United States v. Daniel Brown , 698 F. App'x 872 ( 2017 )

FILED
NOT FOR PUBLICATION
JUN 12 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30148
Plaintiff-Appellee, D.C. No.
9:14-cr-00027-DLC-2
v.
DANIEL BROWN, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief Judge, Presiding
Argued and Submitted June 6, 2016
Seattle, Washington
Before: PAEZ and BYBEE, Circuit Judges, and TIGAR,** District Judge.
MEMORANDUM
A jury convicted Daniel Brown of conspiracy to make, print, or publish “any
notice or advertisement seeking or offering” child pornography in violation of 18
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jon S. Tigar, United States District Judge for the
Northern District of California, sitting by designation.
U.S.C. §§ 2251(d) and (e), and Brown was sentenced to a prison term of fifteen years.
Brown appeals the denial of his motion to suppress and the district court’s refusal to
allow two different defense arguments. We reverse Brown’s conviction in a separate
opinion filed concurrently with this memorandum. In this memorandum, we affirm
the denial of Brown’s suppression motion and the district court’s decision prohibiting
one of Brown’s co-conspirators from testifying regarding his withdrawal from the
conspiracy.
1. Reviewing the district court’s ruling on Brown’s motion to suppress de
novo and the underlying factual findings for clear error, we conclude that the district
court did not err in denying Brown’s motion to suppress. United States v.
Washington, 387 F.3d 1060, 1066 (9th Cir. 2004). Pursuant to a search warrant, FBI
Special Agent Mandy Fellenz searched the email account of Dark Moon messaging
board member Charles Crosby and located log-in information for that board. Without
obtaining a separate warrant, Fellenz then logged onto Dark Moon and saw child
pornography. Separately, government agents later executed search warrants at the
residences of several suspected members of a different messaging board, Kingdom of
Future Dreams (“KOFD”), some of whom were also members of Dark Moon. These
members consented to agents’ search of the Dark Moon site. Brown asserted that
Fellenz’s warrantless search of Dark Moon was “critical” to agents later obtaining
other evidence from searches consented to by the KOFD suspects, and therefore such
evidence was tainted.
Assuming for the sake of argument that Special Agent Fellenz’s initial brief
entry onto the Dark Moon messaging board was unlawful, we nonetheless find no
error in the district court’s conclusion that the later search was lawful. In the midst
of executing lawful residential search warrants on suspected members of another
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messaging board, the search warrant teams did not exploit Fellenz’s earlier illegal
search in requesting consent from those other suspects to search Dark Moon. See
Hoonsilapa v. INS, 575 F.2d 735, 738 (9th Cir. 1978) (“[T]he mere fact that [a] Fourth
Amendment illegality directs attention to a particular suspect does not require
exclusion of evidence subsequently unearthed from independent sources.”).
Because the residential search warrant teams had received an interview outline
that prompted them to ask targets about membership on any and all bulletin boards,
and agents were not told that Special Agent Fellenz had gained access to Dark Moon
or that she found child pornography there, the information gleaned from the
consensual searches of the other suspects was not tainted by Fellenz’s earlier illegal
search. The prior illegality of Fellenz’s search therefore was not “sufficiently
connected to the subsequent consent” to require suppression of the later-obtained
evidence. See Washington, 387 F.3d at 1072.
2. Brown argues that the district court violated his “fundamental right to
present a venue defense to the jury when it prevented him from presenting evidence
and testimony about when the only member of the Dark Moon bulletin board from
Montana (Paul Wencewicz) affirmatively withdrew from the board before . . . Brown
ever joined.” But the district court’s decision did not take the determination of venue
away from the jury. The court instructed the jury that it needed to find venue in
Montana in order to find Brown guilty, and ruled that any testimony from Wencewicz1
about when and if he withdrew from the conspiracy was irrelevant given that venue
in a conspiracy case is appropriate in any district where an overt act of the conspiracy
1
Venue in Montana was premised entirely on co-conspirator Wencewicz’s
residency in, and access of the Dark Moon bulletin board from his home in,
Polson, Montana.
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was committed. See United States v. Meyers, 847 F.2d 1408, 1411 (9th Cir. 1988)
(“[V]enue is appropriate in any district where an overt act committed in the course of
the conspiracy occurred.”) (quoting United States v. Schoor, 597 F.2d 1303, 1308 (9th
Cir. 1979)). Because Brown was “bound [with respect to the conspiracy charge] by
all that ha[d] gone before in the conspiracy,” the district court correctly concluded that
testimony from Wencewicz regarding his withdrawal from the conspiracy before
Brown joined was irrelevant to the determination of venue. United States v. Bibbero,
749 F.2d 581, 588 (9th Cir. 1984).
AFFIRMED.
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