CP Convictions, Sentence, Affirmed After Numerous Challenges

US v. Ebert: In 2016, Ebert’s then adult daughter, HH, reported to law enforcement in Ohio that her father had been taking sexually suggestive and explicit photos of her over a period of time that included while they were living in North Carolina. As a result of the ensuing investigation, law enforcement in North Carolina obtained a warrant to search Ebert’s home there and found “numerous photos of HH taken over several years in various stages of undress,” as well as several videos made after HH turned 18 where Ebert can be heard “off camera directing HH to make certain poses and expressions.” Ebert was charged with transporting a minor across state lines to engage in sexual activity, sexual exploitation of a minor, and possession of child pornography. After the district denied Ebert’s motion to suppress the evidence found at his home a jury convicted him of the latter two charges. The district court imposed a 300-month sentence.

On appeal, the Fourth Circuit affirmed the convictions and sentence, turning away three challenges raised by Ebert. First, Ebert argued that there was insufficient probable cause to support the warrant to search his home because it was based on HH’s allegations of activity that was five-to-eight year earlier. The court noted that traditional issues with staleness do not apply in child pornography situations because the evidence itself is not consumable (like drugs) and tends to be retained over time. Therefore, there was probable cause to support the warrant. At any rate, the district court was correct that the Leon good-faith exception applied (a conclusion Ebert did not challenge on appeal). Second, Ebert argued that the videos taken after HH turned 18, as well as her testimony about them and the testimony of another minor with whom Ebert was sexually suggestive, should have been excluded under either Rule 404(b) or Rule 403 of the Rules of Evidence. The court disagreed, finding that the videos and HH’s testimony were intrinsic to the charged offenses, the other minor’s testimony was relevant 404(b) testimony, and none of it was more prejudicial than probative under Rule 403. Finally, Ebert argued that the district court clearly erred by imposing a Guideline enhancement for engaging in a pattern of conduct with a minor. The court concluded that based on HH’s testimony (which the jury credited) there was no clear error.