UNITED STATES OF AMERICA v. KYLE EVAN PETERSON, AKA Tylеr Allen Fish, AKA Tyler Allan Fisk, AKA Kyle Petersen, AKA Kyle E. Petersen, AKA Kyle Peterson, AKA Kyleevan Peterson
No. 19-10246
United States Court of Appeals for the Ninth Circuit
May 3, 2021
D.C. No. 1:17-cr-00255-LJO-SKO-1
Before: Johnnie B. Rawlinson, Danielle J. Hunsaker, and Lawrence VanDyke, Circuit Judges. Opinion by Judge Rawlinson.
OPINION
Appeal from the United States District Court for the Eastern District of California Lawrence J. O‘Neill, District Judge, Presiding
Argued and Submitted November 17, 2020 Pasadena, California
Filed May 3, 2021
Criminal Law
The panel affirmed the district court‘s orders denying (1) the defendant‘s motion to withdraw his guilty plea to receipt of child pornography in violation of
In seeking to withdraw his guilty plea, the defendant contended that he was not fully informed of the essential elements of the crime of receipt of child pornography—specifically, that the district court failed to explain the Government‘s burden to prove that he knew the visual depiction was a minor and that he knew the visual depiction showed the minor engaged in sexually explicit conduct. The panel held that the district court acted within its discretion in denying the motion to withdraw the guilty plea. The panel wrote that as the grammatical structure of
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
The defendant argued that the illegal seizure of his cell phones during the parole searches required suppression of forensic evidence subsequently obtained pursuant to a warrant because the phones had been illegally kept in the possession of the Government. Affirming the denial of the motion to suppress with respect to thе forensic searches, the panel wrote that any illegality in the initial seizure of forensic images from the defendant‘s cell phones was cured by the subsequent issuance of a warrant to search the forensic images from the phones that were legally seized as the result of valid parole searches.
Devin Burstein (argued), Warren & Burstein, San Diego, California, for Defendant-Appellant.
Brian W. Enos (argued), Assistant United States Attorney; Camil A. Skipper, Appellate Chief; McGregor W. Scott, United States Attorney; United States Attorney‘s Office, Frеsno, California; for Plaintiff-Appellee.
OPINION
RAWLINSON, Circuit Judge:
Appellant-Defendant Kyle Peterson (Peterson) appeals the district court‘s order denying his motion to withdraw his guilty plea, contending that the district court failed to apprise him of the essential elements of his crime. He also challenges the district court‘s order denying his motion to suppress evidence of sexually explicit images of minors found on two separate cell phones. Because the distriсt court committed no error, we affirm.
I. BACKGROUND
In April 2017, Peterson was released from state prison in California on parole. As a condition of his release, Peterson signed a Notice and Conditions of Parole Form (Parole Conditions) agreeing, among other conditions, that as a parolee he could be searched at “any time... with or without a search warrant, with or without cause.” Peterson also specifically agreed not to possess a cell phone with a camera, use social media sites, or possess “electronic media that
While conducting searches under the Parole Conditions, a parole agent discovered cell phones in Peterson‘s possession on May 23, 2017, and July 6, 2017, respectively, both of which contained sexually explicit images of minors, in violation of the terms of his parole. The parole agent seized the phones and delivered them to federal agents at Homeland Security Investigations (HSI) to conduct forensic searches of images on the phones. After each search, a California court revoked Peterson‘s parole. He was subsequently indicted in federal court for Receipt of Material Involving the Sexual Exploitation of Minors, in violation of
Peterson moved to suppress the evidence found during the forensic searches of the phones. The Government did not oppose Peterson‘s motion to suppress “with respect to HSI‘s forensic findings of either phone,” because an officer from the California Departmеnt of Corrections and Rehabilitation (CDCR) interpreted Policy No. 81034.5 of the CDCR‘s Operation Manual as providing that once parole was revoked, a warrant was required to search items seized during a warrantless parole search.1 In response, the district court
The Government subsequently obtained a warrant to search both phones. The affidavit supporting the warrant application specifically informed the court of the prior forensic search of the phones and affirmed that no information from that search was used in the application. The affidavit detailed that information used in the application was derived from the parole agent‘s рreliminary searches when the phones were initially seized and viewed by the parole agent. Following issuance of a search warrant, the phones were “reanalyzed utilizing previously captured forensic images,” and child pornography was retrieved.
Peterson again moved to suppress evidence obtained from the phones. Peterson argued that his parole conditions did not “unambiguously encompass” cell phones. Peterson maintained that the illegal seizure of his cell phones during the parole searches required suppression of evidence obtained from the parole searches and evidence obtained from HSI‘s forensic searches pursuant to the warrant. After briefing and oral arguments, the district court denied the motion to suppress.
Following the district court‘s ruling, Peterson entered a conditional guilty plea to count 1, which charged Peterson
Before sentencing, Pеterson moved to withdraw his guilty plea. Peterson argued that he was not fully informed of the essential elements of the crime of receipt of child pornography as set forth in
II. STANDARDS OF REVIEW
“We review de novo the sufficiency of a Rule 11 plea colloquy” and “a district court‘s denial of a motion to withdraw a guilty plea for abuse of discretion.” United States v. Ross, 511 F.3d 1233, 1235 (9th Cir. 2008) (citations omitted). “We review the denial of [a defendant‘s] suppression motion de novo, and the district court‘s factual findings for clear error. ..” United States v. Johnson, 875 F.3d 1265, 1273 (9th Cir. 2017) (citation and internal quotation marks omitted).
A. Withdrawal of Plea
Peterson contends that he was not fully informed of the essential elements of the crime of receipt of child pornography. More specifically, Peterson asserts that the district court failed to explain the Government‘s burden to prove that he knew the visual depiction was of a minor and that he knew the visual depiction showed the minor engaged in sexually explicit conduct.
In United States v. Nostratis, 321 F.3d 1206, 1208 (9th Cir. 2003), interpreting
In Bradshaw v. Stumpf, 545 U.S. 175, 182-83 (2005), the United States Supreme Court held that a defendant‘s “guilty plеa would indeed be invalid if he had not been aware of the nature of the charges against him, including the elements of the charge to which he pleaded guilty.” The Court reasoned that “[a] guilty plea operates as a waiver of important rights, and is valid only if done voluntarily, knowingly, and intelligently, with sufficient awareness of the relevant circumstances and likely consequences.” Id. at 183 (citation and internal quotation marks omitted). “Where a defendant pleads guilty to a crime without having been informed of the crime‘s elements, this standard is not met and the plea is invalid.” Id. (citation omitted).
Contrary to Peterson‘s contention, he was fully informed of the essential elements of the crime of receipt of child pornography.
(a) Any person who . . . (2) knowingly receives... any visual depiction... that has been mailed, or has been shipped or transported in or affecting interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution using any means or facility of interstate or foreign commerce..., if-
(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct. . .
Count 1 of Peterson‘s indictment tracked this language by charging that Peterson
did knowingly receive at least one visual depiction, the producing of which involved at least one minor engaging in sexually explicit conduct and which depiction was of such conduct, as defined in Title 18, United States Code, Section 2256, and which had been shipped or transported in or affecting interstate or foreign commerce, had been sent or received using any means or facility of interstate or foreign commerce, and which contained materials which had been mailed, shipped, or transported in interstate or foreign commerce by any means, inсluding by computer, all in violation of Title 18, United States Code, Section 2252(a)(2).
In his plea agreement, Peterson acknowledged that he had “read the charges against him contained in the Indictment, and those charges ha[d] been fully explained to him by his attorney.” Peterson further acknowledged that he ”fully underst[ood] the nature and elements of the crime charged in Count One of the Indictment to which he [was] pleading guilty, together with the possible defenses thereto, and he ha[d] discussed them with his attorney.” The plea
- First, the defendant knowingly received;
- Second, any visual depiction that had been produced using materials that were mailed, shipped, or transported in interstate or foreign commerce;
- Third, by any means, including by computer;
- Fourth, the producing of such visual depiction(s) involved the use of a minor engaging in sexually explicit conduct; and
- Fifth, the visual depiction was of such conduct.
At the change of plea hearing, Peterson affirmed that he signed the plea agreement and he had the opportunity to review the agreement with his lawyer, that his lawyer answered any questions he had to his satisfaction, and that he had no remaining questions about the agreement. Peterson acknowledged that he “underst[ood] the elements of Count I,” and that he did not have “any questions at all about the plea agreement.” The court then read count 1 of the indictment as set forth above, to which Peterson pled “guilty.”
As the grammatical structure of
More importantly, Peterson affirmed in his plea agreement and to the court that he “ha[d] read the charges
Peterson cites United States v. Portillo-Cano, 192 F.3d 1246, 1249 (9th Cir. 1999), as amended, to argue that Rule 11 requires the court to personally explain the nature of each element of the crime, and the court may not rely on the reading of the indictment, the plea agreement, or defendant‘s affirmation that his attorney explained the elements of the charges. In Portillo-Cano, however, we expressly referenced the district court‘s failure to “mention” the indictment or “the acts [the defendant] must have committed in order to be found guilty of the crime.” 192 F.3d at 1251 & n.4. These references would have been superfluous if our precedent required the judge to personally explain the elements of each chargе to the defendant on the record. Instead, we noted that the prosecutor, rather than the judge, could explain the charges. See id. at 1251 n.4. In Portillo-Cano, we reviewed the record of the plea proceedings to determine whether the district court engaged in a plea colloquy demonstrating that
Peterson‘s reliance on United States v. Szymanski, 631 F.3d 794 (6th Cir. 2011), is similarly unavailing. Unlike Peterson, Szymanski “waived indictment,” and did not enter into a plea agreement. Id. at 796. In addition, the record left the court with the “the strong impression that the defendant, his counsel, as well as government counsel at the arraignment did not have an adequate understanding of the nature of the charge at issue.” Id. Here, Peterson‘s indictment, his plea agreement, and the colloquy with the court informed him of the elements required to be proven. Peterson does not assert that his counsel failed to inform him of the knowledge requirement for each element of the offense, and there is no indication that the Government misunderstood the elements.
B. Motions to Suppress
Peterson argues that the parole searches were not authorized because his parole conditions did not unambiguously include cell phones and their content as property subject to search. Peterson also contends that the illegal seizure of his cell phones in the parole search required suppression of the forensic evidence subsequently obtained from the warrant becausе the phones had been illegally kept in the possession of the Government.
1. Motion to Suppress Parole Searches
In Johnson, we affirmed the district court‘s order denying a motion to suppress evidence obtained as a result of the warrantless searches of a parolee‘s cell phone. 875 F.3d at 1273-76. We recognized that “status as a parolee
Peterson, a California parolee, had the same diminished privacy interest, and the State of California had the same substantial interest in supervising parolees as discussed in Johnson. See id. at 1273-74. Peterson agreed that as a parolee he and his property could be searched at any time with or without a warrant. Peterson specifically agreed not to possess a cell phone with a camera, use social media sites, or possess “electronic media” displaying sexually explicit content. Finally, he consented to “announced or unannounced examination and/or search of [his] electroniс devices.” The district court, therefore, appropriately denied Peterson‘s motion to suppress with respect to the parole searches. See id. at 1273-74.
Peterson argues that the warrantless seizure of his cell phones during the parole searches required suppression of the forensic evidence subsequently obtained by warrant. As just discussed, however, the parole searches were constitutionally permissible, and this argument fails.
The Gоvernment did not rely on the independent source doctrine because the “original parole searches were valid.” On appeal, Peterson asserts that the phones “were reanalyzed utilizing previously captured forensic images.” According to Peterson, these images were ordered suppressed when the Government filed a non-opposition to his first motion to suppress. Peterson argues that “there can be no independent source when there is no independent search.”
Peterson‘s argument is unavailing. Peterson failed to argue before the district court that the Government did not make new forensic images to analyze after obtaining the warrant, and therefore the argument is waived. See United States v. Keesee, 358 F.3d 1217, 1220 (9th Cir. 2004) (holding that a “theory for suppression not advanced in district court cannot be raised for the first time on appeal“). Had Peterson raised this argument below, the district court could have ruled on this factual dispute in the first instance, and if necessary, the asserted error could have been corrected by obtaining new forensic images of the phones. See id. (explaining that had the defendant made his suppression argument to the district court, the issue could have been addressed). The district court‘s order denying Peterson‘s motion to suppress was without error.
The plea colloquy between the district court and Peterson adequately apprised Peterson of the elements of the offense for which he was indicted. Consequently, the district court acted within its discretion in denying Peterson‘s motion to withdraw his guilty plea. Any illegality in the initial seizure of forensic images from Peterson‘s cell phones was cured by the subsequent issuance of a warrant to search the forensic images from cell phones that were legally seized from Peterson as the result of valid parole searches.
AFFIRMED.