FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAR 9, 2010

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-10579

Non-Argument Calendar

________________________

D. C. Docket No. 07-80191-CR-KLR

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TIMOTHY WAYNE BECKETT,

a.k.a. chelzzz420zzz,

a.k.a. 2*cute*for*school,

a.k.a. yesurifnotcuter,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(March 9, 2010)

Before HULL, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
Timothy Wayne Beckett, through counsel, challenges his convictions for

(1) possession or attempted possession of images of child pornography on July 18,

2007, in violation of 18 U.S.C. § 2252A(a)(5)(B) (Count 1); (2) production of

(a) four images of child pornography involving victim “JH” on July 9, 2007,

(Counts 2-5), (b) four images of child pornography involving victim “MG” on

June 2, 2007, (Counts 6-9), and (c) six images of child pornography involving

victim “CH” on June 21, 2007, (Counts 10-15), all of which depicted minor males

“engaged in the lascivious exhibition of [their] genitals,” in violation of 18 U.S.C.

§ 2251(a); and (3) attempted sexual coercion of the three previously identified

minor victims and another minor victim, “CL,” in violation of 18 U.S.C. § 2422(b)

(Counts 16-19).

On appeal, Beckett argues, first, that the district court erred by denying his

renewed motion to suppress subscriber information collected as a result of law

enforcement’s “exigent circumstances” letters to: internet service providers

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(“ISPs”) and phone companies . Beckett alleges that these exigent circumstances

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letters violated the terms of the Electronic Communications Privacy Act

(“ECPA”), specifically 18 U.S.C. §§ 2702(c)(4) and 2703(c). Second, Beckett

The investigators received information from America Online, MySpace, and Comcast. 1

The investigators received information from BellSouth , T-Mobile, and AT&T. 2

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argues that the district court erred by denying his renewed motion to suppress

evidence seized from a search of the files on his computers and storage devices

because a search warrant only authorized the seizure of the computers themselves.

Finally, Beckett argues that the evidence was insufficient to sustain his convictions

on all nineteen counts. We find no merit to any of these arguments and affirm the

district court.

I.

Beckett developed a scam to coerce young boys into having sexual relations

with him. First, he created a fake MySpace account that appeared to belong to a 17

year old girl named Chelsea. He then contacted four underage boys through

MySpace and America OnLine Instant Message (“AIM”), posing as Chelsea. After

extensive online conversations as Chelsea, Beckett would send the boys nude and

semi-nude photos of a young girl that was supposedly Chelsea. Beckett then

convinced the boys to send nude photos of themselves. It was at this point that

Beckett would tell the boys that he was actually a man and threaten to disperse the

nude photos over the internet, to their friends and family, if the boys did not agree

to engage with him in sexual relations.

Beckett contacted JH in the summer of 2007 when JH was 17 years old.

After receiving nude photos of JH, Beckett suggested that they meet for oral sex.

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When JH refused Beckett told him that he was a man and offered an ultimatum:

either allow Beckett to perform oral sex on him or else Beckett would send the

nude photos of JH to all JH’s friends on MySpace. In a panic, JH offered Beckett

hundreds of dollars to leave him alone. Beckett continued to insist on oral sex and

JH notified the authorities.

CL fell victim to the same scam and informed his parents who then

contacted the Boyton Beach Police. Detective Athol opened an investigation after

reading the AIM conversation between CL and Beckett. Det. Athol listened to a

phone message for CL from the suspect. Det. Athol would later recognize the

voice as Beckett’s, when meeting with him after arrest.

CH was engaged by Beckett and ultimately sent nude pictures of himself

after considerable coaxing. Beckett then posed as the brother of Chelsea and

picked CH up at his house, with CH believing that Beckett was taking him to meet

Chelsea. After driving to WalMart and cashing his paycheck, Beckett

propositioned CH in his car. Beckett convinced CH to take off his shirt and expose

his genitals for money. The car was stopped by the police for a traffic infraction,

but Beckett threatened CH to keep him from speaking to the police. After CH

returned home, Beckett continued to threaten releasing the nude photos if CH did

not meet with him again.

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MG engaged in a very lengthy online conversation with Beckett, who he

believed to be a 17 year old girl named Chelsea. MG sent Beckett nude photos of

himself and then quickly found out that Beckett was a man. Beckett threatened to

send the photos to MG’s friends if he did not meet with him for oral sex.

However, MG turned the tables on Beckett, threatening to turn over his IP address

to an attorney and the authorities. Beckett attempted to send the photos back to

MG and then quickly disconnected from the online conversation.

Det. Athol was contacted by the National Center for Missing and Exploited

Children to investigate the incident with JH. Det. Athol turned the investigation

over to Det. Collins at the Palm Beach Sheriff’s Office. While investigating the

CL case, Det. Athol noticed that the suspect’s screen name, “yesurifnotcuter”, was

the same as the suspect’s screen name in the JH case. Det. Collins and Athol sent

information requests related to the screen name to America Online (“AOL”) and

Comcast. They subsequently received information concerning the connection logs

and IP address associated with the screen name. Upon request from the detectives,

MySpace provided information regarding the fake page set up by Beckett under the

name Chelsea. Det. Athol then sent letters, without a subpoena, to At&T,

BellSouth and T-Mobile requesting the source of the phone call to CL, citing

exigent circumstances.

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A warrant was obtained for the search of Beckett’s house, detectives seized

computers and computer related media, and Beckett was taken into custody. Upon

search of the computer, the police discovered a plethora of child pornography and

evidence connecting the computer to conversations with CH, CL, and MG.

Beckett moved to suppress the evidence collected from written requests to

the ISPs and the phone companies. The district court denied his motion. Beckett

also moved to suppress the evidence discovered during the search of his home

computer and the district court denied this motion as well. Beckett now appeals

the denial of these motions and the sufficiency of the evidence presented at trial.

II.

A. The Motions to Suppress Were Properly Denied by the District Court

A ruling on a motion to suppress presents “a mixed question of law and

fact.” United States v. Steed, 548 F.3d 961, 966 (11th Cir. 2008) (per curiam). We

accept the district court’s factual findings unless they are clearly erroneous,

construing all facts in the light most favorable to the prevailing party below. Id. In

order for a factual finding to be clearly erroneous, we “must be left with a definite

and firm conviction that a mistake has been committed” after reviewing all of the

evidence. United States v. Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir. 2004)

(quotation omitted). The district court’s application of the law to the facts is

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reviewed de novo. Steed, 548 F.3d at 966.

1. Investigators Properly Obtained Information from the ISPs and Phone

Companies

The ECPA provides that law enforcement only may require disclosure of

subscriber information under certain, limited circumstances, including when there

is (1) a warrant, (2) a court order, (3) consent of the subscriber, or (4) an

administrative subpoena. 18 U.S.C. § 2703(c). Additionally, the ECPA authorizes

companies storing electronic communications to disclose such information “to a

governmental entity, if the provider, in good faith, believes that an emergency

involving danger of death or serious physical injury to any person requires

disclosure without delay of information relating to the emergency.” 18 U.S.C.

§ 2702(c)(4). The government obtained information from the ISPs and BellSouth

through the “exigent circumstance” exception carved out by § 2702(c)(4).

Beckett argues that the government obtained information from the ISPs and

phone companies in violation of § 2703(c) and § 2702(c)(4). Beckett argues that

exigent circumstances did not exist. Thus, Beckett asks that we suppress the

information obtained from the ISPs and phone companies because of the alleged

violations of § 2703(c) and § 2702(c)(4). Beckett’s argument fails for two reasons:

(1) there is not a statutory remedy of suppression provided for in the ECPA; and

(2) suppression under the Fourth Amendment was not required because Beckett did

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not have a reasonable expectation of privacy with regards to the information

transmitted.

The ECPA does not statutorily provide for suppression of evidence obtained

as a result of violations of the Act. United States v. Steiger, 318 F.3d 1039, 1051

(11th Cir. 2003) (“[T]he legislative history makes clear that a statutory suppression

remedy does not exist for unlawful interceptions of ‘electronic

communications.’”). “Despite the fact that the ECPA amended numerous sections

of the Wiretap Act to include ‘electronic communications,’ the ECPA did not

amend [the subsection of the Wiretap Act that provides a statutory remedy of

suppression for violations of the Act].” Id. at 1050. The ECPA authorizes an

aggrieved party to file a civil action for the “knowing or intentional” violation of

the act. 18 U.S.C. § 2707(a). The ECPA further states that “[t]he remedies and

sanctions described in this chapter are the only judicial remedies and sanctions for

non-constitutional violations of this chapter.” 18 U.S.C. § 2708. Thus, the ECPA

does not entitle Beckett to suppression of evidence due to a violation of the terms

of the ECPA.

The Fourth Amendment provides that “[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 . . . .” U.S. Const. amend. IV. Generally, any

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evidence obtained in violation of the Fourth Amendment is inadmissible in court

and must be suppressed as “fruit of the poisonous tree” for the purpose of deterring

police misconduct. Wong Sun v. United States, 371 U.S. 471, 487–88, 83 S. Ct.

407, 417 (1963).

“In order to have evidence suppressed based on a violation of the Fourth

Amendment, a claimant has the burden of proving (1) that the search was unlawful

and (2) that the claimant had a legitimate expectation of privacy.” United States v.

McKennon, 814 F.2d 1539, 1542 (11th Cir. 1987) (per curiam) (citation omitted).

To establish a reasonable expectation of privacy in the object of a challenged

search, the defendant must show (1) that he manifested “a subjective expectation of

privacy” in that item, and (2) a willingness by society “to recognize that

expectation as legitimate.” Id. at 1543.

The U.S. Supreme Court “consistently has held that a person has no

legitimate expectation of privacy in information he voluntarily turns over to third

parties.” Smith v. Maryland, 442 U.S. 735, 743–44, 99 S. Ct. 2577, 2582 (1979).

Beckett could not have had a reasonable expectation of privacy in the information

that was obtained from the ISPs and the phone companies. The investigators did

not recover any information related to content. Rather, the information consisted

of the identifying information transmitted during internet usage and phone calls

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that is necessary for the ISPs and phone companies to perform their services. It is

unreasonable for Beckett to have been unaware that such information was being

transmitted to the ISPs and phone companies and so he “assumed the risk that the

company would reveal to police the [information].” Smith, 442 U.S. at 744, 99 S.

Ct. at 2582 (“When he used his phone, petitioner voluntarily conveyed numerical

information to the telephone company and ‘exposed’ that information to its

equipment in the ordinary course of business.”). Accordingly, we affirm in this

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respect.

2. Investigators Did Not Exceed Their Warrant When They Searched the

Contents of Beckett’s Computer

Search warrants must be based on “probable cause, supported 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. Even so, “the particularity

requirement must be applied with a practical margin of flexibility, depending on

the type of property to be seized, and that a description of property will be

acceptable if it is as specific as the circumstances and nature of activity under

investigation permit.” United States v. Wuagneux, 683 F.2d 1343, 1349 (11th Cir.

It is also important to note that Beckett entered into express written agreements with the 3

ISPs and phone companies that contained provisions prohibiting use of their services for illegal

activities, such as child pornography and solicitation of minors. The provisions further provided

that the companies would turn over subscriber information to lawful authorities in relation to

investigations into such illegal activities. 

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1982). “A description is sufficiently particular when it enables the searcher to

reasonably ascertain and identify the things authorized to be seized.” Id. at 1348.

Furthermore, “an affidavit incorporated into a warrant by express reference and

attached to and accompanying the warrant can cure ambiguity in the warrant

itself.” United States v. Weinstein, 762 F.2d 1522, 1531 (11th Cir. 1985) (citation

omitted).

Contrary to Beckett’s assertions, the government did not exceed the bounds

of the search warrant when they searched the contents of his computers. The

affidavits attached to the application for a search warrant of Beckett’s house and

computers adequately described the objective of the search. The investigation

centered around allegations that Beckett had contacted minors through the internet

and on his home computer in efforts to have the minors transmit nude photographs

of themselves. The search warrant affidavit explained that a computer and its

drives can store thousands of pages of information and that the pertinent

information can be stored in any part of the computer under any title or heading.

The warrant described with adequate particularity the items to be searched and the

objectives of the search. We find that the search of Beckett’s computers did not

exceed the extent of the warrant. Accordingly, we affirm in this respect.

B. The Evidence Presented at Trial Was Sufficient to Sustain All of Beckett’s

Convictions

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We review the sufficiency of the evidence de novo. United States v.

Garcia-Bercovich, 582 F.3d 1234, 1237 (11th Cir. 2009). We consider the

evidence “in the light most favorable to the jury verdict, and draw all reasonable

inferences and credibility determinations in favor of the Government.” United

States v. Ellisor, 522 F.3d 1255, 1271 (11th Cir. 2008). “[I]t is not necessary that

the evidence exclude every reasonable hypothesis of innocence or be wholly

inconsistent with every conclusion except that of guilt, provided that a reasonable

trier of fact could find that the evidence established guilt beyond a reasonable

doubt.” United States v. Merrill, 513 F.3d 1293, 1299 (11th Cir. 2008) (quotation

omitted).

“To sustain a conviction for the crime of attempt, the government need only

prove (1) that the defendant had the specific intent to engage in the criminal

conduct for which he is charged and (2) that he took a substantial step toward

commission of the offense.” United States v. Murrell, 368 F.3d 1283, 1286 (11th

Cir. 2004).

One is guilty under 18 U.S.C. § 2252A if he “knowingly possesses, or

knowingly accesses with intent to view any . . . film, videotape, computer disk, or

any other material that contains an image of child pornography that has been

mailed, or shipped or transported using any means or facility of interstate or

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foreign commerce or in or affecting interstate or foreign commerce by any means,

including by computer, or that was produced using materials that have been

mailed, or shipped or transported in or affecting interstate or foreign commerce by

any means, including by computer.” 18 U.S.C. § 2252A(a)(5)(B). Accordingly, to

convict a defendant under this provision, the government must prove that (1) the

defendant “knowingly . . . possessed the images;” (2) “the images were . . .

possessed through interstate commerce;” (3) “the images portrayed real minors

engaged in sexually explicit conduct;” and (4) the defendant “was aware of such.”

United States v. Hersh, 297 F.3d 1233, 1254 n.31 (11th Cir. 2002). The

government may prove the interstate commerce element by circumstantial

evidence. Id.

Section 2251(a) makes it a crime for any person

who employs, uses, persuades, induces, entices, or coerces any minor

to engage in . . . any sexually explicit conduct for the purpose of

producing any visual depiction of such conduct or for the purpose of

transmitting a live visual depiction of such conduct . . . if such person

knows or has reason to know that such visual depiction will be

transported or transmitted using any means or facility of interstate or

foreign commerce or in or affecting interstate or foreign commerce or

mailed, if that visual depiction was produced or transmitted using

materials that have been mailed, shipped, or transported in or affecting

interstate or foreign commerce by any means, including by computer,

or if such visual depiction has actually been transported or transmitted

using any means or facility of interstate or foreign commerce or in or

affecting interstate or foreign commerce or mailed.

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18 U.S.C. § 2251(a). We have held that the “most natural reading of this provision

is that jurisdiction extends to child pornography (1) produced with the intent that it

eventually travel in interstate commerce; (2) produced with materials that have

traveled in interstate commerce; or (3) that has traveled in interstate commerce.”

United States v. Smith, 459 F.3d 1276, 1289 (11th Cir. 2006). “Only the first basis

for jurisdiction requires any proof of mental state.” Id.

To demonstrate a violation of § 2422(b), the government must prove that the

defendant, using “any facility or means of interstate . . . commerce,” including the

internet, “acted with a specific intent to persuade, induce, entice, or coerce a minor

to engage in unlawful sex,” even if the defendant did not actually commit any sex

act himself. Murrell, 368 F.3d at 1286; 18 U.S.C. § 2422(b).

We have read the briefs and examined the record and find no merit to

Beckett’s arguments regarding the sufficiency of the evidence. First, the evidence

was sufficient to establish that Beckett knowingly possessed child pornography

because: (1) the child pornography was on Beckett’s computer; (2) it was

contained in an organized fashion in folders titled “porn;” and (3) it was stored

under the user name “Timmy” (as in Timothy Beckett). See United States v.

Miller, 527 F.3d 54, 67 (3d Cir. 2008) (listing factors to determine whether a

defendant knowingly possesses child pornography). Second, the evidence was

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sufficient to show that Beckett enticed the victims to create and send pornographic

photos because Beckett employed the same tactics on all four victims and ended up

receiving the same result, a nude photo of the minor. Beckett’s planned actions

show that he had specific intentions and was well aware of the type of activity his

conversations with the minors implied. Third, Beckett’s argument that there was

insufficient evidence of coercion because the minors were willing to engage in the

activity, is baseless. Beckett posed as a 17 year old girl in order to produce the

responses from his victims. Further, after receiving the nude photos of the victims

he threatened them in an effort to force them into a sexual relationship. This is the

very definition of coercion. The evidence presented was sufficient to sustain

Beckett’s convictions of all nineteen counts.

Based on our review of the record and consideration of the parties’ briefs,

we affirm the District Court’s denial of Beckett’s motions to dismiss and affirm

Beckett’s convictions.

AFFIRMED.

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