United States v. Boles

914 F.3d 95
CourtCourt of Appeals for the Second Circuit
DecidedJanuary 25, 2019
DocketDocket No. 17-1138-cr; August Term 2017
StatusPublished
Cited by63 cases

This text of 914 F.3d 95 (United States v. Boles) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Boles, 914 F.3d 95 (2d Cir. 2019).

Opinion

Chin, Circuit Judge:

In this case, defendant-appellant Donald Ray Boles was convicted in the United States District Court for the District of Vermont, following a jury trial, of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). On April 17, 2017, the district court sentenced him principally to 120 months' incarceration and a ten-year term of supervised release. On appeal, he contends that the district court erred in denying his motion to suppress evidence obtained in a search of his home pursuant to a warrant. He raises other issues relating to his trial and sentence. We affirm the conviction and sentence, except that we vacate the "risk" condition of his supervised release and remand in that respect only.

BACKGROUND

A. The Facts1

In 2001, in an earlier case, Boles pleaded guilty to possession of child pornography, *100also in the U.S. District Court for the District of Vermont. The court (Sessions, J .) sentenced him to 15 months in prison and two years' supervised release. Boles served his prison term and completed his supervised release on August 8, 2004.

In January 2010, the Innocent Images Operations Unit (the "IIOU") of the Federal Bureau of Investigation (the "FBI") investigated the distribution of child pornography via an online message board called "Girls.Forumcircle.com." The IIOU investigation revealed that the message board was password-protected, had around 65 members, and was utilized to trade both illegal child pornography and legal "child erotica" (images of children that are not sexually explicit but that may be "sexually arousing to a given individual," see United States v. Martin , 426 F.3d 68, 79 (2d Cir. 2005) ). The investigation further revealed that a user named "drb05" was a member of Girls.Forumcircle.com and was linked to the email address "drb0505@hotmail.com."

Between August and November 2009, the administrator of Girls.Forumcircle.com posted messages that users' accounts would be deleted if they did not post photos or videos on the forum by November 30. On November 30, 2009, user drb05 posted 13 images of child erotica (not child pornography) depicting a young girl in sexually suggestive poses. User drb05 also posted two comments on the message board indicating a sexual interest in young girls: one in response to other users' posts of child erotica on November 29 and one accompanying drb05's post of child erotica on November 30.

On July 19, 2010, the IIOU served a subpoena on Microsoft. The responsive materials revealed that "drb0505@hotmail.com" was associated with a "Don B" in "Vermont, 05301." The materials also revealed a log of IP addresses for recent logins for drb0505@hotmail.com. On August 4, 2010, the IIOU subpoenaed internet service provider FairPoint Communications ("FairPoint") requesting information about subscribers associated with the IP addresses obtained from Microsoft, but FairPoint responded that it could not link IP addresses to specific subscribers.

During its investigation, the IIOU also operated an FBI undercover website that advertised access to free child pornography. The "home page" of the website made clear that its purpose was to share child pornography. The home page also contained a login field that required a unique password to access the rest of the website. Users obtained unique passwords by responding to a personal email advertisement sent undercover by the FBI. Once a user entered the unique password, the user was taken to the "landing page," which listed and described free child pornography videos available to view or download. When a user clicked on the "download" button for any of these videos, the website recorded the user's IP address, video sample number, and the number of downloads attempted, but no child pornography was actually made available. The landing page also included a link to a "paid area," where users could ostensibly pay to view a live stream of child pornography from Eastern Europe.

On September 2, 2010, the FBI sent such an email to drb0505@hotmail.com. On September 6, 2010, a user from IP address 72.92.136.14 accessed the home page of the undercover website and entered the unique password sent to drb0505@hotmail.com. After arriving at the landing page, however, this user did not attempt to view or download any of the *101advertised child pornography videos or access the "paid area" of the undercover website. At some point after sending the first email, an agent sent a new email to drb0505@hotmail.com, but the user did not respond. Using this information, the IIOU again served a subpoena upon FairPoint requesting the information of any subscribers associated with the IP address 72.92.136.14, but FairPoint again stated that it could not link subscribers to IP addresses.

Nearly one year later, on July 21, 2011, FBI Special Agent Jeffrey Alford sent an email to FBI Special Agent Christopher Hughes regarding an application for a warrant to search Boles's residence, as Boles was the suspected owner of drb0505@hotmail.com. In this email, Alford asked whether there had been recent efforts to reach out to Boles regarding the undercover website, acknowledging that "I might otherwise now have a 'staleness' issue." J. App. 67. Hughes responded that he had sent a new email but "[Boles] did not respond to the new request -- there may be a staleness issue with this at this point but it's worth seeing if the AUSA will go for it." J. App. 69. On August 19, 2011, the agents confirmed from a subpoena served upon eBay that drb0505@hotmail was operated by Boles, and the subpoena also revealed Boles's home address.

On August 25, 2011, the agents applied for a warrant to search and seize computer evidence from Boles's residence. The district court (Sessions, J .) issued the warrant the same day, finding that probable cause supported the request. The agents executed the warrant on September 6, 2011. More than 100 images of child pornography were discovered on Boles's computer and hard drives.

B. Proceedings Below

On July 15, 2014, Boles was charged with possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). He was ultimately tried on a second superseding indictment (the "Indictment") that charged three counts: one count of possessing child pornography and two counts of access with intent to view child pornography, all in violation of 18 U.S.C. § 2252(a)(4)(B).

On December 22, 2014, Boles moved to suppress the seized evidence on the basis that the warrant was not supported by probable cause and the information in the affidavit was stale when the warrant was issued.

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914 F.3d 95, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-boles-ca2-2019.