United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-1789
___________
United States of America, *
*
Plaintiff - Appellee, *
* On Appeal from the United
v. * States District Court for the
* Southern District of Iowa.
Jonathan Charles Koch, *
*
Defendant - Appellant. *
___________
Submitted: September 23, 2010
Filed: November 17, 2010
___________
Before RILEY, Chief Judge, MURPHY and MELLOY, Circuit Judges.
___________
MURPHY, Circuit Judge.
Following a trial to the court, Jonathan1 Koch was convicted of one count of
possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). The
district court2 sentenced Koch to 78 months imprisonment and five years of supervised
release. Koch appeals, arguing that the district court erred in denying his motion to
suppress evidence, that the evidence was insufficient to support his conviction, that
1
At various places in the record appellant's first name is also spelled as
Jonathon.
2
The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.
the court erred in evidentiary rulings, and that his sentence is substantively
unreasonable with unduly restrictive conditions of supervised release. We affirm.
I.
In the fall of 2006 the Iowa Division of Criminal Investigations (DCI) received
information that Koch, then an employee at Riverside Casino in Riverside, Iowa, was
running illegal high stakes poker games at his residence. DCI began an investigation
of Koch, led by agent Mark Weidman. During the investigation DCI agents learned
that Koch was using computers to run his gambling operation. Based on this
information they obtained a search warrant for his residence in May 2007. The
warrant permitted the agents to search and seize computers and related equipment that
could be used to record any data on the gambling operation.
During the search of Koch's home agents seized gambling equipment, records,
and electronic equipment from Koch's basement, garage, two bedrooms, and a
bathroom. Among the many items seized were a Compaq computer and an external
storage device or flash drive, which were found in a bedroom Koch appeared to be
using as an office. The parties agree that the evidence taken into custody as a result
of the May 2007 search was lawfully seized pursuant to a valid search warrant.
Koch pled guilty to a state gambling offense in October 2007 and was
sentenced in December 2007 with a deferred judgment and probation. In January
2008 agent Weidman was about to transfer to the state fire marshal's office and
prepared to dispose of the evidence in DCI custody from the search of Koch's home,
including the Compaq computer and flash drive.
Because agent Weidman had not previously been involved in the disposal of
property, he contacted the county attorney's office for advice on how to proceed
before he examined any of the evidence. The county attorney's office instructed
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Weidman to obtain a disposal of property order from a state court judge. Weidman
followed the office's advice and applied to a state court judge for such an order. With
his application he provided the court a list of all the items in DCI custody relating to
Koch's case. The state court then issued an order providing that the evidence seized
as part of Koch's case could be disposed of in any one of three ways: it could be
destroyed, returned to the owner upon proof of ownership, or retained by law
enforcement for official use. The state court order thus left it to the agents to choose
which option to use in disposing of the property.
Only after the disposition of property order had been obtained did agent
Weidman and the three agents assisting him begin to review the evidence in DCI
custody. They decided to retain certain evidence for training purposes, to destroy
some, and to return any personal items to Koch provided that they did not contain any
records or materials related to his illegal gambling operation. When the agents
realized that the contents of the flash drive had never been opened or viewed, agent
Jeffrey Miller opened the drive and clicked on one of its folders on his office
computer to determine whether it contained any information on Koch's gambling
operation. He saw some pictures of females. A few of the thumbnail images were
expanded and Miller saw they were pornographic in nature and contained images of
young females. He immediately removed the flash drive from his computer and
informed his colleagues about what he had seen.
Agent Miller testified at the evidentiary hearing on Koch's motion to suppress
that he had the flash drive open for no more than two minutes and had examined only
four photographs before closing it. He then reopened the drive to show the other
agents the final image he had viewed which he believed to be child pornography. The
flash drive was open for a total of up to five minutes and was then removed from the
computer. Agent Weidman contacted the Internet Crimes against Children (ICAC)
division to report what they had seen.
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An ICAC agent then obtained a new search warrant with specific authority to
search the flash drive and the unexamined Compaq computer. ICAC criminalist
Michael Morris subsequently conducted a forensic examination of the equipment.
Morris discovered over 100 separate images of child pornography on both devices.
Koch was later charged with one count of possession of child pornography in
violation of 18 U.S.C. § 2252(a)(4)(B).
Prior to trial Koch moved to suppress the results of the initial viewing of the
flash drive as well as all the evidence uncovered with the benefit of the new search
warrant. He argued that the original search warrant obtained as part of the gambling
investigation was stale at the time the flash drive was opened and that the search had
exceeded the scope of the original warrant. After an evidentiary hearing, the district
court denied Koch's motion. It concluded that the probable cause underlying the
original warrant had been preserved while the flash drive remained in police custody,
making the warrant still effective for search of the equipment. Alternatively, the court
concluded that the DCI agents had acted in good faith under United States v. Leon,
468 U.S. 897 (1984).
Agent Morris testified at trial that he had uncovered 95 separate images of child
pornography during the forensic examination of the entire flash drive. The images
had been initially saved on the flash drive in June 2006 and were located in a folder
which had to have been manually created by a user of the drive. Morris also testified
that he uncovered 110 illegal images on Koch's computer, several of which were
duplicative of those found on the flash drive. The images on the computer were
initially saved in December 2002 and were also located in a folder which had to have
been manually created by a user of the computer. In addition, there was forensic
evidence that some of the images on the computer had been moved and saved in
different folders and that 28 images had been manually deleted on the flash drive.
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Morris testified that the user names on both the flash drive and the computer
were variants of Koch's first name. The flash drive user was identified as "Jonathon"
and the computer user as "Jo". Both devices also contained numerous documents
authored by Koch for college courses and other subjects, as well as digital
photographs of him. A number of these files were created within days of the dates the
pornographic images had been saved, moved, or deleted on the respective devices.
Following the bench trial, the district court found Koch guilty of one count of
possession of child pornography. The court sentenced him to 78 months and five
years of supervised release. The court applied three sentencing guideline
enhancements: two levels for possession of more than 10 but less than 150 images of
child pornography, § 2G2.2(b)(7)(A); four levels for images representing sadistic or
masochistic conduct, § 2G2.2(b)(4); and two levels for use of a computer, §
2G2.2(b)(6). Koch timely appealed his conviction and sentence.
II.
Koch argues that the district court erred in denying his motion to suppress the
search of the flash drive and all computer related evidence. He asserts that the agents
lacked probable cause and a valid warrant to search the drive. We review the district
court's factual findings for clear error and its legal conclusions de novo. United States
v. Romo-Corrales, 592 F.3d 915, 918 (8th Cir. 2010). We will affirm the court's order
"unless the decision is unsupported by substantial evidence, is based on an erroneous
view of the applicable law, or in light of the entire record, we are left with a firm and
definite conviction that a mistake has been made." United States v. Rodriguez-
Hernandez, 353 F.3d 632, 635 (8th Cir. 2003).
Koch does not contest that the computer and flash drive were lawfully seized
in May 2007 under a valid warrant. He argues, however, that the January 2008 search
of the flash drive should be suppressed because the warrant obtained as part of the
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gambling investigation was no longer effective. He cites Iowa Code § 808.8 and Sgro
v. United States, 287 U.S. 206, 210–11 (1932), both of which provide that a search
warrant not executed within ten days of issuance is no longer valid. Since the original
search warrant in this case was executed the same day it was issued, the ten day rule
in Sgro and Iowa Code § 808.8 is not implicated.3
Koch also argues that the search of the flash drive exceeded the scope of the
original warrant which authorized a search for evidence relating to a gambling
operation. He relies on United States v. Carey, 172 F.3d 1268 (10th Cir. 1999). In
Carey, the court suppressed evidence of child pornography discovered during a
computer search for evidence of drug dealing. Id. at 1276. Observing that the police
had spent several hours searching an entire hard drive for evidence of child
pornography instead of drug evidence, the court concluded the search had exceeded
the scope of the warrant. Id. at 1273–76. Here, the agents were reviewing evidence
pursuant to a judicial disposal order, checking to see if it contained gambling
information, when they encountered child pornography. They only looked at it briefly
before closing the flash drive. No more searching occurred until after a new warrant
was obtained. Koch has failed to show that his case is materially similar to Carey or
any of the others he cited which excluded evidence on the basis of a Fourth
Amendment violation.
Here, the basis for the district court's decision not to suppress the challenged
evidence was that the probable cause underlying the original search warrant was still
effective at the time the agents viewed the flash drive and thus the warrant was not
stale. We need not address that issue, however, because we conclude that the agents
had an objective, good faith belief under United States v. Leon that their search was
3
Iowa Code § 808.8 would not control in any event because the legality of a
search and seizure in a federal prosecution is determined by federal law even if the
persons conducting a search were state actors. United States v. Maholy, 1 F.3d 718,
721 (8th Cir. 1993).
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legal. See United States v. Proell, 485 F.3d 427, 430 (8th Cir. 2007) ("applicability
of the good-faith exception to the exclusionary rule" may be considered before
assessing probable cause).
The Supreme Court recently reflected in Herring v. United States, 129 S. Ct.
695 (2009), that in "analyzing the applicability of the [exclusionary] rule, Leon
admonished that we must consider the actions of all the police officers involved." Id.
at 699. That is because the exclusionary rule is directed at police misconduct which
is intended to be deterred by its application. Leon, 468 U.S. at 916. Evidence should
be suppressed "only if it can be said that the law enforcement officer[s] had
knowledge, or may be properly charged with knowledge, that the search was
unconstitutional under the Fourth Amendment." Illinois v. Krull, 480 U.S. 340,
348–49 (1987). We have defined the operative test as whether "a reasonably well
trained officer would have known that the search was illegal." United States v. Perry,
531 F.3d 662, 665 (8th Cir. 2008).
Since the application of the test is fact driven, we review the facts here. The
flash drive and computer were originally seized in May 2007 under a valid search
warrant. The equipment then remained in the custody of law enforcement until agent
Weidman was faced with disposing property in January 2008. Before reviewing any
of the evidence Weidman went to the county attorney's office for instructions on the
correct way to dispose of property. The county attorney's office told him to apply to
a state court judge for a disposal of property order. Weidman went to the state court
and provided it with a list of the property seized from Koch's home under the original
warrant. A state court judge then issued an order for the disposal of property, leaving
to agent discretion which means of disposal was appropriate for particular evidence.
It was only after the order was obtained from the state court that agent Weidman and
those assisting him reviewed any of the evidence they were considering for disposal
or for training use. When they came to the flash drive, they believed it was necessary
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to view its contents to make sure that it did not contain gambling information and
could therefore be returned to Koch.4
We conclude that Weidman and the other agents were acting in good faith when
they opened the flash drive and unexpectedly discovered child pornography. Before
looking into any equipment they had not simply relied on the original warrant, but
sought legal advice from the county attorney's office which they then followed by
applying for a court order. It was while they were in the process of following the
court's directions about disposal of the property seized under that warrant and
checking for any gambling material on the flash drive that they came across the
pornographic pictures involving young girls. They did not prolong the viewing but
closed the drive within just a few minutes.
Whether or not the state court should have done more in response to agent
Weidman's request for a disposal order, instructed him to obtain a new warrant, or
tailored the order more specifically is immaterial in terms of the exclusionary rule.
That was illustrated in Leon. There, a magistrate judge was found to have erred in
finding probable cause for a warrant which police officers used to conduct a search.
The Supreme Court concluded that the Fourth Amendment exclusionary rule should
not be applied under those circumstances, for the rule is "designed to deter police
misconduct rather than to punish the errors of judges and magistrates." Leon, 468
U.S. at 916. Since the officers had acted in good faith, the evidence should not have
been suppressed. Id. at 917–18.
Koch's case is very similar to Leon because here the DCI agents acted in good
faith by seeking advice from the county attorney's office and relying on a state court
order before viewing any portion of the flash drive. When they unexpectedly
4
An individual is not entitled to the return of lawfully seized property if that
property is contraband. See Jackson v. United States, 526 F.3d 394, 397 (8th Cir.
2008) (citing Fed. R. Crim. P. 41(g)); Iowa Code § 809.5.
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discovered child pornography, they obtained a new search warrant. Only then did
they look at the computer and examine the bulk of the flash drive. The alleged Fourth
Amendment violation here was not the result of police misconduct or the "deliberate,
reckless, or grossly negligent conduct" which the exclusionary rule is intended to
deter. Herring, 129 S. Ct. at 702. We conclude that the district court did not err by
denying the motion to suppress.
III.
Koch also challenges the sufficiency of the evidence supporting his conviction.
We review a challenge to the sufficiency of the evidence de novo, "viewing evidence
in the light most favorable to the government, resolving conflicts in the government's
favor, and accepting all reasonable inferences that support the verdict." United States
v. Scofield, 433 F.3d 580, 584–85 (8th Cir. 2006). When assessing the sufficiency of
the evidence following a court trial, we apply the same standard as when reviewing
a jury verdict and will reverse only "if no reasonable [factfinder] could have found
[the defendant] guilty beyond a reasonable doubt." United States v. Gray, 369 F.3d
1024, 1028 (8th Cir. 2004). In order to convict Koch of possession of child
pornography in violation of 18 U.S.C. § 2252(a)(4)(B), the government was required
to prove that Koch knowingly possessed an item of child pornography which was
transported or produced using materials transported in interstate commerce.
Koch first contends that the evidence was insufficient to show that he
"knowingly" possessed child pornography. The government presented evidence at
trial that well over 100 separate images of child pornography were found on the
computer and flash drive seized from a bedroom in the home he owned and occupied
alone. The user names on both the computer and flash drive were variations on
Koch's first name, and the pornographic images on each were located in folders which
had to have been manually created by a user of the flash drive and the computer. In
addition to the images of child pornography, the computer and flash drive also
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contained documents authored by Koch and digital photographs of him created within
days of when numerous images of child pornography were saved, moved, or deleted
on both devices.
Koch argues that while this evidence may show that he used both the computer
and flash drive, it does not give rise to a reasonable inference that he knew the child
pornography images existed. Citing United States v. Kain, 589 F.3d 945, 950 (8th
Cir. 2009) and United States v. Stulock, 308 F.3d 922, 925 (8th Cir. 2002), he asserts
that even proof of exclusive possession of a computer containing child pornography
is not sufficient to prove he knowingly possessed the illegal images. Koch's reliance
on Kain and Stulock is misplaced. The passages Koch relies on in those cases refer
to the presence of child pornography in internet browser cache files on a defendant's
computer, images which were automatically stored as a result of internet browsing.
In contrast, the images here were found on Koch's computer and flash drive in files
that a user had to create manually. There was also additional evidence that a number
of the images had been moved and others deleted. We conclude that the evidence
presented at trial was sufficient to support the finding that Koch knowingly possessed
the images of child pornography.5
Koch also argues that the government failed to provide sufficient evidence that
the pornographic images on the computer and flash drive involved actual minors. We
have previously upheld convictions under the same statute where, as here, the images
themselves were the only evidence presented by the government on the issue but were
found sufficient. See United States v. Vig, 167 F.3d 443, 449–50 (8th Cir. 1999).
5
We are similarly unpersuaded by Koch's argument that he is entitled to a new
trial because the district court included some erroneous factual findings in its original
order. After the errors were brought to the court's attention, it issued an amended
order correcting them and expressly stating that it had given further consideration to
the evidence and found it established that Koch had knowingly possessed child
pornography.
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Finally, Koch challenges the sufficiency of the evidence on the jurisdictional
element of his conviction, the nexus with interstate commerce. To convict Koch
under § 2252(a)(4)(B), the government was required to establish that the child
pornography he possessed had been transported in interstate commerce or produced
using such materials. Koch urges the court to follow United States v. Schaefer, 501
F.3d 1197 (10th Cir. 2007), and require the government to provide direct evidence that
the illegal images had in fact crossed state lines by the internet. Id. at 1200–01. Not
only has that ruling been rejected by every other court to consider the issue, see, e.g.,
United States v. Mellies, 329 Fed. Appx. 592, 605 (6th Cir. 2009) (collecting cases),
but the government satisfied the interstate commerce element here by showing that the
illegal images were produced using materials transported in interstate commerce. The
government presented evidence that Koch's computer and flash drive were
manufactured in China; such evidence is sufficient to satisfy the jurisdictional
requirement of 18 U.S.C. § 2252. United States v. Mugan, 441 F.3d 622, 627–30 (8th
Cir. 2006).
In sum, each of Koch's insufficiency arguments fails.
IV.
Koch next contends that the district court erred by admitting several pieces of
evidence over his hearsay objections. He objects to the admission of: documents on
both the computer and flash drive purportedly authored by "Jonathon Koch", the user
names "Jo" and "Jonathon" on the respective devices, and the manufacturer labels on
both devices marked "China". This evidence was admitted after the court concluded
that none was being introduced for the truth of the matter asserted. We review a
district court's evidentiary rulings for abuse of discretion. United States v. McPike,
512 F.3d 1052, 1055 (8th Cir. 2008).
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Koch asserts that the documents authored by "Jonathon Koch" found on both
the computer and flash drive, as well as the user names "Jo" and "Jonathon", were in
fact introduced for the truth of the matter asserted to prove that he was the author of
the documents and the user of both devices. The district court disagreed, concluding
that the documents and user names were introduced as circumstantial evidence
associating Koch with the computer and flash drive. The court's ruling is consistent
with our prior cases. See United States v. Bradford, 246 F.3d 1107, 1117–18 (8th Cir.
2001) (address book entries not hearsay when admitted as circumstantial evidence of
relationship between defendants); United States v. Franks, 939 F.2d 600, 601–02 (8th
Cir. 1991) (defendant's signature on airmail package admissible to show his
connection to the delivery address). The court did not abuse its discretion in admitting
the documents and user names.
Nor did the court abuse its discretion in admitting testimony by agent Morris
that Koch's computer and flash drive were each labeled as having been manufactured
in China. While the better practice may be to prove the place of manufacture through
a business record, we have previously rejected the claim that a manufacturer's
inscription on a product is inadmissible hearsay. See United States v. Bowling, 32
F.3d 326, 328 (8th Cir. 1994) (manufacturer name on firearm admissible to prove
interstate commerce element); see also Fed. R. Evid. 801(a)–(c), 901. Koch has not
shown that the court abused its discretion in its evidentiary rulings.
V.
Finally, Koch challenges the district court's imposition of three sentencing
enhancements, the substantive reasonableness of his sentence, and the special
conditions imposed on his supervised release. We review de novo whether the district
court correctly interpreted and applied the sentencing guidelines, while the court's
factual findings are reviewed for clear error. United States v. Mashek, 406 F.3d 1012,
1016–17 (8th Cir. 2005).
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Koch first argues that the § 2G2.2(b)(7) enhancement, for possession of more
than 10 but less than 150 images of child pornography, was improper. He appears to
argue that the court was required to find that he had viewed specific images in order
to count them. There is no such requirement under § 2G2.2(b)(7). The district court
did not err by applying the enhancement based on the evidence that there were well
over 100 separate images on Koch's computer and flash drive.
Similarly, the court did not err by applying the § 2G2.2(b)(4) enhancement for
possession of images that represented sadistic or masochistic conduct. The court
found that the materials possessed by Koch included images of sexual penetration of
a minor by an adult. We have previously concluded that such images are per se
sadistic. United States v. Johnson, 450 F.3d 831, 834 (8th Cir. 2006).
Koch also disputes the § 2G2.2(b)(6) enhancement for an offense involving the
use of a computer. He argues that there was no evidence that he had used his
computer to distribute child pornography. Under the plain language of § 2G2.2(b)(6)
there is no requirement that Koch have distributed the illegal images in his possession.
The enhancement requires only that the offense involved "the use of a computer . . .
for the possession" of the illegal material. U.S.S.G. § 2G2.2(b)(6). The district court
did not err by imposing this enhancement.
Koch also challenges the substantive reasonableness of his sentence which we
review for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007).
Because Koch's 78 month sentence was within his advisory guideline range (in fact
at the bottom), it is presumptively reasonable. Rita v. United States, 551 U.S. 338,
346 (2007). Koch argues that the court gave too much weight to the guidelines. We
have previously rejected this argument. See United States v. O'Connor, 567 F.3d 395,
398 (8th Cir. 2009). The record reflects that the district court committed no
procedural error, considered the § 3553(a) sentencing factors, and imposed a
substantively reasonable sentence at the bottom of Koch's guideline range.
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Lastly, Koch challenges three conditions the district court imposed on his term
of supervised release. The court ordered that without prior permission from a
probation officer Koch cannot use or possess a computer or access the internet,
possess any type of camera, or have any contact with any child under the age of 18.
We review a district court's "imposition of the terms and conditions of supervised
release for an abuse of discretion", recognizing that the court has wide discretion in
formulating such conditions. United States v. Jorge-Salgado, 520 F.3d 840, 842 (8th
Cir. 2008). That discretion is limited, however, by "the requirement that the
conditions be reasonably related to § 3553(a) factors, involve no greater deprivation
of liberty than is reasonably necessary, and are consistent with any pertinent policy
statements issued by the United States Sentencing Commission." United States v.
Stults, 575 F.3d 834, 850 (8th Cir. 2009); see also 18 U.S.C. § 3583(d).
Koch argues that the court abused its discretion by imposing the restrictions on
his possession of cameras or contact with minors without prior approval from a
probation officer. He states that there was no evidence that his offense involved the
use of a camera or contact with minors. Koch is not completely barred from
possessing a camera or contacting minors, for he may apply to the probation office for
exceptions when needed. We have previously upheld the imposition of such
conditions with regard to defendants who, like Koch, were found guilty of possessing
or receiving child pornography. See United States v. Ristine, 335 F.3d 692, 696 (8th
Cir. 2003) (upholding as reasonable restriction on use of cameras where evidence
showed defendant possessed a large number of images of underage girls); United
States v. Mark, 425 F.3d 505, 507–08 (8th Cir. 2005) (upholding restriction on
interaction with minors where defendant was convicted of possessing child
pornography). The district court did not abuse its discretion in doing the same here.
Koch also challenges the condition of release restricting his computer use and
internet access, arguing that the restriction is unreasonable since there was no
evidence his offense involved the use of the internet and the restriction concerns an
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important medium for conducting his day to day legitimate affairs. In Ristine, we
identified two relevant considerations in respect to the propriety of a restriction on
computer and internet use. We look to whether there was evidence "the defendant did
more than merely possess child pornography" and whether the restriction amounts to
a total ban on internet and computer use. Ristine, 335 F.3d at 696.
This is not a case in which the defendant "merely possess[ed] child
pornography." See Ristine, 335 F.3d at 696. The record here indicates that Koch is
a sophisticated computer user who has already violated a less restrictive condition of
release. While on release prior to sentencing, the district court restricted Koch's use
of computers and the internet to college courses. Subsequently, in November 2009
a probation officer made an unannounced visit to Koch's home. When the officer
approached a bedroom in the house, he heard what sounded like male voices
originating from a computer and discussing intercourse with a boy. When the officer
entered the room, Koch turned off the audio on the computer and clicked through a
number of pull down menus. Koch was asked to return to the previous screen but
responded that the web history had been cleared. Although the officer obtained a
court order the next day to seize Koch's computers, the hard drives had been removed
from the computers before they could be seized. Koch thus did more than merely
possess child pornography. See id. The district court appropriately considered this
information when it imposed the condition of supervised release.
The second Ristine factor also favors upholding the condition of release on
Koch's computer and internet use because the restriction is not a complete ban. See
United States v. Fields, 324 F.3d 1025, 1027 (8th Cir. 2003). Koch is permitted to use
a computer and the internet with prior approval from a probation officer who will have
the guidance of our case law, which recognizes the importance of computers and
internet access for education, employment, and communication, when considering
Koch's requests. See,e.g., United States v. Crume, 422 F.3d 728, 733 (8th Cir. 2005).
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Given the particular facts of this case, we cannot say that the district court abused its
discretion by imposing its restriction on Koch's computer use and internet access.
We conclude that the district court did not abuse its discretion in imposing a
reasonable sentence or commit any procedural errors.
VI.
Based on this record and for the reasons already discussed, we affirm the
judgment of the district court.
______________________________
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