United States v. Guy Wheelock , 772 F.3d 825 ( 2014 )


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  •                 United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 14-1504
    ___________________________
    United States of America
    lllllllllllllllllllll Plaintiff - Appellee
    v.
    Guy Edward Wheelock
    lllllllllllllllllllll Defendant - Appellant
    ____________
    Appeal from United States District Court
    for the District of Minnesota - St. Paul
    ____________
    Submitted: October 10, 2014
    Filed: November 20, 2014
    ____________
    Before RILEY, Chief Judge, WOLLMAN and BYE, Circuit Judges.
    ____________
    RILEY, Chief Judge.
    After law enforcement used an administrative subpoena to match Guy Edward
    Wheelock to a computer that downloaded child pornography through peer-to-peer
    software, Wheelock pled guilty to receiving child pornography in violation of
    
    18 U.S.C. § 2252
    (a)(2) and (b)(1). The district court1 sentenced Wheelock as a repeat
    offender to a mandatory minimum of fifteen years imprisonment. Wheelock
    challenges both the use of an administrative subpoena to obtain his internet service
    subscriber information and the constitutionality of his mandatory minimum sentence.
    We have appellate jurisdiction under 
    18 U.S.C. § 3742
     and 
    28 U.S.C. § 1291
    , and we
    affirm.
    I.     BACKGROUND
    Using investigative software, Officer Dale Hanson, of the Minneapolis Police
    Department, learned child pornography was available for download from a certain
    Internet Protocol (IP) address with Comcast Communications (Comcast) as the
    Internet Service Provider (ISP). Pursuant to 
    Minn. Stat. § 388.23
    , Officer Hanson
    requested an administrative subpoena from the Hennepin County Attorney ordering
    Comcast to produce subscriber information associated with the identified IP address.
    Officer Hanson certified the information sought was “relevant to an ongoing,
    legitimate law enforcement investigation of Distribution of Child Pornography.”
    The Hennepin County Attorney faxed Comcast an administrative subpoena
    ordering Comcast to produce the requested information. Comcast responded,
    providing Wheelock’s name, address, and other information. Officer Hanson checked
    this information against the Minnesota sex offender registry, which revealed
    Wheelock’s prior conviction for possessing child pornography.
    Using this information, Officer Hanson obtained a search warrant for
    Wheelock’s house, the execution of which disclosed several hard drives, DVDs, and
    CDs containing child pornography, as well as a computer actively downloading
    1
    The Honorable Michael J. Davis, Chief Judge, United States District Court for
    the District of Minnesota, adopting the report and recommendation of Magistrate
    Judge Tony N. Leung as to the suppression issue.
    -2-
    suspected child pornography video files using Shareaza, a peer-to-peer file-sharing
    program.
    After being charged with possessing, receiving, and attempting to distribute
    child pornography in violation of 
    18 U.S.C. § 2252
    (a)(2), (a)(4)(B), (b)(1), and (b)(2),
    Wheelock moved to suppress all evidence obtained as a result of the administrative
    subpoena. He contends the subpoena violated the Fourth Amendment of the United
    States Constitution and federal and state statutes. Adopting the magistrate judge’s
    report and recommendation, the district court denied the motions. Wheelock then
    conditionally pled guilty to receiving child pornography, preserving the suppression
    issue.
    Before sentencing, Wheelock objected to 
    18 U.S.C. § 2252
    (b)(1) imposing a
    statutory mandatory minimum of fifteen years in prison for repeat offenders. Among
    other assertions, Wheelock argued this mandatory minimum is unconstitutional
    because it arbitrarily punishes receipt more than possession. The district court
    disagreed, concluding the statute survives a rational-basis inquiry. Wheelock timely
    appealed.
    II.   DISCUSSION
    A.     Administrative Subpoena
    Wheelock first challenges the district court’s denial of his motions to suppress,
    contending, as he did in the district court, Officer Hanson’s use of an administrative
    subpoena violated the Fourth Amendment and federal and state statutes. “‘When
    reviewing the 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. Suing,
    
    712 F.3d 1209
    , 1211-12 (8th Cir. 2013) (quoting United States v. Anderson, 
    688 F.3d 339
    , 343 (8th Cir. 2012)).
    -3-
    1.     Fourth Amendment
    Wheelock argues the use of an administrative subpoena (as opposed to a
    warrant) violated his Fourth Amendment privacy interest in the subscriber
    information obtained from Comcast. To prove he had a constitutionally cognizable
    privacy interest, Wheelock “must show that (1) he ‘has a reasonable expectation of
    privacy in the areas searched or the items seized,’ and (2) ‘society is prepared to
    accept the expectation of privacy as objectively reasonable.’” United States v. James,
    
    534 F.3d 868
    , 872-73 (8th Cir. 2008) (quoting United States v. Hoey, 
    983 F.2d 890
    ,
    892 (8th Cir. 1993)).
    “‘[T]he Fourth Amendment does not prohibit the obtaining of information
    revealed to a third party and conveyed by him to Government authorities, even if the
    information is revealed on the assumption that it will be used only for a limited
    purpose and the confidence placed in the third party will not be betrayed.’” United
    States v. McIntyre, 
    646 F.3d 1107
    , 1111 (8th Cir. 2011) (quoting United States v.
    Miller, 
    425 U.S. 435
    , 443 (1976)). This principle is dispositive here. With Comcast
    in possession of his subscriber data, Wheelock cannot claim a reasonable
    “‘expectation of privacy in [the] government’s acquisition of his subscriber
    information, including his IP address and name from third-party service providers.’”
    Suing, 712 F.3d at 1213 (alteration in original) (quoting United States v. Stults, 
    575 F.3d 834
    , 842 (8th Cir. 2009)); accord United States v. Perrine, 
    518 F.3d 1196
    , 1204-
    05 (10th Cir. 2008) (“Every federal court to address this issue has held that subscriber
    information provided to an internet provider is not protected by the Fourth
    Amendment’s privacy expectation.”).
    Wheelock questions the logic and ongoing viability of the third-party
    disclosure principle in its current form by attempting to construct a Supreme Court
    majority from the concurrences in United States v. Jones, 565 U.S. ___, 
    132 S. Ct. 945
     (2012). Wheelock weaves Justice Sotomayor’s interest in revisiting the third-
    party principle, see Jones, 565 U.S. at ___, 
    132 S. Ct. at 957
     (Sotomayor, J.,
    -4-
    concurring) (“[I]t may be necessary to reconsider the premise that an individual has
    no reasonable expectation of privacy in information voluntarily disclosed to third
    parties. This approach is ill suited to the digital age.”), with Justice Alito’s (joined
    by Justices Ginsburg, Breyer, and Kagan) recognition that Fourth Amendment
    doctrine may need to adapt to the demands of rapid technological advancement, see,
    e.g., 
    id.
     at ___, 
    132 S. Ct. at 962
     (Alito, J., concurring). In Wheelock’s view, the
    concurrences “illustrate the way in which the Court will decide privacy cases in the
    future.” Time may prove Wheelock right, and the Supreme Court may revise its view
    on third-party disclosures in the digital context, but until then, we are bound by
    precedent, and the actual majority opinion in Jones did not address the third-party
    disclosure doctrine, let alone purport to desert or limit it. Of the separately
    concurring justices, it was only Justice Sotomayor who voiced any dissatisfaction
    with the doctrine, and even then, she did not outright advocate its abandonment. See
    
    id.
     at ___, 
    132 S. Ct. at 957
     (Sotomayor, J., concurring).
    Relying heavily on Justice Alito’s concurrence, Wheelock also argues
    Minnesota’s internet privacy statutes create a reasonable expectation of privacy in
    Wheelock’s identifying information because Minnesota prohibits ISPs from
    “knowingly disclos[ing] personally identifiable information concerning a consumer,”
    Minn. Stat. § 325M.02, including information identifying the “consumer by physical
    or electronic address,” id. § 325M.01, subd. 5(1). “‘[W]hile state statutes and
    regulations may inform our judgement [sic] regarding the scope of constitutional
    rights, they fall far short of the kind of proof necessary to establish a reasonable
    expectation of privacy.’” Eagle v. Morgan, 
    88 F.3d 620
    , 626 n.3 (8th Cir. 1996)
    (quoting Nilson v. Layton City, 
    45 F.3d 369
    , 372 (10th Cir. 1995)). “Quite to the
    contrary,” the precept of privacy from unreasonable searches “achieve[s its] scope
    from ‘deeply rooted notions of fundamental personal interests derived from the
    Constitution.’” Id. at 626 (quoting Nilson, 
    45 F.3d at 372
    ). Plus, to the extent
    Minnesota statutes are relevant, Wheelock could not have reasonably expected
    § 325M.02 to protect his subscriber information given that law’s provisions requiring
    -5-
    the disclosure of information “to an investigative or law enforcement officer . . . while
    acting as authorized by law” and information requested in “an administrative
    subpoena, issued under authority of a law of this state,” id. § 325M.03(2), (6).
    Because Wheelock had no reasonable expectation of privacy in the subscriber
    information, a warrant was not necessary. See Suing, 712 F.3d at 1213.
    2.     Subpoena Statutes
    Wheelock also contends Officer Hanson failed to follow proper procedure
    under both federal and Minnesota administrative subpoena statutes. First, the
    requirements in 
    18 U.S.C. § 3486
     apply only to federal subpoenas and not to the
    subpoenas in this case—obtained pursuant to state law and issued by a state actor.
    See 
    18 U.S.C. § 3486
    (a)(1)(A) (discussing subpoenas issued by certain federal
    officers).
    Second, the Minnesota subpoena statute allows a county attorney to issue
    administrative subpoenas only “for records that are relevant to an ongoing legitimate
    law enforcement investigation.” 
    Minn. Stat. § 388.23
    , subd. 1. Wheelock claims
    Officer Hanson violated this requirement by failing to provide a factual basis in his
    subpoena request from which the signing attorney could have made a “determination
    as to the legitimacy of the law enforcement investigation.” First, Officer Hanson
    requested retrievable information and certified “that the requested records [were]
    relevant to an ongoing, legitimate law enforcement investigation of Distribution of
    Child Pornography.” This is all the statute requires. Second, a violation of state
    subpoena procedures “would not warrant suppression of the evidence gained because
    federal courts in a federal prosecution do not suppress evidence that is seized by state
    officers in violation of state law, so long as the search complied with the Fourth
    Amendment.” United States v. Bach, 
    310 F.3d 1063
    , 1066 (8th Cir. 2002).
    Thus, neither statute warrants suppression.
    -6-
    B.     Sentence
    Wheelock also challenges his sentence, arguing 
    18 U.S.C. § 2252
    (b)(1)’s
    fifteen-year mandatory minimum for repeat offenders violates the Due Process Clause
    of the Fifth Amendment of the United States Constitution because it arbitrarily sets
    a minimum sentence for receipt of child pornography five years higher than the ten-
    year mandatory minimum § 2252(b)(2) imposes on the same offender for possession.
    “Once a person has been convicted of a crime in accordance with constitutional
    guarantees, determining the severity of his punishment is, in the first instance, a
    legislative task.” United States v. Meirick, 
    674 F.3d 802
    , 805 (8th Cir. 2012). We
    must remain “highly deferential to legislative judgments about the most effective way
    to protect the public from convicted criminals.” 
    Id.
     To succeed, Wheelock must
    show Congress’s “line-drawing” between possession and receipt was “totally
    arbitrary” under a “rational basis” inquiry.2 
    Id.
    Wheelock primarily contends there is little difference between possession and
    receipt and that in the vast majority of cases, defendants convicted of possession are
    also guilty of receipt. He adds that recent technological advances have removed any
    other justifiable distinctions that may once have existed between the two offenses.
    Initially, we note the distinction is not meaningless simply because knowing
    receipt and knowing possession overlap in the usual case. Yet the underlying
    point—that possession necessarily requires receipt (if not production) of the
    possessed material—merits additional consideration. See, e.g., United States v.
    Richardson, 
    238 F.3d 837
    , 839 (7th Cir. 2001) (“The puzzle is why receiving, which
    under the first guideline and the statute that it implements is punished as severely as
    sending, should be punished more severely than possessing, since possessors, unless
    they fabricate their own pornography, are also receivers.” (internal citations omitted)).
    2
    Wheelock makes no claim the disparity is “based upon an impermissible factor
    such as race.” Meirick, 
    674 F.3d at 805
    .
    -7-
    Possession of child pornography, while heinous in its own right, does not
    necessarily spread the harm beyond the possessor himself, whereas “receiving
    materials that have been shipped in interstate commerce is conduct more closely
    linked to the market for child pornography.” United States v. Watzman, 
    486 F.3d 1004
    , 1009 (7th Cir. 2007). This closer link to the market and its attendant harms is
    important because “[a] person who receives these images ‘furthers the market . . .
    whether or not the person retains them.’” United States v. Sturm, 
    673 F.3d 1274
    ,
    1279 (10th Cir. 2012) (quoting United States v. Davenport, 
    519 F.3d 940
    , 949 (9th
    Cir. 2008) (Graber, J., dissenting)); accord United States v. Ellison, 
    113 F.3d 77
    , 81
    (7th Cir. 1997) (noting that “even the receipt of [child pornography] for personal use,
    without more, keeps producers and distributors of this filth in business”). “‘Indeed,
    even a person who receives the images and never gets around to viewing them still
    causes these harms.’” Sturm, 
    673 F.3d at 1279-80
     (quoting Davenport, 
    519 F.3d at 949
     (Graber, J., dissenting)). Possession alone, however, does not necessarily
    contribute to the market, and “[b]ecause the harms flowing from possession of child
    pornography differ from those associated with distribution and receipt, differentiating
    levels of punishment should not be unexpected.” Id. at 1280.
    Wheelock seems to suggest the two crimes cannot be so easily separated
    because the receiver of a thing will always possess it (even if only briefly) and the
    possessor will always receive (or produce) it. This argument overlooks mens rea.
    The fact that a knowing possessor received or produced pornography does not
    necessarily mean he did so “knowingly,” as required by the statute. 
    18 U.S.C. § 2252
    (a)(2), (4). “It is possible to unwittingly receive child pornography and then
    knowingly continue in possession of it; likewise, one can knowingly receive child
    pornography and then cease possession.”3 Sturm, 
    673 F.3d at 1280
    ; accord Watzman,
    3
    However, the knowing receiver who promptly discards the material is
    necessarily guilty of knowingly possessing it for some brief period. See United States
    v. Muhlenbruch, 
    634 F.3d 987
    , 1003 (8th Cir. 2011) (“[P]roof of receiving child
    pornography under § 2252(a)(2) necessarily includes proof of illegal possession of
    -8-
    
    486 F.3d at 1009-10
     (“[A] person who receives child pornography by accident (for
    example, if he sought adult pornography but was sent child pornography instead) is
    not guilty of knowingly receiving it, though he is guilty of possessing it if he retains
    it.”). Only the person who intentionally obtains child pornography—whether by
    purchase or through peer-to-peer software—willingly participates in trafficking child
    pornography,4 making that person the more deliberate, active promoter of the market
    and the harms it creates and furthers, see Watzman, 
    486 F.3d at 1010
    .
    Because knowing possession is not knowing receipt and each act threatens
    distinct harms, the imposition of different mandatory minimums is not irrational.
    Wheelock’s challenge must therefore fail.5
    child pornography under § 2252(a)(4)(B).”).
    4
    Wheelock also seems to suggest receipt is not as reprehensible as it once was
    because most receivers of child pornography do not pay for it and therefore “do not
    financially contribute to the commercial child pornography industry anymore.” But
    the crime of receipt is not limited to commercial transactions, and Congress has long
    since removed any “sale” requirement based, in part, “upon Congress’s determination
    that ‘much if not most child pornography material is distributed through an
    underground network of pedophiles who exchange the material on a non-commercial
    basis, and thus no sale is involved.’” Sturm, 
    673 F.3d at 1279
     (quoting H.R. Rep. No.
    99-910, at 4 (1996), reprinted in 1986 U.S.C.C.A.N. 5952, 5954). In any case, even
    a peer-to-peer user who downloads child pornography furthers the “market” for it.
    Peer-to-peer file-sharing software enables a communal network which “exist[s]—as
    the name ‘file-sharing’ suggests—for users to share, swap, barter, or trade files
    between one another.” United States v. Griffin, 
    482 F.3d 1008
    , 1013 (8th Cir. 2007).
    Receivers (via downloading) are also potential distributors (via uploading), meaning
    every download creates a new possible source of upload. This, and the network’s
    encouragement to reciprocate the sharing, enhances its distribution capacity and
    promotes the production of additional pornography, not unlike a commercial market.
    5
    Wheelock also attacks the calculation and severity of his sentencing guidelines
    range. Given that his fifteen-year sentence was the mandatory minimum, see 
    18 U.S.C. § 2252
    (b)(1), any deficiency in the guidelines was harmless, see 
    28 U.S.C. § 2111
    .
    -9-
    III.   CONCLUSION
    For the reasons stated, we affirm.
    ______________________________
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