UNITED STATES of America, Plaintiff-Appellee v. George William JARMAN, Defendant-Appellant
No. 16-30468
United States Court of Appeals, Fifth Circuit.
February 1, 2017
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The Helix Entities’ second argument is that the FSC does not cover Plaintiffs’ claims. They reason that those claims derive from the two contracts Grand View entered into before the MCA took effect and therefore should be governed by those contracts’ California FSCs.5
Again, we disagree. Plaintiffs’ claims relate to the “Proposed Transaction“—the plan to build a solar power plant in the Idaho desert. Moreover, the lawsuit also relates to the MCA because plaintiffs are seeking a declaratory judgment to establish an affirmative defense that Centaurus did not breach the agreement. Accordingly, those claims are governed by the MCA‘s broadly worded FSC.
III.
Plaintiffs’ petition for attorneys’ fees under
We review the district court‘s denial of fees for abuse of discretion. Garcia v. Amfels, Inc., 254 F.3d 585, 587 (5th Cir. 2001). The court did not abuse its discretion. In fact, the Helix Entities had an objectively reasonable basis for seeking removal even if, in our view, that effort was ultimately misguided.
IV.
This FSC is similar to the one we examined in Ensco Int‘l, Inc. v. Certain Underwriters at Lloyd‘s, 579 F.3d 442, 448-49 (5th Cir. 2009), in which we held that where a FSC is unambiguous, language vesting “exclusive jurisdiction” in a state court constitutes a waiver of removal rights. We reach the same conclusion here. The judgment of remand is AFFIRMED.
Michael Reese Davis, Sr., Tim Paul Hartdegen, Hymel Davis & Petersen, L.L.C., Baton Rouge, LA, for Defendant-Appellant.
Before JOLLY, SMITH, and PRADO, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
George Jarman conditionally pleaded guilty to the receipt and attempted receipt of child pornography in violation of
I.
The FBI began investigating Jarman when Jason Collins, the co-owner of a computer repair store, called FBI Special
Collins inspected that hard drive, finding several file names suggestive of child pornography that he could not open and a video file in the root directory depicting a male performing anal sex on a prepubescent male child. Collins did not tell SA Jones the names of any of the alleged child pornography computer files. But he told SA Jones that he did not believe that the video file had been transferred to the new computer because it was on the hard drive‘s root directory. At the end of the interview, SA Jones asked Collins to keep the customer‘s hard drive until the FBI contacted him.
SA Jones requested that an investigation be opened into the allegations, and SA Thomas Tedder was assigned the case. Shortly thereafter, SA Tedder began collaborating with Department of Justice (“DOJ“) attorneys on the case.
In January 2008, SA Tedder re-interviewed Collins. Collins gave SA Tedder the customer‘s hard drive1 and told him generally the same story he told SA Jones. This time, however, Collins identified the customer as Jarman. He also provided more detail about the video file he had seen. When he went through the hard drive, Collins explained, he selected one suspected file and copied it to his computer to view. That file contained a grainy image of an adult male sodomizing a pre-pubescent child whom Collins believed to be under the age of twelve. After viewing that file, Collins stopped looking at the drive and contacted the FBI. Notably, Collins now claimed that he believed that Wilson copied all of the old data—including the possible child pornography—to Jarman‘s new computer, even though he had previously stated that the video file containing possible child pornography was not transferred to the new computer. SA Tedder testified that he asked Collins about this inconsistency and that Collins stood by his new conclusion.
By March 2008, DOJ prosecutor Michael Yoon and SA Tedder had begun drafting a search-warrant affidavit for Jarman‘s home. While Yoon did most of the drafting, SA Tedder corrected misunderstandings of fact and revised language at least once.
As of late March 2008, SA Tedder was aware of two investigations by U.S. Immigration and Customs Enforcement (“ICE“) that implicated Jarman. In the first investigation, which concerned the child pornography site “illegalCP,” ICE obtained Jarman‘s email address when it acquired the email addresses of those who had purchased access to the website. In the second investigation, which concerned the child
SA Tedder testified that he talked to ICE agents about these investigations and reviewed all of the relevant evidence to ensure that the screen captures ICE took from these websites were of prepubescent children and that Jarman was, in fact, the person identified in the investigations. Moreover, he served a subpoena on Cox Communications to confirm that the email address that ICE tied to Jarman‘s home was an active account belonging to Jarman. However, SA Tedder testified that he did not have any direct knowledge that Jarman actually downloaded files from these child pornography sites when drafting the search-warrant affidavit.
In December 2008, SA Tedder submitted a search-warrant affidavit for Jarman‘s home. A magistrate judge signed the search warrant on December 5th. Three days later, the FBI executed the warrant, seizing several hard drives and computers from Jarman‘s home.
Because Jarman was an attorney, the FBI used a “taint process” to review the seized data. In this process, a “taint team,” which consisted of a DOJ attorney and a FBI computer expert, initially screened the seized data for any potentially privileged material before turning it over to the prosecution team. The taint team reported the results of their review on August 6, 2009.
The prosecution team received the hard drives and computers from the taint team on September 2, 2009, and July 9, 2010, and the Computer Analysis Response Team (“CART“) began its forensic examination. CART completed its examination on November 5, 2010, and reported that it found “sexually explicit images and videos of minors on the computer hardware.”
A grand jury subsequently charged Jarman with, among other things, the receipt and attempted receipt of child pornography (“Count 1“).
In September 2013, Jarman moved to suppress the fruits of the search of his home and for a Franks hearing, arguing that SA Tedder‘s affidavit did not establish probable cause, omitted material information, and contained misrepresentations and unreliable information. The district court held a Franks hearing in April 2014. Jarman then sought, and was granted, additional discovery because, the court found, there were material inconsistencies between SA Tedder‘s testimony and his draft affidavits.
In October 2014, the district court denied Jarman‘s motion to suppress. Because of the effect of the passage of time on one‘s memory, the court found, SA Tedder‘s incorrect statements at the Franks hearing were not deliberate. Moreover, the Government‘s actions did not give rise to a reckless disregard for the truth. Consequently, the court held that, although the “investigation may have been less than ideal,” “the good faith exception [to the exclusionary rule] applies.”
Jarman promptly moved for reconsideration and for a second Franks hearing. The district court granted a second Franks hearing in May 2015. But, in August 2015, the court denied the motion for reconsideration on the ground that the good faith exception still applied. Although it “remain[ed] uncomfortable with the [G]overnment‘s conduct,” the court still did not “believe that Jarman ha[d] established that [SA] Tedder‘s conduct was in bad faith.”
Jarman then conditionally pleaded guilty to Count 1 of the indictment, reserving the
Now on appeal, Jarman asserts that the district court erred by denying his motions to suppress and for reconsideration because: (1) the good faith exception is inapplicable; (2) SA Tedder‘s affidavit does not establish probable cause; and (3) the Government‘s delay in searching the data from his home violated the Fourth Amendment and
We hold that the district court did not err in denying suppression of the evidence the Government seized from Jarman‘s home because: (1) Jarman failed to carry his burden to show that the good faith exception does not apply; and (2) Jarman was not entitled to suppression based on the Government‘s delay in completing its search of the evidence because: (a) Jarman waived the claim that the Government violated Rule 41; and (b) the Government did not violate the Fourth Amendment because it acted reasonably under the circumstances.
II.
This Court reviews the “[f]actual findings in a ruling on a motion to suppress ... for clear error” and questions of law de novo. United States v. Moore, 805 F.3d 590, 593 (5th Cir. 2015) (citation omitted). “The clearly erroneous standard is particularly deferential where, as here, denial of a suppression motion is based on live oral testimony ... because the judge had the opportunity to observe the demeanor of the witnesses.” United States v. Robinson, 741 F.3d 588, 594 (5th Cir. 2014) (citation omitted). But “the constitutionality of law enforcement action” and the “determination of the reasonableness of a law enforcement officer‘s reliance upon a warrant issued by a magistrate ... for purposes of determining the applicability of the good-faith exception to the exclusionary rule” are questions of law that are reviewed de novo. United States v. Cherna, 184 F.3d 403, 406-07 (5th Cir. 1999). Nevertheless, “[t]he evidence is viewed in the light most favorable to the prevailing party, here,” the Government. Moore, 805 F.3d at 593 (citation omitted).
This Court “generally review[s] the denial of a motion to reconsider for abuse of discretion.” United States v. Rabhan, 540 F.3d 344, 346 (5th Cir. 2008) (citation omitted).
A.
We begin by considering whether the district court erred by applying the good faith exception. Moore, 805 F.3d at 593 (citation omitted).
The good faith exception bars the application of the exclusionary rule to exclude evidence obtained pursuant to a warrant if law enforcement officers act under an objectively reasonable, good faith belief that the search warrant in question is valid—even if it, in fact, is not. Robinson, 741 F.3d at 594 (citation omitted). But the good faith exception is not applicable if “the issuing-judge was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth.” United States v. Gibbs, 421 F.3d 352, 358 (5th Cir. 2005) (citation omitted). “[T]he initial burden here is upon the defendant.” United States v. Cavazos, 288 F.3d 706, 710 (5th Cir. 2002). Here, in attempting to impeach the warrant, the defendant must establish: (1) “a knowing or reckless falsehood” by omission or commission; (2) “that without the falsehood there would not be sufficient matter in the affidavit to support the issuance of the warrant“; and (3) “[i]f the omitted mate-
Jarman avers that the district court erred in holding that the good faith exception applies, challenging more than a dozen statements in and omissions from the search-warrant affidavit for his home.2 The Government, on the other hand, argues that the district court correctly held that the good faith exception applies because Jarman has not shown that any statements in the affidavit were knowingly or recklessly false. Moreover, the Government asserts, Jarman has not identified any material omissions from the affidavit, let alone any omissions constituting knowing or reckless falsehoods.
The district court heard all of the evidence and received extensive briefing. The court then found that Jarman failed to satisfy the requirements for attacking the good faith exception because, it determined, the Government and SA Tedder did not act in bad faith and the statements and omissions that Jarman calls material knowing or reckless falsehoods and omissions were neither deliberate nor made in reckless disregard for the truth. After hearing oral argument and studying the briefs, applicable parts of the record, and the relevant law, we can find no error in the district court‘s application of the good faith exception. We especially recognize that the district court had the opportunity to observe witnesses. Robinson, 741 F.3d at 594 (citation omitted). Furthermore, evidence must be “viewed in the light most favorable to the” Government. See Moore, 805 F.3d at 593 (citation omitted). We thus
B.
We now turn to Jarman‘s contention that the district court erred by rejecting his argument that the duration of the Government‘s post-seizure review of his computer data requires the suppression of the seized evidence. The district court did not explicitly rule on this issue as it relates to the evidence that is the subject of the warrant. The court, however, necessarily rejected this claim when it denied Jarman‘s motions to suppress. And “this court may ... independently review the record to determine whether the district court‘s decision is supported by any reasonable review of the evidence.” United States v. Santiago, 410 F.3d 193, 198 (5th Cir. 2005) (citation omitted).
“The general touchstone of reasonableness which governs [the] Fourth Amendment analysis ... governs the method of execution of the warrant.” E.g., United States v. Ramirez, 523 U.S. 65, 71, 118 S. Ct. 992, 140 L.Ed.2d 191 (1998). As “many circuits have recognized,” the Fourth Amendment “contain[s] no requirements about when the search or seizure is to occur or the duration.” United States v. Cote, 72 M.J. 41, 44 (C.A.A.F. 2013) (citation omitted); United States v. Gerber, 994 F.2d 1556, 1559 (11th Cir. 1993). Courts have therefore consistently “permitted some delay in the execution of search warrants involving computers because of the complexity of the search” and they often restrict their “analysis of the delay in executing ... warrants [to] consider[ing] only whether the delay rendered the warrants stale.” E.g., United States v. Brewer, 588 F.3d 1165, 1173 (8th Cir. 2009); United States v. Syphers, 426 F.3d 461, 469 (1st Cir. 2005).
Jarman contends that the district court erred by not granting suppression because the Government violated the Fourth Amendment and
The Government counters that Jarman is not entitled to suppression on this basis. Jarman, the Government asserts, waived the claim that its actions violated Rule 41. Moreover, the Government argues, it acted reasonably under the circumstances, and the only case Jarman relies upon, United States v. Metter, 860 F.Supp.2d 205 (E.D.N.Y. 2012), is distinguishable.
We hold that the district court did not err by not granting suppression based on the duration of the Government‘s post-seizure review of the data it seized from Jarman‘s home. First, Jarman waived the claim that the Government‘s actions violated Rule 41 because he merely mentions the issue in a footnote with little or no argument. See United States v. Scroggins, 599 F.3d 433, 447-48 (5th Cir. 2010) (citation omitted) (summarizing this Court‘s appellate briefing requirements).
Second, Jarman is not entitled to suppression under the Fourth Amendment because the duration of the Government‘s review of the seized data was reasonable under the circumstances. The taint process here was designed to protect Jarman‘s clients’ privileged information. Courts have recognized that, in such circumstances, it is appropriate to screen privileged information. See, e.g., Metter, 860 F.Supp.2d at 215. Moreover, the taint team review only took eight months. And the Government completed its forensic examination less than four months after it received the last of the hard drives and computers from the taint team. These periods are within the
Moreover, Jarman has not argued that the delay caused the warrant to become stale. Even if he had, “innumerable cases hold that a delay of several months” or even years “between the seizure of electronic evidence and the completion of the government‘s review of [it] ... is reasonable” and does not render the warrant stale, especially in child-pornography cases. Metter, 860 F.Supp.2d at 215 (emphasis omitted).3
Additionally, the one case Jarman relies upon—an out-of-circuit district court opinion—is inapposite. In Metter, the Government had not even begun to “conduct[] its [privilege] review of the [electronic] evidence seized” fifteen months after the warrant was executed and had “no plans whatsoever to begin review of that data.” Metter, 860 F.Supp.2d at 211, 215. Here, by contrast, the Government completed its privilege review in eight months. Then, by the end of twenty-three months, it completed its entire review of the evidence. Further, in Metter, the court found that the Government displayed a “lack of good faith” because it “failed to commence the review [of the evidence], despite repeated requests from defense counsel and directions from the Court to do so,” and it “indicate[d] that it had no intention of fulfilling its obligations” to do so. Id. at 216. Here, however, Jarman does not accuse the Government of similarly acting in bad faith. Thus, Jarman is not entitled to suppression based on the duration of the Government‘s post-seizure review of his computer data.
III.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
UNITED STATES of America, Plaintiff-Appellee v. Clarence Bernard BUCK, also known as BB; Kendal Allen, Defendants-Appellants
No. 15-20697
United States Court of Appeals, Fifth Circuit.
Filed February 1, 2017