Argued: April 16, 2018
Appeal from the United States District Court For the District
from a judgment of the United States District Court for the
District of Vermont (Sessions, J.) convicting
defendant-appellant, following a jury trial, of one count of
possessing child pornography and sentencing him principally
to 120 months' imprisonment followed by ten years'
supervised release. On appeal, defendant-appellant raises
three principal challenges: (1) the district court erred in
denying his motion to suppress evidence of child pornography
seized at his home pursuant to a search warrant; (2) the
government failed at trial to prove that computers seized at
his home had been transported in interstate or foreign
commerce or had been used to produce child pornography; and
(3) the district court erred in sentencing him to a mandatory
minimum term of imprisonment and in imposing two special
conditions of supervised release.
In Part, Vacated In Part, and Remanded.
Barbara A. Masterson, Assistant United States Attorney
(Gregory L. Waples, Assistant United States Attorney, on the
brief), for Christina E. Nolan, United States Attorney for
the District of Vermont, Burlington, Vermont, for Appellee.
L. Barth, Assistant Federal Public Defender (Barclay T.
Johnson, Assistant Federal Public Defender, on the brief),
for Michael L. Desautels, Federal Public Defender for the
District of Vermont, Burlington, Vermont, for Defendant-
Before: Wesley, Chin, and Carney, Circuit Judges.
case, defendant-appellant Donald Ray Boles was convicted in
the United States District Court for the District of Vermont,
following a jury trial, of possession of child pornography in
violation of 18 U.S.C. § 2252(a)(4)(B). On April 17,
2017, the district court sentenced him principally to 120
months-incarceration and a ten-year term of supervised
release. On appeal, he contends that the district court erred
in denying his motion to suppress evidence obtained in a
search of his home pursuant to a warrant. He raises other
issues relating to his trial and sentence. We affirm the
conviction and sentence, except that we vacate the
"risk" condition of his supervised release and
remand in that respect only.
2001, in an earlier case, Boles pleaded guilty to possession
of child pornography, also in the U.S. District Court for the
District of Vermont. The court (Sessions, J.)
sentenced him to 15 months in prison and two years'
supervised release. Boles served his prison term and
completed his supervised release on August 8, 2004.
January 2010, the Innocent Images Operations Unit (the
"IIOU") of the Federal Bureau of Investigation (the
"FBI") investigated the distribution of child
pornography via an online message board called
"Girls.Forumcircle.com." The IIOU
investigation revealed that the message board was
password-protected, had around 65 members, and was utilized
to trade both illegal child pornography and legal "child
erotica" (images of children that are not sexually
explicit but that may be "sexually arousing to a given
individual," see United States v. Martin, 426
F.3d 68, 79 (2d. Cir. 2005)). The investigation further
revealed that a user named "drb05" was a member of
Girls.Forumcircle.com and was linked to the email
August and November 2009, the administrator of
Girls.Forumcircle.com posted messages that
users' accounts would be deleted if they did not post
photos or videos on the forum by November 30. On November 30,
2009, user drb05 posted 13 images of child erotica (not child
pornography) depicting a young girl in sexually suggestive
poses. User drb05 also posted two comments on the message
board indicating a sexual interest in young girls: one in
response to other users' posts of child erotica on
November 29 and one accompanying drb05's post of child
erotica on November 30.
19, 2010, the IIOU served a subpoena on Microsoft. The
responsive materials revealed that
"firstname.lastname@example.org" was associated with a
"Don B" in "Vermont, 05301." The
materials also revealed a log of IP addresses for recent
logins for email@example.com. On August 4, 2010, the IIOU
subpoenaed internet service provider FairPoint Communications
("FairPoint") requesting information about
subscribers associated with the IP addresses obtained from
Microsoft, but FairPoint responded that it could not link IP
addresses to specific subscribers.
its investigation, the IIOU also operated an FBI undercover
website that advertised access to free child pornography. The
"home page" of the website made clear that its
purpose was to share child pornography. The home page also
contained a login field that required a unique password to
access the rest of the website. Users obtained unique
passwords by responding to a personal email advertisement
sent undercover by the FBI. Once a user entered the unique
password, the user was taken to the "landing page,"
which listed and described free child pornography videos
available to view or download. When a user clicked on the
"download" button for any of these videos, the
website recorded the user's IP address, video sample
number, and the number of downloads attempted, but no child
pornography was actually made available. The landing page
also included a link to a "paid area," where users
could ostensibly pay to view a live stream of child
pornography from Eastern Europe.
September 2, 2010, the FBI sent such an email to
firstname.lastname@example.org. On September 6, 2010, a user from IP
address 184.108.40.206 accessed the home page of the undercover
website and entered the unique password sent to
email@example.com. After arriving at the landing page,
however, this user did not attempt to view or download any of
the advertised child pornography videos or access the
"paid area" of the undercover website. At some
point after sending the first email, an agent sent a new
email to firstname.lastname@example.org, but the user did not respond.
Using this information, the IIOU again served a subpoena upon
FairPoint requesting the information of any subscribers
associated with the IP address 220.127.116.11, but FairPoint
again stated that it could not link subscribers to IP
one year later, on July 21, 2011, FBI Special Agent Jeffrey
Alford sent an email to FBI Special Agent Christopher Hughes
regarding an application for a warrant to search Boles's
residence, as Boles was the suspected owner of
email@example.com. In this email, Alford asked whether
there had been recent efforts to reach out to Boles regarding
the undercover website, acknowledging that "I might
otherwise now have a 'staleness' issue." J. App.
67. Hughes responded that he had sent a new email but
"[Boles] did not respond to the new request
- there may be a staleness issue with this
at this point but it's worth seeing if the AUSA will go
for it." J. App. 69. On August 19, 2011, the agents
confirmed from a subpoena served upon eBay that
drb0505@hotmail was operated by Boles, and the subpoena also
revealed Boles's home address.
August 25, 2011, the agents applied for a warrant to search
and seize computer evidence from Boles's residence. The
district court (Sessions, J.) issued the warrant the
same day, finding that probable cause supported the request.
The agents executed the warrant on September 6, 2011. More
than 100 images of child pornography were discovered on
Boles's computer and hard drives.
15, 2014, Boles was charged with possession of child
pornography in violation of 18 U.S.C. § 2252(a)(4)(B).
He was ultimately tried on a second superseding indictment
(the "Indictment") that charged three counts: one
count of possessing child pornography and two counts of
access with intent to view child pornography, all in
violation of 18 U.S.C. § 2252(a)(4)(B).
December 22, 2014, Boles moved to suppress the seized
evidence on the basis that the warrant was not supported by
probable cause and the information in the affidavit was stale
when the warrant was issued. The district court denied
Boles's motion in a written decision filed April 2,
commenced on May 31, 2016. The district court received into
evidence, over Boles's objection, two computers (with
hard drives inside) and a separate hard drive seized at
Boles's residence pursuant to the warrant. Labels affixed
to the computers and hard drives identified the manufacturer
and showed the place of origin as being outside the United
States (China and Thailand). Boles argued that the labels
were hearsay. The district court overruled the objection and
admitted the computer evidence. The district court also
permitted an FBI agent to testify, again over defense
counsel's objection, that the types of computer hardware
in question (Hitachi, Compaq, and Hewlett Packard) were
manufactured outside the United States. On June 3, 2016, the
jury convicted Boles on the possession count but acquitted
him on the two access charges.
to sentencing, Boles objected to several conditions of
supervised release proposed in his PSR, including two at
issue on this appeal: (1) the "risk" condition,
which requires Boles to notify any person or organization of
any risk he posed if his probation officer determined Boles
was a risk; and (2) the "polygraph" condition,
which requires Boles to submit to a polygraph exam as
directed by the probation officer as part of his sex offender
treatment program. At sentencing on April 17, 2017, the
district court overruled Boles's objections to the
conditions. The district court sentenced Boles to 120
months' imprisonment - the mandatory
minimum - and ten years' supervised
release, imposing the disputed conditions.
appeal, Boles raises three principal challenges: (1) the
district court erred in denying his motion to suppress
because the search warrant issued without probable cause; (2)
the government failed at trial to sufficiently prove the
interstate or foreign commerce element of the crime of
conviction; and (3) the district court erred in sentencing
him to a mandatory minimum term of imprisonment and in
imposing the two disputed conditions of supervised release.
We discuss each challenge in turn.
The Motion to Suppress
argues that the warrant to search his residence was not
supported by probable cause because the affidavit submitted
in support of the request for the warrant alleged nothing
more than legal activity and was based on stale information.
The government contends, however, that the district court did
not err in finding probable cause because the record
established that Boles was a collector of child pornography
who likely was hoarding such images. Moreover, the government
argues that, even assuming the warrant issued without
probable cause, the district court did not err in denying the
motion based on the good faith exception to the exclusionary
not decide whether probable cause existed to support the
issuance of the warrant, for we agree that in the
circumstances here, even assuming the warrant was not
supported by probable cause, the good faith exception
Fourth Amendment prohibits "unreasonable searches and
seizures" and provides that "no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation." U.S. Const. amend. IV.
determining whether probable cause exists to support the
issuance of a warrant, a judge must "make a practical,
common-sense decision whether, given all the circumstances
set forth in the affidavit before him, . . . there is a fair
probability that contraband or evidence of a crime will be
found in a particular place." United States v.
Falso, 544 F.3d 110, 117 (2d Cir. 2008) (quoting
Illinois v. Gates, 462 U.S. 213, 238 (1983))
(alteration in original). "On appeal from a district
court's ruling on a motion to suppress, we review the
court's factual findings for clear error. We review the
court's legal determinations, including the existence of
probable cause and the good faith of officers relying on a
search warrant, de novo." United States v.
Raymonda, 780 F.3d 105, 113 (2d Cir. 2015) (citation
omitted). We accord '"substantial deference to the
finding of an issuing judicial officer that probable cause
exists,' limiting our inquiry to whether the officer
'had a substantial basis' for his
determination." Id. (quoting United States
v. Wagner, 989 F.2d 69, 72 (2d Cir. 1993)).
where a warrant was issued without probable cause in
violation of the Fourth Amendment, suppression of the
evidence is not automatic; rather, because the remedy exacts
a heavy toll on the justice system, the exclusionary rule
will apply only to deter "deliberate, reckless, or
grossly negligent conduct" by law enforcement.
Herring v. United States, 555 U.S. 135, 144 (2009).
Accordingly, "[w]hen an officer genuinely believes that
he has obtained a valid warrant . . . and executes that
warrant in good faith, there is no conscious violation of the
Fourth Amendment, 'and thus nothing to deter.'"
Raymonda, 780 F.3d at 118 (quoting United States
v. Leon, 468 U.S. 897, 921 (1984)); see also
Falso, 544 F.3d at ...