|U.S. 9th Circuit Court of Appeals
Appeal from the United States District Court for the Western
District of Washington
Argued and Submitted
Submission vacated August 5, 1996
Filed July 10, 1997
Before: James R. Browning, Eugene A. Wright, and
Opinion by Judge Browning
C. James Frush, Helsell Fetterman, Seattle, Washington, for the defendant-appellant.
Kathy L. McClure and Patricia Toth, United States Department of Justice, Washington, D.C., for the plaintiff-appellee.
BROWNING, Circuit Judge:
Scott Douglas Lacy appeals his conviction for possessing child pornography
in violation of 18 U.S.C. S 252(a)(4)(B).
The United States Customs Service was informed that child pornography from a Danish computer bulletin board system called BAMSE was being brought into the United States by computer. BAMSE's records indicated several people, including a caller from Seattle who identified himself as "Jim Bakker," had received material from BAMSE by telephone.1 "Bakker" had called BAMSE sixteen times and had downloaded six picture files containing computerized visual depictions known as GIFs.2 Customs agents traced the caller's phone number to an apartment occupied by a computer analyst named Scott Lacy. Telephone records reflected calls made from Lacy's telephone to BAMSE on the dates shown in BAMSE's records.
A warrant was issued authorizing the search of Lacy's apartment and
seizure of computer equipment and records,
Lacy was indicted for possessing child pornography. 4 Lacy's motion to suppress was denied, with inconsequential exceptions.5 Lacy was tried and convicted. He appealed, challenging the suppression ruling, the jury instructions, and the sufficiency of the evidence on the crime's jurisdictional element.
Lacy argues the affidavit supporting the application for the warrant was insufficient to establish probable cause because it rested on stale information and demonstrated only that he "might have attempted to order" obscene pictures.
Evidence the defendant has ordered child pornography is insufficient to establish probable cause to believe the defendant possesses such pornography. See United States v. Weber, 923 F.2d 1338, 1344 (9th Cir. 1990). However, the affidavit stated Lacy downloaded at least two GIFs depicting minors engaged in sexual activity from BAMSE, providing sufficient evidence Lacy actually received computerized visual depictions of child pornography.
 The information in the affidavit was not stale. An affidavit must
be based on facts " `so closely related to the time of the issue of the
warrant as to justify a finding of probable cause at that time.' " Durham
v. United States, 403 F.2d 190, 193 (9th Cir. 1968) (quoting Sgro v. United
States, 287 U.S. 206, 210 (1932)). We held in Durham that probable cause
was not established by an affidavit relying on events that occurred four
months earlier. Id. at 194-95. The information relied on in this case was
ten months old. However, "[t]he mere lapse
 The affidavit in this case provided ample reason to believe the
items sought were still in Lacy's apartment. Based on her training and
experience as a Customs agent, the affiant explained that collectors and
distributors of child pornography value their sexually explicit materials
highly,"rarely if ever" dispose of such material, and store it "for long
periods" in a secure place, typically in their homes.6 Cf. United
States v. Rabe, 848 F.2d 994, 995-96 (9th Cir. 1988). We are unwilling
to assume that collectors of child pornography keep their materials indefinitely,
but the nature of the crime, as set forth in this affidavit, provided "good
reason[ ]" to believe the computerized visual depictions downloaded by
Lacy would be present in his apartment when the search was conducted
 Lacy also argues the warrant was too general because it authorized
the seizure of his entire computer system.7 Lacy relies primarily upon
United States v. Kow, 58 F.3d 423 (9th Cir. 1995), in which we invalidated
a warrant authorizing seizure of all the defendant's computer hardware
and software, as well as "essentially all" of its "records . . . files,
ledgers, and invoices." See id. at 425. Unlike the affidavit in Kow, the
affidavit in this case established probable cause to believe Lacy's entire
computer system was "likely to evidence criminal activity." See id. at
427. And while the warrant in Kow "contained no limits on which documents
within each category could be seized or suggested how they related to specific
criminal activity," id., the Lacy warrant contained objective
 Both warrants described the computer equipment itself in generic
terms and subjected it to blanket seizure. However, this type of generic
classification is acceptable "when a more precise description is not possible,"
United States v. Cardwell, 680 F.2d 75, 78 (9th Cir. 1982) (internal quotation
omitted); see also United States v. Kimbrough, 69 F.3d 723, 727 (5th Cir.
1995), and in this case no more specific description of the computer equipment
sought was possible. The government knew Lacy had downloaded computerized
We conclude that Lacy's challenge to the district court's suppression ruling is without merit.
Lacy contends the district court improperly instructed the jury on the
mens rea and jurisdictional elements of
A. Mens Rea
Lacy argues the instructions were improper because they omitted a necessary
mens rea element. The instructions
The government responds that the instruction was correct as given -- an argument that can be interpreted as denying that knowledge of the presence of the pornographic depictions is required, or denying that the instructions omitted this element. We consider both possibilities.
The statutory language is of little help.8 It is not clear whether
the word "knowingly" was intended to modify only
 The same is true of S 2252(a)(4)(B)'s requirement that a matter "contain" an unlawful visual depiction. Possession of computer drives and disks, like possession of books, is ordinarily lawful. The presence of illegal images on the disks or in the books is a "crucial element separating legal innocence from wrongful conduct." See id. Accordingly, a defendant may be convicted under S 2252(a)(4)(B) only upon a showing that he knew the matter in question contained an unlawful visual depiction.
Whether the knowledge element was omitted from the instructions depends upon the meaning of the word "matters."9 Lacy contends the "matter" or "matters" referred to in the statute and instructions are the computer disks and hard drive that contain the GIF files, while the government argues "the `matter' in question is the computer GIF files which contain the visual depictions of child pornography."
 The statute indicates that at a minimum, a "matter" must be capable
of containing a visual depiction. See 18
 The trial court did not explicitly instruct the jury to find whether
Lacy knew depictions of minors engaged in sexually explicit conduct were
on his hard drive and disks. It might be argued that instructing the jury
to find whether Lacy knew images on his disks and hard drive depicted minors
engaging in sexually explicit conduct necessarily required it to find that
Lacy knew these depictions were, in fact, on his disks or hard drive. However,
Lacy claimed he had seen the depictions of minors engaging in sexually
explicit conduct when he opened
 Lacy also challenges the district court's jurisdictional instruction,
which required the jury to find "that each of those matters possessed by
the defendant had been produced using materials that had been transported
in interstate or foreign commerce." ER 9, Instruction 12. He argues the
instruction erroneously focused on the materials used to produce the "matters"
-- that is, on whether the materials used to produce the computer hard
drive and disks had traveled in interstate commerce -- instead of focusing
on the materials used to produce the visual depictions -- that is, as we
hold below, on whether the computer hard drive and disks themselves had
 Lacy's argument is supported by the plain language of S 2252(a)(4)(B), which prohibits possession of
books . . . or other matter which
contain any visual depiction that has been mailed, or has been shipped
18 U.S.C. S 2252(a)(4)(B) (emphasis added); see Kimbrough, 69 F.3d at
729 (jurisdictional element considers "whether the pictures or the materials
used to produce them traveled in commerce"); United States v. Colavito,
19 F.3d 69, 71 (2d Cir. 1994). The government argues it could establish
jurisdiction by showing that "books . . . or other matter which contain
any visual depiction . . . [were] produced" using materials transported
in interstate commerce. The altered verb tense is significant; the government's
interpretation would require an ungrammatical reading of the statute. We
agree with the Fifth and Second Circuits that jurisdiction exists if the
C. Plain error
 Because Lacy did not object to these instructions, we review for
plain error. Even if we found that Lacy established plain error, however,
we would not exercise our discretion to correct the error because it did
not " `seriously affect the fairness, integrity or public reputation of
judicial proceedings.' " United States v. Olano,
We examine the strength of the evidence against Lacy to determine whether
the errors in the jury instructions seriously affected the fairness and
integrity of his trial. Perez, 1997 WL 336167, at *7. The evidence that
Lacy knew he possessed GIF files containing pornographic images was overwhelming.
Lacy's phone records reflected calls to BAMSE. BAMSE's computer reflected
those calls and indicated which pornographic images were downloaded. Agents
who searched Lacy's apartment found computer disks containing child pornography,
many labeled with the names of the GIF files they contained. A Customs
agent testified that Lacy acknowledged
The only evidence in support of Lacy's claim that he thought he had deleted the GIF files came from Special Agent John Hynes, who testified as follows:
Q: Did you ask . . . what he did with the material after it was downloaded?
A: Yes, ma'am. He said he deleted it.
A: Yes, ma'am. Immediately before that when I asked him if he had
any child pornography and he responded he had downloaded some stuff, I
asked him what he meant and he said child pornography and stuff, he then
said he was extremely nervous about keeping it and as far as he knows or
knew, the material was gone. . . .
Lacy's statements were contradicted by the presence of the images on the disks. It is implausible, to say the least, that the jury believed Lacy, a professional computer analyst, attempted to delete the files but somehow failed to do so.
It is also extremely unlikely that the jury, if properly instructed,
would not have found that the government estab-
Lacy argues the government failed to prove the jurisdictional element
of the crime. To establish jurisdiction under
 "Producing" is defined as "producing, directing, manufacturing,
issuing, publishing, or advertising. " 18 U.S.C.
Lacy's motion to suppress was properly denied. Although the jury instructions were erroneous, Lacy did not object to them. We will not correct these plain forfeited errors because they did not seriously affect the fairness of Lacy's trial. Finally, the jury's finding on the jurisdictional element was supported by substantial evidence.
AFFIRMED. the end
1 The BAMSE computer recorded the dates and times of calls, the caller's phone number, and the names of files the user downloaded.
2 GIF stands for "graphic interchange format," a special format used to store visual information such as photographs.
3 Some of the disks were seized from Lacy's apartment, while others were found in a separate storage room that was searched with Lacy's consent.
4 The indictment also charged Lacy with receiving child pornography
and importing obscene material into the United States. The importation
count was dismissed before trial on the government's motion. The district
5 The district court suppressed several documents, but both parties describe them as inconsequential.
6 Lacy challenges this information as "foundationless," citing Weber,
in which we rejected information regarding the practices of child molesters
because "there was not a whit of evidence in the affidavit indicating that
Weber was a `child molester.' " Weber, 923 F.2d at 1345. The affidavit
in this case contained sufficient evidence that Lacy had downloaded computerized
visual depictions of child pornography to provide a foundation for
7 A warrant must describe the specific place to be searched and person
or things to be seized "with particularity sufficient to prevent `a general,
exploratory rummaging in a person's belongings.' " United States v. Rude,
In gauging a warrant's specificity, we consider three factors:
(1) whether probable cause exists to seize all items of a particular type described in the warrant;
(2) whether the warrant sets out objective standards by which executing officers can differentiate items subject to seizure from those which are not; and
(3) whether the government was able to describe the items more particularly in light of the information available to it at the time the warrant was issued.
United States v. Noushfar, 78 F.3d 1442, 1447 (9th Cir. 1996) (quoting Spilotro, 800 F.2d at 963); see United States v. Stubbs, 873 F.2d 210, 211 (9th Cir. 1989).
8 The statute makes it a crime to
knowingly possess[ ] 3 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction that has been mailed, or has been shipped or transported in 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--
(i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
(ii) such visual depiction is of such conduct.
18 U.S.C. S 2252(a)(4)(B).
9 The district court instructed the jury it could find Lacy guilty of possession if the government proved the following elements beyond a reasonable doubt:
First, that on or about March 6, 1993, the defendant knowingly possessed the matters charged;
Second, that each of those matters contained a visual depiction of a minor engaging in sexually explicit conduct;
Third, that each of those visual depictions was produced with the use of a minor engaging in sexually explicit conduct;
Fourth, that the defendant knew that each of those visual depictions was of a minor engaging in sexually explicit conduct, and knew it had been produced with the use of a minor engaging in such conduct; and
Fifth, that each of those matters possessed by defendant had been produced using materials that had been transported in interstate or foreign commerce.
ER 9, Instruction 12.
10 Arguing that the "matters " in question are the GIF files, the government
also contends the instruction did require the jurors to consider whether
the visual depictions were produced using materials that traveled in interstate
commerce. We have already rejected the government's contention that the
"matters" in question are the GIF files.
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