United States v. Jameson

371 F. App'x 963
CourtCourt of Appeals for the Tenth Circuit
DecidedApril 8, 2010
Docket08-5170
StatusUnpublished
Cited by3 cases

This text of 371 F. App'x 963 (United States v. Jameson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth 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. Jameson, 371 F. App'x 963 (10th Cir. 2010).

Opinion

ORDER AND JUDGMENT *

STEPHANIE K. SEYMOUR, Circuit Judge.

Michael Leon Jameson appeals the district court’s overruling of his motion to suppress evidence obtained in the search of his home, contending the affidavit underlying the warrant “failed to show that the prohibited material sought had moved across state lines.” Aplt. Br. at 9. The district court denied the motion, reasoning that the affidavit provided probable cause for the issuance of the search warrant authorizing the search. We agree and affirm.

On November 28, 2007, Officer W. Scott Gibson, a Task Force Officer of the Federal Bureau of Investigation assigned to the Oklahoma City Field Office Innocent Images National Initiative, conducted a peer-to-peer (“P2P”) network search for shared files associated with child pornography images. During the course of this search, he observed internet protocol (“IP”) address 68.12.48.190 offering a list of files containing titles consistent with those given to child pornography. Officer Gibson downloaded the files and determined that they contained child pornography. He then submitted an administrative subpoena to Cox Communications, the internet server provider, seeking the subscriber information for the named IP address during the time frame he obtained the files. Cox identified the subscriber as Michael Jame-son, resident of 7916 S. 85th E. Ave., Tulsa, Oklahoma. Asserting that some of the images he obtained were “images that can be shown to have traveled in interstate and/or foreign commerce,” ApltApp. at 16-17 ¶ 33-34, Officer Gibson sought and obtained a search warrant for Mr. Jame-son’s address.

Officer Gibson executed the warrant at Mr. Jameson’s residence, recovering a computer containing images of suspected child pornography. Mr. Jameson was indicted for possessing graphic image files, which had been transported by computer in interstate commerce, of minors engaging in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(4)(B).

Mr. Jameson filed a motion to suppress the evidence gained from the search of his residence contending the warrant failed to establish probable cause because it merely stated in a conclusory fashion that the images on Mr. Jameson’s computer “can be shown to have traveled in interstate or foreign commerce,” ApltApp. at 5, without any facts to support that conclusion. Following a hearing on the merits, the district court denied the motion. Mr. Jameson entered a conditional plea of guilty, reserving his right to appeal the denial of his motion to suppress.

On an appeal from the denial of a motion to suppress, we review the factual findings for clear error, viewing the evidence in the light most favorable to the government. *965 United States v. Cantu, 405 F.3d 1173, 1176 (10th Cir.2005). We review the issuing magistrate judge’s findings of probable cause “very deferentially],” searching only for a “substantial basis” that the underlying affidavit established probable cause. United States v. Riccardi, 405 F.3d 852, 860 (10th Cir.2005).

As we observed in United States v. Schaefer, 501 F.3d 1197, 1200 (10th Cir.2007), to sustain a conviction under 18 U.S.C. § 2252(a)(2) or (a)(4)(B), the government must “establish that in committing the offense, a visual image ‘has been mailed, or has been shipped or transported in interstate or foreign commerce ... by any means including by computer.’ ” We held there that use of the internet, standing alone, did not satisfy the interstate commerce element of the 2007 version of 18 U.S.C. § 2252(a)(2) and (a)(4)(B). 1 Id. at 1200-01. Relying on Schaefer, Mr. Jameson reiterates his argument that Officer Gibson’s affidavit “presented no facts concerning interstate nexus, only a conclusory statement that such facts ‘can be shown.’ ” Aplt. Br. at 12 (emphasis in original) (citation omitted). Accordingly, he contends the affidavit failed to establish there was probable cause to believe the child pornography had been transported in interstate commerce. We are not persuaded.

Mr. Jameson’s reliance on Schaefer is misplaced. “There is a large difference between the two things to be proved (guilt and probable cause), as well as between the tribunals which determine them, and therefore a like difference in the quanta and modes of proof required to establish them.” United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) (observing that hearsay may serve as a basis for a search warrant, notwithstanding its inadmissibility at trial) (internal quotation marks and citation omitted); see also United States v. Soderstrand, 412 F.3d 1146, 1153 (10th Cir.2005) (“[T]he quanta of proof appropriate in ordinary judicial proceedings are inapplicable to the decision to issue a warrant.” (citation, internal quotation marks, and ellipsis omitted)). In Schaefer, we considered whether the defendant’s mere use of the internet was sufficient to sustain a conviction, not whether there was probable cause to believe a crime had been committed. Mr. Jameson has offered no persuasive authority for an expansion of Schaefer’s rule to this context.

As the Supreme Court observed in Illinois v. Gates that “[p]robable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.” 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). “The task of the issuing magistrate is simply to make a practical common-sense decision whether, given all the circumstances set forth in the affidavit before him, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. at 238, 103 S.Ct. 2317. “[T]he duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.” New York v. P.J. Video, Inc., 475 U.S. 868, 876, 106 S.Ct. 1610, 89 L.Ed.2d 871 (1986) (internal alternations, quotation marks, and citation omitted).

*966 Reviewing the affidavit, we note that it contained more than a mere “conclusory statement” regarding the alleged contraband’s travel in interstate commerce. In Section I, the affidavit summarized the role of computers in the distribution and receipt of child pornography. Aplt.App. at 2-3.

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371 F. App'x 963, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jameson-ca10-2010.