United States v. Restitullo, 112719 FED3, 17-3105

Docket Nº:17-3105
Opinion Judge:Porter, Circuit Judge.
Party Name:UNITED STATES OF AMERICA v. FELIX RESTITULLO, Appellant
Judge Panel:Before: GREENAWAY, JR., PORTER, and GREENBERG, Circuit Judges
Case Date:November 27, 2019
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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UNITED STATES OF AMERICA

v.

FELIX RESTITULLO, Appellant

No. 17-3105

United States Court of Appeals, Third Circuit

November 27, 2019

NOT PRECEDENTIAL

Submitted Under Third Circuit L.A.R. 34.1(a) October 25, 2019

On Appeal from the United States District Court for the District of New Jersey (D.C. Criminal Action No. 15-cr-00394-001) District Judge: Hon. William H. Walls

Before: GREENAWAY, JR., PORTER, and GREENBERG, Circuit Judges

OPINION [*]

Porter, Circuit Judge.

Felix Restitullo was convicted of one count of production of child pornography, in violation of 18 U.S.C. § 2251(a), and one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). The District Court sentenced him to a term of imprisonment and ordered him to pay $312, 000 in restitution. Restitullo raises four issues on appeal. The first challenges the denial of Restitullo's motion to suppress. The next two concern evidence that the District Court admitted at trial, and the last one involves the amount of restitution. But all his claims lack merit, so we will affirm.

I

Restitullo lived in an apartment in Jersey City. He possessed an extensive child pornography collection, which included 3, 114 pictures and 354 videos. Restitullo stored his collection on two hard drives, a thumb drive, a memory card, and DVDs.

He also produced child pornography. In creating his pornography, Restitullo abused his six-year old niece. His niece told a psychologist that he engaged in sexual acts with her. She described those sex acts in graphic detail to the psychologist.

The police soon closed in on Restitullo. In March 2014, allegations surfaced that Restitullo abused two minors. The police interviewed the minors. After the interviews, the police decided to arrest Restitullo. Officers arrived at his apartment to arrest him; Restitullo was not present, so the officers secured the apartment. An officer began drafting a warrant application to search the apartment.

That same day, the police arrested Restitullo. The police began interrogating Restitullo, but he invoked his right to counsel. During a transfer to a different cell, Restitullo's interrogation was reinitiated. During the second interrogation, Restitullo consented to a search of his apartment and made other statements. Because of Restitullo's consent, the police searched his apartment without ever filing the already-drafted warrant application. During the search, the police recovered additional evidence of Restitullo's criminal conduct.

Soon after, the government indicted Restitullo. Before trial, Restitullo moved to suppress both his statements made during the second interrogation and the evidence from his apartment. The District Court suppressed Restitullo's statements from the second interrogation, but it declined to suppress the evidence from Restitullo's apartment. To admit the evidence, the District Court relied on the so-called "inevitable discovery" doctrine.

After a seven-day trial, the jury found Restitullo guilty. Restitullo raised many objections during trial, but only two of his objections under Federal Rule of Evidence 403 are at issue. First, he objected to the psychologist testifying about the abuse of Restitullo's niece. Restitullo also objected to the admission of the second of two videos from his collection of child pornography.

Restitullo was sentenced to 480 months' imprisonment. The government requested that he pay $312, 000 in restitution: $150, 000 to his niece and $9, 000 to each of the other eighteen victims identified in his pornography collection. The District Court accepted the government's recommendation, ordering Restitullo to pay $312, 000 in restitution. Restitullo appeals.

II

The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291.

III

Restitullo appeals the District Court's decisions in three ways. First, he complains that the District Court erred by denying his motion to suppress. Second, he challenges two of the District Court's Rule 403 rulings. And lastly, he asserts that the District Court's restitution award is excessive. For the following reasons, none of his arguments will prevail.

A

First, Restitullo challenges the District Court's denial of his motion to suppress the evidence from his apartment. The District Court concluded that the police violated Restitullo's rights by interrogating him after he invoked his right to counsel.1 But the District Court still admitted the evidence from Restitullo's apartment under the inevitable discovery doctrine. We review the factual findings in a denial of a motion to suppress for clear error, and we exercise plenary review over a district court's application of law to fact. United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002).

The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]" U.S. Const. amend. IV. The Fourth Amendment "contains no provision expressly precluding the use of evidence obtained in violation of its commands." Arizona v. Evans, 514 U.S. 1, 10 (1995). But the Supreme Court's "decisions establish an exclusionary rule that, when applicable, forbids the use of improperly obtained evidence at trial." Herring v. United States, 555 U.S. 135, 139 (2009) (citation omitted).

But "that a Fourth Amendment violation occurred-i.e., that a search or arrest was unreasonable-does not necessarily mean that the exclusionary rule applies." Id. at 140 (citation omitted). In other words, exceptions to the exclusionary rule exist. See, e.g., Davis v. United States, 564 U.S. 229, 244 (2011) (noting the existence of "established exceptions to the exclusionary rule").

One such exception is the "inevitable discovery doctrine." Nix v. Williams, 467 U.S. 431, 444 (1984). "If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means … then the deterrence rationale has so little basis that the evidence should be received." Id. at 444; see United States v. Vasquez De Reyes, 149 F.3d 192, 195 (3d Cir. 1998). "The rule so applied permits the [district] court to balance the public interest in providing a jury with all...

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