United States v. Franz, No. 13–2406.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtJORDAN
Citation772 F.3d 134
Decision Date04 November 2014
Docket NumberNo. 13–2406.
PartiesUNITED STATES of America v. Robert FRANZ, Appellant.

772 F.3d 134

UNITED STATES of America
v.
Robert FRANZ, Appellant.

No. 13–2406.

United States Court of Appeals,
Third Circuit.

Argued Sept. 9, 2014.
Filed: Nov. 4, 2014.


[772 F.3d 138]


Richard Q. Hark [argued], Hark & Hark, Philadelphia, PA, for Appellant.

Alicia M. Freind [argued], Robert A. Zauzmer, Office of United States Attorney, Philadelphia, PA, for Appellee.


Before: FISHER, JORDAN, and HARDIMAN Circuit Judges.

OPINION OF THE COURT

JORDAN, Circuit Judge.

Robert Franz appeals from his conviction in the United States District Court for the Eastern District of Pennsylvania on one count of receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2). The appeal requires us to decide whether the exclusionary rule applies when agents executing an otherwise-valid search warrant fail to provide to the homeowner a list of items sought. The appeal also raises questions about a separate warrant for the search of Franz's computer and about several evidentiary issues, including whether evidence that was shown to the jury but later stricken from the case was prejudicial and whether the remaining evidence

[772 F.3d 139]

was sufficient to send the case to the jury. We will affirm.

I. Background

In 2009, the Bureau of Land Management (“BLM”) learned that Franz may have stolen a wooly mammoth tusk and other paleontological items from BLM managed land in Alaska and smuggled them to his house in Plymouth Meeting, Pennsylvania. The BLM's interest in Franz arose while it was conducting an investigation of Equinox Wilderness Expeditions (“Equinox”), an outfitting and wilderness-guide business suspected of taking expeditions onto protected BLM land without obtaining proper permits or abiding by BLM regulations. The Equinox website displayed several photographs from previous expeditions, including one showing Franz posing with the fossilized mammoth tusk.

As part of the BLM's investigation into Equinox, it sent an undercover agent to participate in one of Equinox's expeditions in June 2009. Franz participated in that trek, and the undercover agent interacted with him on several occasions. Franz volunteered that he had gone on fourteen prior Arctic expeditions since 1988, including four with Equinox. He also noted his appearance on the Equinox website, pointing out that he was “the one holding the mammoth tusk.” (App. at 75.) He elaborated that he had a 36–inch mammoth tusk and a 6– to 8–inch mammoth tusk from earlier trips, both on display in his house. Franz conveyed to the undercover agent his ideas on the importance of memorializing their trip, and he offered to collect photographs from the participants in the expedition and assemble a compact disc to send to all of the participants. Based on the evidence obtained from the undercover investigation and from the website, the BLM sought a search warrant for Franz's house.

A. The Nardinger Warrant

With the assistance of federal prosecutors, BLM Agent Joseph Nardinger prepared the warrant application. Where the face sheet of the warrant asked for a description of the property that the agents expected to seize, it read, “See attached sheet.” One of the attachments, Attachment B, listed a series of items to be seized,1 including the mammoth tusks, other illegal artifacts, maps of Alaska, financial records, photographs, emails, and any related information contained on computer hard drives or other electronic storage devices. A magistrate judge approved the warrant (the “Nardinger Warrant”) on July 30, 2009. The United States Attorney moved to seal the search warrant, affidavit, and accompanying papers, citing “the government's interest in protecting cooperating witnesses, maintaining the secrecy of grand jury investigations, and ongoing criminal investigations.” (App. at 66.) The magistrate judge granted the motion.

BLM agents executed the warrant on August 3, 2009. Franz was present at the time, and Nardinger provided Franz with a copy of the face sheet of the warrant. He did not, however, give him copies of the warrant attachments, even when Franz requested them. Nardinger mistakenly believed that, because the warrant and affidavit had been sealed, he could not reveal those attachments. Nardinger nonetheless explained to Franz the circumstances giving rise to the warrant, including the allegation of stealing a mammoth tusk from protected lands, and he thoroughly described the items the warrant authorized him to seize.

[772 F.3d 140]

During the search, agents noticed that on the walls of Franz's house were several framed photographs of young, nude girls. And, while searching for other items listed in Attachment B, agents came across pamphlets containing several images of nude minors engaged in sexually explicit conduct.2 After consulting federal prosecutors for guidance, the agents collected the contraband in plain view. One of the agents briefly examined Franz's computer to determine whether it had too many files to search on site and whether the files were encrypted. In doing so, he noticed a file thumbnail depicting a partially nude girl and saw another file name that suggested the presence of child pornography. The agents seized, among other things, the pamphlets, the computer, and an external hard drive. They then referred the child pornography case to the Federal Bureau of Investigation (“FBI”).

B. The Herrick Warrant

On August 12, 2009, FBI Special Agent Brian Herrick obtained a warrant (the “Herrick Warrant”) to search the digital storage devices and other items that the BLM had seized. The Herrick Warrant was sealed, and the government did not move to unseal it or provide a copy to Franz until thirty-one months after issuance and over two months after Franz's indictment in the present case. The search conducted pursuant to the Herrick Warrant produced two digital images found on Franz's external hard drive that, along with the pamphlets, served as the basis for the charges in the present case: an image labeled 2024372669.jpg (the “202.jpg image”) and one labeled 196667053.jpg (the “196.jpg image”).

C. Indictments and the Motion to Suppress

In August 2010, Franz was charged with theft of government property and conspiracy to defraud the United States because of his smuggling of the tusk. He eventually pled guilty to those charges and did not challenge either warrant in that case. Then, on January 5, 2012, a grand jury indicted him for two child pornography crimes: receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2) and (b)(1); and possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B).

In the ensuing prosecution, Franz filed a motion to suppress all evidence collected pursuant to both the Nardinger and Herrick Warrants. Among other things, he argued that the Nardinger Warrant failed to satisfy the Fourth Amendment's particularity requirement. The District Court concluded the warrant was valid at the time it was issued; however, the Court also ruled that because Nardinger did not provide Franz with Attachment B to the warrant, which described the items to be seized, the warrant was facially invalid when it was executed. The Court went on to consider the possible deterrent effect that would be achieved by excluding the evidence in this case and decided that the exclusionary rule did not apply. It based its decision on Nardinger's behavior. Specifically, the Court noted that Nardinger consulted with the United States Attorney's Office in deciding which documents the government would seek to seal, he verbally described to Franz the items to be searched for and seized when executing

[772 F.3d 141]

the warrant, and he allowed Franz to be present during the search. The Court also noted that the warrant was the first that Nardinger had ever prepared or executed. Looking at the totality of the circumstances, the Court determined that Nardinger had no intention to wrongfully conceal the purpose of the search and that the decision to withhold the attachments was a “reasonable misunderstanding” based in part on unclear language in the sealing order. Therefore, the Court concluded, no appreciable deterrent effect would be gained by applying the exclusionary rule.

Franz challenged the Herrick Warrant based on a lack of particularity and probable cause, and he argued that it was tainted by the problems with the Nardinger Warrant. The District Court ruled that the Herrick Warrant appeared valid on its face and that, even if the Nardinger Warrant were invalid, the exclusionary rule did not require suppression of evidence obtained pursuant to the Herrick Warrant. Importantly, Franz's motion to suppress did not include the argument he now advances on appeal: namely, that the government's failure to provide Franz with a copy of the Herrick Warrant and an inventory until thirty-one months after it was executed violated his due process rights and Rule 41 of the Federal Rules of Criminal Procedure. Franz advanced that argument in a motion for reconsideration, which the District Court denied.

D. Trial

Franz's trial began on February 11, 2013. The government presented the two digital images found on Franz's external hard drive: the 202.jpg image, proffered as to the receipt charge; and the 196.jpg image, proffered as to the possession charge. Donald Justin Price testified for the government as an expert witness in computer forensics. He stated that he found a deleted internet browser history showing that a user who logged in as “Robert Franz” viewed the 202.jpg image on the internet (App. at 776–78, 807), and later viewed it on Franz's computer in a folder named “Downloads” (App. at 778–80). Price explained that the 202.jpg image was also “found in a folder named ‘Internet Downloads 14’ ” on Franz's external hard drive. (App. at 770.) He further testified that an external hard drive would not automatically name folders or files or assign them numbers. On cross-examination, defense counsel elicited testimony from Price that, in theory, the image file could...

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