Where the evidentiary, legal and sentencing challenges of a man convicted of sexual exploitation of his daughter and possession of pornography were rejected, the judgment was affirmed.
William Ebert appeals his conviction and sentence for one count of sexual exploitation of a minor (his daughter) and one count of possession of pornography depicting a minor. He argues the district court: (1) erred in denying his motion to suppress because the affidavit supporting the probable-cause finding consisted of stale evidence; (2) abused its discretion in admitting certain video evidence depicting his victim after she turned 18 and in admitting testimony of sexually suggestive conversations he had with another minor and (3) erred in imposing a five-level enhancement when calculating his recommended guidelines range.
Motion to suppress
“[E]vidence seized pursuant to a warrant supported by ‘stale’ probable cause is not admissible in a criminal trial[.]” Here, the agent’s affidavit provided probable cause to issue the search warrant, and that probable cause was not stale.
This court’s prior cases have recognized that the staleness inquiry is somewhat different when the alleged unlawful activity involves digital images depicting child pornography and other sex crimes against minors, in part because the nature of the property to be seized is not a consumable, like narcotics. Instead, such child pornography is found on computers and other digital equipment that can be readily stored by offenders for years and also can be retrieved during a digital search even after its ostensible deletion. In addition, law-enforcement experience supports the conclusion that individuals who possess such images “rarely if ever dispose of such material, and store it for long periods in a secure place, typically in their homes.”
Based on these factors, the district court properly concluded that the specific allegations against Ebert gave rise to a “fair probability that evidence of a crime w[ould] be found” at Ebert’s residence. Therefore, probable cause existed to support issuing the search warrant, and the district court did not err in denying the motion to suppress on this ground.
Second, regardless of the existence of probable cause, the district court separately determined that it was also appropriate to deny Ebert’s motion because the Leon good-faith exception applied. Ebert has not challenged the district court’s conclusion that this exception applies on appeal. Thus, he has waived appellate review of that separate ground for denying his motion, and this court also affirms on that basis.
Ebert next challenges the district court’s evidentiary rulings that allowed the government to introduce two videos of H.H. that were taken after she turned 18 years old and the testimony of Z.N. He argues the challenged evidence should have been inadmissible under Federal Rules of Evidence 403 and 404(b) because it was more prejudicial than probative evidence of “other” bad acts.
For example, he asserts that the videos were not proof of the charged offenses, which had to have occurred when H.H. was a minor. And he contends their admission likely caused the jury to convict him on the incorrect belief that Ebert had a “propensity for taking lewd photographs of his daughter,” something that would be viewed as “salacious, odd, and to most, creepy.”
As for Z.N.’s testimony, Ebert asserts this evidence was unduly prejudicial because it could give the jury a reason to “dislike him” and to believe he had a propensity for “unusual and even creepy” conversations, which may improperly distract the jury from basing its verdict on the probative evidence. After reviewing the challenged evidence, this court concludes that the district court did not abuse its discretion in admitting it. This court notes, in addition, that the district court’s limiting instructions appropriately curbed the risk that the jury would misuse the evidence in the way Ebert suggests. And even if both those grounds were faulty, viewing the record as a whole, any error was harmless.
Section 4B1.5(b) enhances the offense levels of certain individuals convicted of sex offenses against a minor. At the sentencing hearing, the district court rejected Ebert’s objection to the imposition of the enhancement, finding that the evidence supported the requisite “pattern of activity.” This court finds no error in the district court’s decision.
United States v. Ebert, Case No. 21-4283, March 3, 2023. 4th Cir. (Agee), from WDNC at Charlotte (Whitney). Samuel Bayness Winthrop for Appellant. Amy Elizabeth Ray for Appellee. VLW 023-2-069. 20 pp.