United States v. Hilario Alfaro-Moncada

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 27, 2010
No. 08-16442
JOHN LEY
________________________ CLERK

D. C. Docket No. 08-20377-CR-UU

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HILARIO ALFARO-MONCADA,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(May 27, 2010)

Before CARNES and HULL, Circuit Judges, and LAWSON,* District Judge.

CARNES, Circuit Judge:

*
Honorable Hugh Lawson, United States Senior District Judge for the Middle District of
Georgia, sitting by designation.
 A lot of child pornography cases come through our court, and most of them

present fairly routine issues. This one, however, brings in tow a Fourth

Amendment issue with important implications for the national security of the

United States. When a foreign cargo vessel enters this country and is subject to a

border search, may the cabins of its crew members be searched for contraband

without reasonable suspicion?

I.

On April 16, 2008, the MV RIO MIAMI, a foreign cargo ship, docked at the

Antillean Marine inside Miami, Florida after traveling from the Dominican

Republic. The Antillean Marine is located approximately three miles inland on

the Miami River. It was the ship’s first port of entry into the United States. A

couple of hours after the ship came into this country, officials with United States

Customs and Border Protection, which is part of the Department of Homeland

Security, went on board the ship to conduct an agricultural re-boarding.1 The

1
The agricultural re-boarding was the second inspection of the RIO MIAMI. Shortly after
it arrived in the United States, Customs and Border Protection officials performed an initial
boarding. During the initial boarding, a passenger processing team issued landing permits to the
people on the RIO MIAMI, and an agricultural team completed paperwork clearing the ship’s
food waste and garbage for unloading.

2
purpose of an agricultural re-boarding, or at least the primary purpose of the one in

this case, is to inspect a ship for prohibited agricultural materials, including seeds.2

The re-boarding of the RIO MIAMI was performed by a group of Customs

and Border Protection officials called the Agricultural Enforcement Team.

Among its seven members were five people trained in detecting threats to

agriculture: three agricultural specialists, including Specialist Luis Meyer, plus a

senior agricultural officer and a supervisor. The other two members were Customs

and Border Protection officers, one of whom was Officer Ernesto Quiñones.3 The

2
The Homeland Security Act of 2002 transferred personnel and authority for agricultural
border inspections from the United States Department of Agriculture to Customs and Border
Protection. See 6 U.S.C. §§ 202(7), 231. Customs and Border Protection performs agricultural
inspections at ports of entry in order to enforce various animal and plant protection laws. Ruth
Ellen Wasem, Cong. Research Serv., Border Security: Inspections Practices, Policies, and Issues
8–9 (2004); see § 231 (requiring the Department of Homeland Security to conduct agricultural
import and entry inspection activities under the following laws: The Honeybee Act, 7 U.S.C. §§
281–286; The Federal Seed Act, 7 U.S.C. §§ 1581–1586 (Title III); The Plant Protection Act, 7
U.S.C. §§ 7701–7786; The Animal Health Protection Act, 7 U.S.C. 8301–8322; The Lacey Act
Amendments of 1981, 16 U.S.C. §§ 3371–3378; The Virus-Serum-Toxin Act, 21 U.S.C. §§
151–159; and The Endangered Species Act of 1973, § 11, 16 U.S.C. § 1540).
3
See Introducing the New CBP Agriculture Specialist, Customs & Border Protection
Today, May 2004, http://www.cbp.gov/xp/CustomsToday/2004/May/agSpec.xml (Agricultural
specialists “determine the admissibility of agriculture commodities while preventing the
introduction of harmful pests, diseases, and potential agro/bioterrorism into the United States”);
Jim Monke, Cong. Research Serv., Agroterrorism: Threats and Preparedness 17 (rev. 2006)
(Agricultural specialists attend an 8-week training program at a Department of Agriculture
facility on agricultural issues and 2-weeks of law enforcement classes); Fed. Law Enforcement
Training Ctr., Dep’t of Homeland Sec., Catalog of Training Programs 145 (rev. 2007) (Customs
and Border Protection “[o]fficers are trained in basic law enforcement skills, including: Anti-
Terrorism; Detection of Contraband; . . . Immigration and Naturalization laws; U.S. Customs
Export and Import laws; . . . [and] Examination of Cargo, Bags, and Merchandise.”); Gen.
Accounting Office, Homeland Security: Management and Coordination Problems Increase the

3
Team met with the captain of the RIO MIAMI and told him that they would be

inspecting the ship from bow to stern. After the Team inspected the bridge,

Specialist Meyer and Officer Quiñones went below to inspect the crew members’

cabins. The captain, who was with them, had a master key that unlocked the

cabins, which were arranged like hotel rooms—one right beside another. The

captain went from cabin to cabin, unlocking and opening each door so that the

cabins could be searched. The master key would not open the cabin of Hilario

Alfaro-Moncada, a citizen of El Salvador, who was the ship’s cook.

While Specialist Meyer and Officer Quiñones waited in the hall, the captain

went and got Alfaro-Moncada who unlocked his cabin door with his key and

opened it. Specialist Meyer asked Alfaro-Moncada if the cabin was his, if he

owned everything in it, and if Meyer could inspect it. After Alfaro-Moncada

Vulnerability of U.S. Agriculture to Foreign Pests and Disease 15 (2006) (Customs and Border
Protection officers receive 16 hours of training on agricultural issues); Introducing the New CBP
Agriculture Specialist (noting that Customs and Border Protection officers perform different
duties than Agricultural Specialists but “receive agriculture fundamentals training that [allows]
them to recognize the signs of possible agriculture anomalies”).

(In keeping with Eleventh Circuit Internal Operating Procedure 10, “Citation to Internet
Materials in an Opinion,” under Federal Rule of Appellate Procedure 36, a copy of the internet
materials cited in this opinion is available at this Court’s Clerk’s Office.)

4
answered “yes” to all three questions, Meyer entered the cabin and began

inspecting it.4

Alfaro-Moncada’s cabin was small and its only furniture was a couch, bed,

and desk. Specialist Meyer started his inspection on the left side of the cabin

where the couch was located. He searched some luggage and sifted through some

clothes that were strewn on the couch. Finding nothing of interest, Meyer moved

on to Alfaro-Moncada’s bed, which was positioned in the center of the cabin.

Meyer lifted the mattress and rummaged through some drawers running down the

side of the bed. Again finding nothing of interest, he moved on.

Specialist Meyer’s efforts then focused on Alfaro-Moncada’s desk, which

was located to the right of the bed and had a DVD player sitting on top of it.

Meyer searched the top of the desk and then opened the desk’s only drawer.

Inside the drawer were cases for CDs and DVDs. Meyer took some of them out of

the drawer and began examining them. He looked at the covers of the cases. One

of the DVD covers caught his attention because on that cover were ten images of

what appeared to be young girls engaging in a variety of sexual acts. Suspecting

4
The government did not argue before the district court that the search was permissible
because of Alfaro-Moncada’s consent, and it does not make that argument to us either. So we
will not consider that possibility. See Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d
541, 542 (11th Cir. 2002) (en banc) (“[T]he general rule of this Circuit [is] that issues not raised
before the district court will not be considered on appeal.”).

5
that the images were child pornography, Meyer called for Officer Quiñones who

by that time had started searching another crew member’s nearby cabin.

When Officer Quiñones arrived, Specialist Meyer handed him the DVD

case and Quiñones examined it. Quiñones then asked Alfaro-Moncada whether it

belonged to him and whether he knew what was on the DVD inside. Alfaro-

Moncada admitted that it was his and that he knew there was pornography on the

DVD and when asked what kind of pornography, he said “little girls.” Quiñones

got Alfaro-Moncada’s permission to watch the DVD, but then continued the

search of the desk drawer that Meyer had begun. He found a second DVD case

that depicted young girls engaging in sex acts. The title of that DVD was

“Vacanales del Porno,” which translates to “Porno Parties.” The actual DVD

inside the case had Alfaro-Moncada’s initials—“H.A.M.”—on it, as well as “del

X,” which translates to “triple X.”

After finding the second DVD, Officer Quiñones asked Alfaro-Moncada if

it also belonged to him and if Quiñones could watch it. Alfaro-Moncada again

answered “yes” to both questions. Quiñones then used Alfaro-Moncada’s player

to watch portions of both DVDs and confirmed that they contained child

pornography. After that, Alfaro-Moncada’s cabin was secured and he was taken

into custody.

6
 II.

A grand jury sitting in the Southern District of Florida returned an

indictment charging Alfaro-Moncada with possession of child pornography, in

violation of 18 U.S.C. § 2252(a)(4)(B). Two weeks after being indicted, he filed a

motion to suppress the DVDs and his statements about them, contending that the

search of his cabin had violated his Fourth Amendment rights. After conducting

an evidentiary hearing, a magistrate judge reported that the search of Alfaro-

Moncada’s cabin was a routine border search requiring no level of suspicion and

recommended that the suppression motion be denied. The district court adopted

the magistrate judge’s report and recommendation and denied the motion.

III.

Alfaro-Moncada’s trial took only a day. The government presented the

testimony of Specialist Meyer and Officer Quiñones and introduced into evidence,

among other things, five still images taken from the DVDs. Alfaro-Moncada

objected to the images’ admission, protesting that he had stipulated that the DVDs

contained child pornography.

Alfaro-Moncada took the stand and testified that he bought both DVDs at a

flea market in Colombia. An apparently indiscriminate shopper, Alfaro-Moncada

claimed that he purchased the DVDs without knowing what they were or really

7
looking at them. He said that it was not until he got back to the ship and watched

parts of them that he realized that they contained child pornography. Once he

realized what they were, he tossed them in his desk drawer planning to throw them

overboard later. He testified that the reason he never got rid of the DVDs was that

he had gotten busy, rough seas had made him ill, and he had forgotten about them.

Rejecting Alfaro-Moncada’s story, the jury found him guilty as charged of

possession of child pornography.

At sentencing, the district court determined that Alfaro-Moncada’s base

offense level was 18. See U.S.S.G. § 2G2.2(a)(1). That was enhanced two points

because the DVDs depicted children under the age of twelve, see § 2G2.2(b)(2),

four points because the DVDs portrayed “sadistic or masochistic conduct or other

depictions of violence,” see § 2G2.2(b)(4), and five more points because the

DVDs contained more than 600 images of child pornography, see §

2G2.2(b)(7)(D). The result was a total offense level of 29. Because he had no

criminal record, Alfaro-Moncada had a criminal history category of I. See

U.S.S.G. Ch. 5 Pt. A. The resulting guidelines range was 87 to 108 months

imprisonment. See id. The district court imposed a sentence of 87 months in

prison and 10 years of supervised release.

8
 IV.

Alfaro-Moncada contends that: (1) his motion to suppress should have been

granted because the search of his cabin violated his Fourth Amendment rights; (2)

there was insufficient evidence to support his conviction; (3) the district court

erred in allowing the government to show five still images from the DVDs to the

jury after he had stipulated that they contained child pornography; and (4) his 87-

month sentence is unreasonable.

A.

Searches conducted at the border are analyzed in two steps. See United

States v. Ramsey, 431 U.S. 606, 97 S.Ct. 1972 (1977). The first step is to

determine if the search was authorized by statute, see id. at 611–15; 97 S.Ct. at

1976–78, and, if so, the second step is to decide if the search was reasonable under

the Fourth Amendment, see id. at 615–16; 97 S.Ct. at 1978.

The government contends that the Agricultural Enforcement Team was

authorized by 19 U.S.C. § 1581(a) to search Alfaro-Moncada’s cabin. That statute

provides that any “officers of the customs” may “at any time go on board of any

vessel . . . at any place in the United States” and “search the vessel . . . and every

part thereof.” 19 U.S.C. § 1581(a). An “officer of the customs” includes “any

officer of the United States Customs Service . . . or any agent or other person . . .

9
authorized by law . . . to perform any duties of an officer of the Customs Service.”

Id. § 1401. The Homeland Security Act of 2002 transferred all customs functions,

with the exception of certain revenue-related ones, to the Department of Homeland

Security. See 6 U.S.C. §§ 203(1), 212(a)(1). Customs border activities are now

performed by United States Customs and Border Protection, which is part of the

Department of Homeland Security. See Ruth Ellen Wasem, Cong. Research Serv.,

Border Security: Inspections Practices, Policies, and Issues 6 (2004). The

members of the Agricultural Enforcement Team, all employees of Customs and

Border Protection, were thus “officer[s] of the customs” within the meaning of §

1581(a). The Team boarded the RIO MIAMI while it was docked three miles up

the Miami River, which is a “place in the United States,” and Alfaro-Moncada’s

cabin was a part of the ship. See § 1581(a) (allowing officer of the customs to

“search the vessel . . . and every part thereof”). The Team therefore had statutory

authority under § 1581(a) to search the cabin.

Of course, “no Act of Congress can authorize a violation of the

Constitution,” Almeida-Sanchez v. United States, 413 U.S. 266, 272, 93 S.Ct.

2535, 2539 (1973), which brings us to the second step of the Ramsey analysis:

whether the statutorily authorized search violated the Fourth Amendment. Neither

the Supreme Court nor this Court has ever addressed § 1581(a)’s constitutionality

10
in the circumstances presented by this case. The Supreme Court has, however,

upheld the constitutionality of § 1581(a) to the extent that it authorizes customs

officers, without any level of suspicion, to board vessels located in waters

providing ready access to the open seas and conduct a document inspection. See

United States v. Villamonte-Marquez, 462 U.S. 579, 588–593, 103 S. Ct. 2573,

2579–2582 (1983). In doing so, the Supreme Court noted the broad grant of

authority that § 1581(a) confers on customs officers but expressly limited its

decision to document inspections. See id. at 581 n.2, 103 S.Ct. at 2575 n.2. More

recently, the Supreme Court held that § 1581(a) authorizes customs officers,

without any level of suspicion, to remove, disassemble, and reassemble an

automobile’s gas tank to look for contraband while the automobile is located at a

secondary inspection area at the border. See United States v. Flores-Montano, 541

U.S. 149, 153–56, 124 S.Ct. 1582, 1585–87 (2004).

When the RIO MIAMI, including Alfaro-Moncada’s cabin, was searched, it

was docked at the functional equivalent of the border—making this a border

search case. See United States v. Moreno, 778 F.2d 719, 721 (11th Cir. 1985)

(noting that the point where a ship first docks after arriving from a foreign country

is the functional equivalent of the border). If the Agricultural Enforcement Team

had boarded the RIO MIAMI to perform a document inspection, Villamonte-

11
Marquez probably would control, and if the Team had searched equipment or

cargo on the vessel the Flores-Montano decision probably would control. What

distinguishes this case from those two and makes it more difficult is that the search

was of living quarters on a vessel. The issue is whether a search without

reasonable suspicion of a crew member’s living quarters on a foreign cargo vessel

that is entering this country is unreasonable for Fourth Amendment purposes.

To determine the reasonableness of a border search, or of any search for that

matter, we weigh “its intrusion on [an] individual’s Fourth Amendment interests

against its promotion of legitimate governmental interests.” United States v.

Denson, 574 F.3d 1318, 1338 (11th Cir. 2009) (quotation marks omitted); see also

United States v. Richards, 638 F.2d 765, 770 (5th Cir. Mar. 1981)5 (“Because the

Fourth Amendment expressly prohibits only unreasonable warrantless searches, it

patently incorporates a balancing test, weighing in one measure the level of

intrusion into individual privacy and in the other the public interest to be

served.”); United States v. Himmelwright, 551 F.2d 991, 994 (5th Cir. 1977)

(same).

5
We adopted as binding precedent all Fifth Circuit decisions prior to October 1, 1981.
Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

12
 Even though it does involve weighing individual privacy and public

interests, “the Fourth Amendment’s balance of reasonableness is qualitatively

different at the international border than in the interior.” United States v. Montoya

de Hernández, 473 U.S. 531, 538, 105 S.Ct. 3304, 3309 (1985). At the border, an

individual has a lesser expectation of privacy, the government has a greater

interest in searching, and the balance between the interests of the government and

the privacy right of the individual is struck more favorably to the government. Id.

at 539–40, 105 S.Ct. at 3309–10 (citations omitted). The United States’

paramount interest in conducting searches at its borders is national self-protection.

See Flores-Montano, 541 U.S. at 153, 124 S.Ct. at 1586 (“It is axiomatic that the

United States, as sovereign, has the inherent authority to protect, and a paramount

interest in protecting, its territorial integrity.”); id. at 152, 124 S.Ct. at 1585 (“The

Government’s interest in preventing the entry of unwanted persons and effects is

at its zenith at the international border.”); Carroll v. United States, 267 U.S. 132,

154, 45 S.Ct. 280, 285 (1925) (“Travelers may be so stopped in crossing an

international boundary because of national self-protection reasonably requiring

one entering the country to identify himself as entitled to come in, and his

belongings as effects which may be lawfully brought in.”); see also Bourgeois v.

Peters, 387 F.3d 1303, 1315 (11th Cir. 2004) (noting that transborder travel is a

13
context in which compelling state interests diminish an individual’s expectation of

privacy); United States v. Chemaly, 741 F.2d 1346, 1350 (11th Cir. 1984)

(observing that the Fourth Amendment is relaxed at the border “[b]ecause of the

strong policy of national self protection”).

Because of the United States’ strong interest in national self-protection,

“[r]outine searches of the persons and effects of entrants are not subject to any

requirement of reasonable suspicion, probable cause, or warrant.” Montoya de

Hernández, 473 U.S. at 538; 105 S.Ct. at 3309; see also Denson, 574 F.3d at 1339

(“It is beyond peradventure that searches made at the border, pursuant to the long-

standing right of the sovereign to protect its territorial integrity, renders

preliminary searches and seizures per se reasonable . . . . Entrants, therefore, are

subject to search even in the absence of reasonable suspicion, probable cause, or

warrant.” (citations omitted)). A person may be subjected to a pat-down search or

frisk. See United States v. Ramos, 645 F.2d 318, 322 (5th Cir. Unit B 1981) (“[A]

routine, non-offensive pat-down or frisk made at the border is justified [solely] by

a traveler’s request to cross our national border.”). A traveler’s luggage may be

inspected. See United States v. Rice, 635 F.2d 409, 410 (5th Cir. Unit B 1981)

(noting that no articulable suspicion is required to conduct a routine search of

luggage at the border). Incoming international mail may be examined. See United

14
States v. Pringle, 576 F.2d 1114, 1117–18 (5th Cir. 1978) (upholding

suspicionless search of incoming international mail). Vehicles may be searched.

See United States v. Emmens, 893 F.2d 1292, 1294 (11th Cir. 1990) (“[N]either a

warrant nor any level of suspicion is required to search vehicles, including aircraft,

arriving in the United States.”). All without any level of suspicion. Those

searches are “reasonable simply by virtue of the fact that they occur at the border.”

Denson, 574 F.3d at 1339; see also Nat’l Treasury Employees Union v. Von Raab,

489 U.S. 656, 665, 109 S.Ct. 1384, 1390 (1989) (“[N]either a warrant nor probable

cause, nor, indeed, any measure of individualized suspicion, is an indispensable

component of reasonableness in every circumstance.”); Skinner v. Ry. Labor

Executives’ Ass’n, 489 U.S. 602, 624, 109 S.Ct. 1402, 1417 (1989) (“In limited

circumstances, where the privacy interests implicated by the search are minimal,

and where an important governmental interest furthered by the intrusion would be

placed in jeopardy by a requirement of individualized suspicion, a search may be

reasonable despite the absence of such suspicion.”); Ramsey, 431 U.S. at 619, 97

S.Ct. at 1980 (“Border searches, then, from before the adoption of the Fourth

Amendment, have been considered to be ‘reasonable’ by the single fact that the

person or item in question had entered into our country from outside.”).

15
 Even at the border, however, reasonable suspicion is required for highly

intrusive searches of a person’s body such as a strip search or an x-ray

examination. See, e.g., Brent v. Ashley, 247 F.3d 1294, 1302 (11th Cir. 2001)

(concluding that strip search of airline passenger arriving at Miami International

Airport from Nigeria without reasonable suspicion that the passenger was

smuggling drugs violated the Fourth Amendment); United States v. McMurray,

747 F.2d 1417, 1420 (11th Cir. 1984) (“A strip search requires a particularized

‘reasonable suspicion.’ This standard is met ‘by a showing of articulable facts

which are particularized as to the person and as to the place to be searched.’”

(citations omitted)); United States v. Mosquera-Ramirez, 729 F.2d 1352, 1353

(11th Cir. 1984) (“[A]n x-ray search performed at the border is reasonable if based

on the same amount of suspicion required for a strip search.”); United States v. De

Gutierrez, 667 F.2d 16, 19 (11th Cir. 1982) (“The well-established rule in this

circuit is that a strip search conducted at the border meets the requirements of the

fourth amendment if it is supported by ‘reasonable suspicion’ on the part of the

customs agent.”).6

6
In Montoya de Hernández, the Supreme Court held that “the detention of a traveler at the
border, beyond the scope of a routine customs search and inspection, is justified at its inception if
customs agents, considering all the facts surrounding the traveler and her trip, reasonably suspect
that the traveler is smuggling contraband in her alimentary canal.” 473 U.S. at 541, 105 S.Ct. at
3310. The Court did not decide “what level of suspicion, if any, is required for nonroutine
border searches such as strip, body cavity, or involuntary x-ray searches.” Id. at 541 n.4, 105

16
 While Alfaro-Moncada was not subjected to a highly intrusive search of his

body, his cabin was searched and that implicates significant Fourth Amendment

principles. A cabin is a crew member’s home—and a home “receives the greatest

Fourth Amendment protection.” See United States v. McGough, 412 F.3d 1232,

1236 (11th Cir. 2005); see also Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct.

2038, 2041 (2001) (“‘At the very core’ of the Fourth Amendment ‘stands the right

of a man to retreat into his own home and there be free from unreasonable

governmental intrusion.’” (quoting Silverman v. United States, 365 U.S. 505, 511,

81 S.Ct. 679, 683 (1961))); Payton v. New York, 445 U.S. 573, 585, 100 S.Ct.

1371, 1379 (1980) (“[T]he physical entry of the home is the chief evil against

which the wording of the Fourth Amendment is directed.” (quotation marks

omitted)); id. at 590, 100 S.Ct. at 1382 (“[T]he Fourth Amendment has drawn a

firm line at the entrance to the house.”).

In none of those decisions discussing the Fourth Amendment protections

afforded to the home was it at the border, and on that critical distinction this case

turns. A home in a fixed location within the United States cannot be used as a

means to transport into this country contraband or weapons of mass destruction

S.Ct. at 3310 n.4. We have set that level of suspicion at reasonable suspicion. See Mosquera-
Ramirez, 729 F.2d at 1353; United States v. Vega-Barvo, 729 F.2d 1341, 1345 (11th Cir. 1984).

17
that threaten national security. A crew member’s cabin, like the rest of the ship on

which it is located, can and does pose that threat. See Dep’t of Homeland Sec.,

The National Strategy for Maritime Security 4 (2005) (“Vessels can be used to

transport powerful conventional explosives or [weapons of mass destruction] for

detonation in a port. . . .”); John F. Frittelli, Cong. Research Serv., Port and

Maritime Security: Background and Issues for Congress 1 (2005) (“[S]ecurity

experts are worried that the maritime transportation system could be used by

terrorists to smuggle personnel, weapons of mass destruction, or other dangerous

materials into the United States.”); Gen. Accounting Office, Homeland Security:

Process for Reporting Lessons Learned from Seaport Exercises Needs Further

Attention 1 (2005) (“Seaports are vulnerable entry points for bombs or other

devices smuggled into cargo ships. . . .”); JayEtta Z. Hecker, Gen. Accounting

Office, Port Security: Nation Faces Formidable Challenges in Making New

Initiatives Successful 3 (2002) (“Drugs and illegal aliens are routinely smuggled

into this country, not only in small boats but also hidden among otherwise

legitimate cargoes on large commercial ships. These same pathways are available

for exploitation by a terrorist organization or any nation or person wishing to

attack [the United States] surreptitiously.”). That threat is the reason why “the

Fourth Amendment balance between the interests of the Government and the

18
privacy right of the individual is . . . struck much more favorably to the

Government at the border.” Montoya de Hernández, 473 U.S. at 540, 105 S.Ct at

3310; see also Carroll, 267 U.S. at 154, 45 S.Ct. at 285; Flores-Montano, 541 U.S.

at 152, 124 S.Ct. at 1585.

The concern that contraband or worse will be smuggled into this country has

special force in modern times. At the dawn of the atomic age, Churchill warned

that “[t]he Dark Ages may return—the Stone Age may return on the gleaming

wings of science; and what might now shower immeasurable material blessings

upon mankind may even bring about its total destruction.”7 The gleaming wings

of science have brought us readily transportable chemical and biological weapons,

and there are reports of suitcase-size nuclear bombs, all of which could be used by

terrorists to commit murder on an unimaginable scale and to inflict devastating

economic injury. See, e.g., Patrick Barriot, Nuclear and Radiological Weapons, in

Treating Victims of Weapons of Mass Destruction: Medical, Legal, and Strategic

Aspects 188 (Patrick Barriot & Chantal Bismuth eds., 2008) (noting that U.S.

officials fear that terrorists could transport a suitcase bomb into one of the nation’s

7
Winston Churchill, The Sinews of Peace, Address at Westminster College (Mar. 5,
1946), reprinted in William Safire, Lend Me Your Ears: Great Speeches in History 871 (2d ed.
1997).

19
ports via a maritime route); Gen. Accounting Office, Maritime Security: Better

Planning Needed to Help Ensure an Effective Port Security Assessment Program 4

(2004) (“Ports present attractive targets for terrorists: they are sprawling, easily

accessible by water and land, close to crowded metropolitan areas, and interwoven

with complex transportation networks.”); Hecker, Port Security, at 4 (“A terrorist

act involving chemical, biological, radiological, or nuclear weapons at one of [the

nation’s] seaports could result in extensive loss of lives, property, and business;

affect the operations of harbors and the transportation infrastructure (bridges,

railroads, and highways) within the port limits; cause extensive environmental

damage; and disrupt the free flow of trade.”); Jonathan Medalia, Cong. Research

Serv., Terrorist Nuclear Attacks on Seaports: Threat and Response 1 (2005) (“A

terrorist Hiroshima-sized nuclear bomb (15 kilotons, the equivalent of 15,000 tons

of TNT) detonated in a port would destroy buildings out to a mile or two; start

fires . . . ; spread fallout over many square miles; disrupt commerce; and kill many

people.”); Nat’l Comm’n on Terrorist Attacks upon the U.S., The 9/11

Commission Report 391 (2004) (“Opportunities to do harm are as great, or greater,

in maritime or surface transportation” as in commercial aviation). Given the

dangers we face, the paramount national interest in conducting border searches to

protect this nation and its people makes it unreasonable to require any level of

20
suspicion to search any part of a foreign cargo vessel coming into this country.

Crew members’ cabins are no exception because, like any other part of a vessel,

they can be used to smuggle in weapons of mass destruction, illegal devices, or

other contraband.

Of course, this is an “other contraband” case. The Agricultural Enforcement

Team that searched Alfaro-Moncada’s cabin was looking for agricultural

contraband and found child pornography. Even limiting our analysis to the search

for agricultural contraband, however, important national interests are still

involved. See Montoya de Hernández, 473 U.S. at 544, 105 S.Ct. at 3312 (“At the

border, customs officials have more than merely an investigative law enforcement

role. They are also charged, along with immigration officials, with protecting this

Nation from entrants who may bring anything harmful into this country, whether

that be communicable diseases, narcotics, or explosives.” (emphasis added)).

Agricultural products can carry pests and diseases that “can harm the economy, the

environment, plant and animal health, and public health.” Gen. Accounting

Office, Homeland Security: Management and Coordination Problems Increase the

Vulnerability of U.S. Agriculture to Foreign Pests and Disease 1 (2006); see also

Peyton Ferrier, U.S. Dep’t of Agric., The Economics of Agricultural and Wildlife

Smuggling iv (2009) (“Banned agricultural goods can carry diseases, pathogens,

21
foreign organisms, or contaminants that threaten the health of humans, animals,

and plants; the environment; and the trade status of U.S. exports.”); Gen.

Accounting Office, Homeland Security: Management and Coordination Problems,

at 37 (“The global marketplace and increased imports of agricultural products and

international travelers into the United States have increased the number of

pathways for the movement and introduction of foreign, invasive agricultural pests

and diseases, such as avian influenza and foot-and-mouth disease.”); Gen.

Accounting Office, Homeland Security: Much is Being Done to Protect

Agriculture from a Terrorist Attack, but Important Challenges Remain 7 (2005)

(“Agricultural inspections at ports of entry [are] the first line of defense against the

entry of foreign pests and diseases” into the United States). The fact that

agricultural inspections are now performed by the Department of Homeland

Security underscores the fact that halting the entry of agricultural contraband into

this country is a component of national security.

Stopping agricultural pests and diseases from entering this country is an

essential function of homeland security; when they have come across our borders,

extensive damage has resulted. See Daniel Bertoni, Gen. Accounting Office,

Invasive Forest Pets: Recent Infestations and Continued Vulnerabilities at Ports of

Entry Place U.S. Forests at Risk 11 (2006) (The infestations of the Asian

22
longhorned beetle, emerald ash borer, and P.ramorum in the United States “began

when the pests passed through U.S. ports of entry, hitchhiking in vehicles, cargo,

or travelers’ personal belongings. That pests have become established indicates

that the first line of defense at the border has been breeched over the years.”); id.

at 6 (Efforts to eradicate the Asian longhorned beetle in New Jersey, New York,

and Illinois have resulted in the removal of 8,000 infested trees); id. (Cost of

removing and replacing trees infested by emerald ash borer estimated to reach $7

billion over 25-year period); id. at 6–7 (P.ramorum “has killed tens of thousands

of trees and led to the destruction of over 1 million nursery plants.”); Homeland

Security: Much is Being Done to Protect Agriculture from a Terrorist Attack, at 47

(From 1995 to 2005, Florida lost 2.1 million citrus trees because of the spread of

citrus canker, a highly contagious bacterial disease); Lawrence J. Dyckman, Gen.

Accounting Office, Bioterrorism: A Threat to Agriculture and the Food Supply 4

(2003) (“[T]he United Kingdom has estimated that its outbreak of foot-and-mouth

disease resulted in over $10 billion (U.S.) in losses to tourism and the food and

agriculture sectors and the slaughter of over 4 million animals. Estimates of direct

costs for a similar outbreak in the United States run has high as $24 billion with

the destruction of about 13 million animals.”); id. at 6 (“Foot-and-mouth disease

23
can be carried on the shoes of international passengers and the packages they

carry, in international mail, and in garbage from international carriers.”).

Not only is the national interest in searching for agricultural contraband

coming into this country strong, but any expectation of privacy a crew member has

in his living quarters is weaker when those quarters are brought to the border of

this country. Montoya de Hernández, 473 U.S. at 539, 105 S.Ct. at 3309–10; see

also United States v. Hidalgo-Gato, 703 F.2d 1267 (11th Cir. 1983) (“On crossing

a border the individual is on notice that a search may be made, and his privacy is

arguably less invaded by such search.” (quotation and other marks omitted)).

There are no inspection-free zones on a foreign cargo vessel at the border, just as

there are none in an airplane or a motor vehicle. Someone who travels to the

border in a recreational vehicle that also serves as his home could not reasonably

expect that it would not be subject to search. The same is true of a crewman

whose cabin, along with the rest of his ship, travels three miles up the Miami

River to dock.

For all of these reasons, we conclude that the suspicionless search of Alfaro-

Moncada’s cabin on the MV RIO MIAMI, a foreign cargo ship, while it was

docked at the Antillean Marine on the Miami River, was not a violation of the

Fourth Amendment.

24
 B.

Alfaro-Moncada attacks his conviction and sentence on other grounds. He

contends that there was insufficient evidence to support his conviction.

Specifically, Alfaro-Moncada argues that the government failed to prove the

knowledge element of 18 U.S.C. § 2252(a)(4)(B)—that he “knowingly” possessed

child pornography. He asserts that the evidence showed that he bought the DVDs

by accident and kept them because of forces beyond his control, namely his

forgetful memory and churning stomach.

Section 2252(a)(4)(B) criminalizes the knowing possession of child

pornography. That section provides:

Any person who . . . knowingly possesses, or knowingly accesses
with intent to view, 1 or more books, magazines, periodicals, films,
video tapes, or other matter which contain any visual depiction that . .
. has been shipped or transported using any means or facility of
interstate or foreign commerce or in or affecting interstate or foreign
commerce, or which was produced using materials which have been
mailed or so shipped or transported, by any means including by
computer, if . . . the producing of such visual depiction involves the
use of a minor engaging in sexually explicit conduct; and . . . such
visual depiction is of such conduct . . . shall be punished as provided
in [§ 2252(b)(2)].

18 U.S.C. § 2252(a)(4)(B). To satisfy the knowledge element of § 2552(a)(4)(B),

the government had to prove that Alfaro-Moncada knew the DVDs in his

possession showed minors engaging in sexually explicit conduct. See United

25
States v. X-Citement Video, Inc., 513 U.S. 64, 78, 115 S.Ct. 464, 472 (1994)

(concluding that “the term ‘knowingly’ in § 2252 extends both to the sexually

explicit nature of the material and to the age of the performers”); United States v.

Lacy, 119 F.3d 742, 747 (9th Cir. 1997) (“Possession of [DVDs] is ordinarily

lawful. The presence of illegal images on the [DVDs] is a crucial element

separating legal innocence from wrongful conduct. Accordingly, a defendant may

be convicted under § 2252(a)(4)(B) only upon a showing that he knew the matter

in question contained an unlawful visual depiction.” (quotation marks and

citations omitted)); see also United States v Woodruff, 296 F.3d 1041, 1047 (11th

Cir. 2002) (“We have long held that the term ‘knowingly’ means that the act was

performed voluntarily and intentionally, and not because of a mistake or

accident.”).

Alfaro-Moncada’s sufficiency challenge is free of anything resembling

merit. The government introduced into evidence the covers of the DVD cases

found in his desk drawer by Specialist Meyer and Officer Quiñones. On both of

those covers there were photos of young girls engaging in sex acts. Although

Alfaro-Moncada testified that he had bought the DVDs without knowing that they

contained child pornography, the jury was free to reject that testimony and believe

the opposite to be true. See United States v. Williams, 390 F.3d 1319, 1326 (11th

26
Cir. 2004) (“Where some corroborative evidence of guilt exists for the charged

offense . . . and the defendant takes the stand in h[is] own defense, the

[d]efendant’s testimony, denying guilt, may establish, by itself, elements of the

offense. This rule applies with special force where the elements to be proved for a

conviction include highly subjective elements [such as] the defendant’s intent or

knowledge.” (quotation marks and citations omitted)). Moreover, Alfaro-

Moncada admitted in his testimony that he had looked at the covers of the DVD

cases when he got back to the RIO MIAMI and watched a “little bit” of the DVDs

inside. At that point, by his own admission, he knew that he was in possession of

child pornography. His own testimony therefore established the knowledge

element of § 2252(a)(4)(B).

Alfaro-Moncada did testify that he intended to throw the DVDs overboard

after he discovered that they contained child pornography, but the jury was free

not to believe him. See id. Even taking his testimony as true, once he discovered

the DVDs contained child pornography and made the decision to put them in his

desk drawer, he was in knowing possession of them. Although Alfaro-Moncada

seems to think otherwise, the grace period for disposing of child pornography after

discovering it is not an extended one. There was plenty of evidence to support the

conviction.

27
 C.

Alfaro-Moncada also contends that the district court erred in allowing the

government to show five still images of child pornography to the jury. Since he

had stipulated that the DVDs contained child pornography, he argues that showing

the images to the jury was done only to prejudice and inflame the minds of the

jurors and was improper under Federal Rule of Evidence 403. Rule 403 permits a

district court to exclude relevant evidence when its probative value is substantially

outweighed by its unfairly prejudicial nature. See Fed. R. Evid. 403 (“Although

relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.”). But Rule 403, we have

cautioned, “is an extraordinary remedy which the district court should invoke

sparingly, and the balance should be struck in favor of admissibility.” United

States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003) (quotation and other marks

omitted). We have also said that “in reviewing issues under Rule 403, we look at

the evidence in a light most favorable to its admission, maximizing its probative

value and minimizing its undue prejudicial impact.” Id. (quotation and other

marks omitted).

28
 Admission of the five still images from the DVDs served valid purposes.

See Old Chief v. United States, 519 U.S. 172, 190, 117 S.Ct. 644, 655 (1997).

Those images proved that the DVDs actually contained child pornography,

although it is true that Alfaro-Moncada stipulated to that fact. See id. at 186–87;

117 S.Ct. at 653 (“[The] standard rule [is] that the prosecution is entitled to prove

its case by evidence of its own choice, or, more exactly, that a criminal defendant

may not stipulate or admit his way out of the full evidentiary force of the case as

the Government chooses to present it.”). They also tended to show that Alfaro-

Moncada knew he was in possession of child pornography, a fact that he did not

stipulate. Even if showing the images to the jury created some risk of injecting

emotions into the jury’s decision-making, see id. at 180, 117 S.Ct. at 650, it was

not an abuse of discretion for the district court to decide that the risk did not

substantially outweigh the still images’ probative value. That is especially true

since the jury was only shown a small number of the images on the DVDs—only 5

out of 4,650. See Dodds, 347 F.3d at 899 (finding no abuse of discretion where

images had multiple probative purposes, the district court took precautions to

prevent unfair prejudice, and only 66 of 3,400 images were shown to the jury).

29
 D.

Alfaro-Moncada also challenges the reasonableness of his 87-month

sentence. “We review sentencing decisions only for abuse of discretion, and we

use a two-step process.” United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir.

2009). First, we must “ensure that the district court committed no significant

procedural error, such as failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the §

3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence-including an explanation for any deviation

from the Guidelines range.” Id. (quoting Gall v. United States, 552 U.S. 38, 51,

128 S.Ct. 586, 597 (2007)). If we conclude that the sentence is procedurally

sound, the second step is to review the “substantive reasonableness” of the

sentence, taking into account the totality of the circumstances, “including the

extent of any variance from the Guidelines range.” Gall, 552 U.S. at 51, 128 S.Ct.

at 597. If the district court’s sentence is within the guidelines range, we expect

that the sentence is reasonable. See United States v. Talley, 431 F.3d 784, 788

(11th Cir. 2005) (“After Booker, our ordinary expectation [of reasonableness] still

has to be measured against the record, and the party who challenges the sentence

bears the burden of establishing that the sentence is unreasonable in the light of

30
both that record and the factors in section 3553(a).”); see also United States v.

Hunt, 526 F.3d 739, 746 (11th Cir. 2008) (“Although we do not automatically

presume a sentence within the guidelines range is reasonable, we ‘ordinarily . . .

expect a sentence within the Guidelines range to be reasonable.” (quoting Talley,

431 F.3d at 788)).

When deciding upon a sentence, the district court must evaluate all of the §

3553(a) factors. Gall, 552 U.S. at 49–50, 128 S.Ct. at 596; Shaw, 560 F.3d at

1237. In assessing the factors, the district court is “to consider every convicted

person as an individual and every case as a unique study in the human failings that

sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.”

Gall, 552 U.S. at 52, 128 S.Ct. at 598 (quotation marks omitted). “[A] district

court has ‘considerable discretion’ in deciding whether the § 3553(a) factors

justify a variance and the extent of one that is appropriate.” Shaw, 560 F.3d at

1238 (quoting United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)). We

give that decision “due deference” because district courts have an “institutional

advantage” in making sentencing determinations. Id. We may vacate a sentence

only “‘if we are left with the definite and firm conviction that the district court

committed a clear error of judgment in weighing the § 3553(a) factors by arriving

at a sentence that lies outside the range of reasonable sentences dictated by the

31
facts of the case.’” Id. (quoting Pugh, 515 F.3d at 1191). “[T]hat we ‘might

reasonably have concluded that a different sentence was appropriate is insufficient

to justify reversal.’” Id. (quoting Gall, 552 U.S. at 51, 128 S.Ct. at 597)).

As for procedural error, Alfaro-Moncada does not contend that the district

court incorrectly calculated the sentencing guidelines or treated them as

mandatory. Instead, he argues that the district court failed to adequately consider

the § 3553(a) factors. We disagree. Before imposing its sentence, the district

court stated that it had “considered the statements of the parties, the presentence

report containing the advisory guidelines and the statutory factors.” The court’s

acknowledgment that it had considered Alfaro-Moncada’s arguments and the §

3553(a) factors “alone is sufficient in post-Booker sentences.” United States v.

Scott, 426 F.3d 1324, 1330 (11th Cir. 2005).

Because we find that his sentence is “procedurally sound,” Shaw, 560 F.3d

at 1237, we next must determine whether Alfaro-Moncada’s sentence is

substantively reasonable. He contends that his 87-month sentence—a sentence at

the lowest end of his advisory guideline range—is “greater than necessary,” see 18

U.S.C. § 3553(a), to achieve the purposes of sentencing. He argues that the

district court failed to place sufficient weight on the nature and circumstances of

the offense and his personal characteristics and history. It is his position that a

32
sentence below the advisory guidelines range would have adequately reflected the

seriousness of his offense and provided just punishment.

An 87-month, within the guidelines, sentence in this case is not outside the

range of reasonableness. See Shaw, 560 F.3d at 1238. The district court

explained that it was imposing that sentence because of the harm caused by child

pornography, the strong interest in deterring its consumption, and Alfaro-

Moncada’s failure to recognize the wrongfulness of his conduct. Those were all

valid considerations under § 3553(a). See 18 U.S.C. § 3553(a)(2)(A) (seriousness

of the offense); § 3553(a)(2)(B) (afford adequate deterrence); § 3553(a)(2)(C)

(protect the public from further crimes of the defendant). The court’s decision to

sentence Alfaro-Moncada to a term of imprisonment at the lowest end of his

advisory guidelines range was lenient enough. The sentencing decision was not an

abuse of discretion.

IV.

Alfaro-Moncada’s conviction and sentence are AFFIRMED.

33