United States v. Peterson

• Decision Date: 03 May 2021
• Docket Number: No. 19-10246,19-10246
• Citation: 995 F.3d 1061
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kyle Evan PETERSON, aka Tyler Allen Fish, aka Tyler Allan Fisk, aka Kyle Petersen, aka Kyle E. Petersen, aka Kyle Peterson, aka Kyleevan Peterson, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

995 F.3d 1061

UNITED STATES of America, Plaintiff-Appellee,

v.Kyle Evan PETERSON, aka Tyler Allen Fish, aka Tyler Allan Fisk, aka Kyle Petersen, aka Kyle E. Petersen, aka Kyle Peterson, aka Kyleevan Peterson, Defendant-Appellant.

No. 19-10246

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 17, 2020 Pasadena, California

Filed May 3, 2021

Devin Burstein (argued), Warren & Burstein, San Diego, California, for Defendant-Appellant.

Brian W. Enos (argued), Assistant United States Attorney; Camil A. Skipper, Appellate Chief; McGregor W. Scott, United States Attorney; United States Attorney's Office, Fresno, California; for Plaintiff-Appellee.

Before: Johnnie B. Rawlinson, Danielle J. Hunsaker, and Lawrence VanDyke, Circuit Judges.

RAWLINSON, Circuit Judge:

Appellant-Defendant Kyle Peterson (Peterson) appeals the district court's order denying his motion to withdraw his guilty plea, contending that the district court failed to apprise him of the essential elements of his crime. He also challenges the district court's order denying his motion to suppress evidence of sexually explicit images of minors found on two separate cell phones. Because the district court committed no error, we affirm.

I. BACKGROUND

In April 2017, Peterson was released from state prison in California on parole. As a condition of his release, Peterson signed a Notice and Conditions of Parole Form (Parole Conditions) agreeing, among other conditions, that as a parolee he could be searched at "any time ... with or without a search warrant, with or without cause." Peterson also specifically agreed not to possess a cell phone with a camera, use social media sites, or possess "electronic media that depicts sexually explicit conduct." Peterson "consent[ed] to announced or unannounced examination and/or search of electronic devices to which [he had] access for the limited purpose of detecting content prohibited by your conditions of parole."

While conducting searches under the Parole Conditions, a parole agent discovered cell phones in Peterson's possession on May 23, 2017, and July 6, 2017, respectively, both of which contained sexually explicit images of minors, in violation of the terms of his parole. The parole agent seized the phones and delivered them to federal agents at Homeland Security Investigations (HSI) to conduct forensic searches of images on the phones. After each search, a California court revoked Peterson's parole. He was subsequently indicted in federal court for Receipt of Material Involving the Sexual Exploitation of Minors, in violation of 18 U.S.C. § 2252(a)(2), among other charges.

Peterson moved to suppress the evidence found during the forensic searches of the phones. The Government did not oppose Peterson's motion to suppress "with respect to HSI's forensic findings of either phone," because an officer from the California Department of Corrections and Rehabilitation (CDCR) interpreted Policy No. 81034.5 of the CDCR's Operation Manual as providing that once parole was revoked, a warrant was required to search items seized during a warrantless parole search.¹ In response, the district court entered a minute order stating: "The evidence analyzed by HSI from the cell phone searches ... that occurred on May 23 and July 6, 2017 is suppressed." However, the parole officer's "on-site previews of the phones’ contents [were] not suppressed."

The Government subsequently obtained a warrant to search both phones. The affidavit supporting the warrant application specifically informed the court of the prior forensic search of the phones and affirmed that no information from that search was used in the application. The affidavit detailed that information used in the application was derived from the parole agent's preliminary searches when the phones were initially seized and viewed by the parole agent. Following issuance of a search warrant, the phones were "reanalyzed utilizing previously captured forensic images," and child pornography was retrieved.

Peterson again moved to suppress evidence obtained from the phones. Peterson argued that his parole conditions did not "unambiguously encompass" cell phones. Peterson maintained that the illegal seizure of his cell phones during the parole searches required suppression of evidence obtained from the parole searches and evidence obtained from HSI's forensic searches pursuant to the warrant. After briefing and oral arguments, the district court denied the motion to suppress.

Following the district court's ruling, Peterson entered a conditional guilty plea to count 1, which charged Peterson with receipt of materials involving the sexual exploitation of minors. Peterson preserved his right to appeal the district court's denial of his second motion to suppress. Before accepting the guilty plea, the court reviewed the terms of the plea agreement with Peterson. Peterson confirmed that after reviewing the plea agreement with counsel, he understood and agreed to the terms of the agreement.

Before sentencing, Peterson moved to withdraw his guilty plea. Peterson argued that he was not fully informed of the essential elements of the crime of receipt of child pornography as set forth in 18 U.S.C. § 2252(a)(2), and therefore his plea was invalid. After briefing and oral arguments, the district court denied Peterson's motion. The district court then sentenced Peterson to 162 months in custody. Peterson timely filed his notice of appeal.

II. STANDARDS OF REVIEW

"We review de novo the sufficiency of a Rule 11 plea colloquy" and "a district court's denial of a motion to withdraw a guilty plea for abuse of discretion." United States v. Ross , 511 F.3d 1233, 1235 (9th Cir. 2008) (citations omitted). "We review the denial of [a defendant's] suppression motion de novo , and the district court's factual findings for clear error. ..." United States v. Johnson , 875 F.3d 1265, 1273 (9th Cir. 2017) (citation and internal quotation marks omitted).

III. DISCUSSION

A. Withdrawal of Plea

Peterson contends that he was not fully informed of the essential elements of the crime of receipt of child pornography. More specifically, Peterson asserts that the district court failed to explain the Government's burden to prove that he knew the visual depiction was of a minor and that he knew the visual depiction showed the minor engaged in sexually explicit conduct.

In United States v. Nostratis , 321 F.3d 1206, 1208 (9th Cir. 2003), interpreting Rule 11(d)(2)(B) of the Federal Rules of Criminal Procedure, we held that "[p]rior to sentencing, a defendant can withdraw his guilty plea only by showing a fair and just reason for withdrawal." (citations omitted). "[T]he decision to allow withdrawal of a plea is solely within the discretion of the district court." Id. (citations omitted).

In Bradshaw v. Stumpf , 545 U.S. 175, 182–83, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005), the United States Supreme Court held that a defendant's "guilty plea would indeed be invalid if he had not been aware of the nature of the charges against him, including the elements of the ... charge to which he pleaded guilty." The Court reasoned that "[a] guilty plea operates as a waiver of important rights, and is valid only if done voluntarily, knowingly, and intelligently, with sufficient awareness of the relevant circumstances and likely consequences." Id. at 183, 125 S.Ct. 2398 (citation and internal quotation marks omitted). "Where a defendant pleads guilty to a crime without having been informed of the crime's elements, this standard is not met and the plea is invalid." Id . (citation omitted).

Nevertheless, in Bradshaw , the Court rejected the argument that "the judge must himself explain the elements of each charge to the defendant on the record." Id . Rather, Rule 11 requirements may be satisfied if the record accurately reflects explanation of the elements of the crime. In addition, the court usually may rely on representations from defense counsel "that the defendant has been properly informed of the nature and elements of the charge to which he is pleading guilty." Id . Indeed, "no specific method of advising the defendant is mandated." United States v. Rivera-Ramirez , 715 F.2d 453, 457 (9th Cir. 1983) ; see also United States v. Mancinas-Flores , 588 F.3d 677, 682 (9th Cir. 2009) (noting that "a court need not rely on the plea colloquy alone," but may rely upon "anything that appears on the record") (citation omitted); United States v. Kamer , 781 F.2d 1380, 1384 (9th Cir. 1986) (indicating that in "non-complex cases, a reading of the indictment may suffice" to inform the defendant of the nature of the charges) (citation and emphasis omitted).

Contrary to Peterson's contention, he was fully informed of the essential elements of the crime of receipt of child pornography. 18 U.S.C. § 2252 covers:

(a) Any person who ... (2) knowingly receives ... any visual depiction ... that has been mailed, or has been shipped or transported in or affecting interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution using any means or facility of interstate or foreign commerce ..., if–

(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and

(B) such visual depiction is of such conduct. ...

Count 1 of Peterson's indictment tracked this language by charging that Peterson

did knowingly receive at least one visual depiction, the producing of which involved at least one minor engaging in sexually explicit conduct and which depiction was of such conduct, as defined in Title 18, United States Code, Section 2256, and which had been shipped or transported in or affecting interstate or foreign commerce, had been sent or received using any means or facility of interstate or foreign commerce, and which contained materials which had been mailed, shipped, or transported

...