United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS January 5, 2004
For the Fifth Circuit
Charles R. Fulbruge III
Clerk
No. 03-20065
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ROBERT FROMAN,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
Before KING, Chief Judge and DAVIS and EMILIO M. GARZA, Circuit
Judges.
W. EUGENE DAVIS, Circuit Judge:
Defendant-Appellant Robert Froman (“Froman”) challenges his
convictions and sentence for receipt, possession, and conspiracy to
distribute child pornography. His appeal is based on the assertion
that the fruits of the search of his home and later confession
should have been suppressed because the warrant authorizing the
search was predicated on intentionally or recklessly false
statements. Because the affidavit supports a finding of probable
cause even without the alleged false statements, we affirm the
district court’s denial of Froman’s suppression motion.
I.
On December 6, 2000 pornographer Mark Bates (“Bates”) founded
an online club called The Candyman Group (“The Group” or
“Candyman”) using a free internet service called eGroups.1 In
general, internet groups, like those available through eGroups,
allow individuals with similar interests to band together and share
information through the world wide web. Members of these groups
are empowered to share interests, talents, and knowledge. Candyman
did not have such a benign purpose. The singular goal of the Group
was to collect and distribute child pornography and sexually
explicit images of children.
All Egroups are organized into different categories according
to interest. Candyman was categorized as an adult, transgender,
image gallery, at once suggesting its sexual content. The main web
page announced to anyone considering joining the Group its purpose:
This group is for People who love kids. You can post any
type of messages you like too [sic] or any type of pics
and vids you like too [sic].
P.S. IF WE ALL WORK TOGETHER WE WILL HAVE THE BEST GROUP
ON THE NET.
1
At the time of the creation of Candyman, the service was owned and run by a
business entity called eGroups. That company was acquired by Yahoo! in late
January 2001, just after the government began investigating the group. As a
result the FBI dealt with Yahoo! not eGroups in investigating the Group and its
members.
2
After reviewing the web page and learning the group’s mission,
anyone who wished to join the Group could do so either by clicking
the subscribe link on the main web page or by sending an e-mail to
the group administrator. Those subscribing via the website
subscribe link were presented with e-mail delivery options allowing
them to choose whether to receive all e-mails addressed to the
group as a whole, receive a daily digest of e-mails addressed to
the group, or to receive no e-mails and simply review the messages
on the website where they are archived. Members who joined via e-
mail were sent a confirmation e-mail welcoming the new member to
the group but would not necessarily be presented with e-mail
delivery options. Subscription to Candyman was free of charge, and
simple directions for revoking membership were provided at the
bottom of all correspondence. Additionally, both a link and an e-
mail address on the Group’s main web page could be used to cancel
membership.
Once a new member subscribed, he had full access to the
website and all of its functions. Members could post electronic
pictures and video clips to the website for other members to access
and download. They could use the chat feature to converse with
each other in real time. Members could use the group to disperse
images, videos and text via e-mail. Each message addressed to the
group was sent to all members who requested e-mail delivery and was
also stored on the website for members to review at their
convenience. E-mails were also sent by the Group to members
3
notifying them of new files that had been posted to the site and at
times giving a brief description of the pornography. A poll page
was included on the website that allowed group members to vote on
matters important to them. Candyman members voted on the types of
images they preferred: “What you all like to see more boys or girls
and whats age and more actions or more soft pics pick as many as
need. [sic].” Finally, a “links” page provided links to other
webpages and other online groups that supplied child pornography.
Defendant Froman joined Candyman on January 9, 2001. He was
a member of the site from that date until the site was shut down on
February 6, 2001.
The investigation of the Candyman Group began in early January
2001, when Special Agent Geoffrey Binney (“Agent Binney”), acting
undercover, joined the Group. After subscribing, Binney began
receiving all of the e-mails that were addressed to the Group by
other members, many of which contained child pornography. From the
time Agent Binney joined until the Group was shut down, he received
almost 500 e-mails, containing almost 300 images of child
pornography or child erotica. Agent Binney further monitored the
files uploaded to the website, and captured approximately 100
illegal images and video clips.
In mid January 2001, Agent Binney contacted Yahoo!, identified
himself as an FBI agent, and probed for information on the group
and its members. The representative from Yahoo! refused to answer
Agent Binney’s questions. Given the fruitless inquiries on January
4
19, 2001, Agent Binney obtained a subpoena directing Yahoo! to
divulge any identifying information regarding members. Yahoo!
responded to the subpoena on February 6, 2001. It shut down the
site and provided Agent Binney with a list of approximately 3400 e-
mail addresses of individuals who were Group members when Candyman
was shut down.2 The list provided no indication that e-mail
delivery options were available to members.
Agent Binney and the FBI sorted the 3400 e-mail addresses in
the member list by e-mail address providers, and sent grand jury
subpoenas to those providers, requesting Group members’ names,
addresses, phone numbers, and any other identifying information.
Once the FBI obtained addresses from service providers, Group
members were assigned to local FBI offices for further
investigation. Agent Binney provided local offices with template
search warrant affidavits which contained all of the basic
information that had been collected in the investigation. Local
agents could simply fill the gaps in the affidavit with the suspect
specific information and present that affidavit to a magistrate to
obtain a warrant.
Froman had subscribed to the Group under the e-mail address
fbunkhousebob@aol.com, and through a subpoena to America On Line
(“AOL”) the FBI discovered his address, phone number, and other
billing information. With this knowledge the FBI ultimately
2
Agent Binney had asked Yahoo! to keep the site running so that the
investigation could continue. Yahoo!, however, ignored that request.
5
tracked him to a bunkhouse that he managed in Pasadena, Texas. AOL
also provided the alias screen names that Froman used, which
included Littlebuttsue and Litletitgirly.
FBI Agent Michael Millard presented the information gathered
on Froman to Magistrate Judge Stacy in an affidavit, using Agent
Binney’s sample affidavit as a template. The affidavit primarily
described the Candyman Group, explained that the FBI knew Froman
was a member, and stated that all members of the Group received e-
mails containing child pornography addressed to the Group. The
magistrate issued a warrant and Agents Millard and a team of FBI
agents and local police executed that warrant on November 30, 2001.
During the search the team seized a computer, video camera, and
video tapes, as well as hundreds of hard copy printouts of digital
images. Some of the hard copy images matched those located on the
Candyman site. On the hard drive they discovered hundreds of
images of child pornography. Thousands of images were recovered in
all. One of the tapes seized depicted Froman having actual or
simulated sexual relations with his twelve-year-old daughter.
Furthermore, during the execution of the warrant, Froman, having
been read his rights, admitted receiving child pornography over the
internet and confessed to creating a videotape of himself and his
daughter engaged in sexual acts.
In March 2002 Froman was indicted with seven other defendants.
This indictment was followed by a superseding indictment in April
2002, in which Froman was charged with conspiracy to knowingly
6
transport, receive, and distribute child pornography in interstate
commerce via the computer under 18 U.S.C. § 2252A(b)(1); receipt of
child pornography in interstate commerce via computer under 18
U.S.C. § 2252(a)(2); and possession of child pornography
transported in interstate commerce via computer under 18 U.S.C.
2252A(a)(5)(B).
In late May 2002, approximately six months after the search of
Froman’s apartment, Cathy McGoff, a compliance manager from Yahoo!,
indicated in a similar proceeding against another Candyman member
in St. Louis, that members were provided with e-mail delivery
options. She stated that members could opt in or opt out of
receiving e-mails addressed to the Group. This statement was
confirmed by additional Candyman member lists provided to the FBI
in June 2002. The new evidence demonstrated that each member had
the option of receiving all of the e-mails addressed to the group,
a daily summary, or no e-mails at all.
Based upon the new information from Yahoo! Froman moved to
suppress the evidence recovered in the search and the subsequent
confession. Froman argued that the statement in the affidavit that
all group members received all e-mails addressed to the group was
knowingly false or was made recklessly. Froman contended that
without this statement the magistrate presented with the affidavit
had no basis to find probable cause that Froman had received,
possessed, or distributed child pornography.
The district court recognized that Group members had the
7
option to receive or not receive e-mail but observed that because
Agent Binney subscribed via e-mail and not the web site link he did
not observe the e-mail options, and he was not notified of the
options by Yahoo! during his investigation. Based on the district
court’s finding that Agent Binney had no reason to believe that the
statements in the affidavit to the magistrate were false the
district court denied the motion to suppress. The district court
also found that even if the statement that all members received all
e-mails was knowingly false, there was probable cause to issue a
search warrant even without the misstatement.
Once the motion to suppress was denied, Froman waived his
right to a jury trial and in August 2002 proceeded with a bench
trial in which all of the facts were stipulated. The district
court found Froman guilty on all three counts.
In December 2002, the FBI issued two internal investigation
reports which concluded that Agent Binney was in fact presented
with e-mail delivery options at the time he subscribed to Candyman.
Froman thereafter reurged the motion to suppress based upon his
interpretation of this new evidence that Agent Binney knew of the
e-mail delivery options and lied in the affidavit. Froman’s motion
was summarily denied.
Before sentencing, the government moved for an upward
departure based upon the heinous nature of the crime, particularly
his conduct in abusing and videotaping his own daughter and widely
distributing the pictures and videos. The judge granted that
8
motion, adding three offense levels and eventually sentencing
Froman to 180 months for counts 1 and 3, and 60 months for count 5,
all to run concurrently.
In this appeal Froman challenges the denial of the motion to
suppress, the denial of his reurged motion to suppress, the
sufficiency of the evidence to support a guilty verdict, and the
upward departure in his sentence.
II.
A.
In reviewing a district courts ruling on a motion to suppress
the court reviews findings of fact for clear error and findings of
law de novo. United States v. Cavazos, 288 F.3d 706, 709 (5th Cir.
2002).
Where a search warrant is involved, this Court employs a
two-step process for reviewing a district court's denial
of a motion to suppress. First, we determine whether the
good-faith exception to the exclusionary rule applies.
The good-faith exception provides that where probable
cause for a search warrant is founded on incorrect
information, but the officer's reliance upon the
information's truth was objectively reasonable, the
evidence obtained from the search will not be excluded.
See United States v. Leon, 468 U.S. 897, 919-20 (1984).
If the exception applies, our analysis ends, and the
district court's decision not to suppress is affirmed.
If the exception does not apply, we then proceed to the
second step in the analysis and determine whether the
magistrate had a substantial basis for finding probable
cause. . . . “If the good-faith exception applies, we
need not reach the question of probable cause.” United
States v. Cherna, 184 F.3d 403, 407 (1999).
9
Id. (citations omitted).
B.
The government argued, before both the district court and this
court, that the search of Froman’s apartment was justified under
the good faith exception. They argue that Agent Binney had no
reason to know that his statement that all members of the Group
received all e-mails was false, and thus his statement was not
knowingly or recklessly untrue. The government explains that Agent
Binney received no indication from Yahoo! that e-mail delivery
options were available to group members and that he was not
presented with that information at the time he joined the Candyman
group. The district court agreed, finding, inter alia, a good
faith exception and refused to suppress the fruits of the FBI
search.
When he reurged his motion to suppress, Froman presented the
new evidence from the FBI internal investigation that Agent Binney
was in fact provided e-mail delivery options on the web page when
he joined the Candyman Group.
The district court did not address the new evidence Froman
presented in his supplemental motion. The absence of factual
findings on whether Agent Binney’s statements that all members
received all e-mails were intentional false statements or reckless
10
misrepresentations precludes us from addressing whether the fruits
of the search are protected by the good faith exception.
C.
The district court also agreed with the government’s
alternative argument that the agent’s affidavit supported a
probable cause finding even without the controversial statements:
[E]ven without the disputed statement, the affidavit
set forth probable cause to believe a crime of conspiracy
to distribute, receive, or possess child pornography, a
crime of the distribution, receipt, or possession of
child pornography, or all of them had been committed and
that the evidence of the crimes could be found on the
computers of the Candyman Group members. The affidavit
explains the course of the investigation, the Candyman
Group’s operation and purpose, and it explains how and
when Froman joined the group. . . . The search warrant
at issue here was directed at 303 Eagle, Pasadena, Texas,
a location at which a computer identified as having been
used to subscribe to the Candyman Group was located. . .
. The affidavit establishes that the Candyman Group’s
purpose was to trade child pornography among its members.
It was common sense to conclude that images of child
pornography would be located on the computer and related
equipment and accessories. The affidavit also
establishes that persons who receive child pornography
usually keep it and also receive it from many sources.
It was also common sense that a person who is a member of
a group involved in the collection of child pornography
would have child pornography from a number of sites.
There was probable cause for the issuance of the search
warrant.
R. 419-18.
Froman argues that the affidavit does not permit a probable
cause finding without specific, individualized evidence of
possession of contraband. Froman argues that without the statement
11
that all members of the group received e-mails containing child
pornography there is no reason to believe that Froman received and
therefore possessed illegal images.
In determining whether probable cause exists without the false
statements a court must “make a practical, common-sense decision as
to whether, given all the circumstances set forth in the affidavit
[minus the alleged misstatements], there is a fair probability that
contraband or evidence of a crime will be found in a particular
place.” United States v. Byrd, 31 F.3d 1329, 1340 (5th Cir. 1994);
see also Cavazos, 288 F.3d at 710. In making that determination
“‘we construe the sufficiency of ... [the] affidavit independent
of the district court,’ and we are not limited by the clearly
erroneous standard.” United States v. McKinney, 758 F.2d 1036,
1042 (5th Cir. 1985) (quoting United States v. Freeman, 685 F.2d
942, 948 (5th Cir.1982)).
“Probable cause does not require proof beyond a reasonable
doubt, but only a showing of the probability of criminal activity.”
United States v. Daniel, 982 F.2d 146, 151 (5th Cir. 1993).
Of course, “probable cause” means something more than
“mere suspicion.” Probable cause requires the existence
of facts “‘sufficient in themselves to warrant a man of
reasonable caution in the belief that’ an offense has
been or is being committed” and the person to be arrested
(or searched) committed it.
United States v. Gordon, 580 F.2d 827, 832-33 (5th Cir. 1978)
(quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)).
12
“The Fourth Amendment . . . . restraint on government conduct
generally bars officials from undertaking a search or seizure
absent individualized suspicion.” Chandler v. Miller, 520 U.S.
305, 308 (1997).
The affidavit in this case either established the following
facts or permitted the following inferences.
1. Froman joined Candyman on January 9, 2001, and remained a
member until it was shut down on February 6, 2001.
2. The sole purpose of the Candyman eGroup, as demonstrated
by the statement in its website and the activities generated on the
website during the time Agent Binney was a member, was to receive
and distribute child pornography and erotica.3 All members were
given instructions for cancelling membership in the group, and
Froman at no time cancelled his membership.4
3
This application for a search warrant stems from an FBI
investigation of certain Yahoo! Egroups that existed for the
purpose of sharing images of child pornography . . . . The
purpose of the Candyman Egroup, as stated on its own website,
was as follows:
This group is for People who love kids. You can post
any type of messages you like too [sic] or any type of
pics and vids you like too [sic]. P.S. IF WE ALL WORK
TOGETHER WE WILL HAVE THE BEST GROUP ON THE NET.
Warrant Aff. at 7.
4
Voluntary Egroup Membership: In order to join the Egroup, a person
had to visit the URL (by invitation or otherwise) and send an e-mail
to the group moderator requesting permission to join. The moderator
would then send a confirmation notice to the requestor’s e-mail
account, advising him that he now had access to the Egroup. There
was no fee to join. In addition, at the bottom of each e-mail were
directions instructing a member what to do if he wanted to stop
receiving e-mails from the group and no longer desired to be a
member of the group.
13
3. The website enabled members to upload and download images
of child pornography, and members even provided input as to the
types of images they preferred.5 Agent Binney described the
hundreds of images of child pornography he captured or received in
e-mails through his membership in the group.6 Members were also
directed to web pages with similar illegal content.7
4. Froman registered a number of screen names with AOL that
reflected his interest in child pornography, including
Littlebuttsue and Littletitgirly.
The magistrate was entitled to infer from the affidavit that
the singular purpose of Candyman was to trade pornography among its
members. As such the magistrate was entitled to conclude that the
Id.
5
The Candyman Egroup’s website had several different features. First, the
‘Files’ section provided an area for members to post images or video files for
others to download. . . . The ‘Polls’ section allowed the group members to engage
in survey activity, e.g., asking ‘what age group do you prefer?’
Id. at 8.
6
SA Binney captured approximately one hundred images and video clips
that had been uploaded to the website. The images and video clips
. . . depicted prepubescent minors engaged in different sexual
activities, . . . genitalia of nude minors, . . . [and] child
erotica. . . .
From January 2, 2001 through February 6, 2001, SA Binney received
approximately 498 e-mail messages from the Candyman Egroup, most of
which contained images of child pornography or child erotica or
information concerning those subjects or the operation of the
Egroup. During this period, SA Binney received a total of
approximately 183 child erotica images and 105 child pornography
images through these e-mails.
Id.
7
“The ‘Links’ section allowed users to post the URLs for new websites
containing similar content.” Id.
14
overriding reason someone would join this group was to permit him
to receive and trade child pornography. We agree with the district
court that it is common sense that a person who voluntarily joins
a group such as Candyman, remains a member of the group for
approximately a month without cancelling his subscription, and uses
screen names that reflect his interest in child pornography, would
download such pornography from the website and have it in his
possession.
The statement in the affidavit that all members automatically
received e-mails certainly improved the government’s case that
Froman had in his possession child pornography that he had received
from Candyman e-mails. We are satisfied, however, that even
without this statement, there is probable cause for issuance of the
warrant.
Appellant essentially argues in the abstract that without
evidence of actual possession of contraband, probable cause does
not exist. We decline to adopt such a universal rule. All we need
decide in this case is that given the predominant purpose of this
group to engage in collection and distribution of child pornography
and the fact specific evidence of Froman’s voluntary membership in
that group and his interest in child pornography, the affidavit was
sufficient to establish probable cause even when we excise the
disputed material.
III.
15
In his appellate brief Froman argues that the evidence is
insufficient to support the court’s finding of guilt. The request
for relief is based upon an announced dearth of evidence provided
the fruits of the contested search are suppressed. Yet appellant
acknowledges that if the motion to suppress is denied then there is
sufficient evidence for a conviction. See Appellant Br. at 28.
Therefore, by appellant’s own admission, our refusal to suppress
the evidence of the FBI search precludes relief on this argument.
IV.
Appellant next challenges the district court’s upward
departure for both procedural and substantive errors.
At sentencing the district court determined that Froman would
receive a base offense level of twenty-seven under U.S. Sentencing
Guideline Manual § 2G2.1, Sexually Exploiting a Minor by Production
of Sexually Explicit Visual or Printed Material. The court gave a
two level enhancement under § 2G2.1 because one of his victims was
between ages twelve and sixteen, and a two level enhancement for
the fact that Froman was the parent of one of the exploited
victims, resulting in an offense level of thirty-one. That offense
level combined with his criminal history category carried a
guideline range of 108-135 months. Two days before sentencing, the
Government moved for an upward departure based upon the existence
of aggravating circumstances not contemplated by the guidelines
16
under § 5K2.0 and that there was extreme conduct by the defendant
under § 5K2.8. On December 20, 2002, at the sentencing hearing,
the court granted the motion for upward departure and increased the
offense level to thirty-four, resulting in a guideline range of
151-180 months. The judge sentenced Froman to the maximum 180
months:
Counsel for the government has identified a factor that
may warrant departure, and the court agrees that it does
form the basis for an upward departure.
The court has applied the cross-reference to United
States Sentencing Guidelines Section 2G2.1 as a result of
the defendant’s production of a visual depiction of a
minor engaged in sexually explicit conduct. This
guideline accounts for a one-time production of a visual
depiction.
The evidence identified by the Federal Bureau of
Investigation and stipulated to by this defendant during
his bench trial included a video tape of this defendant
engaged in sexually explicit conduct, including sexual
intercourse with his then 12-year-old daughter.
In addition, agents seized from Froman’s residence
numerous still photographic child pornographic images of
his minor daughter. Interpol agents have informed the
FBI that in excess of 500 child pornographic images of
Froman’s minor daughter are inundating the European child
pornography black market.
Pursuant to the United States Sentencing Guideline
Section 5K2.8 the Court is authorized to depart if the
defendant’s conduct was unusually heinous, cruel, brutal
or degrading to the victim.
The circulation of these images over the Internet
provides a greater harm than what is captured in the
guidelines. Each time the Internet user downloads, views
or further distributes the pornographic images of this
minor victim, this results in the prolonged victimization
of this child.
Therefore, the Court will depart upward and I adopt
the argument of the Government in terms of the amount to
adopt upward.
17
Appellant challenges the upward departure arguing that the
basis for the upward departure did not place the case outside the
“heartland” of cases under § 2G2.1, and that the court failed to
notify Froman of its intention to depart upward. Neither argument
has merit, and we therefore uphold the district court’s sentencing
determination.
Appellant’s charge that the lower court erred in failing to
notify the defendant of its intention to depart upward is baseless.
The district court is not required to provide notice of the
possibility of departure where the opposing party has so moved.
See Burns v. United States, 501 U.S. 129, 138-39 (1991).8 The
Burns holding has since been codified at Fed. R. Crim. P. 32(h).
The government moved for upward departure two days before
sentencing. Therefore, the district court was not required to
provide additional notice.
Froman’s substantive objection to the departure is also
unpersuasive. In determining whether departure is appropriate
district courts must ask:
“1) What features of this case, potentially, take it
outside the Guidelines' 'heartland' and make of it a
special, or unusual, case?
2) Has the Commission forbidden departures based on those
8
“We hold that before a district court can depart upward on a ground not
identified as a ground for upward departure either in the presentence report or
in a prehearing submission by the Government, Rule 32 requires that the district
court give the parties reasonable notice that it is contemplating such a ruling.”
Burns, 501 U.S. at 138-39 (emphasis added).
18
features?
3) If not, has the Commission encouraged departures based
on those features?
4) If not, has the Commission discouraged departures
based on those features?”
Koon v. United States, 518 U.S. 81, 95 (1996) (quoting United
States v. Rivera, 994 F.2d 942, 949 (1st Cir. 1993)). Where a
factor for departure is forbidden by the guidelines there can be no
departure; where a factor is discouraged departure will only occur
in the most exceptional cases. Id. at 96. If, however, the factor
considered is not mentioned by the guidelines, departure is
acceptable where, “after considering the structure and theory of
both relevant individual guidelines and the Guidelines taken as a
whole, [a court] decide[s] [the factor] is sufficient to take the
case out of the Guideline’s heartland.” Id. (internal quotation
marks omitted).
In this case the number of images transmitted and the extent
of the distribution of images of Froman’s twelve-year-old daughter
were considered particularly heinous aspects of the crime and thus
factors that place this case outside the heartland of general child
pornography cases. The sentencing commission has neither forbidden
nor discouraged consideration of such factors. Rather the
extremity of the conduct is a factor sentencing courts are
authorized to consider under § 5K2.8. Furthermore, the degrading
effect on Froman’s daughter from the mass distribution of these
19
images is not contemplated by § 2G2.1. In fact this Court has at
least once allowed for upward departure based in part upon the
volume of pornographic materials possessed. See United States v.
Tampico, 297 F.3d 396, 402 (5th Cir. 2002) (previous 5th Cir.
decision accompanying order of remand by the Supreme Court)
(reversed and remanded on other grounds). Finally, the moderate
upward departure of 3 levels is measured and fair.
Under the standard of review set out in 18 U.S.C.
§ 3742(e),9 we find no error in the district court’s decision to
depart upward.10 As such we decline to disturb the sentence
imposed.
V.
For the reasons stated above we affirm Froman’s conviction and
9
The court of appeals shall give due regard to the opportunity of the
district court to judge the credibility of the witnesses, and shall
accept the findings of fact of the district court unless they are
clearly erroneous and, except with respect to determinations under
subsection (3)(A) or (3)(B), shall give due deference to the
district court’s application of the guidelines to the facts. With
respect to determinations under subsection (3)(A) or (3)(B), the
court of appeals shall review de novo the district court’s
application of the guidelines to the facts.
18 U.S.C. § 3742(e); see also United States v. Bell, No. 03-20194, slip op. (5th
Cir. Nov. 20, 2003).
10
Froman further argues that there was no evidence that he was the one that
distributed the pictures of his daughter. Factual bases for sentencing need only
be shown by a preponderance of the evidence and are reviewed for clear error. See
United States v. McKinney, 53 F.3d 664, 677 (5th Cir. 1995). Here, the fact that
these images Froman created were found widely distributed throughout Europe’s
black markets supports the inference that Froman at least initially distributed
the video which he could foresee would be widely distributed. Froman’s bald
denial does not undermine the district court’s factual finding.
20
sentence.
AFFIRMED.
21