United States v. Powell

United States Court of Appeals
For the First Circuit
No. 17-1683
UNITED STATES OF AMERICA,
Appellee,
v.
BRIAN POWELL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Torruella, Kayatta, and Barron,
Circuit Judges.
Jeffrey W. Langholtz for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
John J. Farley, Acting United States Attorney, was on brief, for
appellee.
July 16, 2018
BARRON, Circuit Judge. Brian Powell appeals his
conviction based on his guilty plea for production of child
pornography in violation of 18 U.S.C. § 2251(a). Because we see
no error in the District Court's ruling denying his motion to
withdraw his guilty plea, we affirm the conviction.
I.
On April 19, 2016, the government filed a one-count
information against Brian Powell, alleging that he had produced
child pornography in violation of 18 U.S.C. § 2251(a). On May 2,
2016, Powell pleaded guilty to that count. At the plea hearing,
the government offered the following facts in support of the
charge.
Omegle is a chat website that allows users to see each
other and "chat" using their computers' video cameras and through
instant messaging. In July 2015, Powell used Omegle to produce
child pornography by initiating sexually explicit video-chats with
minors1 and recording a number of video chats as they appeared on
1 The District Court noted that the government had not adduced
evidence demonstrating that at least one individual depicted in
the screenshots was a minor, because the individual was not
identified. The Court then confirmed with Powell's counsel that
he had "reviewed this issue with [Powell] and [was] satisfied . .
. [that Powell] understands that the government would have to prove
that this was a minor child and he is not prepared to contest the
government's contention on that point[.]" Powell's counsel then
confirmed that he had spent "as much time as [he] needed with the
forensic detective" reviewing the images and discussed the matter
with Powell in discussing his decision whether to plead guilty.
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his screen. He then stored those recordings on his personal
computer.
Before taking Powell's plea, the District Court engaged
him in a colloquy pursuant to Rule 11 of the Federal Rules of
Criminal Procedure in which, among other things, he was asked if
he "disagree[d] with anything that [the prosecutor] ha[d] said,"
and Powell confirmed that he did not. See Fed. R. Crim. P. 11.
The District Court also confirmed that Powell understood the
potential sentence that he was facing and how that sentence would
be calculated. Powell was next asked if he was "satisfied with
the legal advice [he had] received from [his] attorney," to which
Powell responded that he was. The District Court also asked
Powell's attorney if "to [his] knowledge, is [Powell] pleading
guilty because of any illegally obtained evidence in the
government's possession?" Powell's attorney replied that he "did
not believe" so. At the end of the colloquy, the District Court
accepted Powell's guilty plea.
Nevertheless, many months later, on February 17, 2017,
Powell filed a motion to withdraw his guilty plea. He alleged in
that motion that his Fourth Amendment rights had been violated
because Omegle had forwarded screenshots it had collected of
Powell's chat sessions and the IP address used for them to the
National Center for Missing and Exploited Children (NCMEC), which
had then viewed those screenshots and forwarded the IP address and
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the screenshots to law enforcement. Powell argued that his
counsel, in advising him with respect to the guilty plea, had
provided him with ineffective assistance of counsel in violation
of his Sixth Amendment right to counsel, see Strickland v.
Washington, 466 U.S. 668, 697 (1984), by not having moved pursuant
to the Fourth Amendment to suppress the evidence that Omegle had
sent to NCMEC.
The District Court acknowledged that Powell would be
entitled to withdraw his guilty plea if his counsel had failed to
file a meritorious suppression motion, and so it held a hearing to
address the potential merits of any such motion. At that hearing,
the District Court adduced the following undisputed facts.
Powell's solicitation of child pornography was picked up
through Omegle's systematic review process. In this process,
Omegle automatically records periodic screenshots of users' video
chats. Omegle employees then review these records and forward
images that employees suspect of being child pornography to NCMEC,
an entity that "is statutorily obliged to maintain an electronic
tip line . . . to report possible Internet child sexual
exploitation violations to the government." United States v.
Ackerman, 831 F.3d 1292, 1296 (10th Cir. 2016), reh'g denied (Oct.
4, 2016). NCMEC employees then view the images and run the
corresponding IP addresses through a publicly-available system to
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identify the source's geographic location. NCMEC then passes those
images and the IP address on to law enforcement.
Omegle followed this process in this case. During
Powell's online interactions, Omegle automatically took
screenshots. Omegle staff then reviewed these screenshots, along
with information about Powell's IP address and webcam. An Omegle
employee identified the screenshots as containing possible child
pornography. Omegle submitted the screenshots and computer and
webcam information to NCMEC. NCMEC reviewed those screenshots and
determined that they contained child pornography. NCMEC also
identified Powell's geographic area based on his IP address. NCMEC
forwarded the screenshots and IP information to law enforcement.
On these facts, the District Court denied Powell's
motion on May 25, 2017, because it found that the only information
that NCMEC obtained from Omegle was information that Omegle had
viewed through its own independent searches prior to providing
that information to NCMEC. It thus concluded that NCMEC had not
violated Powell's Fourth Amendment rights. Powell now brings this
appeal from that ruling.
II.
Our review of "a district court's denial of a motion to
withdraw [a guilty plea is] for abuse of discretion." United
States v. Dunfee, 821 F.3d 120, 127 (1st Cir. 2016). In making
that assessment, we consider "the strength of the reasons offered
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in support of the motion," United States v. Isom, 580 F.3d 43, 52
(1st Cir. 2009), recognizing that the motion should be permitted
"if the defendant offers 'a fair and just reason'" for the motion.
United States v. Sousa, 468 F.3d 42, 46 (1st Cir. 2006) (quoting
Fed. R Crim. P. 11(d)(2)(B)). In determining whether the defendant
offered such a "fair and just reason," our review of the District
Court's legal conclusions in denying a motion to withdraw is de
novo. United States v. Gates, 709 F.3d 58, 69 (1st Cir. 2013).
We have explained that when a defendant seeks to withdraw
a guilty plea based on a claim of ineffective assistance of counsel
under the Sixth Amendment, that defendant must make two showings.
First, he must demonstrate "that counsel's representation 'fell
below an objective level of reasonableness.'" United States v.
Pellerito, 878 F.2d 1535, 1538 (1st Cir. 1989) (quoting Hill v.
Lockhart, 474 U.S. 52, 57–59 (1985)). Second, he must show that
the "counsel's deficient performance resulted in prejudice -- that
is, 'that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different.'" United States v. Mercedes-De La Cruz, 787 F.3d
61, 67 (1st Cir. 2015) (quoting Strickland v. Washington, 466 U.S.
668, 694 (1984)).
Powell agrees that, in accord with these requirements,
he can succeed on his challenge to the denial of his motion to
withdraw his guilty plea only by showing that the motion to
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suppress that he contends that his counsel should have filed would
have been meritorious. Mercedes-De La Cruz, 787 F.3d at 67.2 But,
for the reasons that we now explain, we conclude that he has failed
to show that it would have been.
The Fourth Amendment provides that the "right of the
people to be secure in their persons, houses, papers and effects,
against unreasonable searches and seizures, shall not be
violated." U.S. Const. amend. IV. This protection applies when
"the person invoking its protection can claim a . . . 'legitimate
expectation of privacy' that has been invaded by government
action." Smith v. Maryland, 442 U.S. 735, 740 (1979).
The parties do not dispute that Powell had a reasonable
expectation of privacy in the screenshots of his Omegle video chat
conversations. They also do not dispute that Omegle, under our
precedent, was not acting as a governmental entity or agent, United
States v. Cameron, 699 F.3d 621 (1st Cir. 2012). Nor do they
dispute that, for all relevant purposes, NCMEC was. What they do
2 Powell also gestures at an argument that his counsel's
performance was ineffective because, relying on United States v.
Cavitt, 550 F.3d 430, 441 (5th Cir. 2008), Powell's counsel did
not provide him with the opportunity to adequately review discovery
before he accepted a guilty plea. However, even were this argument
not waived for lack of development, see United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990), he clarified at oral argument that
his ineffective assistance of counsel argument was not based on
inadequate access to discovery, but rather solely the failure to
file a suppression motion that would have been successful. We
thus do not need to address that argument here.
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dispute is whether NCMEC's warrantless viewing of the screenshots
and its review of the other related information that Omegle had
sent to NCMEC requires the suppression of that evidence.
Powell contends, pursuant to what is known as the private
search doctrine, that a motion to suppress that evidence would
have been successful. The private search doctrine provides that,
if a private actor (such as Omegle) searches evidence in which an
individual has a reasonable expectation of privacy, and then
provides that evidence to law enforcement or its agent (such as,
in this case, NCMEC), "[t]he additional invasions of [the
individual's] privacy by the government agent must be tested by
the degree to which they exceeded the scope of the private search."
United States v. Jacobsen, 466 U.S. 109, 115 (1984).
Under this doctrine, there is no Fourth Amendment
violation if the search by law enforcement or its agent is
coextensive with the scope of the private actor's private search
and there is "a virtual certainty that nothing else of
significance" could be revealed by the governmental search. Id.
at 119; accord Ackerman, 831 F.3d at 1306. But if, instead, that
search "exceed[s] the scope of the private search," then the
government must have "the right to make an independent search"
under the Fourth Amendment in order for that search to comport
with the Constitution. Jacobsen, 466 U.S. at 116.
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Powell argues that NCMEC's search of the screenshots
exceeded the scope of Omegle's private search, and he relies for
that contention on the Tenth Circuit's decision in United States
v. Ackerman, 831 F.3d 1292 (10th Cir. 2016). But that case does
not help him.
In Ackerman, the defendant's internet service provider
(ISP) employed an "automated filter designed to thwart the
transmission of child pornography" through the use of "hash value
matching." Ackerman, 831 F.3d at 1294. "A hash value is (usually)
a short string of characters generated from a much larger string
of data (say, an electronic image) using an algorithm -- and
calculated in a way that makes it highly unlikely another set of
data will produce the same value." Id. Ackerman's ISP's hash
value matching protocol identified an attachment to Ackerman's
email as potentially child pornography and automatically forwarded
that email and its attachments to NCMEC. Id. NCMEC employees
then viewed Ackerman's email and attachments before passing this
material on to law enforcement. Id.
The Tenth Circuit, on the understanding that Ackerman
had a reasonable expectation of privacy in his emails, id. at 1304-
05, concluded that NCMEC's viewing of the email and attachments
without a warrant violated the Fourth Amendment because the ISP
had "never opened the email itself. Only NCMEC did that, and in
at least this way exceeded rather than repeated [the ISP's] private
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search." Id. at 1306. Nor, Ackerman reasoned, was there "any
doubt NCMEC's search of the email itself quite easily 'could [have]
disclose[d]' information previously unknown to the government
besides whether the one attachment contained contraband." Id.
(quoting Jacobsen, 466 U.S. at 122) (alterations in original).
The images of the screenshots that NCMEC viewed in
Powell's case, however, were precisely the ones that had already
been viewed by the private actor, Omegle. And, given the form in
which NCMEC received that material, NCMEC's viewing of those images
could not have disclosed any "fact previously unknown." Jacobsen,
466 U.S. at 122; see also Ackerman, 831 F.3d at 1306. Thus, under
the private search doctrine as Jacobsen defines it, Powell has
failed to show that his Fourth Amendment rights were violated.
Powell does suggest, in cursory fashion, that subsequent
developments in Fourth Amendment jurisprudence cast doubt on the
applicability of the private search doctrine in the digital age,
such that the screenshots might need to be suppressed even though
NCMEC did not exceed the scope of the search conducted by Omegle.
But while he cites in general terms to United States v. Jones, 565
U.S. 400, 417 (2012), and what was the then-pending case of
Carpenter v. United States, No. 16-402, ___ U.S. ___ (2018), he
fails to explain how these cases, neither of which (at least
directly) concern the private search doctrine, bear on Jacobsen's
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application here. Thus, any argument along those lines is waived
for lack of development. Zannino, 895 F.2d at 17.
III.
The conviction is affirmed.
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