IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 29, 2009
No. 08-40545
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
HARRISON JACK HAVENS, JR
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:07-CR-36-1
Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Harrison Jack Havens, Jr., was convicted in a bench trial of one count of
transporting and shipping child pornography and of four counts of possession of
child pornography. He was sentenced to one 210-month term of imprisonment
and to four concurrent 120-month terms. Havens now appeals his convictions
and his sentences.
*
Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
No. 08-40545
Havens was initially indicted in state court on charges of possession of
child pornography. The charges were based on evidence seized at Havens’s
residence during execution of a search warrant. The state trial court granted
Havens’s motion to suppress evidence, and Havens was subsequently indicted
on federal charges, which were also based on the evidence obtained pursuant to
the search warrant.
Havens argues that the district court erred in overruling his motion to
dismiss the indictment. Relying on Elkins v. United States, 364 U.S. 206 (1960),
he contends that evidence seized during execution of the search warrant cannot
be used against him in a federal prosecution because a state court has
determined that such evidence was obtained in violation of state law. Havens
misunderstands Elkins, which rejected the “silver platter” doctrine and held that
a federal agent may not prosecute a defendant by using evidence obtained by
state officers in violation of the federal Constitution. See Elkins, 364 U.S. at
223-24. This court has refused to extend the Elkins principle to evidence
obtained in violation of a state statute or constitution. See United States v.
Eastland, 989 F.2d 760, 765-66 (5th Cir. 1993). Havens has not shown that the
district court erred in overruling his motion to dismiss the indictment.
Next, Havens argues that the district court erred in denying his motion to
suppress. He contends that the district court should not have applied the good-
faith exception to the warrant requirement because the affidavit supporting the
search warrant contained deliberate or reckless misstatements regarding the
issuance of a “Grand Jury subpoena.”
The good-faith exception to the exclusionary rule provides that “evidence
obtained by officers in objectively reasonable good-faith reliance upon a search
warrant is admissible, even though the affidavit on which the warrant was based
was insufficient to establish probable cause.” United States v. Satterwhite, 980
F.2d 317, 320 (5th Cir. 1992). If the warrant was issued in reliance on a
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No. 08-40545
deliberate or reckless material misstatement, the good-faith exception will not
apply. United States v. Alvarez, 127 F.3d 372, 373 (5th Cir. 1997).
The evidence shows that the affiant, a law enforcement officer with four
years experience, issued the “Grand Jury subpoena” to America Online (AOL),
with whom Havens had an email account, in cooperation with an attorney in the
Texas Attorney General’s Office. Viewing the evidence in the light most
favorable to the prevailing party, see United States v. Laury, 985 F.2d 1293, 1314
(5th Cir. 1993), we cannot conclude that the district court clearly erred in its
determination that the affiant did not deliberately or recklessly mislead the
magistrate. See United States v. Alvarez, 127 F.3d 372, 373-75. Moreover, the
challenged statements, which concern the issuance of the subpoena to AOL, were
not material to the magistrate’s probable cause determination. See United
States v. Namer, 680 F.2d 1088, 1094 (5th Cir. 1982). In view of the foregoing,
Havens has not shown that the district court erred in applying the good faith
exception.
Finally, Havens argues that the district court erred by imposing a five-
level enhancement under to U.S.S.G. § 2G2.2(b)(7)(D) based on the number of
images of child pornography he possessed. He notes that there was evidence at
trial that some of the images he possessed were duplicates.
Here, the Presentence Report (PSR) stated that Havens possessed eight
videos, which count as 75 images each, and 337 still images, for a total of 937
images. See § 2G2.2(b)(7)(D), comment. (n.4(B)). It is the defendant’s burden to
rebut the information contained in the PSR. United States v. Solis, 299 F.3d
420, 455 (5th Cir. 2002). “Mere objections do not suffice as competent rebuttal
evidence.” Id. (quotations and citation omitted). Havens did not come forward
with any evidence at sentencing. He has not shown error on the part of the
district court.
AFFIRMED.
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