United States v. Welch, No. 15-1993 (8th Cir. 2016)
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Defendant appealed his conviction for receiving, attempting to receive, and accessing with intent to view child pornography. The court concluded that the notice given defendant failed to comport with Federal Rule of Criminal Procedure 41(f) because defendant was not given a timely copy of the Network Investigative Technique (NIT) warrant and the notice provided by the government was insufficient. The court further concluded that the district court's finding that any Rule 41 violation was not due to reckless disregard of proper procedure was not clearly erroneous. Moreover, there is no evidence of prejudice to defendant. Accordingly, the
delayed notice to defendant of the NIT warrant did not violate the Fourth Amendment and so did not warrant suppression of evidence obtained from it. Finally, the court concluded that the district court did not violate defendant's rights under the Confrontation Clause of the Sixth Amendment by sustaining the government's hearsay objection to his use of an affidavit during cross-examination of a witness where the affidavit contained out-of-court statements made by the agent, and defendant sought to offer them for the truth of the matters asserted. Therefore, the court affirmed the convictions.
Court Description: Beam, Author, with Riley, Chief Judge, and Kelly, Circuit Judge] Criminal case - Criminal law. The notice given defendant concerning a Network Investigative Technique warrant was untimely and insufficient under Fed. R. Crim. P. 41; this procedural violation was not due to the investigating agencies' reckless disregard of the proper procedures and did not prejudice defendant; as a result, the delayed notice of the Network Investigative Technique warrant did not violate the Fourth Amendment and did not require suppression of the evidence; the district court did not err in sustaining the government's objection to defendant's attempt to cross-examine a government law enforcement agent through an affidavit as it contained out-of-court statements made by an agent and defendant sought to admit the hearsay as for the truth of the matters asserted.
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