United States v. Evers, 2012 U.S. App. LEXIS 2641

Background

Evers was convicted in the Sixth Circuit on two counts of production of child pornography, one count of possession, and one forfeiture count, related to offenses involving his thirteen-year-old niece (M.E.).
Police obtained a warrant based on a Beck affidavit detailing alleged sexual acts and photos, then seized two computers, a camera, and media after Evers consented to search.
Officers later discovered eighty-two images of M.E. on the black computer’s drive, including approximately forty sexually explicit pictures.
Evers moved to suppress the search; the district court found the state consent invalid due to Evers’ contemporaneous request for counsel but denied suppression on other grounds.
At trial, the jury found Evers guilty on all counts; he was sentenced to 235 months, along with restitution ($1,640), forfeiture of listed property, and thirteen special supervised-release conditions.
On appeal, the Sixth Circuit vacated the forfeiture of a beige computer and the $140 child-care restitution, declined to reach special-release-conditions issues as premature, and affirmed the remainder of conviction and sentence, remanding for further proceedings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the search violated the Fourth Amendment due to lack of particularity.	Evers argues the black computer search exceeded the warrant’s scope.	The government contends the warrant and affidavit, read together, supported the search.	No Fourth Amendment violation; search within warranted scope and valid under Leon good-faith exception.
Whether restitution under § 2259 may compensate the guardian for losses incurred indirectly by the victim.	Junior’s lost wages and child care costs should be recoverable as guardian’s losses.	Guardian losses must be tied to the victim and proximate to the offense; some costs are not recoverable.	Guardian lost wages recoverable; court vacated $140 child-care award; remanded for adjustment.
Whether beige computer forfeiture had adequate nexus to the offenses.	Beige computer linked to the offenses; warrant allowed its seizure.	Beige computer had no images and insufficient nexus.	Beige computer forfeiture vacated; remanded for judgment modification.
Whether the within-Guidelines sentence is procedurally/substantively reasonable.	Sentence at bottom of range/read as punitive for trial decision.	Sentence is within range and properly reasoned.	Sentence affirmed; no plain error; presumption of reasonableness maintained.
Whether the eleven special conditions of supervised release are premature to review.	Conditions impose excessive liberty restrictions beyond § 3553(a).	Premature to review before completion of sentence.	Premature; conditions review deferred to post-release proceedings.

Key Cases Cited

United States v. Upham, 168 F.3d 532 (1st Cir. 1999) (limits of particularity and computer-search scope under warrant)
Guest v. Leis, 255 F.3d 325 (6th Cir. 2001) (computer searches may be reasonably broad given probable cause)
Richards, 659 F.3d 527 (6th Cir. 2011) (Fourth Amendment particularity in computer searches; case-by-case reasonableness)
Grimmett, 439 F.3d 1263 (10th Cir. 2006) (seizure of computer content reasonably tied to warrant)
Henson, 848 F.2d 1374 (6th Cir. 1988) (general search concerns during warrant execution)
United States v. Leon, 468 U.S. 897 (1984) (good-faith exception to otherwise illegal searches)
United States v. Moore, 661 F.3d 309 (6th Cir. 2011) (affidavit not so bare bones; reasonable reliance on warrant)
Kennedy, 643 F.3d 1251 (9th Cir. 2011) (proximate cause standard for restitution under VWPA/§2259)
Monzel, 641 F.3d 528 (D.C. Cir. 2011) (proximate cause generally required for restitution §2259 unless Congress intends broader)