United States v. DiTomasso, No. 17-1699 (2d Cir. 2019)Annotate this Case
The Second Circuit affirmed defendant's conviction of producing child pornography, and transporting and distributing child pornography. The court held that defendant's contention that the district court erred in ruling that the National Center for Missing and Exploited Children (NCMEC) Reports 1558963 and 1560137, generated from the two AOL complaints resulting from the challenged searches, were admissible based on its finding that he had consented to AOL's searching his emails, provides no basis for relief, regardless of whether there was consent, for the searches of those emails played no material role in the proceedings. Accordingly, the district court did not err by denying defendant's motion to suppress.
The court also held that there was no error in the district court's conclusion that defendant could not establish that counsel's decision to not call a witness constituted deficient performance and, even if there was error, there was no reasonable probability that the outcome of defendant's trial would have been any different. Therefore, defendant's claim of ineffective assistance of counsel failed to satisfy either prong of Strickland v. Washington.