United States v. Christie

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-2908
UNITED STATES OF AMERICA
v.
RUSSELL CHRISTIE,
Appellant.
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-07-cr-00332-001)
District Judge: Hon. Harold A. Ackerman*
_______________
Submitted Under Third Circuit LAR 34.1(a)
July 16, 2010
*
Judge Harold A. Ackerman, a stalwart on the United States
District Court for the District of New Jersey for more than thirty
years, passed away on December 2, 2009.
Before: RENDELL, JORDAN, and GREENAWAY, JR.,
Circuit Judges.
(Filed: September 15, 2010)
Lorraine S. Gauli-Rufo
Office of Federal Public Defender
927 Broad Street - 4th Fl.
Newark, NJ 07102
Counsel for Appellant
George S. Leone
John F. Romano
Office Of United States Attorney
970 Broad Street - Rm. 700
Newark, NJ 07102
Counsel for Appellee
OPINION OF THE COURT
JORDAN, Circuit Judge.
Russell Christie appeals the judgment of conviction and
sentence entered by the United States District Court for the
District of New Jersey after a jury found him guilty of various
child pornography offenses. For the reasons that follow, we will
affirm.
2
I. Factual Background
On September 3, 2008, a grand jury returned an eight-
count second superceding indictment charging Christie with
possession, receipt, and advertising of child pornography, in
violation of 18 U.S.C. §§ 2251(d)(1)(A), 2252A(a)(2)(A), and
2252A(a)(5)(B). The indictment was the culmination of a two-
year investigation into the website of the North American Man-
Girl Love Association (“NAMGLA”), a site that featured a
password-protected forum where users could post links to
sexually explicit images and videos of children and comment on
those materials.
A. Investigation Culminating in Christie’s Arrest
The investigation began in November 2005 as the
byproduct of an unrelated fraud investigation into Jerrod
Lochmiller, who happened to be the administrator of the
NAMGLA site. Lochmiller, who was a fugitive and on
probation at all times pertinent to this case, contacted the United
States Attorney’s Office in Los Angeles through his attorney,
George Buehler. Buehler indicated that, in exchange for the
government’s dropping fraud charges against Lochmiller,
Lochmiller would, in turn, provide access to the NAMGLA
website and information on its users. The U.S. Attorney’s
Office agreed and referred the case to the Federal Bureau of
Investigation (“FBI”), which assigned Special Agent Douglas
MacFarlane as the primary case agent for the investigation.
Buehler furnished a user name and password, which
MacFarlane then used to access restricted areas of the
3
NAMGLA website. At trial, MacFarlane testified that the
password-protected areas of the website contained three sections
entitled the N Gallery, the Private Gallery, and the Private
Lounge. In the N Gallery – which MacFarlane identified as an
abbreviation for “Nude Gallery” – users could post links to other
websites containing sexually explicit images and videos of
children posing by themselves. The Private Gallery and Private
Lounge sections of the website operated in a similar manner,
except that the links posted in them typically contained images
of children engaged in sexual acts with adults or with one
another. MacFarlane testified that access to the site was free but
that users were required to submit links to child pornography to
the site moderators in order to obtain a username and password.
During the course of the investigation, one such user, who went
by the screen name “franklee,” consistently posted links to new
images and videos, and posted comments to the website. As a
result of MacFarlane’s investigation, the FBI undertook efforts
to identify the users of the website.
Identifying the users proved difficult, due to the manner
in which individual computers are identified when linked to the
internet. Residential internet customers typically connect to the
internet through an internet service provider (“ISP”). Each time
a customer connects, the ISP assigns a unique identifier, known
as an IP address, to the customer’s computer terminal.
Depending on the ISP, a customer’s IP address can change each
time he logs on to the internet. ISPs retain for a finite period of
time – usually thirty, sixty, or ninety days – records of the IP
addresses that they assign to customers. IP addresses are also
conveyed to websites that an internet user visits, and
administrators of websites, like NAMGLA’s, can see the IP
4
addresses of visitors to their sites. However, site administrators
do not possess information linking a given IP address to a
particular person. That information is held by the ISPs.
The FBI initially attempted to obtain the IP addresses of
visitors to the NAMGLA website from Lochmiller, but, because
all communications between the FBI and Lochmiller were
handled through Buehler, the information was too stale to be
useful. By the time government agents got the IP addresses
from Buehler, there was not enough time to subpoena customer
identities from the ISPs before the ISPs had purged their records
reflecting which IP addresses had been assigned to which
customers. Accordingly, in April 2006, the FBI requested that
Lochmiller give them administrator-level access to the
NAMGLA website, which he did. With that higher level of
access, the FBI was able to see the IP addresses associated with
each user. MacFarlane then began monitoring the IP addresses
that appeared on the NAMGLA site, and he ultimately identified
approximately forty individual users. From there, he apparently
acquired from the ISPs the identity of the users associated with
the IP addresses.
One of those individuals was Christie, who posted to
NAMGLA using the screen name “franklee.” According to
MacFarlane, Christie was one of the most prolific contributors
to the NAMGLA site, having written more than 2,500 posts
between October 2005 and July 2006. As a moderator for the
site, Christie enforced site rules and counseled less-experienced
users about how to name and password-protect files to avoid
detection by law enforcement authorities. Christie’s moderator-
5
level access also gave him the ability to approve new member
accounts.
On July 25, 2006, the FBI executed multiple search
warrants as part of a coordinated “takedown” effort aimed at the
website and many of its users. FBI agents at Christie’s
residence seized over five-hundred CD-ROMs containing
images of children engaged in sexually explicit conduct, printed
images with similar content, and Christie’s computer, the hard
drive from which held over 250,000 graphics files, including
“several thousand” images of child pornography. Agents also
seized five composition notebooks containing notes reflecting
the type of content on various child pornography websites as
well as instructions on how to access them. The notebooks
contained references to child pornography files that “franklee”
had posted to the NAMGLA website, girls’ names, child
pornography search terms, websites used to upload child
pornography, and Christie’s notes on various pictures and
websites. In addition, agents discovered a collection of
children’s toys.
Special Agent John Bennett interrogated Christie
following the search. Christie, who was fifty years old at the
time of trial and has no children, explained that he was
employed as a school bus driver for elementary and middle-
school students, and that he used the toys to pacify children who
became boisterous while riding the bus. Christie also admitted
to submitting two particular posts to the NAMGLA website.
One was titled “nine-year-old in a supermarket” and the other
told of becoming sexually aroused while changing a baby’s
diaper.
6
B. Pretrial Motions and Trial
Prior to trial, Christie made several pretrial motions,
including a motion for an evidentiary hearing to determine
whether the government’s work with Lochmiller constituted
outrageous conduct amounting to a violation of Christie’s due
process rights.1 The District Court denied the motion,
concluding that, at the pretrial stage, the government’s conduct
did not raise sufficient concern to warrant a hearing.
Additionally, in a pro se motion to suppress, Christie argued that
the government violated his Fourth Amendment rights by
obtaining his IP address without first acquiring a search warrant.
The District Court rejected that argument, holding that Christie
lacked any reasonable expectation of privacy in his IP address.
Trial commenced on the child pornography charges on
November 12, 2008. During the government’s case-in-chief,
Agent MacFarlane testified about the FBI’s contact with
Lochmiller and the efforts to obtain from him the IP addresses
of people using NAMGLA’s website. MacFarlane
acknowledged that Buehler served as an intermediary between
the FBI and Lochmiller and, on cross-examination, MacFarlane
admitted that he had never met Lochmiller personally. Defense
1
As discussed further below, Christie’s allegations of
outrageous conduct are based on his assertion that the
government violated its own guidelines for how government
officials should interact with confidential informants.
Essentially, Christie contends that the government’s failure to
follow those guidelines in its dealings with Lochmiller
compromised the integrity of the entire investigation.
7
counsel further questioned MacFarlane about whether
Lochmiller qualified as a confidential informant (“CI”) under
the Attorney General’s Guidelines Regarding the Use of
Confidential Informants (the “CI Guidelines”). Those
guidelines define a “confidential informant” as “any individual
who provides useful and credible information ... regarding
felonious criminal activities, and from whom [the FBI] expects
or intends to obtain additional useful and credible information
regarding such activities in the future.” ATT’Y GEN.
GUIDELINES REGARDING THE USE OF CONFIDENTIAL
INFORMANTS [hereinafter “CI GUIDELINES”] § I.B.6, available
at http://www.fas.org/irp/agency/doj/fbi/dojguidelines.pdf. The
guidelines establish rules applicable to all Department of Justice
law enforcement agencies, see id. § I.A.3, and generally prohibit
the use of fugitives and probationers as CIs. Id. § II.D.5-6.
They also require that a law enforcement agent personally meet
with and supervise an individual who will act as a CI. Id. §
III.C.4-5.
MacFarlane testified that he did not consider Lochmiller
to be a CI because, once Lochmiller provided access to the
NAMGLA site, the FBI did not anticipate using him to obtain
future information about illegal activities. Nonetheless, defense
counsel obtained an admission from MacFarlane on cross-
examination that the CI Guidelines are designed, in part, to
prevent the implication of innocent individuals in criminal
activity. Defense counsel later argued in closing that Lochmiller
qualified as a CI. Thus, counsel insinuated that MacFarlane had
deviated from the CI Guidelines in relying on information
supplied by Lochmiller and that MacFarlane’s conduct created
the risk that Lochmiller had falsely implicated Christie and other
8
users of the NAMGLA website. The alleged unreliability of the
investigation was central to Christie’s defense at trial.
On redirect examination, the government sought to rebut
the suggestion of unreliability by asking MacFarlane to “relay
... the circumstances and facts gathered at the takedown of this
investigation that would address the concerns ... raised in terms
of the implication of innocent people[.]” (App. at 380.) Christie
objected that MacFarlane lacked sufficient personal knowledge
to answer the question, but the Court overruled the objection
after the government pointed out that MacFarlane was the lead
agent on the case. MacFarlane then responded that, “[o]n the
day of the takedown nationwide, the F.B.I. executed
approximately 30 search warrants on houses all across the
country. Of those 30, it’s my understanding that the F.B.I.
obtained partial or full confessions from 24 separate individuals
on child pornography-related offenses.”2 (Id. at 381.)
Also during Agent MacFarlane’s testimony, the Court
questioned why users of the NAMGLA website did not pay a
fee to access the website’s content, which prompted the
following exchange:
THE COURT: Let me ask you this. A
person wants to be a user,
wants to get this
2
Christie did not move to strike MacFarlane’s response from
the record.
9
information. Does he pay
for it?
THE WITNESS: Not on this site, no.
THE COURT: Then it was just sexual
gratification in seeing these
pictures?
THE WITNESS: I would surmise that for the
people who would post this,
yes.
THE COURT: If you know, is there any
monetary return to these
people who engage in this
sort of activity, or are they
just getting their kicks, as
the word is used
colloquially?
(Id. at 235.) At that point, the defense raised an objection to the
line of questioning, which the Court overruled. MacFarlane
then continued:
THE WITNESS: On this website, I did not
see anything to indicate that
it had a financial motive or
there was any way you
10
could pay for this. It was
more of an exchange,
meaning – you give
something to get something.
That was not monetary, it
was pictures.
THE COURT: So what you’re saying, it’s
your opinion it’s the
gratification of seeing the
pictures.
11
THE WITNESS: That would be my
understanding of what these
people would be motivated
by, yes.
(Id. at 235-36.)
Later in the trial, Bennett testified regarding the two posts
that Christie admitted uploading under the screen name
“franklee.” Specifically, Bennett testified that Christie
acknowledged having submitted the posts and that Christie
described them as “fantasies.” (Id. at 608.) Although Bennett
told the jury that one post concerned a nine year old in a
supermarket and the other concerned becoming aroused while
changing a baby’s diaper, the government elicited no further
information regarding the content of those posts. Bennett also
testified that agents had discovered toys in Christie’s apartment,
and that Christie had explained that he used them to quiet rowdy
children on his school bus.
Christie objected to the testimony regarding the subjects
of the posts as irrelevant and unduly prejudicial, and he objected
to testimony concerning the toys as unduly prejudicial. The
Court overruled those objections. It reasoned that the posts
showed that Christie visited the NAMGLA site with the intent
of exchanging child pornography. The Court permitted
testimony about the toys after the government argued that it
linked Christie to his occupation as a bus driver and therefore
showed that he responded truthfully during the interrogation by
Bennett.
12
Trial lasted for eight days, after which the jury convicted
Christie on all eight counts of the indictment. Christie filed a
post-trial motion in which he argued that the jury’s verdict
should be vacated and the charges against him dismissed
because of the government’s allegedly outrageous conduct,
namely, its lack of control over Lochmiller and its permitting
Lochmiller to continue running the NAMGLA website, all in
violation of the CI Guidelines. The Court denied that motion,
concluding that, even if the CI Guidelines applied to Lochmiller,
“the FBI’s failure to follow [them,] without more, does not
constitute outrageous conduct worthy of setting aside a
conviction.” (App. at 79.)
C. Sentencing
Christie was sentenced on June 23, 2009. Under § 2G2.2
of the Sentencing Guidelines, the District Court calculated that,
after several applicable enhancements, Christie’s total offense
level was 45 and his criminal history category was I, producing
a Guideline range sentence of life imprisonment. The District
Court, recognizing that the recommended sentence was life
imprisonment, stated that it would impose “a life sentence
consisting of the statutory minimum sentence applied
consecutively on Counts 1 through 6.” (App. at 2007.) The
Court then sentenced Christie to 1,080 months imprisonment,
which represented the mandatory minimum sentence of fifteen
years on each of Counts 1 through 6, 18 U.S.C. § 2251(e), to be
served consecutively; the mandatory minimum of five years on
Count 7, id. § 2252A(b)(1) to be served concurrently; and a five-
year sentence on Count 8, id. § 2252A(b)(2), to be served
concurrently. In support of that sentence, the Court stated that
13
Christie was more than “a mere downloader of child
pornography,” (App. at 1996), that, instead, he had a collection
of child pornography containing thousands of images and was
a moderator of the NAMGLA website and a remorseless
promoter of materials depicting minors engaged in sexual
conduct.
II. Discussion3
On appeal, Christie advances four types of objection to
the proceedings in the District Court. First, he argues that the
District Court erred in admitting certain evidence at his trial.
Second, he argues that the manner in which the government
obtained evidence from Lochmiller violated due process. Third,
he argues that the government violated his Fourth Amendment
right against unreasonable searches and seizures when it
obtained his IP address without a warrant. And fourth, he
argues that his sentence is unreasonable. We address each of
those challenges in turn.
A. Evidentiary Rulings at Trial
Christie challenges the District Court’s permitting
MacFarlane to testify that the FBI apprehended other users of
the NAMGLA website on the same day he was arrested and that
twenty-four of those users confessed to child pornography-
related offenses. He also appeals the District Court’s decision
3
The District Court had jurisdiction pursuant to 18 U.S.C. §
3231. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28
U.S.C. § 1291.
14
to admit evidence concerning the two posts that he
acknowledged submitting to the NAMGLA website, the Court’s
allowing testimony about the toys seized from his apartment,
and the Court’s admitting into evidence his five composition
notebooks. Further, he argues that the District Court improperly
sensationalized the trial when it asked MacFarlane whether
people who visited the NAMGLA website did so to “get[] their
kicks” and for “sexual gratification.” (App. at 235.) Finally, he
contends that, the cumulative effect of all of these errors was
unfair jury prejudice against him.
We review for abuse of discretion both the admissibility
of evidence and the District Court’s questioning of a witness.
See United States v. Starnes, 583 F.3d 196, 213-14 (3d Cir.
2009) (“We review a trial court’s decision to admit or exclude
evidence for abuse of discretion.”); United States v. Adedoyin,
369 F.3d 337, 342 (3d Cir. 2004) (reviewing questioning of a
witness by a district court for abuse of discretion). Even if we
find an abuse of discretion, the Court’s ruling will stand if the
error was harmless. See United States v. Casoni, 950 F.2d 893,
902 (3d Cir. 1991). We review for plain error any objections
that were not specifically raised before the District Court. See
United States v. Iglesias, 535 F.3d 150, 158 (3d Cir. 2008).
Under that standard, a defendant must establish that there was
an error that was plain or obvious, that it affected his substantial
rights, and that, if not rectified, it would seriously affect “the
fairness, integrity or public reputation of judicial proceedings.”
United States v. Lessner, 498 F.3d 185, 192 (3d Cir. 2007)
(quotations omitted).
15
1. MacFarlane’s Statement that Other Users
of the NAMGLA Site Confessed to Child
Pornography Offenses
Christie objects on the following grounds to
MacFarlane’s statement regarding the confessions of other
NAMGLA site users: (1) MacFarlane lacked personal
knowledge about each of the interrogations; (2) MacFarlane’s
testimony was hearsay; (3) admission of the testimony violated
the Confrontation Clause under Crawford v. Washington, 541
U.S. 36 (2004); (4) the testimony was irrelevant; (5) even if it
was relevant, it was unduly prejudicial; and (6) the testimony
constitutes improper vouching. Of these objections, the only
one that Christie raised at trial was that MacFarlane lacked
personal knowledge. We thus review the District Court’s ruling
on that issue for abuse of discretion, and we review Christie’s
arguments on the remaining five issues for plain error. None
provide a basis for reversal.
Christie asserts that MacFarlane never testified that he
was actually involved in all 30 arrests and interrogations, and
that his testimony should therefore have been excluded under
Federal Rule of Evidence 602 because he lacked personal
knowledge from which to testify about the disposition of those
cases. The argument rests on the unsound premise that the only
competent testimony about a complicated transaction is
testimony from eyewitnesses at every step. “Although first-
hand observation is obviously the most common form of
personal knowledge, that is not the only basis for it.” 3 JACK B.
WEINSTEIN & MARGARET A. BERGER WEINSTEIN’S FEDERAL
EVIDENCE § 602.03[1][a] (2d ed. 2010); cf. United States v.
16
Neal, 36 F.3d 1190, 1206 (1st Cir. 1994) (bank employee could
testify as to bank’s federally insured status because, even though
she was not employed until after bank robbery at issue, her job
exposed her to records indicating that the bank was federally
insured). We reject Christie’s challenge because MacFarlane’s
responsibilities gave him sufficient information to testify about
various aspects of the investigation, including its immediate
aftermath. As the lead FBI agent, MacFarlane oversaw the
investigation of all of the users of the NAMGLA website, was
thoroughly familiar with the case, coordinated the efforts of
other agents, and personally directed the enforcement steps on
“takedown day,” even if he did not conduct each step himself.
The extent of that supervisory involvement provided an
appropriate level of personal knowledge for MacFarlane to
testify about the outcome of the investigation. See United States
v. Sutton, 795 F.2d 1040, 1057 (Temp. Emer. Ct. App. 1986)
(testimony of government witness who supervised audit was
based on personal knowledge). Accordingly, the District Court
properly rejected Christie’s assertion that MacFarlane was not
competent to testify about the responses of other targets of the
investigation.
Christie next argues that MacFarlane’s testimony about
the other targets’ acknowledgment of guilt constitutes
inadmissible hearsay and that the testimony was irrelevant
because it was not probative of Christie’s guilt. According to
Christie, even though he raised no objection along these lines at
trial, the District Court should have precluded the testimony sua
sponte. We disagree.
17
The Federal Rules of Evidence define hearsay as “a
statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of
the matter asserted.” See FED. R. EVID. 801(c). MacFarlane
testified about the confessions only after Christie had insinuated
that Lochmiller was an unreliable source of information who
may have implicated innocent people in the NAMGLA
investigation, and that the FBI’s investigation was likewise
unreliable because it depended on information obtained from
Lochmiller. The District Court could properly have viewed
MacFarlane’s response as being elicited to explain why he
viewed Lochmiller as a credible source. From that perspective,
MacFarlane’s testimony is not hearsay because it was offered
for the purpose of rebutting Christie’s charge of misguided law
enforcement efforts and not offered for the truth of whatever the
other investigative targets may have said. Christie himself
acknowledges that the evidence had a rebuttal purpose, as he
recognizes in his brief that the government’s use of
MacFarlane’s testimony was meant to “establish the reliability
of the investigation.” (Appellant’s Op. Br. at 14.)
That distinction between a permissible and an
impermissible purpose for the evidence is no mere technicality.
Having put both MacFarlane’s and Lochmiller’s credibility at
issue, the defense invited MacFarlane to say why he viewed the
investigation as resting on reliable information. See United
States v. Milan, 304 F.3d 273, 290 & n.22 (3d Cir. 2002)
(defendant opened the door to testimony concerning judicial
approval of wiretaps obtained during investigation by suggesting
that “the government was willing to engage in improprieties ...
in order to convict [defendant]”). At that point, the question was
18
whether there were indicia of reliability regarding what
Lochmiller had told the FBI, and the existence of the
confessions provided an answer. Their existence, not their
details, or even ultimately their truth, was relevant to rebut the
implication that the investigation was a dragnet for the innocent
and that MacFarlane knew it. Thus, the testimony can be seen
as relevant to a proper, non-hearsay purpose because it
illustrated the reliability of the investigation, a fact of
considerable consequence since challenging the nature of the
investigation was at the crux of Christie’s defense. See United
States v. Lugo Guerrero, 524 F.3d 5, 14 (1st Cir. 2008) (finding
evidence admissible to combat defense theory).
Christie also contends that MacFarlane’s testimony
violated his rights under the Confrontation Clause of the
Constitution, see Crawford v. Washington, 541 U.S. 36 (2004),
because he had no opportunity to cross-examine any of the
individuals who confessed to child-pornography related
offenses. But, our conclusion that the testimony was properly
introduced for a non-hearsay purpose is fatal to Christie’s
Crawford argument, since “the Confrontation Clause ... ‘does
not bar the use of testimonial statements for purposes other than
establishing the truth of the matter asserted.’” See United States
v. Hendricks, 395 F.3d 173, 183 (3d Cir. 2005) (quoting
Crawford, 541 U.S. at 59 n.9)). We likewise reject Christie’s
assertion that the testimony was unfairly prejudicial, especially
since it was elicited for the purpose of rebutting Christie’s own
challenge to the investigation. See United States v. Boone, 279
F.3d 163, 188 (3d Cir. 2002) (“[G]iven [defendant’s] ... defense,
this evidence was proper under Rule 403.”). The District Court
19
did not plainly err in allowing the testimony to come into
evidence.
Finally, Christie argues that MacFarlane’s testimony
constitutes improper vouching or bolstering because he was
essentially assuring the jury that the investigations of other users
actually culminated in confessions, without introducing any
evidence to that effect. Vouching occurs when a prosecutor “(1)
assures the jury that the testimony of a government witness is
credible, and (2) ... bases his assurance on either his claimed
personal knowledge or other information not contained in the
record.” United States v. Lore, 430 F.3d 190, 211 (3d Cir.
2005). Here, the description of the investigation as it implicated
other users came from MacFarlane’s testimony, which was
based upon his knowledge as the lead agent on the case. Thus,
as already noted, MacFarlane’s knowledge provided a proper
basis for his testimony, and his testimony is itself the evidence
of record. There is no sensible vouching or bolstering challenge
to be made. See United States v. Milan, 304 F.3d 273, 290 (3d
Cir. 2002) (rejecting vouching challenge since prosecutor “never
made any statement that invited a plausible jury inference of
extra-record proof of reliability ... .”).
In sum, the District Court did not abuse its discretion or
otherwise commit error, let alone plain error, in admitting
MacFarlane’s testimony concerning the confessions of other
users of the website.
20
2. Admissibility of Two Posts to the
NAMGLA Website and the Children’s Toys
Christie next contends that the District Court should have
excluded as irrelevant and unfairly prejudicial the subject matter
of the two posts that Christie admitted putting on the NAMGLA
website (i.e., the post concerning a nine-year-old in a grocery
store and the post concerning arousal while changing a baby’s
diaper) and likewise should have excluded the evidence of the
children’s toys in his house. Although Christie objected at trial
to introduction of the subject matter of the NAMGLA posts as
irrelevant and unfairly prejudicial, he objected to the statement
concerning the toys only as unfairly prejudicial. Accordingly,
we review his challenge to the relevance of the testimony about
the toys for plain error.
The NAMGLA posts were certainly relevant to the
charged child-pornography offenses. The posts were submitted
under Christie’s screen name of “franklee” and indicated that
Christie visited the NAMGLA site with the purpose of
exchanging child pornography. Despite that obvious relevance,
Christie contends that the posts were unduly prejudicial because
they painted him as a sexual predator “actively engaged in
looking for children[.]” (Appellant’s Op. Br. at 35.) That
Christie’s own posts may bear that interpretation does not make
them irrelevant or unfairly prejudicial. The potential impact of
information about the NAMGLA posts was no doubt prejudicial,
but the District Court was well within the bounds of its
discretion in concluding that the danger of unfair prejudice did
not substantially outweigh the probative value of the evidence.
Furthermore, the government did not introduce the posts
21
themselves, instead eliciting only testimony concerning the
subjects of the posts. There was no abuse of discretion in the
District Court’s decision to admit that testimony. See Starnes,
583 F.3d at 215 (“[U]nfair prejudice does not simply mean
damage to the opponent’s cause. If it did, most relevant
evidence would be deemed [unfairly] prejudicial.... [T]he fact
that probative evidence helps one side prove its case obviously
is not grounds for excluding it under Rule 403.” (quotations
omitted and alterations in original)).
As to the toys, Christie asserts that “[n]othing about the
fact that he had children’s toys in his house made it more likely
that he possessed, received or advertised images of child
pornography than it would have been without the evidence,” and
that the evidence was “extremely prejudicial” because it created
the impression that he was a “sexual predator” even though he
was not charged with sexual abuse of a minor. (Appellant’s Op.
Br. at 34-35.) The government responds that testimony
concerning the toys was relevant because it corroborated
Christie’s confession to Bennett. The government’s reasoning
is that, since Christie was truthful about his profession as a bus
driver, and mentioned being a bus driver while explaining the
toys, he must have been telling the truth when he admitted to
posting his “fantasies” to the NAMGLA website. Further, the
government asserts that the testimony was not unduly
prejudicial since the government never actually argued that
Christie was a pedophile.
Here we are in agreement with Christie, and the
government’s painfully strained reasoning serves as its own
refutation. On this record, there does not appear to be any
22
legitimate basis for claiming that the toys were relevant. While
the truthfulness of Christie’s acknowledgment that he was a bus
driver may have some tendency, albeit weak, to suggest that he
was truthful in his entire discussion with Bennett, that point
could have been made without any mention of the toys at all.
Bus driving, not toy possession, is the supposed tie to
truthfulness. However, even if one assumes the toys had some
relevance, the danger of unfair prejudice clearly and
substantially outweighed it. The implication of the testimony is
just what Christie contends: that, as a bus driver with access to
children, he used the toys in attempt to make contact with
children and, given his aberrant interests, to molest them. But,
as Christie notes, he was charged with possession of child
pornography, not child molestation. Accordingly, the evidence
concerning the toys was substantially more likely to have an
unfair prejudicial effect than to benefit the jury in determining
Christie’s guilt on the crimes charged. The District Court
therefore erred in admitting Bennett’s testimony on that issue.
As unduly prejudicial as that evidence may have been in
this context, we nevertheless conclude that the error was
harmless given the truly overwhelming quantity of legitimate
evidence against Christie, including his admissions to Bennett,
his moderator status and activities on the NAMGLA site, his
handwritten notebooks documenting and rating various child-
pornography related websites, and the thousands and thousands
of images of child pornography in his possession. See United
States v. Dispoz-O-Plastics, Inc., 172 F.3d 275, 286 (3d Cir.
1999) (explaining that an error is harmless when the court is
convinced that the defendant was not prejudiced by it, and
23
noting that “[t]he factors to be examined [in making that
determination include] ... the scope of the comments and their
relationship to the proceeding, ... and the strength of the
evidence against [the] defendant[].”); see also United States v.
Vazquez, 271 F.3d 93, 100 (3d Cir. 2001) (noting the similarity
of harmless error standard and inquiry, under plain error
standard, as to whether an error affected a defendant’s
substantial rights). Christie himself acknowledges that “[t]he
government had ... an extraordinary amount of relevant,
admissible, and indisputably disturbing evidence, which it
displayed and described multiple times.” (Appellant’s Op. Br.
at 44.) The testimony concerning the toys was brief, spanning
only fifteen lines in the transcript of an eight day trial, and the
toys were not mentioned in the government’s closing.
Accordingly, it is “‘highly probable that the error did not
contribute to the judgment.’” See United States v. Vosburgh,
602 F.3d 512, 540 (3d Cir. 2010) (quoting Dispoz-O-Plastics,
Inc., 172 F.3d at 286); see also United States v. Anderskow, 88
F.3d 245, 251 (3d Cir. 1996) (holding that evidentiary error was
harmless when government did not rely on testimony in
summation and when evidence against defendant was
“overwhelming”).
3. Admissibility of the Composition
Notebooks
Christie next says it was error for the District Court to
admit into evidence the five composition notebooks seized from
his home. He acknowledges that “excerpts from the notebooks”
would have been admissible, but contends that admission of the
notebooks in their entirety was unfairly prejudicial under
24
Federal Rule of Evidence 403. (Appellant’s Br. at 40.)
Specifically, he contends that the notebooks were unnecessary
in light of the other evidence that he possessed and advertised
child pornography, and that the notebooks created a risk that the
jury would convict solely based on them instead of considering
whether any illegal images of child pornography could actually
be linked to him.
The notebooks were part and parcel of Christie’s trade in
child pornography and directly link him to the screen name
“franklee.” They show the lengths to which he went to make
such material accessible, and they provide significant proof that
he was not a mere possessor but acted as a facilitator and
conduit for others to obtain child pornography. The probative
value of the notebooks therefore clearly outweighed any danger
of unfair prejudice, and the District Court did not abuse its
discretion in refusing to exclude the notebooks under Rule 403.
4. The District Court’s Questioning
Christie next attacks the District Court for the nature of
its questions to MacFarlane regarding the likely motive of users
of the NAMGLA website. Federal Rule of Evidence 614 gives
the District Court the authority to question witnesses on its own.
The District Court did not abuse its discretion in asking
MacFarlane to describe, from his law enforcement experience,
why sites like NAMGLA do not require payment and why
individuals visit them. The Court’s questioning went to
appropriate issues such as how NAMGLA functioned and what
motive Christie had to provide a forum for swapping child
pornography. Furthermore, the Court instructed the jury not to
25
attribute any opinions to the Court in connection with its
questions. Although the Court’s framing of its questions in
colloquial terms, such as asking whether users visit such sites
for “kicks,” was less than ideal, there was no abuse of discretion
in the questioning.
5. Cumulative Effect of the Alleged
Evidentiary Errors
Christie asserts that, even if the alleged errors do not
constitute reversible error on their own, when taken together,
they created a prejudicial effect that overwhelmed any
possibility of a fair consideration of the evidence against him.
However, we have noted only one error in the numerous
evidentiary rulings that Christie challenges – the District Court’s
admission of the testimony concerning the toys seized from
Christie’s home – and we have already concluded that that error
was harmless, in light of the overwhelming evidence of guilt in
this case. We thus readily conclude that, taken together, the
purported errors do not entitle Christie to a new trial.
B. The Handling of Lochmiller Under the CI
Guidelines
Christie next argues, as he did to the District Court, that,
by failing to abide by the CI Guidelines, “[t]he government’s
investigation and prosecution of [the case against him]
constituted outrageous government conduct” that violated his
due process rights. (Appellant’s Op. Br. at 45.) He claims there
were several violations of the Guidelines, including (1) that
MacFarlane knew that Lochmiller was on probation but did not
26
contact probation authorities; (2) that the paperwork required to
register a confidential informant had not been completed; and
(3) that, although confidential informants are not supposed to
engage in criminal activity without authorization and
supervision, Lochmiller continued to run the NAMGLA
website. See CI GUIDELINES §§ II.A-B, II.D.5, III.C. According
to Christie, the government’s failure to follow the CI Guidelines
meant that MacFarlane and other agents lacked control over
Lochmiller, which Christie alleges violated his right to due
process because, absent such control, the government “simply
cannot vouch for the integrity of the data on [the NAMGLA]
site,” and thus innocent people are exposed to prosecution.
(Appellant’s Op. Br. at 54.)
In assessing Christie’s claim of outrageous government
conduct, we review the District Court’s factual findings for clear
error and exercise plenary review over the Court’s legal
conclusions. United States v. Lakhani, 480 F.3d 171, 181 (3d
Cir. 2007). “[W]e repeatedly have noted that we are ‘extremely
hesitant to find law enforcement conduct so offensive that it
violates the Due Process Clause.’” United States v. Hoffecker,
530 F.3d 137, 154 (3d Cir. 2008) (quoting United States v.
Voigt, 89 F.3d 1050, 1065 (3d Cir. 1996)).
The CI Guidelines do not themselves create rights for
criminal defendants. See United States v. Henry, 482 F.3d 27,
33 (1st Cir. 2007) (“Justice Department guidelines were not
compelled by statute, nor intended to create private rights.”); cf.
United States v. Caceres, 440 U.S. 741, 751-52 (1979)
(reversing suppression of evidence obtained in violation of IRS
regulations). Accordingly, even if those Guidelines were
27
violated, that would not mean, in itself, that Christie would be
entitled to relief. The pertinent question is whether the
government’s conduct was so outrageous or shocking that it
amounted to a due process violation. See Hoffecker, 530 F.3d
at 153-54; United States v. Nolan-Cooper, 155 F.3d 221, 229
(3d Cir. 1998) (“[A] criminal defendant may raise a due process
challenge to an indictment against her based on a claim that the
government employed outrageous law enforcement investigative
techniques.”). The CI Guidelines are relevant, if at all, only to
the extent that they indicate boundaries the FBI views as
defining good law enforcement practices in working with CIs.
They do not purport to be rules, much less a statement of the
limits of constitutional behavior.
Assuming that the CI Guidelines apply to the
government’s interactions with Lochmiller, which is a point in
dispute, the alleged failures to abide by the Guidelines did not
violate Christie’s due process rights. Cases in which we have
found due process violations have involved far more egregious
government conduct. For example, we have determined that due
process was violated when the government itself manufactured
the illegal activity and then prosecuted others who engaged in
that activity alongside government actors. See United States v.
Twigg, 588 F.2d 373, 379 (3d Cir. 1978) (“We do not believe
the Government may involve itself so directly and continuously
over such a long period of time in the creation and maintenance
of criminal operations, and yet prosecute its collaborators.”).
Here, in contrast, the government gained access to ongoing
illegal activity through an intermediary, Lochmiller. The
government benefitted from the information and site access that
Lochmiller provided, but it did nothing to create or encourage
28
criminal acts, and there is no evidence that the information
Lochmiller gave was untrustworthy.
C. Unreasonable Search and Seizure
Christie contends that the District Court erred in denying
his motion to suppress because, as he sees it, the government’s
acquisition of his IP address, in connection with the
administrative access given by Lochmiller, violated his Fourth
Amendment rights. “We review the denial of a motion to
suppress for clear error as to the underlying factual
determinations and exercise plenary review over the application
of the law to those facts.” United States v. Veal, 453 F.3d 164,
167 (3d Cir. 2006).
Christie’s argument hinges on the flawed premise that he
possessed a reasonable expectation of privacy in his IP address.
Federal courts have uniformly held that “subscriber information
provided to an internet provider is not protected by the Fourth
Amendment’s privacy expectation” because it is voluntarily
conveyed to third parties. United States v. Perrine, 518 F.3d
1196, 1204 (10th Cir. 2008); see also United States v. Bynum,
604 F.3d 161, 164 (4th Cir. 2010) (holding that a defendant
could not point to any “evidence that he had a subjective
expectation of privacy in his internet ... subscriber information”
because he “voluntarily conveyed” that information to the
company, and “assumed the risk” that the company would
provide that information to the police (internal citations
omitted)); Guest v. Leis, 255 F.3d 325, 336 (6th Cir. 2001) (“We
conclude that plaintiffs ... lack a Fourth Amendment privacy
interest in their subscriber information because they
29
communicated it to the systems operators.”). Similarly, no
reasonable expectation of privacy exists in an IP address,
because that information is also conveyed to and, indeed, from
third parties, including ISPs. “IP addresses are not merely
passively conveyed through third party equipment, but rather are
voluntarily turned over in order to direct the third party’s
servers.” United States v. Forrester, 512 F.3d 500, 510 (9th Cir.
2008); cf. Smith v. Maryland, 442 U.S. 735, 743-44 (1979)
(pointing out that the Supreme Court “consistently has held that
a person has no legitimate expectation of privacy in information
he voluntarily turns over to third parties”). Christie therefore
had no reasonable expectation of privacy in his IP address and
so cannot establish a Fourth Amendment violation.4 The
District Court properly denied his motion to suppress.
4
The one case upon which Christie relies, State v. Reid, dealt
specifically with the New Jersey constitution, not the federal
constitution, and is thus inapposite here. 945 A.2d 26, 28 (N.J.
2008) (“We now hold that citizens have a reasonable
expectation of privacy, protected by Article I, Paragraph 7, of
the New Jersey Constitution, in the subscriber information they
provide to Internet service providers ... .”). Indeed, the court
specifically recognized the absence of a right to privacy in
subscriber information under the federal constitution, but
reached a contrary result under the New Jersey Constitution
because “the search and seizure protections in the federal and
New Jersey Constitutions are not always coterminous.” See id.
at 31-32 (quotations omitted).
30
D. Sentencing
Finally, Christie argues that his sentence is unreasonable.
He does not object to the enhancements imposed in his case.
Instead, he says that § 2G2.2 is inherently flawed because the
enhancements apply in even the most routine cases, thereby
producing unnecessarily severe results, and that his sentence is
thus per se unreasonable because it was based upon a sentencing
range dictated by that Guideline. We review a district court’s
sentencing order for reasonableness, under an abuse of
discretion standard.5 United States v. Tomko, 562 F.3d 558, 567
(3d Cir. 2009).
Whether or not § 2G2.2 may produce unreasonable
sentences in some cases – a subject on which we make no
comment here – the sentence in this case is not unreasonable.
First, Christie’s collection of many thousands of images of child
pornography powerfully indicates that his is not the routine case.
Second, and more importantly, Christie helped to run a network
that allowed for the trading of hundreds of thousands of
unlawful images. As a moderator of the NAMGLA site, he
facilitated the trading and possession of child pornography by
other users, showing that he is guilty of far more than mere
possession. Third, the District Court noted that Christie
expressed no remorse and believed that he was likely to reoffend
5
Although Christie purports to be arguing that his sentence is
both procedurally and substantively unreasonable, his sole
argument – that his sentence is unreasonable because it was
based on a Guideline that allegedly produces overly severe
sentences – is a challenge only to substantive reasonableness.
31
in the future. All of those facts support the reasonableness of
the District Court’s sentence, based on Christie’s particular
history and characteristics and the specific characteristics of his
offense. Accordingly, on the facts of this case, we are satisfied
that the sentence was within the bounds of reasonableness.
III. Conclusion
For the foregoing reasons, we will affirm the judgment of
conviction and sentence imposed by the District Court.
32