United States v. Ashley Anders Bishop , 683 F. App'x 899 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-15406
Non-Argument Calendar
________________________
D.C. Docket No. 6:15-cr-00121-PGB-GJK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ASHLEY ANDERS BISHOP,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 3, 2017)
Before TJOFLAT, WILLIAM PRYOR, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Ashley Bishop appeals his convictions and 280-month total sentence of
imprisonment after being found guilty of one count of possession of child
pornography and four counts of receipt of child pornography. On appeal, Bishop
argues that the district court erred or abused its discretion in four main ways: (1)
denying his motion to suppress evidence of child pornography obtained from his
cell phones; (2) refusing his request to ask prospective jurors a specific question
about whether they could be impartial given his prior conviction for a child sex
offense; (3) denying his motion in limine to preclude the government from telling
the jury the name and nature of his prior state conviction for attempted lewd and
lascivious molestation of a minor; and (4) imposing a substantively unreasonable
total sentence of 280 months of imprisonment, which was 100 months above the
guideline range of 180 months. After a careful review of the record and
consideration of the parties’ briefs, we affirm.
I. Background
A. Background Facts and Offense Conduct1
In 2001, a Florida state court sentenced Bishop to serve fifteen years in
prison to be followed by fifteen years of supervised probation after he was found
guilty of attempted lewd and lascivious molestation of a minor less than twelve
1
These facts are taken primarily from the hearing on Bishop’s motion to suppress.
2
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years of age. Bishop served around twelve years in prison before starting his term
of probation in September 2012.
As part of his probation sentence, Bishop was subject to both standard
conditions and sex-offender specific conditions. Among the standard conditions,
Bishop was required to “submit to a reasonable search without a warrant by the
Probation Officer of your person, effects, residence or business premises or vehicle
for alcoholic beverages, controlled substances, weapons or firearms.” The special
conditions for sex offenders required him to “submit to a warrantless search by the
probation officer of your person, residence or vehicle,” and they prohibited him
from viewing, owning, or possessing “any obscene, pornographic, or sexually
stimulating visual or auditory material, including telephone, electronic media,
computer programs, or computer services” that were relevant to his “deviant
behavior pattern.” Bishop also was required to report, among other information,
any email addresses or other “internet identifiers” he used.
In or around August 2014, Bishop violated the conditions of his probation
by using cocaine. He was sentenced to 90 days in jail to be followed by one year
of “community control” and a new 13-year term of probation. Community control
is a form of intensive supervised custody similar to house arrest. Bishop was
subject to electronic GPS monitoring while on community control.
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In January 2015, a state court issued a warrant for Bishop’s arrest for
violating the monitoring conditions of his community control. Nancy Paulin,
Bishop’s probation officer at the time, contacted Deputy Sheriff James
Montgomery of the Orange County Sheriff’s Office (“OCSO”) to ask him for help
in arresting Bishop. Montgomery, in turn, asked Henry Amole, an OCSO Fugitive
Agent, to execute the arrest warrant.
Amole went to Bishop’s home early in the morning on February 4, 2015.
Bishop was not fully dressed when Amole arrived, so Amole accompanied Bishop
to his bedroom to allow him to finish dressing. In Bishop’s bedroom, Amole
noticed Bishop nervously grab and unplug an iPhone from a nightstand by the bed.
Bishop handed over his iPhone when he was booked into the jail.
After Bishop’s arrest, Amole updated Montgomery and relayed that Bishop
had an iPhone and appeared to be very nervous about it. Amole also told
Montgomery that, in his experience, compliant sex offenders generally did not
have smartphones capable of internet access. Amole asked Montgomery to look
into whether Bishop’s potentially unrestricted access to the internet violated the
conditions of his probation.
Montgomery, in turn, informed Paulin about the iPhone. Paulin was not
aware of the phone, and she told Montgomery that Bishop, as a sex offender, was
not allowed to access the internet. Montgomery asked for Paulin’s permission to
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search the iPhone, which she granted based on her authority as his probation
officer. Paulin told Montgomery to conduct a search of the phone for evidence of
a probation violation. Paulin’s request was not out of the ordinary. Probation
often asked law enforcement for help in arresting probationers and conducting
searches of electronic devices.
Montgomery obtained Bishop’s iPhone from the jail and placed it in storage
at the OSCO. Even though he had received Paulin’s permission to conduct a
warrantless search of the phone, Montgomery independently decided to apply for a
search warrant. In applying for the warrant, Montgomery submitted an affidavit
which gave the following facts: (a) Bishop was a convicted sex offender required
by Florida law to register any email addresses he used; (b) he had an iPhone in his
possession; (c) iPhones are used to access the internet; (d) iPhones users need to
register an email address with Apple in order to download and install applications;
(e) Bishop had registered one email address with the state. Based on these facts,
Montgomery concluded: “The evident use of an IOS phone by Bishop, with its
attendant need for an email account in order to install applications, lead [your]
affiant to believe that Bishop has willfully failed to register this unknown email
account in violation of [§] 943.0435(9).” A state judge issued the warrant based
solely on the affidavit.
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While not listed in the affidavit, Montgomery testified that he knew from
training and experience that sex offenders often registered a single email address
while using other unregistered email addresses. One reason sex offenders did so,
Montgomery explained, was that many social media companies like Facebook
queried the state registration data and would not allow a sex offender to sign up
using a registered email.
After obtaining the warrant, Montgomery searched Bishop’s iPhone. During
the search, Montgomery came across a readily apparent image of child
pornography as he looked through photographs on the phone to try to verify the
phone’s owner. At that point, Montgomery stopped the search and then applied for
and obtained a second warrant to search the phone, this time for evidence of child
pornography. The second search revealed around 70 images of child pornography.
At that point, Montgomery applied for and obtained a warrant for Bishop’s arrest.
Upon his arrest, Bishop was in possession of another smartphone, a subsequent
search of which revealed additional images of child pornography.
B. Federal Court Proceedings
A federal grand jury returned an indictment charging Bishop with one count
of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B)
and (b)(2), and four counts of receipt of child pornography, in violation of 18
U.S.C. § 2252A(a)(2)(B) and (b)(1).
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1. Bishop’s Motion to Suppress
Bishop moved to suppress all evidence of child pornography, arguing that
the facts set forth in the affidavit for the first search warrant were insufficient to
support a finding of probable cause. He did not independently challenge the
subsequent two searches of his phones, but he argued that all evidence obtained
from his phones was tainted by the initial unlawful search.
The district court held a suppression hearing on August 13, 2015. At the
hearing, the court heard testimony from the following persons: Colleen Brady-
Svitak, who was a probation supervisor for the Florida Department of Corrections;
Paulin, who was Bishop’s probation officer; Amole, who arrested Bishop on
February 4; and Montgomery, who applied for the search warrants. Notably, at the
hearing Bishop did not challenge the probation officers’ testimony that the sex-
offender conditions of his probation prohibited him from accessing the internet.
The district court orally denied the motion to suppress for reasons stated on
the record. The court first determined that the search-warrant affidavit was
sufficient to establish probable cause. Probable cause existed, in the court’s view,
because the state judge who issued the warrant was given facts that Bishop was in
possession of an iPhone, that “this device is the kind that requires an email address,
it’s the kind of device that is used to access the internet, and [as] a registered sex
offender, this conduct was simply not permitted.”
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Even if probable cause to issue the warrant was lacking, the district court
continued, suppression was not appropriate because Montgomery had acted in
good faith, under the Supreme Court’s decision in United States v. Leon, 468 U.S.
897 (1984), and because the evidence would have been discovered inevitably. On
the issue of inevitable discovery, the court found that the issue “turn[ed] on
whether or not a warrantless search would have been proper,” because there was
no dispute that, before Montgomery applied for the warrant, he had been “given
permission by Probation Officer Paulin on February 5 . . . to search the iPhone
without a warrant.” The court found that a warrantless search based on reasonable
suspicion would have been permitted because Bishop had a diminished expectation
of privacy in his iPhone due to the conditions of his probation and because
reasonable suspicion to search “clearly existed.”
2. Motion in Limine
A few days before trial, Bishop filed a motion in limine asking the district
court to limit the “extent, quantity, and quality” of evidence the government
intended to admit through Rule 414, Fed. R. Evid. More precisely, Bishop wanted
to prevent the jury from hearing the name of his prior state conviction for
attempted lewd and lascivious molestation of a minor under twelve years of age.
He was willing to stipulate that he had a prior conviction and that he was on
community control with various conditions.
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The district court orally denied the motion in limine before jury selection.
Noting that the evidence of Bishop’s prior conviction was admissible under Rule
414, the court found that the relevant question was whether the evidence satisfied
Rule 403, which requires a balancing of probative value and prejudice. The court
found that the evidence was probative of his possession of the phone, his lack of
mistake, and his intent to possess or receive the images of child pornography.
Turning to prejudice, the court explained that the nature of the prior conviction was
unlikely to excite the emotions of the jury to the extent that it would lead to
irrational behavior. The court also noted that, while the conviction was over ten
years old, Bishop had been arrested for possession of the images within a short
time after his release from prison. Concluding that the probative value of the
evidence was not substantially outweighed by the risk of unfair prejudice, the court
denied the motion in limine.
3. Voir Dire
During the district court’s introductory statements to prospective jurors, the
court explained that Bishop was on trial for charges of possession and receipt of
child pornography, including “visual depictions of a minor who has not yet
attained the age of 12 engaging in sexually explicit conduct.” Later, the court
asked all of the prospective jurors:
[D]o any of you know of any reason that you may be prejudiced for or
against the government or the defendant in this case because of the
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nature of the case or otherwise? That is being prejudiced for or
against the government or the defendant due to the nature of the
case[,] and before we raise hands let me just mention this. Every
individual who appears in court is presumed to be innocent. And the
government has the burden of proving an individual’s guilt on each
and every count beyond and to the exclusion of every reasonable
doubt. And as a result, the defendant starts this case, as all individuals
do, with the presumption of innocence.
With that qualifier and being aware of the nature of the charges
set forth in the indictment, does anyone believe they would be
prejudiced for or against the government or the defendant because of
the nature of the charges?
The court questioned each of the prospective jurors who had raised a hand.
Later, while the prospective jurors were out of the room, defense counsel
indicated that he wanted to ask the jurors the following question: “Is the fact that
[Bishop] has previously been convicted of a sex offense related to a minor, in and
of itself, going to impair or materially affect your ability to remain fair and
impartial in this case?” Defense counsel expressed concern that jurors would
convict Bishop based solely on his prior conviction. He also requested that the
court ask all the jurors if viewing graphic images of child pornography would
affect their impartiality.
The district court refused Bishop’s proposed question regarding his prior
conviction. In the court’s view, the question went beyond issues of fairness and
impartiality and strayed into the territory of “whether the government has a good
case or a bad case.” The court found it inappropriate to ask how prospective jurors
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would react to specific pieces of evidence. But the court accepted Bishop’s other
suggestion and asked the prospective jurors whether they could be fair and
impartial in light of the potentially graphic nature of the images, following up
individually with those who indicated it could be a problem.
4. Trial
The government’s case against Bishop was tried over two days. After the
jury was sworn, the district court explained preliminary matters to the jury,
including that some evidence was admitted for a limited purpose and that they
must consider such evidence only for that limited purpose. Then, when instructing
the jury after closing arguments, the court gave Bishop’s proposed jury instruction,
which stated that evidence of a prior conviction was not sufficient, by itself, to
prove that he was guilty of the crimes charged in the indictment. The jury found
Bishop guilty on all five counts.
5. Sentencing
Based on a criminal history category of III and a total offense level of 30,
the presentence investigation report (“PSR”) recommended a guideline range of
121 to 151 months of imprisonment. However, Bishop was subject to a 180-month
mandatory minimum for Counts 2 through 5 (receipt of child pornography). At
sentencing, the district court adopted the PSR’s guideline calculations and, despite
the parties’ agreement that a total sentence of 180 months of imprisonment was
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appropriate, sentenced him to a total prison term of 280 months, citing in particular
the needs for deterrence and protection of the public. Bishop now appeals.
II. Motion to Suppress
Bishop first challenges the denial of his motion to suppress, arguing that the
affidavit in support of the first search warrant was insufficient to establish probable
cause to search and that no exception to the exclusionary rule applies. He asserts
that the evidence of child pornography obtained from the subsequent two searches
of his phones is suppressible as fruit of the poisonous tree.
In reviewing a district court’s denial of a motion to suppress, we review the
district court’s factual findings for clear error and its legal conclusions de novo.
United States v. Johnson, 777 F.3d 1270, 1274 (11th Cir. 2015). We construe the
facts in the light most favorable to the party who prevailed below. United States v.
Hooshmand, 931 F.2d 725, 735 (11th Cir. 1991).
Our inquiry proceeds in two steps. We first ask whether the facts set forth in
the affidavit constituted a substantial basis for a finding of probable cause.
Because we find probable cause lacking, we then evaluate whether an exception to
the exclusionary rule applies.
A. Sufficiency of the Search Warrant Affidavit
The Fourth Amendment mandates that “no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation.” U.S. Const. amend. IV. The
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task of the magistrate issuing a warrant is to make a practical, common-sense
decision whether, given all the circumstances set forth in the probable cause
affidavit, 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). The duty of a
reviewing court is simply to ensure that the magistrate had a substantial basis for
concluding that probable cause existed. Id. at 238–39.
“We review de novo whether the facts set forth in an affidavit constitute a
sufficient basis for a finding of probable cause.” United States v. Lopez, 649 F.3d
1222, 1245 (11th Cir. 2011). A probable-cause affidavit must state facts sufficient
to justify a conclusion that evidence of a crime will probably be found. United
States v. Martin, 297 F.3d 1308, 1314 (11th Cir. 2002). The affidavit should
establish a connection between the defendant and the place to be searched and a
link between the place to be searched and any criminal activity. Id.
Although our review of the sufficiency of the affidavit is “de novo,” we must
give “great deference” to the magistrate’s decision and uphold “the magistrate’s
findings even in marginal or doubtful cases.” United States v. Nixon, 918 F.2d
895, 900 (11th Cir. 1990). “Deference to the magistrate, however, is not
boundless.” Leon, 468 U.S. at 914. The facts set forth in the affidavit must
provide a sufficient basis for a finding of probable cause; reviewing courts owe no
deference when the magistrate issues a warrant based solely on conclusory
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allegations. Id. at 915; United States v. Glinton, 154 F.3d 1245, 1257 (11th Cir.
1998).
Here, we agree with Bishop that the facts set forth in the affidavit failed to
provide a substantial basis for concluding that probable cause existed. Although
the affidavit established a connection between Bishop and the iPhone, it failed to
establish a link between the iPhone and any criminal activity. See Martin, 297
F.3d at 1314. The affidavit alleges that Bishop used an unregistered email address
in connection with his iPhone. But the affidavit gives no reason to suspect that
Bishop either did not use or could not have used his registered hotmail.com email
address for that purpose. Notably, Montgomery acknowledged at the suppression
hearing that Bishop could have used his registered email address as his Apple ID.
So, if Bishop could have used his registered email address as his Apple ID, the fact
that he possessed an iPhone and used it to download applications over the internet
does not suggest that he failed to register an email address. Accordingly, the
affidavit did not state facts sufficient to justify a conclusion that evidence of a
crime would probably be found. See id.
B. Whether the Exclusionary Rule Applies
Evidence obtained in violation of an individual’s rights under the Fourth
Amendment ordinarily must be excluded from the prosecution’s case. Martin, 297
F.3d at 1312. The exclusionary rule, as it is known, is a judicially created remedy
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designed to deter future Fourth Amendment violations. Id. But the fact that a
Fourth Amendment violation occurred does not automatically mean that the
exclusionary rule applies. Herring v. United States, 555 U.S. 135, 141 (2009).
The application of the exclusionary rule depends on a cost-benefit analysis that
takes into account the deterrent value served by suppression and “the substantial
social costs generated by the rule.” Davis v. United States, 564 U.S. 229, 237
(2011) (internal quotation marks omitted). “For exclusion to be appropriate, the
deterrence benefits of suppression must outweigh its heavy costs.” Id.
The district court concluded that two exceptions to the exclusionary rule
applied in this case. First, the court found that suppression was not warranted
because Montgomery had acted in good faith—that is, his conduct was objectively
reasonable. The court rejected Bishop’s contention that the affidavit supporting
the warrant was “so lacking in indicia of probable cause as to render official belief
in its existence entirely unreasonable.”2 Leon, 468 U.S. at 923 (quotation marks
omitted). Second, the court found that the evidence of child pornography would
2
The district court appears to have relied on facts outside of the affidavit in evaluating
the sufficiency of the affidavit under Leon, though the transcript is not entirely clear on the
matter. In doing so, the court may have erred. See United States v. Robinson, 336 F.3d 1293,
1296 (11th Cir. 2003) (“In Martin, we indicated that, in order to determine whether an affidavit
lacked sufficient indicia of probable cause, we must look only at the face of the affidavit.”).
Martin suggests that the inquiry into whether an affidavit contains sufficient indicia of probable
cause is limited to the face of the affidavit, but once such indicia are found, the court can “look
beyond the four corners of the affidavit to determine whether the Leon good-faith exception
applies.” See Martin, 297 F.3d at 1319 n.11.
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have been discovered inevitably through lawful means, specifically through a
warrantless search of Bishop’s iPhone for evidence of a probation violation.
Here, even assuming arguendo that the search warrant affidavit was wholly
deficient and that the good-faith exception does not apply, the district court still
properly denied Bishop’s suppression motion because the evidence of child
pornography was admissible under the inevitable-discovery doctrine. Accordingly,
we need not and do not address the issue of good faith.
The Supreme Court has explained that there is no rational basis to suppress
evidence obtained by unconstitutional methods if the government can prove that
the evidence would have been obtained inevitably by lawful means. Nix v.
Williams, 467 U.S. 431, 447 (1984). For evidence to be admissible under the
inevitable-discovery doctrine, the government must establish two things: (1) a
“reasonable probability that the evidence in question would have been discovered
by lawful means”; and (2) “the lawful means which made discovery inevitable
were being actively pursued prior to the occurrence of the illegal conduct.”
Johnson, 777 F.3d at 1274 (quoting Jefferson v. Fountain, 382 F.3d 1286, 1296
(11th Cir. 2004)).
Bishop’s initial brief on appeal challenges only the second requirement—
whether Deputy Montgomery and Probation Officer Paulin were in “active
pursuit” of a lawful means of discovery. Accordingly, he has abandoned his
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challenge to the first requirement by not raising the issue in his initial brief. See
United States v. Nealy, 232 F.3d 825, 830–31 (11th Cir. 2000). His arguments on
this issue in the reply brief come too late. See Lopez, 649 F.3d at 1246.
In any case, even assuming the issue has been properly raised, the
government established a reasonable probability that the evidence in question
would have been discovered by lawful means. Specifically, we agree with the
district court’s findings, explicit or implicit, that (1) no more than reasonable
suspicion was needed to conduct a warrantless search of Bishop’s iPhone, (2)
reasonable suspicion to search for evidence of a probation violation existed, and
(3) a search of the phone for evidence of a probation violation likely would have
uncovered the evidence of child pornography.
First, the district court properly concluded that a warrantless search of
Bishop’s iPhone would have been reasonable under the balancing test set forth in
United States v. Knights, 534 U.S. 112, 118–19 (2001). In Knights, the Supreme
Court examined the reasonableness of a warrantless search by a law-enforcement
officer of a probationer for investigative purposes. See id. at 115–16. The Court
explained “that the reasonableness of a search is determined by assessing, on the
one hand, the degree to which it intrudes upon an individual’s privacy and, on the
other, the degree to which it is needed for the promotion of legitimate
governmental interests.” Id. at 118–19. Because probationers subject to a
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condition authorizing warrantless searches have a greatly diminished expectation
of privacy, while the government has a considerable interest in supervising
probationers, the Court held that warrantless searches of a probationer subject to a
search condition based on reasonable suspicion are reasonable under the Fourth
Amendment. See id. at 119–21.
In United States v. Yuknavich, we extended Knights to a situation in which
no warrantless search condition was present. 419 F.3d 1302, 1309–10 (11th Cir.
2005). Yuknavich, like this case, involved a sex-offender probationer who was
subject to limitations on computer and internet usage. See id. at 1304–05, 1310
(restricting internet usage to “work related purposes” during “work hours).
Because of these limitations, we explained, Yuknavich should have been prepared
to answer questions about his internet usage and to have “the officers . . . conduct
their own research to find the answers.” Id. at 1310. In light of the internet
limitation, in conjunction with the crime for which Yuknavich was convicted
(relating to child pornography) and his conduct while on probation, we found that
Yuknavich’s expectation of privacy in his computer was greatly diminished and
that no more than reasonable suspicion was needed to conduct a search of his
computer. Id. at 1310–11.
Here, Bishop’s legitimate expectation of privacy in his iPhone was greatly
reduced both by a warrantless search condition and a specific restriction on internet
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usage. Bishop was required to “submit to a warrantless search by the probation
officer of [his] person, residence or vehicle,” and he was prohibited from viewing
or possessing any electronic pornographic material relevant to his deviant behavior
pattern.3 As in Yuknavich, Bishop should have been prepared to answer questions
about his use of a smartphone and he should have been prepared for officers to
conduct their own research to find the answers. See id. at 1310. Additionally, the
government’s interests in supervision were significant, as both Knights and
Yuknavich make clear. See Knights, 534 U.S. at 120; Yuknavich, 419 F.3d at 1310
(noting states’ vital interest in rehabilitating sex offenders). Accordingly, no more
than reasonable suspicion was needed to search Bishop’s iPhone.
Second, reasonable suspicion to search Bishop’s iPhone existed, even
assuming, as Bishop asserts, that his probation conditions did not completely
prohibit him from possessing a smartphone or accessing the internet. Reasonable
suspicion exists when, under the totality of the circumstances, officers have a
particularized and objective basis for suspecting legal wrongdoing. Yuknavich,
419 F.3d at 1311. For this analysis, we consider the facts known to Probation
Officer Paulin and Deputy Montgomery before Paulin authorized Montgomery to
3
Although the warrantless search condition did not specifically address a “cellphone” or
a person’s “effects,” no reasonable sex-offender probationer would believe that a cellphone in his
possession was excepted from the broad scope of this search condition. In any case, the lack of a
search condition would not sway the Knights balancing test here in light of the restrictions on
internet usage and the crime for which Bishop was convicted. See Yuknavich, 419 F.3d at 1310–
11.
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search Bishop’s iPhone for evidence of a probation violation.4 They knew that
Bishop had been convicted of a sex offense involving a minor and was subject to
restrictions on internet usage. They also knew that Bishop was in possession of an
iPhone, that the phone had not been disclosed to Paulin, that Paulin had told
Bishop (correctly or incorrectly) that he was not allowed to access the internet, that
one of the main functions of a smartphone is internet access, and that Bishop
appeared to be very nervous about the phone. In light of these facts, the officers
had reasonable suspicion to suspect that Bishop’s use of his iPhone violated his
probation. See id.
Finally, these facts also demonstrate a reasonable probability that the
evidence in question would have been discovered by a reasonable warrantless
search of Bishop’s iPhone. See Johnson, 777 F.3d at 1274. Given the
circumstances of the discovery of the phone, the restrictions on Bishop’s internet
usage, and the need to confirm that Bishop owned the phone, there is a reasonable
probability that the evidence of child pornography would have been discovered
during a lawful search of the phone for evidence of a probation violation. In sum,
the first requirement for the inevitable-discovery doctrine was met because the
government established lawful means that made discovery inevitable. See id.
4
We do not consider the subjective beliefs or motivations of either Paulin or
Montgomery, and we evaluate the existence of reasonable suspicion based on the “collective
knowledge of the officers.” See United States v. Nunez, 455 F.3d 1223, 1226 (11th Cir. 2006).
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Turning to the second requirement for the inevitable discovery doctrine—
that the lawful means that made discovery inevitable were being “actively
pursued” prior to the occurrence of the illegal conduct—Bishop argues that Deputy
Montgomery and Probation Officer Paulin were not “actively pursuing” a lawful
means of discovery prior to the illegal search because the only effort to obtain the
evidence was through the invalid search warrant. Bishop asserts that the district
court failed to apply this requirement.
Initially, the record belies Bishop’s assertion that the district court failed to
apply the active-pursuit requirement. In context, the court found this requirement
met because Paulin had asked Montgomery to conduct a warrantless search of the
phone before the alleged illegality involving the warrant affidavit. See United
States v. Cataldo, 171 F.3d 1316, 1319 n.6 (11th Cir. 1999) (“[W]e do not assume
that the district judges do not know the law: their ambiguous oral statements, if
possible, are interpreted to be consistent with (and not inconsistent with) the
law.”). And such a search, as we have established, would have been lawful.
Bishop’s contention that the inevitable-discovery doctrine cannot apply
because only one search in fact occurred is inconsistent with our precedent.
Indeed, we have explained that “‘[a]ctive pursuit’ does not require that police have
already planned the particular search that would obtain the evidence. The
government must instead establish that the police would have discovered the
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evidence ‘by virtue of ordinary investigations of evidence or leads already in their
possession.’” Johnson, 777 F.3d at 1274–75 (quoting United States v. Virden, 488
F.3d 1317, 1323 (11th Cir. 2007)); see id. at 1275 (“[T]he purpose of the
requirement of active pursuit is to exclude evidence that was not being sought in
any fashion.”).
Here, the investigation into whether Bishop’s use of the iPhone violated the
terms of his probation is “the lawful means which made discovery inevitable.” See
id. at 1275. And those means were being “actively pursued” because, as the
district court found, Paulin had authorized a warrantless search of Bishop’s phone
for evidence of a probation violation before the assumedly illegal conduct
involving the search warrant. That search, in turn, would have been lawful and
likely would have led to the discovery of the child pornography on the phone.
Applying the exclusionary rule in these circumstances would effectively
punish the government for Montgomery’s decision to apply for a warrant that was
not necessary. In other words, if we were to rule in Bishop’s favor, “we would put
the government in a worse position than had the [alleged] police misconduct not
occurred, an outcome that the inevitable discovery exception was fashioned to
avoid.” See id. “Subtract the illegal search from the factual picture in this case
and nothing of substance would have changed.” See id. at 1274 (alteration
adopted) (internal quotation marks omitted).
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Because the government established that the evidence of child pornography
from Bishop’s iPhone would have been obtained inevitably by lawful means being
actively pursued, there is no rational basis to suppress the evidence even if the
initial search warrant was invalid. See Nix, 467 U.S. at 447. Accordingly, we
affirm the denial of Bishop’s motion to suppress.
III. Jury Voir Dire
Bishop next argues that the district court erred in denying his request to ask
the prospective jurors about whether they could be fair and impartial despite his
prior conviction for a sex offense involving a minor. Bishop contends that the
court’s inquiry was insufficient to reveal possible juror prejudice and that, as a
result, he was denied a fair trial.
“The district court has wide discretion in determining which questions are
asked during voir dire,” subject to the essential demands of fairness. United States
v. Nash, 910 F.2d 749, 753 (11th Cir. 1990); United States v. Tegzes, 715 F.2d 505,
507 (11th Cir. 1983). Because the district court has immediate contact with the
voir dire proceeding, it is in a far superior position to evaluate particular voir dire
questions than we are, since we can only rely on the cold record in conducting our
review. Nash, 910 F.2d at 753. Even if the district court failed to ask a particular
question that may be warranted in a case, we will find no abuse of discretion if the
voir dire questioning as a whole gave “reasonable assurance to the parties that any
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prejudice of the potential jurors would be discovered.” Id.; see United States v.
Hill, 643 F.3d 807, 836 (11th Cir. 2011); Tegzes, 715 F.2d at 507 (“The standard
has also been phrased as whether the district judge’s overall examination, coupled
with his charge to the jury, affords a party the protection sought.” (internal
quotation marks omitted)).
Here, the district court acted within its wide discretion in refusing Bishop’s
request to ask prospective jurors about his prior conviction for a child sex offense.
We do not doubt that juror prejudices might be “reasonably suspected” where the
defendant has been convicted of child molestation. See United States v. Ochoa-
Vasquez, 428 F.3d 1015, 1037 (11th Cir. 2005). Yet a similar prejudice was
inherent in the nature of the charges. The court made clear that the case involved
child pornography, including graphic “visual depictions of a minor who has not yet
attained the age of 12 engaging in sexually explicit conduct,” and the court asked
prospective jurors about their impartiality in light of these matters and then
independently questioned jurors who self-reported the possibility of prejudice. As
a whole, the court’s voir dire questioning was sufficient to give “reasonable
assurance to the parties that any prejudice of the potential jurors would be
discovered.” Nash, 910 F.2d at 753.
Bishop’s main concern appears to have been that jurors would overvalue the
prior conviction and fail to render a verdict based solely on the evidence presented
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at trial. But the court sufficiently alleviated the potential for prejudice in this
respect by charging the jury that evidence of a prior conviction was not sufficient,
by itself, to prove that Bishop was guilty of the crimes charged in the indictment.
Overall, the court’s questioning, coupled with its charge to the jury, afforded
Bishop the protection sought. See Tegzes, 715 F.2d at 507.
IV. Motion In Limine
Relatedly, Bishop argues that the district court erred in denying his motion
in limine to exclude the name of his prior conviction for attempted lewd and
lascivious molestation of a minor. The district court admitted the evidence under
Rule 414, Fed. R. Evid. We review the district court’s evidentiary rulings for an
abuse of discretion. United States v. Caraballo, 595 F.3d 1214, 1226 (11th Cir.
2010).
Rule 414 of the Federal Rules of Evidence provides in part, “In a criminal
case in which the defendant is accused of an offense of child molestation, the court
may admit evidence that the defendant committed any other child molestation.
The evidence may be considered on any matter to which it is relevant.” Fed. R.
Evid. 414(a). “Child molestation” is defined to include the possession and receipt
of child pornography under 18 U.S.C. § 2252A. United States v. Woods, 684 F.3d
1045, 1064 (11th Cir. 2012); see Fed. R. Evid. 414(d)(2)(B). Accordingly,
evidence of Bishop’s prior conviction was admissible so long as it satisfied the
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other rules of evidence, including Rule 403. See Woods, 684 F.3d at 1064; Fed. R.
Evid. 414(c) (“This rule does not limit the admission or consideration of evidence
under any other rule.”).
“[U]nder Rule 403, the district court may exclude otherwise-admissible
evidence if its probative value is substantially outweighed by the danger of unfair
prejudice to the defendant.” Woods, 684 F.3d at 1064–65. But “courts must
employ Rule 403 only sparingly since it permits the trial court to exclude
concededly probative evidence.” Id. at 1063 (internal quotation marks omitted).
Here, the district court did not abuse its discretion by admitting the evidence
of Bishop’s prior conviction for attempted lewd and lascivious molestation of a
minor. As the record shows, the court conducted the balancing analysis under Rule
403 and reasonably concluded that the evidence was not more prejudicial than
probative. Bishop’s prior conviction was probative of, among things, his interest
in child pornography and his intent to possess and receive the images, which made
it more likely that Bishop, and not someone else, as he argued at trial, was
responsible for the child pornography found on the two cell phones. See id. at
1065. Omitting the nature of the conviction, as Bishop suggested, would have
nullified the evidence’s probative value.
The court’s conclusion that the risk of unfair prejudice was not
disproportionate to the probative value of the evidence was reasonable and is
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entirely consistent with our precedent on similar Rule 403 challenges. See id.
(affirming admission of defendant’s statement describing his molestation of his
niece); United States v. McGarity, 669 F.3d 1218, 1244 (11th Cir. 2012) (affirming
admission of defendant’s statement detailing his molestation of his two-year-old
daughter). Accordingly, the court properly admitted evidence of Bishop’s prior
state conviction under Rule 414.
V. Sentencing
Finally, Bishop challenges the substantive reasonableness of his sentence,
arguing that the 280-month sentence he received was greater than necessary to
serve the purposes of sentencing. He claims that the court committed a clear error
of judgment by relying on his prior conviction to impose an upward variance when
that conviction had already been accounted for in his guideline range and had
increased his mandatory minimum penalty.
We review the reasonableness of a sentence under a deferential abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). When
reviewing the reasonableness of a sentence, we first ensure that the district court
committed no significant procedural error, though Bishop does not assert
procedural error and we see no error apparent. Id. at 51. We then examine
whether the sentence was substantively reasonable in light of the totality of the
circumstances. Id.
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The district court must impose a sentence “sufficient, but not greater than
necessary to comply with the purposes” of sentencing listed in 18 U.S.C.
§ 3553(a)(2). These purposes are retribution, deterrence, incapacitation, and
rehabilitation. See 18 U.S.C. § 3553(a)(2). The court must also consider the
nature and circumstances of the offense, the history and characteristics of the
defendant, the kinds of sentences available, the applicable guideline range, the
pertinent policy statements of the Sentencing Commission, the need to avoid
unwarranted sentencing disparities, and the need to provide restitution to victims.
Id. § 3553(a)(1), (3)-(7).
The court must consider all of the § 3553(a) factors, but it may, in its
discretion, give greater weight to some factors over others. United States v.
Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015). Moreover, “[i]n assigning
weight to the § 3553(a) factors as part of the weighing process, a court may (and
should) consider individualized, particularized, specific facts and not merely the
guidelines label that can be put on the facts.” Id. at 1260. Additionally, “a district
court can rely on factors in imposing a variance that it had already considered” in
calculating the guideline range. United States v. Rodriguez, 628 F.3d 1258, 1264
(11th Cir. 2010); United States v. Amedeo, 487 F.3d 823, 833–34 (11th Cir. 2007)
(noting that “exceptional circumstances” in that case justified such reliance).
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If the court chooses to vary from the guideline range after weighing the
§ 3553(a) factors, we “may not presume that [the] sentence . . . is unreasonable and
must give due deference to the district court’s decision that the § 3553(a) factors,
on a whole, justify the extent of the variance.” United States v. Irey, 612 F.3d
1160, 1187 (11th Cir. 2010) (en banc) (internal quotation marks omitted). A major
variance requires a more significant justification than a minor one. Id. at 1196.
The party challenging the sentence bears the burden of demonstrating that
the sentence is unreasonable “in light of the entire record, the § 3553(a) factors,
and the substantial deference afforded to sentencing courts.” Rosales-Bruno, 789
F.3d at 1256. A sentencing court may abuse its discretion by (1) failing to afford
consideration to relevant factors that were due significant weight; (2) giving
significant weight to an improper or irrelevant factor; or (3) committing a clear
error of judgment in weighing the proper factors. Irey, 612 F.3d at 1189. A
district court’s unjustified reliance on any one § 3553(a) factor may be indicative
of an unreasonable sentence. United States v. Crisp, 454 F.3d 1285, 1292 (11th
Cir. 2006).
Here, Bishop has not shown that his total sentence of 280 months of
imprisonment is substantively unreasonable. The record shows that the court fully
considered the § 3553(a) factors and reasonably concluded that upward variance
was warranted to serve the purposes of deterrence and protection of the public. See
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18 U.S.C. § 3553(a)(2). As the district court noted, Bishop spent over a decade in
prison for an offense involving sexual contact or attempted sexual contact with a
minor and, upon his release, immediately began “downloading horrific images of
very young children being abused.” Then, after his first phone had been seized, he
obtained a second phone and obtained more images of child pornography. The
court found that the 12-year term of imprisonment had had no deterrent effect and
reasonably concluded that, in light of the prior contact offense and Bishop’s
conduct immediately upon release, he posed a clear danger to society. See United
States v. Turner, 626 F.3d 566, 574 (11th Cir. 2010) (“Turner poses a more
dangerous threat to society than many child pornography defendants given his
history of actually abusing a small child and the increased recidivism of child
sexual abusers.”).
Even though Bishop’s prior conviction was already accounted for in his
guideline range and the mandatory minimum, the court was permitted to rely on it
in imposing an upward variance because it was relevant both to the story of
Bishop’s offense conduct in this case and to the § 3553(a) factors on which the
upward variance was based. Rosales-Bruno, 789 F.3d at 1260; Rodriguez, 628
F.3d at 1264. Nothing about the court’s explanation of the sentence leads us to
conclude that the court gave undue weight to the prior conviction, or that the court
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otherwise abused its considerable discretion in weighing the proper § 3553(a)
factors.
We also note that the sentence is within the range of sentences that this
Court has approved as substantively reasonable in broadly similar cases involving
child pornography. See e.g., United States v. Brown, 772 F.3d 1262, 1266 (11th
Cir. 2014) (affirming as reasonable a 240-month sentence of imprisonment where
the guideline range was 78 to 97 months); Turner, 626 F.3d at 574 (affirming as
reasonable a 300-month sentence where the guideline range was 180 to 210
months). Additionally, the sentence was well below the statutory maximum of 480
months’ imprisonment for even one conviction under 18 U.S.C. § 2252A(a)(2)(B)
and (b)(1), much less than the 2,160 months that Bishop could have received had
all of his sentences run consecutively, which is a further indicator of the sentence’s
reasonableness. See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.
2008) (holding that the sentence was reasonable in part because it was well below
the statutory maximum).
In short, Bishop’s sentence is substantively reasonable.
VI. Conclusion
For the reasons stated, we AFFIRM Bishop’s convictions and his total
sentence of 280 months of imprisonment.
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