United States Court of Appeals For the First Circuit

No. 21-1120

UNITED STATES,

Appellee,

v.

HANFORD CHIU,

Defendant, Appellant.

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

[Hon. Denise J. Casper, U.S. District Judge]

Before

Lynch, Selya, and Kayatta, Circuit Judges.

Paul J. Garrity for appellant. Karen L. Eisenstadt, Assistant United States Attorney, with whom Rachel S. Rollins, United States Attorney, was on brief, for appellee.

June 2, 2022 KAYATTA, Circuit Judge. Hanford Chiu appeals from his

jury convictions for receipt and possession of child pornography.

He challenges both the denial of his pre-trial motion to suppress

evidence obtained pursuant to an allegedly defective search

warrant and the district court's ruling that barred certain text-

message evidence from Chiu's trial. Upon review, we find that the

warrant affidavit provided an adequate basis to support probable

cause and that the district court did not abuse its discretion in

excluding the text messages as inadmissible hearsay. We therefore

affirm Chiu's convictions. Our reasoning follows.

I.

The investigation culminating with Chiu's arrest began

with the search and arrest of another man, Warren Anderson.

Anderson came to the attention of law enforcement by way of the

messaging app Kik, which identified and reported suspected child

pornography sent from an IP address that law enforcement tracked

to Anderson. Special Agent (SA) Joseph Iannaccone of the

Department of Homeland Security (DHS) applied for a search warrant

with an affidavit ("the First Affidavit") that included a

description of the image transmitted from Kik. When law

enforcement approached Anderson to execute the search warrant on

August 21, 2018, he provided them with extensive information about

his interest in underage pornography, which included "depictions

of boys as young as eight years old."

- 2 - During his initial interviews on August 21, Anderson

informed law enforcement that he had met an individual online named

Hanford Chiu, who shared his interest in child pornography. The

following day, SA Iannaccone, relying primarily on details from

Anderson's initial interviews, prepared and filed a second search

warrant affidavit ("the Second Affidavit") in support of a request

for a warrant to search Chiu's residence, specifically the bedroom

he used within a multifamily house.

According to the Second Affidavit, beginning around

February of 2018, Anderson and Chiu met weekly at either man's

residence to view child pornography. Anderson provided details

about the layout of Chiu's residence and Chiu's custom-built PC,

which the two used to view child pornography as recently as two

days before the interview. Anderson told DHS that Chiu's computer

included an extensive collection of downloaded child pornography.

When agents asked Anderson to define "child pornography," he

"indicated that it would involve children under 18." Anderson

discussed a specific website, known to law enforcement to be

"dedicated to the exchange of child pornography," which the two

accessed via the anonymous internet browser Tor. He noted that

Chiu was an attorney -- a fact which law enforcement later verified

-- and that Chiu was cautious about his viewing of child

pornography, rarely communicating with others on the dark-web

sites he visited. Anderson also described some of the videos the

- 3 - two viewed in their most recent session, "which included depictions

of boys as young as 10 years old involved in sexual conduct."

Unlike the First Affidavit, however, the Second Affidavit did not

discuss any particular piece of contraband that law enforcement

had viewed, and SA Iannaccone did not attach any such images.

The magistrate judge authorized the second warrant on

August 22, and agents executed the search of Chiu's bedroom the

same day. They found in his bedroom a custom-built computer tower

with three hard drives, on which agents identified over a thousand

images of child pornography in their preliminary on-scene review.

Chiu was arrested that day. Later forensic analysis identified

the Tor browser installed on multiple drives on Chiu's computer,

with bookmarks to known child-pornography sites, as well as over

23,000 downloaded child-pornography files. A grand jury then

indicted Chiu on charges of: (I) receiving child pornography, in

violation of 18 U.S.C. § 2252A(a)(2)(A) and (b)(1); and

(II) possessing child pornography, in violation of

sections 2252A(a)(5)(B) and (b)(2).

Before trial, Chiu moved to suppress the evidence

obtained from the search under the theory that the warrant and the

supporting Second Affidavit failed to describe sufficiently the

basis for probable cause. Specifically, he claimed that the Second

Affidavit did not attach any pornographic images to be found and

lacked the necessary alternative: descriptions of the illicit

- 4 - images and videos to be found. The district court denied the

motion, and Chiu proceeded to trial.

Chiu's defense at trial was that someone else had

downloaded all the contraband to his computer. In support of this

theory, he testified without objection that he had provided

Anderson -- with whom he had been in a relationship for five years

-- with several of his passwords and that he would occasionally

bring his computer to Anderson's house for gaming and technical

repairs. For further support, Chiu sought to introduce certain

text messages between him and Anderson that, according to his

counsel, showed that "the computer had crashed, [that] it was

brought to Mr. Anderson to be repaired, and that Mr. Anderson

requested various e-mail passwords from Mr. Chiu." The district

court excluded the messages as hearsay.

Among the evidence in favor of the government, Chiu

acknowledged on cross-examination that, on two different occasions

within a week of his arrest, someone had accessed child pornography

on his computer within minutes of accessing legal work files. Chiu

recognized the legal work files and acknowledged having probably

been the one to open them, but denied accessing the child

pornography -- without providing any explanation for the nearly

contemporaneous access.

After two days of trial, the jury convicted Chiu on both

counts. The district court sentenced him to 110 months'

- 5 - imprisonment and five years' supervised release. Chiu timely

appealed.

II.

Chiu raises two claims of error in this appeal. First,

he contends that the district court erred in denying his motion to

suppress because the Second Affidavit failed to attach or

sufficiently describe the pornographic images to be found. He

then argues that the court erroneously excluded from trial his

proposed text-message evidence that purportedly showed that Chiu

had shared certain passwords with Anderson and had brought his PC

to Anderson's home. We take up these arguments in turn.

A.

"In assessing the district court's denial of [a] motion to

suppress, we review the court's legal conclusions de novo while

reviewing factual findings for clear error." United States v.

Burdulis,

(1st Cir. 2014). The ultimate

determination of probable cause is a legal conclusion that we

typically review de novo. United States v. O'Neal,

(1st Cir. 2021). With that said, when reviewing affidavits supporting

search warrants, "we give significant deference to the magistrate

judge's initial evaluation, reversing only if we see no 'substantial

basis' for concluding that probable cause existed." United States

v. Mendoza-Maisonet,

(1st Cir. 2020) (quoting United

States v. Ribeiro,

(1st Cir. 2005)); see also United

- 6 - States v. Cordero-Rosario,

(1st Cir. 2015) (same, in

reviewing a child-pornography prosecution). The judicial task in a

probable-cause determination "is simply to make a practical,

common-sense decision whether, 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." Illinois v. Gates,

(1983); see also

United States v. Syphers,

(1st Cir. 2005)

(observing, in reviewing a child-pornography prosecution, that

"hypertechnical readings" of warrants and affidavits "should be

avoided" (quoting United States v. Baldyga,

(1st

Cir. 2000))).

We start with the crime for which evidence was sought.

The Second Affidavit explained that SA Iannaccone believed he would

find in Chiu's bedroom evidence of a violation of 18 U.S.C.

§ 2252A, which criminalizes the receipt and possession of "child

pornography." That term is then defined in section 2256 to include

"any visual depiction" "of a minor engaging in sexually explicit

conduct."

(8). The statute further defines

"sexually explicit conduct" to include: "sexual intercourse,"

"bestiality," "masturbation," "sadistic or masochistic abuse," and

"lascivious exhibition of," inter alia, "genitals."

§ 2256(2)(A)(i)–(iv).

- 7 - Chiu's argument against the sufficiency of the affidavit

supporting the warrant to search his bedroom relies on our holding

in United States v. Brunette,

(1st Cir. 2001). We held

there that an affidavit based on a law enforcement officer's personal

review of pornographic images that had been flagged by an internet

service provider did not support probable cause where the officer did

not attach or describe the images and the affidavit "did not specify

with any detail the basis for believing that those images were

pornographic." Brunette,

. Instead, the affidavit

merely included the officer's assertion that the images depicted a

"prepubescent boy lasciviously displaying his genitals,"

,

language which tracks nearly verbatim one prong of the statutory

definition of "sexually explicit conduct," see

(2)(A)(V). But because the identification of specific images

as child pornography will often be, at least in part, a subjective

exercise, "the determination should be made by a judge, not an agent."

Brunette,

. We thus found error there in "issu[ing]

the warrant absent an independent review of the images, or at least

some assessment based on a reasonably specific description."

. Put another way, Brunette held that "[i]n cases in which the

warrant request hinges on a judgment by an officer that particular

pictures are pornographic, the officer must convey to the magistrate

more than his mere opinion that the images constitute pornography."

Burdulis,

.

- 8 - According to Chiu, the Second Affidavit was likewise

insufficient because it did not attach or describe any specific

pictures that law enforcement expected to find in Chiu's bedroom --

in contrast to the approach taken with the First Affidavit, which did

describe the specific image flagged by Kik. Chiu contends that the

Second Affidavit simply substituted an officer's opinion that

particular images were pornographic with the same opinion held by

another third party: the defendant's criminal associate Anderson.

To be sure, the Second Affidavit included numerous indications

that Anderson considered the material he viewed with Chiu to be

"child pornography." And the most detailed description of the

subject matter viewed was Anderson's statement that the two men

had recently watched videos "includ[ing] depictions of boys as

young as 10 years old involved in sexual conduct." This language

does closely resemble some of the language defining "child

pornography," which includes "visual depiction[s] . . . of a minor

engaging in sexually explicit conduct." See

(8)(B).

But we need not consider whether Anderson's description

of the most recently watched videos alone would suffice because

the affidavit does not stop there. The totality of the

circumstances described by the Second Affidavit included much

"more than . . . mere opinion" that particular images were

pornographic. Burdulis,

. The affidavit also

- 9 - detailed Anderson's recounting of his and Chiu's joint activity:

that he met Chiu online and later learned they shared an interest

in child pornography; that Chiu showed Anderson how to use the

dark-web browser Tor to access a specific website known for its

use in viewing and downloading child pornography; that Chiu "was

very careful about his online activities as they related to child

pornography," such that he would only download images posted by

others, without communicating with the posters; and that Chiu

maintained a personal collection of this downloaded material

amounting to some eighty gigabytes stored on the "custom-built

desktop computer" in Chiu's bedroom.

In Brunette, we observed that including similar

contextual and investigatory details in an affidavit may have put

the government on firmer probable-cause footing than the mere

anodyne parroting of statutory language. See 256 F.3d at 18–19.

We distinguished the skeletal affidavit in Brunette from one in

another child-pornography case, in which the Ninth Circuit had

upheld a warrant notwithstanding its failure to include or describe

any particular images. See United States v. Smith,

,

847–48 (9th Cir. 1986). The Smith affidavit, unlike the one in

Brunette, "was bolstered by a much stronger investigation prior to

applying for the warrant, including interviews with the suspect,

some of the victims, and a pediatrician who confirmed that the

- 10 - girls pictured were under eighteen" -- all of which provided "other

indicia of probable cause." Brunette,

.

The Second Affidavit is much closer to the one in Smith.

It detailed multiple interviews with an associate in the criminal

activity and described particulars of how the search target came

to acquire, store, and view the contraband -- including Chiu's

efforts to evade detection and his history of accessing a website

well-known for its use in obtaining child pornography. See also

Syphers,

(recounting the details of a child-

pornography investigation from an affidavit that "may" have

established probable cause, which included interviews with victims

and evidence that the defendant had frequented a specialized

website for child-pornography enthusiasts).

In sum, the inquiry here trains on whether the affidavit

provided the magistrate judge with a "common-sense" basis for

finding a fair probability that the target location would contain

evidence of the possession of child pornography. In Brunette, we

answered "no" because the affidavit, in effect, called for the

magistrate judge to defer to the officer's evaluation without any

basis for assessing that evaluation. Here, the affidavit provided

a bit more detail concerning the images ("depict[ing] boys as young

as ten years old involved in sexual conduct"), and the affidavit's

chronology of events provided a basis for the magistrate judge to

give weight to Anderson's description of what Chiu was doing. We

- 11 - therefore cannot say that, "given all the circumstances set forth

in" the affidavit, it provided "no substantial basis" for probable

cause to believe that evidence of child-pornography offenses would

be found on Chiu's computer. See Cordero-Rosario,

(cleaned up). We thus find no error in the district court's denial

of Chiu's motion to suppress.

B.

We turn next to Chiu's argument that the district court

improperly barred evidence of certain statements, in the form of

text messages, from his trial. Before trial, Chiu sought a ruling

that text messages exchanged between Chiu and Anderson in 2015

would be admissible. According to Chiu's counsel, the messages

showed that Chiu had brought his computer tower to Anderson's house

in November of 2015 to be repaired and that Chiu shared various

passwords with Anderson. While Chiu contended that he was offering

the messages for a non-hearsay purpose -- that is, not for the

truth of their content -- the court found that the messages were

"being offered for the truth of [the] movement of the computer

between the two places," thus rendering the messages hearsay

without any apparent exception available. After the defense rested

at trial, the court confirmed that counsel had sufficiently

preserved the objection to its pretrial ruling.

When a defendant preserves a claim that the district

court improperly excluded evidence, we review that claim for abuse

- 12 - of discretion. United States v. Sabean,

, 38–39 (1st

Cir. 2018). The government, however, argues for the more stringent

plain-error standard because Chiu never argued below the specific

theory now raised for overcoming the rule against hearsay, only

that the statements were not being offered for their truth.

However, we need not wade into that dispute because Chiu's claim

fails under even his preferred abuse-of-discretion standard.

On appeal, Chiu argues that the messages ought to have

been admitted as prior consistent statements. Under Federal Rule

of Evidence 801(d)(1), a witness's prior statement is excluded

from the rule against hearsay -- and thus may be admissible --

"when (1) the declarant testifies at trial and is subject to cross-

examination; (2) the prior statement is consistent with the

declarant's trial testimony; and (3) the prior statement is

offered 'to rebut an express or implied charge against the

declarant of recent fabrication or improper influence or motive.'"

United States v. Jahagirdar,

(1st Cir. 2006)

(emphasis omitted) (quoting Fed. R. Evid. 801(d)(1)(B)).1

Here, Chiu was the declarant of the statements he sought

to introduce, and he did testify at trial, thus satisfying the

1 Chiu does not make any argument that the text messages ought to have been admissible under the most recent addition to Rule 801(d), for prior consistent statements that are used "to rehabilitate the declarant's credibility as a witness when attacked on another ground," Fed. R. Evid. 801(d)(1)(B)(ii), so we need not discuss that alternative basis.

- 13 - first prong of our inquiry.2 On the "consistency" prong, Chiu

argues that the text messages are consistent with his testimony

that he gave Anderson some passwords and occasionally brought his

computer to Anderson for gaming or repairs. The government

contests only the degree of consistency, but not that general

premise.

The disagreement turns instead on the "fabrication"

prong. For this inquiry, we consider the degree of fit between

the putative prior consistent statement and the charge of

fabrication that it is offered to rebut. See United States v.

Wilkerson,

(1st Cir. 2005) ("[P]rior consistent

statements must at least have 'some rebutting force beyond the

mere fact that the witness has repeated on a prior occasion a

statement consistent with his trial testimony.'" (quoting United

States v. Simonelli,

(1st Cir. 2001))); Simonelli,

("There is no rule admitting all prior consistent

statements simply to bolster the credibility of a witness who has

been impeached by particulars.").

To assess that fit for the statements offered here, we

therefore ask: Did the government make an express or implied

charge that Chiu recently fabricated the claim that Anderson had

2 To be sure, Anderson authored some of the messages in the larger set of text exchanges that Chiu initially sought to introduce. Chiu's argument on appeal, however, focuses on the text messages that he sent to Anderson.

- 14 - occasionally possessed Chiu's computer and passwords? The record

shows that the government certainly challenged Chiu's credibility

broadly, as well as his claim that someone else had downloaded the

images to his computer without his knowledge. But the government

never bothered to contest the predicate yet separate claim that

Anderson could occasionally access the computer and passwords.

Chiu contends that the government's challenge to his

alternate-downloader theory necessarily implied that Chiu

fabricated the specific claim that Anderson had occasional access.

But clearly it did not: Chiu could certainly do the downloading

himself whether or not Anderson was able to do so. And the

government's distinction between these claims makes sense in light

of its theory at trial. In proving that Chiu possessed the

material, the government did not rely on his exclusive ability to

access his computer. Rather, it pointed to evidence that someone

had actually accessed the pornographic files nearly

contemporaneously with actual access of Chiu's work files.

More expansively, Chiu argues that the government's

broader attacks on his credibility "strongly implied" that Chiu

fabricated "the entirety of [his] testimony," and thus, Chiu should

be able to introduce statements consistent with some portion of

his testimony. This argument runs headlong into our precedent

requiring some degree of fit between the alleged fabrication and

the prior statement, as well as the Supreme Court's admonition

- 15 - that "[p]rior consistent statements may not be admitted to counter

all forms of impeachment or to bolster the witness merely because

she has been discredited." Tome v. United States,

(1995).

In arguing that a more generalized attack on credibility

may open the door to prior consistent statements, Chiu points us

to United States v. Washington,

(1st Cir. 2006). There,

we found no abuse of discretion in a trial court's admission of a

prior consistent statement where the party opposing its admission

"had suggested that the entirety of [the declarant-witness's]

testimony on direct examination had been false."

.

However, closer review of Washington reveals that it does not

support the broad door-opening theory for which Chiu invokes it.

A critical component of the testimony presented by the

witness there concerned the identity of an individual from whom he

had purchased drugs.

. Cross-examination of the witness

indeed levied "a charge of fabrication which went to all of [the

witness]'s testimony," painting him as "a habitual liar" with "a

motive to lie about anything and everything in order to please the

DEA."

But that examination also suggested the witness

specifically fabricated "his testimony about the name of the drug

dealer."

at 14 & n.11. The government then introduced the

challenged evidence: the declarant's contemporaneous and

consistent report to law enforcement naming the person who had

- 16 - sold him the drugs.

Thus, there was no serious question that

the witness had in fact been impeached on the specific subject of

the rehabilitative, prior consistent statement, even if the cross-

examination also levied indiscriminate charges of fabrication.

Here, by contrast, the government's broad attacks on Chiu's

credibility did not also specifically home in on Chiu's assertions

that Anderson could occasionally access his computer.3

Accordingly, the district court did not abuse its

discretion by excluding Chiu's proposed evidence.

III.

For the foregoing reasons, the judgment of the district

court is affirmed.

3 Chiu also argues that certain statements made by the government during pre-trial conferences and at sentencing somehow levied the kind of fabrication charge that we could consider for the purposes of Rule 801(d)(1)(B), but a witness plainly cannot be impeached at trial by arguments made outside of that trial.

- 17 -