USA v. Matthew Saffell
Per Curiam OPINION filed : we AFFIRM the district court's judgment in full, decision not for publication. Damon J. Keith, Circuit Judge; R. Guy Cole , Jr., Circuit Judge and John M. Rogers, Circuit Judge.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0417n.06
Apr 26, 2013
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
MATTHEW HOWARD SAFFELL,
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE SOUTHERN
DISTRICT OF OHIO
KEITH, COLE, and ROGERS, Circuit Judges.
PER CURIAM. Defendant-Appellant Matthew Saffell, was charged with a single count of
possession of child pornography. Following the denial of a motion to suppress the images of child
pornography found in his home, he entered a conditional guilty plea. The district court subsequently
entered judgment against him and sentenced him to twenty-four months of imprisonment, followed
by five years of supervised release. Saffell appeals the district court’s denial of the motion to
suppress and the sentence imposed. For the reasons that follow, we AFFIRM the district court’s
This criminal case began with a call from Jason Allen McGarry in October 2005. At the
time, McGarry was a young man who had a criminal record, had served a prison term, and was
facing new criminal charges for receiving stolen property. On October 20, 2005, Detective Ryan
Allar of the Belmont County Sheriff’s Office re-arrested McGarry for domestic violence and child
endangering. He was still facing the stolen property charges.
On October 24, 2005, McGarry was released from jail for the pending domestic violence
offense. That night, Matthew Saffell—Petitioner in the present case—gave McGarry a ride home.
The next day, October 25, 2005, McGarry reached out to Detective Allar and claimed that Saffell
told him that he met a twelve-year-old girl on the Internet and that Saffell had videotaped himself
having sex with her. Saffell contends that he is gay, however, and has never been with anyone of
the opposite sex.
In the past, McGarry had provided information to the police in exchange for leniency on
pending charges. McGarry had provided accurate information to Detective Allar on about five to
eight previous occasions. After calling Allar, McGarry entered into a cooperation agreement with
the Sheriff’s Department and started recording conversations with Saffell.
conversations repeatedly involved discussions about sexual relations and often included discussions
between McGarry and Saffell regarding the arrangement of an underage sexual partner for Saffell.
McGarry recorded an October 25, 2005 conversation from a car ride and also recorded a series of
phone calls thereafter.
Saffell and the Government dispute the nature of the conversations. Saffell contends that he
is gay, was never interested in the opposite sex, and that McGarry “initiated an aggressive and
persistent crusade to entrap Saffell into agreeing to meet with a fictitious thirteen-year[-]old female
for sexual relations.” There is an extensive record of the conversations between the two. While the
parties characterize the meaning of the conversations differently, there are recurring themes.
For example, McGarry constantly initiated conversations with Saffell about sexual relations
with young girls. Saffell made many statements about an attraction to young girls in response. At
times when McGarry discussed an underage partner for Saffell, Saffell stated that he was scared and
did not want to get in trouble. Saffell’s focus seemed to be getting caught and not necessarily on a
lack of interest. Another theme of the conversations has to do with Saffell’s sexual interest in
McGarry, the informant. Saffell typically tried to get McGarry to either expose himself to Saffell
or get McGarry to describe his past sexual escapades. In one conversation, Saffell offered McGarry
$20 to expose himself while Saffell touched himself.
There is also a conversation about Saffell’s pornography in the recordings. During the
conversation Saffell mentioned that he got pornography on the “Internet that would blow people’s
minds.” Saffell said he got turned on when “watching.” In another conversation, McGarry talked
about someone that taped a young couple. Saffell responded, “Bet you can’t get a tape of that.”
Once McGarry came to terms with Saffell’s being more interested in men, McGarry
mentioned arranging a meeting with a fictitious young boy, Tad. During the conversation Saffell
asked McGarry if he would get in trouble with the age issue. McGarry responded, “No, no, no, no
man you’re straight.” Saffell said, “Ok . . . Well he is eighteen so, it’s cool.”
On November 21, 2005, McGarry told Saffell to meet him at 5:15 p.m. near a store.
Detective Allar was there at the meeting spot and arrested Saffell.
Following the arrest, Detective Allar prepared an affidavit for a search warrant for Saffell’s
home. The affidavit stated:
On 10/25/05 at around 4:30 P.M. I was contacted by . . . McGarry . . .
regarding Matthew Saffell. [McGarry] has given me information in the past of
various criminal acts that have always proven to be truthful and reliable.
McGarry advised me that he was offered a ride home by . . . Saffell. McGarry
stated that Saffell offered him money to engage in sexual acts with McGarry’s
girlfriend if Saffell could watch. Saffell advised McGarry that he was a sexual
pervert and had met a 12 year old girl. I supplied McGarry with a digital recorder .
. . . I have listened to these recording[s] and the recording[s include] Saffell [talking
to] McGarry about purchasing a young girl to pull a train on. “To pull a train” is
slang for having sexual intercourse with several partners in a line one after another.
Another recorded conversation has Saffell telling McGarry about the girl he had sex
with a couple days ago. Saffell also asks McGarry to engage in sexual activity for
twenty dollars. McGarry eventually agrees to tell Saffell about his past sexual
encounters as Saffell masturbated in front of McGarry. McGarry stated that Saffell
had a bag of sex toys and removed a bottle of lubricant and applied it to his penis
while he masturbated. Saffell advised McGarry that he has in his resident [sic]
pornographic materials that would blow a normal person[’]s mind. This statement
enforces McGarry[’]s statement to me that Saffell had advised McGarry that he
makes pornographic movies with minors.
McGarry has been in constant contact with me since 10/25/2005. . . Saffell
wants McGarry to find a young boy and girl he could have sex with. Saffell offers
to pay McGarry and the young boy for the sex. McGarry advised Saffell that he
knew a 13 year old boy and a 12 year old girl who [were] interested. Saffell stated
that he would pay fifty dollars for a sexual encounter. The encounter was set up and
Saffell was arrested at the meeting place on this date, 11/21/2005. Due to the above
statements I believe that Matthew [Saffell’s] residence contains pornographic
materials depicting children engaged in sexual acts.
Aff. at 52. It also noted that Detective Allar “believes and has good cause to believe that said
property . . . is concealed in 105 Morristown Street . . . being the residence of Matthew Saffell, being
a [g]rayish colored single story house with white trim, and a white door facing Morristown Street.”
The execution of the search warrant resulted in the seizure of seventy-nine VHS cassette
tapes containing suspected pornography, a floppy disc, and a computer. The tapes did not contain
any illegal material. The computer hard drive and the disc, however, had suspected child
On November 23, 2005, Detective Allar charged Saffell with importuning of a minor, a state
felony charge, in the Belmont County Court. The case was dismissed, upon the government’s
Federal Charge and Conviction
Nearly five years later, a federal grand jury returned an indictment for possession of child
pornography in violation of 18 U.S.C. § 2252(a)(4)(B). Saffell filed a motion to suppress the
evidence collected from the execution of the search warrant that was issued by a state court judge.
Defendant argued for suppression of the physical evidence collected from his home for lack of
probable cause, and lack of a nexus between child pornography and Saffell’s residence. He also
argued that Detective Allar’s affidavit contained false or reckless statements or material omissions,
requiring a Franks hearing to be held. The district court held a Franks hearing at Defendant’s
request, but did not decide whether he had made a substantial showing of intentional or reckless
falsity or materiality. The district court ultimately denied Saffell’s motion to suppress.
Plea and Sentencing
Following the denial of Saffell’s motion to suppress, he entered into a plea agreement.The
district court held a sentencing hearing on October 21, 2011.1 Saffell’s guideline range was 46–57
months. During the hearing, the district judge expressed concerns with sentencing policy as it relates
to child pornography cases and Saffell specifically. Following the explanation, the district court
imposed a 24-month term of imprisonment.
There were a total of three sentencing hearings on October 21, 2011, November 10, 2011,
and May 17, 2012.
Motion to Suppress
Saffell appeals the district court’s denial of his motion to suppress the digital images of child
pornography found in his home. Saffell presents two main points on appeal: 1) that Detective Allar’s
affidavit failed to establish probable cause to search his home for child pornography; and 2) that the
search of his home was invalid due to alleged false statements and material omissions from Detective
Saffell raises three issues on appeal to support his argument that Detective Allar’s affidavit
was insufficient to establish probable cause to search Saffell’s home for child pornography. First,
Saffell argues that the affidavit failed to establish a nexus between him and his home. Second,
Saffell argues that the affidavit failed to establish a “substantial basis” for the state court magistrate
judge to conclude that “pornographic materials depicting children engaged in sexual acts” would be
found at his home. Third, he argues that the affidavit was stale as a matter of law because it failed
to provide a time frame for when the alleged videotaping of the underage girl occurred. A careful
review of Saffell’s arguments shows that the affidavit was sufficient to establish the requisite
“This Court reviews a district court’s decision on a motion to suppress under two standards.
Findings of fact are upheld unless clearly erroneous, while conclusions of law are reviewed de novo.”
United States v. Jenkins, 396 F.3d 751, 757 (6th Cir. 2005) (internal quotation omitted). “A factual
finding is clearly erroneous when a court, on reviewing the evidence, is left with the definite and firm
conviction that a mistake has been committed.” United States v. Gunter, 551 F.3d 472, 479 (6th Cir.
2009). “If the district court denied the motion to suppress, then we must ‘view the evidence in the
light most favorable to the government.’” United States v. Stubblefield, 682 F.3d 502, 505 (6th Cir.
2012) (quoting United States v. Smith, 549 F.3d 355, 359 (6th Cir. 2008)).
The Fourth Amendment of the Constitution states: “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause, support by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const.
amend. IV. In determining whether an affidavit is sufficient to establish probable cause:
[t]he task of the issuing magistrate is simply to make a practical, common-sense
decision whether, given all the circumstances set forth in the affidavit before him, .
. . there is a fair probability that contraband or evidence of a crime will be found in
a particular place. And the duty of a reviewing court is simply to ensure that the
magistrate had a substantial basis for concluding that probable cause existed.
Illinois v. Gates, 462 U.S. 213, 238–39 (1983) (internal quotation marks and citation omitted).
Contrary to Saffell’s argument, the affidavit was sufficient to establish a connection between
Saffell and the premises to be searched. Saffell argues that since the affidavit did not state exactly
how or why Detective Allar knew that the 105 Morristown Street address was Saffell’s home, the
affidavit lacked the requisite nexus to connect him to the home. We disagree.
Saffell relies on the case of United States v. Laughton, 409 F.3d 744 (6th Cir. 2005), for the
proposition that the affidavit was insufficient. In Laughton, we held that an affidavit that “failed to
indicate any connection between the defendant and . . . any of the criminal activity that occurred
there” did not provide a substantial basis for concluding that there was probable cause to issue the
warrant. Id. at 747–48.
The present situation is not one, like Laughton, where there was a failure “to indicate any
connection between the defendant” and the premises to be searched. In this case, Detective Allar’s
affidavit was based on an investigation, relying on information from an informant who was in
contact with Saffell daily. The affidavit states that McGarry was an informant that “ha[s] always
proven to be truthful and reliable.” The affidavit also mentions encounters between the informant
and Saffell, stating that the two had spent time together and had talked about pornography Saffell
had in his residence. This close relationship between McGarry and Saffell would support the
conclusion that McGarry knew where Saffell lived and that there was potentially illegal pornography
in his home.
The residence was described in the affidavit as a “[g]rayish colored single story house with
white trim, and a white door facing Morristown Street.” Detective Allar identified the address as
“the residence of Matthew Saffell.” These circumstances support the conclusion that Detective Allar
had information that would lead him to the conclusion that the address was actually Saffell’s home.
The magistrate judge made a practical, common-sense decision that the detective was sure that the
house to be searched was actually Saffell’s home. Reversal on this issue is not warranted.
Saffell also argues that the affidavit “failed to establish a ‘substantial basis’ for the issuing
magistrate to conclude that ‘pornographic materials depicting children engaged in sexual acts’ would
be found on a computer or computer diskette located in [his] residence.” The district court correctly
rejected Saffell’s argument.
Saffell argues that there are two cases supporting his position that the allegations in the
affidavit failed to establish a substantial basis upon which the magistrate judge could conclude that
he might have had child pornography on a computer or disks in his home. He relies on United States
v. Hodson, 543 F.3d 286 (6th Cir. 2008) and United States v. Doyle, 650 F.3d 460 (4th Cir. 2011).
In both of those cases the courts held that the allegations in the affidavit would have supported a
warrant to search for evidence of child molestation, but not for evidence of the entirely different
crime of possessing child pornography. Hodson, 543 F.3d at 292; Doyle, 650 F.3d at 473.
In Hodson, a detective from the New Jersey Sheriff’s Department Internet Crimes Section
began chatting undercover with the defendant over AOL Instant Messenger. Hodson, 543 F.3d at
287. During the chats the defendant admitted to the undercover detective that he liked looking at
his young sons naked and that he had also had sex with his nephew, who was only seven years old.
He also said he wanted to perform oral sex on the presumptive twelve-year old boy with whom he
was chatting (actually the undercover detective). The detective prepared an affidavit based on the
conversations and requested a warrant to search the defendant’s home from the magistrate. A
warrant to search for evidence of child pornography was granted by the magistrate. Id. at 287–88.
This Court held that the affidavit was sufficient to establish probable cause to search for evidence
of child molestation but not for child pornography. Id. at 292. The Court reasoned that the search
warrant was invalid because the affidavit contained “no information whatsoever with regard to [the
defendant’s] engaging in any aspect of child pornography, or any basis for believing that individuals
who engage in child molestation are likely also to possess child pornography.” Id. at 289, 293–94.
The other case relied on by Saffell is a Fourth Circuit case, Doyle. In Doyle, three minor
children came forward with allegations that Doyle sexually abused them at his home. Doyle, 650
F.3d at 464–66. One child said that Doyle had shown the victim pictures of nude children. Id. at
464. The Fourth Circuit, citing Hodson, held that the evidence in the affidavit was insufficient to
support a search for evidence of child pornography. Id. at 472. The court reasoned that a nude
picture of a child would not necessarily mean that the picture was child pornography. The court
reasoned that the mention of nude pictures was the only thing in the affidavit that could have related
to child pornography and that the solitary mention was insufficient to establish probable cause to
search for child pornography. Id.
Here, Saffell’s case is distinguishable from both Hodson and Doyle. Detective Allar’s
affidavit stated that a reliable informant told him that “he met a 12 year old girl on the internet and
had made pornographic videos of sexual encounters between himself and the 12 year old girl.” This
statement alone makes the present case distinguishable from Hodson and Doyle. Because the
affidavit mentions Saffell using the internet to meet the young girl and also that he made a video of
himself having sex with the young girl, a magistrate judge could conclude that he likely used his
home computer to arrange his encounter. Unlike Doyle, there was not simply an allegation that
Saffell had a nude picture of the young girl. The allegation was that he had a videotape of himself
having sex with her. The magistrate could also reasonably conclude from the statement that since
Saffell made a video of himself having sex with a child, he also liked to view child pornography.
The magistrate judge made a common-sense determination that the videos could have been stored
on Saffell’s computer at home.
In addition to the specific allegations in the information, the affidavit offers additional facts
that supported the magistrate’s finding of probable cause. The affidavit refers to Saffell’s continued
interest in young girls and pornography at his house. Those allegations were in addition to the
allegation that he taped himself having sex with the young girl he met on the internet, bolstering the
basis for the warrant. The facts in the affidavit as a whole established a substantial basis for the
magistrate to conclude that child pornography would likely be found on Saffell’s computer at his
home. The district court properly rejected Saffell’s argument.
Moreover, Saffell’s argument that the information in the affidavit was stale as a matter of law
fails. Saffell argues that because there was no time frame mentioned as to when he allegedly
videotaped himself having sex with the young girl, the affidavit could not support a finding of
probable cause. The district court properly rejected his argument.
“[I]n seeking to establish probable cause to obtain a search warrant, the affidavit may not
employ ‘stale’ information, and whether information is stale depends on the ‘inherent nature of the
crime.’” United States v. Brooks, 594 F.3d 488, 493 (6th Cir. 2010) (internal citation omitted).
Courts consider four factors in determining whether information is stale. See United States v.
Frechette, 583 F.3d 374, 378 (6th Cir. 2009).
Saffell argues that the Frechette factors are inapplicable because of the failure to state a time
frame for his alleged videotaping of himself having sex with the young girl. Saffell relies on an
order from the Western District of Tennessee to support his argument, United States v. Haney, No.
07-cr-20313-MI., 2012 WL 1657109 (W.D. Tenn. May 10, 2012) (order granting motion to
suppress). In Haney, the search warrant in question was based on statements from an alleged victim
of sexual abuse. Id. at *1. The affidavit contained no time frame as to when the alleged abuse
occurred or any indication that the defendant was involved in any continued illegal activity. Id. The
court held that the affidavit was based upon stale information and the warrant was, therefore, invalid.
Id. at *2. The court reasoned that “[t]he affidavit [was] deficient because it gave no indication of
when the [illegal acts took place]. In the absence of any temporal reference point, the affidavit failed
to establish probable cause.” Id. (emphasis in original).
Here, Saffell’s case is not one in which there was “no indication” of a time frame. Saffell
is correct that there was no specific time frame given as to when he made the alleged videotape of
the young girl. However, the affidavit contained other information that did have a time frame to
corroborate the allegation. The affidavit states that McGarry, the reliable informant, had been in
contact with Saffell on a daily basis and that he had been in contact with Detective Allar since
October 25, 2005—just about a month before the affidavit was filed. The additional information,
provided in that month, corroborated the allegation about the videotaping (i.e. Saffell’s interest in
underage sexual partners and pornographic materials in his home). The fact that there was no
specific time frame regarding the alleged videotaping is of no consequence with respect to staleness
because the more recent information that was provided with a time frame corroborated the allegation.
See United States v. Henson, 848 F.2d 1374, 1381–82 (6th Cir. 1988) (holding that where recent
information corroborates stale information, probable cause may be found). The lack of a specific
date as to one allegation is remedied by the inclusion of more recent corroborating information. The
information in the affidavit was not stale.
Because all of Saffell’s arguments fail as to the sufficiency of the affidavit, reversal is
unwarranted as to probable cause within the four corners of the affidavit.
Saffell argues that Detective Allar deliberately or recklessly omitted information from the
affidavit that “would have cast grave doubt on the veracity and reliability of the informant’s
allegation that Saffell told him” that he videotaped himself having sex with the young girl. The
district court rejected this argument—following a Franks hearing—finding that the omissions were
not material to the finding of probable cause and the omissions would not have cast doubt on
Detective Allar’s belief in the reliability or credibility of McGarry’s information.2 We agree with
the district court’s determination.
At an evidentiary hearing held pursuant to Franks v. Delaware, 438 U.S. 154 (1978),
the hearing court must strike from the warrant affidavit statements that the defendant
can prove by a preponderance of the evidence to be both (a) materially false and (b)
made with reckless or intentional disregard for their falsity. If the redacted affidavit,
purged of recklessly and materially false statements, no longer establishes probable
cause, then the court must hold the resulting search warrant invalid.
United States v. Elkins, 300 F.3d 638, 649 (6th Cir. 2002) (internal citations omitted). “[T]o be
constitutionally problematic, the material must have been deliberately or recklessly omitted and must
have undermined the showing of probable cause.” United States v. Carpenter, 360 F.3d 591, 596–97
(6th Cir. 2004) (emphasis in original). This Court reviews the materiality of the information de
novo and reviews whether the omissions are reckless or deliberate for clear error. Id. at 594.
Saffell argues that Detective Allar recklessly or deliberately left out certain information from
the affidavit. First, Saffell argues that Detective Allar should have included the fact that McGarry
was facing a new felony and misdemeanor charge at the time he approached Detective Allar to
Second, Saffell argues that Detective Allar deliberately left out information from the
conversations that would have shown that “Saffell’s statements about having a sexual interest in
underage females were merely a ruse to appease an aggressive and persistent informant.” Saffell
argues that had the affidavit included that Saffell resisted propositions from McGarry about meeting
underage girls and shifted the conversations to his interest in McGarry, that the veracity and
The district court noted in its opinion that it was unclear if Saffell had made the requisite
preliminary showing to be afforded a Franks hearing—an issue we decline to address. Even
assuming the requisite showing was made to warrant a Franks hearing, Saffell’s arguments fail
because the omissions are not material to the finding of probable cause in this case.
reliability of the informant’s accusation would have been diminished. Saffell argues that there
should have been a mention of his repeated requests for someone of legal age. Saffell concludes that
because of these omissions, Detective Allar knew that the affidavit was misleading and that this
Court should reverse the district court’s denial of his motion.
The omissions noted by Saffell are not the kind that would have clearly undermined
assertions made in the affidavit. The district court correctly denied Saffell’s motion to suppress.
First, the information about the informant is immaterial. The informant was named in the affidavit.
The affidavit noted that he had “always proven to be truthful and reliable.” Furthermore, the
allegation by the informant was corroborated by the recordings—Saffell undeniably stated his
interest in young girls. Detective Allar had no reason to be concerned about the accuracy of the
informant’s information because he had access to the recordings that supported the allegation.
While there is strong support for Saffell’s argument that the informant was aggressive and
that Saffell was more interested in men, especially McGarry, the omissions from the record would
not change the fact that Saffell repeatedly discussed an interest in young girls. While he did often
mention being scared, as the Government argues, Saffell’s fear was focused on being caught. Saffell
asked for legal age partners, but there was ample discussion about underage partners. Furthermore,
while the affidavit failed to mention that sometimes Saffell would change the subject from hooking
up with a young girl to his interest in McGarry, the affidavit did not entirely fail to mention of
Saffell’s interest in men or in McGarry himself. The affidavit explicitly states that Saffell had
offered McGarry to engage in sexual activity for twenty dollars and that Saffell had masturbated in
front of McGarry. Saffell’s expressed interest in McGarry is not inconsistent with his expressed
interest in underage sexual partners. Even if Saffell thought that the boy he was meeting was
eighteen—as Saffell claims—the showing of probable cause would not have been undermined
because there were also numerous previous conversations about a young boy. Saffell’s comment that
“he is eighteen, so it’s cool” was a non sequitur in the conversation, so it is not convincing that he
actually thought he was meeting up with an adult.
This is not a case where the omitted information contradicted the information provided by
the informant. See United States v. West, 520 F.3d 604 (6th Cir. 2008) (holding that an affidavit was
invalid for failure to mention facts that undermined the informant tip). The omissions here do not
contradict or undermine the allegations. Even if the omitted information had been determined to be
material, Saffell failed to demonstrate that any of the omitted information was deliberately or
recklessly excluded. We, therefore, affirm the district court’s judgment on this issue.
Reasonableness of Sentence
Saffell challenges the reasonableness of his sentence. Not long before Saffell’s sentencing,
another sentence imposed by the same court in another child pornography case had been reversed
as substantively unreasonable. See United States v. Bistline, 665 F.3d 758 (6th Cir. 2012). Saffell
was sentenced to a 24-month term of imprisonment, a term lower than the guideline range he faced
of 46–52 months of imprisonment. Saffell argues that the district court interpreted the Bistline case
too narrowly and was unaware that it could have imposed an even lower sentence, like it wished it
could have, as stated on the record.
“[A]ll sentences—whether inside, just outside, or significantly outside the Guidelines
range—[are reviewed] under a deferential abuse-of-discretion standard.” United States v. Bolds, 511
F.3d 568, 578 (6th Cir. 2007) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)).
Saffell’s argument is without merit. Clearly the district court understood it could vary from
the sentencing guidelines because the sentence ultimately imposed included a term of imprisonment
that was almost half of the lower end of the guideline range. The district judge explained his
concerns with the law, but still stated that he believed the sentence would “serve all of the legitimate
purposes of sentencing in this case while recognizing some of the unique aspects of th[e] case.”
There is no indication that the court was confused. There was no abuse of discretion.
For the foregoing reasons, we AFFIRM the district court’s judgment in full.
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