United States v. Burgess

FILED
United States Court of Appeals
Tenth Circuit

August 11, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 08-8053

DAVID BURGESS,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Wyoming
(D.C. No. 1:07-CR-00298-ABJ-1)

James C. Anderson, Assistant United States Attorney (Kelly H. Ranking, United
States Attorney, with him on the briefs) Cheyenne, Wyoming, for Plaintiff-
Appellee.

Norman R. Mueller (Ty Gee with him on the briefs) of Haddon, Morgan, Mueller,
Jordan, Mackey & Foreman, P.C., Denver, Colorado, for Defendant-Appellant.

Before TACHA, O’BRIEN, and McCONNELL, Circuit Judges.

O’BRIEN, Circuit Judge.

Following a traffic stop and a canine alert, police searched David Burgess’

motor home for drugs and evidence of drug trafficking. The search led to the
discovery of a laptop computer and two external hard drives. The hard drives

contained thousands of pictures of child pornography, which Burgess moved to

suppress, arguing the warrant authorizing their search lacked sufficient

particularity and the search exceeded the scope of the warrant. The district court

denied the motion. Burgess continues to press his arguments here and also

challenges the admission of 404(b) evidence and the length of his sentence. We

affirm.

I. FACTS

A. Introduction

On July 24, 2007, Wyoming Trooper Matt Arnell observed a motor home

with Nevada license plates at a restaurant parking lot in Evanston, Wyoming. It

was towing a trailer bearing an expired Wyoming license plate. Arnell was aware

(from a prior briefing) the motor home was associated with the Hell’s Angels

motorcycle club. He verified that the trailer plate was expired but did nothing

more until the motor home was driven on to Interstate 80 heading east. As Arnell

followed the vehicle, he called for a drug canine to be brought to the area. He

then stopped the motor home to issue a citation for the expired plate. When the

driver, Shayne Waldron, stepped out, Arnell smelled the odor of burnt marijuana.

As Arnell spoke with Waldron, a passenger in the motor home, David Burgess,

joined the conversation. Burgess said he was the owner of the motor home and

both men acknowledged the trailer’s license plate was expired. Burgess explained

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the trailer belonged to a person who permitted them to use it and they were

traveling to another town in Wyoming to update the registration and obtain

current plates.

As Arnell was issuing a citation for the expired plate, Deputy David Homar

and his canine, Blitz, arrived. Blitz (who had never given a false alert to the

presence of drugs) alerted at the doors of the motor home. Trooper Arnell

informed Burgess he was going to search the vehicle. Burgess said he would

rather Arnell get a warrant. Nevertheless, because of the suspicions raised by

Blitz’s alert and the smell of marijuana, Arnell entered the motor home where he

found some marijuana, a pipe, and two bags of cocaine – each containing

approximately seven grams. Arnell advised Waldron and Burgess of their rights

per the Miranda decision. 1 When Arnell said he had found marijuana, Burgess

admitted the marijuana was his. Arnell resumed the search. He noticed a laptop

computer and a Seagate hard drive in the bedroom. After approximately fifteen to

thirty minutes, Arnell left the motor home and arranged to have it towed to a

Wyoming Department of Transportation shop for further inspection.

In the meantime, Agent Russell Schmitt, a narcotics officer with the Green

River, Wyoming, police department arranged to meet Arnell at the shop. The two

officers went to the Department of Criminal Investigations office in Evanston to

1
Miranda v. Arizona, 384 U.S. 436 (1966).

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prepare an affidavit and request for a search warrant. Paragraph 17 of the

affidavit stated in relevant part: “Based upon training and experience, your

Affiant [Schmitt] knows that persons involved in trafficking or the use of

narcotics often keep photographs of coconspirators or photographs of illegal

narcotics in their vehicle.” (R. Vol. I at 133.) Arnell and Schmitt’s team leader,

Agent Webster, reviewed the documents. Arnell and Schmitt then took the

documents to the county attorney for review and approval. Finally, they

presented the affidavit and request for a warrant to the county judge, who

incorporated the affidavit into the warrant and authorized a search for:

The property and premises of a white, 1999, Freightliner Motorhome
. . . [for] certain property and evidence to show the transportation
and delivery of controlled substances, which may include but not
limit[ed] to, cash, or proceeds from the sale of controlled substances,
Marijuana, Cocaine, Methamphetamine, or other illegal controlled
substances, along with associated paraphernalia to include but not
limited to pipes, bongs, syringes, packaging material, computer
records, scales, laboratory dishes, flasks, beakers, tubes, pie tins,
electrical timers, containers to be used for storing , manufacturing
and selling, chemicals used in the creation of illegal narcotics as well
as their diluting agents, items of personal property which would tend
to show conspiracy to sell drugs, including pay-owe sheets, address
books, rolodexes, pagers, firearms and monies.

(Id. at 130.) The warrant authorized a search on July 24, 2007, “or within ten

days thereafter.” (Id.)

After serving the warrant, the officers returned to the search of the motor

home. Arnell discovered a Maxtor hard drive pushed underneath the couch in the

living room. The Maxtor drive along with the laptop and the Seagate drive

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discovered earlier were seized and transported to Cheyenne, Wyoming, for

forensic examination. Agent Scott Hughes, special agent with the Internet Crimes

Against Children Division 2 was assigned to the case on August 1, 2007. When

Hughes went to retrieve the material from the evidence locker, the associated

paperwork was not present. Hughes immediately requested the paperwork, which

he received on August 21, 2007. After reviewing the warrant, Hughes was

concerned about the time delay (the items were seized on July 24). He contacted

a DCI staff attorney who advised he could search for evidence of controlled

substances, but if he found evidence of any other crime, he must stop and request

a new warrant to continue his search. The search of the hard drives was

commenced on September 6, 2007.

Hughes began with the Maxtor hard drive using a program called EnCase.

The protocol is to first make a byte-for-byte copy of the hard drive. After the

contents of the original hard drive are copied, the original drive is secured and the

copied material is examined – this process ensures evidence is not corrupted.

Hughes planned to contact the investigating agent to see if there were any special

key or code words which may have been found during the investigation to

facilitate further search once the copying process was complete.

Copying the files can take up to twelve hours but EnCase allows an

2
Agents from this division are trained in computer examinations and work on
cases from many different law enforcement divisions, including narcotics.

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investigator to “preview” files as they are being copied. (Id. at 246.) Hughes

decided to take advantage of the preview feature to look for “trophy photos,” i.e.,

pictures of a “person holding the controlled substance in front of a stack of

money,” similar to the kinds of photographs described in Paragraph 17 of

Schmitt’s affidavit. (Id.) The images are shown in a “gallery view,” an option

where multiple reduced size photos are displayed on one page. (Id.) After

viewing 200-300 digital images of personal photographs, Hughes came upon an

image depicting child sexual exploitation. He immediately closed the preview

program and secured a new warrant authorizing a search for evidence of child

sexual exploitation. He then searched all three devices, the laptop, the Seagate

hard drive and the Maxtor hard drive. While the laptop did not contain child

pornography, his search revealed approximately 166,000 images, including

movies and texts, between the two hard drives. Hughes stopped counting the

number of child pornography files when the count exceeded 1,300. His

conservative estimate was 30% to 45% of the files contained child pornography,

approximately 70,000 images. Some of the same pornographic pictures were on

both the Maxtor and the Seagate hard drives.

A grand jury indicted Burgess for knowing transportation of child

pornography across state lines in violation of 18 U.S.C. §§ 2252A(a)(1) and

(b)(1) (Count One) and knowing possession of child pornography transported in

interstate commerce in violation of 18 U.S.C.§§ 2252A(a)(5)(B) and (b)(2)

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(Count Two). Both charges were based on the images found in the Maxtor hard

drive “including, but not limited to,” six specific images.

B. Pretrial Motions

Burgess moved to suppress the evidence claiming the original search of the

Maxtor hard drive violated his rights under the Fourth Amendment. He

maintained the first warrant (authorizing a search for drug trafficking evidence)

lacked specificity and the search constituted an impermissible general search. 3

The government claimed, even if the warrant was defective, the search was

permissible under the automobile exception to the general presumption that

warrantless searches are unreasonable. The district court denied Burgess’ motion,

concluding both the seizure and the search of the computer equipment was

supported by probable cause, the seizure was valid under the automobile

exception and the search warrant was sufficient to allow a search of the computer

equipment for evidence of drug trafficking. Finally, the court held the search did

not exceed the scope of the warrant.

Prior to trial, Burgess said he planned to defend against the charges by

testing the government’s ability to prove he knowingly possessed the images

charged in the indictment and found on the Maxtor hard drive. In response the

government filed a motion declaring its intent to introduce 78 images from the

3
Burgess claims the second search warrant (authorizing a search for child
pornography) was tainted by the first search, but raises no other issues with respect to the
second warrant or the resulting search.

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Seagate hard drive, including numerous pictures of R.C., a fourteen-year-old

female ward of Burgess’ friend, Rebecca Deshaise. Numerous pictures of R.C.

were found on both hard drives and trial testimony revealed R.C. had spent many

hours at Burgess’ home over the years.

Some of the pictures of R.C., found only on the Seagate drive, were taken

in May, 2007, in a motel room in Winnemucca, Nevada, while Burgess attended

the Run-A-Mucca motorcycle rally. R.C. and two of her friends accompanied

Deshaise and Burgess to the rally. Among the pictures were nude and seminude

images of her (some showing her exposed genitalia), which also contained lurid

text suggesting Burgess was the photographer and/or describing inappropriate

sexual contact between R.C. and “Uncle David.” (e.g. Sealed Vol. II, Exh. 816.)

The government offered the evidence to prove motive, intent, knowledge, and

identity under Rule 404(b) of the Federal Rules of Evidence. The government’s

motion generated objections and motions in limine prompting hearings prior to

and during the trial. Eventually, the parties stipulated to the admissibility of four

of the child pornographic images charged in the indictment — those four pictures

were found on both the Maxtor and Seagate hard drives. 4 The pictures of R.C.

were not among those admitted by stipulation.

4
The images are clearly child pornography. They show a pre-pubescent girl
wearing nothing but a light dress pulled up over her chest: Exhibits 805-808 show the
nude child in various poses centering on her genitalia. One image shows her with an
adult male.

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C. Trial

During the government’s case in chief the court admitted four pictures of

R.C. found on the Seagate drive 5 and gave a limiting instruction to the jury. 6

5
These exhibits include one nude image of R.C. taking a shower and several
semi-nude pictures of R.C. dressed only in a towel. The images appear with graphic and
vulgar superimposed text. For example, one image is R.C. sitting cross-legged on a bed
wearing only a short towel (genitalia exposed) with superimposed text referring to “Uncle
David”s . . . Princess.” (R. Sealed Vol. II, Exh. 816.) The nude shower image contains
the superimposed statement, “I think this is one of the sexiest pictures in my collection.”
(Id., Exh. 834.)
6

Ladies and gentlemen of the jury, the two charges contained in the Indictment in
this case refer to the Maxtor hard drive. I need and wish to caution you at this
point concerning evidence as to the Seagate hard drive.

Evidence that an act was done or that an offense may have been committed
by the defendant at some other time is not, of course, any evidence or proof
whatever that at another time the defendant performed a similar act or
committed a similar offense, including the offenses charged in this
Indictment. Evidence of a similar act or offense may not be considered by
the jury in determining whether the defendant actually performed the
physical acts charged in this Indictment, nor may such evidence be
considered for any other purpose whatever unless the jury first finds beyond
a reasonable doubt, from other evidence in the case standing alone, that the
defendant physically did the acts charged in the Indictment. If the jury
should find beyond a reasonable doubt from other evidence in the case the
defendant did the act or acts alleged in the counts under consideration, the
jury may then consider the evidence as to an alleged earlier act of a like
nature in determining the state of mind or intent with which the defendant
actually did the act or acts charged in the Indictment.

It is also offered for the purpose of identity, that it was the defendant that
did the acts, as well as knowledge on the part of the defendant that the acts
have been performed.

Of course, I want to again emphasize that you will hear evidence of other
digital images contained in the Government’s 800 series of exhibits that

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According to the government the superimposed text on the photographs directly

connected Burgess to the images of R.C., showed he was aware of the contents of

the Seagate drive, and, because some of the child pornography on the Seagate

Drive was identical to that on the Maxtor drive, was evidence from which the jury

could infer he had knowledge of the contents of the Maxtor drive, specifically the

pictures charged in the indictment.

Burgess called several witnesses who testified he never acted

inappropriately around children. One of these witnesses was Deshaise, R.C.’s

legal guardian and chaperone of all three girls at the Runna-A-Mucca motorcycle

rally. Deshaise testified she was with the girls at all times in the motel room and

they were never alone with Burgess. On cross examination the government

questioned Deshaise regarding the circumstances surrounding twelve more images

of R.C. taken in the motel room in Winnemucca and also found on the Seagate

hard drive (they were in addition to the four already admitted). 7 The government

were found on the Seagate hard drive that the Government alleges were
possessed by the defendant. You may consider this evidence only as it
bears on the defendant’s intent, the identity of the defendant, the
defendant’s knowledge and the absence of a mistake, and for no other
purpose. Of course, the fact that the defendant may have possessed these
images does not mean that the defendant necessarily committed the act
charged in this case.

(R. Vol. II at 615-16.)

7
Some of these images include the same image of R.C. contained in Exhibits 816
and 834, but with additional material. In Exhibit 832 an oval containing a much younger

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offered the pictures to rebut Deshaise’s testimony that the girls were adequately

chaperoned and Burgess could not have taken the pictures. The pictures were

admitted over Burgess’ objection and without explanation.

The jury found Burgess guilty of both counts.

D. Sentencing

The presentence report (PSR) calculated a total offense level of 37 and a

criminal history category I. 8 Burgess objected to the PSR’s use of both an

enhancement under USSG §2.2(b)(4) (vulnerable victim) and an enhancement

under USSG § 3A1.1(b)(1) (vulnerable victim) as double counting. He also

claimed an enhancement under USSG §2.2(b)(5) (use of a computer) was not

applicable because the hard drive was not a computer. Finally, he claimed he was

entitled to a two-level reduction of his offense level under USSG § 2G2.2(b)(1).

The court rejected the objection regarding use of a computer but agreed as to the

vulnerable victim enhancement and therefore reduced the total offense level to

35. 9 The court further determined Burgess was not entitled to a two point

picture of R.C. is superimposed to the side of the sexually explicit picture of R.C. The
same picture appears again in Exhibit 848 without text. Exhibit 833 is a composite of
R.C. as well as a friend, both in various states of undress; the superimposed text reads,
“Gee . . . you think this might be the reason why your daddy doesn’t want his 14-yr-old
daughter spending the night in a motel room with me.” (R. Sealed Vol. II, Exhs. 827,
832, 848.)
8
The November 1, 2007 Edition of the United States Sentencing Guidelines
Manual was used for sentencing.
9
The district court ruling on these objections is not at issue on appeal.

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reduction under U.S.S.G § 2G2.2(b)(1) in light of his conviction for transporting

the child pornography across state lines. It declined to sentence Burgess below

the guideline recommendation, imposing a sentence of 180 months imprisonment

on Count One and 120 months imprisonment on Count Two, the sentences to run

concurrently.

Burgess appeals from the denial of his motion to suppress evidence, the

admission of 16 images from the Seagate hard drive and the length of his

sentence.

II. DISCUSSION

A. Motion to Suppress

1. Standard of Review

“When reviewing the district court’s denial of a motion to suppress, we

view the evidence in the light most favorable to the government and accept the

district court’s factual findings unless they are clearly erroneous.” United States

v. Grimmett, 439 F.3d 1263, 1268 (10th Cir. 2006). “The ultimate question of

reasonableness under the Fourth Amendment is a legal conclusion that we review

de novo.” Id. Burgess claims the search of his hard drive amounted to a general

search prohibited by the Fourth Amendment and the original warrant lacked

sufficient particularity to justify the agent’s search of the images on his hard

drive. The government maintains the search was within the scope of the warrant

and, in any event, a warrant was unnecessary because the hard drives and laptop

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could be searched as well as seized pursuant to the automobile exception.

2. Computer Search

a. Automobile Exception

The Fourth Amendment protects the “right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures.” “[I]t is a cardinal principle that ‘searches conducted outside the

judicial process, without prior approval by judge or magistrate, are per se

unreasonable under the Fourth Amendment--subject only to a few specifically

established and well-delineated exceptions.’” United States v. Ross, 456 U.S.

798, 825 (1982) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). One

of these specifically established exceptions is the “automobile exception” which

allows the police to “search an automobile and the containers within it where they

have probable cause to believe contraband or evidence is contained.” 10 California

v. Acevedo, 500 U.S. 565, 580 (1991).

“The scope of a warrantless search based on probable cause is no narrower

— and no broader — than the scope of a search authorized by a warrant supported

by probable cause. Only the prior approval of the magistrate is waived; the

search otherwise is as the magistrate could authorize.” Ross, 456 U.S. at 823.

10
“[T]he justification to conduct such a warrantless search does not vanish once
the car has been immobilized,” Michigan v. Thomas, 458 U.S. 259, 261 (1982), and
“[t]here is no requirement that the warrantless search of a vehicle occur
contemporaneously with its lawful seizure.” United States v. Johns, 469 U.S. 478, 484
(1985).

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“When a legitimate search is under way, and when its purpose and its limits have

been precisely defined, nice distinctions between closets, drawers, and containers,

in the case of a home, or between glove compartments, upholstered seats, trunks,

and wrapped packages, in the case of a vehicle, must give way to the interest in

the prompt and efficient completion of the task at hand.” Id. at 821.

Against this legal backdrop, and relying on our holding in United States v.

Andrus, 483 F.3d 711 (10th Cir. 2007), cert. denied, 128 S. Ct. 1738 (2008), the

government urges us to apply the automobile exception not only to the seizure of

the laptop and hard drives but to the search of those items as well. Andrus

involved a father’s actual or apparent authority to consent to the search of a

computer located in their shared residence but belonging to his absent adult son.

In discussion of reasonable expectations of privacy we likened a computer to a

suitcase or briefcase. Id. at 718. Because “[a] personal computer is often a

repository for private information the computer’s owner does not intend to share

with others” and “intimate information is commonly stored on computers, it

seems natural that computers should fall into the same category as suitcases,

footlockers, or other personal items that command a high degree of privacy.” Id.

(quotations omitted). The government constructs this syllogism: 1) the

expectation of privacy of computer contents has been likened to that of a suitcase

or briefcase (Andrus); 2) the automobile exception to the warrant requirement

permits, with probable cause, the search of containers found in the automobile –

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even locked suitcases and briefcases, Acevedo, 500 U.S. at 580; therefore 3)

police may (with probable cause, but without a warrant) search computers and

hard drives found in automobiles, Burgess’ motor home included.

Burgess does not quarrel about the search of his motor home for drugs. 11

Rather, he contends the application of the automobile exception to search the

computer and hard drives found in his motor home would grant police “the

authority to forensically analyze and conduct a general search of any computer

found in any automobile which was subject to a valid search under the automobile

exception.” (Appellant’s Reply Br. at 2.) While a computer may be a container,

because of the amount of personal information stored within, Burgess argues it is

a virtual home. He says in this “age of the laptop computer,” such an

“extraordinary expansion” of the automobile exception would “destroy a citizen’s

expectation of privacy in his or her computer.” (Id.)

The Supreme Court’s Fourth Amendment jurisprudence has not directly

addressed this issue. Moreover, the parties have cited no case law which either

allows or prohibits computer equipment searches under the automobile exception

and our research has failed to uncover such authority.

11
See United States v. Stewart, 473 F.3d 1265, 1270 (10th Cir. 2007) (“A canine
alert gives rise to probable cause to search a vehicle. This is so even when the dog alert
occurs during a warrantless sniff on the exterior of a vehicle during a lawful traffic stop
because such sniffs do not implicate the Fourth Amendment.” (citation and quotations
omitted).

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 At first blush, there appears no reason to treat computers differently than,

for instance, a locked briefcase in the locked trunk of an automobile. There is a

privacy expectation for a briefcase or suitcase, which may contain very personal

and confidential papers – particularly when well secured in the trunk of a car.

Yet the automobile exception subjects the briefcase to search. So why not the

computer? What is the difference between a file cabinet, suitcase or briefcase and

a computer? It might lie in the sheer range and volume of personal information

the computer may contain. United States v. Otero, 563 F.3d 1127, 1132 (10th

Cir. 2009) (“development of personal computer . . . increases . . . ability to

conduct a wide-ranging search”).

“[A]nalogies to closed containers or file cabinets may lead courts to

‘oversimplify a complex area of Fourth Amendment doctrines and ignore the

realities of massive modern computer storage.’” United States v. Carey, 172 F.3d

1268, 1275 (10th Cir. 1999) (quoting Raphael Winick, Searches and Seizures of

Computers and Computer Data, 8 Harv. J.L. & Tech. 75, 104 (1994)); see also

United States v. Walser, 275 F.3d 981, 986 (10th Cir. 2001) (“analogies to other

physical objects . . . do not often inform the situations we now face as judges

when applying search and seizure law”); United States v. Campos, 221 F.3d 1143,

1148 (10th Cir. 2000) (“the storage capacity of computers may require law

enforcement officers to take a special approach”). In Andrus, we “tentative[ly]”

characterized a computer as a container akin to a suitcase or locked footlocker,

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but we did so to emphasize the high expectation of privacy for this particular type

of “container,” not to permit promiscuous searches under the automobile

exception. 483 F.3d at 718. And a notable distinction may exist between

authority to seize a computer and authority to search its contents.

In Carey, we stated,

Where officers come across relevant documents so intermingled with
irrelevant documents that they cannot feasibly be sorted at the site,
the officers may seal or hold the documents pending approval by a
magistrate of the conditions and limitations on a further search
through the documents. The magistrate should then require officers
to specify in a warrant which type of files are sought.

172 F.3d at 1275. Historically, there is substantial support for the notion a

warrantless seizure is valid but a warrantless search is not.

[I]f there is probable cause to believe [an object] contains
contraband, the owner’s possessory interest in the container
must yield to society’s interest in making sure that the
contraband does not vanish during the time it would take to
obtain a warrant. The item may be seized temporarily. It does
not follow, however, that the container may be opened on the
spot. Once the container is in custody, there is no risk that
evidence will be destroyed. Some inconvenience to the officer
is entailed by requiring him to obtain a warrant before opening
the container, but that alone does not excuse the duty to go
before a neutral magistrate.

Texas v. Brown, 460 U.S. 730, 749-50 (1983) (plurality) (J. Stevens, concurring).

That, of course, was the rationale underlying United States v. Chadwick, 433 U.S.

1 (1977) (search of double locked footlocker found in automobile unreasonable),

and Arkansas v. Sanders, 442 U.S. 753 (1979) (search of seized suitcase found in

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taxi unreasonable), but that rationale was rejected in California v. Acevedo, 500

U.S. 565, 579 (1991), in favor of a bright line rule: “We therefore interpret

Carroll as providing one rule to govern all automobile searches. The police may

search an automobile and the containers within it where they have probable cause

to believe contraband or evidence is contained.” Acevedo involved a paper bag

full of marijuana in the trunk of a car but the court saw no reason to distinguish

that sack, which would be an unlikely container of private papers, from a

briefcase, which very well might. In a concurring opinion Justice Scalia noted

anomalies in dealing with vehicle searches, saying:

I agree with the dissent that it is anomalous for a briefcase to be
protected by the "general requirement" of a prior warrant when it is
being carried along the street, but for that same briefcase to become
unprotected as soon as it is carried into an automobile. On the other
hand, I agree with the Court that it would be anomalous for a locked
compartment in an automobile to be unprotected by the "general
requirement" of a prior warrant, but for an unlocked briefcase within
the automobile to be protected. I join in the judgment of the Court
because I think its holding is more faithful to the text and tradition of
the Fourth Amendment, and if these anomalies in our jurisprudence
are ever to be eliminated that is the direction in which we should
travel.

Id. at 581.

Practically speaking, the forensic search of a hard drive (or its equivalent,

such as a flash drive 12) will rarely be conducted at the “site” while searching an

12
“Flash drives” are solid state memory devices that can comfortably be carried
on a key chain. They can be used, usually thru a USB port, much like an external hard
drive. They hold tremendous amounts of data, commonly having 2 to 32 GB of memory.
One manufacturer has recently announced the release of a 256 GB flash card, which

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automobile, given the potential to corrupt or lose evidence. Arguably, requiring

the government to secure a warrant prior to searching the contents of a properly

seized computer is typically not overly burdensome in light of the privacy

interests at stake. However, sometimes the police may not resort to forensic

programs like EnCase. Assuming probable cause to do so, they might simply turn

the computer on and conduct a superficial search. Nothing in Acevedo suggests

either type of search (limited or on site forensic) would be impermissible without

a warrant, but seemingly well settled matters are subject to change. 13 Last term in

Arizona v. Gant, 129 S. Ct. 1710, 1722 (2009), the Court retreated from clear

language in New York v. Belton, 453 U.S. 454 (1981). Belton said, “when a

policeman has made a lawful custodial arrest of the occupant of an automobile, he

may, as a contemporaneous incident of that arrest, search the passenger

compartment of that automobile.” 453 U.S. at 460 (footnote omitted). After Gant

the rule is “Police may search a vehicle incident to a recent occupant’s arrest only

if the arrestee is within reaching distance of the passenger compartment at the

would equal or exceed the hard drive capacity of many contemporary laptop computers.
See, http://www.physorg.com/news167461888.html.
13
Doing so would be much like searching a cell phone for recent calls (in and
out), information contained in the address book, image files (still or digital video), audio
files (including phone messages) or other digital information. The memory cards,
available in some cell phones can, like flash drives, hold vast amounts of information,
including image and data files. See, for instance
http://www.sandisk.com/Products/Item(2537)-SDSDQ-8192-A11M-SanDisk_microSDH
C_8GB_Card_with_SD_Adapter.aspx.

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time of the search or it is reasonable to believe the vehicle contains evidence of

the offense of arrest.” Gant, 129 S. Ct. at 1723. In spite of clear language in

Acevedo, one might speculate whether the Supreme Court would treat laptop

computers, hard drives, flash drives or even cell phones as it has a briefcase or

give those types of devices preferred status because of their unique ability to hold

vast amounts of diverse personal information. Interesting as the issue may be, we

need not now resolve it because the search of Burgess’ hard drives was authorized

by a warrant.

b. Validity of the Warrant

Burgess argues the initial search warrant authorizing a search of “computer

records” and “items of personal property which would tend to show a conspiracy

to sell drugs” was overbroad. (R. Vol. I at 130.) “The Fourth Amendment

requires not only that warrants be supported by probable cause, but that they

particularly describ[e] the place to be searched, and the persons or things to be

seized.” Otero, 563 F.3d at 1131 (quotations omitted). “The modern

development of the personal computer and its ability to store and intermingle a

huge array of one’s personal papers in a single place increases law enforcement’s

ability to conduct a wide-ranging search into a person’s private affairs, and

accordingly makes the particularity requirement that much more important.” Id.

at 1132. “Because of this, our case law requires that warrants for computer

searches must affirmatively limit the search to evidence of specific federal crimes

-20-
or specific types of material.” Id. (quotations omitted). However, we must keep

in mind “[a] reviewing court is to interpret search warrant affidavits in a common

sense and realistic fashion.” Grimmett, 439 F.3d at 1270.

We agree with the district court; “the pertinent documents could have been

more artfully prepared.” (Id. at 88.) We also agree the officers had probable

cause to seize the computer equipment and could do so without a warrant under

the automobile exception. Although a closer call, we further agree the warrant to

search “contained sufficiently particularized language” creating “a nexus” with

the crime to be investigated – drug trafficking – and therefore was not overly

broad. Id. at 1271. The warrant authorized the search of Burgess’ motor home

for “certain property and evidence to show the transportation and delivery of

controlled substances, which may include but [is] not limited to” controlled

substances, paraphernalia, chemicals, and containers. (Id. at 130.) It also

authorized a search for “computer records” and for “items of personal property

which would tend to show conspiracy to sell drugs, including pay-owe sheets,

address books, rolodexes, pagers, firearms and monies.” (Id.)

The inclusion of “computer records” amongst a host of other physical items

might seem to be an anomaly. Nevertheless, the warrant authorizes such a search

and provides context for determining its scope. The issue here relates to the

breadth of the search authorized. If the warrant is read to allow a search of all

computer records without description or limitation it would not meet the Fourth

-21-
Amendment’s particularity requirement. United States v. Riccardi, 405 F.3d 852,

862 (10th Cir. 2005); 14 United States v. Leary, 846 F.2d 592, 600 (10th Cir.

1988). But “a word is known by the company it keeps.” S.D. Warren Co. v.

Maine Bd. of Envtl. Prot., 547 U.S. 370 (2006) (dealing with statutory

construction). The search, in general, was limited to evidence of drugs and drug

trafficking and, as it relates to the computer, was limited to the kind of drug and

drug trafficking information likely to be found on a computer, to wit (as the

warrant says): “pay-owe sheets, address books, rolodexes” and “personal property

which would tend to show conspiracy to sell drugs.” (Id. at 130.) The latter

could reasonably include “trophy photos.”

Paragraph 17 of Schmitt’s affidavit explicitly included “photographs of

coconspirators or photographs of illegal narcotics” among the types of items to be

included in the requested search. (Id. at 133.) The warrant, itself, does not

14
In Riccardi, we held the seizure of computer equipment was permissible, but the
subsequent warrant authorizing the search “was not limited to any particular files, or to
any particular federal crime” and therefore violated the Fourth Amendment. 405 F.3d at
862. The warrant authorized the search of Riccardi’s computer:

and all electronic and magnetic media stored therein, together with all
storage devises [sic], internal or external to the computer or computer
system, including but not limited to floppy disks, diskettes, hard disks,
magnetic tapes, removable media drives, optical media such as CD-ROM,
printers, modems, and any other electronic or magnetic devises used as a
peripheral to the computer or computer system, and all electronic media
stored within such devises.

Id. (emphasis added).

-22-
explicitly instruct officers to look for image files on the hard drive, but the

affidavit was incorporated into the warrant and is, at least, an aid to interpretation

of the term used in the warrant – computer records.

Our reading of the scope of the “computer records” subject to search,

narrowing it to looking for drug related evidence, comes from the text of the

warrant, with due regard to context, coupled with the specifics of the supporting

affidavit, see Grimmett, 439 F.3d at 1271; United States v. Brooks, 427 F.3d 1246

(10th Cir. 2005), and is reinforced by the executing officer’s (Hughes)

understanding of and respect for the narrow scope authorized by the search

warrant. Hughes was only looking for “trophy photos” when he came upon the

child pornography. 15

c. Scope of Search

Burgess claims the scope of the search violated the Fourth Amendment

under our holding in Carey, because Agent Hughes “employed none of the

15

“While the warrant does not explicitly instruct officers to look solely for
those text files containing child pornography, in context-and certainly in the
view of the officers conducting the search-the restrictions placed upon
searches for image files also apply to the other types of files. In other
words, although the language of the warrant may, on first glance, authorize
a broad, unchanneled search through Brooks's document files, as a whole,
its language more naturally instructs officers to search those files only for
evidence related to child pornography. In this light, the warrant should
be-and was-read by officers to implicitly place the same restriction (i.e., to
locate child pornography) on the scope of the entire search.”

Brooks, 427 F.3d at 1252.

-23-
methods suggested by this Court in Carey to avoid searching files which would

not be related to any drug offense.” (Appellant’s Reply Br. at 7.) And it is true

that Hughes began his search by previewing photographs contained in the Maxtor

hard drive.

As in this case, the officer in Carey inadvertently discovered an image of

child pornography while searching for electronic evidence of drug activity. After

opening the first file, the officer in Carey temporarily abandoned the search for

drug evidence and proceeded to look through the hard drive for more images of

child pornography. We determined the extension of the search to locate further

evidence of child pornography exceeded the scope of the warrant authorizing a

search for evidence of drug crimes. Here Hughes immediately stopped the

preview upon seeing an instance of suspected child pornography and obtained

another warrant to search for pornography. Beyond that obvious and significant

difference between this case and Carey, it is tempting, as Burgess suggests, to

over read Carey. But the Carey holding was limited. Both the majority and the

concurring opinions were careful to warn that the case was fact intense. Carey,

172 F.3d at 1276 (“[W]e are quick to note these results are predicated only upon

the particular facts of this case, and a search of computer files based on different

facts might produce a different result.”).

While “[o]fficers must be clear as to what it is they are seeking on the

computer and conduct the search in a way that avoids searching files of types not

-24-
identified in the warrant,” Walser, 275 F.3d at 986, “a computer search may be as

extensive as reasonably required to locate the items described in the warrant”

based on probable cause. Grimmett, 439 F.3d at 1270 (quotation omitted). And

“[t]his Court has never required warrants to contain a particularized computer

search strategy.” Brooks, 427 F.3d at 1251. Carey dicta suggested methods to

constrain searches, keying on the type of files identified in the warrant, file

names, key word searches, directory structure (file organization), etc. 172 F.3d at

1276. The warrant here did not direct the search by describing file name

extensions (.doc,. wpd, .txt, .jpg, .gif, etc.), 16 file names or directory structure.

Rather the limitation on the scope of this search was explicitly constrained by

content – computer files containing evidence of drug use or trafficking. Such

files could take many forms. Pay-owe sheets could be generic text files (.txt) or

word processing documents, e.g. Microsoft Word (.doc, .docx, .dot, .dotx, etc.),

Corel WordPerfect (.wpt, .wpk, .wpd, .wp7, etc.), or other word processing

programs and, of course, there is the ubiquitous .pdf from Adobe. 17 Address

16
A file extension consists of one to five characters and informs a computer’s
operating system what program to utilize in order to open a particular file. There are
thousands of filename extensions.
http://www.sharpened.net/glossary/definition.php?fileextension.
17
Open-source applications like Abiword (.abw), KWord (.kwd), and OpenOffice
(.odt, .odm, .odf, etc.), or newer online word processors like Google Docs (which allows
you to download the document in a number of file formats) complicate the issue even
further.

-25-
books or the electronic version of a rolodex might be found in Outlook (.pst) or

other Email program files or they could be in spreadsheets such as Excel (.xls,

.xlsb, .xltx, etc.), Lotus 1-2-3 (.wks, .wk4, etc.), Quattro Pro (.qpw) Quicken

(.qsd, .qdf, .qel, etc.), or OpenOffice (.ods, .ots, etc.). Or they could be database

files like Access (.accdb, .mdb, .maf, .mar, etc.) or Paradox (.db).

It is unrealistic to expect a warrant to prospectively restrict the scope of a

search by directory, filename or extension or to attempt to structure search

methods – that process must remain dynamic. While file or directory names may

sometimes alert one to the contents (e.g., "Russian Lolitas," "meth stuff," or

"reagents"), illegal activity may not be advertised even in the privacy of one's

personal computer – it could well be coded or otherwise disguised. 18 The

directory structure might give hints as to an effective search strategy, but could

just as well be misleading and most often could not effectively, or even

reasonably, be described or limited in a warrant. Keyword searches may be

useful in locating suspect files, but not always. In this case, for instance, some of

the pictures of R.C. contained lurid text (see n.5 & 7), which, if searchable, might

lead an investigator to those images by use of keyword searches. But that text

does not appear in the filename, meaning it would not be revealed by a filename

18
Hughes testified to having seen computer files in other cases describe pay-owe
sheets as “auto repair bills,” marijuana as “green paint,” and cocaine as “white paint.” (R.
Vol. I at 248.) There was no evidence of deliberate concealment in this case; some of the
filenames are incriminating. See n.16. However, other file names gave little or no
indication of the file’s content. See discussion on the next page.

-26-
search. And if the text was an embedded graphic (rather than embedded text) it

might not be revealed even in a word search of the entire document. Moreover

some of the pictures of R.C. ( Exhibits 830-834) had the following path: 07 301

8\8Hold\RC2007\May\252627\Towel\ and indescript filenames, such as

Img_5777_875.jpg. The path and filename of one particularly graphic image

(Exhibit 816 – lurid text superimposed) was: 07 301 8\8\Als_u621x2a.jpg. On

the other hand the path and/or filename may sometimes give an obscure hint as to

the content. For instance three of the pornographic child pictures from the

Maxtor and Seagate hard drives (Exhibits 805, 807 and 808) had this path: 07 301

8\8\Files\SG\Kp\Amateur Access\DCP\ (emphasis added). But the file names,

such as DCO01352.jpg, gave no hint as to file content

In summary, it is folly for a search warrant to attempt to structure the

mechanics of the search and a warrant imposing such limits would unduly restrict

legitimate search objectives. One would not ordinarily expect a warrant to search

filing cabinets for evidence of drug activity to prospectively restrict the search to

"file cabinets in the basement" or to file folders labeled "Meth Lab" or

"Customers." And there is no reason to so limit computer searches. But that is

not to say methodology is irrelevant.

A warrant may permit only the search of particularly described places and

only particularly described things may be seized. As the description of such

places and things becomes more general, the method by which the search is

-27-
executed become more important – the search method must be tailored to meet

allowed ends. And those limits must be functional. For instance, unless

specifically authorized by the warrant there would be little reason for officers

searching for evidence of drug trafficking to look at tax returns (beyond verifying

the folder labeled "2002 Tax Return" actually contains tax returns and not drug

files or trophy pictures). 19

Respect for legitimate rights to privacy in papers and effects requires an

officer executing a search warrant to first look in the most obvious places and as

it becomes necessary to progressively move from the obvious to the obscure.

That is the purpose of a search protocol which structures the search by requiring

an analysis of the file structure, next looking for suspicious file folders, then

looking for files and types of files most likely to contain the objects of the search

by doing keyword searches. But in the end, there may be no practical substitute

for actually looking in many (perhaps all) folders and sometimes at the documents

contained within those folders, and that is true whether the search is of computer

files or physical files. It is particularly true with image files.

We have not abandoned the concerns expressed in Carey. See Otero, 563

F.3d at 1135-36; Brooks 427 F.3d at 1251-52; Riccardi, 405 F.3d at 862; Walser,

275 F.3d at 986 (agent used a clear search methodology searching records where

19
We recognize a unique case might justify looking at tax returns for evidence of
payments related to drug activities such as purchases of manufacturing supplies or
equipment.

-28-
evidence might logically be found); Campos, 221 F.3d at 1148. The preview

technique may be problematic in other contexts but we are not prepared to

condemn it in this case. We must be guided by practical realities and several are

readily apparent. First, Hughes was not previewing all files, only image files and

his search was properly targeted – “trophy photos.” Second, had Hughes omitted

the preview and, instead, waited to do a structured search on the copied files (for

instance, by looking at the filenames of .jpg files) his search for "trophy photos"

would eventually and inevitably have led to discovery of the charged images. 20

Third, as our cases seem to require, Hughes immediately closed the gallery view

when he observed a possible criminal violation outside the scope of the warrant's

search authorization and did not renew the search until he obtained a new warrant.

Fourth, in general a structured approach may provide only the illusion of

protecting privacy interests, particularly when the search target is image files.

When a computer search for drug related evidence reveals filenames strongly

20
As trial evidence demonstrated some of the file names in Burgess’ hard drive
were particularly descriptive and a review of the names would have legitimately aroused
the suspicions of an agent trained in child pornography and inevitably led to the second
search warrant. See United States v. White, 326 F.3d 1135, 1138 (10th Cir. 2003) (“the
exclusionary rule is inapplicable if the evidence inevitably would have been discovered
by lawful means.”). For example, one folder named “Nastiest11yoSeries” had a
subfolder titled “Sausage” containing pornographic images of a young girl. (R. Vol. II at
574.) Another folder titled “AGE” contained subfolders titled “03,” “04,” “05,” “06,”
“07,” “08,” “09,” “10” and “11.” (Id. at 569-70.) Each subfolder folder contained images
of children the same age as described in the title engaged in sexually exploitive conduct.
One file was entitled “Lolita,” a term which Agent Hughes testified is often seen in the
investigation of child pornography. (Id. at 573-74.)

-29-
suggesting pornography an officer might be required to get another warrant before

proceeding. But if the suggestive file names did not amount to probable cause he

could keep searching for drug evidence, ultimately resulting in opening most files

to make sure they were not deceptively labeled. And eventually the child

pornography would be revealed. The only difference is that it would be

discovered later, rather than earlier. That is particularly true in this case where

the search was for image files, which could be buried almost anywhere. 21 Fifth,

Burgess complains the particular methodology used in this case was overbroad,

yet he offers no alternative methodology that would protect his legitimate

interests and also permit a thorough search for evidence of drug trafficking. See

Brooks, 427 F.3d at 1251 (“[N]or has Brooks suggested how the search in this

case would have been different with a scripted search protocol.”).

On these facts, we cannot say the Fourth Amendment was violated.

21
It would seem odd to require an officer who merely suspects pornography to
stop the search for evidence of drug trafficking. The concurring opinion in Carey
suggests it would not be necessary. “[I]f the record showed that Detective Lewis had
merely continued his search for drug-related evidence and, in doing so, continued to come
across evidence of child pornography, I think a different result would be required.” 172
F.3d at 1277. It would also seem odd to require the officer to attempt to obtain a
pornography warrant before confirming his suspicions about a file. Especially so in this
case because if the suspicions did not, in the view of a judge, amount to probable cause
the officer could continue his structured search for evidence of drug trafficking and
eventually return to and open the suspicious file (and multiple others) to guard against
deceptive labeling.

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 d. Leon Good Faith

Even if the warrant was not sufficiently particularized to comply with the

Fourth Amendment, the evidence need not be excluded if the search qualified

under the good faith doctrine of United States v. Leon, 468 U.S. 897 (1984).

Whether the “good faith exception” to the exclusionary rule should be applied is a

question of law, subject to de novo review by this Court. 22 Leary, 846 F.2d at

606. In Leon, the Supreme Court held the purpose of the exclusionary rule is to

deter police misconduct and “suppression of evidence obtained pursuant to a

warrant should be ordered only on a case-by-case basis and only in those unusual

cases in which exclusion will further” that purpose. 468 U.S. at 918. “Where an

officer acting with objective good faith obtains a search warrant from a detached

and neutral magistrate and the executing officers act within its scope, there is

nothing to deter.” United States v. Nolan, 199 F.3d 1180, 1184 (10th Cir. 1999).

Burgess argues the Leon exception does not apply here because the warrant

was “so facially deficient . . . the executing officers [could] not [have] reasonably

presume[d] it to be valid.” Leon, 468 U.S. at 923. It is the government’s burden

to prove “its agents’ reliance upon the warrant was objectively reasonable.”

United States v. Corral-Corral, 899 F.2d 927, 932 (10th Cir. 1990) (quotations

22
The parties briefed and argued the issue in the district court, which did not reach
it, and it was briefed on appeal. Thus, we may consider it. See United States v. Harrison,
566 F.3d 1254, 1256 (10th Cir. 2009) (proceeding directly to Leon analysis not decided
by the district court).

-31-
omitted).

“Just as reviewing courts give ‘great deference’ to the decisions of judicial

officers who make probable-cause determinations, police officers should be

entitled to rely upon the probable-cause determination of a neutral magistrate

when defending an attack on their good faith for either seeking or executing a

warrant.” Id. at 939.

It is the magistrate’s responsibility to determine whether the officer’s
allegations establish probable cause and, if so, to issue a warrant
comporting in form with the requirements of the Fourth Amendment.
In the ordinary case, an officer cannot be expected to question the
magistrate’s probable-cause determination or his judgment that the
form of the warrant is technically sufficient.

Leon, 468 U.S. at 921.

Burgess cites to two district court cases from other circuits to demonstrate

these officers could not reasonably believe the warrant was valid. In United

States v. Clough, the warrant authorized a search of computers for “a. text

documents of any variety, including e-mail, websites, records of chat sessions,

correspondence or shipping records; and b. digital images of any variety,

including still images and videos.” 246 F. Supp. 2d 84, 87 (D. Me. 2003). As the

court found, the warrant contained no restrictions on the search, no references to

statutes, and no references to crimes or illegality. Id. Again, in United States v.

Fleetwood Mgm’t Ltd., the warrant authorized a computer search for “any and all

data from the three seized computers, including, but not limited to certain types of

-32-
data relating to the Ship’s operation, engineering, maintenance, pollution control

equipment, navigational charts, and crew.” 521 F. Supp. 2d 436 (E.D. Pa. 2007)

(quotations omitted). In neither case was the search restricted in any way by the

warrant. These cases only underscore the officers’ reasonable reliance on the

language of the warrant in this case limiting the search to evidence of drug

trafficking.

Contrary to Burgess’ assertions, Agent Hughes did not contact the agency

attorney because he was confused about the scope of his search, he emphatically

stated his concern was the delay. Hughes knew he was looking for evidence of

drug possession and distribution and that such evidence would very likely be

contained in the digital images on the hard drive. At each step of the

investigation, the officers made every effort to comply with the law. Therefore,

even if the warrant was deficient, exclusion of the evidence would not be

necessary.

e. Timeliness of Search

Burgess argues the forty-four day delay in searching the computer violated

the Fourth Amendment. Because this issue was not raised below, we review for

plain error. Fed. R. Crim. P. 52(b).

To notice plain error under Rule 52(b), the error must:

(1) be an actual error that was forfeited; (2) be plain or obvious;
and (3) affect substantial rights, in other words, in most cases the
error must be prejudicial, i.e., it must have affected the outcome

-33-
 of the trial. . . . Given plain error that affects substantial rights, an
appellate court should exercise its discretion and notice such error
where it either (a) results in the conviction of one actually
innocent, or (b) seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.

Walser, 275 F.3d 985. “We apply the plain error rule less rigidly when reviewing

a potential constitutional error.” Id.

Because the warrant had expired by its own terms prior to the time Agent

Hughes began his forensic search of the hard drive, Burgess maintains the search

was warrantless and violated his Fourth Amendment rights. “The Fourth

Amendment does not specify that search warrants contain expiration dates.”

United States v. Sims, 428 F.3d 945, 955 (10th Cir. 2005); see also United States

v. Johns, 469 U.S. 478, 487 (1985) (while police officers may not indefinitely

retain possession of a vehicle and its contents before they complete a valid

warrantless search, the owner of the property must prove delay in the completion

of a search was unreasonable because it adversely affected a privacy or

possessory interest). Specific time limits are imposed by the Federal Rules of

Criminal Procedure which require that a “warrant must command the officer to . .

. execute the warrant within a specified time no longer than 10 days.” Fed. R.

Crim. P. 41(e)(2)(A)(i). “The restrictions in Rule 41 not only ensure that

probable cause continues to exist, but also that it is the neutral magistrate, not the

executing officers, who determines whether probable cause continues to exist.”

United States v. Syphers, 426 F.3d 461, 469 (1st Cir. 2005) (quotation omitted).

-34-
But “violations of Rule 41 alone should not lead to exclusion unless (1) there was

prejudice in the sense that the search might not have occurred or would not have

been so abrasive if the Rule had been followed, or (2) there is evidence of

intentional and deliberate disregard of a provision in the Rule.” Sims, 428 F.3d

955 (quotations omitted). The same analysis applies whether it is “a violation of

the warrant itself,” or “a violation of Rule 41 per se.” Id. There is no evidence

either of these conditions were met here.

Burgess points us to United States v. Mitchell where the Eleventh Circuit

held an initial seizure of a hard drive was permissible, but “the detention of the

hard drive for over three weeks before a warrant was sought constitute[d] a

significant interference with Mitchell’s possessory interest.” 565 F.3d 1347, 1351

(11th Cir. 2009) (emphasis added). The court held the delay in securing a warrant

was unreasonable because the government had no compelling excuse. Id. Here,

the warrant to search was secured prior to the hard drives being seized 23 and there

is no indication the officers were not diligent in executing the search. Probable

cause to search was unaffected by the delay and the reasons to search the

computer and hard drives did not dissipate during the month and a half the items

sat in an evidence locker. Burgess has not identified any prejudice from the delay

and the only readily apparent concern is that Burgess was temporarily denied

23
The motorhome was seized before the search warrant was issued. In a broad
sense, then, so was the computer equipment. But neither the laptop nor the hard drives
were separately seized (or searched) until after the warrant issued.

-35-
access to his property. Moreover, any delay was due to Agent Hughes’ efforts to

make sure the job was done right. Our plain error analysis ends at the first step,

suppression of the evidence from the computer equipment is not required – there

was no error.

B. Admission of Evidence

Burgess claims the court erred in admitting sixteen digital images from the

Seagate hard drive (four images admitted in the prosecution’s case-in-chief, and

twelve images admitted for impeachment of defense witness Dechaise – these

exhibits ought not be confused with the four pictures stipulated into evidence).

Early on, the defense stipulated to the admission of four pornographic pictures of

a child (see n.4), which appeared on both the Seagate drive and the Maxtor drive

(the four images on the Maxtor drive were specifically named in the indictment).

The images at issue here were only on the Seagate drive.

As is his right, Burgess decided to put the government to its proofs, among

them that he intentionally possessed the charged pornographic images found on

the Maxtor drive, in effect denying knowledge of those images on his hard drives.

The government offered the Seagate pictures in order to show Burgess was aware

the Seagate drive, and inferentially the Maxtor drive, contained pornographic

pictures. The file structure on both drives was highly organized, both drives

contained child pornographic images and both drives had duplicate images and

other files personal to Burgess. One could reasonably infer that Burgess was

-36-
aware of the contents of both drives. But the Seagate drive had an additional tie;

it contained many pictures of R.C. that were sexually suggestive or borderline

pornographic. Some of the photos of her had other pictures and/or lewd text

superimposed upon them, suggesting Burgess had taken the photographs and/or

had superimposed the text upon them. Tying him to those pictures might,

inferentially, tie him to the charged child pornography. Burgess claims the

admission of the pictures and text, while perhaps “marginally relevant” to show

Burgess knew the child pornography was on his hard drive, were unnecessary and

unduly prejudicial because their admission encouraged the jury to speculate about

Burgess’ perverted interest in a young girl with whom he had a trusting

relationship. (Appellant’s Br. at 24.)

We review the district court’s admission of evidence under Rules 404(b)

and 403 for abuse of discretion. United States v. Cerno, 529 F.3d 926, 933 (10th

Cir. 2008) (Rule 403), cert. denied, 129 S.Ct. 1905 (2009); United States v.

Mares, 441 F.3d 1152, 1156 (10th Cir. 2006) (Rule 404(b)). “We will not reverse

a district court’s ruling if it fall[s] within the bounds of permissible choice in the

circumstances and is not arbitrary, capricious or whimsical.” Mares, 441 F.3d at

1157 (quotations omitted).

Federal Rule of Evidence 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such

-37-
 as proof of . . . intent, . . . plan, knowledge, . . . or absence of
mistake.

We “consider four factors in weighing the admissibility of evidence under Rule

404(b): (1) whether the evidence is offered for a proper purpose, (2) its relevancy,

(3) that the probative value of the evidence is not substantially outweighed by its

prejudicial effect, and (4) a limiting instruction is given if the defendant so

requests.” Mares, 441 F.3d at 1157 “Rule 404(b) is considered to be an inclusive

rule, admitting all evidence of other crimes or acts except that which tends to

prove only criminal disposition.” United States v. Tan, 254 F.3d 1204, 1208 (10th

Cir. 2001) (quotations omitted).

However, even if relevant and offered for a proper purpose, Rule 404(b)

evidence may still be excluded under Rule 403 if its probative value “is

substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury. . . .” Fed. R. Evid. 403. “In determining whether

evidence is properly admitted under Rule 403, we consider (1) whether the

evidence was relevant, (2) whether it had the potential to unfairly prejudice the

defendant, and (3) whether its probative value was substantially outweighed by

the danger of unfair prejudice.” Cerno, 529 F.3d at 933. To be inadmissible

under rule 403, evidence must do more than “damage the Defendant’s position at

trial,” it must “make[] a conviction more likely because it provokes an emotional

response in the jury or otherwise tends to affect adversely the jury’s attitude

-38-
toward the defendant wholly apart from its judgment as to his guilt or innocense

[sic] of the crime charged.” Tan, 254 F.3d at 1211-12 (quotations omitted).

Burgess essentially argues the court erred in admitting the first four images

because the government already presented evidence sufficient to show knowledge,

identity and intent to possess the charged images on the Maxtor hard drive. He

points to the government’s evidence suggesting he, in effect, admitted ownership

of the hard drives. The numerous photos of Burgess and his home along with his

personal correspondence on both the Seagate and Maxtor hard drives connected

him to both drives and some of the non-pornographic photos found on the Maxtor

drive were posted on Burgess’ website. Therefore, according to Burgess, the

highly prejudicial nature of the evidence relating to R.C. which implied an

improper relationship with a minor was not “vital” to the government’s proof.

See United States v. Garot, 801 F.2d 1241, 1247 (10th Cir. 1986) (“exhibits were

vital to proof of appellants’ knowledge”). Thus, Burgess maintains the images

and text were far more prejudicial than probative and allowed the jury to convict

Burgess, not for possession and transportation, but for other uncharged crimes.

Although it may be a factor, the test is not necessarily whether the evidence is

vital to the government’s case. Vitality is often a matter of perspective. Within

limits delineated in the Federal Rules of Evidence the government is entitled to

introduce all relevant, probative evidence at its disposal. The defense cannot be

heard to complain that the government has produced too much evidence of guilt.

-39-
The Rule 403 test balances the probative value of (not necessarily the need for)

the evidence against its potentially unfairly prejudicial effect. That balancing is

for the trial judge. The remaining twelve images, some with accompanying text,

were not offered until Dechaise testified that Burgess had no opportunity to take

the pictures of the girls and her suggestion that the girls took the pictures

themselves. These twelve pictures were much like the four previously admitted.

According to the government, they were admissible to rebut the testimony of

defense witnesses who testified as to the defendant’s exemplary conduct around

children. These witnesses testified they had never seen Burgess behave

inappropriately with children and could not believe the man they knew as David

Burgess would be capable of possessing vast amounts of child pornography. The

government also claims they were admissible to impeach Deshaise’s testimony –

that Burgess was not alone with the young girls and the girls were sufficiently

chaperoned during the motorcycle rally. Burgess further complains these photos

were admitted without a limiting instruction. Such an instruction, however, was

never requested.

In United States v. Schene, we affirmed the district court’s admission of

uncharged child pornography images to show intent and knowledge. 543 F.3d

627, 643 (10th Cir. 2008). We held the evidence was relevant and proper,

specifically noting the district court gave a limiting instruction on the matter. Id.;

see also United States v. Simpson, 152 F.3d 1241, 1249 (10th Cir.1998)

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(affirming the district court’s decision to admit similar evidence “to prove that (1)

[the defendant’s] possession of child pornography on his computer was not a

mistake or accident, and (2) he had knowledge of the nature of the material he

was receiving.”). We agree the first four pictures were admissible to show

Burgess’ knowledge and possession. As in Schene and Simpson, the district court

here carefully reviewed the entirety of the evidence the government wished to

offer and excluded all but what the court believed necessary to government’s

case. In addition, the court gave an instruction prior to the introduction and in the

instruction package sent to the jury explaining the very limited purpose for which

it was offered and admonishing the jury to consider it for no other purpose. We

find no abuse of discretion.

The twelve additional photos with accompanying text is a closer call. Their

value for impeachment may have been cumulative; these twelve pictures were

much the same as the four pictures previously admitted over Burgess’ objection.

But the government’s position was that Burgess took the photographs. Its

arguments in that regard were undermined by the testimony of one of R.C.’s

companions at Winnemucca; the girl said she took the pictures. So the

superimposed captions on the photographs, suggesting Burgess took or edited

them, gained new importance and some of the twelve new photos contained

captions not present in the other four.

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 On the other hand Burgess’ conduct with real children was not the issue in

this trial; nor was his conduct at the motorcycle rally. The government does not

explain why it was necessary to introduce twelve rather than one or two

additional images for impeachment purposes (especially given the district court’s

determination that the four stipulated images and four additional Seagate images

were sufficient to prove Burgess’ intent and lack of mistake). Nonetheless, we

“afford great deference to the district court; review of a cold record is a poor

substitute for a trial judge’s intimate familiarity with the evidence and its role in

the context of the trial as a whole.” United States v. Hubenka, 438 F.3d 1026,

1036 (10th Cir. 2006) (quotations omitted). Considering whether to admit “more

of the same” is a judgment call best made by the trial judge. It is most difficult

for us to look at a cold record and decide if eight would be sufficient or four or

two. We may have reached a different conclusion but that does not make the trial

court’s decision an abuse of discretion.

In any event, the admission of these photographs and texts does not call

into question the jury’s guilty verdict. Any error in admitting the photographs

was harmless. “A non-constitutional error, such as a decision whether to admit or

exclude evidence, is considered harmless ‘unless a substantial right of [a] party is

affected.’” United States v. Charley, 189 F.3d 1251, 1270 (10th Cir. 1999)

(quoting Fed. R. Evid. 103(a)). An error affecting a substantial right of a party is

an error which had a “substantial influence” on the outcome or which leaves one

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in “grave doubt” as to whether it had such effect. United States v. Rivera, 900

F.2d 1462, 1469 (10th Cir.1990) (quoting Kotteakos v. United States, 328 U.S.

750, 765 (1946)). “[W]e review the record as a whole.” Charley, 189 F.3d at

1270. “The question is not whether, omitting the inadmissible statements, the

record contains sufficient evidence for a jury to convict the defendant,” but

whether the evidence had a substantial influence on the jury’s decision. United

States v. Tome, 61 F.3d 1446, 1455 (10th Cir. 1995).

The jury was presented with evidence Burgess possessed thousands of

images of child pornography, among them the charged images, which were

present on both hard drives. The hard drives also contained Burgess’ personal

photos and files. All the material on both hard drives, both legal and illegal, was

organized in a singular and sophisticated fashion. Putting aside all inferences of

an improper fascination with R.C., no reasonable jury could have reached a

conclusion other than the one reached here. There can be no doubt, let alone a

grave doubt, that Burgess knowingly possessed child pornography as he traveled

from Nevada into Wyoming.

C. Sentencing

Under Gall v. United States, the Supreme Court set the procedure for the

district court’s imposition of a sentence:

[A] district court should begin all sentencing proceedings by
correctly calculating the applicable Guidelines range. As a matter of
administration and to secure nationwide consistency, the Guidelines

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 should be the starting point and the initial benchmark. The
Guidelines are not the only consideration, however. Accordingly,
after giving both parties an opportunity to argue for whatever
sentence they deem appropriate, the district judge should then
consider all of the § 3553(a) factors to determine whether they
support the sentence requested by a party. In so doing, he may not
presume that the Guidelines range is reasonable. He must make an
individualized assessment based on the facts presented . . . . After
settling on the appropriate sentence, he must adequately explain the
chosen sentence to allow for meaningful appellate review and to
promote the perception of fair sentencing.

552 U.S. 38, 128 S. Ct. 586, 596-97 (2007).

We review a sentence for abuse of discretion. Id. at 600. We review the

court’s legal conclusions de novo and its factual findings for clear error. United

States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). A sentence is procedurally

unreasonable if the district court “fail[ed] to calculate (or improperly

calculate[ed]) the Guidelines range, treat[ed] the Guidelines as mandatory,

fail[ed] to consider the § 3553(a) factors . . . or fail[ed] to adequately explain the

chosen sentence.” Gall, 552 U.S. at 597.

1. Procedural Error

a. USSG §2.G2(b)

Burgess claims the district court erred as a matter of law in interpreting

USSG § 2G2.2(b)(1) to prohibit the reduction of his offense level by two points.

This section provides if a defendant is convicted of a child pornography offense

with a base offense level of 22, the court will decrease the offense level by two

points if “the defendant’s conduct was limited to (B) the receipt or solicitation of

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material involving the sexual exploitation of a minor; and (C) the defendant did

not intend to traffic in, or distribute such material.” USSG § 2G2.2(b)(1). The

district court determined that, because Burgess’ conduct included transportation

of child pornography, not only receipt, he did not qualify for the reduction even

though Burgess did not intend to distribute the material.

Burgess claims the court’s interpretation is in error because it is contrary to

guideline commentary defining distribution. “Distribution” is defined as:

[A]ny act, including possession with intent to distribute, production,
advertisement, and transportation, related to the transfer of material
involving the sexual exploitation of a minor.

USSG § 2G2.2(b)(1)(C), cmt. n.1 (2007). Burgess argues the definition’s

alignment of the word “transportation” with the concept of “transfer” of child

pornography demonstrates the drafters’ intention to apply the two level reduction

to defendants who transport material without intending it be transferred to anyone

else.

The Sixth Circuit has rejected this argument in a case nearly identical to

this one. See United States v. Fore, 507 F.3d 412 (6th Cir. 2007). In Fore, it was

uncontested there was “insufficient evidence that defendant intended to

‘distribute’ the images found in his vehicle,” but the government maintained “the

simple fact that defendant’s criminal conduct . . . also involved the interstate

transportation of child pornography in violation of 18 U.S.C. § 2252(a)(1),

disqualifie[d] defendant from receiving the reduction.” Id. at 415. The court

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began with the plain language of the guideline, recognizing “[s]entencing

guidelines should be read as they are written.” Id. (quotations omitted). The

court stated:

The wording of U.S.S.G. § 2G2.2(b)(1) is neither complicated nor
ambiguous. By its express terms, this Guideline permits a two-level
reduction in the offense level only if a defendant meets three
requirements: (1) his base offense level must be 22, in accordance
with subsection (b)(1)(A); (2) under subsection (b)(1)(B), his
conduct must be “limited” in scope of the receipt or solicitation of
material involving the sexual exploitation of a minor; “and” (3)
under subsection (b)(1)(C), he did not intend to traffic in or
distribute such material. Here, defendant’s undisputed base offense
level is 22. However, defendant has not met the second requirement
because his criminal conduct was not limited to the receipt or
solicitation of pornographic materials, but also encompassed the
transportation of materials involving the sexual exploitation of a
minor in interstate commerce in violation of 18 U.S.C. § 2252(a)(1),
an offense that is separate and distinct from, and goes beyond, the
mere receipt or solicitation of pornography proscribed by 18 U.S.C. §
2252(a)(4)(B). We further note that U.S.S.G. § 2G2.2(b)(1) is
devoid of any language suggesting that the offense of transporting
child pornography in interstate commerce otherwise qualifies for the
two-level decrease in a defendant’s offense level.

Id. For these reasons, the court held the district court properly denied defendant’s

request for a decrease in his base offense level. We find the Sixth Circuit’s

reasoning without flaw and adopt it here. The district court did not err in denying

Burgess’ request for a reduction under USSG § 2G2.2(b)(1).

b. Other Procedural Issues

On appeal, Burgess claims the district court treated the guidelines as

mandatory because, at sentencing, the court stated:

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 I do look at the other cases that have been prosecuted before this
Court and really have to look in this case at the guidelines for
guidance in imposing sentence in this case and will be imposing the
sentence within the guideline range that has been . . . established.

(R. Vol. II at 1025.) Burgess also claims the court failed to provide a sufficient

explanation of the reasons for his sentence.

Our review of the record reveals the district court’s statement regarding its

intention to sentence within the guideline range followed a complete analysis of

the evidence in this case as it bears on the § 3553(a) factors. The court then

continued to thoroughly assess the facts relevant to Burgess’ conduct. There is no

evidence the court considered the guidelines mandatory or failed to consider the

sentence in light of the § 3553(a) factors. Indeed, the court went well beyond

what we require. See United States v. Tindale, 519 F.3d 1057, 1065 (10th Cir.

2008) (“A one-sentence explanation accompanying a within-guidelines sentence --

in the absence of the need to address specific § 3553(a) arguments brought to the

district court’s attention -- satisfies the district court’s duty to impose a

procedurally reasonable sentence.”). The sentence is procedurally reasonable.

2. Substantive Error

The substantive aspect of a sentence relates to the length of the sentence

and we ask “whether the length of the sentence is reasonable considering the

statutory factors delineated in . . . § 3553(a).” United States v. Hamilton, 510

F.3d 1209, 1217-18 (10th Cir. 2007), cert. denied, 128 S. Ct. 1922 (2008).

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Stripped to its essence, Burgess argues his sentence was too long and points to

several cases and articles criticizing the guideline recommendations as too harsh

compared to the five-year minimum allowed under the statute. While recognizing

the district court correctly calculated Burgess’ guideline range as 168 to 210

months imprisonment, he claims the court unreasonably sentenced him to 180

months because he was merely “a first-time offender prosecuted for having a

private collection of pornography with him in his travels.” (Appellant’s Br. at

43.) We are not convinced by this characterization of the crime and the relevant

conduct appropriately considered by the district court. In this case, we could, but

need not, presume the district court’s guidelines sentence was reasonable. See

United States v. Navarreata-Medina, 554 F.3d 1312, 1313 (10th Cir. 2009) (a

sentence falling within a correctly calculated advisory range is entitled to a

rebuttable presumption of reasonableness). The district court’s extensive and

reasoned consideration of the facts and law is more than evident in the record.

Burgess’ sentence is not substantively unreasonable.

AFFIRMED.

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