United States v. Bruce Raisley , 466 F. App'x 125 ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-2101
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UNITED STATES OF AMERICA
v.
BRUCE RAISLEY,
Appellant
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On Appeal from the United States District Court
For the District of New Jersey
(D.C. Criminal Action No. 1-09-cr-00790-001)
District Judge: Honorable Robert B. Kugler
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Submitted Under Third Circuit LAR 34.1(a)
March 9, 2012
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Before: McKEE, Chief Judge, SCIRICA, and AMBRO, Circuit Judges
(Opinion filed: March 09, 2012)
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OPINION
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AMBRO, Circuit Judge
A jury found Bruce Raisley guilty of computer fraud in violation of 18 U.S.C.
§ 1030 & § 2. On appeal, Raisley claims the District Court erred by not suppressing
materials seized during a search of his home. In addition, he argues the District Court
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made several other erroneous evidentiary rulings that require us to reverse his conviction.
For the reasons that follow, we disagree and thus affirm.
I.
Because we write solely for the parties, we set forth only those facts necessary to
our decision. Raisley was once a volunteer for the organization “Perverted Justice.” The
group uses the internet to seek out sexual predators and expose them to the public. Group
members assume fake online personas, pretending to be minors, and then conduct explicit
online conversations with adults. Once the adult is identified, Perverted Justice posts the
individual‟s identity and a copy of the text of the online chats on the group‟s website.
Eventually Raisley began voicing his disapproval of the group‟s “vigilante”
tactics. The group‟s founder, Xavier Von Erck, responded by using those very tactics
against him. Von Erck posed as a woman named “Holly,” started an explicit online
relationship with Raisley, and convinced Raisley to meet “Holly” one day at the airport.
When Raisley arrived, flowers in hand, he was met with photographers. Von Erck posted
pictures of the encounter and Raisley‟s conversations with “Holly” online.
In September 2006 and July 2007, Radar and Rolling Stone magazines published
articles about Perverted Justice and its questionable methods, specifically mentioning
Raisley and his ordeal with Von Erck. In response to this embarrassing publicity, Raisley
took matters into his own hands.
Armed with a background in computer programming, Raisley created a “malware”
program and introduced it to the internet where, as intended, it spread to thousands of
computers worldwide. Raisley then used this infected network of computers to launch
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“Distributed Denial of Service” (“DDOS”) attacks against websites that published the
Radar and Rolling Stone articles. A DDOS attack uses multiple computers
simultaneously to request information from a website. If done on a large enough scale,
the requests overwhelm the website, take the victim server off line, and render the site
inaccessible.
The websites for Rolling Stone, Radar, and the Rick A. Ross Institute of New
Jersey (“RRI”), among others, published copies of one or both of the articles about
Perverted Justice and Raisley and later experienced DDOS attacks. As a result, the
websites became disabled or the content became unavailable due to overwhelming
attempts to access the sites.
In November 2007, RRI communicated with the FBI to complain about the DDOS
attacks. The FBI investigated and later carried out a search warrant at Raisley‟s home.
During that search, agents seized computers, portable computer storage, and a Rolling
Stone magazine containing the article about Raisley, which had been flagged with a post-
it note. Raisley told the FBI agents executing the warrant that: (1) “everything [the FBI]
needed was on the thumbdrive that [they] had recovered from his home,” (2) he had
written the code that “was on that thumbdrive,” (3) he used the code to “attack” “the
rickross.com websites,” and (4) “he didn‟t mean to hurt anybody, he just wanted them to
take his name off their sites.” Searches of Raisley‟s computers and the thumbdrive
yielded substantial evidence linking him to the DDOS attacks, including the malware
program and its source code.
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In August 2008, Raisley, accompanied by his attorney, attended a proffer session
with the Government. During that session, Raisley admitted that he launched DDOS
attacks against rickross.com, but he failed to reach an agreement with the Government.
Raisley was later charged in a Superseding Indictment with one count of computer
fraud for damaging the RRI‟s web servers, in violation of 18 U.S.C. § 1030 & § 2.
Raisley moved to suppress the evidence seized from his home, but the District Court
denied his motion. A jury found Raisley guilty and the Court sentenced him to 24
months‟ imprisonment, followed by 3 years of supervised release. He was also ordered
to pay $90,386.39 in restitution. Raisley appeals his conviction.1
II.
A.
Raisley claims the District Court erred by denying his motion to suppress, arguing
that the search warrant executed at his home did not describe with particularity the items
to be seized and lacked other important information. When reviewing a district court‟s
ruling on a motion to suppress, we exercise plenary review over the court‟s legal
conclusions and review its findings of fact for clear error. United States v. Tracey, 597
F.3d 140, 146 (3d Cir. 2010).
The Fourth Amendment provides that “no Warrants shall issue, but upon 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. Generally, if
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The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under
28 U.S.C. § 1291.
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an officer conducts a search pursuant to an invalid warrant, a court will exclude from trial
any evidence obtained from that search. However, if an officer conducts such a search in
good faith and in objectively reasonable reliance on the warrant‟s authority, a court will
not suppress the evidence obtained. United States v. Leon, 468 U.S. 897, 922 (1984);
United States v. Williams, 3 F.3d 69, 74 (3d Cir. 1994).2
In order to determine whether this good faith exception to the exclusionary rule
applies, we ask “ „whether a reasonably well trained officer would have known that the
search was illegal despite the magistrate‟s authorization.‟ ” United States v. Loy, 191
F.3d 360, 367 (3d Cir. 1999) (quoting Leon, 468 U.S. at 922 n.23). “Ordinarily, the
„mere existence of a warrant . . . suffices to prove that an officer conducted a search in
good faith,‟ and will obviate the need for „any deep inquiry into reasonableness.‟ ” United
States v. Stearn, 597 F.3d 540, 561 (3d Cir. 2010) (quoting United States v. Hodge, 246
F.3d 301, 308 (3d Cir. 2001)). We must also keep in mind that “the exclusionary rule
should only be applied when . . . police conduct is „deliberate, reckless, or grossly
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“Under Leon, if a motion to suppress evidence obtained pursuant to a warrant does not
present a Fourth Amendment argument that should be decided in order to provide
instruction to law enforcement or to magistrate judges, it is appropriate for a reviewing
court to turn „immediately to a consideration of the officers‟ good faith.‟ ” United States
v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars And Fifty-Seven Cents, 307
F.3d 137, 145 (3d Cir. 2002) (quoting Leon, 468 U.S. at 925). Here, Raisley‟s
arguments about whether the warrant violated the Fourth Amendment do not “involve
novel questions of law whose resolution is necessary to guide future action by law
enforcement officers and magistrates[,]” and we therefore turn directly to the good faith
issue. Id. (quotations and alterations omitted). Although the District Court did not reach
that issue, we may affirm on a good faith ground nonetheless. See United States v.
Goodrich, 450 F.3d 552, 553, 558 (3d Cir. 2006).
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negligent,‟ or when it will deter „recurring or systemic negligence.‟ ” Tracey, 597 F.3d at
151 (quoting Herring v. United States, 555 U.S. 135, 144 (2009)).
We have identified four “narrow” and “rare” scenarios in which an officer‟s
reliance on a search warrant would not be reasonable. Stearn, 597 F.3d at 561 & n.19.
Raisley relies on one of these situations, claiming that “the warrant was so facially
deficient that it failed to particularize the place to be searched or the things to be seized.”
Tracey, 597 F.3d at 151.
The executing agents‟ reliance on this warrant was objectively reasonable for
several reasons. First, the description of the items to be seized was detailed. It explicitly
referenced aspects of the case and covered evidence relating to a DDOS attack. “Read as
a whole,” it “did not authorize an exploratory rummaging.” Id. at 154. Second, the
search warrant affidavit (though unincorporated into the warrant itself) was very
comprehensive, and included a host of details about the investigation, the offense, and the
items to be seized. Third, the FBI agent who drafted the affidavit conducted the search
and was therefore obviously aware of the affidavit‟s details and scope, and conducted the
search in conformity with the affidavit. Id. at 153. Finally, two Assistant United States
Attorneys reviewed the warrant before a neutral Magistrate Judge approved it. This
review process would give a “reasonable officer . . . confidence in the validity of the
warrant.” Id. Because reliance on the warrant was objectively reasonable, the District
Court did not err by denying Raisley‟s motion to suppress.
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B.
Raisley also challenges three of the District Court‟s other rulings concerning the
admission and exclusion of evidence. He claims that each of the Court‟s rulings is so
erroneous as to justify reversing his conviction. In addition, Raisley argues that the
cumulative effect of the three rulings deprived him of a fair trial. We review each of
those evidentiary rulings for abuse of discretion. United States v. Mathis, 264 F.3d 321,
326-27 (3d Cir. 2001). We review the claim about the cumulative effect of the Court‟s
rulings for plain error, as Raisley raises the issue for the first time on appeal. United
States v. Christie, 624 F.3d 558, 567 (3d Cir. 2010).
First, Raisley argues that the District Court abused its discretion by allowing
evidence of his contemporaneous DDOS attacks against websites other than the RRI‟s
website. He claims that, under Federal Rule of Evidence 403, the probative value of this
evidence of uncharged crimes “is substantially outweighed by the danger of unfair
prejudice.” We note that the District Court‟s “discretion is construed especially broadly
in the context of Rule 403.” Mathis, 264 F.3d at 327; see also United States v. Balter, 91
F.3d 427, 442 (3d Cir. 1996) (“If judicial restraint is ever desirable, it is when a Rule 403
analysis of a trial court is reviewed by an appellate tribunal.”) (quoting United States v.
Scarfo, 850 F.2d 1015, 1019 (3d Cir. 1988)).
Evidence of the other attacks was highly probative. It corroborated the attack on
the RRI‟s website. It showed how a DDOS attack worked, Raisley‟s method in
configuring and launching an attack, and the effects of the DDOS attacks. And it showed
the common motive behind all the attacks — Raisley‟s desire to destroy any website that
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posted the embarrassing articles about him. Nevertheless, Raisley claims that this
evidence created unfair prejudice that substantially outweighed its probative value
because it took the focus away from the actual offense charged (the attack on the RRI‟s
website) and inevitably placed him on trial for acts he was not charged with committing
(the attacks on other websites).
The District Court obviated any danger of unfair prejudice by repeatedly
instructing the jury that it could consider the evidence of the other attacks only for the
very limited and proper purposes it explained. See United States v. Lee, 612 F.3d 170,
185, 190-92 (3d Cir. 2010) (holding that limiting instruction reduced possible prejudice).
In addition, given the overwhelming evidence that Raisley attacked the RRI‟s website,
any conceivable error in admitting evidence of Raisley‟s simultaneous DDOS attacks on
similar victims was harmless. See Christie, 624 F.3d at 571. In short, the admission of
evidence of Raisley‟s attacks on other websites did not create reversible error.
Next, Raisley complains that the District Court erred by excluding certain
evidence about his feud with Von Erck, specifically his belief that Von Erck used a
picture of Raisley‟s son to lure online pedophiles and that Von Erck sent a pipe bomb to
Raisley‟s home. Applying our deferential standard of review, we conclude that the
District Court did not abuse its broad discretion in determining under Rule 403 that these
areas were irrelevant to the core issue of whether Raisley attacked the RRI‟s website and
were likely to cause confusion, prejudice, and time-consuming mini-trials.
Finally, Raisley argues that the District Court abused its discretion by admitting
his statements, made during his proffer with the Government, that he attacked the RRI‟s
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website. Proffer agreements are contracts, and their “terms must be read to give effect to
the parties‟ intent.” United States v. Hardwick, 544 F.3d 565, 570 (3d Cir. 2008). When
considering a defendant‟s waiver under a proffer agreement, we exercise plenary review
over the district court‟s “interpretation of the terms of the waiver,” and we review
admission of the proffered statements for “abuse of discretion.” Id.The District Court did not err in interpreting the proffer agreement, which
provided that “[t]he government may use [Raisley‟s] statement and any information
provided by [him] to cross-examine [him] and to rebut any evidence or arguments offered
on [his] behalf.” We have explained that the terms of an identical waiver provision are
“expansive[,]” and that they allow the use of proffer statements “to rebut any evidence or
arguments” offered on a defendant‟s behalf. Id. (emphasis in original). During his
proffer, Raisley admitted that he attacked the RRI website. In his opening statement at
trial, however, his defense counsel told the jury that “Mr. Raisley did not attack the Rick
Ross website.” Because of the clear contradiction between Raisley‟s proffer statement
and his opening statement at trial, the District Court did not abuse its discretion by
admitting Raisley‟s proffer statement.
Nevertheless, Raisley argues that the District Court abused its discretion because
admission of the proffer statement is inconsistent with his right to a fair trial because he
could not assert any defense at trial without opening the door to the proffer session. We
disagree. Among other things, Raisley could have argued that the “facts put in evidence
by the prosecution are insufficient to permit the jury to find the elements of the crime
proved.” United States v. Barrow, 400 F.3d 109, 119 (2d Cir. 2005). As the District
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Court correctly found, had Raisley merely argued to the jury that “a not guilty plea means
he has a right to a trial” and that the jury should “hold the government to its burden,” he
would not have triggered the waiver.
Because none of the evidentiary rulings raised by Raisley was erroneous, either by
itself or cumulatively, he cannot carry his heavy burden of showing that the District
Court plainly erred by not sua sponte raising and sustaining a cumulative error challenge
at trial.
* * * * *
For the reasons discussed, we affirm the judgment of the District Court.
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