United States v. Kearney

• Decision Date: 29 February 2012
• Docket Number: No. 10–2434.,10–2434.
• Parties: UNITED STATES, Appellee, v. T. Patrick KEARNEY, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

672 F.3d 81

UNITED STATES, Appellee,

v.T. Patrick KEARNEY, Defendant, Appellant.

No. 10–2434.

United States Court of Appeals, First Circuit.

Heard Jan. 12, 2012.Decided Feb. 29, 2012.

Rheba Rutkowski, Assistant Federal Public Defender, for appellant.

Cynthia A. Young, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before LYNCH, Chief Judge, SOUTER,^* Associate Justice, and STAHL, Circuit Judge.LYNCH, Chief Judge.

T. Patrick Kearney appeals from a plea of guilty to seventeen counts of transportation, distribution, and possession of child pornography, which he did through use of the internet. His appeal raises two important issues we have not addressed before.

Since the IP address Kearney used to accomplish his crimes was a “dynamic” and not a “static” one, he contends the affidavit in support of the search warrant was not adequate. Even accounting for that difference, we hold that the affidavit was adequate and there was no error in the denial of the motion to suppress. The second issue, which has divided the circuits, concerns the standards for an award of statutory restitution under 18 U.S.C. § 2259 to the victim, as well as the propriety of the $3,800 amount ordered as restitution. The victim was, as a minor, the subject of the pornographic videos taken by her father. The defendant possessed, transported, and redistributed those images to others. We also find no error in the restitution award.

I.

The FBI, state, and local law enforcement agencies regularly conduct undercover operations to target individuals who use telecommunications to transmit and receive child pornography or to lure children into sexual relationships. In May 2008, Nathan Kesterson, an internet crimes investigator of the Lexington, Virginia, police department, began communications over the internet with an individual while posing as a fourteen-year-old female named “Julie.” The website on which the communications occurred was chat-avenue.com, styled as a teen-only chat room. Kesterson communicated with a person who was identified, at this point, only by the screen name “padraigh8,” and who claimed to be a twenty-eight-year-old male from Massachusetts. These communications continued, on ten separate occasions, through May and June, and padraigh8 utilized Yahoo! messenger on some of these occasions. During several of the conversations, padraigh8 sent to “Julie” child pornography videos and photographs. Kesterson was able to identify padraigh8's MySpace page and ID number, because the MySpace page bore the same name as the Yahoo! account: “padraigh8.”

Kesterson contacted the FBI's Boston office about padraigh8 on May 12, 2008. The FBI assigned the case to Special Agent Jennifer Weidlich, who then served subpoenas on Yahoo! and MySpace in an attempt to determine the identity of padraigh8. The descriptions of the responses to these subpoenas set forth in Weidlich's affidavit in support of the application for a search warrant are at the heart of Kearney's Fourth Amendment claim.

The first subpoena was served on MySpace on May 22, 2008, and requested account and internet protocol (IP) address ¹ information associated with the padraigh8 MySpace page. MySpace responded, stating that the subscriber created this account on August 23, 2007, using IP address 68.116.165.4. The name of the subscriber was listed as “Padraigh NoName,” with an address in Westborough, Massachusetts, and an email address of padraigh 9 @ hotmail. com. IP log records showed that the user signed onto this MySpace account from IP address 68.116.165.4 “multiple times between” August 23, 2007, and May 22, 2008.

The second subpoena was served on Yahoo! on May 22, 2008, requesting information on the “padraigh8” account used to communicate with “Julie.” Yahoo!'s response stated that the account was created on October 24, 2000, by “Padraigh No Name,” with an alternate email address of padraigh 9@ hotmail. com provided—the same address which was used to create the MySpace page. Yahoo! also informed Weidlich that padraigh8 accessed his account from IP address 68.116.165.4 a total of 288 times “between” April 7, 2008, and May 21, 2008.

With that information, Weidlich served a third subpoena on Charter Communications on June 4, 2008, requesting the identity of the owner of the IP address 68.116.165.4 between the dates of May 20, 2008, and May 22, 2008. ² The company responded by stating that the IP address belonged to Patrick Kearney, and provided Kearney's home address—11 Morgan Drive, North Grafton, Massachusetts—telephone number, and email accounts. Kearney opened the Charter account on August 23, 2003. The information provided by Charter Communications was the only connection between the IP address and an identifiable individual.

After receiving the response from Charter Communications, Weidlich cross-referenced the information about Kearney against the state Registry of Motor Vehicles database, which confirmed that Kearney resided at 11 Morgan Drive.

On the basis of the affidavit supplied by Weidlich, a warrant was issued by a magistrate judge on July 7, 2008, to search the 11 Morgan Drive residence. The warrant authorized agents to seize evidence of the commission of a criminal offense, contraband, fruits of a crime, and property designated and intended for use, and that had been used, as a means of committing certain criminal offenses—distribution and possession of child pornography, in violation of 18 U.S.C. § 2252(a)(2) and (a)(4)(B), as well as attempt to travel interstate for the purpose of engaging in illicit sexual conduct with a minor, in violation of 18 U.S.C. § 2423(b) and (e).

The warrant was executed early in the morning of July 10, 2008, by eight FBI agents and two Grafton police officers. Kearney and his girlfriend were the only occupants of the house. The officers first did a protective sweep, as they had information that Kearney had a firearm. He did, and he showed the officers where the gun was, and the officers secured it. Kearney agreed to talk with the officers during the search, and made a variety of statements, including that he knew the images and videos he sent to “Julie” depicted children under the age of eighteen. He also admitted to downloading child pornography and storing it on his computer. The officers executing the warrant seized five computers and a variety of associated equipment.

Kearney was arrested on a complaint on July 25, 2008. A seventeen-count indictment issued on August 20, 2008, charging Kearney with eight counts of transportation of child pornography, eight counts of distribution of child pornography, and one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(1), (a)(2), and (a)(4)(B), respectively. Kearney pled not guilty to all counts on August 25, 2008.

On August 21, 2009, Kearney filed a motion to suppress, arguing (1) that the affidavit submitted in support of the search warrant application did not demonstrate the existence of probable cause and (2) the agents did not act in good faith reliance on the affidavit and so the search was not saved by the good faith exception.³ The government opposed the motion, and a hearing took place on October 29, 2009. On November 30, 2009, the district court denied the motion to suppress. United States v. Kearney, No. 08–40022, 2009 WL 4591949 (D.Mass. Nov. 30, 2009). Kearney moved to reconsider, and that motion was denied on December 14, 2009.

On March 8, 2010, Kearney conditionally pled guilty to all counts at a change of plea hearing. Kearney reserved his right to appeal the denial of his motion to suppress.

On May 13, 2010, the government filed a motion requesting restitution under 18 U.S.C. § 2259 for “Vicky.” “Vicky” was the child subject of one of the pornographic videos which Kearney possessed, transported, and distributed. She was a ten- or eleven-year-old child at the time the video was made and is now in her early twenties. In § 2259, Congress required courts to “order restitution” in “the full amount of the victim's losses” for “any offense” under Title 18, Chapter 110 of the United States Code, which includes 18 U.S.C. § 2252. 18 U.S.C. § 2259(a), (b)(1). The prosecution here proposed “an award of no less than $3,800,” by averaging the awards of restitution Vicky had received in thirty-three other child pornography cases, and viewing the amount in relation to her overall documented claims of losses. Kearney opposed the motion. Kearney also filed a motion for a separate hearing on the restitution issue, which the district court denied.

The government's request for restitution was supported by affidavits and a letter provided by Vicky's attorney, with attached documentation. On November 18, 2009, Vicky's attorney had received a notification letter from the federal Victim Notification System providing information about the prosecution of Kearney.⁴ By letter of December 31, 2009, Vicky's attorney requested $226,546.10 in restitution, including $188,705 in future counseling expenses, $27,341.10 in expenses for records, evaluations, and other supporting evidence regarding the restitution claim, and $10,500 in attorneys' fees. As said, the prosecution actually sought the far smaller amount of restitution of no less than $3,800.

The support for the restitution claim included two expert reports from a psychologist, Dr. Green, as well as statements from Vicky, her mother, and her stepfather. Dr. Green's reports were based on over eight hours of interviews with Vicky, several psychological tests and assessments of Vicky, interviews with Vicky's mother and stepfather, and a review of numerous written records about Vicky, including her therapy records.

The first report, from May 2009, made clear that Vicky has suffered immensely not only from the initial creation of the child pornography depicting her sexual exploitation and abuse, but also from the continued dissemination and...