United States v. Rosenow

Decision Date27 April 2022
Docket Number20-50052
PartiesUnited States of America, Plaintiff-Appellee, v. Carsten Igor Rosenow, AKA Carlos Senta, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

United States of America, Plaintiff-Appellee,
v.
Carsten Igor Rosenow, AKA Carlos Senta, Defendant-Appellant.

No. 20-50052

United States Court of Appeals, Ninth Circuit

April 27, 2022


Argued and Submitted June 8, 2021 Pasadena, California Filed April 27, 2022

Amended October 3, 2022

Appeal from the United States District Court No. 3:17-cr-03430-WQH-1 for the Southern District of California William Q. Hayes, District Judge, Presiding

Timothy A. Scott (argued), Nicolas O. Jimenez, and Marcus S. Bourassa, McKenzie Scott APC, San Diego, California, for Defendant-Appellant.

Mark R. Rehe (argued), Assistant United States Attorney; Daniel E. Zipp, Chief, Appellate Section, Criminal Division; Randy S. Grossman, United States Attorney; United States Attorney's Office, San Diego, California; for PlaintiffAppellee.

Gregory L. Doll and Jamie O. Kendall, Doll Amir &Eley LLP, Los Angeles, California, for Amicus Curiae Oath Holdings Inc.

Mahesha P. Subbaraman, Subbaraman PLLC, Minneapolis, Minnesota, for Amicus Curiae Restore the Fourth, Inc.

Before: Susan P. Graber, Consuelo M. Callahan, and Danielle J. Forrest, Circuit Judges.

ORDER AND AMENDED OPINION

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SUMMARY[*]

Criminal Law

The panel amended its Opinion filed April 27, 2022, affirming a conviction and sentence on one count of attempted sexual exploitation of a child, 18 U.S.C. § 2251(c), and one count of possession of sexually explicit images of children, 18 U.S.C. § 2252(a)(4)(B), in a case in which the defendant was arrested returning from the Philippines where he engaged in sex tourism involving minors.

The defendant arranged these illegal activities through online messaging services provided by electronic service providers (ESPs) Yahoo and Facebook. His participation in foreign child sex tourism was initially discovered after Yahoo investigated numerous user accounts that Yahoo suspected were involved in child exploitation.

The defendant argued that the evidence seized from his electrical devices upon his arrest should have been suppressed because Yahoo and Facebook were acting as government agents when they searched his online accounts. The panel rejected the defendant's arguments (1) that two federal statutes-the Stored Communications Act and the Protect Our Children Act-transformed the ESPs' searches into governmental action, and (2) that the government was sufficiently involved in the ESPs' searches of the defendant's accounts to trigger Fourth Amendment protection.

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The defendant argued that the government's requests pursuant to 18 U.S.C. § 2703(f) directing Yahoo and Facebook to preserve records related to his private communications were an unconstitutional seizure of his property and, as a result, the evidence used to convict him was improperly obtained and his convictions should be reversed. The panel declined to reach the question of whether these preservation requests implicate the Fourth Amendment, because even assuming that they do, there is no basis for suppression given that the record establishes that the ESPs' preservation of the defendant's digital data had no effect on the government's ability to obtain the evidence that convicted him.

The defendant argued that because subpoenas to Facebook for the defendant's basic subscriber and IP information under 18 U.S.C. § 2703(c)(2) were issued without a warrant supported by probable cause, they were unconstitutional searches. The panel rejected this argument because the defendant did not have a legitimate expectation of privacy in the limited digital data sought in the government's subpoenas, given that the subpoenas did not request any communication content from the defendant's accounts and the government did not receive any such content in response to the subpoenas.

The defendant argued that the government's search warrant affidavit failed to establish probable cause because it did not include any images of child pornography or any reasonable factual descriptions of such images. Rejecting this argument, the panel concluded that the affidavit-which described Yahoo's internal investigation and the resulting findings, as well as the information Facebook provided to the National Center for Missing and Exploited Children after searching the defendant's accounts-established a fair

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probability that child pornography would be found on the defendant's electronic devices.

The defendant argued that the jury was not properly instructed on the § 2251(c) count-attempted sexual exploitation of a child-because the instruction did not state that the "purpose" element of § 2251(c) was satisfied only if the government proved that he would not have acted but for his desire to produce a visual depiction of the sexually-explicit conduct. The panel saw no basis to conclude that "purpose," as used in § 2251(c), has a causal or results requirement.

The defendant, who was convicted of a single count of possession of child pornography involving the exploitation of several child victims, argued that the district court improperly sentenced him as if he had been convicted on multiple possession counts. The district court increased his base offense level pursuant to the Sentencing Guidelines' multiple-count instruction set forth in U.S.S.G. §§ 2G2.1(d)(1), 2G2.2(c)(1), which applies where more than one minor is exploited in an offense in which the defendant caused a minor to engage in sexually explicit conduct for the purpose of producing child pornography. Distinguishing United States v. Chilaca, 909 F.3d 289 (9th Cir. 2018), the panel wrote that there was no impermissible double counting here, as the enhancements were premised on separate exploitative acts.

In an amended partial dissent, Judge Graber parted ways with the majority only as to the question whether, in conducting its searches of the defendant's chat messages, Yahoo was acting as an instrument or agent of the government. Judge Graber applied the two-part test set forth in United States v. Young, 153 F.3d 1079 (9th Cir. 1998) (per

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curiam). As to the first prong, she wrote that the government knew of and acquiesced in Yahoo's intrusive conduct, and she rejected the suggestion that this prong would be met only if Yahoo's conduct had been illegal. As to the second prong, she wrote that Yahoo's motivation to conduct the searches was intertwined with, and dependent on, the government's enforcement of criminal laws.

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The Opinion filed on April 27, 2022, is amended as follows:

On slip opinion page 11

Delete and insert .

On slip opinion page 21

Delete .

On slip opinion page 28

Delete and insert .

On slip opinion page 28

After insert .

On slip opinion page 29

Delete

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interfere with Rosenow's possessory interests in his digital data because they did not prevent Rosenow from accessing his account. Nor did they provide the government with access to any of Rosenow's digital information without further legal process. It also is worth noting that Rosenow consented to the ESPs honoring preservation requests from law enforcement under the ESPs' terms of use. Thus, we agree with the district court that these requests did not amount to an unreasonable seizure in violation of the Fourth Amendment.>.

On slip opinion page 29

Insert

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information disclosed through CyberTips from the NCMEC.

Additionally, there is no evidence in the record indicating that the government ever received any preserved copies of Rosenow's digital data from Yahoo. And although Facebook did produce Rosenow's digital data in response to a separate warrant, it was the month after Rosenow was arrested and searched upon returning from the Philippines. Given this timeline of events, any data that the government received from Facebook following issuance of a preservation request could not have resulted in the evidence that was previously obtained from Rosenow. Moreover, Rosenow has not demonstrated that the data that Facebook ultimately produced to the government came from a copy of his data maintained in response to a preservation request or that Rosenow deleted any of the information in his account such that it only could have come from a preserved copy.

Accordingly, the record establishes that the ESPs' preservation of Rosenow's digital data had no effect on the government's ability to obtain the evidence that convicted him. And because Rosenow cannot show a causal connection to the government's preservation requests that would warrant suppression, we decline to reach the merits of his constitutional challenge to those requests>.

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On slip opinion page 29

After insert Footnote 7, stating .

The Petitions for Rehearing and Rehearing En Banc are otherwise DENIED, and no further petitions for rehearing will be accepted.

OPINION

FORREST, CIRCUIT JUDGE.

Defendant Carsten Rosenow was arrested returning from the Philippines, where he engaged in sex tourism involving minors. Rosenow arranged these illegal activities through online messaging services provided by Yahoo and Facebook, and his participation in foreign child sex tourism was initially discovered after Yahoo investigated numerous user accounts that Yahoo suspected were involved in child sexual exploitation. Following a jury trial, Rosenow was

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convicted on one count of attempted sexual exploitation of a child, 18 U.S.C. § 2251(c), and one count of possession of sexually explicit images of children, 18 U.S.C. § 2252(a)(4)(B).

On appeal, Rosenow argues that the evidence seized from his electronic devices upon his arrest should have been suppressed because, among other reasons, Yahoo and Facebook (which also searched his accounts on its platform) were government actors when they investigated his accounts without a warrant and reported the evidence of child sexual exploitation that...

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