607 F.3d 357 (4th Cir. 2010), 09-4072, United States v. Richardson

Docket Nº:09-4072.
Citation:607 F.3d 357
Opinion Judge:TRAXLER, Chief Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Thomas McCoy RICHARDSON, Jr., Defendant-Appellant. AOL LLC, Amicus Supporting Appellee.
Attorney:Anthony Glen Scheer, Rawls, Dickinson & Scheer, PA, Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Office of the United States Attorney, Asheville, North Carolina, for Appellee. Edward R. Ryan, United States Attorney, Charlotte, North Carolina, for Appellee. Christopher G. Bubb, Vic...
Judge Panel:Before TRAXLER, Chief Judge, and WILKINSON and DUNCAN, Circuit Judges. Affirmed by published opinion. Chief Judge TRAXLER wrote the opinion, in which Judge WILKINSON and Judge DUNCAN joined.
Case Date:June 11, 2010
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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607 F.3d 357 (4th Cir. 2010)

UNITED STATES of America, Plaintiff-Appellee,

v.

Thomas McCoy RICHARDSON, Jr., Defendant-Appellant.

AOL LLC, Amicus Supporting Appellee.

No. 09-4072.

United States Court of Appeals, Fourth Circuit.

June 11, 2010

Argued March 24, 2010.

Page 358

[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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ARGUED:

Anthony Glen Scheer, Rawls, Dickinson & Scheer, PA, Charlotte, North Carolina, for Appellant.

Amy Elizabeth Ray, Office of the United States Attorney, Asheville, North Carolina, for Appellee.

ON BRIEF:

Edward R. Ryan, United States Attorney, Charlotte, North Carolina, for Appellee.

Christopher G. Bubb, Vice President, General Counsel, John R. LoGalbo, Assistant General Counsel, AOL LLC, Dulles, Virginia, for Amicus Supporting Appellee.

Before TRAXLER, Chief Judge, and WILKINSON and DUNCAN, Circuit Judges.

Affirmed by published opinion. Chief Judge TRAXLER wrote the opinion, in which Judge WILKINSON and Judge DUNCAN joined.

OPINION

TRAXLER, Chief Judge:

Thomas McCoy Richardson, Jr., pled guilty to violating 18 U.S.C. § 2252A(a)(1) & (b)(1) by " knowingly transport[ing] and ship[ping] in interstate and foreign commerce, by means of a computer, child pornography," J.A. 16, and to violating 18 U.S.C. § 2252A(a)(5) by " knowingly possess[ing] material that contained images of child pornography," J.A. 16. In doing so, Richardson preserved the right to appeal the district court's order denying his motion to suppress and quashing his subpoena duces tecum under Rule 17(c)(2) of the Federal Rules of Criminal Procedure.

On appeal, Richardson contends that AOL LLC (" AOL" ), an internet service provider (" ISP" ) with whom he had an email account, discovered the illegal images on which Richardson's child pornography charges were based by conducting an unconstitutional search on behalf of the Government. Richardson also contends that the search warrant subsequently executed at his Charlotte-area apartment was not supported by probable cause, rendering the evidence culled from his computer inadmissible. Finally, Richardson claims that the district court committed reversible error in granting AOL's motion to quash his subpoena seeking the production of documents that would establish an agency relationship between AOL and the Government with respect to the detection of AOL subscribers involved in child pornography. We conclude that the district court correctly rejected these arguments and affirm the district court.

I.

On June 10, 2004, AOL, pursuant to a mandatory reporting requirement set forth in 42 U.S.C. § 13032(b)(1),1 reported to the Cyber Tip Line at the National Center for Missing and Exploited Children (" NCMEC" ) that AOL had detected the transmission of child pornography images by a subscriber using an e-mail address called knifeisland@aol.com. NCMEC, also as mandated by the same federal law, passed along this information to the North Carolina State Bureau of Investigation (" SBI" ), which, in turn, served AOL with an administrative subpoena for subscriber information related to the " knifeisland@ aol.com" address. AOL determined that the " knifeisland@ aol. com" account was registered to Richardson at 2541 Pine View Lane, Apartment H, Gastonia, North Carolina. The screen name " tr2066" was also linked to this account. By August 2004, however, when SBI agents received and followed up on this information, Richardson

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no longer resided at the 2541 Pine View Lane address and no forwarding address was available.

The investigation of Richardson apparently stalled for about one year. Then, on September 2, 2005, AOL reported to NCMEC that it had detected the transmission of two e-mail messages containing images depicting child pornography from an account named " tr 1029@ aol. com" by a person using the screen name " tr1029." NCSBI Agent J.D. White initiated an investigation following this second report. Pursuant to another administrative subpoena, AOL indicated that the " tr 1029@ aol. com" account was registered to Richardson at 8508 Park Road, Charlotte, North Carolina. The Park Road address, as it turned out, was the location of a UPS store. Further investigation by the NCSBI, however, revealed that Richardson was residing in Charlotte at 7805 Andover Woods Drive, Apartment 604, and linked Richardson through his driver's license to both the Park Road address of the UPS store (where Richardson had apparently received mail for a period of time) and the Pine View Lane address in Gastonia (where Richardson had established the knifeisland@ aol. com account).

NCSBI agents researched Richardson's criminal history and discovered that Richardson was a registered sex offender in South Carolina as a result of two 1996 convictions. In the first instance, Richardson was arrested and charged with performing a lewd act upon a child under 14 years of age after he entered a Wal-Mart store in Florence, South Carolina, grabbed the buttocks of a minor girl, and uttered an obscene remark to her. He was ultimately convicted of assault and battery of a high and aggravated nature. In the second instance, Richardson was convicted for exposing himself as he walked through the same Wal-Mart.

On November 17, 2005, Agent White applied for a search warrant to search Richardson's Andover Woods Drive apartment in Charlotte primarily for evidence of Richardson's use of a computer to view, store, and transmit images of child pornography. In support of his probable cause showing, Agent White included the information disclosed by AOL pursuant to the administrative subpoenas and the details of the subsequent investigation conducted by NCSBI. Additionally, Agent White provided a summary of his background in criminal and computer investigation as well as his special training in the " investigation[ ] of child sexual exploitation and child pornography." J.A. 41. Based on his experience, Agent White indicated " [t]he use of computers to traffic in, trade, or collect child pornography has become one of the preferred methods of obtaining such materials ... [because computers] provide[ ] a high degree of anonymity in obtaining child pornography ... [and] a sense of privacy and secrecy not attainable by other media." J.A. 50. White further explained in his affidavit that " [i]ndividuals involved in the possession and transportation of child pornography rarely, if ever, dispose of their sexually explicit materials," which " are extremely valuable to these individuals because of the difficulty, scarcity, expense, and danger involved in their collection." J.A. 50. Noting that even computer files that are deleted from the hard drive can be retrieved through a forensic examination of the computer, White asked the issuing judge to find " probable cause to believe that Thomas Richardson's residence, 7805 Andover Woods Drive, Apartment 604, Charlotte, North Carolina, contains a computer or computers that have been used to communicate with individuals to acquire child pornography; store images of child pornography, and distribute images of child pornography." J.A. 51.

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On November 17, 2005, law enforcement officers executed the search warrant for Richardson's Andover Woods apartment. The primary evidence recovered in the search was a computer. Richardson indicated that he was the sole user of the computer and admitted that he had sent and received child pornography by email. Richardson also told officers that he was " addicted to viewing [child pornography] over the Internet, but denied ever meeting or speaking by phone with anyone he met on the Internet under the age of 18." J.A. 211. A forensic examination of Richardson's computer revealed 28 images and 21 video files containing child pornography. Some of these images included depictions of adults engaged in illegal, obscene sexual acts with children between four and nine years of age.

Richardson moved to suppress both the evidence seized in the search of his home and his statements to law enforcement officers during the search. First, Richardson argued that in reporting the contents of his email, AOL was acting as an agent of the Government and had therefore conducted an unconstitutional warrantless search of his private email communications. Second, Richardson argued that even if AOL had not acted as a law enforcement agent in reporting the emails, the issuing judge lacked probable cause to believe that evidence of a child pornography offense would be located at his apartment at the time of the search.

Subsequently, in hopes of obtaining documentary support for his argument that AOL was acting as an agent for the Government, Richardson served AOL with a subpoena duces tecum pursuant to Rule 17(c)(1) of the Federal Rules of Criminal Procedure requesting that AOL produce

all records (including but not limited to emails, postal correspondence, minutes/notes of meetings, memoranda, and public relations material, and Congressional testimony) relating to AOL's coordination of efforts, training and/or strategic partnerships with all agencies of the United States Department of Justice, the United States Postal Service, the Secret Service, the Internet Crimes Against Children Task Force with the Department of Justice, and the [NCMEC], regarding the detection and reporting of child pornography content in emails and/or web browsing activities by AOL subscribers or on its network.

J.A. 64.

In response to the subpoena, AOL filed a motion to quash on the grounds that the subpoena was grossly overbroad in scope and that " compliance would be unreasonable or oppressive." Fed.R.Crim.P. 17(c)(2). AOL argued that Richardson's subpoena was essentially a fishing expedition " based on the...

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