United States v. Pivnick ( 2023 )

21-1675-cr
United States v. Pivnick
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY
CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
At a stated term of the United States Court of Appeals for the
Second Circuit, held at the Thurgood Marshall United States Courthouse, 40
Foley Square, in the City of New York, on the 19th day of May, two thousand
twenty-three.
PRESENT:
JOHN M. WALKER, JR.,
WILLIAM J. NARDINI,
EUNICE C. LEE,
Circuit Judges.
_____________________________________
United States of America,
Appellee,
v. 21-1675
Bryan Pivnick, AKA magnapraeda,
Defendant-Appellant.
_____________________________________
FOR APPELLEE: Thomas John Wright, David
Abramowicz, Assistant United States
Attorneys, for Damian Williams,
United States Attorney of the
Southern District of New York, New
York, NY.
FOR DEFENDANT-APPELLANT: Bryan Pivnick, pro se, Joint Base
MDL, NJ (Devin McLaughlin,
standby counsel, Middlebury, VT).
Appeal from a judgment of the United States District Court for the Southern
District of New York (P. Kevin Castel, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the district court is AFFIRMED.
Defendant-Appellant Bryan Pivnick appeals from a judgment in a criminal
case entered on June 15, 2021, in the United States District Court for the Southern
District of New York (P. Kevin Castel, Judge). On December 18, 2019, Pivnick
pleaded guilty to receipt, distribution, and possession of child pornography. On
appeal, Pivnick contends that the district court lacked jurisdiction over his case
and wrongfully denied his motion to suppress evidence that the FBI recovered
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after questioning Pivnick at his apartment. We assume the parties’ familiarity with
the case.
Pivnick’s jurisdictional arguments are plainly without merit. He argues,
among other things, that the district court is a mere Article I “legislative court,”
not one “ordained and established under Article III” of the Constitution, Appellant
Br. at 1, and that the FBI agents who arrested him acted without proper authority
as federal agents within New York state. See United States v. Montanez, 371 F.2d
79, 82 (2d Cir. 1967) (“A constitutional court is one established under article III,
section 1 of the Constitution; a legislative or territorial court stems from other
constitutional authority . . . .” (footnote omitted)). First, the district court was
properly created by Congress, as provided in Article III. See U.S. Const. art. III, §
1 (“The judicial Power of the United States, shall be vested in one supreme Court,
and in such inferior Courts as Congress may from time to time ordain and
establish.”); Wellness Int’l Network, Ltd. v. Sharif, 575 U.S. 665, 668 (2015) (“Congress
has in turn established 94 District Courts and 13 Courts of Appeals, composed of
judges who enjoy the protections of Article III . . . .”). Second, federal district courts
have subject matter jurisdiction over criminal offenses against the laws of the
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United States. United States v. McLaughlin, 949 F.3d 780, 782 (2d Cir. 2019) (citing
18 U.S.C. § 3231). Pivnick’s parsing of the United States Code to infer differences
between “United States District Courts” (which he claims are legislative courts)
and “district courts of the United States” (which are Article III courts), while
creative, has no basis in law. Third, the FBI is statutorily authorized to make
arrests for any felony cognizable under the laws of the United States. See 18 U.S.C.
§ 3052. Pivnick’s arrest, prosecution, and conviction were properly within the
power of the federal government. 1
Pivnick’s challenge to the district court’s suppression rulings is barred by
his subsequent guilty plea. Generally, “[a] knowing and voluntary guilty
plea waives all nonjurisdictional defects in the prior proceedings.” United States v.
Coffin, 76 F.3d 494, 496 (2d Cir. 1996). Absent a conditional plea under Fed. R.
Crim. P. 11(a)(2), suppression issues are nonjurisdictional and are waived by a
guilty plea. United States v. Garcia, 339 F.3d 116, 118 (2d Cir. 2003).
1Pivnick also moves for us to take judicial notice of many of these jurisdictional
arguments. Because, as explained above, these arguments are meritless, his
motion is denied.
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Were we to nevertheless exercise jurisdiction to address the challenge on the
merits, we would reject it. The district court did not err in deciding that Pivnick’s
statements were not made while under custodial interrogation. Cf. United States v.
Familetti, 878 F.3d 53, 56, 60–62 (2d Cir. 2017) (holding that a defendant accused of
child pornography offenses was not in custody when he was told he was not under
arrest, despite being questioned in his home after nine agents executed a search
warrant). The district court also properly determined that the seizure of Pivnick’s
phone did not violate Pivnick’s Fourth Amendment rights because it was justified
under the exigent circumstances doctrine by the possible destruction of its
contents or, alternatively, under the plain view doctrine. See United States v.
Martin, 157 F.3d 46, 53 (2d Cir. 1998) (“[T]he Supreme Court has interpreted the
Fourth Amendment to permit seizure of the property . . . if the exigencies of the
circumstances demand it.”); United States v. Babilonia, 854 F.3d 163, 179–80 (2d Cir.
2017) (“Seizure of everyday objects in plain view is justified where the officers
have probable cause to believe that the objects contain or constitute evidence.”).
Nor did the district court err in finding that the subsequent search of the cellphone
was lawful because Pivnick had consented to it. See United States v. Snype, 441 F.3d
5119, 130–31 (2d Cir. 2006) (noting that voluntary consent is an exception to the
warrant requirement).
Pivnick also raises challenges to his counsel’s effectiveness. His claim is
factually undeveloped and is more appropriately raised in a 28 U.S.C. § 2255motion rather than on direct appeal. See United States v. Leone, 215 F.3d 253, 256
(2d Cir. 2000); see also Massaro v. United States, 538 U.S. 500, 504–05 (2003). We
therefore do not reach it.
We have considered Pivnick’s remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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