United States v. James A. Bethel ( 2024 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 24a0174n.06
Case Nos. 23-3482/3668
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Apr 19, 2024
)
UNITED STATES OF AMERICA, KELLY L. STEPHENS, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE SOUTHERN DISTRICT OF
JAMES A. BETHEL, ) OHIO
Defendant-Appellant. )
) OPINION
Before: COLE, CLAY, and THAPAR, Circuit Judges.
THAPAR, Circuit Judge. While executing a warrant to search all electronic devices at a
residence, officers found child pornography on James Bethel’s cell phone. Bethel argues the
warrant didn’t support the search of his phone. We disagree. But the district court imposed
restitution without calculating the victim’s losses, so we affirm in part, vacate in part, and remand
for further proceedings.
I.
As part of a child pornography investigation, a law enforcement officer observed a social
media user named “boninick63” share images and videos of child sexual abuse online. Officers
determined the account belonged to “Nick Bonavita” and focused their efforts on him. Bonavita’s
account logged in from two IP addresses. One IP address came from a cell phone tied to Bonavita.
The other IP address was registered to a “Barb Bethel” at a mobile home on Sioux Court in
Nos. 23-3482/3668, United States v. Bethel
southern Ohio. Police knew from employment records that Bonavita resided at that mobile home.
Although it’s unclear whether officers knew this at the time, Bonavita’s uncle, James Bethel, also
lived there.
Based on this information, officers obtained a warrant to search the mobile home. The
warrant authorized the search and seizure of any computers and cell phones located on the premises
that could be used to display child pornography.
Bethel was present when officers executed the search warrant. After agreeing to a
voluntary interview, Bethel asked officers to retrieve his unlocked cell phone from his bedroom.
Officers then searched Bethel’s phone and found child pornography. Upon obtaining another
warrant, officers searched Bethel’s online storage accounts and discovered more child
pornography, as well as evidence that someone attempted to delete files after the initial search.
The United States charged both Bonavita and Bethel with child pornography offenses.
Bonavita pled guilty. Bethel moved to suppress the evidence found on his phone, arguing that the
warrant’s scope exceeded the probable cause supporting it. The district court denied the motion,
explaining there was probable cause to search all phones at the mobile home. The court held a
bench trial and found Bethel guilty of possessing child pornography, receiving and distributing
child pornography, and destroying records in a federal investigation. The district court sentenced
Bethel to 60 months’ imprisonment. Over Bethel’s objection, the court also imposed $3,000 in
restitution. The government didn’t introduce evidence quantifying the harm Bethel caused his
victims. But the court, acknowledging that “the specific magnitude of the loss [was] not well-
documented,” nonetheless concluded that $3,000 was the default mandatory amount because the
victim’s loss was “obviously greater than a penny.” See 18 U.S.C. § 2559(b)(2)(B). Bethel now
appeals, challenging (1) the denial of his suppression motion and (2) the restitution order.
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II.
A.
Bethel appears to make two arguments challenging the warrant. First, he suggests the
warrant’s terms only covered Bonavita’s devices—not his. Second, even if the warrant did include
his phone, Bethel argues probable cause didn’t support that inclusion.
The first argument is unavailing. The warrant authorized the search of “any and all
computer software” and “[c]omputer(s), including cell phones” found at the Sioux Court address
that may be used to access child pornography. R. 21-1, Pg. ID 81. Bethel’s phone falls within that
description: police found it at the Sioux Court address, and it could’ve been used to access child
pornography. Thus, the warrant covered his phone.
Bethel next argues officers didn’t have probable cause to search his phone. The Fourth
Amendment requires search warrants to be supported by probable cause. U.S. Const. amend. IV.
And probable cause exists if there’s a “fair probability” that evidence of a crime will be found at
the location to be searched. United States v. Berry, 565 F.3d 332, 338 (6th Cir. 2009) (citation
omitted).
Here, police had probable cause to believe evidence of child pornography would be found
on any phone in the mobile home, including Bethel’s. The IP address used to share child
pornography was tied to the Sioux Court mobile home where Bonavita and Bethel lived. Our
circuit has repeatedly held in child pornography cases that this fact alone shows that probable cause
existed to issue a valid search warrant for the search of electronic devices found in the residence.
See United States v. Hinojosa, 606 F.3d 875, 885 (6th Cir. 2010); cf. United States v. Gillman, 432
F. App’x 513, 515 (6th Cir. 2011); United States v. Wagers, 452 F.3d 534, 539 (6th Cir. 2006);
United States v. Richards, 659 F.3d 527, 538–40 (6th Cir. 2011). But the warrant affidavit went
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further. It noted that digital files can easily be shared across devices. An officer testified that child
pornographers often use aliases—supporting the conclusion that Bonavita might not be the only
responsible party. And the warrant confirmed any device connected to the premises’s wireless
network would use the same IP address associated with the illegal activity. In sum, this evidence
is more than enough to authorize searching Bethel’s phone.
To be sure, the affidavit focused specifically on Bonavita and didn’t mention Bethel.
Bethel argues that shows officers only had probable cause to search Bonavita’s devices. But that’s
not the case. To see why, compare two different warrant applications. One contains information
tying child pornography to the Sioux Court IP address and doesn’t mention any identifying
information, phone numbers, or account usernames. Under our precedent, that would establish
probable cause to search all electronic devices at the residence. Hinojosa, 606 F.3d at 885;
Richards, 659 F.3d at 538–40. Now imagine another warrant application. This time, in addition
to connecting child pornography to the IP address, it provides information linking the pornography
to a specific resident. According to Bethel, that stronger evidence should lead to a weaker search
warrant. We decline to create a perverse incentive by telling officers the more information they
provide, the weaker the probable cause.
In sum, the magistrate judge did not “arbitrarily” find probable cause to search any cell
phones found at the residence. United States v. Allen, 211 F.3d 970, 973 (6th Cir. 2000) (en banc).
Bethel’s Fourth Amendment challenge therefore fails.
B.
In response, Bethel makes three arguments. They are unavailing.
First, Bethel argues that, even if a warrant authorizes police to search a premises, police
can’t search every person who happens to be visiting. Ybarra v. Illinois, 444 U.S. 85, 91 (1979)
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(visitors at a public tavern); see also United States v. Crumpton, 824 F.3d 593, 614–15 (6th Cir.
2016) (suggesting probable cause might need to exist separately for each residential unit in a multi-
unit building). But see United States v. Sissler, No. 91-2113, 1992 WL 126974, at *5 (6th Cir.
June 10, 1992) (per curiam) (noting visitors may be searched if connected to the premises). And
he argues that principle extends to his phone—the fact that his phone happened to be at the
residence doesn’t mean that police could search it. See generally United States v. Vogl, 7 F. App’x
810, 817–18 (10th Cir. 2001).
But these points of law don’t apply here. Bethel wasn’t just a visitor at the Sioux Court
address. He lived there. Cf. Ybarra, 444 U.S. at 91; Vogl, 7 F. App'x at 818. Nor is there evidence
the Sioux Court residence is subdivided into separate residential units. Cf. Crumpton, 824 F.3d at
614–15. And when a warrant authorizes the search of a single residence, police ordinarily can
search “anywhere there is probable cause to believe an item described in the warrant might be
found.” United States v. Parrish, 942 F.3d 289, 293 (6th Cir. 2019); Crumpton, 824 F.3d at 614–
15. That included Bethel’s phone.
Second, Bethel argues that a bright-line rule automatically allowing the search of any
phone at a shared residence goes too far. But that’s not the rule here. The extent of probable cause
depends on the nature of the crime being investigated. For instance, if officers obtain a warrant to
search for evidence of a drug crime, a warrant might reasonably extend to all physical locations in
the residence where drugs could be hidden. See, e.g., United States v. Ayers, 924 F.2d 1468, 1480
(9th Cir. 1991). But it likely wouldn’t extend to all electronic media. The converse is true here.
Cf. Richards, 659 F.3d at 539. As the warrant notes, child pornography generally exists as an
electronic medium. And it can easily be shared across multiple devices. So when, as here, an
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affidavit’s evidence ties child pornography distribution from a specific IP address to a specific
residence, probable cause exists to search all devices at the residence.
Finally, Bethel gestures at the “unique” character of cell phones. Appellant Br. at 9. He
notes that cell phones contain lots of highly private data. And he argues his privacy interests
prevented officers from searching his phone. But this merely restates the question we’ve already
answered. A valid warrant authorizes officers to perform searches that would otherwise violate
someone’s reasonable expectation of privacy. Because a warrant properly authorized officers to
search cell phones at Bethel’s shared residence, the search didn’t offend the Fourth Amendment.
III.
Bethel next challenges the district court’s restitution order. Both parties agree the district
court erred in imposing restitution without calculating the victim’s actual losses. And both parties
agree we should vacate the restitution award. So do we. The Amy, Vicky, and Andy Child
Pornography Victim Assistance Act requires courts to order restitution of at least $3,000 when a
defendant is convicted of child pornography offenses. 18 U.S.C. § 2259(a), (b)(2)(B), (b)(4)(A).
Before doing so, however, a district court must calculate the “full amount of the victim’s losses.”
Id. § 2259(b)(2)(A); see also id. § 2259(b)(2)(B) (“After completing the determination required
under subparagraph (A) . . . .” (emphasis added)). That step is important because a defendant’s
liability for a restitution order “shall be terminated” when the victim “has received restitution in
the full amount of [his or her] losses.” Id. § 2259(b)(2)(C). The initial calculation didn’t occur
here. So it was an error to impose restitution first.
The parties dispute whether the government can offer evidence to demonstrate the victim’s
losses on remand. According to Bethel, the government shouldn’t get a “second bite at the apple.”
United States v. Mukes, 980 F.3d 526, 540 (6th Cir. 2020) (citation omitted). Under “special
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circumstances,” however, the government can introduce new evidence on remand. Id. at 539–40
(quoting United States v. Goodman, 519 F.3d 310, 323 (6th Cir. 2008)); see also United States v.
Richardson, 948 F.3d 733, 738 (6th Cir. 2020) (noting remands are presumed to be general). One
such circumstance arises when the district court “applies the wrong legal standard” in the
proceeding below. United States v. Doutt, 926 F.3d 244, 248 (6th Cir. 2019). That’s exactly what
occurred here. The government argued the court could order $3,000 in restitution without
calculating the victim’s actual loss, and the district court incorrectly adopted that position.
Because we clarify that a court must first calculate a victim’s actual losses, the district court may,
in its discretion, allow the government to introduce additional evidence establishing the victim’s
loss.
Arguing otherwise, Bethel suggests the government waived any argument that a victim
suffered an actual loss. But the district court didn’t rule on that waiver argument. So we leave it
for the court to determine in the first instance. See Kellom v. Quinn, Nos. 20-1003/1222, 2021 WL
4026789, at *3 (6th Cir. Sept. 3, 2021).
* * *
We affirm the denial of Bethel’s motion to suppress, vacate the district court’s restitution
order, and remand for further proceedings consistent with this opinion.
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