United States v. Baker

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

July 30, 2008

No. 06-40757 Charles R. Fulbruge III

Clerk

UNITED STATES OF AMERICA

Plaintiff–Appellee

v.

SAMUEL E. BAKER, JR.

Defendant–Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before JOLLY, CLEMENT, and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

A jury convicted Samuel Baker of possessing, receiving, and distributing

child pornography in violation of 18 U.S.C. §§ 2252 and 2252A. He appeals,

arguing that the district court erred by failing to suppress images seized

pursuant to a search warrant and by admitting documents and images

purportedly provided to law enforcement authorities by the National Center for

Missing and Exploited Children (NCMEC). We vacate his conviction on Count

1, affirm his convictions on Counts 2, 3, and 4, and remand for re-sentencing

with regard to a special assessment.

No. 06-40757

I

Yahoo! Inc. (Yahoo) discovered that someone using an e-mail account

named “jmiller4012@yahoo.com” had posted forty-six images of child

pornography to a group Web site called the “jokerswilder” that was hosted by

Yahoo, but administered by members of the public. The jmiller4012 account had

been created two days before Yahoo found that this account had been used to

upload the child pornography images. Pursuant to 42 U.S.C. § 13032(b)(1),

Yahoo reported this incident to the NCMEC, a national clearinghouse for

information about children believed missing or sexually exploited. As also

required by § 13032(b)(1), the NCMEC reported the matter to appropriate laws

enforcement authorities. Detective Lori Rangel of the Dallas Police Department

Child Exploitation Unit, Internet Crimes Against Children Task Force, initiated

an investigation.

Rangel ultimately traced the jmiller4012 e-mail address to Baker. She

first subpoenaed Yahoo to obtain its records regarding the jmiller4012 account,

and Yahoo responded with the account’s details, including the date on which it

was created and the Internet Protocol (IP) address used to create it. An IP

address is a unique number. Testimony at trial reflected that it can be

associated with a computer’s modem, but that for dial-up users like Baker, the

IP address is not linked directly to a computer’s modem. A discreet range of IP

numbers is assigned to dial-up Internet service providers, and Rangel traced the

IP address she was given by Yahoo to Valley Telephone Coop. She then issued

a subpoena to Valley Telephone, asking for subscriber information associated

with the IP address she received from Yahoo. In response, Valley Telephone

provided Baker’s name and residence address. Rangel then referred the case to

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No. 06-40757

the Cyber Crimes Unit of the Texas Attorney General’s office, where it was

assigned to Sergeant Dave Dodge.

Dodge reviewed the images and determined that he had probable cause to

believe that Baker possessed child pornography in violation of section 43.26 of

the Texas Penal Code. He prepared and signed an affidavit in support of a

search warrant. Based on this affidavit, a magistrate judge issued a warrant to

search Baker’s home and to seize all computer hardware, software, and

peripherals believed to contain child pornography. Officers executed the

warrant the next day and took custody of Baker’s home computers and diskettes.

In addition, Baker’s employer voluntarily gave the police Baker’s work computer

and 134 diskettes from Baker’s office. A forensic analyst recovered hundreds of

images of child pornography from these sources.

Baker was subsequently indicted on federal charges based on 18 U.S.C.

§§ 2252 and 2252A for (1) distributing in interstate commerce forty-six images

of minors engaging in sexual conduct, (2) receiving by means of a computer forty-

six images of minors engaging in sexual conduct that had been transported in

interstate commerce, (3) receiving by means of a computer more than 600 images

of minors engaging in sexual conduct that had been transported in interstate

commerce, and (4) possessing more than 600 images of child pornography that

had been transported in interstate commerce.

Prior to trial, Baker filed a motion to suppress the evidence seized at his

home. The district court held a hearing and denied the motion. A jury

ultimately convicted Baker on all four counts. The district court sentenced

Baker to 240 months in prison on each count, to be served concurrently; a

supervised release term of life; and a special assessment of $100 for each count.

3

No. 06-40757

Baker appeals his conviction on several grounds. First, he contends that

the district court erred in denying his motion to suppress the evidence obtained

from his home. Second, Baker argues that the Government offered an

insufficient evidentiary foundation for the court to admit two exhibits. Finally,

Baker asserts that the district court erred by admitting these exhibits in

violation of his Sixth Amendment right to confrontation. We first consider the

issues surrounding the search warrant.

II

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

suppress because, he asserts, Dodge gave false information or “showed a grossly

reckless disregard for the truth” in his affidavit that served as the basis for the

warrant obtained to search Baker’s residence and to seize his computer and

other items. The affidavit Dodge submitted correctly identified the IP address

Yahoo had said was associated with the jmiller4012 account, but the affidavit

incorrectly stated that the IP address was the same one from which images of

child pornography were uploaded to the jokerswilder Web site. Yahoo did not

determine the IP address from which the images were uploaded. It only

determined that the IP address at issue was associated with the jmiller4012

account at the time it was created. Baker contends that Dodge’s misstatement

was intentional or was made with reckless disregard for the truth.

Baker’s brief in this court does not accurately reflect the procedural

posture of this case with regard to this issue. The district court denied Baker’s

pretrial motion to suppress. But the argument he presents on appeal regarding

the warrant was not raised in that motion or at any other time before, during,

or after trial as a basis for suppressing evidence.

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No. 06-40757

Baker’s pretrial motion to suppress challenged the search warrant on

several grounds, including the fact that there were blanks in the affidavit that

Dodge submitted in support of the warrant. Dodge prepared the affidavit on his

office computer, which displayed the jmiller4012 e-mail address in blue. He

printed the affidavit using a different computer and printer while he was in

another county, just prior to presenting it to the magistrate. The printer left

blank spaces in place of printing the items displayed on the computer screen in

blue. Notwithstanding the blanks in Dodge’s affidavit, the district court found

that the magistrate had a substantial basis for concluding probable cause existed

to believe a crime had been committed and evidence of that crime could be found

at Baker’s residence. Baker has not pursued in this appeal his contentions about

the effect of the blanks on the warrant’s validity or any other of the matters

raised in the motion to suppress. His complaint in this court is limited solely to

an argument that at the time Dodge prepared his affidavit, he knew that Yahoo

could not identify the specific IP address from which the images were uploaded

to the jokerswilder site. Yahoo knew only that the IP address was used by the

person who established the jmiller4012 e-mail address and account at the time

the account was created, which was two days before the child pornography

images were discovered by Yahoo, and that the jmiller4012 e-mail address was

used to upload the images to the jokerswilder Web site.

Baker first asserted that Dodge had made false statements in his affidavit

at the conclusion of a sanctions hearing not pertinent here. At the end of that

hearing, counsel for the parties began to discuss with the court whether Rangel

would be a witness at trial. Baker’s counsel asserted that he needed her

testimony to establish that Dodge had testified falsely at the suppression

hearing and in his affidavit to obtain the search warrant. The district court

5

No. 06-40757

directed counsel for Baker to identify the page and line of Dodge’s allegedly false

testimony and to tie that to what Baker wanted Rangel to refute. Baker’s

counsel said he would undertake to do so, but the record reflects no further

proceedings in this regard.

At trial, Dodge admitted that he made incorrect statements in paragraph

seven of the affidavit he submitted to obtain a warrant to search Baker’s home.

Dodge testified that he knew Yahoo did not know the IP address or date of the

uploads to the jokerswilder Web site and that Rangel had told him this. Dodge

explained that his statements in paragraph seven indicating that the IP address

used to create the account was “the same IP address that was used on Tuesday,

October 19, 2004, when Suspect, [blank space], uploaded 46 images of child

pornography to the Yahoo group” was “a mistake” and an “error.” In response

to repeated questions from Baker’s counsel, Dodge testified several times that

he meant to say “e-mail address” instead of “IP address.”

Baker did not move to strike any evidence after this testimony was

elicited. At the close of the government’s case, Baker moved for an acquittal

under Rule 29 of the Federal Rules of Criminal Procedure, but he did not request

any remedy for the incorrect information in paragraph seven of Dodge’s affidavit.

He argues, for the first time on appeal, that this court should strike the incorrect

references to the IP address from the affidavit to determine whether that

affidavit established probable cause for the search warrant.

We are aware that there is a division of authority among the circuit courts

as to whether arguments not raised in a motion to suppress are waived or are

6

No. 06-40757

merely forfeited and subject to plain-error review1 using the standard

established in United States v. Olano.2 However, this court held in United States

v. Pope that an issue not raised in a motion to suppress in the trial court is

waived, citing Rule 12(b)(3)(C) of the Federal Rules of Criminal Procedure and

prior decisions of this court.3 The Pope decision considered at some length

1

Compare United States v. St. Pierre, 488 F.3d 76, 79 n.2 (1st Cir. 2007) (holding that

“by not objecting to treating the $380 as outside of the original suppression motion and order”

the defendant’s contention that this evidence should be suppressed would be reviewed for plain

error on appeal), United States v. Johnson, 415 F.3d 728, 730 (7th Cir. 2005) (“We think,

however, that in context the word ‘waiver’ in Rule 12(e) does not carry the strict implication

of an ‘intentional relinquishment of a known right’ that precludes all appellate

review. . . . [T]here is no indication that Johnson intentionally decided to abandon his Miranda

argument, and so we view his argument as forfeited and subject to plain error review.”), and

United States v. Buchanon, 72 F.3d 1217, 1227 (6th Cir. 1995) (holding that although a

defendant argued generally that he was illegally seized in violation of his Fourth Amendment

rights, he forfeited his pre-sniff seizure argument by not raising it with specificity and review

was for plain error), with United States v. Brooks, 438 F.3d 1231, 1239-40 (10th Cir. 2006)

(“When a motion to suppress evidence is raised for the first time on appeal, we must decline

review.”), United States v. Hansen, 434 F.3d 92, 104 (1st Cir. 2006) (“We interpret the

mandatory language of Rule 12 broadly to include waiver when a defendant fails to file a

motion to suppress before trial, and have even extended waiver to a situation where a

suppression motion was filed, but the defendant did not include a particular ground and wished

to add it later.”), and United States v. Abboud, 438 F.3d 554, 567-68 (6th Cir. 2006) (“A motion

to suppress evidence must be made before trial. If a defendant does not make such a motion,

he waives the claim.” (internal citations omitted)). In addition, some courts have applied plain

error review in this context without explicitly stating whether the argument was forfeited or

waived. See, e.g., United States v. Stevens, 487 F.3d 232, 242 (5th Cir. 2007) (“Because Raul

Stevens raises his Miranda-based argument for the suppression of his statement of consent for

the first time on appeal, we review for plain error.”); United States v. Young, 350 F.3d 1302,

1305 (11th Cir. 2003) (“Young never asserted this theory in his own motion to suppress.

Accordingly, we review the district court’s ruling for plain error.”).

2

507 U.S. 725 (1993).

3

467 F.3d 912, 918-19 (5th Cir. 2006) (“We have held that [a] ‘defendant who fails to

make a timely suppression motion cannot raise that claim for the first time on appeal.’ We

have also held that failure to raise specific issues or arguments in pre-trial suppression

proceedings operates as a waiver of those issues or arguments for appeal.”) (quoting United

States v. Chavez-Valencia, 116 F.3d 127, 130 (5th Cir. 1997) and citing United States v.

Harrelson, 705 F.2d 733, 738 (5th Cir. 1983)).

7

No. 06-40757

reasons supporting its conclusion that arguments not urged in a motion to

suppress may not be considered on appeal.4 Nevertheless, the Pope decision also

conducted a plain-error analysis and concluded there was no plain error5 as did

our court in United States v. Maldonado.6 We follow the same course today.

Baker contends that the good-faith exception to the exclusionary rule does

not apply because of Dodge’s false statements. Even assuming that Baker

forfeited rather than waived his argument, he has not demonstrated that the

district court plainly or otherwise erred in failing to find that Dodge

intentionally or recklessly made erroneous statements in his affidavit. The

affidavit was lengthy, detailed, and it recounted information obtained from

Yahoo through the cyber tip and pursuant to a subpoena. Dodge testified that

he made a mistake by referring to “IP address” rather than “e-mail” address.

The district court did not plainly err in accepting this explanation.

III

Baker also contends that all four of his convictions should be reversed

because the district court erred in admitting two exhibits, Government Exhibit

8, which purports to be a report from the NCMEC, and Government Exhibit 3,

which is a three-ring binder containing printouts of forty-six images identified

by filename in the full NCMEC report and stored in electronic format on a disc

that accompanied that report. Baker argues that these exhibits were the only

4

Pope, 467 F.3d at 919-20.

5

Id. at 920 n.20 (“Even were we to regard Pope’s argument as merely forfeited and

subject the district court’s decision to plain error review, we would find no such error.”).

6

42 F.3d 906, 913 (5th Cir. 1995) (“[I]t is far from clear that there was error. But, even

assuming error, it was not ‘plain’.”).

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No. 06-40757

evidence from which the jury could have concluded that he was guilty as charged

in Count 1 for distributing child pornography by means of a computer. He

further contends that the admission of these exhibits prejudiced him with regard

to the other three counts on which he was found guilty because this evidence

undermined his contention at trial that he did not know that any of the images

at issue in Counts 2, 3, or 4 were on his home or work computers. He contends

they were downloaded by others.

Baker assails the admission of Government Exhibits 3 and 8 on numerous

grounds, arguing that the Government offered no predicate or foundation for

their admission, that the NCMEC report is a law enforcement report that is

inadmissible under Rule 803(8)(B) and (C) of the Federal Rules of Evidence,7 and

contending, for the first time on appeal, that admission of these exhibits without

a witness with personal knowledge of their preparation and content violated his

Sixth Amendment right to confrontation. Because we agree with Baker that

Exhibits 3 and 8 were erroneously admitted without any foundation or predicate

and that this error was harmful, we do not reach Baker’s other contentions.

Baker contends the Government presented no foundation for admitting the

forty-six images that he allegedly uploaded. That complaint is a valid one.

There was no competent evidence identifying the forty-six images or their

7

FED. R. EVID. 803(8)(B) (“The following are not excluded by the hearsay rule, even

though the declarant is available as a witness: . . . Records, reports, statements, or data

compilations, in any form, of public offices or agencies, setting forth . . . (B) matters observed

pursuant to duty imposed by law as to which matters there was a duty to report, excluding,

however, in criminal cases matters observed by police officers and other law enforcement

personnel, or (C) in civil actions and proceedings and against the Government in criminal

cases, factual findings resulting from an investigation made pursuant to authority granted by

law, unless the sources of information or other circumstances indicate lack of

trustworthiness.”).

9

No. 06-40757

filenames, contained respectively in Exhibits 3 and 8, as the forty-six images

that Yahoo determined had been uploaded to the jokerswilder Web site from the

jmiller4012 e-mail address. A witness from Yahoo testified at trial as the

custodian of at least part of the “cyber tip” that Yahoo made, as required by law,8

to the NCMEC. A printed copy of a two-page summary of the full NCMEC

report and two internal Yahoo tracking documents were authenticated by a

witness from Yahoo and entered into evidence as Government Exhibit 1 without

objection. Exhibit 1 did not contain any images or filenames of images. The

Yahoo witness testified at trial that Yahoo had determined that forty-six images

that it suspected depicted child pornography had been uploaded to the

jokerswilder Web site by someone using the jmiller4012@yahoo.com e-mail

address, and Yahoo forwarded these images to the NCMEC. This witness also

confirmed that the jmiller4012 Yahoo e-mail address was unique. That address

was assigned to only one user. The Yahoo witness further testified that whoever

applied to Yahoo to use this e-mail address was using 216.183.37.230 as his or

her IP address at that time. Other evidence tied that IP address to Baker’s

residence. However, the Yahoo witness did not identify any images or the

filenames of any images. Although the NCMEC report states that the images

it contains were sent to it by Yahoo and that Yahoo told NCMEC these were the

images that were uploaded from the jmiller4012 e-mail address, the Government

8

See 42 U.S.C. § 13032(b)(1) (“Whoever, while engaged in providing an electronic

communication service or a remote computing service to the public, through a facility or means

of interstate or foreign commerce, obtains knowledge of facts or circumstances from which a

violation of . . . Title 18, involving child pornography (as defined in section 2256 of that title),

or a violation of section 1466A of that title, is apparent, shall, as soon as reasonably possible,

make a report of such facts or circumstances to the Cyber Tip Line at the National Center for

Missing and Exploited Children, which shall forward that report to a law enforcement agency

or agencies designated by the Attorney General.”).

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No. 06-40757

established no foundation at trial for the admission of the full NCMEC report,

either by affidavit or live testimony.

Baker objected to the admission of Exhibit 8, which, as noted, was a hard

copy of the NCMEC report that contained the filenames of forty-six images, but

not the images themselves, on the basis that there was no foundation for its

admission. He also requested that he be permitted to voir dire the witness

through which this exhibit was offered (Dodge), but the district court denied that

request. Baker did not, however, object on the basis of improper foundation for

the admission of printouts of the forty-six images, which comprised Exhibit 3.

Accordingly, we review the admission of Exhibit 8 for abuse of discretion9 and

the admission of Exhibit 3 under the plain-error standard.10

Baker contends that assuming, without conceding, the NCMEC report

might otherwise have been admissible as a business record under Rule 803(6)

or as a public record under Rule 803(8), the report was not authenticated. The

Government does not address this argument. It instead appears to construe

Baker’s complaint in this regard as a hearsay argument and merely asserts that

the NCMEC report and the images from it are admissible as public records

under Rule 803(8).

The Government’s position misses the mark. Regardless of whether

Exhibit 8 falls within the ambit of Rule 803(6) or Rule 803(8), issues we do not

resolve, the Government did not authenticate Exhibit 8, which is necessary as

a predicate for admission under either rule. The means of authenticating

records of regularly conducted activity under Rule 803(6) are found within that

9

United States v. Guidry, 456 F.3d 493, 501 (5th Cir. 2006).

10

See United States v. Thompson, 454 F.3d 459, 464 (5th Cir. 2006).

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No. 06-40757

rule.11 Various means of authenticating public records, including self-

authentication, are contained in Rules 90112 and 902.13

The only witness who identified the NCMEC report and the forty-six

images at trial was Dodge, the investigator from the Texas Attorney General’s

office who was assigned to lead its investigation of Baker. No other witness or

document in evidence vouches for the source, accuracy, or circumstances

surrounding preparation of Exhibit 8 or of the disc from which Exhibit 3 was

derived. There is no indication that the Texas Attorney General’s investigator

had personal knowledge of how the NCMEC report was prepared or of the

NCMEC’s practices when it receives a “cyber tip” from an Internet service

provider. The Government does not contend that the NCMEC report is self-

authenticating under Rule 902. Nor does it contend that this report is

authenticated under Rule 901. The Government has not mentioned, much less

11

FED. R. EVID. 803(6) (“Records of Regularly Conducted Activity.--A

memorandum, report, record, or data compilation, in any form, of acts, events, conditions,

opinions, or diagnoses, made at or near the time by, or from information transmitted by, a

person with knowledge, if kept in the course of a regularly conducted business activity, and if

it was the regular practice of that business activity to make the memorandum, report, record

or data compilation, all as shown by the testimony of the custodian or other qualified witness,

or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting

certification, unless the source of information or the method or circumstances of preparation

indicate lack of trustworthiness. The term “business” as used in this paragraph includes

business, institution, association, profession, occupation, and calling of every kind, whether or

not conducted for profit.”).

12

See, e.g., id. Rule 901(b)(7) (“Public records or reports. Evidence that a writing

authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a

purported public record, report, statement, or data compilation, in any form, if from the public

office where items of this nature are kept.”).

13

See, e.g., id. Rule 902(2) (describing authentication of “Domestic public documents not

under seal”); Rule 902(4) (describing authentication by presenting certified copies of public

records).

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No. 06-40757

briefed, the applicability of these rules to Exhibit 8. The record is devoid of any

evidence authenticating Exhibit 8.

In light of the record as a whole, we conclude that the district court erred

by admitting Exhibit 8 over Baker’s objection that no foundation or predicate

was offered. Although the issue is a close one, we cannot confidently say that

this error was harmless. Exhibit 8 contains two lists of file names corresponding

to images that Baker allegedly uploaded to Yahoo; it also states that the listed

images “appear to contain child pornography.” The jury could have inferred from

Exhibit 8 that Baker uploaded child pornography to Yahoo. In fact, Exhibit 8—a

report from the NCMEC—was the only evidence showing that Baker uploaded

child pornography to the Internet; Exhibit 3 contained photographs of child

pornography, but the photographs alone, taken out of context from the full

NCMEC report, presented no evidence that Baker distributed pornographic files.

With regard to the admission of the child pornography images in Exhibit

3, “[t]o demonstrate plain error, [Baker] must show that the district court

committed an error that was clear or obvious and that affected [Baker’s]

substantial rights.”14 We will only correct such an error if Baker can “show that

the error has a serious effect on the fairness, integrity, or public reputation of

judicial proceedings.”15 The only source in the record of the child pornography

images Baker purportedly uploaded was Exhibit 3. The sole authenticator and

sponsor of that exhibit was Dodge. Although Dodge testified without objection

at trial that the images in Exhibit 3 were the ones uploaded to the Yahoo Web

site, it is clear from reading the record in its entirety that the witness had no

14

See Thompson, 454 F.3d at 464.

15

Id.

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No. 06-40757

personal knowledge of this fact. At other junctures during the trial, it was

apparent that he obtained the images from other state law enforcement officers,

and that his only basis for testifying that these images were the ones uploaded

to the Yahoo Web site and sent by Yahoo to NCMEC was statements to that

effect in the NCMEC report. Because the Government offered no witness

competent to sponsor Exhibit 3, the admission of that exhibit was error.

Moreover, that error is plain. The sponsoring witness clearly had no

firsthand knowledge of the exhibit’s chain of custody. The Government offered

no independent evidence sufficient to show that Baker uploaded to Yahoo the

images in Exhibit 3.

Finally, we conclude that this error affected Baker’s substantial rights.

An error affects substantial rights if it “affect[s] the outcome of the district court

proceedings.”16 The only source of the images that Baker purportedly uploaded

to Yahoo was Exhibit 3, so this exhibit was essential to Baker’s Count 1

conviction for distributing child pornography. The error in admitting Exhibit 3

affected the “outcome” of the proceedings by leading to a conviction on Count 1.

The Government notes that twelve of the forty-six images from Exhibit 3

were also found on Baker’s home computer. But without Exhibit 3, no evidence

shows that Baker uploaded these images to the Yahoo Web site as opposed to

downloading them from that or some other Internet source. Because the

evidence, other than Exhibit 3, to support the conviction for distributing child

pornography was thin, at best, the error in admitting Exhibit 3 affected Baker’s

substantial rights.

16

United States v. Olano, 507 U.S. 725, 734 (1993).

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No. 06-40757

We also conclude that this error had a “serious effect on the fairness,

integrity, or public reputation of judicial proceedings.”17 In United States v.

Avants, the district court suppressed before trial highly inculpatory statements

by the defendant.18 The district court then stayed proceedings pursuant to 18

U.S.C. § 3731 pending the Government’s appeal of the suppression order to this

court. On appeal, the Government raised for the first time a compelling

argument that the suppression was erroneous. We agreed that the suppression

order constituted plain error. In concluding that the error “seriously

undermine[d] the ‘fairness, integrity, and public reputation of the judicial

proceedings,’” we “f[ou]nd it particularly important that the court’s error

resulted in the exclusion of [the defendant’s] startling and candid

admission . . . .”19 We characterized the suppressed evidence as “powerful

evidence of guilt, the admission or exclusion of which would be highly likely to

affect the outcome of the trial.”20 If the erroneous exclusion of essential

inculpatory evidence has a “serious effect on the fairness, integrity, or public

reputation of judicial proceedings,” we have no trouble concluding that the

erroneous inclusion of such evidence does as well.

The Government asserts that its Exhibits 3 and 8 “were entirely derivative

and cumulative,” but the record simply does not bear this out. Regarding the

upload, other than the two challenged exhibits, the record contains only

Government Exhibit 1, a two-page summary of the NCMEC report. But that

17

Id.

18

278 F.3d 510 (5th Cir. 2002).

19

Id. at 522 (quoting Johnson v. United States, 520 U.S. 461, 467 (1997)).

20

Id.

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No. 06-40757

exhibit did not contain any images or file names of any images. The sole source

in the record of the images that Baker was accused of distributing by uploading

to the Yahoo jokerswilder Web site was Exhibit 3.

Because the admission of Exhibit 8 was harmful error, and because the

admission of Exhibit 3 was plain error, we vacate Baker’s conviction on Count

1. We reject, however, Baker’s argument that the admission of those two

exhibits requires reversal of the other three counts on which he was convicted.

Counts 2 and 3 charge Baker with knowingly receiving child pornography on or

about two separate dates. Count 4 charged Baker with knowingly possessing

films, video tapes, or other materials containing child pornography on or about

a particular date. The Government presented evidence of many images of child

pornography on Baker’s home computer and evidence of over 600 images of child

pornography on the computer he used at work and on diskettes that were in his

office. The erroneous admission of Exhibits 3 and 8 does not require reversal of

these counts.

Because of our disposition of this case, we do not reach Baker’s contention

that admitting the NCMEC report without a witness who had personal

knowledge of its content or preparation violated his Sixth Amendment right to

confrontation.

* * *

For the foregoing reasons, we REVERSE Baker’s conviction on Count 1

(distributing child pornography), and AFFIRM Baker’s convictions on Counts 2,

3, and 4 (receiving and possessing child pornography). Because the district court

imposed a special assessment for Count 1 pursuant to 18 U.S.C. § 3013, we

additionally VACATE Baker’s sentence and REMAND for resentencing.

16