U.S.A v. Bynum

• Decision Date: 05 May 2010
• Docket Number: No. 08-4207.,08-4207.
• Citation: 604 F.3d 161
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Marques Drakeford BYNUM, a/k/a markie_dzkidluv6, a/k/a keyido 126@ netzero. net, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

604 F.3d 161

UNITED STATES of America, Plaintiff-Appellee,v.Marques Drakeford BYNUM, a/k/a markie_dzkidluv6, a/k/a keyido 126@ netzero. net, Defendant-Appellant.

No. 08-4207.

United States Court of Appeals Fourth Circuit.

Argued: March 25, 2010.

Decided: May 5, 2010.

ARGUED: Aaron Edmund Michel, Charlotte, North Carolina, for Appellant. Adam Christopher Morris, Office of the United States Attorney, Charlotte, North Carolina, for Appellee. ON BRIEF: Gretchen C.F. Shappert, United States Attorney, Charlotte, North Carolina, for Appellee.

Before WILKINSON and MOTZ, Circuit Judges, and JOSEPH R. GOODWIN, Chief United States District Judge for the Southern District of West Virginia, sitting by designation.

Affirmed by published opinion. Judge MOTZ wrote the opinion, in which Judge WILKINSON and Judge GOODWIN joined.

DIANA GRIBBON MOTZ, Circuit Judge:

A jury convicted Marques Drakeford Bynum of transporting and possessing child pornography, in violation of 18 U.S.C. § 2252A (2006). The district court sentenced him to 192 months in prison. Bynum appeals, challenging his conviction and sentence. Finding no reversible error, we affirm.

I.

On July 8, 2003, FBI Special Agent Gregory Zack, working undercover and using an informant's password, entered a child-pornography online chat group administered by Yahoo! Inc. (“Yahoo”). Agent Zack observed that someone using the moniker “markie_zkidluv6” had, on June 22, 2003, uploaded to the group's website a dozen photos depicting children engaged in sexual acts. On July 10, 2003, Agent Zack again accessed the group and observed that the same user had uploaded several more illicit images.

In an effort to identify “markie,” the FBI served an administrative subpoena on Yahoo, requesting the subscriber information “markie” had entered into the Yahoo website when he opened his account, and the internet protocol (“IP”) addresses (numbers generated automatically by the internet service provider) associated with the user's uploads to the Yahoo website.

Once Yahoo provided the FBI with this information, Agent Zack plugged the IP addresses into a free, public website that directed him to the internet service provider associated with those addresses, UUNET Technologies (“UUNET”). The FBI then issued a subpoena to UUNET asking for information on the customer associated with the IP addresses. After receiving from UUNET an email address and telephone number-which indicated to Agent Zack that “markie” had used a phone-based “dial-up service and not a cable or DSL line” to access the internet-Agent Zack subpoenaed the phone and internet companies that operated the dial-up service.¹ Drawing from their “subscriber information” records, these companies provided Agent Zack with Bynum's name and the physical address from which the uploads emanated: the Charlotte, North Carolina home of Bynum's mother.

On September 22, 2003, Agent Zack entered the online chat group again and observed a third upload from “markie,” this time containing a video entitled “4yo-refusing-cumshot-wsound[1].mpg.” That same day, Agent Zack accessed “markie's” profile information, in which the user identified himself as a 24-year-old single male living in North Carolina who “want[s] to chat with any cute girls that live close by thats [sic] up for a little fun.” The profile also included a photo of Bynum.

The FBI used this information to prepare an affidavit in support of a search warrant of the Bynum home. A federal magistrate judge issued the warrant and, during the December 2003 search that followed, the FBI found a laptop computer in a bedroom that the agents recognized as the background for Bynum's profile photo. A subsequent search of the computer revealed the images and video Agent Zack had earlier found uploaded online, as well as 5,074 photos and 154 videos of child pornography.

Three years later, in September 2006, a federal grand jury indicted Bynum on three counts of transporting child pornography in interstate commerce (by uploading it to Yahoo's out-of-state servers on July 8, July 10, and September 22, 2003) see 18 U.S.C. § 2252A(a)(1), and one count of possessing child pornography that had moved in interstate commerce see id. § 2252A(a)(5)(B).

Bynum moved to suppress the evidence seized during the December 2003 search, arguing that this evidence constituted the fruit of “unlawful administrative subpoenas,” and that the affidavit supporting the search warrant did not demonstrate probable cause and lacked critical information. He also moved to exclude proffered expert Government testimony as to whether the images in question depicted real children or were computer-generated, and thus protected under the First Amendment. After holding separate hearings, the court denied both motions.

Bynum proceeded to trial on the four counts charged in the indictment. At the conclusion of the Government's case, Bynum moved for judgment of acquittal, which the court denied. Bynum offered no evidence, and the jury found him guilty on all counts. Bynum then renewed his motion for acquittal, which the court again denied.

At sentencing, Bynum objected, without success, to the sentence recommended in his presentence investigation report, and advanced arguments in support of a downward variance from the United States Sentencing Guidelines' (“U.S.S.G.” or “Guidelines”) advisory range of 168-210 months in prison. For its part, the Government sought an upward variance from the Guidelines, urging the district court to impose the maximum statutory penalty of 20 years in prison. See 18 U.S.C. § 2252A(b)( l ). Bynum elected not to allocute. The district court denied both parties' requests. Instead, it imposed a mid-Guidelines sentence of 192 months' imprisonment.

Bynum timely noted this appeal.

II.

Bynum raises two Fourth Amendment challenges to the district court's refusal to suppress evidence seized during the search of the Bynum home, including the computer that uploaded and stored the child pornography at issue here. “Whether certain conduct by law enforcement officers infringes upon rights guaranteed by the Fourth Amendment is a question of law subject to de novo review.” United States v. Breza, 308 F.3d 430, 433 (4th Cir.2002).

A.

First, Bynum contends that the Government's use of “secret” administrative subpoenas violated his Fourth Amendment rights. He offers no case law supporting this theory, and we have found none.

“The ‘touchstone’ of Fourth Amendment analysis is whether the individual has a reasonable expectation of privacy in the area searched....” Id. at 433 (quoting Oliver v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984)). In order to demonstrate a legitimate expectation of privacy, Bynum “must have a subjective expectation of privacy, and ... that subjective expectation must be reasonable.” United States v. Kitchens, 114 F.3d 29, 31 (4th Cir.1997).

In this case, Bynum can point to no evidence that he had a subjective expectation of privacy in his internet and phone “subscriber information”- i.e., his name, email address, telephone number, and physical address-which the Government obtained through the administrative subpoenas. Bynum voluntarily conveyed all this information to his internet and phone companies. In so doing, Bynum “assumed the risk that th[os]e compan[ies] would reveal [that information] to police.” Smith v. Maryland, 442 U.S. 735, 744, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). Moreover, Bynum deliberately chose a screen name derived from his first name compare “markie_zkidluv6” with “Marques,” and voluntarily posted his photo, location, sex, and age on his Yahoo profile page.

Even if Bynum could show that he had a subjective expectation of privacy in his subscriber information, such an expectation would not be objectively reasonable. Indeed, “[e]very federal court to address this issue has held that subscriber information provided to an internet provider is not protected by the Fourth Amendment's privacy expectation.” United States v. Perrine, 518 F.3d 1196, 1204 (10th Cir.2008) (collecting cases).

In sum, because the FBI's administrative subpoenas did not invade any legitimate privacy interest possessed by Bynum, their issuance did not violate the Fourth Amendment.²

B.

Bynum also challenges the sufficiency of the affidavit supporting the search warrant. The Fourth Amendment mandates that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. Probable cause to search exists if there is “ ‘a fair probability that contraband or evidence of a crime will be found in a particular place.’ ” United States v. Gary, 528 F.3d 324, 327 (4th Cir.2008) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).

Bynum maintains that the affidavit supporting the search warrant was deficient because it (1) did not disclose that June 22, 2003 was the actual date of the first two uploads (rather than July 8 and 10, when Zack observed those uploads); (2) did not explain why the administrative subpoenas revealed information for July 25, 26, and 27, rather than June 22, July 8, or July 10; and (3) lacked “probable cause to believe that the suspect would still be at t [he searched] address” in December, six months after the first charged uploading. Petr.'s Br. 19.

These arguments fail because Bynum presents no reason-nor can we fathom one-as to why these minor date discrepancies, or the delay between the administrative subpoenas and the request for a warrant, undermine the magistrate judge's reasonable conclusion that the home of Bynum's mother likely contained evidence of a crime. The affidavit established that on July 8 and 10, the FBI observed that “markie_zkidluv6” had uploaded suspected child pornography to the internet, and that, later in July, somebody at the Bynum address used that screen name. Regardless of the dates of the...