UNITED STATES of America, Plaintiff-Appellee v. Paul BECKMANN, Defendant-Appellant.
No. 14-3086.
United States Court of Appeals, Eighth Circuit.
Filed: May 15, 2015.
Submitted: March 13, 2015. [Published]
The district court dismissed the entire case on jurisdictional grounds, rendering Murphy‘s Rule 12(b)(7) motion moot. The district court may need to address Murphy‘s Rule 12(b)(7) motion on remand in light of our decision today, but it did not abuse its discretion in declining to rule on the motion before dismissing the case on other grounds. See, e.g., Vacanti v. Sunset Fin. Servs., Inc., No. 8:08CV436, 2009 WL 792387, at *3 (D.Neb. Mar. 23, 2009) (holding that a defendant‘s motion to dismiss under “Fed.R.Civ.P. 12(b)(7), 19(a) and 9(b) [was] moot” because plaintiff‘s claims were dismissed on other grounds); C.W. Limousine Serv., Inc. v. City of Chi., No. 96 C 5130, 1997 WL 208439, at *4 n. 1 (N.D.Ill. Apr. 21, 1997) (same).
D. Exhaustion of Tribal Remedies
The School District opted not to appeal the Tribal Court‘s jurisdictional determination to the Tribe‘s Supreme Court. Murphy and the Tribal Court therefore contend on appeal that the School Distriсt‘s action should be barred for failure to exhaust tribal remedies.
Although litigants must generally seek tribal appellate review of lower tribal courts’ jurisdictional determinations before seeking review in federal court, Colombe v. Rosebud Sioux Tribe, 747 F.3d 1020, 1024 (8th Cir.2014), that is not always the case. Indeed, the Supreme Court has specified that when a tribal court plainly lacks adjudicatory jurisdiction over an action, “the otherwise applicable exhaustion requirement must give way, for it would serve no purpose other than delay.” Strate, 520 U.S. at 459 n. 14, 117 S.Ct. 1404 (citation omitted). In light of our holding that the Tribal Court lacks jurisdiction, “it would serve no purpose other than delay” to require the School District to apрeal the Tribal Court‘s jurisdictional determination to the Tribe‘s Supreme Court. The School District was therefore not required to exhaust its administrative remedies before commencing this suit. See id.; Hicks, 533 U.S. at 369, 121 S.Ct. 2304 (holding that because the “tribal courts lack jurisdiction . . . adherence to the tribal exhaustion requirement in such cases ‘would serve no purpose other than delay,’ and is therefore unnecessary“); Rolling Frito-Lay Sales LP v. Stover, No. CV 11-1361-PHX-FJM, 2012 WL 252938, at *5 (D.Ariz. Jan. 26, 2012).
III. Conclusion
For the foregoing reasons, and after thoroughly considering all of the parties’ contentions on appeal, we reverse the district court‘s decision with respect to Tribal Court jurisdiction and remand for further proceedings. We affirm the distriсt court‘s dismissal of the Tribal Court on sovereign immunity grounds.
Daniel A. Juengel, Frank, Juengel & Radefeld, P.C., Clayton, MO, argued, for appellant.
Erin Granger, Asst. U.S. Atty., St. Louis, MO, argued (Richard G. Callahan, U.S. Atty., on the brief), for appellee.
Before MURPHY and SHEPHERD, Circuit Judges, and HARPOOL,1 District Judge.
Paul Beckmann pled guilty to one count of possession of child pornography after having been previously convicted and sentenced for possession of child pornography in 2001. See
I.
Since Beckmann‘s conviction for possession of child pornography in 2001, Beckmann has been required to register as a sex offender. On August 2, 2011, as part of a routine sex offender verification through the United States Marshal‘s Office, Jefferson County Deputies Barbato and Thebeau visited Beckmann‘s home. The purpose of the visit was to verify Beckmann‘s address and to ensure that he was complying with any conditions related to his status as a sex offender.
Upon arrival, the deputies knocked on Beckmann‘s door, told him they were there for sex offender verification and asked to enter his home. Beckmann consented. Once inside, the deputies observed a laptop computer on the coffee table. Beckmann informed the officers that he was
When Deputy Barbato arrived upstairs and looked into the office where Beckmann went, he saw a computer desk with a monitor on it and Beckmann underneath messing with wires/cords. To аlert Beckmann to his presence, Deputy Barbato asked Beckmann if this was the “other” computer. Beckmann seemed startled and responded yes. Deputy Barbato then asked if he could take a look at that computer, as well. Beckmann consented.
Deputy Barbato sat down and observed one computer tower and two external hard drives underneath the desk. Both of the external hard drives were connected to the tower but the power cord to one of them was unplugged from the wall. Deputy Barbato believed that these were the cords Beckmann was manipulating, and he believed that Beckmann hаd been trying to shut off the computer. The deputy plugged the power cord to the unplugged external hard drive back into the wall and began to search the computer, including the external hard drives. By this time, Beckmann had exited the office. The deputy admitted that he did not get specific consent to search the external hard drives nor did he get consent to plug the one external hard drive back into the wall; however, he considered the external drives to be a part of the “computer” because they were plugged into the computer. During his search, Deputy Barbato discovered file names suggesting child pornography. Thе deputy asked Beckmann about the suspicious files and Beckmann stated that he did not wish to answer. The officers then placed Beckmann into investigative detention. After speaking with his attorney, Beckmann signed a consent form allowing the officers to seize the laptop, computer, and external hard drives pending application for a search warrant.
The government obtained a search warrant on August 15, 2011 to copy and search the property seized. The warrant specified that it was to be executed on or before August 29, 2011. “Execution” of the search warrant required a forensic analyst to copy and sеarch existing and deleted computer files. The investigator began analyzing the seized computers in November of 2011 and the external hard drives on January 24, 2012. The analyst located over 2,000 images of child pornography on the external hard drive. On April 25, 2012, a report was prepared documenting what was found on the computer media. A return of inventory was filed with the district court on November 15, 2013. The sergeant handling the case stated that he did not intend to prejudice Beckmann or delay the proceedings but merely forgot to return the warrant.
On July 24, 2013, the grand jury returned a one-count indictment against Beckmann for possession of child pornogrаphy. Beckmann filed a motion to suppress certain evidence and statements. The magistrate judge held two evidentiary hearings on Beckmann‘s motion before issuing a report and recommendation.
Prior to sentencing, the parties submitted memoranda concerning the appropriate amount of restitution to be ordered. The government submitted victim impact statements from three of the victims of child pornography — Cindy, L.S., and Vicky. Beckmann possessed three images of Cindy, ten images of L.S., and fourteen videos and two images of Vicky. During sentencing, the government requested $3,000 of restitution per victim based on the mean amount of restitution ordered in the recent Suрreme Court case of United States v. Paroline and citing two other district court opinions. The government further offered a computation of restitution based on the average number of former and expected claims per victim and the average amount of loss attributable to each defendant over a twenty year period. These calculations yielded the following restitution amounts: Cindy — $1,600, L.S. — $2,400, and Vicky — $675. Beckmann argued that the government failed to make the causal link required by Paroline in order to justify such significant restitution. Even if it could, Beckmann argued, the range of $200-$300 would be more appropriate because Beckmann was a mere possessor.
The district court held that Beckmann‘s mere possession of child pornography was a proximate cause of the victims’ losses because Beckmann contributed to “ongoing victimization” and “ongoing victimization causes ongoing harm.” The court further held that the government met its burden to show an appropriate amount of restitution based on the limited information available. The court noted that Paroline cautions against a formal mathematical formula and ultimately ordered $3,000 of restitution per victim, finding the amount reasonable in light of prior restitution orders, the number of potential defendants involved, and Beckmann‘s relative culpability.
II.
Bеckmann first argues that the district court erred by denying his motion to suppress the incriminating evidence found on his external hard drive as the fruit of an illegal search under the Fourth Amendment. “When reviewing the denial of a motion to suppress, we review the district court‘s factual findings for clear error and its legal conclusions de novo.” United States v. Anderson, 688 F.3d 339, 343 (8th Cir.2012). We will affirm the denial of a motion to suppress unless we find that the district court‘s decision “is unsupported by the evidence, based on an erroneous view of the law, or the Court is left with a firm conviction that a mistake has been made.” United States v. Riley, 684 F.3d 758, 762 (8th Cir.2012) (citations omitted).
The district court found that Beckmann gave the officers consent to search his comрuter.3 Consensual
Here, Beckmann argues that it was unreasonable for Deputy Barbato to rely on Beckmann‘s consent to search the computer in order to justify his search of the external hard drive. The scope of a consensual search is “generally defined by its expressed object.” Jimeno, 500 U.S. at 251, 111 S.Ct. 1801. For example, where an officer asks to search a car for suspected narcotics, and the occupant agrees without explicit limitation on the scope of the search, the officer may search the entire car including containers therein that may hold narcotics. Id. If the consent “would reasonably be understood to extend to a particular container” then “the Fourth Amendment provides no grounds for requiring a more explicit authorization.” Id. at 252, 111 S.Ct. 1801. Reasonаbleness is measured in objective terms based on the totality of the circumstances. Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996). Where a person is present and fails to object to the continuation of a search, courts consider such circumstantial evidence to provide proof that the search conducted was within the scope of consent. See United States v. Lopez-Mendoza, 601 F.3d 861, 868 (8th Cir.2010).
Applying these standards, Deputy Barbato‘s belief that consent to search the computer included consent to search the connected but unplugged external hard drive was not objectively unreasonable. Deputy Barbato testified that he believed he had consent to search the еxternal hard drive based on his understanding of the word “computer” and the fact that the external drive was attached to the computer tower. The deputy‘s belief is not objectively unreasonable in light of the common understanding that the term “computer” encompasses the collection of component parts involved in a computer‘s operation. See, e.g., United States v. Herndon, 501 F.3d 683, 690 (6th Cir.2007). Beckmann did not explicitly limit the scope of his consent to search the computer, nor did he object when Deputy Barbato plugged the external hard drive into the electrical outlet and began searching.4 Based on the totality of the circumstances presented
Beckmann argues Deputy Barbato‘s belief was unreasonable because an external hard drive cannot reasonably be interpreted to constitute a “component part involved in the computer‘s operation.” He argues that merely plugging a device into a computer does not render the device a part of the computer‘s operation, and he analogizes an external hard drive to a cellular telephone. He warns that the district court‘s order sets “dangerous рrecedent for law enforcement to be able to search anything and everything that can be plugged into a computer[.]” We disagree. First and foremost, the scope of the consent to search here, as in all cases, is based on the totality of the circumstances including the interaction between the parties, the purpose of the search, and the circumstantial evidence surrounding the search. Second, a typical, reasonable person is more likely to consider a connected external hard drive a “component part involved in a computer‘s operation” as compared to a connected cellular telephone. Unlike a cellular telephone, the sole purpose of an external hard drive is to store computer data. Additionally, external hard drives, unlike cellular telephones, are functionally inoperable — and their contents unreviewable — when unplugged from a computer. Thus, Deputy Barbato‘s belief that the attached external hard drive constituted a “component part involved in the computer‘s operation” was not objectively unreasonable.
Beckmann also argues that Deputy Barbato‘s belief was unreasonable because the deрuty witnessed Beckmann attempt to unplug the external hard drive from its power source, which effectively limited the scope of the consent. The Court finds Beckmann‘s argument unpersuasive. Beckmann provided explicit, unlimited consent to search his computer after the deputy witnessed him manipulating wires under the desk. Beckmann could have denied consent to search the upstairs computer or limited the scope of the consent, but he did not. The evidence demonstrates that Beckmann knew how to limit his consent, and did so during other situations that day,5 but he did not do so in this instance. Where a suspect provides general consent to search, only an act clearly inconsistent with the search, an unambiguous statement, or a combination of both will limit the consent. See Lopez-Mendoza, 601 F.3d at 867. A subtle indication that a suspect wishes to limit the scope of a search is insufficient to render the search unreasonable. See, e.g., United States v. Siwek, 453 F.3d 1079, 1086 (8th Cir.2006) (suspect‘s statement that he lacked key to tonneau cover did not amount to denial of consent); United States v. Gray, 369 F.3d 1024, 1026 (8th Cir.2004) (suspect‘s statements that length of search was “ridiculous” and he was “ready to go now” did not amount to withdraw of consent). Here, Beckmann provided general consent to search his computer and he did not object when Deputy Barbato plugged the еxternal hard drive into the wall and began searching it. These facts support the conclusion that the search conducted was within the scope of Beckmann‘s consent.
III.
Beckmann next challenges the district court‘s denial of his motion to suppress certain physical evidence pursuant to
When the government violates Rule 41, the Court may exclude the evidence described in the search warrant only “if the defendant is prejudiced or if reckless disregard of proper procedure is evident.” United States v. Mutschelknaus, 592 F.3d 826, 829 (8th Cir.2010); see United States v. Freeman, 897 F.2d 346, 349 (8th Cir.1990). Beckmann argues that the officers here exhibited a reckless disregard for proper procedure in light of the length of the delays, the government‘s failure to seek additional time from the court either before or after issuance of the warrant, and the deputy‘s testimony that these searches are rarely completed prior to the prescribed deadline. Beckmann argues that he was further prejudiced by the delay because he was without his computers containing personal information for over two years. He further argues that he was deprived a speedy resolution to the investigation and the delay allowed witnesses’ memories to become stale.
Upon review, the Court need not decide whether the government violatеd Rule 41 because there was neither prejudice nor reckless disregard sufficient to justify suppression of the physical evidence seized from Beckmann. Even assuming the government failed to comply with the due date of execution stated in the search warrant,6 and further assuming that such a delay constitutes a violation of Rule 41,7 the government did not exhibit reckless
Second, as to the government‘s two-year delay in returning the warrant, the district court made a credibility determination that the detective‘s delay was due to inadvertence rather than deliberate and intentional disregard for the rules. This Court is not in a position to overturn the district court‘s credibility determination. United States v. Shafer, 608 F.3d 1056, 1065 (8th Cir.2010) (“A credibility finding made by a magistrate judge after a hearing on the merits of a motion to suрpress is virtually unassailable on appeal.” (internal quotations omitted)). Therefore, the Court is unable to find reckless disregard for proper procedure. See United States v. Berry, 113 F.3d 121, 123 (8th Cir.1997) (analyzing the “reckless disregard” issue as akin to “bad faith“). Moreover, Beckmann does not argue sufficient prejudice to justify exclusion. See United States v. Turner, 781 F.3d 374, 387 (8th Cir.2015) (quoting United States v. Hyten, 5 F.3d 1154, 1157 (8th Cir.1993)) (“To determine prejudice, we ask whether the search would have occurred had the rule been followed. If so, there is no prejudice to the defendant.“). Not only would the search have occurred regardless of the officers’ delay in returning the warrant, but the arguments furthered by Beckmann concerning prejudice are unconvincing in light of the district court‘s findings that Beckmann received an initial inventory of the items seized, the witnesses were still available at the time charges were brought, and the witnesses exhibited no recollection problems at the evidentiary hearing. Furthermore, any interference with Beckmann‘s possessory interest in personal property is curable through means other than suppression. See, e.g., Gregoire, 638 F.3d at 968 (finding suppression not warranted where one-year delay between seizure and search of computer and noting any interference with a possessory interest could have been remedied by
While we are concerned abоut the government‘s failure to comply with the warrant‘s execution deadline and Rule 41‘s “prompt” return mandate, exclusion of the evidence is not the proper remedy without showing prejudice or reckless disregard. Here, Beckmann failed to make such a showing. Accordingly, the district court did not err in denying Beckmann‘s motion to suppress evidence pursuant to Rule 41.
IV.
Beckmann finally argues that the district court erred in ordering restitution in the amount of $9,000. “District courts routinely exercise wide discretion both in sentencing as a general matter and more specifically in fashioning restitution orders.” Paroline v. United States, — U.S. —, 134 S.Ct. 1710, 1729, 188 L.Ed.2d 714 (2014). We review “the district court‘s decision to award restitution for an abuse of discretion and the district court‘s finding as to the amount of loss for clear error.” United States v. Kay, 717 F.3d 659, 666 (8th Cir.2013).
Under
In 2014, the Supreme Court provided guidance to district courts for determining the appropriate amount of restitution in child pornography cases. Id. at 1727-28. The Court stated that “a court applying § 2259 should order restitution in an amount that comports with the defendant‘s relative role in the causal process that underlies the victim‘s general losses.” Id. at 1727. For example, the amount of restitution would not be “severe” in a case where the defendant was a mere possessor and where all of the victim‘s losses come from the trade of her images; however, the amount of restitution in that case would also not be “a token or nominal amount.” Id. The Court went on to describe, more specifically, how to calculate the appropriate amount of restitution:
There remains the question of how district courts should go about determining the proper amount of restitution. At a general level оf abstraction, a court must assess as best it can from available evidence the significance of the individual defendant‘s conduct in light of the broader causal process that produced the victim‘s losses. This cannot be a precise mathematical inquiry and involves the use of discretion and sound judgment. . . .
There are a variety of factors district courts might consider in determining a proper amount of restitution, and it is neither necessary nor appropriate to prescribe a precise algorithm for determining the proper restitution amount at this point in the law‘s development. Doing so would unduly constrain the decisionmakers closest to the facts of any given case. But district courts might, as a starting point, determine the amount of the victim‘s losses caused by the continuing traffic in the victim‘s images (excluding, of course, any remote losses like the hypothetical car accident described above, see supra, at 1721), then set an award of restitution in consideration of factors that bear on the relative causal significance of the defendant‘s conduct in producing those losses. These could include the number of past criminal defendants found to have contributed to the victim‘s general losses; reasonable predictions of the number of future оffenders likely to be caught and convicted for crimes contributing to the victim‘s general losses; any available and reasonably reliable estimate of the broader number of offenders involved (most of whom will, of course, never be caught or convicted); whether the defendant reproduced or distributed images of the victim; whether the defendant had any connection to the initial production of the images; how many images of the victim the defendant possessed; and
other facts relevant to the defendant‘s relative causal role. These factors need not be converted into a rigid formula, especially if doing so would result in trivial restitution orders. They should rather serve as rough guideposts for determining an amount that fits the offense. The resulting amount fixed by the court would be deemed the amount of the victim‘s general losses that were the “proximate result of the offense” for purposes of § 2259, and thus the “full amount” of such losses that should be awarded.
Id. at 1727-28 (internal citations omitted).
In this case, restitution was mandatory under
V.
For the foregoing reasons, we affirm the conviction and sentence.
Notes
Report & Recommendation ¶ 18. Even assuming Beckmann was not present in the room at the time Deputy Barbato plugged the external hard drive‘s power cord into the wall, “[w]e have not, to date, found that officers have a duty to ensure that an individual has an opportunity to withdraw or limit consent.” United States v. Guevara, 731 F.3d 824, 829 (8th Cir.2013).After he plugged in the power cord, Deputy Barbato got up and sat in the chair at the desk. He then used the computer mouse with the monitor to activate the computer. Barbato thought the computer desktop displayed on the monitor looked normal, although it had icons he was unfamiliar with. By this time Beckmann had walked out of the room.