfaro-Moncada with possession of child pornography, in
violation of 18 U.S.C. § 2252(a)(4)(B). Two weeks after being indicted, he filed a
motion to suppress the DVDs and his statements about them, contending that the
search of his cabin had violated his Fourth Amendment rights. After conducting
an evidentiary hearing, a magistrate judge reported that the search of Alfaro-
Moncada’s cabin was a routine border search requiring no level of suspicion and
recommended that the suppression motion be denied. The district court adopted
the magistrate judge’s report and recommendation and denied the motion.
III.
Alfaro-Moncada’s trial took only a day. The government presented the
testimony of Specialist Meyer and Officer Quiñones and introduced into evidence,
among other things, five still images taken from the DVDs. Alfaro-Moncada
objected to the images’ admission, protesting that he had stipulated that the DVDs
contained child pornography.
Alfaro-Moncada took the stand and testified that he bought both DVDs at a
flea market in Colombia. An apparently indiscriminate shopper, Alfaro-Moncada
claimed that he purchased the DVDs without knowing what they were or really
7 looking at them. He said that it was not until he got back to the ship and watched
parts of them that he realized that they contained child pornography. Once he
realized what they were, he tossed them in his desk drawer planning to throw them
overboard later. He testified that the reason he never got rid of the DVDs was that
he had gotten busy, rough seas had made him ill, and he had forgotten about them.
Rejecting Alfaro-Moncada’s story, the jury found him guilty as charged of
possession of child pornography.
At sentencing, the district court determined that Alfaro-Moncada’s base
offense level was 18. See U.S.S.G. § 2G2.2(a)(1). That was enhanced two points
because the DVDs depicted children under the age of twelve, see § 2G2.2(b)(2),
four points because the DVDs portrayed “sadistic or masochistic conduct or other
depictions of violence,” see § 2G2.2(b)(4), and five more points because the
DVDs contained more than 600 images of child pornography, see §
2G2.2(b)(7)(D). The result was a total offense level of 29. Because he had no
criminal record, Alfaro-Moncada had a criminal history category of I. See
U.S.S.G. Ch. 5 Pt. A. The resulting guidelines range was 87 to 108 months
imprisonment. See id. The district court imposed a sentence of 87 months in
prison and 10 years of supervised release.
8 IV.
Alfaro-Moncada contends that: (1) his motion to suppress should have been
granted because the search of his cabin violated his Fourth Amendment rights; (2)
there was insufficient evidence to support his conviction; (3) the district court
erred in allowing the government to show five still images from the DVDs to the
jury after he had stipulated that they contained child pornography; and (4) his 87-
month sentence is unreasonable.
A.
Searches conducted at the border are analyzed in two steps. See United
States v. Ramsey, 431 U.S. 606, 97 S.Ct. 1972 (1977). The first step is to
determine if the search was authorized by statute, see id. at 611–15; 97 S.Ct. at
1976–78, and, if so, the second step is to decide if the search was reasonable under
the Fourth Amendment, see id. at 615–16; 97 S.Ct. at 1978.
The government contends that the Agricultural Enforcement Team was
authorized by 19 U.S.C. § 1581(a) to search Alfaro-Moncada’s cabin. That statute
provides that any “officers of the customs” may “at any time go on board of any
vessel . . . at any place in the United States” and “search the vessel . . . and every
part thereof.” 19 U.S.C. § 1581(a). An “officer of the customs” includes “any
officer of the United States Customs Service . . . or any agent or other person . . .
9 authorized by law . . . to perform any duties of an officer of the Customs Service.”
Id. § 1401. The Homeland Security Act of 2002 transferred all customs functions,
with the exception of certain revenue-related ones, to the Department of Homeland
Security. See 6 U.S.C. §§ 203(1), 212(a)(1). Customs border activities are now
performed by United States Customs and Border Protection, which is part of the
Department of Homeland Security. See Ruth Ellen Wasem, Cong. Research Serv.,
Border Security: Inspections Practices, Policies, and Issues 6 (2004). The
members of the Agricultural Enforcement Team, all employees of Customs and
Border Protection, were thus “officer[s] of the customs” within the meaning of §
1581(a). The Team boarded the RIO MIAMI while it was docked three miles up
the Miami River, which is a “place in the United States,” and Alfaro-Moncada’s
cabin was a part of the ship. See § 1581(a) (allowing officer of the customs to
“search the vessel . . . and every part thereof”). The Team therefore had statutory
authority under § 1581(a) to search the cabin.
Of course, “no Act of Congress can authorize a violation of the
Constitution,” Almeida-Sanchez v. United States, 413 U.S. 266, 272, 93 S.Ct.
2535, 2539 (1973), which brings us to the second step of the Ramsey analysis:
whether the statutorily authorized search violated the Fourth Amendment. Neither
the Supreme Court nor this Court has ever addressed § 1581(a)’s constitutionality
10 in the circumstances presented by this case. The Supreme Court has, however,
upheld the constitutionality of § 1581(a) to the extent that it authorizes customs
officers, without any level of suspicion, to board vessels located in waters
providing ready access to the open seas and conduct a document inspection. See
United States v. Villamonte-Marquez, 462 U.S. 579, 588–593, 103 S. Ct. 2573,
2579–2582 (1983). In doing so, the Supreme Court noted the broad grant of
authority that § 1581(a) confers on customs officers but expressly limited its
decision to document inspections. See id. at 581 n.2, 103 S.Ct. at 2575 n.2. More
recently, the Supreme Court held that § 1581(a) authorizes customs officers,
without any level of suspicion, to remove, disassemble, and reassemble an
automobile’s gas tank to look for contraband while the automobile is located at a
secondary inspection area at the border. See United States v. Flores-Montano, 541
U.S. 149, 153–56, 124 S.Ct. 1582, 1585–87 (2004).
When the RIO MIAMI, including Alfaro-Moncada’s cabin, was searched, it
was docked at the functional equivalent of the border—making this a border
search case. See United States v. Moreno, 778 F.2d 719, 721 (11th Cir. 1985)
(noting that the point where a ship first docks after arriving from a foreign country
is the functional equivalent of the border). If the Agricultural Enforcement Team
had boarded the RIO MIAMI to perform a document inspection, Villamonte-
11 Marquez probably would control, and if the Team had searched equipment or
cargo on the vessel the Flores-Montano decision probably would control. What
distinguishes this case from those two and makes it more difficult is that the search
was of living quarters on a vessel. The issue is whether a search without
reasonable suspicion of a crew member’s living quarters on a foreign cargo vessel
that is entering this country is unreasonable for Fourth Amendment purposes.
To determine the reasonableness of a border search, or of any search for that
matter, we weigh “its intrusion on [an] individual’s Fourth Amendment interests
against its promotion of legitimate governmental interests.” United States v.
Denson, 574 F.3d 1318, 1338 (11th Cir. 2009) (quotation marks omitted); see also
United States v. Richards, 638 F.2d 765, 770 (5th Cir. Mar. 1981)5 (“Because the
Fourth Amendment expressly prohibits only unreasonable warrantless searches, it
patently incorporates a balancing test, weighing in one measure the level of
intrusion into individual privacy and in the other the public interest to be
served.”); United States v. Himmelwright, 551 F.2d 991, 994 (5th Cir. 1977)
(same).
5 We adopted as binding precedent all Fifth Circuit decisions prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
12 Even though it does involve weighing individual privacy and public
interests, “the Fourth Amendment’s balance of reasonableness is qualitatively
different at the international border than in the interior.” United States v. Montoya
de Hernández, 473 U.S. 531, 538, 105 S.Ct. 3304, 3309 (1985). At the border, an
individual has a lesser expectation of privacy, the government has a greater
interest in searching, and the balance between the interests of the government and
the privacy right of the individual is struck more favorably to the government. Id.
at 539–40, 105 S.Ct. at 3309–10 (citations omitted). The United States’
paramount interest in conducting searches at its borders is national self-protection.
See Flores-Montano, 541 U.S. at 153, 124 S.Ct. at 1586 (“It is axiomatic that the
United States, as sovereign, has the inherent authority to protect, and a paramount
interest in protecting, its territorial integrity.”); id. at 152, 124 S.Ct. at 1585 (“The
Government’s interest in preventing the entry of unwanted persons and effects is
at its zenith at the international border.”); Carroll v. United States, 267 U.S. 132,
154, 45 S.Ct. 280, 285 (1925) (“Travelers may be so stopped in crossing an
international boundary because of national self-protection reasonably requiring
one entering the country to identify himself as entitled to come in, and his
belongings as effects which may be lawfully brought in.”); see also Bourgeois v.
Peters, 387 F.3d 1303, 1315 (11th Cir. 2004) (noting that transborder travel is a
13 context in which compelling state interests diminish an individual’s expectation of
privacy); United States v. Chemaly, 741 F.2d 1346, 1350 (11th Cir. 1984)
(observing that the Fourth Amendment is relaxed at the border “[b]ecause of the
strong policy of national self protection”).
Because of the United States’ strong interest in national self-protection,
“[r]outine searches of the persons and effects of entrants are not subject to any
requirement of reasonable suspicion, probable cause, or warrant.” Montoya de
Hernández, 473 U.S. at 538; 105 S.Ct. at 3309; see also Denson, 574 F.3d at 1339
(“It is beyond peradventure that searches made at the border, pursuant to the long-
standing right of the sovereign to protect its territorial integrity, renders
preliminary searches and seizures per se reasonable . . . . Entrants, therefore, are
subject to search even in the absence of reasonable suspicion, probable cause, or
warrant.” (citations omitted)). A person may be subjected to a pat-down search or
frisk. See United States v. Ramos, 645 F.2d 318, 322 (5th Cir. Unit B 1981) (“[A]
routine, non-offensive pat-down or frisk made at the border is justified [solely] by
a traveler’s request to cross our national border.”). A traveler’s luggage may be
inspected. See United States v. Rice, 635 F.2d 409, 410 (5th Cir. Unit B 1981)
(noting that no articulable suspicion is required to conduct a routine search of
luggage at the border). Incoming international mail may be examined. See United
14 States v. Pringle, 576 F.2d 1114, 1117–18 (5th Cir. 1978) (upholding
suspicionless search of incoming international mail). Vehicles may be searched.
See United States v. Emmens, 893 F.2d 1292, 1294 (11th Cir. 1990) (“[N]either a
warrant nor any level of suspicion is required to search vehicles, including aircraft,
arriving in the United States.”). All without any level of suspicion. Those
searches are “reasonable simply by virtue of the fact that they occur at the border.”
Denson, 574 F.3d at 1339; see also Nat’l Treasury Employees Union v. Von Raab,
489 U.S. 656, 665, 109 S.Ct. 1384, 1390 (1989) (“[N]either a warrant nor probable
cause, nor, indeed, any measure of individualized suspicion, is an indispensable
component of reasonableness in every circumstance.”); Skinner v. Ry. Labor
Executives’ Ass’n, 489 U.S. 602, 624, 109 S.Ct. 1402, 1417 (1989) (“In limited
circumstances, where the privacy interests implicated by the search are minimal,
and where an important governmental interest furthered by the intrusion would be
placed in jeopardy by a requirement of individualized suspicion, a search may be
reasonable despite the absence of such suspicion.”); Ramsey, 431 U.S. at 619, 97
S.Ct. at 1980 (“Border searches, then, from before the adoption of the Fourth
Amendment, have been considered to be ‘reasonable’ by the single fact that the
person or item in question had entered into our country from outside.”).
15 Even at the border, however, reasonable suspicion is required for highly
intrusive searches of a person’s body such as a strip search or an x-ray
examination. See, e.g., Brent v. Ashley, 247 F.3d 1294, 1302 (11th Cir. 2001)
(concluding that strip search of airline passenger arriving at Miami International
Airport from Nigeria without reasonable suspicion that the passenger was
smuggling drugs violated the Fourth Amendment); United States v. McMurray,
747 F.2d 1417, 1420 (11th Cir. 1984) (“A strip search requires a particularized
‘reasonable suspicion.’ This standard is met ‘by a showing of articulable facts
which are particularized as to the person and as to the place to be searched.’”
(citations omitted)); United States v. Mosquera-Ramirez, 729 F.2d 1352, 1353
(11th Cir. 1984) (“[A]n x-ray search performed at the border is reasonable if based
on the same amount of suspicion required for a strip search.”); United States v. De
Gutierrez, 667 F.2d 16, 19 (11th Cir. 1982) (“The well-established rule in this
circuit is that a strip search conducted at the border meets the requirements of the
fourth amendment if it is supported by ‘reasonable suspicion’ on the part of the
customs agent.”).6
6 In Montoya de Hernández, the Supreme Court held that “the detention of a traveler at the border, beyond the scope of a routine customs search and inspection, is justified at its inception if customs agents, considering all the facts surrounding the traveler and her trip, reasonably suspect that the traveler is smuggling contraband in her alimentary canal.” 473 U.S. at 541, 105 S.Ct. at 3310. The Court did not decide “what level of suspicion, if any, is required for nonroutine border searches such as strip, body cavity, or involuntary x-ray searches.” Id. at 541 n.4, 105
16 While Alfaro-Moncada was not subjected to a highly intrusive search of his
body, his cabin was searched and that implicates significant Fourth Amendment
principles. A cabin is a crew member’s home—and a home “receives the greatest
Fourth Amendment protection.” See United States v. McGough, 412 F.3d 1232,
1236 (11th Cir. 2005); see also Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct.
2038, 2041 (2001) (“‘At the very core’ of the Fourth Amendment ‘stands the right
of a man to retreat into his own home and there be free from unreasonable
governmental intrusion.’” (quoting Silverman v. United States, 365 U.S. 505, 511,
81 S.Ct. 679, 683 (1961))); Payton v. New York, 445 U.S. 573, 585, 100 S.Ct.
1371, 1379 (1980) (“[T]he physical entry of the home is the chief evil against
which the wording of the Fourth Amendment is directed.” (quotation marks
omitted)); id. at 590, 100 S.Ct. at 1382 (“[T]he Fourth Amendment has drawn a
firm line at the entrance to the house.”).
In none of those decisions discussing the Fourth Amendment protections
afforded to the home was it at the border, and on that critical distinction this case
turns. A home in a fixed location within the United States cannot be used as a
means to transport into this country contraband or weapons of mass destruction
S.Ct. at 3310 n.4. We have set that level of suspicion at reasonable suspicion. See Mosquera- Ramirez, 729 F.2d at 1353; United States v. Vega-Barvo, 729 F.2d 1341, 1345 (11th Cir. 1984).
17 that threaten national security. A crew member’s cabin, like the rest of the ship on
which it is located, can and does pose that threat. See Dep’t of Homeland Sec.,
The National Strategy for Maritime Security 4 (2005) (“Vessels can be used to
transport powerful conventional explosives or [weapons of mass destruction] for
detonation in a port. . . .”); John F. Frittelli, Cong. Research Serv., Port and
Maritime Security: Background and Issues for Congress 1 (2005) (“[S]ecurity
experts are worried that the maritime transportation system could be used by
terrorists to smuggle personnel, weapons of mass destruction, or other dangerous
materials into the United States.”); Gen. Accounting Office, Homeland Security:
Process for Reporting Lessons Learned from Seaport Exercises Needs Further
Attention 1 (2005) (“Seaports are vulnerable entry points for bombs or other
devices smuggled into cargo ships. . . .”); JayEtta Z. Hecker, Gen. Accounting
Office, Port Security: Nation Faces Formidable Challenges in Making New
Initiatives Successful 3 (2002) (“Drugs and illegal aliens are routinely smuggled
into this country, not only in small boats but also hidden among otherwise
legitimate cargoes on large commercial ships. These same pathways are available
for exploitation by a terrorist organization or any nation or person wishing to
attack [the United States] surreptitiously.”). That threat is the reason why “the
Fourth Amendment balance between the interests of the Government and the
18 privacy right of the individual is . . . struck much more favorably to the
Government at the border.” Montoya de Hernández, 473 U.S. at 540, 105 S.Ct at
3310; see also Carroll, 267 U.S. at 154, 45 S.Ct. at 285; Flores-Montano, 541 U.S.
at 152, 124 S.Ct. at 1585.
The concern that contraband or worse will be smuggled into this country has
special force in modern times. At the dawn of the atomic age, Churchill warned
that “[t]he Dark Ages may return—the Stone Age may return on the gleaming
wings of science; and what might now shower immeasurable material blessings
upon mankind may even bring about its total destruction.”7 The gleaming wings
of science have brought us readily transportable chemical and biological weapons,
and there are reports of suitcase-size nuclear bombs, all of which could be used by
terrorists to commit murder on an unimaginable scale and to inflict devastating
economic injury. See, e.g., Patrick Barriot, Nuclear and Radiological Weapons, in
Treating Victims of Weapons of Mass Destruction: Medical, Legal, and Strategic
Aspects 188 (Patrick Barriot & Chantal Bismuth eds., 2008) (noting that U.S.
officials fear that terrorists could transport a suitcase bomb into one of the nation’s
7 Winston Churchill, The Sinews of Peace, Address at Westminster College (Mar. 5, 1946), reprinted in William Safire, Lend Me Your Ears: Great Speeches in History 871 (2d ed. 1997).
19 ports via a maritime route); Gen. Accounting Office, Maritime Security: Better
Planning Needed to Help Ensure an Effective Port Security Assessment Program 4
(2004) (“Ports present attractive targets for terrorists: they are sprawling, easily
accessible by water and land, close to crowded metropolitan areas, and interwoven
with complex transportation networks.”); Hecker, Port Security, at 4 (“A terrorist
act involving chemical, biological, radiological, or nuclear weapons at one of [the
nation’s] seaports could result in extensive loss of lives, property, and business;
affect the operations of harbors and the transportation infrastructure (bridges,
railroads, and highways) within the port limits; cause extensive environmental
damage; and disrupt the free flow of trade.”); Jonathan Medalia, Cong. Research
Serv., Terrorist Nuclear Attacks on Seaports: Threat and Response 1 (2005) (“A
terrorist Hiroshima-sized nuclear bomb (15 kilotons, the equivalent of 15,000 tons
of TNT) detonated in a port would destroy buildings out to a mile or two; start
fires . . . ; spread fallout over many square miles; disrupt commerce; and kill many
people.”); Nat’l Comm’n on Terrorist Attacks upon the U.S., The 9/11
Commission Report 391 (2004) (“Opportunities to do harm are as great, or greater,
in maritime or surface transportation” as in commercial aviation). Given the
dangers we face, the paramount national interest in conducting border searches to
protect this nation and its people makes it unreasonable to require any level of
20 suspicion to search any part of a foreign cargo vessel coming into this country.
Crew members’ cabins are no exception because, like any other part of a vessel,
they can be used to smuggle in weapons of mass destruction, illegal devices, or
other contraband.
Of course, this is an “other contraband” case. The Agricultural Enforcement
Team that searched Alfaro-Moncada’s cabin was looking for agricultural
contraband and found child pornography. Even limiting our analysis to the search
for agricultural contraband, however, important national interests are still
involved. See Montoya de Hernández, 473 U.S. at 544, 105 S.Ct. at 3312 (“At the
border, customs officials have more than merely an investigative law enforcement
role. They are also charged, along with immigration officials, with protecting this
Nation from entrants who may bring anything harmful into this country, whether
that be communicable diseases, narcotics, or explosives.” (emphasis added)).
Agricultural products can carry pests and diseases that “can harm the economy, the
environment, plant and animal health, and public health.” Gen. Accounting
Office, Homeland Security: Management and Coordination Problems Increase the
Vulnerability of U.S. Agriculture to Foreign Pests and Disease 1 (2006); see also
Peyton Ferrier, U.S. Dep’t of Agric., The Economics of Agricultural and Wildlife
Smuggling iv (2009) (“Banned agricultural goods can carry diseases, pathogens,
21 foreign organisms, or contaminants that threaten the health of humans, animals,
and plants; the environment; and the trade status of U.S. exports.”); Gen.
Accounting Office, Homeland Security: Management and Coordination Problems,
at 37 (“The global marketplace and increased imports of agricultural products and
international travelers into the United States have increased the number of
pathways for the movement and introduction of foreign, invasive agricultural pests
and diseases, such as avian influenza and foot-and-mouth disease.”); Gen.
Accounting Office, Homeland Security: Much is Being Done to Protect
Agriculture from a Terrorist Attack, but Important Challenges Remain 7 (2005)
(“Agricultural inspections at ports of entry [are] the first line of defense against the
entry of foreign pests and diseases” into the United States). The fact that
agricultural inspections are now performed by the Department of Homeland
Security underscores the fact that halting the entry of agricultural contraband into
this country is a component of national security.
Stopping agricultural pests and diseases from entering this country is an
essential function of homeland security; when they have come across our borders,
extensive damage has resulted. See Daniel Bertoni, Gen. Accounting Office,
Invasive Forest Pets: Recent Infestations and Continued Vulnerabilities at Ports of
Entry Place U.S. Forests at Risk 11 (2006) (The infestations of the Asian
22 longhorned beetle, emerald ash borer, and P.ramorum in the United States “began
when the pests passed through U.S. ports of entry, hitchhiking in vehicles, cargo,
or travelers’ personal belongings. That pests have become established indicates
that the first line of defense at the border has been breeched over the years.”); id.
at 6 (Efforts to eradicate the Asian longhorned beetle in New Jersey, New York,
and Illinois have resulted in the removal of 8,000 infested trees); id. (Cost of
removing and replacing trees infested by emerald ash borer estimated to reach $7
billion over 25-year period); id. at 6–7 (P.ramorum “has killed tens of thousands
of trees and led to the destruction of over 1 million nursery plants.”); Homeland
Security: Much is Being Done to Protect Agriculture from a Terrorist Attack, at 47
(From 1995 to 2005, Florida lost 2.1 million citrus trees because of the spread of
citrus canker, a highly contagious bacterial disease); Lawrence J. Dyckman, Gen.
Accounting Office, Bioterrorism: A Threat to Agriculture and the Food Supply 4
(2003) (“[T]he United Kingdom has estimated that its outbreak of foot-and-mouth
disease resulted in over $10 billion (U.S.) in losses to tourism and the food and
agriculture sectors and the slaughter of over 4 million animals. Estimates of direct
costs for a similar outbreak in the United States run has high as $24 billion with
the destruction of about 13 million animals.”); id. at 6 (“Foot-and-mouth disease
23 can be carried on the shoes of international passengers and the packages they
carry, in international mail, and in garbage from international carriers.”).
Not only is the national interest in searching for agricultural contraband
coming into this country strong, but any expectation of privacy a crew member has
in his living quarters is weaker when those quarters are brought to the border of
this country. Montoya de Hernández, 473 U.S. at 539, 105 S.Ct. at 3309–10; see
also United States v. Hidalgo-Gato, 703 F.2d 1267 (11th Cir. 1983) (“On crossing
a border the individual is on notice that a search may be made, and his privacy is
arguably less invaded by such search.” (quotation and other marks omitted)).
There are no inspection-free zones on a foreign cargo vessel at the border, just as
there are none in an airplane or a motor vehicle. Someone who travels to the
border in a recreational vehicle that also serves as his home could not reasonably
expect that it would not be subject to search. The same is true of a crewman
whose cabin, along with the rest of his ship, travels three miles up the Miami
River to dock.
For all of these reasons, we conclude that the suspicionless search of Alfaro-
Moncada’s cabin on the MV RIO MIAMI, a foreign cargo ship, while it was
docked at the Antillean Marine on the Miami River, was not a violation of the
Fourth Amendment.
24 B.
Alfaro-Moncada attacks his conviction and sentence on other grounds. He
contends that there was insufficient evidence to support his conviction.
Specifically, Alfaro-Moncada argues that the government failed to prove the
knowledge element of 18 U.S.C. § 2252(a)(4)(B)—that he “knowingly” possessed
child pornography. He asserts that the evidence showed that he bought the DVDs
by accident and kept them because of forces beyond his control, namely his
forgetful memory and churning stomach.
Section 2252(a)(4)(B) criminalizes the knowing possession of child
pornography. That section provides:
Any person who . . . knowingly possesses, or knowingly accesses with intent to view, 1 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction that . . . has been shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer, if . . . the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and . . . such visual depiction is of such conduct . . . shall be punished as provided in [§ 2252(b)(2)].
18 U.S.C. § 2252(a)(4)(B). To satisfy the knowledge element of § 2552(a)(4)(B),
the government had to prove that Alfaro-Moncada knew the DVDs in his
possession showed minors engaging in sexually explicit conduct. See United
25 States v. X-Citement Video, Inc., 513 U.S. 64, 78, 115 S.Ct. 464, 472 (1994)
(concluding that “the term ‘knowingly’ in § 2252 extends both to the sexually
explicit nature of the material and to the age of the performers”); United States v.
Lacy, 119 F.3d 742, 747 (9th Cir. 1997) (“Possession of [DVDs] is ordinarily
lawful. The presence of illegal images on the [DVDs] is a crucial element
separating legal innocence from wrongful conduct. Accordingly, a defendant may
be convicted under § 2252(a)(4)(B) only upon a showing that he knew the matter
in question contained an unlawful visual depiction.” (quotation marks and
citations omitted)); see also United States v Woodruff, 296 F.3d 1041, 1047 (11th
Cir. 2002) (“We have long held that the term ‘knowingly’ means that the act was
performed voluntarily and intentionally, and not because of a mistake or
accident.”).
Alfaro-Moncada’s sufficiency challenge is free of anything resembling
merit. The government introduced into evidence the covers of the DVD cases
found in his desk drawer by Specialist Meyer and Officer Quiñones. On both of
those covers there were photos of young girls engaging in sex acts. Although
Alfaro-Moncada testified that he had bought the DVDs without knowing that they
contained child pornography, the jury was free to reject that testimony and believe
the opposite to be true. See United States v. Williams, 390 F.3d 1319, 1326 (11th
26 Cir. 2004) (“Where some corroborative evidence of guilt exists for the charged
offense . . . and the defendant takes the stand in h[is] own defense, the
[d]efendant’s testimony, denying guilt, may establish, by itself, elements of the
offense. This rule applies with special force where the elements to be proved for a
conviction include highly subjective elements [such as] the defendant’s intent or
knowledge.” (quotation marks and citations omitted)). Moreover, Alfaro-
Moncada admitted in his testimony that he had looked at the covers of the DVD
cases when he got back to the RIO MIAMI and watched a “little bit” of the DVDs
inside. At that point, by his own admission, he knew that he was in possession of
child pornography. His own testimony therefore established the knowledge
element of § 2252(a)(4)(B).
Alfaro-Moncada did testify that he intended to throw the DVDs overboard
after he discovered that they contained child pornography, but the jury was free
not to believe him. See id. Even taking his testimony as true, once he discovered
the DVDs contained child pornography and made the decision to put them in his
desk drawer, he was in knowing possession of them. Although Alfaro-Moncada
seems to think otherwise, the grace period for disposing of child pornography after
discovering it is not an extended one. There was plenty of evidence to support the
conviction.
27 C.
Alfaro-Moncada also contends that the district court erred in allowing the
government to show five still images of child pornography to the jury. Since he
had stipulated that the DVDs contained child pornography, he argues that showing
the images to the jury was done only to prejudice and inflame the minds of the
jurors and was improper under Federal Rule of Evidence 403. Rule 403 permits a
district court to exclude relevant evidence when its probative value is substantially
outweighed by its unfairly prejudicial nature. See Fed. R. Evid. 403 (“Although
relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.”). But Rule 403, we have
cautioned, “is an extraordinary remedy which the district court should invoke
sparingly, and the balance should be struck in favor of admissibility.” United
States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003) (quotation and other marks
omitted). We have also said that “in reviewing issues under Rule 403, we look at
the evidence in a light most favorable to its admission, maximizing its probative
value and minimizing its undue prejudicial impact.” Id. (quotation and other
marks omitted).
28 Admission of the five still images from the DVDs served valid purposes.
See Old Chief v. United States, 519 U.S. 172, 190, 117 S.Ct. 644, 655 (1997).
Those images proved that the DVDs actually contained child pornography,
although it is true that Alfaro-Moncada stipulated to that fact. See id. at 186–87;
117 S.Ct. at 653 (“[The] standard rule [is] that the prosecution is entitled to prove
its case by evidence of its own choice, or, more exactly, that a criminal defendant
may not stipulate or admit his way out of the full evidentiary force of the case as
the Government chooses to present it.”). They also tended to show that Alfaro-
Moncada knew he was in possession of child pornography, a fact that he did not
stipulate. Even if showing the images to the jury created some risk of injecting
emotions into the jury’s decision-making, see id. at 180, 117 S.Ct. at 650, it was
not an abuse of discretion for the district court to decide that the risk did not
substantially outweigh the still images’ probative value. That is especially true
since the jury was only shown a small number of the images on the DVDs—only 5
out of 4,650. See Dodds, 347 F.3d at 899 (finding no abuse of discretion where
images had multiple probative purposes, the district court took precautions to
prevent unfair prejudice, and only 66 of 3,400 images were shown to the jury).
29 D.
Alfaro-Moncada also challenges the reasonableness of his 87-month
sentence. “We review sentencing decisions only for abuse of discretion, and we
use a two-step process.” United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir.
2009). First, we must “ensure that the district court committed no significant
procedural error, such as failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the §
3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence-including an explanation for any deviation
from the Guidelines range.” Id. (quoting Gall v. United States, 552 U.S. 38, 51,
128 S.Ct. 586, 597 (2007)). If we conclude that the sentence is procedurally
sound, the second step is to review the “substantive reasonableness” of the
sentence, taking into account the totality of the circumstances, “including the
extent of any variance from the Guidelines range.” Gall, 552 U.S. at 51, 128 S.Ct.
at 597. If the district court’s sentence is within the guidelines range, we expect
that the sentence is reasonable. See United States v. Talley, 431 F.3d 784, 788
(11th Cir. 2005) (“After Booker, our ordinary expectation [of reasonableness] still
has to be measured against the record, and the party who challenges the sentence
bears the burden of establishing that the sentence is unreasonable in the light of
30 both that record and the factors in section 3553(a).”); see also United States v.
Hunt, 526 F.3d 739, 746 (11th Cir. 2008) (“Although we do not automatically
presume a sentence within the guidelines range is reasonable, we ‘ordinarily . . .
expect a sentence within the Guidelines range to be reasonable.” (quoting Talley,
431 F.3d at 788)).
When deciding upon a sentence, the district court must evaluate all of the §
3553(a) factors. Gall, 552 U.S. at 49–50, 128 S.Ct. at 596; Shaw, 560 F.3d at
1237. In assessing the factors, the district court is “to consider every convicted
person as an individual and every case as a unique study in the human failings that
sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.”
Gall, 552 U.S. at 52, 128 S.Ct. at 598 (quotation marks omitted). “[A] district
court has ‘considerable discretion’ in deciding whether the § 3553(a) factors
justify a variance and the extent of one that is appropriate.” Shaw, 560 F.3d at
1238 (quoting United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)). We
give that decision “due deference” because district courts have an “institutional
advantage” in making sentencing determinations. Id. We may vacate a sentence
only “‘if we are left with the definite and firm conviction that the district court
committed a clear error of judgment in weighing the § 3553(a) factors by arriving
at a sentence that lies outside the range of reasonable sentences dictated by the
31 facts of the case.’” Id. (quoting Pugh, 515 F.3d at 1191). “[T]hat we ‘might
reasonably have concluded that a different sentence was appropriate is insufficient
to justify reversal.’” Id. (quoting Gall, 552 U.S. at 51, 128 S.Ct. at 597)).
As for procedural error, Alfaro-Moncada does not contend that the district
court incorrectly calculated the sentencing guidelines or treated them as
mandatory. Instead, he argues that the district court failed to adequately consider
the § 3553(a) factors. We disagree. Before imposing its sentence, the district
court stated that it had “considered the statements of the parties, the presentence
report containing the advisory guidelines and the statutory factors.” The court’s
acknowledgment that it had considered Alfaro-Moncada’s arguments and the §
3553(a) factors “alone is sufficient in post-Booker sentences.” United States v.
Scott, 426 F.3d 1324, 1330 (11th Cir. 2005).
Because we find that his sentence is “procedurally sound,” Shaw, 560 F.3d
at 1237, we next must determine whether Alfaro-Moncada’s sentence is
substantively reasonable. He contends that his 87-month sentence—a sentence at
the lowest end of his advisory guideline range—is “greater than necessary,” see 18
U.S.C. § 3553(a), to achieve the purposes of sentencing. He argues that the
district court failed to place sufficient weight on the nature and circumstances of
the offense and his personal characteristics and history. It is his position that a
32 sentence below the advisory guidelines range would have adequately reflected the
seriousness of his offense and provided just punishment.
An 87-month, within the guidelines, sentence in this case is not outside the
range of reasonableness. See Shaw, 560 F.3d at 1238. The district court
explained that it was imposing that sentence because of the harm caused by child
pornography, the strong interest in deterring its consumption, and Alfaro-
Moncada’s failure to recognize the wrongfulness of his conduct. Those were all
valid considerations under § 3553(a). See 18 U.S.C. § 3553(a)(2)(A) (seriousness
of the offense); § 3553(a)(2)(B) (afford adequate deterrence); § 3553(a)(2)(C)
(protect the public from further crimes of the defendant). The court’s decision to
sentence Alfaro-Moncada to a term of imprisonment at the lowest end of his
advisory guidelines range was lenient enough. The sentencing decision was not an
abuse of discretion.
IV.
Alfaro-Moncada’s conviction and sentence are AFFIRMED.