United States v. Froman

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