65 F.4th 867
6th Cir.2023Background
- NCMEC received Facebook CyberTips reporting messages from account “TySykes” to a 15‑year‑old (M.D.); Facebook forwarded messages and account identifying info to Knoxville Police, which matched Tywan Sykes.
- KPD interviewed M.D.; she initially reported sex and sending nude photos to Sykes. Investigator Williams obtained an arrest warrant; Sykes was arrested and his phone seized and stored in a Faraday box.
- Federal superseding indictment charged Sykes with (1) production/enticement for child pornography (18 U.S.C. §2251), (2) enticement of a minor (18 U.S.C. §2422(b)), (3) committing a felony involving a minor while required to register as a sex offender (18 U.S.C. §2260A), and (4) possession of child pornography (18 U.S.C. §2252A).
- Sykes moved to suppress evidence from Facebook (arguing Facebook acted as an agent of NCMEC/government) and to suppress phone evidence (arguing 42‑day delay before warrant was unreasonable); both motions were denied.
- The government introduced Facebook/text messages, GPS evidence, and testimony (including of a prior 2012 statutory‑rape conviction under Rule 413). The jury convicted on all counts; the district court imposed a 45‑year sentence after applying a mandatory 35‑year recidivist enhancement and multiple Guidelines enhancements.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Sykes) | Held |
|---|---|---|---|
| Suppression — Facebook search: Was Facebook’s private search attributable to government action? | Facebook independently scanned/maintained platform safety and merely reported to NCMEC; its search was private, not government action. | Facebook acted as an agent of NCMEC/government when it searched and reported; evidence should be suppressed as government action without warrant. | Denied. Court followed Miller framework (function/compulsion/nexus) and held Facebook’s search was private and not attributable to government. |
| Suppression — delay in phone search: Was 42‑day seizure without warrant unreasonable? | Retaining phone while obtaining warrant was justified by probable cause, risk of loss/wiping, complex investigations and necessary, diligent investigative steps during delay. | 42‑day delay was excessive and lacked sufficient justification (citing Pratt); suppression required. | Denied. Court balanced possessory interests and law‑enforcement needs, found government diligence and legitimate reasons for delay; phone stored securely in Faraday box. |
| Admissibility of prior sex‑offense evidence (Rule 413 and Rule 403) | Prior conviction was admissible and probative to rebut hacking claim and show pattern/grooming; limiting instruction mitigated prejudice. | Admission was unfairly prejudicial under Rule 403 and should have been excluded. | Denied. Court found strong probative value under Rule 413, prejudice not substantially outweighing probative value, and limiting instruction sufficient. |
| Sentencing — recidivist enhancement and Guidelines enhancements | Prior Tennessee statutory‑rape and aggravated‑statutory‑rape convictions qualify as state offenses “relating to the sexual exploitation of children” under §2251(e); obstruction/undue influence/sexual‑act enhancements supported by record. | At most one prior conviction qualifies; enhancements (including obstruction, undue influence, sexual act) were improperly applied. | Denied. Applying the categorical approach and statutory context, court held both prior convictions qualify for the 35‑year mandatory minimum; all Guidelines enhancements upheld. |
Key Cases Cited
- United States v. Miller, 982 F.3d 412 (6th Cir. 2020) (framework for attributing private tech‑company searches to government)
- United States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016) (discussion whether NCMEC is a governmental entity)
- United States v. Pratt, 915 F.3d 266 (4th Cir. 2019) (31‑day delay in phone‑search warrant found unreasonable)
- United States v. Place, 462 U.S. 696 (1983) (balancing test for seizures and retention of property)
- United States v. Jacobsen, 466 U.S. 109 (1984) (seizure lawful at inception can become unreasonable by manner/duration)
- United States v. Lively, 852 F.3d 549 (6th Cir. 2017) (interstate‑commerce nexus satisfied by device marked "Made in China")
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for reviewing sufficiency of the evidence)
- United States v. Roman, 795 F.3d 511 (6th Cir. 2015) (substantial‑step analysis under §2422(b))
- United States v. Mill, 850 F.3d 693 (4th Cir. 2017) (broad reading of “sexual exploitation of children” for predicate enhancements)
- Descamps v. United States, 570 U.S. 254 (2013) (categorical approach for assessing prior convictions)