United States v. Fifer, 16-2812

• Decision Date: 17 July 2017
• Docket Number: No. 16-2812,16-2812
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marcus B. FIFER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

863 F.3d 759

UNITED STATES of America, Plaintiff-Appellee,

v.Marcus B. FIFER, Defendant-Appellant.

No. 16-2812

United States Court of Appeals, Seventh Circuit.

Argued April 6, 2017

Decided July 17, 2017

John E. Childress, Matthew Weir, Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Springfield, IL, for Plaintiff-Appellee.

Sara Michelle Mayo Vig, Attorney, Springfield, IL, for Defendant-Appellant.

Before Easterbrook, Manion, and Hamilton, Circuit Judges.

Manion, Circuit Judge.

Marcus Fifer was tried and convicted on multiple counts of producing child pornography. On appeal he challenges several of the district court's evidentiary rulings and one of its jury instructions. He also appeals the terms of his supervised release. We find no error and affirm.

I. BACKGROUND

A. Search and Seizure

In November 2013, police used a confidential source to complete two controlled buys of heroin from an apartment in Springfield, Illinois. The apartment belonged to a registered sex offender named Marcus Fifer. Shortly afterwards, the police obtained a search warrant from an Illinois state court authorizing them to search Fifer's apartment for drugs and other evidence including cell phones and computers. During the search, they discovered a half-naked 16-year-old girl hiding under a bed. The girl (whose initials are C.T.) was at first uncooperative; she refused to come out from under the bed and she lied about her name and age.

One of the officers attempted to identify the girl by looking through some cell phones and a tablet that were recovered from the apartment. When the officer saw sexually explicit images of C.T. and Fifer on those devices, he referred the case to his department's sex-crimes division.¹ Officers from that division eventually secured C.T.'s cooperation. C.T. revealed that she and Fifer had been living together over the past several months and had produced a number of sex videos using the electronic devices (four cell phones, a laptop computer, and a tablet) found in the apartment.

The police then got a warrant from federal court to search the electronic devices for child pornography. The application for the federal warrant made no mention of the initial on-site search of the phones or tablet, but was based entirely on C.T.'s statements to the officers from the sex-crimes division. The execution of the federal warrant revealed sexually explicit images and videos of C.T. and Fifer.

B. Proceedings

In 2015 Fifer was charged with more than twenty counts of producing child pornography in violation of 18 U.S.C. §§ 2251(a) and (e). Before trial, Fifer moved to suppress the evidence obtained from his electronic devices on the ground that the state search warrant lacked probable cause. The district court found probable cause and denied the motion to suppress. At the same time, the court granted the government's motion to exclude evidence regarding Fifer's knowledge (or lack of knowledge) of C.T.'s age, and also excluded as irrelevant a number of exhibits and witnesses proffered by Fifer to show that he and C.T. had a "loving relationship." Initially the court also barred evidence of Fifer's prior sex-offense conviction,² but later admitted the conviction after Fifer testified at trial that his "sole purpose" in producing pornography with C.T. was to enhance their loving relationship.

At the close of the evidence, the court used this Circuit's pattern jury instruction³ to advise the jury on how to evaluate the opinion testimony presented at trial. Fifer unsuccessfully objected to the instruction on the ground that it bolstered the government's expert witnesses by mentioning their official titles. Here's the portion of the instruction to which Fifer objected:

You have heard witnesses, namely, Department of Homeland Security Task Force Officer Ellen Price, who gave opinions and testimony about forensic examination of electronic items as well as the extraction of child pornography from those same electronic items, and Department of Homeland Security Resident agent in charge Michael Mitchell....

The jury ultimately found Fifer guilty of eighteen counts of producing child pornography. The district court sentenced Fifer to 35 years in prison plus lifetime supervised release with mandatory sex-offender treatment. The court ordered Fifer to "abide by the rules of the [sex-offender] treatment provider [and] submit to physiological testing, including polygraph testing."

II. DISCUSSION

On appeal Fifer challenges each of the district court's evidentiary rulings recounted above. He also challenges the jury instruction on opinion testimony and the length and terms of his supervised release. We address each challenge in turn.

A. Motion to Suppress

In reviewing the district court's denial of Fifer's motion to suppress, we review its legal conclusions de novo and its factual findings for clear error. United States v. McPhaul , 835 F.3d 687, 689 (7th Cir. 2016).

1. Probable Cause

Fifer argues that the evidence obtained from his apartment should have been suppressed because the state search warrant was not supported by probable cause.⁴ Probable cause exists when the supporting affidavit "sets forth sufficient facts to induce a reasonably prudent person to believe that a search will uncover contraband or evidence of a crime." United States v. Sidwell , 440 F.3d 865, 868 (7th Cir. 2006). "This common-sense, non-technical determination is based not on individual facts in isolation but on the totality of the circumstances known at the time a warrant is requested." United States v. Aljabari , 626 F.3d 940, 944 (7th Cir. 2010). We give "great deference" to the issuing judge's finding of probable cause. United States v. Dessart , 823 F.3d 395, 400 (7th Cir. 2016).

We agree with the issuing judge and the district court that the affidavit used to obtain the state search warrant established probable cause for the search. The officer who submitted the affidavit credibly reported that he and another officer had recently overseen two controlled buys of heroin from Fifer's apartment. Each controlled buy involved the same confidential informant and followed the same procedure. First, the informant arranged the drug deal with Fifer by making a phone call in the presence of the officers. Then the officers searched the informant for money or contraband; they checked his pockets, waistband, outer clothing and coat, and around his socks and shoes. Finding nothing, they gave the informant the buy-money, drove him to Fifer's apartment, and watched him exit the vehicle and walk to a landing that led down some stairs to the apartment. About a minute later, the informant reappeared on the landing, returned to the vehicle with a few packets of what was later confirmed to be heroin, and told the officers that Fifer had given him the heroin in exchange for the money. The officers then searched the informant again and again found nothing. Faced with these facts, a reasonably prudent person could easily conclude that a search of Fifer's apartment would reveal contraband or evidence of a crime. See Sidwell , 440 F.3d at 869 (affiant's statement that a confidential informant entered an apartment building without contraband and exited moments later with cocaine was sufficient to establish probable cause to search the apartment).

Fifer nonetheless insists that the conditions of the controlled buy weren't stringent enough to ensure that the drugs came from his apartment. His argument is premised on a rather unusual theory: he speculates—with no supporting evidence—that the informant already had the heroin on him when he went to arrange the deal, successfully concealed the heroin from police during the initial search, pretended to deal with Fifer after reaching the apartment, and then produced the heroin he'd concealed and lied that he bought it from Fifer. While it's theoretically possible that the informant framed Fifer (and duped the police) in this way, it's not at all likely. And it certainly isn't so likely as to defeat probable cause, which after all requires "only a probability"—not absolute certainty. See Illinois v. Gates , 462 U.S. 213, 243 n.13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ; Sidwell , 440 F.3d at 869. Since the affidavit supporting the state search warrant clearly established at least a probability of criminal activity at Fifer's apartment, we defer to the state court's finding of probable cause.

2. Good Faith

The evidence obtained as a result of the state search warrant was also properly admitted because the executing officers relied on the warrant in good faith. It's well-established that even illegally obtained evidence is "admissible if the officer who conducted the search acted in good faith reliance on a search warrant." United States v. Pappas , 592 F.3d 799, 802 (7th Cir. 2010). An officer's decision to obtain a warrant is prima facie evidence of good faith. Id.

Fifer tries to rebut this presumption by arguing that the affiant officer deliberately or recklessly included false representations in the affidavit. See United States v. Glover , 755 F.3d 811, 818 (7th Cir. 2014) ("[T]he good faith exception does not apply[ ] when the affiant misleads the magistrate with a reckless or knowing disregard for the truth."). To illustrate, he notes that the affidavit says the informant was kept under "constant surveillance" during the controlled buys, whereas the affiant officer later testified that the informant was briefly out of sight after he reached the landing at Fifer's apartment. Such an inconsequential (apparent) discrepancy, however, falls far short of negating the presumption of good faith. See United States v. Williams , 718 F.3d 644, 650 (7th Cir. 2013) ; United States v. Souffront , 338 F.3d 809, 822 (7th Cir. 2003) ("A technical contradiction does not reveal a disregard of the truth.").

At its core, the affidavit recounts that the police conducted two controlled buys in which the informant (1) called Fifer to arrange a drug deal, (2) went to Fifer's apartment...