United States Court of Appeals
For the First Circuit
No. 06-2533
UNITED STATES OF AMERICA,
Appellee,
v.
JOSEPH MORALES-ALDAHONDO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Lipez, Circuit Judge,
Baldock,* Senior Circuit Judge,
and Howard, Circuit Judge.
José L. Barreto Rampolla, with whom Rivera, Barreto & Torres-
Marcano, was on brief for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, with whom Rosa Emilia Rodriguez-Velez, United
States Attorney, was on brief, for appellee.
April 24, 2008
*
Of the Tenth Circuit, sitting by designation.
HOWARD, Circuit Judge. Appellant Joseph Morales-
Aldahondo ("Morales") was convicted of one count of child
pornography possession, in violation of 18 U.S.C. § 2252(a)(4)(B).
He presents two claims of error. First, he argues that the
district court should have suppressed the incriminating evidence
because it was obtained pursuant to a search warrant predicated on
stale evidence. Second, he asserts that the trial court erred by
allowing the government to display unfairly prejudicial explicit
images to the jury. We affirm.
I. BACKGROUND AND PROCEEDINGS
A. Pretrial
The roots of this appeal extend back to a 1999
investigation of an internet child pornography site by a United
States Postal Inspector responding to a customer complaint. The
matter eventually ended up in the hands of a Dallas, Texas police
detective assigned to an FBI Crimes Against Children Task Force.
The detective had considerable experience investigating child
pornography. He accessed the site and was directed to a sign up
page using a system known as "Keyz" to collect credit card and
other subscriber information. Upon "signing up," the detective was
able to purchase access to numerous child pornography sites.
Further investigation revealed that "Keyz" was one of two similar
services run by Landslide, Inc. of Fort Worth, Texas, both of which
served as gateways to various forms of child pornography, and to
-2-
individuals seeking physical contact with minors. Landslide's
owners and operators were eventually convicted of multiple child
pornography offenses and sentenced to lengthy prison terms. See
United States v. Reedy, 304 F.3d 358 (5th Cir. 2002), cert. denied,
546 U.S. 111 (2006).
A byproduct of the Landslide investigation was the
compilation of lists of subscribers who accessed child pornography.
In August 2002, a postal inspector in Puerto Rico learned that a
list of subscribers from Puerto Rico had been prepared. The local
subscriber list contained names, addresses, e-mail addresses,
credit card data, and titles and prices of accessed sites for
approximately 60 people. After receiving this information, the
postal inspector in turn shared it with the Bureau of Immigration
and Customs Enforcement ("ICE"). An investigation commenced in
Puerto Rico, focusing on the five individuals with the largest
volume of purchases. One of those individuals was appellant's
brother, Emmanuel Morales-Aldahondo ("Emmanuel"), who purchased
access to various child pornography sites in June and July of 1999.
On March 13, 2003, a search warrant was executed at a
house in Aguadilla, Puerto Rico, shared by Emmanuel, appellant and
their parents. The warrant had been signed the previous day by a
magistrate judge. Officers seized three computers, one of which
was appellant's. Forensic investigation revealed the presence on
appellant's computer of child pornography, including more than 100
-3-
still images and approximately 18 movie clips.1 As a result of
this evidentiary goldmine, appellant was indicted in April 2003 and
charged in a superseding indictment in September.2 The indictment
alleged that appellant violated 18 U.S.C. § 2252(a)(4)(B) by
possessing more than three articles of child pornography that had
been transported in interstate commerce.
Prior to trial, Morales filed two motions to suppress the
evidence seized pursuant to the warrant. Only the second motion is
at issue here.3 As he does here, Morales argued to the district
court that the lapse of more than three years between the time of
Emmanuel's last downloads and the warrant application rendered the
information so stale that the warrant lacked probable cause. A
magistrate judge recommended denial of both the motion to suppress
and Morales's request for a Franks hearing.4 The district judge
1
Appellant concedes that the recovered images were illegal child
pornography within the meaning of 18 U.S.C. § 2252. Thus, it is
unnecessary for us to recount the graphic details.
2
Emmanuel was charged with possession of child pornography. The
charges were dismissed due to his diminished mental capacity. See
Fed. R. Crim. P. 48.
3
Morales's first motion to suppress argued, in part, that the
evidence against him should be suppressed because it was seized
pursuant to a warrant targeting his brother. The motion was
denied, and no appeal was taken from the ruling.
4
A defendant is entitled to a hearing if he makes a preliminary
showing that material information was omitted from a warrant
application. See Franks v. Delaware, 438 U.S. 154 (1978).
Although staleness is not within the usual contours of a Franks
hearing, the district judge ordered the hearing "to be on the safe
side" regarding the staleness issue.
-4-
rejected the recommendation in part, by granting Morales's request
for a Franks hearing on the staleness issue. The hearing consisted
entirely of the testimony and cross-examination of ICE Special
Agent Hector Feliciano, who previously provided the sworn affidavit
in support of the search warrant application. In addition to
recounting the details of the investigation of Landslide, and the
trail of information that led to Puerto Rico and Emmanuel,
Feliciano's testimony included the observations that, based on his
experience and training, people who download child pornography
value their collections to such an extent that they keep the images
for "a period of time, usually years." He also testified that a
person who uses a computer to access child pornography is likely to
use his computer both to augment and to store the collected images.
At the end of the hearing, the district judge concluded the
evidence was not stale, and denied the motion to suppress.
B. Trial
At trial, Joseph Morales's theory of defense was that the
pornographic images at issue were placed on his computer by his
brother, Emmanuel. The government sought to prove that the
pornographic images on Joseph Morales's computer belonged to Joseph
by tying the meticulous nature of the evidence's storage to him.
The government's computer forensics expert testified that he
discovered approximately 100 images of child pornography and 17 or
18 movie clips. He also prepared a report containing the images
-5-
and detailing their storage, as contrasted with Emmanuel's more
chaotic storage methodology. Defense counsel sought to prevent the
introduction of the images and movies into evidence by stipulating
that the evidence met the statutory definition of pornography. The
government rejected the proposed stipulation, and, over a defense
objection, the court permitted the introduction of 12 images and 10
video clips. The jury convicted Morales after a five-day trial.
II. DISCUSSION
A. The Motion to Suppress
We apply a mixed standard of review to the district
court's denial of the motion to suppress. We review the court's
findings of fact for clear error and its application of the law to
those facts de novo. United States v. Dickerson, 514 F.3d 60, 65-
66 (1st Cir. 2008). To succeed on appeal, Morales must show that
no reasonable view of the evidence supports the district court’s
decision. United States v. Materas, 483 F.3d 27, 32 (1st Cir.
2007). He has not met this burden.
The starting point of our analysis is the familiar
language of the Fourth Amendment, which provides that “no
[w]arrants shall issue, but upon probable cause." Pursuant to the
exclusionary rule, "[t]he usual remedy for seizures made without
probable cause is to exclude the evidence wrongfully seized."
United States v. Brunette, 256 F.3d 14, 19 (1st Cir. 2001) (citing
Weeks v. United States, 232 U.S. 383, 391-93 (1914)). "A warrant
-6-
application must demonstrate probable cause to believe that (1) a
crime has been committed -- the ‘commission’ element, and (2)
enumerated evidence of the offense will be found at the place to be
searched -- the so-called 'nexus element.'" United States v.
Woodbury, 511 F.3d 93, 97 (1st Cir. 2007) (citations and internal
quotes omitted). Finally, "probable cause" is just that --
probable -- and does not require proof beyond a reasonable doubt.
United States v. Ricciardelli, 998 F.2d 8, 11 (1st Cir. 1993).
Here, Morales argues that the passage of more than three
years from the acquisition of the evidence until the warrant
application rendered the evidence stale, and thus precluded a
legitimate finding of probable cause by reducing the likelihood
that the "evidence of the offense will be found at the place to be
searched." Woodbury, 511 F.3d at 97. When evaluating a claim of
staleness, we do not measure the timeliness of information simply
by counting the number of days that have elapsed. United States v.
Pierre, 484 F.3d 75, 83 (1st Cir. 2007). Instead, we must assess
the nature of the information, the nature and characteristics of
the suspected criminal activity, and the likely endurance of the
information. Id.
As earlier recounted, both the warrant application before
the magistrate and the testimony presented to the district judge
provided considerable support for the government's position that
customers of child pornography sites do not quickly dispose of
-7-
their cache. This is not a new revelation. See Ricciardelli, 998
F.2d at 12 n.4 ("[H]istory teaches that collectors prefer not to
dispose of their dross, typically retaining obscene materials for
years.”). Accord, e.g., United States v. Irving, 452 F.3d 110 (2d
Cir. 2006) (two years); United States v. Riccardi, 405 F.3d 852
(10th Cir. 2005) (five years).
In our view, the testimony of the government’s
knowledgeable witness, combined with the weight of authority,
defeats appellant's staleness argument. Thus the district court
did not err when it denied Morales's motion to suppress.
B. Admission of the Evidence
Morales next argues that the district court committed
reversible error when it allowed the government to introduce 12
photographs (out of more than 100) and 10 video clips (out of 18).
Reviewing the decision for abuse of discretion, United States v.
Flemmi, 402 F.3d 79, 86 (1st Cir. 2005), we find no error.
Federal Rule of Evidence 403 permits the trial court to
exclude relevant evidence if its probative value is substantially
outweighed by the danger of unfair prejudice. In balancing the
scales of Rule 403, it is important to note that only "unfair"
prejudice is to be avoided, as "by design, all evidence is meant to
be prejudicial." United States v. Varoudakis, 233 F.3d 113, 122
(1st Cir. 2000) (citation and internal quotation marks omitted).
We have noted that unfair prejudice can result from evidence that
-8-
"invites the jury to render a verdict on an improper emotional
basis." Id.
The government offered the evidence for two purposes.
The first was to prove that the images belonged to Morales and not
his brother, as Morales had contended. The second was to prove the
charge in the indictment that Morales possessed "more than three"
images of child pornography.
Morales makes two related arguments that the images were
nevertheless unfairly prejudicial. First, he claims that his offer
to stipulate to the fact that the images met the legal definition
of pornography obviated the government's need to introduce any of
them. His second argument is that the court permitted the
government to admit too many images, thus resulting in an improper,
emotion-based verdict. We reject both arguments.
The government need not accept a defendant's attempt to
use a stipulation to overcome the right of the government "to make
a full presentation of the crime currently charged." United States
v. Tavares, 21 F.3d 1, 3 (1st Cir. 1994); see also Old Chief v.
United States, 519 U.S. 172, 183 (1997) ("[A] defendant's Rule 403
objection offering to concede a point generally cannot prevail over
the Government's choice to offer evidence showing guilt and all the
circumstances surrounding the offense.") (citation omitted). Here,
a "full presentation" included both the presentation of a sample of
images, and the expert's detailed description of how they were
-9-
organized, including testimony regarding the creation of particular
files and the names they were given, which stood in contrast to
Emmanuel's far less organized storage methods. In addition,
although the admitted evidence undoubtedly had an emotional impact
on jurors, the court properly balanced the competing concerns of
Rule 403 by limiting the number of images presented. Finally, when
it was pointed out to the court that a juror had been crying during
the presentation of evidence, the trial judge held an in-chambers
voir dire, after which he expressed his confidence in the juror's
ability to continue impartially.
The trial judge's job is to avoid unfair prejudice. The
court is not required to scrub the trial clean of all evidence that
may have an emotional impact, where the evidence is "part of the
Government's narrative." United States v. Dean, 135 F. Supp. 2d
207, 209-10 (D. Me. 2001).
Affirmed.
-10-