United States v. Robert Gerard Horn

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 98-3692
___________

United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Robert Gerard Horn, *
*
Appellant. *
___________

Submitted: May 14, 1999

Filed: August 4, 1999
___________

Before LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Robert Gerard Horn appeals from his conviction for possessing child
pornography under 18 U.S.C. § 2252(a)(4)(B). He maintains that the trial court
incorrectly denied his motion to suppress evidence and that there was insufficient
evidence to convict him. He also argues that the trial court erred in applying the
sentencing guideline for trafficking in or distributing child pornography, see U.S.S.G.
§ 2G2.2, rather than the one for possessing child pornography, see § 2G2.4, and that
he should not have received a five-level sentencing enhancement under § 2G2.2(b)(4).
We affirm the judgment of the trial court.
 I.
The government's attention was drawn to Mr. Horn after Colorado police
detective Walt Parsons, calling himself "Lew Kreeger" for the purposes of an
investigation, placed an advertisement in which he posed as a collector who was "very
discreet" and retained "youthful fantasies," qualities that he knew appeal to traffickers
of child pornography. Mr. Horn responded with a letter expressing his interest in
meeting or in trading video tapes "on all subjects from the tame to the taboo." (The
detective explained at trial that "taboo" is a code word for child pornography.) In later
letters, Detective Parsons repeatedly specified that he sought child pornography.
Mr. Horn replied that he himself enjoyed pornography of every description and listed
at least six different kinds, including "incest and family fun" and another type highly
suggestive of child sex. He said that he had materials on all of these subjects and
traded videos with those of similar interests. He offered to send videos to Detective
Parsons, but noted that he preferred to ship "taboo" material by Federal Express to
avoid contact with the federal government.

Mr. Horn eventually sent two video tapes of pornography that, on first viewing,
did not appear to involve children. He wrote, "the tapes I sent have some decent
material but I don't have all that much on that subject. most of it comes in small
segments with other material but I will try to send [w]hat I have." Mr. Horn apparently
had difficulty acquiring child pornography. He wrote that he had corresponded with
a woman in Texas who told him that she had three children, all of whom were "very
curious," and who said that she had "initiated" some boys and girls when she used to
babysit, but that he had heard nothing from her recently and was uncertain what was
happening.

Detective Parsons twice offered to send Mr. Horn tapes with child pornography.
To the first invitation, Mr. Horn answered, "Thanks for checking but anything you can
send or want to send is fine." There was no reply to Detective Parsons's second offer.

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In a later communication, however, Mr. Horn reminded Detective Parsons that he was
still waiting for tapes in exchange for the two that he had sent to Detective Parsons.

Meanwhile, Detective Parsons contacted Becky Powers, a postal inspector in
St. Louis. Detective Parsons prepared a package for Mr. Horn containing a video
entitled Children's Sex Party and Ms. Powers applied for a search warrant of the
defendant's apartment conditioned upon the controlled delivery of the video. The
affidavit listed six items to be seized, including the video and its packaging, all
correspondence between Mr. Horn and Detective Parsons, and "[a]ny and all
envelopes, letters, records, documents, correspondence, videotapes, published
materials, and other objects relating to contact with an unidentified woman in Texas
who has two daughters 7 and 12 years of age and a son 10 years of age." The ensuing
search resulted in the seizure of hundreds of video tapes, a memo book,
correspondence with other collectors, and two linked video cassette recorders, as well
as the recently delivered Children's Sex Party video and its packaging. Investigators
were of the view that eight of the videos seized included depictions of minors engaging
in sexually explicit conduct.

II.
Mr. Horn first contends that the search warrant was not based on probable cause
and therefore that the videos taken from his house should not have been admitted into
evidence. Probable cause means a "fair probability that contraband or evidence of a
crime will be found in a particular place," given the circumstances set forth in the
affidavit. Illinois v. Gates, 462 U.S. 213, 238 (1983). We will uphold a judicial
determination of probable cause so long as there was a " 'substantial basis for ...
conclud[ing]' that a search would uncover evidence of wrongdoing." Id. at 236, quoting
Jones v. United States, 362 U.S. 257, 271 (1960).

Mr. Horn maintains that there was no probable cause for including video tapes
related to his correspondence with the Texas woman among the items to be seized in

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the warrant. Mr. Horn contends, first, that the very nature of an anticipatory warrant,
such as that obtained here, suggests that probable cause for a search does not exist until
some further event takes place, from which he concludes that the Texas correspondence
itself did not supply probable cause. Second, he maintains that even if his letters
mentioning the Texas woman did contain evidence of criminal activity, this evidence
was stale by the time that the warrant was issued because his final reference to her was
made more than three months before the search. Finally, he argues that his letters never
alluded to the existence of contraband material and that he told Detective Parsons that
the correspondence with the Texas woman ended before it produced anything of
interest.

Mr. Horn's first argument assumes that the government's affidavit did not contain
factual allegations that independently supported a finding of probable cause to search
his apartment for materials relating to his correspondence with the Texas woman. This
contention is meritless. Mr. Horn's letters to Detective Parsons contained a good deal
of evidence that this correspondence involved child pornography, enough, certainly, to
establish probable cause for the issuance of a warrant. The conditional feature of the
warrant was necessary only to allow sufficient facts to develop to allow the seizure of
the video that Detective Parsons sent to Mr. Horn; it had nothing to do with those
portions of the warrant dealing with the Texas woman. The video in question had little
or no bearing on the question of whether the correspondence with the woman in Texas,
and items related to that correspondence, contained evidence of the commission of a
crime.

We turn, therefore, to Mr. Horn's second argument, namely, that the information
provided in the affidavit about the Texas woman was stale. The last reference to the
Texas woman appears in a letter written more than three months before the date of the
warrant, and Mr. Horn maintains, therefore, that the letter did not constitute evidence
that a crime was taking place at the time of the application for the warrant. "The source
and credibility of evidence in support of a warrant request is considered in the totality

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of the circumstances analysis, and a warrant is proper so long as the evidence as a
whole creates a reasonable probability that the search will lead to the discovery of
evidence." United States v. Humphrey, 140 F.3d 762, 764 (8th Cir. 1998).

We have held that there is no formula for determining when information has
become stale. United States v. Koelling, 992 F.2d 817, 822 (8th Cir. 1993); see also
United States v. LaMorie, 100 F.3d 547, 554 (8th Cir. 1996). The timeliness of the
information supplied in an affidavit depends on the circumstances of the case, including
the nature of the crime under investigation; the lapse of time is least important when the
suspected criminal activity is continuing in nature and when the property is not likely
to be destroyed or dissipated. Koelling, 992 F.2d at 822-23; see also LaMorie, 100
F.3d at 554. We have further held that information four months old, or even three years
old, may supply probable cause for a warrant to search the home of someone suspected
of illegal possession of a firearm, because possession is a continuing offense and
because firearm enthusiasts tend to keep their weapons for long periods of time.
United States v. Maxim, 55 F.3d 394, 397 (8th Cir. 1995), cert. denied, 516 U.S. 903
(1995); see also United States v. Rabe, 848 F.2d 994, 995-97 (9th Cir. 1988) (child
pornography mailed to defendant two years before detectives requested a search
warrant may establish probable cause when supported by more recent correspondence
describing defendant's collection).

In our case, Mr. Horn made it clear that he owned a wide range of pornographic
videos and duplicating equipment and that he traded regularly with fellow enthusiasts,
thus indicating a deep and continuing interest in his collection. Although Mr. Horn may
well have destroyed the letters he received from Texas (since he instructed Detective
Parsons to burn their own correspondence), there was a reasonable likelihood that he
kept some record of his correspondence or even the correspondence itself.
Furthermore, there was a fair probability that if he had received child pornography from
the woman in Texas, it would still be in his possession even three or four months later.

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We conclude, therefore, that the evidence regarding Mr. Horn's Texas correspondence
was not so stale as to make the warrant defective.

Mr. Horn's final argument is that the correspondence with the woman in Texas
never mentions the existence of any video tapes and thus that there was no justification
for searching for such videos in the first place, whether or not probable cause existed
to search for other forms of correspondence. Although Mr. Horn suggested to
Detective Parsons that his contact in Texas had proved to be disappointing, there was
nevertheless a reasonable likelihood that the correspondence did involve a video or
videos of child pornography. It is clear that at one point Mr. Horn hoped that his
contact in Texas would eventually provide him with pornographic material involving
children. Although Mr. Horn's last reference to her was a remark that he had not heard
from her for two weeks and therefore was "not sure whats up," a judge could
reasonably conclude from the information set out in the affidavit that there was a fair
probability either that the Texas woman had sent a video cassette after this last
reference or that Mr. Horn possessed child pornography that he intended to trade for
her material if it ever arrived. Probable cause does not require a " 'prima facie showing
... of criminal activity.' " Gates, 462 U.S. at 235, quoting Spinelli v. United States, 393
U.S. 410, 419 (1969). We therefore hold that there was probable cause to search for
a video or videos relating to contact with the woman in Texas.

IV.
Mr. Horn next asserts that the warrant was defective in that it failed to meet the
particularity requirements of the fourth amendment. (This argument comes as
something of a surprise because, if anything, the warrant appears to be too narrowly
drawn: If it had simply authorized the seizure of items depicting minors engaged in
sexually explicit conduct, we would have been spared much of the discussion above.)
He first complains that the warrant failed to state the crime of which he was suspected.
The fourth amendment, however, requires only that the warrant "particularly describ[e]
the place to be searched, and the persons or things to be seized"; neither the fourth

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amendment nor our holdings require particularity with respect to the criminal activity
suspected.

Mr. Horn further contends that the warrant failed to meet the particularity
requirement in that the descriptions of some of the items to be seized were not
sufficiently specific. In particular, he contends that the warrant used overly broad
language when it authorized the search for and seizure of "[r]ecords, documents,
receipts, keys, or other objects showing access to, and control of, the residence," and
when it authorized the search for and seizure of "[a]ny and all envelopes, letters,
records, documents, correspondence, videotapes, published materials, and other objects
relating to contact with an unidentified woman in Texas who has two daughters 7 and
12 years of age and a son 10 years of age."

To satisfy the particularity requirement of the fourth amendment, the warrant
must be sufficiently definite to enable the searching officers to identify the property
authorized to be seized. United States v. Strand, 761 F.2d 449, 453 (8th Cir. 1985).
The degree of specificity required will depend on the circumstances of the case and on
the type of items involved. Id. A warrant naming only a generic class of items may
suffice if the individual goods to be seized cannot be more precisely identified at the
time that the warrant is issued. United States v. Johnson, 541 F.2d 1311, 1314 (8th
Cir. 1976) (per curiam). We have upheld warrants authorizing the seizure of "certain
books and records ... relating to the extortionate credit transaction business," United
States v. Dennis, 625 F.2d 782, 792 (8th Cir. 1980), and of "any and all chemicals, ...
books, records, chemical equipment, and personal papers relating to the manufacture
and distribution of methamphetamine and the purchase of component chemicals and
equipment which are contraband and fruits and instrumentalities of the commission of
a crime which is in violation of [a certain statute, identified by section and
subsections]." United States v. Coppage, 635 F.2d 683, 687 (8th Cir. 1980).

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 In Mr. Horn's case, the words "[r]ecords, documents, receipts, keys, or other
objects showing access to, and control of, the residence" were sufficiently particular
to preclude the exercise of any illegal discretion by the executing officers. The words
"any and all ... correspondence, videotapes, published materials, and other objects
relating to contact with an unidentified woman in Texas" were more general but still,
we believe, sufficiently specific to satisfy the particularity requirement of the fourth
amendment.

Mr. Horn argues that virtually anything in his apartment could conceivably relate
to contact with an unidentified woman, including publications and portable objects of
any kind. That may be true, but the argument is meritless, because it fails to focus on
what the warrant authorizes. The officers were limited in their search by the fact that
the objects seized had to be identifiably related to a woman in Texas with two girls and
a boy, either by referring to the woman in some specific way, by depicting her and her
children, or at the very least by bearing a Texas address together with a woman's name
or in a woman's handwriting. We believe, therefore, that warrant was sufficiently
definite to allow the officers to recognize and seize the materials described.

V.
Mr. Horn also contends that the searching officers went beyond the scope of the
warrant, even as broad as it was, when they seized more than 300 video tapes for
viewing elsewhere on the grounds that the tapes might contain evidence of Mr. Horn's
control of his apartment or evidence of material related to contact with a woman in
Texas. We agree with Mr. Horn that there was no reasonable probability that the video
tapes related to Mr. Horn's access to his apartment. There was, however, probable
cause to search for videos relating to the correspondence with the woman in Texas, as
we explained above. The officers could not immediately identify which videos were
most likely to fit the description of the items that they were authorized to seize,
however, especially since Ms. Powers, who was present at the search, testified that
individuals sometimes splice segments of child pornography into commercial tapes.

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Since we think they could not practically view more than 300 videos at the search site,
we hold that the officers did not exceed the scope of the warrant by seizing Mr. Horn's
video collection in its entirety for examination elsewhere. Cf. United States v.
Kimbrough, 69 F.3d 723, 728 (5th Cir. 1995), cert. denied, 517 U.S. 1157 (1996).

VI.
Mr. Horn further maintains that the trial court erred in denying his motion for
judgment of acquittal on the grounds of insufficient evidence. He concedes that five
of the eight tapes seized depicted sexually explicit conduct but argues that the
government produced insufficient evidence that the children on these tapes were minors
or, in any case, that he knew that they were minors. Two of the remaining tapes
obviously depicted children, but Mr. Horn contends that the government failed to
establish that the children were engaged in sexually explicit conduct. (The jury did not
find that possession of the eighth tape violated the statute.)

In regard to Mr. Horn's claim that five of the tapes involved adults rather than
minors, we review the trial court's ruling on the motion for acquittal with considerable
deference. Our task is to determine whether the evidence, viewed in the light most
favorable to the government, is such that a reasonable juror has to have a reasonable
doubt about the existence of at least one of the essential elements of the crime charged.
See United States v. Allery, 139 F.3d 609, 611 (8th Cir. 1998), cert. denied, 118 S. Ct.
2389 (1998).

Having ourselves viewed the relevant portions of the five video tapes, we believe
that a reasonable juror could conclude from seeing them that they depicted minors
engaging in sexually explicit conduct and, therefore, that Mr. Horn knew that the videos
did so. We note, moreover, that the court instructed the jury, without objection from
Mr. Horn, that the mens rea element of the offense was satisfied if Mr. Horn knew, or
"had reason to know," that the performers on the tapes were minors. We have no

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doubt, after seeing the videos, that Mr. Horn had reason to know that they depicted
performers less than 18 years old who were engaged in sexually explicit conduct.

We turn, therefore, to the remaining two tapes and the question of whether the
images therein contained "sexually explicit conduct," which in the context of child
pornography includes "lascivious exhibition of the genitals or pubic area of any
person." See 18 U.S.C. § 2256(2)(E). The meaning of the phrase "lascivious
exhibition of the genitals or pubic area" is a matter of law which we review de novo.
Cf. United States v. Amirault, 173 F.3d 28, 32-33 (1st Cir. 1999), and United States
v. Knox, 32 F.3d 733, 744 (3d Cir. 1994), cert. denied, 513 U.S. 1109 (1995). Nudity
alone does not fit this description; there must be an "exhibition" of the genital area and
this exhibition must be "lascivious."

In attempting to determine the limits of this category of sexually explicit
conduct, we find helpful the six criteria suggested in United States v. Dost, 636
F. Supp. 828, 832 (S.D. Cal. 1986), aff'd sub nom. United States v. Wiegand, 812 F.2d
1239 (9th Cir. 1987), cert. denied, 484 U.S. 856 (1987). See also Amirault, 173 F.3d
at 31, and United States v. Villard, 885 F.2d 117, 122 (3rd Cir. 1989). In particular,
we believe that when the child is nude or partially clothed, when the focus of the
depiction is the child's genitals or pubic area, and when the image is intended to elicit
a sexual response in the viewer, the depiction is lascivious. (The other criteria listed
in Dost, 636 F. Supp. at 832, including a sexually suggestive setting, inappropriate
attire or an unnatural pose for a child, and a suggestion of sexual coyness or willingness
to engage in sexual behavior, are not relevant here. It goes without saying that the Dost
criteria are neither definitive nor exhaustive.)

One of the two tapes in question shows children and adults on a topless beach
and the other depicts nude children playing on a jungle gym; in both, the video tape
freeze-frames images of young girls. Mr. Horn concedes that the girls depicted in the
freeze-framed portions of the tapes were minors. After reviewing the two tapes in

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question, we find that they do contain lascivious exhibitions of the genitals and pubic
areas of minors. Shots of young girls are freeze-framed at moments when their pubic
areas are most exposed, as, for instance, when they are doing cartwheels; and these
areas are at the center of the image and form the focus of the depiction. In the beach
scenes, the girls are wearing swimsuit bottoms, but a reasonable jury could conclude
that the exhibition of the pubic area was lascivious despite this minimal clothing
because of the way in which the pictures are framed. Cf. Knox, 32 F.3d at 750-51.

Mr. Horn argues that an otherwise innocent video tape of nude children cannot
be made into a lascivious exhibition of the genitals by freeze-framing. We disagree.
By focusing the viewer's attention on the pubic area, freeze-framing can create an
image intended to elicit a sexual response in the viewer. The "lascivious exhibition"
is not the work of the child, whose innocence is not in question, but of the producer or
editor of the video. In this case, the producer or editor generated a product that meets
the statutory definition of sexually explicit conduct.

VII.
Mr. Horn also maintains that the trial court erred in its application of the
sentencing guidelines. Mr. Horn was convicted of possessing child pornography, see
18 U.S.C. § 2252(a)(4)(B); ordinarily, then, his sentence would have been calculated
under U.S.S.G. § 2G2.4, which carried a base offense level of 13 in 1995, see
§ 2G2.4(a), the year of the offense. See U.S.S.G. § 1B1.11(b)(1). That section,
however, contains a cross-reference, see 2G2.4(c)(2), to § 2G2.2 and mandates the
application of § 2G2.2 if the offense involved "trafficking in material involving the
sexual exploitation of a minor (including receiving, transporting, shipping, advertising,
or possessing material involving the sexual exploitation of a minor with intent to
traffic)." The trial court therefore computed Mr. Horn's offense level under § 2G2.2,
using the base offense level of 15 then in effect, see § 2G2.2(a), and adding the
enhancements prescribed in § 2G2.2(b) for offenses involving a prepubescent minor,
distribution of pornographic materials, portrayals of sadistic or masochistic conduct,

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and a pattern of activity involving the sexual abuse or exploitation of a minor. The
court thus arrived at a total offense level of 31.

Mr. Horn contends that the cross-reference to § 2G2.2 does not apply to his case
because the trial court did not make a specific finding that he trafficked or intended to
traffic in child pornography. See Fed. R. Crim. P. 32(c)(1). We have examined the
record and Mr. Horn's argument is entirely without merit. If Mr. Horn's real complaint
is that there was insufficient evidence that he trafficked or intended to traffic in child
pornography, this objection is equally meritless. The relevant evidence included a
memo book that contained information about tapes that Mr. Horn had sent to others and
from which it appeared that some of these videos contained child pornography. The
presentence report (PSR) also revealed that, on further inspection, the two tapes that
Mr. Horn sent Detective Parsons turned out to contain some child pornography.
Although neither the memo book nor the two tapes were admitted into evidence,
Mr. Horn did not object to the portion of the PSR that recited their existence and
contents.

At the sentencing hearing, Mr. Horn did suggest, rightly, that the burden was on
the government to show that the tapes containing child pornography were among those
traded, but he evidently dropped this line of reasoning later in the same hearing, when
he conceded that he had traded the tapes in question and argued only that this did not
amount to trafficking. Finally, Mr. Horn's letters to Detective Parsons contained
passages describing his usual method for sending sexually explicit material involving
minors. In short, the sentencing court had sufficient evidence from which it could
conclude that Mr. Horn traded or exchanged child pornography.

The trial court, moreover, correctly held that § 2G2.2 and the cross-reference in
§ 2G2.4(c)(2) apply when the offense involved the exchange or barter of material
depicting a minor in sexually explicit conduct, and not only, as Mr. Horn argues, when
this material was offered for sale. For one thing, we believe that exchange or barter is

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a form of "trafficking." "Traffic," like "trade," includes both "the business of buying
and selling for money" and "the business of exchanging commodities by barter," May
v. Sloan, 101 U.S. 231, 237 (1879); see also Webster's Third New International
Dictionary at 2422 (1986) ("traffic" is "the activity of exchanging commodities by
bartering or buying and selling"). In addition, § 2G2.4 requires the application of
§ 2G2.2 in cases in which the defendant received, transported, or shipped child
pornography, whether or not these acts amount to "trafficking" in such material. See
United States v. Ellison, 113 F.3d 77, 81-82 (7th Cir. 1997), cert. denied, 118 S. Ct.
235 (1997), and United States v. Canada, 110 F.3d 260, 264 (5th Cir. 1997) (per
curiam), cert. denied, 118 S. Ct. 195 (1997).

VIII.
Mr. Horn further argues that the trial court erred in applying the enhancement
under § 2G2.2(b)(2) for distributing child pornography. We understand this to be a
repetition of his objection to the recommended enhancement in the PSR, in which he
noted that application note 1 to § 2G2.2 states, " 'Distribution,' as used in this
guideline, includes any act related to distribution for pecuniary gain, including
production, transportation, and possession with intent to distribute." Mr. Horn argues
that he did not possess pornographic materials for "pecuniary gain" but only for
personal viewing. Since he did not sell tapes for money, the issue is whether trading
tapes in order to augment his personal collection constitutes "distribution."

We agree with those circuits that have given the word "distribution" in
§ 2G2.2(b)(2) its usual meaning in ordinary language and have read the application note
to mean only that "distribution" includes, but is not limited to, transactions for
pecuniary gain. See United States v. Lorge, 166 F.3d 516, 518-19 (2nd Cir. 1999),
cert. denied, 119 S. Ct. 1372 (1999); United States v. Hibbler, 159 F.3d 233, 237-38
(6th Cir. 1998), cert. denied, 119 S. Ct. 1278 (1999); and Canada, 110 F.3d at 263-64.
See also U.S.S.G. § 1B1.1, application note 2 ("[t]he term 'includes' is not exhaustive").
If Congress had intended § 2G2.2(b)(2) to apply only to distribution for pecuniary gain,

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it could easily have said so directly. The purpose of the enhancement for distribution,
we believe, is to increase the sentence of those defendants who did not merely receive
child pornography but also disseminated it. Since Mr. Horn was found to have engaged
in trade or barter, the trial court correctly imposed the enhancement for distribution.

IX.
Mr. Horn argues that the trial court erred in applying an enhancement for
engaging "in a pattern of activity involving the sexual exploitation or abuse of a minor,"
see § 2G2.2(b)(4). He contends that trafficking in child pornography does not qualify
as sexual exploitation or abuse of minors, and we agree. In 1996, application note 1
to § 2G2.2 was amended to include a more precise definition of the term "sexual abuse
or exploitation"; the application note now states quite explicitly that " '[s]exual abuse
or exploitation' does not include trafficking in material relating to the sexual abuse or
exploitation of a minor."

The Sentencing Commission stated at the time of the amendment that this
revision was merely clarifying, and noted that the definition of "sexual abuse or
exploitation" was consistent with recent case law holding that trafficking in child
pornography was not sexual exploitation for the purposes of § 2G2.2(b)(4). See United
States v. Ketcham, 80 F.3d 789, 794-95 (3rd Cir. 1996), and United States v.
Chapman, 60 F.3d 894, 897-900 (1st Cir. 1995). Indeed, this appears to have been the
unanimous interpretation of § 2G2.2(b)(4) in the federal appellate courts. See United
States v. Kemmish, 120 F.3d 937, 941-42 (9th Cir. 1997), cert. denied, 118 S. Ct. 1087
(1998).

The government notes, however, that the amended version of application note 1
to § 2G2.2 defines "sexual abuse or exploitation" as "criminal sexual abuse of a minor,
sexual exploitation of a minor, abusive sexual contact of a minor, ... [or] any similar
offense under state law" (emphasis supplied), and argues that Mr. Horn's past and
present trafficking in child pornography constitutes a pattern of activity involving such

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a "similar offense." (Mr. Horn was convicted in state court in 1991 for possession of
child pornography; that offense involved materials different from those at issue in our
case.) The government's argument, however, ignores the clear statement in the
application note that trafficking does not constitute sexual abuse or exploitation for the
purposes of § 2G2.2. The trial court therefore erred when it imposed a five-level
enhancement under § 2G2.2(b)(4) for a pattern of activity involving sexual abuse or
exploitation of a minor.

Reducing Mr. Horn's offense level by five levels does not, however, affect his
sentence. The trial court calculated his offense level to be 31, resulting in a sentencing
range of 108-135 months; but since the maximum sentence for a violation of 18 U.S.C.
§ 2252(a)(4)(B) at the time of his offense was 60 months, the court sentenced him to
that term. Without the five-level enhancement under § 2G2.2(b)(4), Mr. Horn's offense
level is 26 and the corresponding sentencing range is 63-78 months. This still exceeds
the statutorily authorized maximum sentence of 60 months. Mr. Horn's sentence
therefore remains the same, and the trial court's error was harmless.

X.
Finally, Mr. Horn contends that the trial court erred in denying his motion under
Fed. R. Crim. P. 16(a)(1)(C). Mr. Horn contended below that he was entitled to have
copies of the video tapes that were going to be used against him at trial so that any
expert witness that he might procure could see and evaluate them. The trial court
denied the motion, holding, inter alia, that the government's offer to allow Mr. Horn's
expert to view the tapes would accomplish the same object that Mr. Horn sought; and,
indeed, Mr. Horn does not show how he was prejudiced by the trial court's ruling. We
note, too, that Fed. R. Crim. P. 16(d)(1) provides that "[u]pon a sufficient showing the
court may at any time order that the discovery or inspection be denied, restricted, or
deferred." We think that the restriction that the trial court imposed here, given the fact
that the tapes were prima facie contraband, was authorized by the relevant rule.

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 On appeal, Mr. Horn identifies an entirely different reason for having wanted
copies of the videos. He claims that if he had had copies, he could have sent them to
the tapes' producers, who would have had information helpful to him relevant to the
age of the performers. In a proper case, and perhaps after a sufficient preliminary
showing, such a rationale might well have required the trial court to grant Mr. Horn's
discovery motion. But Mr. Horn's difficulty here is that he never advanced this
rationale to the trial court, and so he cannot now complain that the court denied his
motion.

XI.
For the reasons stated above, we affirm the judgment of the trial court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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