United States Court of Appeals For the First Circuit

Nos. 18-1924, 18-1985

UNITED STATES OF AMERICA,

Appellee,

v.

BRYAN LARSON,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Timothy S. Hillman, U.S. District Judge]

Before

Lynch, Circuit Judge, Souter, Associate Justice, and Lipez, Circuit Judge.

Benjamin L. Falkner, with whom Krasnoo, Klehm & Falkner LLP was on brief, for appellant. Alexia R. De Vincentis, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, and Matthew D. Kim, Harvard Law School, were on brief, for appellee.

February 28, 2020

 Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation. SOUTER, Associate Justice. Defendant Bryan Larson

pleaded guilty to possession of child pornography in violation of

18 U.S.C. § 2252A(a)(5), but reserved his right to appeal the

district court's denials of his motions to suppress and for a

hearing pursuant to Franks v. Delaware,

(1978). He

now appeals those denials. We affirm.

I

On June 11, 2015, a magistrate judge issued a warrant to

search a residence at 11 Manchaug Street, in Douglas,

Massachusetts. The warrant was based on an affidavit sworn by

Homeland Security Investigations Special Agent Edward Bradstreet.

The affidavit stated that on May 29, an investigator

with the Royal Canadian Mounted Police (RCMP) was reviewing

accounts on the website http://imgsrc.ru, a Russia-based image

hosting site known to contain sexually suggestive images of minor

children. The investigator noticed that an individual with the

username "ilovemackenzie" had posted three photo albums entitled

"Kenzie"; "my toy"; and "new and nice". The "Kenzie" album

contained 15 non-pornographic images of a prepubescent female who

appeared to be around five years old and three images of the same

female with a prepubescent male. The "my toy" album contained 26

images of what the affidavit characterized as a "life-like infant

torso with a vagina and anus." In about a dozen of these

- 2 - photographs, the torso was shown beneath or being penetrated by an

erect adult penis. Some photographs showed the "torso" partially

clothed with children's Cinderella underwear. The "new and nice"

album contained five non-pornographic images of children who

appeared to be less than five years old.

The RCMP investigator sent the following message from an

undercover email account to an email address displayed on

"ilovemackenzie"'s account: "I would like to trade with you! Here

is a little video of my 9 year old daughter!" and included a link.

From a different undercover account, the investigator sent the

user another message: "Here is a little something........ I am

into girls no boy shit please," followed by eight links containing

URLs similar to this: www.myvirtualfolder.com/ main.php?pthc-2015

the beautiful amanda.avi001. Agent Bradstreet stated in the

affidavit that, based on his training and experience, he knew

"pthc" stood for "preteen hard core." The URLs linked to an RCMP-

controlled website designed to capture the Internet Protocol (IP)

address of the person attempting access. Over the next few days,

an individual with the IP address 24.151.90.79 attempted to gain

access to the links on eleven separate occasions.

On June 1, the Department of Homeland Security (DHS)

issued a summons to Charter Communications, Inc. for the subscriber

information associated with the IP address mentioned above. This

information, along with more uncovered from a Registry of Motor

- 3 - Vehicles records search, led Agent Bradstreet to focus on 11

Manchaug Street in Douglas, Massachusetts, a two-unit residence

occupied by a woman, to whom the IP address was assigned, and Bryan

Larson. A search of the Massachusetts Sex Offender Registry

revealed that Larson was a Level 2 sex offender, having been

convicted of statutory rape of two children in 1994.

Agent Bradstreet sought a warrant to search Larson's

residence and to seize evidence of the crimes of attempted receipt

and attempted possession of child pornography, 18 U.S.C.

§ 2252A(a)(2)(A), (a)(5)(B). Agents executing the warrant found

digital files containing images and videos of child pornography on

Larson's computers.

Larson filed a motion to suppress the evidence obtained

from the search of his residence and, in the alternative, for a

hearing under the rule in Franks v. Delaware,

(1978).

After the district court had denied both motions, Larson entered

the conditional guilty plea. The district court sentenced him to

138 months imprisonment.

II

The defendant's exercise of his reserved appeal rights

includes two challenges to the validity of the search and

admissibility of the evidence obtained: 1) that he has made an

adequate showing that the warrant was issued on the basis of an

affidavit containing a knowingly false or reckless description of

- 4 - the images in the "my toy" album, so that under the Franks rule,

it was error to deny him a hearing to demonstrate the warrant's

consequent invalidity; and 2) that in the absence of the

misstatements claimed (and even on the assumption of their truth)

the affidavit supporting the warrant application failed to provide

probable cause to believe that a search of Larson's home and the

computers kept there would reveal evidence that he had attempted

to obtain or possess child pornography. We find no merit in either

claim.1

As to the former, a Franks hearing is warranted only

"where the defendant makes a substantial preliminary showing that

a false statement knowingly and intentionally, or with reckless

disregard for the truth, was included by the affiant in the warrant

affidavit, and if the allegedly false statement is necessary to

the finding of probable cause."

. The focus

of Larson's request for a Franks hearing was the agent's

description of the female child figure in the "my toy" photos as

1Larson raised two other issues requiring no extended consideration. He argues that the warrant was "overbroad" because probable cause to believe that the premises held evidence of attempt does not authorize search or seizure of evidence of the completed crime. But evidence of completion is competent evidence of attempt. He also asserts that the good faith exception, see United States v. Leon,

(1984), is inapplicable here. But because we hold that probable cause was adequately made out, no issue of good faith reliance can arise.

- 5 - a "life-like infant torso." The defendant argues that the

photographs, not submitted with the warrant application but

produced in the district court suppression hearing, show that none

of those three terms was fairly descriptive. His claim here is

not that the affidavit falsely claimed that an actual child was

shown; the photos were in the "my toy" album and the agent's

characterization of the figure shown as "life-like" make it

apparent that the affiant was referring to the image of a doll or

a sex toy.

Like the district court, we have examined the pictures

in question, and we think the agent's quoted reference to them was

unexceptional. They show the lower torso, front and back, of an

obviously female figure. The fact that they depict only the

genital area and buttocks does not render the affidavit's reference

simply to "torso" misleading in this legal context. Nor does the

fact that they show the skin of the female figure by less than a

perfect simulation of a young child's flesh leave the overall

description of "life-like" misleading; toys are not understood to

include replications of the texture of a young human body that

would fool an adult observer. Finally, the agent's identification

of the toy figure as an "infant" was most obvious in several

pictures that show an erect penis positioned across the center of

the buttocks, which appears proportionally diminutive. We note

also that, in several photographs, the toy is depicted next to

- 6 - children's Cinderella underwear. In sum, there is no serious

argument that the affidavit contained "egregious

misrepresentations" sufficient to "necessitat[e] a Franks hearing"

to attack the warrant application, let alone to render the warrant

invalid owing to any misrepresentation. United States v. Santana,

(1st Cir. 2003).

The defendant's second claim fares no better: that even

when the "my toy" testimony is considered, there was no showing to

the level of probable cause to believe that his house and computers

kept there would contain evidence of attempts to obtain and to

possess forbidden child pornography. To be sure, possession of

the "my toy" photos was not subject to prosecution, since their

subject was not an actual child. See Ashcroft v. Free Speech

Coalition,

(2002). But the "my toy" album as

described by the agent was posted along with two other albums that

did show actual children. And although these were not

pornographic, the association of pictures of real children with

the "virtual" child pornography suggests that the defendant was

interested in forbidden pornography showing actual children. That

allusion was confirmed by other evidence described in the warrant

application.

Canadian authorities had alerted DHS investigators to an

American computer user's account on the Russian site, which site

contained for the most part merely suggestive images of minor

- 7 - children but known to display actual child pornography for short

periods of time. To trace the user's location, the authorities

had sent two undercover email messages to the user, one purporting

to link to "a little video of my 9 year old daughter," and another

containing eight links identified by, among other things, "pthc,"

which the agent's affidavit explained meant "preteen hard core."

The defendant soon made eleven attempts to reach those sites. DHS

was able to trace the user's IP address to the defendant's house.

While a woman and others also living in the house could have

produced the albums, the defendant was the most likely source of

the material since he was identified as the man convicted and

imprisoned at the age of twenty-one, some twenty years ago, for

the rape of two underage girls. The agent also stated that, in

his experience as an investigator concerned with the subject

matter, those who seek the forbidden pornography tend to keep the

examples they obtain.

There is no serious question that this record would

justify a reasonable belief that the house and home computers would

contain evidence of attempts by the defendant to obtain and possess

child pornography. See United States v. Reiner,

(1st Cir. 2007) ("Probable cause to issue a search warrant exists

when 'given all the circumstances set forth in the affidavit . . .

there is a fair probability that contraband or evidence of a crime

will be found in a particular place.'" (citing Illinois v. Gates,

- 8 -

(1983))). The defendant simply argues on an

evidentiary item-by-item basis that probable cause was wanting,

whereas the sufficiency of evidence to justify the warrant must be

evaluated on the record as a whole. United States v. Flores,

(1st Cir. 2018) ("Attempting to analyze each piece

of evidence in a vacuum is inconsistent with Supreme Court case

law, which makes pellucid that each item is to be considered as

part of the totality of the circumstances."). As the defendant

says, for example, not everyone who may click on a "pthc" link may

understand that signal, but for purposes of probable cause it is

enough to know that the combination of the four letters is commonly

understood to be shorthand for what the agent testified based on

his experience and thus subject to some weight in association with

the other evidence mentioned.

The warrant was adequately supported and the evidence

obtained was admissible.

Affirmed.

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