Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-3-2006

USA v. King
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1839




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"USA v. King" (2006). 2006 Decisions. Paper 624.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/624


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                          NOT PRECEDENTIAL

    UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                               No. 05-1839




                    UNITED STATES OF AMERICA

                                    v.

                           PAUL E. KING, JR.,
                                         Appellant


             On Appeal from the United States District Court
                 for the Middle District of Pennsylvania
                         (D.C. No. 03-cr-00363)
                    District Judge: Hon. Yvette Kane


               Submitted Under Third Circuit LAR 34.1(a)
                           October 24, 2005
           Before: SLOVITER and FISHER, Circuit Judges, and
                      THOMPSON, District Judge *

                          (Filed August 3, 2006)




                                OPINION




*      Hon. Anne E. Thompson, United States District Judge for the District of
       New Jersey, sitting by designation.
SLOVITER, Circuit Judge.

       Paul E. King, Jr. (“King”) appeals from the final judgment by the District Court

denying his Motion to Suppress evidence seized in the course of a search of his home

pursuant to a warrant. He also appeals the sentence imposed by the District Court. We

have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

                                              I.

       In 1999, the United States Postal Inspection Service (“USPIS”) found that King

had paid for subscriptions to seven internet websites containing images of child

pornography. In 2000, USPIS offered King the chance to subscribe to a website with

child pornographic images, but King did not respond. In February 2003, however, King

responded to another USPIS investigation and requested sexually explicit video catalogs

indicating interest in “Pedophilia” and “Pre-Teen Girls.” USPIS then provided King

with an order form for various videotapes which were described as containing depictions

of minors engaged in sexually explicit activity. King returned the order form with

payment for one videotape, and wrote at the bottom of the form, “I am interested to see if

you are for real and there are such things like this on the market! If this is a sting, nice

try.” App. at 161.

       USPIS applied for an “Anticipatory Search Warrant,” App. at 34, to enter and

search King’s home after his acceptance of the videotape, supported by an affidavit

(“Affidavit”) from United States Postal Inspector Thomas F. Kochman. The Affidavit


                                              2
was expressly attached to and made part of the application. In paragraphs 20 and 21 of

the Affidavit, Kochman made clear that a search would only be attempted once USPIS

Inspectors determined that the contraband videotape was taken inside King’s residence.

He stated:

       On or about April 9, 2003 the previously described Express Mail envelope
       containing the videotape will be delivered to Paul E. King Jr. by knocking on the
       front door of his residence . . . . If no one is home at the time delivery will be
       reattempted until King accepts delivery of the express mail envelope and
       videotape. . . .

       Your affiant seeks authorization for Postal Inspectors, with appropriate assistance
       from other law enforcement officers, to enter and search [King’s] residence . . . at
       such time as it is determined that the videotape has been taken inside the
       residence.

App. at 39.

       Kochman detailed his extensive experience with the investigation of child sexual

exploitation, described the investigation of King, and averred that “computers are used to

supplement or supplant . . . [older] methods of transferring child pornography” such as

“personal contacts, mailings, and telephone calls,” and that individuals who solicit and

deal in child pornography over the Internet often store on their computers child

pornography or electronic data memorializing their dealings therein.

       On April 8, 2003, Magistrate Judge Mannion issued a search warrant authorizing

Kochman to seize the videotape, the envelope in which it was delivered, all other

“videotapes, photographs, negatives, drawings, magazines or other visual media or

literature depicting or describing minors engaged in sexually explicit conduct,” all

                                             3
computer hardware and data, all correspondence, diaries, notes, and other records

relating to the transfer of materials depicting minors engaged in sexually explicit

conduct. App. at 32. Although the warrant mentioned the Affidavit, it did not explicitly

incorporate Paragraphs 20-21 of the Affidavit or otherwise condition the search upon the

arrival of the videotape.

       On April 9, 2003 a postal inspector delivered the envelope by hand and King

accepted the package without opening it. Upon acceptance, the USPIS entered and

searched his home, seizing all videotapes and computer equipment. The videotape that

was delivered was the only one found containing child pornography, but computer discs

contained tens of thousands of images of child pornography.

       King was charged with knowingly receiving material that contained child

pornography pursuant to 18 U.S.C. § 2252A(a)(2)(A) (count one) and knowingly

possessing in excess of ten materials containing images of child pornography pursuant to

18 U.S.C. § 2252A(a)(5)(B) (count two). He pled not guilty and filed a Motion to

Suppress the videotape and computer images based on a lack of probable cause.

On August 25, 2004, the District Court, following a hearing, denied King’s Motion to

Suppress.

       Subsequently, King entered into a Plea Agreement and pled guilty to count one in

exchange for the dismissal of count two. King reserved his right to appeal regarding the

Motion to Suppress. King further agreed that he would cooperate with the investigation,


                                             4
and that if the United States believed he provided “substantial assistance” pursuant to 18

U.S.C. § 3553(e), the United States could move for downward departure below the

applicable Sentencing Guideline range.

       The Court thereafter determined that King’s Offense Level was 21, denied the

United States’s Motion for Downward Departure, awarded King a three-level reduction

for acceptance of responsibility (resulting in Offense Level 18), and sentenced King to

40 months’ imprisonment and 3 years of supervised release. King timely appealed. We

consider first King’s appeal of the denial of his motion to suppress and thereafter his

sentence.

                                            II.

                                 A. Fourth Amendment

       The Fourth Amendment guarantees the right of persons to be secure from

“unreasonable searches and seizures” and provides that “no warrants shall issue, but

upon probable cause.” U.S. Const. amend. IV. A warrant may be issued based on a

“totality-of-the-circumstances” test, which requires a reasonable likelihood that the

search will uncover evidence of criminal acts. Illinois v. Gates, 

, 238

(1983). This Court must uphold the determination of probable cause by the Magistrate

Judge who issued the warrant if there was a “substantial basis” for concluding that a

search would uncover evidence of wrongdoing. United States v. Deaner, 

,

196 (3d Cir. 1993). We review the factual findings of the district court for clear error but


                                             5
exercise plenary review over the legality of the denial of the Motion to Suppress in light

of the facts found. United States v. Riddick, 

, 509 (3d Cir. 1998).

       The Supreme Court has interpreted the Fourth Amendment to exclude from use as

evidence that which is seized during an unconstitutional search. Mapp v. Ohio, 

(1961). However, evidence seized when officers were acting in good faith reliance

on a warrant, even when later found to be unsupported by probable cause, is admissible.

United States v. Leon, 

(1984).

     King makes two arguments that the search warrant in the present case was

unconstitutional. First, he argues that because the order form for the videotape was the

only basis for probable cause, there was no probable cause to search his computer

equipment, and that the evidence of the images contained in his computer files should

therefore be excluded. Second, King asserts that the anticipatory warrant as a whole was

unconstitutional because limiting language conditioning the search on the triggering

event (i.e., delivery of the videotape) was not contained within the four corners of the

warrant.1 Each argument will be addressed in turn.


                   1
                       King also offers three minor and non-meritorious
            arguments. First he argues that there was no probable cause as to
            a crime of scienter. However, the order form King returned for the
            videotape, combined with the delivery of the requested item, would
            alone constitute probable cause that King knowingly possessed the
            contraband. Second, King implies, but does not explicitly argue,
            that the investigation constituted improper conduct on the part of
            the Government. See Appellant’s Letter Br. at 4 (claiming that
            Inspector Kochman’s decision to solicit King’s 2003 order of child

                                              6
       King first claims that the warrant was overbroad insofar as it authorized the search

and seizure of computer hardware and data because probable cause was extant only with

respect to the contraband videotape. He argues that the information regarding his

membership to websites containing child pornography was “stale” and therefore was

improperly relied upon to permit the seizure of his computer equipment.

       Although actual information of King’s involvement with website child

pornography dated back to 1999, the finding of probable cause to seize King’s computer

equipment was proper due: (1) to King’s more recent declaration of interest in pedophilia

through the order of the videotape in 2003 (indeed, King’s letter brief “admit[s] that he

floated his trial balloon by ordering the videotape in 2003, shortly before the warrant

issued,” Appellant’s Letter Br. at 4), and (2) to Kochman’s extensive experience with the

usual habits of those who transmit and store child pornography via the internet combined




            pornography was improper because it was “based wholly upon the
            1999 investigation.”) However, merely offering an opportunity to
            purchase child pornography is not improper. See United States v.
            Driscoll, 

, 85 (3d Cir. 1988). Third, King cites
            Ashcroft v. Free Speech Coalition, 

(2002), for the
            proposition that the warrant permitted the seizure of items that
            were not criminal in nature, thus infringing on his First
            Amendment rights. However, the warrant specifically refers to that
            which depicts or describes child pornography “as defined by Title
            18, U.S. Code, Section 2256,” thus limiting the scope of the search
            to those non-protected items. App. at 32. Moreover, a class of
            items described in a warrant still meets the particularity
            requirement if said class is implicated in the criminal activity.
            United States v. Conley, 

, 1208 (3d Cir. 1999).

                                             7
with Kochman’s specific knowledge as to King’s habits in that regard dating back to

1999. We have upheld the validity of search warrants based upon information dating

back more than a year when that information is combined with ongoing or current

information of similar wrongdoing. See United States v. Harvey, 

, 1323 (3d

Cir. 1993) (holding that evidence of receipt of child pornography by mail collected over

a year prior not stale when considered alongside evidence of recent receipt of

contraband).

       King further contends that Kochman’s statements are conclusory and speculative

and that King’s failure to respond to the website offering in 2000 shows that he does not

fall into Kochman’s generalizations. Kochman’s statements were based on 15 years of

experience, including over 500 investigations of pedophile activity and training in the

investigation of crimes involving the sexual exploitation of minors. Statements by

qualified affiants as to patterns of criminal activity can be used to support the validity of

a warrant. See 

. Moreover, King’s stated interest in

pedophilia and pre-teen girls in 2003 negates any contention that his failure to respond to

the 2000 investigation demonstrated lack of interest.

       King’s second major contention is that probable cause did not exist before the

videotape arrived at King’s house because the warrant was facially unconstitutional in

that it did not contain “triggering information” (i.e., failed to include language within the

four corners of the warrant explicitly conditioning the execution of the warrant upon the


                                              8
delivery of the videotape). This, according to King, created an unconstitutional risk that

the warrant could have been prematurely executed. The Government responds that the

warrant was not facially invalid because it was governed by the conditioning language in

the Affidavit.

       The Supreme Court’s recent decision in United States v. Grubbs, 

(2006), decided after the District Court’s decision in this case, supports the

Government’s position and is dispositive of King’s second argument. In Grubbs, as in

the present case, the affidavit accompanying the search warrant application specified that

the warrant would be executed only after a parcel containing a videotape of child

pornography (ordered from an undercover Postal Inspector) was physically taken into the

Grubbs’ residence. 

However, language conditioning execution of the

search warrant on this “triggering event” was not contained in or incorporated into the

search warrant itself. 

The Supreme Court held that this omission did not

render the warrant unconstitutional because the particularity requirement of the Fourth

Amendment does not require that an anticipatory search warrant explicitly mention

conditions precedent to the search to be performed. 

All that is required by

the Fourth Amendment is that a warrant “particularly describe” the place to be searched

and the persons or things to be seized. 

In the present case, the warrant




                                             9
met this requirement.2

       The District Court erred neither in including the computer hardware and data

within the ambit of the search warrant nor in omitting the Affidavit’s “triggering

conditions” from the search warrant. The anticipatory search warrant in the present case

was properly supported by probable cause and was not unconstitutional.

                                      B. Sentencing

       In United States v. Booker, 

(2005), the Supreme Court held that the

Sentencing Guidelines are to be treated as advisory, rather than mandatory, under the

Sixth Amendment. We review sentences imposed under this advisory scheme for

“reasonableness.” 

As an initial matter, “a trial court must calculate the correct

guidelines range applicable to a defendant's particular circumstances.” United States v.

Cooper, 

, 330 (3d Cir. 2006). Then, in order “[t]o determine if the court



                    2
                     King’s letter brief addressing the import of Grubbs on the
            present case ignores the holding in Grubbs (i.e., that an anticipatory
            search warrant need not explicitly state conditions precedent).
            Instead, the letter brief addresses only that which Grubbs did not
            hold. In particular, King’s letter brief argues that Grubbs “did not
            change the rule that staleness of information can vitiate [probable
            cause] for [an] anticipatory search warrant,” Appellant’s Letter Br.
            at 2, and “does not affect [King]’s contention that the warrant was
            unconstitutionally broad.” 

Indeed, King is correct that
            Grubbs did not alter our analysis of whether the warrant’s inclusion
            of computer hardware and data runs afoul of the constitution: For
            the reasons 

, the scope of the warrant in the present
            case was not unconstitutionally broad or based upon stale
            information.

                                             10
acted reasonably in imposing [a] sentence, we must . . . be satisfied the court exercised its

discretion by considering the relevant factors” set forth in 18 U.S.C. § 3553(a). 

.

       The relevant § 3553(a) factors are as follows:

       (1) the nature and circumstances of the offense and the history and characteristics
       of the defendant;

       (2) the need for the sentence imposed--
              (A) to reflect the seriousness of the offense, to promote respect for the law,
              and to provide just punishment for the offense;
              (B) to afford adequate deterrence to criminal conduct;
              (C) to protect the public from further crimes of the defendant; and
              (D) to provide the defendant with needed educational or vocational
              training, medical care, or other correctional treatment in the most effective
              manner;

       (3) the kinds of sentences available;

       (4) the kinds of sentence and the sentencing range established for . . . the
       applicable category of offense committed by the applicable category of defendant
       as set forth in the guidelines. . . .
       ....

       (6) the need to avoid unwarranted sentence disparities among defendants with
       similar records who have been found guilty of similar conduct[.]

18 U.S.C. § 3553(a).

       In Cooper, this court made clear that a district court need not “discuss and make

findings as to each of the § 3553(a) factors if the record makes clear the court took the

factors into account in sentencing.” 

(citations omitted).

However, there must be some indication in the record that the district court considered all


                                               11
§ 3553 factors non-frivolously raised by a defendant at sentencing. 

to

ensuring a trial court considered the § 3553(a) factors, we must also ascertain whether

those factors were reasonably applied to the circumstances of the case. In doing so, we

apply a deferential standard, the trial court being in the best position to determine the

appropriate sentence in light of the particular circumstances of the case.” 

       King argues that his sentence is unreasonable because (1) the District Court’s

denial of the Government’s Motion for Downward Departure disregarded King’s

substantial assistance, and (2) the District Court did not explain why King’s 40-month

sentence was reasonable, and arbitrarily rejected all of the his mitigating factors except

for acceptance of responsibility.

       King’s argument as to the District Court’s denial of downward departure is without

merit. In Cooper, we reaffirmed our pre-Booker precedent barring appellate review of

district courts’ “discretionary decisions to deny departure, unless for allegation of legal

error.” 

(citing, inter alia, United States v. Ruiz, 

, 626-28 (2002)).

The District Court made no legal error in denying the Government’s Motion for

Downward Departure.

       King’s second argument (i.e., that the District Court failed to consider all § 3553

factors) is also without merit. The District Court evaluated 18 U.S.C. § 3553(a)(4),

considering the advisory guideline range as mandated by Booker. The District Court

reduced King’s Offense Level from 21 to 18 based on acceptance of responsibility and


                                             12
treated the resultant “27- to 33-month guideline range as an advisory range.” App. at 117.

Neither party contests the calculation of Offense Level.

          Consistent with Booker, the District Court expressly viewed the guidelines as

advisory. The District Court imposed a sentence of 40 months’ imprisonment,

sentencing seven years above the Guideline range on several bases relevant under

§ 3553(a), namely: (1) because the District Court was “very concerned about Mr. King’s

acceptance [of responsibility],” App. at 118, (2) because of “the number of images

involved here,” App. at 119-20, (despite the fact that charge two, alleging King’s

possession of over ten pictures, had been dropped) and (3) because the District Court

thought a longer imprisonment term would prevent recidivism upon King’s release from

prison.

                                             III.

          For the foregoing reasons, we will affirm the judgment of sentence as well as the

District Court’s denial of King’s Motion to Suppress.




                                                    13