United States v. DiTomasso
932 F.3d 58
| 2d Cir. | 2019Background
- Frank DiTomasso was convicted after a jury trial of producing, transporting, and distributing child pornography; sentenced to 25 years imprisonment plus life supervised release.
- Investigation began after Dropbox reported images to NCMEC; Florida law enforcement forensically examined a minor ("Sarah")’s computer and found images and Skype logs showing communications with user "frankiepthc."
- Evidence linked "frankiepthc" to DiTomasso: Skype profile data, an AOL email (frankieinnyc1@aol.com) tied to DiTomasso, an IP address subscribed to DiTomasso’s Manhattan residence, a phone number registered to him, and an Xbox seized from his apartment with related activity.
- ISPs (AOL and Omegle) had monitoring systems that flagged images/chats and generated reports to NCMEC; NCMEC forwarded reports to law enforcement per statutory scheme.
- DiTomasso moved to suppress evidence alleging AOL, Omegle, and NCMEC conducted warrantless, government-agent searches; district court denied suppression (after hearings) and later denied a Rule 33 motion claiming ineffective assistance for not calling his uncle as a witness.
Issues
| Issue | DiTomasso's Argument | Government's Argument | Held |
|---|---|---|---|
| Were AOL’s automated scans/searches subject to Fourth Amendment protection and did DiTomasso consent? | AOL’s scans of his email invaded his privacy; any consent from TOS was insufficient. | AOL’s terms and user notice meant DiTomasso voluntarily consented; searches by AOL were private/searches with consent. | Court found AOL searches were government searches but held any consent issue harmless because AOL reports were not used at trial and warrants were supported by independent probable cause. |
| Was Omegle acting as a government agent when it monitored chats and reported to NCMEC? | Omegle’s monitoring was effectively at law‑enforcement behest and thus governmental. | Omegle monitored for private, nongovernmental reasons (reputation, user safety) — its search was private. | District court (after hearing) found Omegle’s monitoring a private search, not attributable to the government; appellate court affirmed. |
| Did NCMEC act as a government agent by reviewing/expanding ISP reports, triggering Fourth Amendment scrutiny? | NCMEC reviewed/opened ISP materials and thus performed government searches beyond ISP scope. | No record supports that NCMEC conducted independent searches here; it merely forwarded ISP reports to law enforcement. | Court held appellant failed to develop this claim below; record lacks evidence NCMEC exceeded forwarding role, so no relief. |
| Was trial counsel ineffective for failing to call DiTomasso’s uncle (Marcus) who allegedly would confess and exonerate DiTomasso? | Marcus’s post-trial affidavit claims he committed the acts and trial counsel ignored him; his testimony would have changed the verdict. | Counsel credibly denies Marcus ever confessed or volunteered to testify; phone calls and trial record show Marcus was unwilling; calling him would not likely change outcome. | Court held Strickland not satisfied: no deficient performance shown and no reasonable probability of a different outcome; Rule 33 motion properly denied without live testimony. |
Key Cases Cited
- United States v. Bershchansky, 788 F.3d 102 (2d Cir. 2015) (background on IP addresses and identifying devices on a network)
- United States v. Jacobsen, 466 U.S. 109 (1984) (Fourth Amendment does not apply to purely private searches absent government involvement)
- United States v. Salameh, 152 F.3d 88 (2d Cir. 1998) (probable cause for search warrants assessed by practical, common-sense standard)
- United States v. Martin, 426 F.3d 68 (2d Cir. 2005) (affirming Gates standard for probable cause assessment)
- United States v. Canfield, 212 F.3d 713 (2d Cir. 2000) (warrant validity reviewed after excising improper information)
- United States v. Stein, 541 F.3d 130 (2d Cir. 2008) (private actor conduct attributable to government requires a close nexus)
- Blum v. Yaretsky, 457 U.S. 991 (1982) (purpose of close-nexus test to ensure government responsibility for challenged conduct)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance-of-counsel test)
- United States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016) (example of NCMEC held to have exceeded ISP search scope)