United States v. Upham

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-1121



                          UNITED STATES,



                            Appellee,



                                v.



                           TROY UPHAM,



                      Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT



FOR THE DISTRICT OF MAINE        



           [Hon. Morton A. Brody, U.S. District Judge]


Before



            Boudin, Lynch, and Lipez, Circuit Judges.


Donald R. Furman, Jr., on brief for appellant.

     F. Mark Terison, Assistant United States Attorney, with whom

Jay P. McClosky, United States Attorney, and Gail Fisk Malone,

Assistant United States Attorney, were on brief for appellee.


February 12, 1999


BOUDIN, Circuit Judge.  In February 1997, U.S. Customs

agents who were monitoring a "chat room" on the Internet, while

engaged in an undercover investigation, received in Buffalo, New

York a number of images depicting child pornography.  Records of

the Internet service provider showed that the  computer from which

the images had been sent was owned by Kathi Morrissey at an address

in Costigan, Maine.  Acting pursuant to a warrant, the agents

conducted a search of Morrissey's home on March 21, 1997.

  Among the items seized and taken from the house were

Morrissey's computer and a number of diskettes.  Using a computer

utilities program and the "undelete" function, the government was

able to recover from the computer's hard disk and the diskettes

some 1,400 previously deleted images of minors engaged in sexually

explicit conduct.  These images included the relatively small

number of images that the agents had received in Buffalo in

February 1997 from Morrissey's computer.

  Further investigation revealed that from about September

1996 until March 1997, the inhabitants of Morrissey's house

included Morrissey, her two young children and her then-boyfriend

Troy Upham.  Later  evidence, including admissions from Upham,

showed that Upham was the principal user of the computer and that

child pornography had been sent and received by him over the

Internet on a regular basis.  Upham left Morrissey's home for

Canada in mid-March 1997.  In May 1997, he was indicted by a

federal grand jury, and he returned from Canada to face trial.

  As set forth in a superceding indictment, the grand jury

charged Upham with four counts of transporting in interstate

commerce computer graphic images of minors engaged in sexually

explicit conduct, the production of which involved the use of

minors engaged in such conduct; each count related to transmissions

on a different date in February 1997.  See 18 U.S.C.  2252(a)(1). 

The fifth count charged Upham with possession, on "a date

uncertain" but between about February 7, 1997, and March 21, 1997,

of the 1,400 images of minors engaged in sexually explicit conduct,

the production of which involved the use of minors engaged in such

conduct.  See 18 U.S.C.  2252(a)(4)(B).

  Asserting numerous grounds, Upham filed a motion to

suppress evidence derived from the search of Morrissey's home.  On

August 11, 1997, the district court conducted an evidentiary

hearing on the motion.  The district court denied the motion, and

the images derived from the search--recaptured from their deleted

state--were later admitted at trial.  We defer for the moment a

description of the grounds now advanced by Upham to justify

suppression and the government's responses to those claims.

  Upham was tried by a jury in a three-day trial conducted

in September 1997.  The government provided evidence as to the

images received in Buffalo from Morrissey's computer and of those

recovered from the computer hard drive and disks seized in the

search.  It also offered evidence connecting Upham with the

transmission and receipt of the images. Finally, a doctor testified

for the government to provide medical evidence as to the ages of

the children depicted in the images. 

  Upham testified at trial in his own defense but did not

deny sending and receiving child pornography over the Internet. 

Instead, Upham argued that he had been sexually abused as a child

and that his exchanges of such images on the Internet with other

"chat room" participants were done in connection with his

preparation of a serious book relating to child abuse.  He said

that he had written a small number of pages, albeit over a very

long period, as part of this project.

  The jury convicted Upham on all five counts.  The jury

was given a separate interrogatory to be answered if it convicted

on one or more counts: "Was the defendant's sole purpose in

committing the offense or offenses to produce a serious literary

work?"  The jury answered in the negative.  In due course, Upham

was sentenced to 78 months in prison, the minimum provided by the 

Sentencing Guidelines for the offenses in light of Upham's prior

criminal history.

  Upham now appeals, raising a wide range of issues in a

brief submitted by counsel and in a supplement prepared by Upham

himself.  Of these, the only one requiring full discussion is

Upham's multi-part claim that the motion to suppress should have

granted.  In particular, Upham says that the warrant was too broad

and that its scope was exceeded when the government recovered from

the hard drive and diskettes the images that had previously been

deleted.  

  At the outset, the government objects that Upham had no

standing to challenge the search.  This is so, it says, because

Upham has now conceded that he broke up with Morrissey and moved

out on March 13, 1997, before the search occurred, and he therefore

lacked any privacy interest in the premises.  See Rakas v.

Illinois, 439 U.S. 128, 131 n.1 (1978).  The government concedes

that it did not make this argument in the district court.  Quite

possibly, it did not then have what it now regards as a clear

admission from Upham, namely, that when he moved to Canada, he did

not intend to return to Morrissey's house.

  Although the government has waived the standing argument,

nothing prevents us from considering it if we choose to do so,

always assuming this would not be unfair to Upham.  Cf. United

States v. Pervaz, 118 F.3d 1, 4 (1st Cir. 1997).  In this case we

think it would not be fair.  Despite some evidence of the break-up,

the record is not so clear as to prevent Upham from arguing (and

indeed testifying) that he planned to return or had some other

residual link to the property. The proper place to settle such

issues was the suppression hearing.

  Upham's first challenge to the warrant in this court is

that it was generic in its description of what was to be seized and

did not satisfy the supposed tests for such a warrant.  The 

warrant itself attached, and incorporated by reference, the list of 

materials to be seized that had been included in the application

for the warrant. The first two items on the list--the only ones

directly pertinent here--were as follows:

    Any and all computer software and

  hardware, . . . computer disks, disk drives .

  . . .



    Any and all visual depictions, in any

  format or media, of minors engaging in

  sexually explicit conduct [as defined by the

  statute].



  The government says that neither paragraph is defective. 

The government also says that Upham's attack on the warrant as too

general was not made in the motion to suppress and that Upham is

therefore limited to plain error on this issue.  The government

appears to be right as to waiver, but since we think there was no

error at all, we prefer to address the matter in these terms in

order to give guidance on what may be a recurring issue.   

  The question whether a warrant is sufficiently

"particular" has been much litigated with seemingly disparate

results.  See Twenty-Sixth Annual Review of Criminal Procedure, 85

Geo. L.J. 821, 836-38 & nn. 75-78 (1997)(collecting cases).  The

root is the  Fourth Amendment's direction that a warrant describe 

"particularly" the place to be searched and "the persons or things

to be seized."  U.S. Const. amend IV.  The requirement of

particularity arises out of a hostility to the Crown's practice of

issuing "general warrants" taken to authorize the wholesale

rummaging through a person's property in search of contraband or

evidence.  See Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971).

  The cases on "particularity" are actually concerned with

at least  two rather different problems: one is whether the warrant

supplies enough information to guide and control the agent's

judgment in selecting what to take, see United States v. Abrams,

615 F.2d 541, 545-46 (1st Cir. 1980); and the other is whether the

category as specified is too broad in the sense that it includes

items that should not be seized, see United States v. Kow, 58 F.3d

423, 427 (9th Cir. 1995).  See also Davis v. Gracey, 111 F.3d 1472,

1478-79 (10th Cir. 1997) (discussing both problems). 

Unfortunately, making a warrant more objective may also make it

broader, and vice versa.

  Upham's main attack is on the first paragraph, allowing

the seizure of computer equipment, which he describes as "generic." 

Although Upham relies principally on United States v. Klein, 565

F.2d 183, 188 (1st Cir. 1977), that case was concerned with whether

a warrant was imprecise because it permitted unduly subjective

judgments.  Here, the first paragraph is easily administered based

on objective criteria (i.e., whether the items seized are computer

equipment).  The problem is not imprecision but arguable

overbreadth.

  As a practical matter, the seizure and subsequent off-

premises search of the computer and all available disks was about

the narrowest definable search and seizure reasonably likely to

obtain the images.  A sufficient chance of finding some needles in

the computer haystack was established by the probable-cause showing

in the warrant application; and a search of a computer and co-

located disks is not inherently more intrusive than the physical

search of an entire house for a weapon or drugs.  We conclude, as

did the Ninth Circuit in somewhat similar circumstances, see United

States v. Lacy, 119 F.3d 742, 746-47 (9th Cir. 1997), that the

first paragraph  was not unconstitutionally overbroad.

  Of course, if the images themselves could have been

easily obtained through an on-site inspection, there might have

been no justification for allowing the seizure of all computer

equipment, a category potentially including equipment that

contained no images and had no connection to the crime.  But it is

no easy task to search a well-laden hard drive by going through all

of the information it contains, let alone to search through it and

the disks for information that may have been "deleted."  The record

shows that the mechanics of the search for images later performed

off site could not readily have been done on the spot.

  The government argues, in the alternative, that the

second paragraph, allowing seizure of the unlawful images, alonejustifies the seizure of the equipment regardless of the first

paragraph.  Upham claims that the second paragraph is also not

"particular" enough but does so by misquoting the paragraph and his

objection is unpersuasive.  Our concern with the government's

alternative argument is a different one, which we note without

seeking to resolve the difficult problems thus posed.

     There is no doubt that a warrant that contained only the

second paragraph would permit an on-site search of any "container"

that might reasonably have the images concealed "inside"--including

the computer and any disks.  See United States v. Ross, 456 U.S.

798, 820-22 (1982); United States v. Giannetta, 909 F.2d 571, 577

(1st Cir. 1990).  However, there is some division in the case law

as to whether and when the police may seize and remove from the

premises items that are not named in the warrant merely in the

reasonable hope that a search of those items later on will lead to

recovery of the items that are named.  Certainly, there might be

legitimate doubt whether a warrant authorizing a search of a house

for a murder weapon would permit the police to cart off the entire

contents of the house, including the refrigerator, for purposes of

a later search.

     This problem arises in a variety of different contexts

and in many permutations; matters of degree are involved and there

is probably no single rule that resolves all such situations.  In

this instance, it is unnecessary to decide whether removal of the

computer equipment could be justified solely by the second

paragraph since the first paragraph clearly authorized the seizure

of the equipment, allowing it to be taken off site.  Whether the

subsequent off-site search for the images presented any problem is

the subject to which we next turn.

     Upham's second major claim of error is that the recovery

of previously deleted information on the hard drive and diskettes

was outside the scope of the warrant.  It is settled law that the

search and seizure conducted under a warrant must conform to the

warrant, see Marron v. United States, 275 U.S. 192, 196-97 (1927),

or some well-recognized exception.  E.g., Horton v. California, 496

U.S. 128, 130 (1990); United States v. Robles, 45 F.3d 1, 6-7 (1st

Cir.), cert. denied, 115 S. Ct. 1416 (1995) (plain view seizures). 

Here, Upham's argument is two-fold:  that the warrant did not

authorize a search of the computer at all, and that it did not

authorize the undeleting of previously undeleted information.

     The first branch of the argument is hopeless.  The

warrant explicitly authorized the seizure of both the computer plus

diskettes and the unlawful images.  The images--we ignore the

deletion question for the moment--were "inside" the computer or

diskettes.  The extraction of unlawful images from within the

computer and diskettes was therefore contemplated by the warrant.

See, e.g., State v. Petrone, 468 N.W.2d 676, 681 (Wisc. 1991)

(permitting development of undeveloped film seized pursuant to a

warrant without requiring additional warrant); State v. Warren, 306

S.E.2d 446, 449 (N.C. 1983) (permitting lab processing of

bloodstains gathered in a lawful search without additional

warrant).

     The other and more serious branch of the argument is a

challenge to the recovery of deleted material.  On the diskettes,

the government recovered the images simply by using the undelete

function of the computer.  However, the hard disk had been

reformatted by Upham on March 8, 1997, a process that erases some

of the indexing code that allows undeleting to be done quickly. But

until the deleted information is actually overwritten by new

information, the old information can often be recovered by a

specialized utility program, which is what the government did in

this case.

     The seizure of unlawful images is within the plain

language of the warrant; their recovery, after attempted

destruction, is no different than decoding a coded message lawfully

seized or pasting together scraps of a torn-up ransom note.  SeeCommonwealth v. Copenhefer, 587 A.2d 1353, 1356 (Pa. 1991); cf.Petrone, 468 N.W.2d at 681.  The March 21 warrant did not prescribe

methods of recovery or tests to be performed, but warrants rarely

do so.  The warrant process is primarily concerned with identifying 

what may be searched or seized--not how--and whether there is

sufficient cause for the invasion of privacy thus entailed.

     We turn now, and briefly, to a quite different subject.

Upham has a pair of related arguments, one addressed to the

sufficiency of the evidence and the other to the jury instructions. 

Both build upon the assertion that Upham could not properly be

convicted for knowing possession of unlawful images that he

believed to have been deleted from the computer and diskettes and

may not have known could be recovered.  

     Upham did not present these issues to the trial court. 

He did move for a judgment of acquittal but did not raise this

request or objection.  And he did make objections to the

instructions but not the one now pressed.  Sufficiency of the

evidence objections are waived, if not made below, except where

necessary to avoid "clear and gross" injustice, see United Statesv. Greenleaf, 692 F.2d 182, 185 (1st Cir. 1982), cert. denied, 103

S. Ct. 1522 (1983); and failure to object or make a proper request

at the instruction stage is fatal  except for plain error.  SeeUnited States v. Campbell, 874 F.2d 838, 841 (1st Cir. 1989).

     In this case, we are satisfied that the alleged errors

now complained of had no effect on the verdict and thus fail the

plain error test.  See United States v. Olano, 507 U.S. 725, 732

(1993).  The evidence showed overwhelmingly that Upham knowingly

transmitted, received and possessed unlawful images prior to their

attempted deletion; the recaptured images were perfectly competent

evidence of crimes committed before their deletion.  Conviction did

not depend on the question (which we do not decide) of whether it

would be unlawful standing alone to possess, with the requisite

knowledge, a hard drive or diskettes with deleted (but

recapturable) images.

     Finally, in challenging his sentence, Upham objects that

the district judge refused to afford Upham a downward adjustment

for acceptance of responsibility.  See U.S.S.G.  3E1.1.  Upham is

aware that the adjustment is rarely allowed where the defendant

declines to plead guilty, see id. app. note 2, but he says that in

this case he did not contest possession and insisted on trial only

to present his "First Amendment" defense.

     "Acceptance of responsibility" is not abstractly defined

by the guidelines.  Instead, the concept is refined by a series of

comments, see U.S.S.G.  3E1.1, app. notes 1-6.  One comment ties

the reduction pretty closely to guilty pleas, saying only

"rare[ly]" will the adjustment be granted to one who insists on

trial and adding that even a guilty plea does not assure the

reduction.  See id. app. note 2.  Still, the same comment says that

even a defendant who insists on trial "may" show acceptance in rare

cases, and it illustrates the point:

     This may occur, for example, where a defendant

     goes to trial to assert and preserve issues

     that do not relate to factual guilt (e.g., to

     make a constitutional challenge to a statute

     or a challenge to the applicability of a

     statute to his conduct).

Id.



     Arguably, the main thrust of Upham's defense at trial was

his claim that he had possessed  child pornography in order to

write a book about it.  And it may be that going to trial solely to

present this alleged defense falls within the spirit, if not the

letter, of the guideline comment just quoted.  But the comment does

little more than remove one barrier to the adjustment.  The

surrounding language in the comment, and the purpose of affording

the adjustment, confirm that it still remains for the defendant to

show affirmatively that he did  "accept responsibility" for his

offense.  See also U.S.S.G.  3E1.1(a); United States v. Lombard,

72 F.3d 170, 187 (1st Cir. 1995).  

     Here, the district judge ruled that the factual premise

of the defense was untrue, pointing to the jury's finding that

Upham's conduct had not been prompted solely by literary ambition.

This ruling is not "clearly erroneous," the normal standard of

review.  See United States v. Ocasio-Rivera, 991 F.2d 1, 4 (1st

Cir. 1993).  Indeed, the evidence strongly points to the conclusion

that, however tangled Upham's motivations may have been, sexual

gratification was a central aim of his actions.  Over many years of

purported book writing, Upham had written only a few pages of this

supposed work.

     It may be a bit of an oversimplification to say (after

Freud) that Upham must have been consciously lying at trial about

his own motives.  But a defendant who presents false testimony at

trial, in an effort to minimize his culpability, is hardly in a

position to insist that the judge grant him a reduction for

acceptance of responsibility.  See U.S.S.G.  3E1.1 app. note 1(a). 

In all events, the district court in this case did not exceed the

"great deference" accorded the sentencing judge in evaluating

claims of acceptance of responsibility.  Id. app. note 5.

     Other claims presented on Upham's behalf have been

considered (e.g., a claim that the district court erred in finding

one or more of the images were sadomasochistic and so warranted an

upward adjustment), but do not require separate discussion.  The

penalty is obviously severe but this is due in part to upward

adjustments, like that just mentioned, and significant prior

criminal history, including a prior child-pornography conviction

under state law.

     Affirmed.