PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 10-4689
JOHN CHARLES WELLMAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Bluefield.
Thomas E. Johnston, District Judge.
(1:08-cr-00043-1)
Argued: October 28, 2011
Decided: December 7, 2011
Before KEENAN and WYNN, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by published opinion. Judge Keenan wrote the opin-
ion, in which Judge Wynn and Senior Judge Hamilton joined.
COUNSEL
ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Charleston, West Virginia, for Appel-
lant. J. Christopher Krivonyak, OFFICE OF THE UNITED
STATES ATTORNEY, Charleston, West Virginia, for Appel-
2 UNITED STATES v. WELLMAN
lee. ON BRIEF: Mary Lou Newberger, Federal Public
Defender, David R. Bungard, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant. R.
Booth Goodwin II, United States Attorney, Charleston, West
Virginia, for Appellee.
OPINION
BARBARA MILANO KEENAN, Circuit Judge:
John Charles Wellman was convicted in a jury trial of three
offenses related to his possession of child pornography. He
raises three challenges in this appeal. Wellman argues that the
search warrant that led to his arrest was invalid, that a jury
instruction involving the term "obscene" was erroneous
because it lacked a knowledge requirement, and that his sen-
tence was imposed in violation of the Eighth Amendment pro-
hibition against cruel and unusual punishment. Upon our
review of these issues, we affirm Wellman’s convictions and
sentences.
I.
On March 14, 2007, Corporal D.C. Eldridge, a member of
the West Virginia State Police assigned to the Internet Crimes
Against Children Task Force (the Task Force), received a
spreadsheet generated by the Wyoming Division of Criminal
Investigation Task Force. This spreadsheet contained a list of
entries purporting to identify instances in which child pornog-
raphy had been transmitted over the Gnutella computer file
sharing network.1 The allegedly pornographic files were not
1
The Gnutella computer file sharing network allows users who have
installed certain client applications on their personal computers to down-
load a copy of each others’ digital files. This "peer-to-peer" (computer to
computer) system allows individuals to transfer files over the Internet
without the use of a centralized server.
UNITED STATES v. WELLMAN 3
identified by name, type, or description, but by hash value.2
Each entry on the spreadsheet contained a hash value for a
digital file, the Internet Protocol (IP) address3 of the computer
offering the file for download, the locality in which that com-
puter operated, the time and date the file was observed, and
the officer from the Task Force who identified the file, as well
as his or her law enforcement agency.
Corporal Eldridge focused on one IP address from Blue-
field, West Virginia on the spreadsheet that was alleged to
have hosted five different digital files of suspected child por-
nography. Using the American Registry of Internet Numbers
web site, Eldridge determined that the IP address was
assigned to Comcast Corporation (Comcast) and secured an
order from a West Virginia state court to obtain the subscriber
information associated with that IP address. Comcast identi-
fied the subscriber as John Wellman, whose address was
located on Walters Avenue in Bluefield, West Virginia.
Using this information, Eldridge conducted a driver’s
license inquiry and confirmed that a John Wellman was listed
at the address provided by Comcast. Wellman’s name,
address, and telephone number also were corroborated by a
background report from the West Virginia Intelligence
Exchange database. That database further indicated that Well-
man previously had been convicted of first degree sexual
abuse in 1987 (the abuse conviction), a felony.
2
A "hash value" is an alphanumeric string that serves to identify an indi-
vidual digital file as a kind of "digital fingerprint." Although it may be
possible for two digital files to have hash values that "collide," or overlap,
it is unlikely that the values of two dissimilar images will do so. United
States v. Cartier, 543 F.3d 442, 446 (8th Cir. 2008). In the present case,
the district court found that files with the same hash value have a 99.99
percent probability of being identical.
3
An IP address is a numerical label that is assigned to each device (e.g.,
computer, printer) participating in a computer network that uses the Inter-
net Protocol for communication.
4 UNITED STATES v. WELLMAN
Upon receipt of this information, Eldridge contacted the
West Virginia Criminal Identification Bureau and confirmed
Wellman’s abuse conviction. Eldridge also confirmed with
the West Virginia State Police Sex Offender Registration Sec-
tion that Wellman had not registered with the West Virginia
State Police as a sex offender, as required by state law.
Eldridge next obtained and reviewed an abstract of the
indictment that led to Wellman’s abuse conviction. That
abstract indicated that Wellman’s victim was a seven-year-old
male child, and that Wellman had used physical force to com-
pel the child to submit to sexual intercourse.
Using all this information, Eldridge assembled a 24-page
application for a search warrant of the Walters Avenue resi-
dence. In the warrant application, Eldridge acknowledged that
neither he nor the investigators who conducted the peer-to-
peer searches over the Gnutella network possessed supporting
documentation regarding the content of the digital files sus-
pected of being child pornography. As paragraph 21(c) of
attachment D of the application explained:
The information in [the spreadsheet] is believed to
be accurate, but no supporting documentation (i.e.
downloads of child pornographic files from the sus-
pect computers) was collected by the investigating
officers during these searches of the Gnutella net-
works.
Therefore, the warrant application contained neither an exem-
plar of an allegedly offending image nor any description of
such an image. Ultimately, a state circuit court judge signed
each page of the application, concluded that there was proba-
ble cause to conduct a search of Wellman’s home, and issued
the search warrant.
The West Virginia State Police executed the warrant and
conducted a search of Wellman’s home. Wellman, who was
UNITED STATES v. WELLMAN 5
present during the search, voluntarily produced a DVD con-
taining images of child pornography and admitted that other
such images were stored in his home on computer "hard
drives" and in other electronic formats.
Following his arrest, Wellman was indicted in the United
States District Court for the Southern District of West Vir-
ginia on three counts relevant to this appeal: (1) receiving a
visual depiction of a minor engaging in sexually explicit con-
duct that is obscene and had been transported in interstate
commerce, in violation of 18 U.S.C. § 1466A(a); (2) receiv-
ing obscene visual representations of the sexual abuse of chil-
dren while being required by federal and state law to register
as a sex offender, in violation of 18 U.S.C. § 2260A; and (3)
knowingly possessing images and videos of child pornogra-
phy that had been transported in interstate commerce, in vio-
lation of 18 U.S.C. § 2252A(a)(5)(B).
Wellman moved to suppress the evidence obtained from the
search of his home, arguing that the warrant application was
insufficient, and that the issuing judge acted merely as a "rub-
ber stamp." After the district court denied the motion, Well-
man was tried by a jury and convicted on all three counts.
The district court sentenced Wellman to a total term of 300
months’ imprisonment. He received concurrent sentences of
180 months on Counts One and Three, and a sentence of 120
months on Count Two, to be served consecutively with the
other two sentences, as mandated by 18 U.S.C. § 2260A.
Wellman later filed a motion challenging his sentence with
respect to Count Two, arguing that it violated the Eighth
Amendment’s prohibition on cruel and unusual punishment.
The district court denied his motion, and Wellman now
appeals.
II.
Wellman raises three issues on appeal. First, he contends
that the district court erred in denying his motion to suppress
6 UNITED STATES v. WELLMAN
evidence seized in the search of his home. Second, Wellman
asserts that the district court gave the jury an erroneous
instruction that failed to include a knowledge requirement
regarding the obscene nature of the sexually explicit material
at issue in Count One. Third, Wellman argues that the district
court’s imposition of a 10-year sentence with respect to Count
Two violates the Eighth Amendment. We address these argu-
ments in turn.
A.
Wellman asserts that the search warrant authorizing the
search of his home was defective, because the warrant appli-
cation failed to include either an exemplar or a description of
an image alleged to be child pornography. He contends that
in the absence of such information, the application merely
contained the officers’ conclusions that the material sought
constituted child pornography. According to Wellman, this
defect in the warrant application precluded the reviewing
judge from making an independent probable cause determina-
tion.
We review de novo the district court’s denial of Wellman’s
motion to suppress. United States v. Rusher, 966 F.2d 868,
873 (4th Cir. 1992). However, we reach our determination
mindful of the principle that a judicial officer’s determination
of probable cause customarily is accorded "great deference"
by reviewing courts. Illinois v. Gates, 462 U.S. 213, 236
(1983).
In determining whether there was probable cause to believe
that Wellman’s house contained images of child pornography
at the time the warrant was issued, the relevant question is
whether the known facts and circumstances were sufficient
such that a person of reasonable prudence could conclude that
the described evidence would be found in that particular
place. United States v. Perez, 393 F.3d 457, 461 (4th Cir.
2004). The probable cause standard "is not defined by bright
UNITED STATES v. WELLMAN 7
lines and rigid boundaries" but "allows a [judicial officer] to
review the facts and circumstances as a whole and make a
common sense determination" whether there is a fair proba-
bility that evidence of a crime will be found. United States v.
Grossman, 400 F.3d 212, 217 (4th Cir. 2005).
We decline to impose a requirement that a search warrant
application involving child pornography must include an
image of the alleged pornography. See United States v. Bat-
tershell, 457 F.3d 1048, 1052 (9th Cir. 2006) (citing New
York v. P.J. Video, Inc., 475 U.S. 868, 874 n.5 (1986)). While
the inclusion of such material certainly would aid in the prob-
able cause determination, we do not impose a fixed require-
ment or a bright-line rule, because law enforcement officers
legitimately may choose to include a variety of information
when submitting a search warrant application. Instead, when
considering the merits of a judicial officer’s probable cause
determination, we will review a search warrant application in
its entirety to determine whether the application provided suf-
ficient information to support the issuance of the warrant. See
Grossman, 400 F.3d at 217.
Based on the present record, however, we need not reach
the merits of the question whether the warrant application
before us sufficiently supported the judge’s probable cause
determination. Instead, we will assume, without deciding, that
the content of the warrant was insufficient to support a finding
of probable cause. Upon our review, we conclude that the evi-
dence seized from Wellman’s home pursuant to the search
warrant was not subject to suppression, because the record
shows that the West Virginia State Police relied in good faith
on the issued search warrant. United States v. Leon, 468 U.S.
897, 926 (1984).
In its decision in Leon, the Supreme Court instructed that
a reviewing court should not suppress evidence discovered
"under the authority of a warrant, even a subsequently invali-
dated warrant, unless a reasonably well trained officer would
8 UNITED STATES v. WELLMAN
have known that the search was illegal despite the [judicial
officer’s] authorization." United States v. Bynum, 293 F.3d
192, 195 (4th Cir. 2002) (citing Leon, 468 U.S. at 922 n.23)
(quotation marks omitted). This "good faith" exception will
be applied except in four limited situations: (1) when the affi-
ant based his application on knowing or reckless falsity; (2)
when the judicial officer wholly abandoned his role as a neu-
tral and detached decision maker and served merely as a "rub-
ber stamp" for the police; (3) when the affidavit supporting
the warrant was so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable;
and (4) when the warrant was so facially deficient that the
executing officers could not reasonably have presumed that
the warrant was valid. United States v. Doyle, 650 F.3d 460,
467 (4th Cir. 2011) (quoting United States v. DeQuasie, 373
F.3d 509, 519-20 (4th Cir. 2004)).
According to Wellman, the state circuit court judge review-
ing the warrant application acted as a "rubber stamp" by issu-
ing a search warrant without sufficient information and,
therefore, the Leon good faith exception is inapplicable. We
find no merit in this argument.
The record before us shows that when the judge approved
the search warrant, he did not act as a "rubber stamp" or aban-
don his role as a neutral and detached decision maker. More-
over, as we explained in Doyle, an allegation that a search
warrant application contained grossly insufficient information
is best analyzed under the third Leon exclusion. Doyle, 650
F.3d at 470 (distinguishing United States v. Wilhelm, 80 F.3d
116, 121-23 (4th Cir. 1996)). We therefore review the evi-
dence under the third Leon exclusion to determine whether
the warrant application was so lacking in indicia of probable
cause as to render official belief in its existence entirely
unreasonable. See Doyle, 650 F.3d at 467.
In conducting this review, we observe that Corporal
Eldridge’s affidavit bears many of the indicia of a strong
UNITED STATES v. WELLMAN 9
search warrant application. Eldridge provided information in
the application regarding his background as an investigator,
which established his experience in dealing with crimes
involving child pornography. He set forth a thorough explana-
tion of the technology employed by the Task Force and how
that technology was used to identify Wellman. Rather than
relying exclusively on the information provided by the
spreadsheet and Comcast, Eldridge performed additional
research into Wellman’s background to provide corroboration
and to minimize the possibility of mistake or confusion. Fur-
ther, the dates provided in the search warrant application dem-
onstrate that the affidavit was not a hastily-assembled
document based on a single tip, but was the product of a six-
week investigation. Upon examining the totality of this infor-
mation before the issuing judge, we conclude that the affidavit
supporting the warrant was not so lacking in indicia of proba-
ble cause as to render official belief in its existence entirely
unreasonable. Therefore, upon application of the Leon analy-
sis, we hold that the district court did not err in denying Well-
man’s motion to suppress.
B.
Wellman next argues that the district court’s instruction
regarding Count One was erroneous because the instruction
did not contain a knowledge requirement. He asserts that the
jury should have been instructed that the government was
required to prove beyond a reasonable doubt that Wellman
knew that the images of the minors engaged in sexually
explicit conduct were obscene. We disagree with this argu-
ment.
The fatal flaw in Wellman’s argument is his attempt to
graft a subjective, fact-based knowledge requirement onto an
objective legal standard. The statute under which Wellman
was convicted provides, in relevant part:
Any person who . . . knowingly produces, distrib-
utes, receives, or possesses with intent to distribute,
10 UNITED STATES v. WELLMAN
a visual depiction of any kind, including a drawing,
cartoon, sculpture, or painting, that—
(A) depicts a minor engaging in sexually
explicit conduct; and
(B) is obscene . . .
shall be subject to the penalties provided in section
2252A(b)(1), including the penalties provided for
cases involving a prior conviction.
18 U.S.C. § 1466A(a).
The term "obscene," as used in statutes of this type, refers
to an objective, legal standard, not to an issue of fact. The
Supreme Court explained this distinction in Hamling v.
United States, 418 U.S. 87 (1974), a case involving a prosecu-
tion under 18 U.S.C. § 1461 for the mailing of, and conspiring
to mail, an obscene brochure containing sexually explicit pho-
tographs. The Court explicitly rejected the defendants’ argu-
ment that the government was required to prove that the
defendants knew that the mailed materials were obscene. The
Court emphasized that:
It is constitutionally sufficient that the prosecution
show that a defendant had knowledge of the contents
of the materials he distributed, and that he knew the
character and nature of the materials. To require
proof of a defendant’s knowledge of the legal status
of the materials would permit the defendant to avoid
prosecution by simply claiming that he had not
brushed up on the law. Such a formulation of the
scienter requirement is required neither by the lan-
guage of [the statute] nor by the Constitution.
418 U.S. at 123-24.
UNITED STATES v. WELLMAN 11
Contrary to Wellman’s suggestion, the Hamling analysis is
not affected by the Supreme Court’s later decision in United
States v. X-Citement Video, Inc., 513 U.S. 64 (1994). There,
the Supreme Court considered a prosecution brought under 18
U.S.C. § 2252(a), which alleged the transportation or ship-
ment of materials containing depictions of minors engaging in
sexually explicit conduct. That statute provided, in relevant
part:
Any person who —
(1) knowingly transports or ships in inter-
state or foreign commerce by any means
including by computer or mails, any visual
depiction, if —
(A) the producing of such visual depic-
tion involves the use of a minor
engaging in sexually explicit conduct;
and
(B) such visual depiction is of such con-
duct;
(2) knowingly receives, or distributes, any visual
depiction that has been mailed, or has been shipped
or transported in interstate or foreign commerce, or
which contains materials which have been mailed or
so shipped or transported, by any means including
by computer, or knowingly reproduces any visual
depiction for distribution in interstate or foreign
commerce or through the mails, if —
(A) the producing of such visual depic-
tion involves the use of a minor
engaging in sexually explicit conduct;
and
12 UNITED STATES v. WELLMAN
(B) such visual depiction is of such conduct;
...
shall be punished as provided in subsection (b) of
this section.
18 U.S.C. § 2252(a) (1988 & Supp. V).
The Supreme Court concluded that, among other things, the
term "knowingly" imposed a scienter requirement with regard
to factual issues involving the age of the persons depicted and
whether the material at issue was sexually explicit. 513 U.S.
at 78. Thus, the Court held that under the statute, the govern-
ment was required to prove that the defendants knew that per-
sons appearing in the materials at issue were "minor[s]," and
that the conduct depicted was "sexually explicit." See id.
Notably, however, the Court in X-Citement Video did not
apply a knowledge requirement to any legal standard. This
distinction is critical, as the Court’s analysis in Hamling illus-
trates. Under that analysis, a defendant’s knowledge of the
law is not a relevant consideration in a prosecution involving
the distribution of allegedly obscene materials. 418 U.S. 123-
24. Thus, we conclude that the district court did not give the
jury an erroneous instruction on this issue, because the jury
was not required to find that Wellman knew that the images
at issue were obscene.
C.
Finally, we consider Wellman’s argument addressing the
length of his sentence. He asserts that the length and consecu-
tive nature of his ten-year sentence with respect to Count Two
constitute a de facto life sentence given his age of 68 years.
He contends that, therefore, his sentence on Count Two is
unconstitutionally disproportionate. We disagree with Well-
man’s argument.
UNITED STATES v. WELLMAN 13
The Eighth Amendment to the Constitution of the United
States bans, among other things, "cruel and unusual punish-
ments." U.S. Const. amend. VIII. In applying the Eighth
Amendment to such a claim, an appellate court decides only
whether the sentence under review is within constitutional
limits. Solem v. Helm, 463 U.S. 277, 290 n.16 (1983).
In Solem, the Supreme Court instructed that reviewing
courts should "grant substantial deference to the broad author-
ity that legislatures necessarily possess in determining the
types and limits of punishments for crimes . . . ." Id. at 290.
Thus, appellate courts only "rarely will be required to engage
in extended analysis to determine that a sentence is not consti-
tutionally disproportionate." Id. at 290 n.16; see also Hutto v.
Davis, 454 U.S. 370, 374 (1982) (stating that "successful
challenges to the proportionality of particular sentences
should be exceedingly rare") (quotation marks omitted). As
one of our sister circuits colorfully stated, the instances of dis-
proportionate sentences resulting in an Eighth Amendment
violation will be "hen’s-teeth rare." United States v. Polk, 546
F.3d 74, 76 (1st Cir. 2008).
We are not confronted here with a disproportionate sen-
tence of constitutional magnitude. And, as we observed in
United States v. Rhodes, 779 F.2d 1019, 1028 (4th Cir. 1985),
extensive proportionality analyses are only required in those
cases involving life sentences without the possibility of
parole. In contrast, other lesser sentences that are clearly
within the prerogative of Congress and subject to imposition
by a district court may be disposed of swiftly. Id.
In Solem, the Supreme Court employed a three-part test
using objective factors to gauge the proportionality of sen-
tences for purposes of Eighth Amendment compliance: (1) the
gravity of the offense and the harshness of the penalty; (2) the
sentences imposed on other criminals in the same jurisdiction;
and (3) the sentences imposed for commission of the same
crime in other jurisdictions. 463 U.S. at 292. Because the
14 UNITED STATES v. WELLMAN
crime in this case, like the crime reviewed in Rhodes, involves
the violation of a federal statute, the last two elements col-
lapse into a single element. See Rhodes, 779 F.2d at 1029.
The harshness of Wellman’s penalty reflects the gravity of
his crimes. Wellman received and possessed images depicting
the sexual abuse of some of the most vulnerable members of
our society. Children, as the subject of these images, undeni-
ably suffer serious harm when they are used to create this type
of material. Additionally, Wellman’s failure to obey the statu-
tory requirement that he register as a sex offender demon-
strated an attempt to evade the law and the protections
Congress established for the communities in which such
offenders reside.
Ultimately, however, as the district court correctly noted,
the severity of Wellman’s sentence was based on his recidi-
vism. See Ewing v. California, 538 U.S. 11, 25 (2003)
("Recidivism has long been recognized as a legitimate basis
for increased punishment.") In 1987, Wellman was convicted
of sexual abuse in the first degree for his use of force in
coercing a seven-year-old child to engage in sexual inter-
course with him. In recidivist situations like the one before us,
Congress is well within its authority to provide for enhanced
sentences.
The ten-year sentence for Count Two also is proportional
to other sentences for violations of 18 U.S.C. § 2260A,
because this sentence is mandated by statute. Thus, we con-
clude that Wellman’s consecutive sentence for his conviction
on Count Two does not violate the Eighth Amendment.
III.
For these reasons, we affirm the district court’s judgment.
AFFIRMED