USA V. CARSTEN ROSENOW, No. 20-50052 (9th Cir. 2022)
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Defendant was arrested returning from the Philippines, where he engaged in sex tourism involving minors. He was convicted and sentenced on one count of attempted sexual of a child and one count of possession of sexually explicit images of children. Defendant arranged these activities through online messaging services provided by electronic service providers ("ESPs") Yahoo and Facebook. On appeal, Defendant argued that the evidence seized from his electronic devices should have been suppressed because, among other reasons, Yahoo and Facebook were government actors and violated his Fourth Amendment rights when they investigated his accounts without a warrant and reported the evidence. He further argued that the district court improperly instructed the jury on the required mental state for his sexual exploitation charge and miscalculated the sentence on his possession charge.
The Ninth Circuit affirmed Defendant’s conviction and sentence. The court rejected Defendant’s arguments and held that the government’s requests that Yahoo preserve records related to Defendant’s private communications did not amount to an unreasonable seizure. Further, Defendant did not have a legitimate expectation of privacy in the limited digital data sought in the government’s subpoenas. The court also held that the affidavit established a fair probability that child pornography would be found on the defendant’s electronic devices. Finally, the court held that there was no impermissible double counting in this case, as the enhancements were premised on separate exploitative acts.
Court Description: Criminal Law. The panel affirmed 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. UNITED STATES V. ROSENOW 3 The defendant argued that he had a right to privacy in his digital data and that the government’s preservation requests and subpoenas, submitted without a warrant, violated the Fourth Amendment. The panel disagreed. The panel held (1) the government’s requests pursuant to 18 U.S.C. § 2703(f) that Yahoo preserve records related to the defendant’s private communications did not amount to an unreasonable seizure; and (2) the defendant did not have a legitimate expectation of privacy in the limited digital data sought in the government’s subpoenas, where 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 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. 4 UNITED STATES V. ROSENOW 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. Judge Graber dissented 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 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. UNITED STATES V. ROSENOW 5
The court issued a subsequent related opinion or order on October 3, 2022.
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