UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 97-4011

MICHAEL BRUCE SASSANI,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Deborah K. Chasanow, District Judge.
(CR-96-12DKC)

Argued: December 5, 1997

Decided: March 4, 1998

Before NIEMEYER, Circuit Judge, BUTZNER, Senior Circuit
Judge, and MICHAEL, Senior United States District Judge for the
Western District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Roger Mark Adelman, KIRKPATRICK & LOCKHART,
L.L.P., Washington, D.C., for Appellant. Sandra Wilkinson, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee. ON
BRIEF: Lynne A. Battaglia, United States Attorney, Beth P. Gesner,
Assistant United States Attorney, Greenbelt, Maryland, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Background

In 1994, the Federal Bureau of Investigation was notified by an
America OnLine1 customer and police officer, Richard Ivey, of
receipt of unsolicited pornographic graphic2 image files from another
America OnLine subscriber by the name of "BIG MIKE 8." In Sep-
tember 1994, a special agent of the FBI, acting in an undercover
capacity, engaged in electronic conversations with BIG MIKE 8, in
connection with which BIG MIKE 8 transmitted, via America
OnLine, at least five sexually explicit graphic images of persons
apparently under the age of eighteen. In October 1994, a cooperating
witness also received from BIG MIKE 8 an electronically transmitted
message and sexually explicit graphic image of two persons appar-
ently under the age of eighteen. Further investigation revealed the
subscriber "BIG MIKE 8" to be registered as Michael Bruce Sassani.
In March 1995, four more sexually explicit graphic images, including
pictures of individuals apparently under the age of eighteen, were
electronically transmitted to undercover agents by BIG MIKE 8.

On 13 September 1995, Federal Bureau of Investigation (FBI)
agents executed a search warrant at the home of Michael Sassani in
Maryland. During the six-hour search, the agents seized Mr. Sassani's
personal computer, 382 floppy disks, numerous personal documents
and photographs, and a small quantity of narcotics. 3 After extensive
_________________________________________________________________
1 America OnLine is a commercial computer service and online access
provider.
2 The court uses the adjective"graphic" only to identify the electronic
files as pictorial representations.
3 Mr. Sassani has been charged in Maryland state court with possession
of narcotics. The case is pending.

                    2
review of the hard drive of the computer and the 382 floppy diskettes
seized, the FBI determined that the drive and the disks contained a
total of 176 visual depictions of minors engaged in sexually explicit
conduct.4 The agents concluded that at least ten of the pictures por-
trayed individuals under twelve years of age.

On January 22, 1996, defendant was indicted on six counts for vio-
lations of the Protection of Children Against Sexual Exploitation Act,
18 U.S.C. §§ 2251-2260 (West 1997). On May 20, 1996, the district
court denied all of the defendant's pretrial motions, which included
motions to suppress evidence, for an evidentiary hearing regarding the
execution of the search warrant, and for an evidentiary hearing pursu-
ant to Franks v. Delaware, 

(1978). The United States
filed a superseding indictment against Mr. Sassani on May 29, 1996.
On July 29, 1996, Mr. Sassani entered a conditional plea of guilty to
Count VI of the superseding indictment. Count VI charged possession
of child pornography in violation of 18 U.S.C. § 2252(a)(4). As part
of the factual stipulations underlying the plea, the defendant admitted
to transmitting pornography on September 30, 1994. At the conclu-
sion of a four-day sentencing hearing, the district court sentenced Mr.
Sassani to eighteen months incarceration.5 The defendant raises three
issues on appeal. First, the defendant argues that the district court
erred when it denied an evidentiary hearing on the defendant's chal-
lenge to the sufficiency of the affidavit underlying the application for
a search warrant. Second and related to the first, the defendant argues
that the district court erred in denying the defendant's motion to sup-
press the evidence seized under the search warrant. Finally, defendant
argues that the district court erred in refusing to depart downward for
reduced mental capacity.
_________________________________________________________________

4 On the hard drive of the defendant's computer were 16,226 files, of
which 56 were graphic images of individuals apparently under eighteen
years of age. On 382 floppy diskettes were 6,731 files of which 120 were
graphic images of individuals apparently under eighteen.

5 This was the minimum possible sentence in the Sentencing Guideline
range.

                    3
The Franks Hearing

The defendant argues first that the district court erred in refusing
to hold a hearing on the defendant's motion to suppress the evidence
seized from Mr. Sassani's home. However, a hearing on a motion to
test the sufficiency of the warrant is required only under certain cir-
cumstances. Simmons v. Poe explains:

          This Court has construed the Supreme Court's opinion in
          Franks v. Delaware, 

, 

, 

(1978), very strictly, finding in large part that
          Franks hearings are not required unless an omission from a
          warrant affidavit is the product of a deliberate falsehood or
          done in reckless disregard of the truth. In United States v.
          Colkley, 

(4th Cir. 1990), this Court articulated
          the two-pronged standard under which Franks claims must
          be analyzed. In that case, we addressed whether an evidenti-
          ary hearing was required under Franks where the defendant
          challenged the affidavit used in support of his arrest warrant
          on the grounds that it failed to note that numerous witnesses
          did not identify him in a photographic spread, and because
          the police officer based the height description of the defen-
          dant in disregard of the testimony of some 

. In finding that a Franks hearing on the facial
          validity of the affidavit was not warranted, we articulated a
          two-part threshold test for making such a determination: a
          Franks hearing is warranted if (1) the defendant makes a
          substantial preliminary showing that a false statement know-
          ingly and intentionally, or with reckless disregard for the
          truth, was included by the affiant in a warrant affidavit, and
          (2) the defendant shows that the false information was
          essential to the probable cause determination. 

F.3d 1370, 1378 (4th Cir. 1995). See also United States v. Hartsell,

(4th Cir. 1997), citing United States v. Jeffus, 

, 559 (4th Cir. 1994) ("We have held that a defendant must first
make a showing that an affiant's statement in a warrant affidavit was
deliberately or recklessly false and that the remaining facts contained
in the affidavit are inadequate to sustain a finding of probable
cause."). In the instant case, the defendant must show that information

                     4
to which he objects was an intentionally false statement or one made
with "reckless disregard for the truth." 

defendant bears the burden of showing that the information to which
he objects was central to the finding of probable cause. The defendant
has failed to make this showing.

The search warrant contained a seventeen-page affidavit filed by
FBI Special Agent Courtland C. Jones. The affidavit contained six
sections (Introduction, Child Pornographers, Computers and Child
Pornography, America OnLine, Probable Cause, and Search & Sei-
zure of Computer Systems). The defendant objects particularly to
Section II (Child Pornographers) and Section V (Probable Cause) of
the affidavit, arguing that the use of a profile in Section II was in
"reckless disregard of the truth" and that Section V contains misstate-
ments of fact.

Section II presents Special Agent Ken Lanning's profile of a child
pornographer.6 The profile includes the following elements: 1. Child
pornography collectors exhibit many of the same traits as pedophiles
or preferential child molesters; 2. Such individuals keep the porno-
graphic materials for long periods of time in secure locations such as
the privacy of their homes; and 3. They meet and correspond with
others who share the same interest in child pornography. The defen-
dant argues that this profile is inflammatory and has no connection to
the defendant.

The defendant does not present the court with support for his asser-
tion that the profile was required to meet the standards of Daubert v.
Merrell Dow Pharmaceuticals, 

(1993), nor can this
court find any such requirement. It is clear that the use of profiles, in
conjunction with other evidence, to establish probable cause is allow-
able. See United States v. Aguiar, 

, 40-41 (4th Cir. 1987)
(finding the use of a drug courier profile along with other evidence
to be sufficient to establish probable cause); Simmons v. 

,
47 F.3d at 1378 (discussing the use of a profile in establishing proba-
ble cause for a warrant). In the instant case, the profile was used in
the affidavit to suggest that the defendant meets the profile of a traf-
_________________________________________________________________
6 The agent works and writes extensively in the field of investigation
of child pornography and preferential child molestation.

                    5
ficker in child pornography and that, therefore, certain behaviors may
be expected, including the behavior of keeping and storing porno-
graphic images. The profile compared child pornographers to
pedophiles, in terms of certain characteristics. It did not suggest that
the two were the same. To the extent that Mr. Sassani objects to the
alleged insinuation that he may be a pedophile, this court does not
read the affidavit so to allege. In any case, the warrant established suf-
ficient probable cause even should we find that the affidavit incor-
rectly insinuated pedophilia. More than the profile, the defendant's
admission in his own Internet user profile that his hobbies included
GIFs7 and the fact that the defendant had transmitted such graphic
files over the Internet suggested in and of themselves that such files
might be found in the defendant's home and that a computer was
being used in the home to transmit and receive images electronically.

The defendant also alleges that the "Probable Cause" section of the
affidavit contained numerous misstatements of fact. The section iden-
tified BIG MIKE 8 as the code name used by Mr. Sassani. The sec-
tion also identified BIG MIKE 8 as holding the phone number at Mr.
Sassani's home address and as residing at Mr. Sassani's home
address. The section also chronicled BIG MIKE 8's receipt and distri-
bution of child pornography between August 1994 and March 1995.
The affidavit represents that BIG MIKE 8 transmitted child pornogra-
phy on ten occasions. The defendant argues there were only four
occasions. The affidavit also represents that in March 1995, the defen-
dant transmitted child pornography on four occasions and the defen-
dant objects that he transmitted pornography only once in March
1995. The defendant further objects to the affidavit's representation
of the total number of transmitted images, the "depiction" of the
images (presumably, the agent's characterization of the subject matter
of the graphic files transmitted), the circumstances of transmission to
an undercover agent in September 1994, and the meaning of GIFs as
that term is used in the affidavit.
_________________________________________________________________

7 A GIF is a graphics interchange format in which files may be stored
and transmitted. The GIF format, owned by Compuserve, is widely used
on the Internet for the transmission of all types of graphics files, not just
pornographic images.

                     6
The Franks test requires a hearing on a motion to suppress only if
the alleged misinformation is reckless and if probable cause would
not exist without that information. The district court found, as do we,
that the affidavit, even without the offending facts, was sufficient
basis for probable cause. Whether there were four transmissions or
ten, whether there was an actual transmission at one point or a for-
warded transmission that originated from the defendant, the fact
remains that there were transmissions of pornography by the defen-
dant, giving rise to probable cause to search the defendant's home.
We find no error in the district court's determination that a Franks
hearing was not required.

The Search Warrant

The defendant also appeals the denial of the motion to suppress
itself. The defendant asserts first that the warrant was not supported
by fresh probable cause and, second, that the warrant failed to state
with sufficient particularity the places to be searched and things to be
seized.

The Fourth Amendment of the Constitution requires that probable
cause support a warrant. The information on which such probable
cause is based must be sufficiently fresh to warrant a belief that mate-
rial evidence of criminal activity may yet be found in the area to be
searched. United States v. McCall, 

, 1335-1336 (4th
Cir. 1984). McCall states:

          The fourth amendment bars search warrants issued on less
          than probable cause, and there is no question that time is a
          crucial element of probable cause. A valid search warrant
          may issue only upon allegations of "facts so closely related
          to the time of the issue of the warrant as to justify a finding
          of probable cause at that time. Whether the proof meets this
          test must be determined by the circumstances of each case."
          Sgro v. United States, 

, 210-11, 

,
          140-41, 

(1932). See also, e.g., United States
          v. Watson, 

, 449 n. 14, 

, 840 n. 14,
          

(1976) (Marshall, J., dissenting); United
          States v. Freeman, 

, 951-52 (5th Cir. 1982);
          United States v. Beltempo, 

, 476-79 (2d Cir.),

                     7
          cert. denied, 

, 

, 

(1982); United States v. Button, 

, 324-25
          (8th Cir. 1981).

a continuing pattern of behavior might give
probable cause where a single offense would not after a certain period
of time. There must exist probable cause that evidence of criminal
activity will exist at the time of the search. In the case before the
court, such probable cause existed. Numerous cases support a finding
that distribution of child pornography on several different occasions
may provide sufficient probable cause despite delay between a distri-
bution and the date a search warrant is sought or executed. See, e.g.,
United States v. Bateman, 

, 1043 (D.N.H. 1992)
(upholding warrant with seven-month delay between distribution of
child pornography and execution of the warrant because of the
"unique nature of the creation, storage, keeping, alteration, potential
destruction of the child pornography material" and the "recognized
interest which the states and the federal government have in drying
up the distribution network for child pornography"); United States v.
Rakowski, 

, 1330 (D. Vt. 1987) (upholding warrant
based on information one to six months old because"those who col-
lect child pornography keep the pornography, do not destroy their col-
lections, and keep the pornography accessible"); United States v.
Lacy, 

, 745 (9th Cir. 1997) (upholding search warrant
based on information ten months old because "the[agent] explained
that collectors and distributors of child pornography value their sexu-
ally explicit materials highly, `rarely if ever' dispose of such material,
and store it `for long periods' in a secure place, typically in their
homes"); United States v. Riccardelli, 

, 12 (1st Cir. 1993)
(stating, "history teaches that [pornography] collectors prefer not to
dispose of their dross, typically retaining obscene materials for
years"); United States v. Harvey, 

, 1322 (3d Cir. 1993)
(basing, at least in part, a conclusion that a warrant was not based on
stale information on the fact that those who collect child pornography
tend to keep it); United States v. Rabe, 

, 996 (9th Cir.
1988) (holding warrant not based on stale information despite two-
year delay between original seizures and warrant because more recent
letters indicated that pornographic material was still being kept by the
defendant); United States v. Lamb, 

, 459 (N.D.N.Y.
1996) (holding warrant information not stale despite five-month lapse

                     8
between last transmission over Internet because"FBI Special Agent
Lanning, an expert in this field, [stated] that collectors of child por-
nography rarely dispose of materials they obtain and`almost always
maintain and possess their material ... in the privacy and security of
their homes or some other secure location.'").

The defendant transmitted pornography on several separate occa-
sions between 1994 and 1995. The last transmissions referred to in the
affidavit supporting the warrant occurred on March 11, 1995. On that
date, BIG MIKE 8 transmitted four files to the undercover agent. The
four separate image files were "HARD011C.GIF" (3:45 AM),
"HARD002C.GIF" (3:45 AM), "HARD003C.GIF" (3:45 AM), and
"HARDOO1C.GIF" (3:46 AM). Contrary to the defendant's asser-
tions, these do not form part of one transmission, although all
occurred within minutes. These are four separate transmissions,
accomplished in a brief time. On September 19, 1995, six months
later approximately, the agents applied for a search warrant. These
transmissions, following the pattern of transmission in 1994 and
1995, provided sufficiently fresh probable cause for the warrant
issued in September 1995.

The defendant next argues that the search warrant described the
places to be searched and things to be seized with insufficient particu-
larity to withstand the requirements of the Fourth Amendment. The
Fourth Amendment requires that a search warrant describe with par-
ticularity the place to be searched and the evidence to be seized.
United States v. Owens, 

, 463 (4th Cir. 1988). The par-
ticularity requirement is designed to prevent "a general, exploratory
rummaging in a person's belongings." Coolidge v. New Hampshire,

, 467 (1971); Andresen v. Maryland , 

, 480
(1976). A warrant meets the particularity requirement "if the descrip-
tion is such that the officer with a search warrant can, with reasonable
effort, ascertain and identify the place intended." Steele v. United
States, 

, 503 (1925). "[T]he test for the necessary partic-
ularity is a pragmatic one: `The degree of specificity required when
describing the goods to be seized may necessarily vary according to
the circumstances and type of items involved....[T]here is a practical
margin of flexibility permitted by the constitutional requirement for
particularity in the description of items to be seized.'" United States
v. Torch, 

(4th Cir. 1979), quoting United States v.

                     9
Davis, 

, 745 (8th Cir. 1976). Unlike with murder weap-
ons or drugs, when an offense concerns the use of hard copy or elec-
tronic files and documents a court cannot be sure which files will be
relevant and the warrant may not be able to state as specifically what
should be searched and seized. Therefore, courts have required less
particularity in the warrant. United States v. Torch, 

,
1090 (4th Cir. 1979). Courts have acknowledged the need for the use
of generic terms in warrants seeking evidence of child pornography
and have upheld more generally-worded warrants so long as the war-
rant limits the discretion of the officers conducting the search. See

, 609 F.2d at 1090 (holding sufficient a warrant for "re-
cords, documents and writings related to the transportation, sale and
distribution in interstate commerce of lewd, lascivious and filthy
films"); United States v. Layne, 

, 132-33 (5th Cir. 1995)
(upholding two warrants describing materials to be sought and seized
as follows: "assorted pornographic videotapes; assorted pornographic
magazines; assorted devices;" and, in the second warrant, "Child por-
nography; records of victims; drawings; pictures; computer disks,
sexual devices; videotapes; child abuse books; magazines; audiotapes;
and any other obscene or child pornographic material;" finding the
warrants sufficiently limited officers' discretion in searching); United
States v. Kimbrough, 

, 727 (5th Cir. 1995) (finding suffi-
ciently particular warrants' authorization for seizure of "`bills, corre-
spondence, receipts, ledgers, Postal receipts and telephone records all
of which show orders and deliveries to or from any known foreign or
domestic distributer of child pornography'"); United States v. Hurt,

, 708 (9th Cir. 1987) (finding warrant authorizing search
for material depicting individuals under sixteen years of age engaged
in "sexually explicit conduct" to be sufficiently particular to limit offi-
cer's discretion); United States v. Jacobs, 

, 567 (9th Cir.
1974) (finding sufficiently particular a warrant for"certain documents
pertaining to the interstate shipment of obscene materials").

In the case sub judice, the warrant listed among the items to be
seized any computers, tapes, cassettes, cartridges, streaming tape,
commercial software and hardware, computer disks, disk drives, mon-
itors, printers, modems, tape drives, disk application programs, data
disks and graphic interchange format equipment which could be used
to depict, distribute, possess or receive child pornography. This listing
directed the FBI agents to search those items in the home with direct

                     10
connection to the alleged crime of the defendant: distribution and
receipt of child pornography through the Internet by use of a com-
puter. Courts have been clear that, in the case of child pornography,
a warrant allowing seizure of a computer and all its associated print-
ing, storage, and viewing devices is constitutional. The computer,
applications, and various storage devices not only may contain evi-
dence of distribution of child pornography, but are also the instrumen-
talities of the crime. See Davis v. Gracey, 

, 1480 (10th
Cir. 1997) (upholding seizure of computer and all files contained
therein because probable cause supported seizure of computer as an
instrumentality of the crime of distribution of obscene materials);
United States v. 

, 69 F.3d at 727 (upholding warrant
allowing seizure of "hardware, computer disks, disk drives, monitors,
computer printers, modems, tape drives, disk application programs,
data disks, system disk operating systems, magnetic media-floppy
disks, CD ROMs, tape systems and hard drive, other computer related
operational equipment ... used to visually depict a minor engaging in
sexually explicit conduct"); United States v. 

, 119 F.2d at
745 (allowing seizure of entire computer system, hardware and soft-
ware, because "the affidavit in this case established probable cause to
believe Lacy's entire computer system was "likely to evidence crimi-
nal activity"). But see United States v. Kow , 

, 426 (9th
Cir. 1995) (holding warrant to be overbroad when allowing seizure of
computers and computer files and storage devices because it failed to
limit discretion in any way such as defining the criminal conduct at
issue). The warrant in the case before us described the types of items
to be seized and the crime for which the items were sought. The
description contained in the search warrant limited the agents' discre-
tion in the search by directing them to seize evidence of participation
in the distribution of child pornography over the Internet. We find no
error with the district court's determination that the warrant spelled
out with sufficient particularity the items to be seized.

In addition to the particularity requirement, the search actually con-
ducted under a warrant must be limited to the areas and evidence
authorized by the warrant. 

, 848 F.2d at 463. Evidence
seized in violation of the Fourth Amendment requirement that the
search be limited to the confines of the warrant is subject to exclu-
sion. 

, 848 F.2d at 463, citing Weeks v. United States,

, 398 (1914); Mapp v. Ohio, 

, 655 (1961).

                    11
In the instant case, the district court appropriately found that the FBI
agents remained within the limits of the warrant and that the search,
therefore, was not in violation of the Fourth Amendment.

The Sentence

The defendant also appeals his sentence, arguing that the district
court applied the incorrect legal standard in denying a downward
departure. At the sentencing hearing, Mr. Sassani claimed that he
should receive a downward departure because he suffered from vari-
ous mental disorders, including Tourette's Syndrome, Obsessive-
Compulsive Disorder, a major depressive disorder, and numerous
neuro-psychological deficits associated with Attention Deficit Disor-
der. These mental disorders, Mr. Sassani argued, caused him to pos-
sess child pornography. At the sentencing hearing, Judge Chasanow
declined to depart downward because she concluded that the defen-
dant did not suffer from significantly reduced mental capacity such as
might force him to possess child pornography.

We review de novo the district court's interpretation of the legal
standard to be applied to an application for a downward departure.
United States v. Rybicki, 

, 758 (4th Cir. 1996); United
States v. Han, 

, 549 (4th Cir. 1996). Unless this court
finds that the district court erroneously believed that it did not have
the discretion to depart downward, this court will not review the dis-
trict court's discretionary refusal to depart downward from the appli-
cable guideline range. United States v. Brock , 

, 33 (4th
Cir. 1997); United States v. Bayerle, 

, 30-31 (4th Cir.
1990); 18 U.S.C.A. § 3742(a), (b) (West 1985 & Supp. 1996).8

Section 5K2.13 of the Sentencing Guidelines states that a down-
ward departure from the Guideline sentencing range may be appropri-
_________________________________________________________________
8 Defendant suggests that the district court's determinations of fact,
such as the merit of defendant's claim of reduced mental capacity, should
be reviewed for clear error. While this would be true had the lower court
determined that it should depart, see 

, 96 F.3d at 758, this
court lacks jurisdiction to review a district court's denial of a departure
despite the factual evidence presented by the defendant. 

,
108 F.3d at 33.

                     12
ate where "the defendant committed a non-violent offense while
suffering from significantly reduced mental capacity not resulting
from voluntary use of drugs or other intoxicants, a lower sentence
may be warranted to reflect the extent to which reduced mental capac-
ity contributed to the commission of the offense." (U.S. Gov't Print-
ing Office 1997). The courts have explored the impact of this policy
statement on sentencing guideline departures in a series of cases.
United States v. Glick, 

(4th Cir. 1990), explained that
a court should determine first whether the defendant suffered from
diminished mental capacity, and, second, whether such diminishment
was a cause of the offense. The court stated, "Diminished capacity
need not be the sole cause of the offense to justify a departure, but
should `comprise[ ] a contributing factor in the commission of the
offense.'" 

v. Ruklick, 

, 97-98
(8th Cir. 1990). Unlike Glick, which focuses on the second prong of
the test it announced, United States v. Goossens , 

, 701
(4th Cir. 1996), focuses on the first prong -- the determination of
diminished mental capacity itself. The court in Goossens requires that
the defendant's mental capacity not simply be partially diminished,
but that it be so diminished as to render the defendant incapable of
processing information or reasoning. 

, 84 F.3d at 701.
United States v. Withers, 

(4th Cir. 1996), revisits the
second Glick factor and more closely links the two factors. Withers
focuses on the causal relationship between the mental impairment and
the criminal behavior and suggests that the contributing factor analy-
sis announced in Glick requires more than simply a contribution inso-
far as leaving defendant "open to suggestion." 

requires that the diminished mental capacity actively contribute to the
behavior, such as by rendering the defendant incapable of reasoning.
Id., citing 

, 84 F.3d at 701. Thus, the Glick standard
for a downward departure under Section 5K2.13 p.s., as explicated in
Goossens and Withers, remains the law in this circuit.

Judge Chasanow stated that the legal standard for a downward
departure under Section 5K2.13 of the Sentencing Guidelines is
whether the defendant suffered from "significantly reduced mental
capacity [that] bears a causal relationship to the crime." We now find
that the district court applied the appropriate legal standard in this
case. Because we so find, we do not reach the issue of whether the

                    13
district court properly found a downward departure unwarranted by
the facts of this case, as such review is beyond our authority.

Conclusion

For the reasons stated above, the order of the district court is

AFFIRMED.

                     14