United States v. Cox
| Decision Date | 23 November 2022 |
| Docket Number | 21-1744 |
| Citation | 54 F.4th 502 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Bradley M. COX, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Nathaniel Whalen, Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.
Christopher Keleher, Attorney, Keleher Appellate Law Group, LLC, Chicago, IL, for Defendant-Appellant.
Before Sykes, Chief Judge, and Flaum and Lee, Circuit Judges.
A jury convicted Bradley Cox of sextorting and exploiting multiple victims, including minors, and receiving child pornography. Cox now raises several issues for our consideration. On the constitutional front, Cox claims Fourth Amendment violations based on the FBI agents' warrantless search, Fifth Amendment violations based on the agents' failure to give Miranda warnings during two interrogations, and Sixth Amendment violations based on the district court's evidentiary and procedural decisions. In addition, Cox argues that the government did not introduce sufficient evidence to support his convictions. We affirm on all counts.
In 2018, the FBI was alerted to a predatory scheme involving various Facebook accounts and (apparently) many victims. This case concerns four particular victims, two of them minors. For three of the victims, the pattern was similar. The perpetrator reached out using a Facebook account under a false name and directed the victims to contact the same, unfamiliar phone number. He informed the victims that he had nude photos of them, taken from the stash of a Facebook account he had previously "hacked." He said he would leak the photos if the victims did not meet his demands—chiefly, sending more explicit material. When they did not comply, he followed through on his threat. The fourth victim was a minor. After making contact through Facebook, the perpetrator took a slightly different tact; he never gave the victim the phone number to contact and did not have photos from the other account to use as blackmail. All the same, he manipulated and bullied her until she sent him explicit material. The perpetrator did not tell any of the victims his real name.
Special Agent Jason Stewart led the FBI's investigation. Eventually, the FBI tracked the internet address associated with some of the offending messages to a family business called Burns Construction Company, where Bradley Cox worked. Stewart and his colleague, Special Agent Joseph Gass, made their way over to Burns Construction without a search warrant. Upon arriving, they spoke with Michael Burns, a part-owner of the company. The agents asked if they could search and image the computer in Cox's office, and Burns agreed. (Cox had already left for the day.) The computer's browsing history contained traces of a specific "Virtual Private Network" (VPN). Generally speaking, VPNs can facilitate discreet internet browsing by disguising the user's identity. The same VPN found on Cox's work computer had been used to cover up the perpetrator's tracks in this case.
Right after leaving Burns Construction, Stewart and Gass made their way to Cox's home. Cox agreed to speak with them outside. It was evening. The agents assured Cox that he could end the conversation at any time and that he would not be arrested that night. When Cox proposed helping the FBI investigate the broader sextortion network in exchange for leniency, the agents responded that such an arrangement was out of their control. Cox still decided to talk. He made numerous incriminating statements. Among other things, Cox admitted to accessing certain of the offending Facebook accounts, owning the phone number that three of the victims had contacted, using the VPN found on the work computer, and messaging some of the victims. Also, Cox agreed to let the agents take his personal laptop, which Gass retrieved from the house. The agents left after a couple hours.
The next day, Stewart and a local police detective went back to Burns Construction to return the now-imaged work computer. While there, they spoke with Cox, who made more incriminating statements. Cox admitted to other communications with the victims and showed them his online storage system, which contained many explicit images.
A couple weeks later, Cox was arrested. A grand jury charged him with three counts of extorting people with threats to share their sexually explicit images ( 18 U.S.C. § 875 ), two counts of coercing (or attempting to coerce) minors to engage in sexually explicit conduct, resulting in a visual depiction, (Id. § 2251), and one count of receiving child pornography (Id. § 2252A). During pretrial proceedings, Cox decided to represent himself pro se. His appointed counsel stayed on in a standby role.
The government's trial strategy centered on Cox's confessions and a slew of forensic, technical evidence. For instance, the government aligned his internet usage at home, during his commute, and at work with the activity of the phone number that had sent many of the extortionist messages. Shianna Waller's testimony also played an important role. Waller had been in contact with one of the offending Facebook accounts and was soon recruited to help collect explicit images. She testified that she had arranged to meet the user of the account in person and, when a car arrived to pick her up, Cox was behind the wheel.
For his part, Cox's primary defense was shifting the blame to others. In his own words to the jury, "If someone else did it, then Bradley Cox didn't." As Cox would tell it, although that "someone" could have been multiple people, the most important suspect of all was David Kilcline. Kilcline had potential ties to the broader sextortion scheme. Waller testified about Kilcline's affiliation with one of the offending accounts, and Stewart had even interviewed him at one point. Yet Kilcline himself did not testify.
Faced with this evidence, the jury convicted Cox on all charges. Cox filed a couple post-trial motions, which the district court denied. He then appealed.
Cox brings myriad arguments predicated on alleged violations of the Fourth, Fifth, and Sixth Amendments, as well as an argument that there was insufficient evidence to support the jury's verdict. We address each issue below.
First, Cox contends that Stewart and Gass violated his Fourth Amendment rights by searching his work computer (and his office, where the computer was located) without a warrant and that the district court should have suppressed any evidence obtained as a result. The government responds that Cox waived this argument.
Motions to suppress must be made before trial "if the basis for the motion is then reasonably available." Fed. R. Crim. P. 12(b)(3)(C). When a party fails to meet this deadline, courts may still consider the issue upon a showing of good cause for the party's tardiness. Id. R. 12(c)(3). When the party further fails to present good cause to the district court, "we examine whether, if a motion for relief had been made and denied, the district court would have abused its discretion in concluding that the defense lacked good cause." United States v. Vizcarra-Millan , 15 F.4th 473, 500 (7th Cir. 2021) (quoting United States v. Adame , 827 F.3d 637, 647 (7th Cir. 2016) ), cert. denied sub nom. Grundy v. United States , ––– U.S. ––––, 142 S. Ct. 838, 211 L.Ed.2d 518 (2022). This review is "hyper-deferential." Id.
Cox did not timely present his motion to suppress evidence related to the warrantless search. Rather, in the middle of cross-examining Burns at trial—to be precise, right after Burns said he consented to the agents' search—Cox asked for a sidebar. At that point, Cox orally moved to suppress "any evidence obtained from the work computer." The court denied his motion as untimely. Cox asked for and received another sidebar, but the court rebuffed him again.
Cox never provided good cause to the district court for his untimeliness. He points out on appeal that the court did not give him much of an opportunity to present good cause, and this is true—to an extent. Although the court did quickly deny Cox's motion as untimely without mentioning a good-cause exception, Cox consulted with his standby counsel before the second sidebar. In these circumstances, it is not unreasonable to burden Cox with raising good cause himself.
We therefore review Cox's hypothetical good-cause proffer under the abuse-of-discretion standard. See Vizcarra-Millan , 15 F.4th at 500. On appeal, Cox provides two explanations for his failure to timely file the suppression motion. Mainly, he says that, as a pro se litigant, he should be held to a lower bar than we would otherwise impose. We do tend to apply more liberal standards to litigants proceeding pro se , including (maybe especially) in the procedural context. See, e.g., Blitch v. United States , 39 F.4th 827, 833 & n.2 (7th Cir. 2022) (). That said, "pro se litigants are generally subject to the same waiver rules as those who are represented by counsel." Johnson v. Prentice , 29 F.4th 895, 903 (7th Cir. 2022).
In United States v. Young , 955 F.3d 608 (7th Cir. 2020), this Court rejected an argument like the one Cox makes now. The defendant in that case contended that the district court should suppress evidence from a search, but only did so "during the trial after the prosecution introduced the evidence." Id. at 615. We disagreed that the defendant's pro se status justified his untimely motion, citing his discussions with his attorney before going pro se and the "several other pretrial motions" he filed afterwards. Id. As such, we held that the district court had not abused its discretion by denying the motion. Id.
Here, Cox filed his first motion to suppress before he decided to proceed pro se. His previous attorney remained on as standby counsel even after Cox went pro...
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