USA v. Christie
| Citation | 624 F.3d 558 |
| Decision Date | 15 September 2010 |
| Docket Number | No. 09-2908.,09-2908. |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
| Parties | UNITED STATES of America v. Russell CHRISTIE, Appellant. |
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Lorraine S. Gauli-Rufo, Office of Federal Public Defender, Newark, NJ, for Appellant.
George S. Leone, John F. Romano, Office of United States Attorney, Newark, NJ, for Appellee.
Before: RENDELL, JORDAN, and GREENAWAY, JR., Circuit Judges.
Russell Christie appeals the judgment of conviction and sentence entered by the United States District Court for the District of New Jersey after a jury found him guilty of various child pornography offenses. For the reasons that follow, we will affirm.
On September 3, 2008, a grand jury returned an eight-count second superceding indictment charging Christie with possession, receipt, and advertising of child pornography, in violation of 18 U.S.C. §§ 2251(d)(1)(A), 2252A(a)(2)(A), and 2252A(a)(5)(B). The indictment was the culmination of a two-year investigation into the website of the North American Man-Girl Love Association (“NAMGLA”), a site that featured a password-protected forum where users could post links to sexually explicit images and videos of children and comment on those materials.
The investigation began in November 2005 as the byproduct of an unrelated fraud investigation into Jerrod Lochmiller, who happened to be the administrator of the NAMGLA site. Lochmiller, who was a fugitive and on probation at all times pertinent to this case, contacted the United States Attorney's Office in Los Angeles through his attorney, George Buehler. Buehler indicated that, in exchange for the government's dropping fraud charges against Lochmiller, Lochmiller would, in turn, provide access to the NAMGLA website and information on its users. The U.S. Attorney's Office agreed and referred the case to the Federal Bureau of Investigation (“FBI”), which assigned Special Agent Douglas MacFarlane as the primary case agent for the investigation.
Buehler furnished a user name and password, which MacFarlane then used to access restricted areas of the NAMGLA website. At trial, MacFarlane testified that the password-protected areas of the website contained three sections entitled the N Gallery, the Private Gallery, and the Private Lounge. In the N Gallery-which MacFarlane identified as an abbreviation for “Nude Gallery”-users could post links to other websites containing sexually explicit images and videos of children posing by themselves. The Private Gallery and Private Lounge sections of the website operated in a similar manner, except that the links posted in them typically contained images of children engaged in sexual acts with adults or with one another. MacFarlane testified that access to the site was free but that users were required to submit links to child pornography to the site moderators in order to obtain a username and password. During the course of the investigation, one such user, who went by the screen name “franklee,” consistently posted links to new images and videos, and posted comments to the website. As a result of MacFarlane's investigation, the FBI undertook efforts to identify the users of the website.
Identifying the users proved difficult, due to the manner in which individual computers are identified when linked to the internet. Residential internet customers typically connect to the internet through an internet service provider (“ISP”). Each time a customer connects, the ISP assigns a unique identifier, known as an IP address, to the customer's computer terminal. Depending on the ISP, a customer's IP address can change each time he logs on to the internet. ISPs retain for a finite period of time-usually thirty, sixty, or ninety days-records of the IP addresses that they assign to customers. IP addresses are also conveyed to websites that an internet user visits, and administrators of websites, like NAMGLA's, can see the IP addresses of visitors to their sites. However, site administrators do not possess information linking a given IP address to a particular person. That information is held by the ISPs.
The FBI initially attempted to obtain the IP addresses of visitors to the NAMGLA website from Lochmiller, but, because all communications between the FBI and Lochmiller were handled through Buehler, the information was too stale to be useful. By the time government agents got the IP addresses from Buehler, there was not enough time to subpoena customer identities from the ISPs before the ISPs had purged their records reflecting which IP addresses had been assigned to which customers. Accordingly, in April 2006, the FBI requested that Lochmiller give them administrator-level access to the NAMGLA website, which he did. With that higher level of access, the FBI was able to see the IP addresses associated with each user. MacFarlane then began monitoring the IP addresses that appeared on the NAMGLA site, and he ultimately identified approximately forty individual users. From there, he apparently acquired from the ISPs the identity of the users associated with the IP addresses.
One of those individuals was Christie, who posted to NAMGLA using the screen name “franklee.” According to MacFarlane, Christie was one of the most prolific contributors to the NAMGLA site, having written more than 2,500 posts between October 2005 and July 2006. As a moderator for the site, Christie enforced site rules and counseled less-experienced users about how to name and password-protect files to avoid detection by law enforcement authorities. Christie's moderator-level access also gave him the ability to approve new member accounts.
On July 25, 2006, the FBI executed multiple search warrants as part of a coordinated “takedown” effort aimed at the website and many of its users. FBI agents at Christie's residence seized over five-hundred CD-ROMs containing images of children engaged in sexually explicit conduct, printed images with similar content, and Christie's computer, the hard drive from which held over 250,000 graphics files, including “several thousand” images of child pornography. Agents also seized five composition notebooks containing notes reflecting the type of content on various child pornography websites as well as instructions on how to access them. The notebooks contained references to child pornography files that “franklee” had posted to the NAMGLA website, girls' names, child pornography search terms, websites used to upload child pornography, and Christie's notes on various pictures and websites. In addition, agents discovered a collection of children's toys.
Special Agent John Bennett interrogated Christie following the search. Christie, who was fifty years old at the time of trial and has no children, explained that he was employed as a school bus driver for elementary and middle-school students, and that he used the toys to pacify children who became boisterous while riding the bus. Christie also admitted to submitting two particular posts to the NAMGLA website. One was titled “nine-year-old in a supermarket” and the other told of becoming sexually aroused while changing a baby's diaper.
Prior to trial, Christie made several pretrial motions, including a motion for an evidentiary hearing to determine whether the government's work with Lochmiller constituted outrageous conduct amounting to a violation of Christie's due process rights. 1 The District Court denied the motion, concluding that, at the pretrial stage, the government's conduct did not raise sufficient concern to warrant a hearing. Additionally, in a pro se motion to suppress, Christie argued that the government violated his Fourth Amendment rights by obtaining his IP address without first acquiring a search warrant. The District Court rejected that argument, holding that Christie lacked any reasonable expectation of privacy in his IP address.
Trial commenced on the child pornography charges on November 12, 2008. During the government's case-in-chief, Agent MacFarlane testified about the FBI's contact with Lochmiller and the efforts to obtain from him the IP addresses of people using NAMGLA's website. MacFarlane acknowledged that Buehler served as an intermediary between the FBI and Lochmiller and, on cross-examination, MacFarlane admitted that he had never met Lochmiller personally. Defense counsel further questioned MacFarlane about whether Lochmiller qualified as a confidential informant (“CI”) under the Attorney General's Guidelines Regarding the Use of Confidential Informants (the “CI Guidelines”). Those guidelines define a “confidential informant” as “any individual who provides useful and credible information ... regarding felonious criminal activities, and from whom [the FBI] expects or intends to obtain additional useful and credible information regarding such activities in the future.” Att'y Gen. Guidelines Regarding the Use of Confidential Informants [hereinafter “CI Guidelines”] § I.B.6, available at http:// www. fas. org/ irp/ agency/ doj/ fbi/ dojguidelines. pdf. The guidelines establish rules applicable to all Department of Justice law enforcement agencies, see id. § I.A.3, and generally prohibit the use of fugitives and probationers as CIs. Id. § II.D.5-6. They also require that a law enforcement agent personally meet with and supervise an individual who will act as a CI. Id. § III.C.4-5.
MacFarlane testified that he did not consider Lochmiller to be a CI because, once Lochmiller provided access to the NAMGLA site, the FBI did not anticipate using him to obtain future information about illegal activities. Nonetheless, defense counsel obtained an admission from MacFarlane on cross-examination that the CI Guidelines are designed, in part,...
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Search and seizure of electronic devices
...because it is voluntarily provided to a third party. A good sample case explaining the state of the law is United States v. Christie , 624 F.3d 558 (3rd Cir. 2010), which cites several federal circuits that have reached the same conclusion. Numerous lawyers are bringing challenges to the go......
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Search and Seizure of Electronic Devices
...because it is voluntarily provided to a third party. A good sample case explaining the state of the law is United States v. Christie , 624 F.3d 558 (3rd Cir. 2010), which cites to many federal circuits that have reached the same conclusion. However, a warrant or court order is required befo......