United States v. Genin

12-1086-cr
United States v. Genin
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 7th day of May, two thousand thirteen.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 ROBERT D. SACK,
9 Circuit Judge,
10 JED S. RAKOFF,*
11 District Judge.
12
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14 UNITED STATES OF AMERICA,
15 Appellee,
16
17 -v.- 12-1086-cr
18
19 RICHARD GENIN,
20 Defendant-Appellant,
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22
*
The Honorable Jed S. Rakoff, United States
District Judge for the Southern District of New York,
sitting by designation.
1
1 FOR APPELLANT: Clinton W. Calhoun, III, Calhoun
2 & Lawrence, LLP, White Plains,
3 New York.
4
5 FOR APPELLEE: Sarah R. Krissoff (Brent S.
6 Wible, on the brief), for Preet
7 Bharara, United States Attorney
8 for the Southern District of New
9 York, New York, New York.
10
11 Appeal from a judgment of the United States District
12 Court for the Southern District of New York (Robinson, J.).
13
14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
15 AND DECREED that the judgment of the district court be
16 AFFIRMED.
17
18 Richard Genin appeals from the judgment of the United
19 States District Court for the Southern District of New York
20 (Robinson, J.1), denying his motion to suppress. Genin
21 argues that the search warrant was not supported by probable
22 cause because the warrant affidavit failed to describe
23 sufficiently the videos that Genin had ordered from an
24 online retailer of child pornography. We assume the
25 parties’ familiarity with the underlying facts, the
26 procedural history, and the issues presented for review.
27
28 With respect to denial of the motion to suppress, we
29 review the district court’s factual findings for clear error
30 and review its conclusions of law de novo. See United
31 States v. Rodriguez, 356 F.3d 254, 257 (2d Cir. 2004).
32
33 The search warrant was supported by probable cause.
34 Although the warrant affidavit did not describe in detail
35 the videos that Genin referenced in his e-mails to the child
36 pornography website operator, the following information,
37 taken together, sufficed. An FBI analyst had reviewed those
38 videos and concluded that they met the definition of child
39 pornography in 18 U.S.C. §§ 2252(a)(4)(B) and 2256(2)(A).
40 “Nearly all” of the approximately 150 videos recovered from
41 the European child pornography website operator depicted
1
Judge Robinson decided the motion to suppress.
When Judge Robinson left the bench in 2010, the case was
assigned to Chief Judge Preska, who presided over the bench
trial and sentencing.
2
1 minors engaging “in sexual acts, or . . . with their legs
2 spread, or the camera lens zoomed in close on their pubic
3 region, thereby clearly exposing the minor’s genitals.”
4 Genin purchased a number of these videos. E-mails from
5 Genin to the website operator referenced the ages of the
6 girls in the videos, his desire to see “younger girls[,] and
7 . . . to see them move, not simply pose.” Genin’s e-mails
8 demonstrate his taste for sexually charged videos.
9
10 The warrant affidavit’s specific description of these
11 e-mails and its characterization of approximately 150 videos
12 obtained by the FBI distinguish this case from the cases
13 Genin cites. In those cases, the warrant affidavits
14 contained only a perfunctory statement that the materials at
15 issue contained “child pornography,” United States v.
16 Groezinger, 625 F. Supp. 2d 145, 149-50 (S.D.N.Y. 2009), or
17 “children displaying a lewd and lascivious exhibition of the
18 genitals and pubic areas,” United States v. Jasorka, 153
19 F.3d 58, 59 (2d Cir. 1998) (per curiam).
20
21 The warrant affidavit therefore contained sufficient
22 facts from which the magistrate could conclude that there
23 was “a fair probability that contraband or evidence of a
24 crime w[ould] be found” in Genin’s possession. Illinois v.
25 Gates, 462 U.S. 213, 238 (1983).
26
27 For the foregoing reasons, and finding no merit in
28 Genin’s other arguments, we hereby AFFIRM the judgment of
29 the district court.
30
31 FOR THE COURT:
32 CATHERINE O’HAGAN WOLFE, CLERK
33
3