United States v. Boles
| Decision Date | 25 January 2019 |
| Docket Number | Docket No. 17-1138-cr,August Term 2017 |
| Parties | UNITED STATES of America, Appellee, v. Donald Ray BOLES, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Barbara A. Masterson, Assistant United States Attorney (Gregory L. Waples, Assistant United States Attorney, on the brief ), for Christina E. Nolan, United States Attorney for the District of Vermont, Burlington, Vermont, for Appellee.
Steven L. Barth, Assistant Federal Public Defender (Barclay T. Johnson, Assistant Federal Public Defender, on the brief ), for Michael L. Desautels, Federal Public Defender for the District of Vermont, Burlington, Vermont, for Defendant-Appellant.
Before: Wesley, Chin, and Carney, Circuit Judges.
In this case, defendant-appellant Donald Ray Boles was convicted in the United States District Court for the District of Vermont, following a jury trial, of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). On April 17, 2017, the district court sentenced him principally to 120 months’ incarceration and a ten-year term of supervised release. On appeal, he contends that the district court erred in denying his motion to suppress evidence obtained in a search of his home pursuant to a warrant. He raises other issues relating to his trial and sentence. We affirm the conviction and sentence, except that we vacate the "risk" condition of his supervised release and remand in that respect only.
In 2001, in an earlier case, Boles pleaded guilty to possession of child pornography, also in the U.S. District Court for the District of Vermont. The court (Sessions, J .) sentenced him to 15 months in prison and two years’ supervised release. Boles served his prison term and completed his supervised release on August 8, 2004.
In January 2010, the Innocent Images Operations Unit (the "IIOU") of the Federal Bureau of Investigation (the "FBI") investigated the distribution of child pornography via an online message board called "Girls.Forumcircle.com." The IIOU investigation revealed that the message board was password-protected, had around 65 members, and was utilized to trade both illegal child pornography and legal "child erotica" (images of children that are not sexually explicit but that may be "sexually arousing to a given individual," see United States v. Martin , 426 F.3d 68, 79 (2d Cir. 2005) ). The investigation further revealed that a user named "drb05" was a member of Girls.Forumcircle.com and was linked to the email address "drb0505@hotmail.com."
Between August and November 2009, the administrator of Girls.Forumcircle.com posted messages that users’ accounts would be deleted if they did not post photos or videos on the forum by November 30. On November 30, 2009, user drb05 posted 13 images of child erotica (not child pornography) depicting a young girl in sexually suggestive poses. User drb05 also posted two comments on the message board indicating a sexual interest in young girls: one in response to other users’ posts of child erotica on November 29 and one accompanying drb05’s post of child erotica on November 30.
On July 19, 2010, the IIOU served a subpoena on Microsoft. The responsive materials revealed that "drb0505@hotmail.com" was associated with a "Don B" in "Vermont, 05301." The materials also revealed a log of IP addresses for recent logins for drb0505@hotmail.com. On August 4, 2010, the IIOU subpoenaed internet service provider FairPoint Communications ("FairPoint") requesting information about subscribers associated with the IP addresses obtained from Microsoft, but FairPoint responded that it could not link IP addresses to specific subscribers.
During its investigation, the IIOU also operated an FBI undercover website that advertised access to free child pornography. The "home page" of the website made clear that its purpose was to share child pornography. The home page also contained a login field that required a unique password to access the rest of the website. Users obtained unique passwords by responding to a personal email advertisement sent undercover by the FBI. Once a user entered the unique password, the user was taken to the "landing page," which listed and described free child pornography videos available to view or download. When a user clicked on the "download" button for any of these videos, the website recorded the user’s IP address, video sample number, and the number of downloads attempted, but no child pornography was actually made available. The landing page also included a link to a "paid area," where users could ostensibly pay to view a live stream of child pornography from Eastern Europe.
On September 2, 2010, the FBI sent such an email to drb0505@hotmail.com. On September 6, 2010, a user from IP address 72.92.136.14 accessed the home page of the undercover website and entered the unique password sent to drb0505@hotmail.com. After arriving at the landing page, however, this user did not attempt to view or download any of the advertised child pornography videos or access the "paid area" of the undercover website. At some point after sending the first email, an agent sent a new email to drb0505@hotmail.com, but the user did not respond. Using this information, the IIOU again served a subpoena upon FairPoint requesting the information of any subscribers associated with the IP address 72.92.136.14, but FairPoint again stated that it could not link subscribers to IP addresses.
Nearly one year later, on July 21, 2011, FBI Special Agent Jeffrey Alford sent an email to FBI Special Agent Christopher Hughes regarding an application for a warrant to search Boles’s residence, as Boles was the suspected owner of drb0505@hotmail.com. In this email, Alford asked whether there had been recent efforts to reach out to Boles regarding the undercover website, acknowledging that "I might otherwise now have a ‘staleness’ issue." J. App. 67. Hughes responded that he had sent a new email but "[Boles] did not respond to the new request -- there may be a staleness issue with this at this point but it’s worth seeing if the AUSA will go for it." J. App. 69. On August 19, 2011, the agents confirmed from a subpoena served upon eBay that drb0505@hotmail was operated by Boles, and the subpoena also revealed Boles’s home address.
On August 25, 2011, the agents applied for a warrant to search and seize computer evidence from Boles’s residence. The district court (Sessions, J .) issued the warrant the same day, finding that probable cause supported the request. The agents executed the warrant on September 6, 2011. More than 100 images of child pornography were discovered on Boles’s computer and hard drives.
On July 15, 2014, Boles was charged with possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). He was ultimately tried on a second superseding indictment (the "Indictment") that charged three counts: one count of possessing child pornography and two counts of access with intent to view child pornography, all in violation of 18 U.S.C. § 2252(a)(4)(B).
On December 22, 2014, Boles moved to suppress the seized evidence on the basis that the warrant was not supported by probable cause and the information in the affidavit was stale when the warrant was issued. The district court denied Boles’s motion in a written decision filed April 2, 2015.2
Trial commenced on May 31, 2016. The district court received into evidence, over Boles’s objection, two computers (with hard drives inside) and a separate hard drive seized at Boles’s residence pursuant to the warrant. Labels affixed to the computers and hard drives identified the manufacturer and showed the place of origin as being outside the United States (China and Thailand). Boles argued that the labels were hearsay. The district court overruled the objection and admitted the computer evidence. The district court also permitted an FBI agent to testify, again over defense counsel’s objection, that the types of computer hardware in question (Hitachi, Compaq, and Hewlett Packard) were manufactured outside the United States. On June 3, 2016, the jury convicted Boles on the possession count but acquitted him on the two access charges.
Prior to sentencing, Boles objected to several conditions of supervised release proposed in his PSR, including two at issue on this appeal: (1) the "risk" condition, which requires Boles to notify any person or organization of any risk he posed if his probation officer determined Boles was a risk; and (2) the "polygraph" condition, which requires Boles to submit to a polygraph exam as directed by the probation officer as part of his sex offender treatment program. At sentencing on April 17, 2017, the district court overruled Boles’s objections to the conditions. The district court sentenced Boles to 120 months’ imprisonment -- the mandatory minimum -- and ten years’ supervised release, imposing the disputed conditions.
This appeal followed.
On appeal, Boles raises three principal challenges: (1) the district court erred in denying his motion to suppress because the search warrant issued without probable cause; (2) the government failed at trial to sufficiently prove the interstate or foreign commerce element of the crime of conviction; and (3) the district court erred in sentencing him to a mandatory minimum term of imprisonment and in imposing the two disputed conditions of supervised release. We discuss each challenge in turn.
Boles argues that the warrant to search his residence was not supported by probable cause because the affidavit submitted in support of the request for the warrant alleged nothing more than legal activity and was based on stale information. The government contends, however, that the district court did not err in finding probable cause because the record established that Boles was a collector of child pornography who likely was hoarding such images....
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