United States v. Grisanti

• Decision Date: 22 November 2019
• Docket Number: Nos. 18-2993 & 19-1576,s. 18-2993 & 19-1576
• Citation: 943 F.3d 1044
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Adrian GRISANTI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

943 F.3d 1044

UNITED STATES of America, Plaintiff-Appellee,

v.Adrian GRISANTI, Defendant-Appellant.

Nos. 18-2993 & 19-1576

United States Court of Appeals, Seventh Circuit.

Argued October 2, 2019

Decided November 22, 2019

Brian L. Reitz, Bradley P. Shepard, Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Indianapolis, IN, for Plaintiff-Appellee.

Elizabeth A. Edmondson, Olivia G. Hoffman, Attorneys, JENNER & BLOCK LLP, New York, NY, for Defendant-Appellant.

Before Bauer, Ripple, and Hamilton, Circuit Judges.

Hamilton, Circuit Judge.

Appellant Adrian Grisanti was convicted of child-pornography offenses and destruction of evidence. On appeal, he challenges the denial of his motion to suppress evidence and the length of his sentence. We affirm on both issues. We have already held that the good-faith exception applies to the same warrant at issue in this case, which authorized the use of a sophisticated technique to identify users of a child-pornography website. See United States v. Kienast , 907 F.3d 522, 529 (7th Cir. 2018). Grisanti’s reasons for reconsidering Kienast are not persuasive. Also, his sentence was not unreasonable and the district court did not make any procedural error.

I. Factual Background and Procedural History

The Federal Bureau of Investigation gained control of a child-pornography website called "Playpen." The FBI kept Playpen running for two weeks from a server in Newington, Virginia, to locate people who distributed and viewed child pornography on the site. Because Playpen allowed visitors to use it anonymously, the FBI applied to a magistrate judge in the Eastern District of Virginia for a warrant authorizing the use of a "Network Investigative Technique," or "NIT," to identify the site’s users. When a user logged into Playpen, the NIT installed malware on the user’s computer and relayed identifying information about that computer back to the FBI’s server in Virginia. An affidavit supporting the warrant application explained this to the magistrate judge.

Exactly where these searches would occur was not quite as clear. The application said that the property to be searched was "located in the Eastern District of Virginia." The application’s "Place to be Searched" addendum stated, though, that the NIT would be "deployed" on a server "located at a government facility in the Eastern District of Virginia" to obtain information from "activating computer[s]"—those of "any user" who logged into Playpen. And the supporting affidavit added that the NIT "would cause an activating computer—wherever located—to send" information to the Virginia server. Based on these representations, the magistrate judge issued a warrant authorizing the use of the NIT to search property "located in the Eastern District of Virginia" to obtain information from the computers of Playpen users.

When Grisanti logged into Playpen from his work computer in Indiana, the NIT malware was installed and sent identifying information to the FBI. Using that information, the FBI obtained additional search warrants in Indiana and found evidence of child pornography on Grisanti’s work computer. Before the FBI could complete its investigation, however, Grisanti learned of the inquiry. He destroyed the hard drive and a flash drive. He was charged in the Southern District of Indiana with destruction of evidence and several child-pornography offenses. See 18 U.S.C. §§ 1519, 2252A(a)(2)(A), & 2252A(a)(5)(B).

Grisanti moved to suppress all evidence obtained as a result of the NIT warrant. Judge Pratt agreed with him that the warrant was invalid because the magistrate judge had exceeded her jurisdiction by authorizing searches outside of the Eastern District of Virginia, in violation of the Federal Magistrates Act, 28 U.S.C § 636(a)(1), and the version of Federal Rule of Criminal Procedure 41(b) in effect when the warrant was issued in 2015. Judge Pratt denied the motion to suppress, however, concluding that the FBI agents had relied on the warrant in good faith.¹

A jury found Grisanti guilty of all charges. The Presentence Report proposed a Sentencing Guideline range of 108 to 135 months in prison. Judge Pratt later adopted that calculation without objection. In Grisanti’s sentencing memorandum, he requested a 78-month sentence, arguing that he had an "addiction" to child pornography and needed treatment. He also cited the "Child Pornography Offender Risk Tool," the "Correlates of Admission of Sexual Interest in Children" assessment, and other research to argue that he is unlikely to recidivate because he is "white, employed, and had no previous criminal history," and had not committed any so-called "contact offenses."²

At the sentencing hearing, Grisanti’s attorney argued that Grisanti had "compartmentalized" his criminal behavior and was otherwise a "good, loving husband" and "caring employee." The judge raised her concern that Grisanti had defended himself by blaming others and still failed to take full responsibility. Even though Grisanti accepted that he had "an addiction or a criminal problem," the judge noted, he would not be able to "get better" if he refused to accept that he had an "issue" that "needs treatment"—he would be "just like" another defendant whom the judge had sentenced earlier that day for his second conviction for child pornography. The judge also questioned Grisanti’s argument about low risk of recidivism and specifically whether race had "anything to do with being a child pornographer." The judge asked further if a psychologist had assessed Grisanti. Defense counsel answered that Grisanti had not been evaluated and agreed with the judge that, "for him to be in a position to not reoffend, yes, he has to be prepared to get help and treatment."

The court then heard the remainder of counsel’s arguments, Grisanti’s allocution, and the government’s argument for a sentence of 135 months, at the high end of the guideline range. The judge sentenced Grisanti to 120 months in prison. In explaining the decision, she emphasized the seriousness of the crime: Grisanti possessed more than 600 images of child pornography—some involving prepubescent children—and then destroyed the evidence to thwart the investigation. He knew his actions were wrong, the judge continued, but if he had a problem, he never sought treatment for it and instead blamed others when he was caught. Finally, the judge agreed with Grisanti that he "could fulfill much of his untapped potential and move on with his life" if he got some treatment.

II. The Motion to Suppress and the Good-Faith Exception

The NIT warrant at issue here has led to many prosecutions and has been attacked by defendants across the country. Grisanti joins them, challenging the denial of his motion to suppress the evidence obtained through its use. He acknowledges that in United States v. Kienast , 907 F.3d 522, 529 (7th Cir. 2018), we held that the good-faith exception applies to agents who relied on this very warrant. Ten other circuits have agreed with that conclusion: United States v. Levin , 874 F.3d 316, 321–24 (1st Cir. 2017) ; United States v. Eldred , 933 F.3d 110, 118–21 (2d Cir. 2019) ; United States v. Werdene , 883 F.3d 204, 215–18 (3d Cir. 2018) ; United States v. McLamb , 880 F.3d 685, 689–91 (4th Cir. 2018) ; United States v. Ganzer , 922 F.3d 579, 587–90 (5th Cir. 2019) ; United States v. Moorehead , 912 F.3d 963, 967–71 (6th Cir. 2019) ; United States v. Horton , 863 F.3d 1041, 1051–52 (8th Cir. 2017) ; United States v. Henderson , 906 F.3d 1109, 1117–20 (9th Cir. 2018) ; United States v. Workman , 863 F.3d 1313, 1317–21 (10th Cir. 2017) ; United States v. Taylor , 935 F.3d 1279, 1282 (11th Cir. 2019).

Grisanti argues, however, that the good-faith exception should be deemed categorically inapplicable to warrants that are issued "without jurisdiction" and thus, he contends, "void ab initio ." In Kienast , 907 F.3d at 528, we found that this argument is incompatible with the Supreme Court’s decision in Herring v. United States , 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009), which applied the good-faith exception to a search based on a warrant that already had been recalled. Accord, Eldred , 933 F.3d at 120 (applying Herring to the NIT warrant); Werdene , 883 F.3d at 216 (same); Ganzer , 922 F.3d at 587 (same); Moorehead , 912 F.3d at 969 (same); Horton , 863 F.3d at 1051 (same); Henderson , 906 F.3d at 1119 (same); Workman , 863 F.3d at 1318 & n.1 (same); Taylor , 935 F.3d at 1290–91 (same). Even if the magistrate judge lacked jurisdiction or some other degree of authority to issue a warrant that reached beyond the Eastern District of Virginia, we must consider whether the good-faith exception applies.

"[W]hen an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope," the good-faith exception generally applies even if the warrant turns out to be invalid. United States v. Leon , 468 U.S. 897, 920, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Suppression remains an appropriate remedy if the officer misled the issuing judge with knowingly false information or reckless disregard of the truth, or if a reasonable officer would know from the face of the warrant that it was invalid or that the search goes beyond its scope. Id. at 923, 104 S.Ct. 3405 ; see also Groh v. Ramirez , 540 U.S. 551, 564–65 & n.8, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004) (denying officer qualified immunity where warrant omitted items to be seized).³

In Kienast , the defendants argued that the good-faith exception should not apply because a well-trained officer would have known that the magistrate judge lacked authority to authorize searches of computers across the country and therefore would have recognized that the NIT warrant was facially invalid. We rejected that argument. 907 F.3d at 528. Grisanti concedes that if the warrant invalidly authorized a nationwide search, then the magistrate judge is to blame. He argues, though, that the FBI is "not...