United States v. Boles
914 F.3d 95
| 2d Cir. | 2019Background
- In 2010–2011 FBI IIOU investigation linked the online user "drb05"/drb0505@hotmail.com to posts of child erotica and to a password-protected undercover FBI site; IP and subscriber tracing ultimately tied the account to Donald Ray Boles in Vermont.
- Agents obtained a search warrant for Boles's residence on August 25, 2011; the warrant was executed September 6, 2011 and recovered over 100 images of child pornography from computers/hard drives.
- Boles was charged with possession and access-with-intent-to-view child pornography; tried in 2016, convicted on the possession count and acquitted on the access counts.
- Pretrial, Boles moved to suppress the seized evidence arguing the warrant lacked probable cause and was based on stale information; the district court denied suppression and admitted computer hardware evidence (including foreign-origin labels and agent testimony about manufacture).
- At sentencing the court imposed the 10-year mandatory minimum and several supervised-release conditions, including a "risk" notification condition and a polygraph condition; Boles appealed challenging suppression, the interstate-commerce element, admission of foreign-origin evidence, the mandatory minimum, and the supervised-release conditions.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Boles) | Held |
|---|---|---|---|
| Motion to suppress—probable cause/staleness | Warrant affidavit provided sufficient indicia (forum membership/posts, access to FBI site with unique code, prior conviction); even if weak, agents acted in good faith relying on magistrate | Affidavit alleged only lawful/ambiguous activity and stale information; warrant unsupported by probable cause | Court assumed probable-cause doubt but affirmed denial of suppression under Leon good-faith exception — magistrate's finding not so deficient and agents not grossly negligent (Raymonda distinguished) |
| Interstate/foreign commerce element of §2252(a)(4)(B) | Proved nexus by showing images/hardware were produced/contained on devices manufactured abroad; jury need not be told exact means of transport | Indictment required proof of the actual means/facility by which hardware traveled; government failed to prove images were "produced" using interstate materials | No plain error; jury properly instructed that materials need only have been transported in/affecting interstate commerce; copying/downloading qualifies as "producing" under statute interpretation consistent with other circuits |
| Admission of foreign-origin hardware markings and agent testimony | Hardware inscriptions are self-authenticating and admissible; agent with computer-forensics expertise could testify about manufacture/origin | Labels are hearsay; agent testimony exceeded expert notice and was prejudicial | Admission was not an abuse of discretion: inscriptions were at least admissible (mechanical-trace/self-authenticating/record exceptions) and agent testimony was properly admitted or harmless if notice defective |
| Sentencing—mandatory minimum and supervised-release conditions | Mandatory minimum properly applied based on prior conviction; polygraph condition reasonably related to supervision goals | Mandatory minimum violates Sixth Amendment jury trial right; "risk" condition is unconstitutionally vague and polygraph compels self-incrimination | Mandatory minimum affirmed (prior-conviction fact may be found by judge); vacated and remanded limitedly the "risk" notification condition as too vague; polygraph condition upheld (no Fifth Amendment violation under the supervisory-condition regime) |
Key Cases Cited
- United States v. Raymonda, 780 F.3d 105 (2d Cir. 2015) (good-faith exception applied where affidavit had possible staleness/omissions but agents were not grossly negligent)
- United States v. Leon, 468 U.S. 897 (1984) (established good-faith exception to exclusionary rule)
- Herring v. United States, 555 U.S. 135 (2009) (exclusionary rule inapplicable where police conduct not deliberate/reckless/grossly negligent)
- Illinois v. Gates, 462 U.S. 213 (1983) (probable cause is a practical, common-sense assessment of fair probability)
- United States v. Ramos, 685 F.3d 120 (2d Cir. 2012) (interstate-commerce nexus satisfied by foreign-manufactured computer equipment)
- United States v. Peterson, 248 F.3d 79 (2d Cir. 2001) (vacating supervised-release notification condition that left employer-notification to unfettered probation discretion)
- United States v. Johnson, 446 F.3d 272 (2d Cir. 2006) (upholding polygraph condition of supervised release against Fifth Amendment challenge)