FILED
NOT FOR PUBLICATION DEC 02 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10274
Plaintiff - Appellee, D.C. No. 5:08-cr-00361-RMW-1
v.
MEMORANDUM*
GARY JAMES ROLLER,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, Senior District Judge, Presiding
Argued and Submitted November 18, 2014
San Francisco, California
Before: REINHARDT, THOMAS, and CHRISTEN, Circuit Judges.
Gary Roller appeals his conviction for possession of child pornography
under 18 U.S.C. § 2252(a)(4)(B) (2006). We affirm.
Roller’s first argument on appeal is that the warrant that authorized the
search and seizure of his computer equipment was not supported by probable cause
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
and that the evidence seized pursuant to that warrant should therefore be
suppressed.
The affidavit that supported the warrant application provided evidence that
Roller had purchased access to multiple websites distributing child pornography in
2002, 2003, 2006 and 2007. This is sufficient to establish probable cause. See
United States v. Gourde, 440 F.3d 1065, 1071 (9th Cir. 2006) (en banc) (holding
that evidence that someone “paid for access for two months to a website that
actually purveyed child pornography” was sufficient to establish probable cause).
Even assuming, as Roller argues, that the evidence about the 2002 and 2003
subscriptions had become stale by the time of the affidavit in 2007, the evidence
about Roller’s subscriptions in 2006 and 2007 was sufficient to establish probable
cause under Gourde. See id. at 1067–69, 1071 (concluding that warrant was
supported by probable cause where defendant subscribed to one child pornography
website for two months, ending four months before police obtained a search
warrant).
Roller next argues that the affidavit intentionally or recklessly omitted
exculpatory information because it did not mention that ICE agents had already
interviewed Roller in 2004 in connection with his 2002 and 2003 subscriptions,
and those agents decided, after the interview, to close the case because there was
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not enough evidence to charge Roller. Roller argues that the district court erred by
not granting him a hearing in which to challenge the validity of the affidavit on that
basis under Franks v. Delaware, 438 U.S. 154, 171–72 (1978) (a “Franks
hearing”).
A defendant is entitled to a Franks hearing if he “makes a ‘substantial
preliminary showing that (1) the affidavit contains intentionally or recklessly false
statements or misleading omissions, and (2) the affidavit cannot support a finding
of probable cause without the allegedly false information.’” United States v.
Martinez-Garcia, 397 F.3d 1205, 1215 (9th Cir. 2005) (quoting United States v.
Reeves, 210 F.3d 1041, 1044 (9th Cir. 2000)). There is no reason to believe that
the fact that the agents had already interviewed Roller in 2004 and decided to close
the investigation would negate the probable cause supplied by Roller’s
subscriptions to child pornography websites in 2006 and 2007. The district court
thus correctly denied Roller a Franks hearing because Roller made no “substantial
preliminary showing” that a corrected affidavit would not support a finding of
probable cause. See Cameron v. Craig, 713 F.3d 1012, 1019 (9th Cir. 2013)
(finding no Franks violation because “[e]ven if the omitted material had been
included, the warrant would still be supported by probable cause”).
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Roller finally argues that there was insufficient evidence to support the
interstate nexus requirement in 18 U.S.C. § 2252(a)(4)(B) (2006).1 As relevant
here, at the time of Roller’s offense, to support a conviction under 18 U.S.C. §
2252(a)(4)(B) the visual depictions of child pornography must have been
“produced using materials” which have been “mailed, or ha[ve] been shipped or
transported in interstate or foreign commerce.” It was stipulated at trial that
Roller’s zip disk containing child pornography (which was found in Roller’s home
in Castroville, California) had been manufactured outside the state of California.
Under our precedents, this is sufficient to prove that the visual depictions in that
disk were “produced using materials” which have traveled in interstate commerce.
See United States v. Lacy, 119 F.3d 742, 750 (9th Cir. 1997) (holding that the
interstate nexus requirement in 18 U.S.C. § 2252(a)(4)(B) was satisfied where the
government offered undisputed evidence that the computer equipment onto which
defendant had downloaded child pornography had traveled in interstate
commerce); see also United States v. Guagliardo, 278 F.3d 868, 870–71 & n.2 (9th
Cir. 2002) (per curiam) (holding that the similarly worded interstate nexus
requirement in 18 U.S.C. § 2252A(a)(5)(B) (1996) was satisfied because the
1
Roller was convicted under the version of 18 U.S.C. § 2252 in effect between July 27,
2006 and October 7, 2008.
4
defendant possessed “three computer disks containing pornographic images of
preadolescent girls,” and he conceded that “his disks must have been produced”
outside the state). Thus, Roller’s argument is foreclosed.
Accordingly, the judgment of the district court is AFFIRMED.
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