United States v. Damien Morgan

Filing

OPINION FILED - THE COURT: James B. Loken, Raymond W. Gruender and Duane Benton AUTHORING JUDGE:Duane Benton (PUBLISHED) [4474561] [16-1525]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 16-1525
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Damien Morgan
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: September 23, 2016
Filed: December 1, 2016
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Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Damien Morgan pled guilty to one count of production of child pornography
in violation of 18 U.S.C. § 2251(a) and one count of attempted production in
violation of 18 U.S.C. § 2251(a) and (e). He reserved the right to appeal the denial
of a motion to suppress. Morgan now appeals the motion and two base-offense-level

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enhancements to his guidelines range. Having jurisdiction under 28 U.S.C. § 1291,
this court affirms.
I.
On August 4, 2013, an officer discovered that a computer offered child
pornography by peer-to-peer file sharing. That day, police identified the computer’s
IP address. Twenty-four days later, police determined that the IP address was
assigned to Morgan. Over seven weeks later, a state judge issued a search warrant
for his home—75 days after the IP address was identified and 51 days after
investigators associated the IP address with Morgan.
Five days later, police executed the warrant at Morgan’s home. They also
arrested him on a warrant for an unrelated no-fare-transit violation.
The arresting officer seized a cell phone from Morgan and, while handcuffing
him, noticed a tattoo on his wrist. At the station, Morgan requested his cell phone to
tell his employer and sister where he was. Police gave him the cell phone, under
police supervision. As Morgan scrolled through his contacts, he did not object as a
detective watched his screen. According to the detective, Morgan spontaneously
shared facts about the contacts. The detective wrote down some names and numbers.
While Morgan was in custody, a different detective found original images of
child pornography on a computer from his home. One image showed a man with a
tattooed arm touching a female child’s genitalia. The detective who found the images
asked Morgan to lift the sleeve of his shirt so that he could photograph his tattoo.
Morgan agreed, lifting his sleeve and allowing photographs without objection.
Morgan’s tattoos matched the tattoos in the photographs from his computer.

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Police later identified the child in the computer images. Morgan’s public
Facebook profile led to the profile of a woman who a detective recalled was one of
Morgan’s cell-phone contacts. Her public profile showed a daughter resembling the
child pictured.
The district court1 denied Morgan’s motion to suppress all evidence seized
from his home as well as physical evidence seized from his person or possession.
Following a conditional guilty plea, the court sentenced him to 360 months, based on
a guidelines range including enhancements of: (1) four levels for images depicting
sadistic conduct and (2) five levels for a pattern of activity.
II.
This court reviews a district court’s factual findings for clear error and its legal
conclusions de novo. United States v. Burston, 806 F.3d 1123, 1126 (8th Cir. 2015).
The denial of a motion to suppress is affirmed unless this court “find[s] that the
decision is unsupported by the evidence, based on an erroneous view of the law, or
the Court is left with a firm conviction that a mistake has been made.” United States
v. Riley, 684 F.3d 758, 762 (8th Cir. 2012) (internal quotation marks omitted).
A.
A search warrant requires probable cause, “a practical, common-sense decision
whether, given all the circumstances set forth in the affidavit before” the judge, “there
is a fair probability that . . . evidence of a crime will be found in a particular place.”
Illinois v. Gates, 462 U.S. 213, 238 (1983). This court determines only whether the

1

The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.
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issuing judge “had a substantial basis [to conclude] that probable cause existed.” Id.
at 238-39 (internal quotation marks omitted).
Morgan argues that the information in the search warrant was stale, and thus
the warrant lacked probable cause, because police did not apply for the warrant until
75 days after identifying his IP address and 51 days after associating it with him.
Periods much longer than 75 or 51 days have not rendered information stale in
computer-based child-pornography cases. See, e.g., United States v. Estey, 595 F.3d
836, 840 (8th Cir. 2010) (holding that a five-month delay did not render information
stale). The affidavit in support of the search warrant attested that collectors of child
pornography tend to retain images and that computer programs that download these
images “often leave[ ] files, logs or file remnants which would tend to show the
exchange, transfer, distribution, possession or origin of the files.” See United States
v. Horn, 187 F.3d 781, 786 (8th Cir. 1999) (“The timeliness of the information
supplied in an affidavit depends on the circumstances of the case, including the nature
of the crime under investigation; the lapse of time is least important when the
suspected criminal activity is continuing in nature and when the property is not likely
to be destroyed or dissipated.”). The affidavit established a fair probability of finding
evidence on Morgan’s computers.
B.
A Fourth Amendment search occurs “when the government violates a
subjective expectation of privacy that society recognizes as reasonable.” Kyllo v.
United States, 533 U.S. 27, 33 (2001). In contrast, whatever “a person knowingly
exposes to the public . . . is not a subject of Fourth Amendment protection.” Katz v.
United States, 389 U.S. 347, 351 (1967).

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Morgan had no reasonable expectation of privacy when he voluntarily
displayed his cell-phone screen in the presence of the detectives. Morgan had his
phone because he asked for it. He did not object when the detective observed his
activities. And—according to the detective’s uncontested testimony—Morgan
spontaneously shared information about his contacts with the detective. This is
unlike officers looking on their own through the contents of a cell phone. See Riley
v. California, 134 S. Ct. 2473, 2480-82 (2014). Instead, it is “an officer’s mere
observation of an item left in plain view,” which “generally involves no Fourth
Amendment search.” Texas v. Brown, 460 U.S. 730, 738 n.4 (1983). See Kyllo, 533
U.S. at 32 (recognizing the Court’s continued holding that “visual observation is no
‘search’ at all”).
Morgan believes that the plain-view doctrine applies only if: (1) the officer is
in a lawful position to view the evidence, (2) the officer discovers the incriminating
evidence inadvertently, and (3) the incriminating nature of the evidence is
immediately apparent. Morgan contends the last two conditions are not satisfied.
This contention conflates the plain-view doctrine for seizures with the plain-view
doctrine for searches. An officer does not violate the Fourth Amendment by viewing
evidence from a position he lawfully occupies, remembering it, and using it later.
Observing what is in plain sight does not implicate the additional requirements for a
seizure; being in a lawful position to observe evidence is sufficient. Brown, 460 U.S.
at 738 n.4.
Morgan had no reasonable expectation of privacy in his cell-phone screen once
he made it visible to the public by displaying it in the presence of a detective.
C.
A warrantless search, generally unreasonable, is “valid if conducted pursuant
to the knowing and voluntary consent of the person subject to a search.” United
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States v. Sanders, 424 F.3d 768, 773 (8th Cir. 2005). Whether consent is voluntary
is a factual question, reviewed for clear error. Id.; Pace v. City of Des Moines, 201
F.3d 1050, 1053 (8th Cir. 2000).
The magistrate judge found that a detective “asked [Morgan] to move his shirt
sleeve so that [the detective] could take a photograph of [his] tattooed arm. [Morgan]
agreed to do so.” To agree is “to indicate willingness : consent.” Agree, Webster’s
Third New International Dictionary 43 (2002). The magistrate judge found that
Morgan consented to the photographs of his tattoo. The district court adopted that
finding and found “no evidence that [he] was coerced.” Nothing indicates these
findings are clearly erroneous. The district court correctly denied the motion to
suppress the photographs of Morgan’s tattoos.
III.
Findings of fact about sentencing enhancements are reviewed for clear error;
interpretations of the guidelines are reviewed de novo. United States v. Ault, 598
F.3d 1039, 1040 (8th Cir. 2010).
A.
Guideline § 2G2.1(b)(4) authorizes a four-level increase to the base offense
“[i]f the offense involved material that portrays . . . sadistic or masochistic conduct
or other depictions of violence.” The term “sadistic” is not defined in the guidelines,
but has been addressed by this court several times.
If an image depicts actual or attempted penetration, it is per se sadistic. United
States v. Belflower, 390 F.3d 560, 562 (8th Cir. 2004). An image need not show
actual or attempted penetration to portray sadistic material. See United States v.

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Parker, 267 F.3d 839, 847 (8th Cir. 2001). Conduct that is “sufficiently painful,
coercive, abusive, and degrading” may also be sadistic. Id.
The images at issue show Morgan’s fingers placed on the inside of the child’s
labia, spreading them to expose her genitalia. At sentencing, the district court found
that these images depicted “a form of penetration” because “[t]his was not a situation
where the Defendant was touching her externally.” This factual determination is not
clearly erroneous. The district properly applied the four-level enhancement.
B.
Guideline § 4B1.5(b) authorizes a five-level enhancement if (1) “the
defendant’s instant offense of conviction is a covered sex crime” and, as relevant
here, (2) “the defendant engaged in a pattern of activity involving prohibited sexual
conduct.”
Morgan objects to this enhancement, claiming his attempted production of
child pornography is not “prohibited sexual conduct,” thus precluding a pattern of
activity. He reaches this view by comparing the definitions of “covered sex crime”
and “prohibited sexual conduct.” According to Morgan, “prohibited sexual conduct”
includes production of child pornography but not attempted production, which thus
cannot be a second offense required for a pattern of activity.
Application Note 2 defines “covered sex crime” as:
(A) an offense, perpetrated against a minor, under (i) chapter 109A of
title 18, United States Code; (ii) chapter 110 of such title, not including
trafficking in, receipt of, or possession of, child pornography, or a
recordkeeping offense; (iii) chapter 117 of such title, not including
transmitting information about a minor or filing a factual statement
about an alien individual; or (iv) 18 U.S.C. § 1591; or
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(B) an attempt or a conspiracy to commit any offense described in
subdivisions (A)(i) through (iv) of this note.
Application Note 4(A) defines “prohibited sexual conduct” as:
(i) any offense described in 18 U.S.C. § 2426(b)(1)(A) or (B); (ii) the
production of child pornography; or (iii) trafficking in child
pornography only if, prior to the commission of the instant offense of
conviction, the defendant sustained a felony conviction for that
trafficking in child pornography. It does not include receipt or
possession of child pornography.
Morgan argues that subsection (B) of Note 2, by explicitly including attempt,
means that the statutes in subsection (A) do not include attempted production of child
pornography. By his logic, because “prohibited sexual conduct” does not mention
“attempted” production, attempt is not included in prohibited sexual conduct.
Morgan argues that, at least, the definitions are ambiguous whether attempted
production of child pornography is prohibited sexual conduct. He invokes the rule
of lenity to void the enhancement.
The rule of lenity will “resolve ambiguity in favor of the defendant only at the
end of the process of construing what Congress has expressed when the ordinary
canons of statutory construction have revealed no satisfactory construction.”
Lockhart v. United States, 136 S. Ct. 958, 968 (2016) (internal quotation marks
omitted). An arguable alternative construction “cannot automatically trigger the rule
of lenity.” Id.
Here, there is a satisfactory construction: Both definitions—explicitly in the
first definition and in the second by referencing 18 U.S.C.
§ 2426(b)(1)(A)—incorporate chapter 110 of title 18, which includes attempted

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production of child pornography. This plain reading of the text is the more natural
interpretation. See United States v. Broxmeyer, 699 F.3d 265, 285 (2d Cir. 2012).
No ambiguity triggers the rule of lenity. The district court correctly ruled that
“attempted production of child pornography is a crime under chapter 110 of title 18,”
and thus properly applied the five-level enhancement.

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The judgment is affirmed.
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