United States v. James Robert Gregg, Jr.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 9, 2019
• Docket: 18-12295
• Status: Unpublished

Opinion

Case: 18-12295 Date Filed: 05/09/2019 Page: 1 of 11

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-12295 Non-Argument Calendar ________________________

D.C. Docket No. 8:17-CR-00409-VMC-JSS-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES ROBERT GREGG, JR.,

Defendant-Appellant. ________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(May 9, 2019)

Before JORDAN, BRANCH, and JULIE CARNES, Circuit Judges.

PER CURIAM:

James Robert Gregg appeals his conviction for receiving and possessing child

pornography in violation of 18 U.S.C. § 2252(a)(2) & (b)(1) and 18 U.S.C. Case: 18-12295 Date Filed: 05/09/2019 Page: 2 of 11

§2252(a)(4)(B) & (b)(2), respectively. He alleges error in the denial of his motion

to suppress evidence obtained from a search of his cell phone and the denial of a

one-level sentencing reduction under U.S.S.G. § 3E1.1(b). After careful

consideration of the record and the parties’ briefs, we affirm.

I

Mr. Gregg’s arrest and subsequent conviction stem from an investigation

initiated by Homeland Security Investigations in October of 2015 into an internet-

based video conferencing application that was being used for sharing and viewing

child pornography. The application enables people to join virtual rooms, in which

participants can view each other via webcam and share images or videos from their

personal computer desktops. The videos, images, and live content are represented

as small tiles on each user’s display, which can be enlarged for viewing by any

individual in the room. No one user can see what any other user is viewing at a

given time, but their user names are displayed, and they can communicate with one

another via a chat function in the application.

In the course of the investigation, Special Agent Austin Berrier obtained and

compiled detailed information about users who visited rooms where child

pornography was shared, including their Internet Protocol (“IP”) addresses, the

dates, frequency, and cumulative time spent visiting the rooms, the identification

number of each room visited, and the name of the user’s Internet Service Provider

2 Case: 18-12295 Date Filed: 05/09/2019 Page: 3 of 11

(“ISP”). An individual with the user name “fla,” was observed in different rooms

livestreaming himself engaged in self-stimulation while child pornography was

available for viewing. Agent Berrier established that the user name “fla” was

connected to an ISP address in the Middle District of Florida and forwarded the

information he compiled to HSI Special Agent Tavey Garcia in Tampa, Florida, on

September 23, 2016.

On September 30, 2016, Agent Garcia and another agent visited the apartment

associated with the IP address. Mr. Gregg resided there with his girlfriend, Allison

Anderson, their young daughter, and Ms. Anderson’s teenage son. The agents

interviewed Mr. Gregg, who ultimately conceded that he had incidentally viewed

child pornography while searching for material involving adult men. He told Agent

Garcia that he accessed the application from his laptop, and consented to an

inspection of the laptop. No child pornography was found, and the agents departed

without arresting Mr. Gregg.

In late October of 2016, Agent Garcia spoke with Ms. Anderson, who said

Mr. Gregg had moved out of the apartment several weeks earlier, leaving behind

many belongings, including a cell phone and tablet. She said the laptop belonged to

her and was used mostly for work, and that Mr. Gregg used the phone and tablet.

She offered to turn both over, and they arranged to meet the following day. Agent

Garcia showed Ms. Anderson screenshots from the application of the user “fla” and

3 Case: 18-12295 Date Filed: 05/09/2019 Page: 4 of 11

Ms. Anderson confirmed that it was Mr. Gregg and that he appeared to be in the

living room of their apartment. On October 26, 2016, Ms. Anderson gave the cell

phone and tablet to Agent Garcia and told her that Mr. Gregg had always had them

on him, but the phone had broken months earlier and he began using a new one.

After the meeting, Agent Garcia began preparing a warrant application to

search the cell phone and tablet. Over one month later, on December 6, 2016, Agent

Garcia submitted an affidavit and application to a United States magistrate judge for

a warrant to search Mr. Gregg’s cell phone and tablet. The magistrate signed the

warrant on December 7, 2016, and it was executed the following day.

On August 23, 2017, a grand jury indicted Mr. Gregg on one count of

receiving child pornography in violation of 18 U.S.C. § 2252(a)(2) & (b)(1), and one

count of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B)

and (b)(2). Mr. Gregg filed a motion to suppress evidence obtained through the

search of his cell phone.

In the suppression hearing before a magistrate judge, Ms. Anderson testified

about the events that led up to Mr. Gregg moving out of the apartment and about her

access to his cell phone, both before and after he left. When they lived together, Mr.

Gregg had never prohibited her from using his phone or said anything that made her

believe she could not use it, although she never used the phone. When the phone

broke, Mr. Gregg obtained a new one and placed the broken phone in his bedside

4 Case: 18-12295 Date Filed: 05/09/2019 Page: 5 of 11

drawer. When Ms. Anderson learned about the investigation, she told Mr. Gregg to

move out and made him leave his key behind. He packed a small duffel bag of his

belongings and left, taking his new cell phone but leaving the broken one in the

bedside drawer.

Ms. Anderson also testified that, after he moved out, Mr. Gregg did not try to

retrieve the rest of his belongings and did not ask her to return his old cell phone or

tablet. She said that she had asked him to take the rest of his things out of the

apartment and he said that he would, but never scheduled a time to do so. When he

returned in November to collect his belongings, Mr. Gregg did not ask about his cell

phone or tablet but was upset when she told him that she had given them to Agent

Garcia. He asked her why she had turned the devices over but did not question her

authority to do so. Ms. Anderson gave him Agent Garcia’s phone number and told

him to direct any of his questions to her. Ms. Anderson said that she had

communicated with Mr. Gregg in the following days, but he never mentioned the

phone and tablet again.

The magistrate judge recommended denial of Mr. Gregg’s motion to suppress,

concluding in relevant part that Mr. Gregg had abandoned his cell phone and tablet

and therefore did not have an expectation of privacy in them. The district court

adopted the magistrate judge’s report in its entirety, over Mr. Gregg’s objections.

5 Case: 18-12295 Date Filed: 05/09/2019 Page: 6 of 11

Mr. Gregg entered a waiver of his right to trial by jury and a notice of

stipulated facts for a bench trial. The bench trial resulted in a guilty verdict and the

district court sentenced Mr. Gregg to 168 months’ imprisonment and 20 years of

supervised release. Mr. Gregg sought a one-level downward adjustment to his

sentence for acceptance of responsibility under U.S.S.G. § 3E1.1, which the district

court denied on the grounds that such a request must be initiated by the government.

The judgment and sentence were entered on May 30, 2018, and Mr. Gregg filed this

timely appeal.1

II

The district court denied Mr. Gregg’s motion to suppress evidence recovered

from his cell phone, finding that he lacked standing to challenge the search because

he had abandoned the phone when he moved out of the apartment and made no

subsequent effort to recover it. We affirm. 2

1 Mr. Gregg stipulated in the bench trial that more than 150 images of child pornography and 70 videos involving child pornography were found on his cell phone. He also stipulated that agents had found several downloaded applications, one of which was associated with the username “jimmythulu.” He stipulated that he used that online persona and that “jimmythulu” had sent Dropbox, video, and image links to other chat participants. Communications between that user name and other participants indicated that they were sending and receiving images and videos of child pornography. He admitted that he had obtained or viewed child pornography via the application and via the Kik Messenger Service. 2 Mr. Gregg raises several other claims that were argued before the district court, including (1) that Ms. Anderson lacked authority to consent to the search of the cell phone; (2) that law enforcement’s 42-day delay between the seizing the cell phone and obtaining the warrant unreasonably interfered with his possessory interests; (3) that the warrant was unsupported by probable cause; and (4) that the “good faith” exception would not apply to justify the unlawful search. Because we affirm the district court’s finding that Mr. Gregg abandoned the cell phone, we need not consider his remaining arguments. 6 Case: 18-12295 Date Filed: 05/09/2019 Page: 7 of 11

“We review a district court’s denial of a motion to suppress evidence as a

mixed question of law and fact, with rulings of law reviewed de novo and findings

of fact reviewed for clear error, in the light most favorable to the prevailing party in

district court.” United States v. Lindsey, 482 F.3d 1285, 1290 (11th Cir. 2007).

“Because the issue of abandonment ‘involves a factual issue,’ a district court’s

finding of abandonment is reviewed under the clearly erroneous standard.” United

States v. Ramos, 12 F.3d 1019, 1022 (11th Cir. 1994) (citation omitted).

The Fourth Amendment of the United States Constitution protects “[t]he right

of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures . . . .” U.S. Const. amend. IV. These protections

extend to cellular phones. See Riley v. California, 573 U.S. 373, 386 (2014). To

have standing to challenge the search of a cell phone, a defendant bears the burden

of establishing “both a subjective and an objective expectation of privacy” in its

contents. United States v. Segura-Baltazar, 448 F.3d 1281, 1286 (11th Cir. 2006).

But a person lacks Fourth Amendment standing to challenge the “search or seizure

of property that he has voluntarily abandoned.” United States v. Sparks, 806 F.3d

1323, 1341 (11th Cir. 2018). To determine whether property has been abandoned,

we ask whether the individual “voluntarily discarded, left behind, or otherwise

relinquished his interest in the property in question so that he could no longer retain

a reasonable expectation of privacy with regard to it at the time of the search.”

7 Case: 18-12295 Date Filed: 05/09/2019 Page: 8 of 11

Ramos, 12 F.3d at 1022 (11th Cir. 1994). This is a “question of intent which may

be inferred from acts, words, and other objective facts.” Id. at 1022–23.

Mr. Gregg primarily relies on United States v. Sparks, 806 F.3d 1323 (11th

Cir. 2015), to support the assertion that his devices were never abandoned. In

Sparks, two defendants moved to suppress evidence of child pornography obtained

from the search of a phone they lost in a Walmart store. A store employee found it

and called the number left in a text message on the phone seeking its return. The

defendants arranged for the return of the phone, but in the interim, the employee

discovered what appeared to be pornographic images of a very young child. She

confirmed the questionable nature of the photos with another employee, who

submitted the phone to the police. We held that the defendants had abandoned the

phone because, despite initially trying to retrieve it, they very quickly ceased those

efforts even though it would have been easy to do so, obtained new phones within a

few days, and filed an insurance claim for the lost phone. See id. at 1349.

In Ramos, by contrast, we held that the defendant retained full interest in his

property where, after he failed to timely vacate a rented room at the end of the lease

term, a cleaning company prepping the room for the next tenant packed his

belongings into garbage bags pursuant to the management company’s policy. See

Ramos, 12 F.3d at 1026. The cleaners spotted apparent drug paraphernalia in the

room and inside a partially closed and locked briefcase. They contacted the police,

8 Case: 18-12295 Date Filed: 05/09/2019 Page: 9 of 11

who obtained positive results from a field test on a powdery substance found inside

the case. They obtained a warrant to expand the search of the defendant’s room. We

held that the property was not abandoned because the defendant had retained a key

to the unit where everything was stored and had called the management company

the next day to try and recover his belongings. Moreover, the search occurred on

the same day and within a few hours of when the government alleged he had

abandoned his property. See id.

The facts of Mr. Gregg’s case fall somewhat between those of Sparks and

Ramos. Like the defendants in Sparks, Mr. Gregg’s devices were left in a known

location and in the control of a person with whom he could readily communicate.

And, also like the defendants in Sparks, Mr. Gregg did not take advantage of any

opportunity to retrieve the devices, although it would have been relatively easy to

do so. Mr. Gregg’s case bears one similarity to Ramos in that there is some evidence

that Ms. Anderson and Mr. Gregg shared at least an initial understanding that he had

not fully abandoned the property he left behind. Indeed, Ms. Anderson bagged

everything up and told Mr. Gregg to collect it at a later date. She also told Agent

Garcia that Mr. Gregg intended to get his property later. [Doc. 35-2 at 10–11] But

unlike the defendant in Ramos, Mr. Gregg did not retain a key to the premises and

took no affirmative steps—for several weeks—towards retrieving any of his

belongings, despite Ms. Anderson’s requests for him to do so. Even if Mr. Gregg

9 Case: 18-12295 Date Filed: 05/09/2019 Page: 10 of 11

possessed an initial subjective belief that he had not abandoned his property, his

subsequent actions were consistent with abandonment.

On this record, we hold that the district court did not err in finding that Mr.

Gregg abandoned his cell phone. See Cooper v. Harris, 137 S. Ct. 1455, 1465 (2017)

(explaining the clear error standard). Thus, it was not error to hold that Mr. Gregg

lacked standing to contest the constitutionality of the phone’s subsequent acquisition

and search by police.

III

Mr. Gregg also argues that the district court erred in denying him an additional

one-level reduction for acceptance of responsibility. The Sentencing Guidelines

permit a one-level reduction of a sentence pursuant to § 3E1.1(b) if, among other

conditions, “the defendant has assisted authorities in the investigation or prosecution

of his own misconduct by timely notifying authorities of his intention to enter a plea

of guilty, thereby permitting the government to avoid preparing for trial and

permitting the government and the court to allocate their resources efficiently.”

“Because the Government is in the best position to determine whether the defendant

has assisted authorities in a manner that avoids preparing for trial,” a § 3E1.1(b)

reduction may only be granted upon the government’s motion at sentencing.

U.S.S.G. § 3E1.1(b), cmt. n.6. See also United States v. Wade, 458 F.3d 1273, 1282

(11th Cir. 2006). This principle is subject to the limitation in Amendment 775 to §

10 Case: 18-12295 Date Filed: 05/09/2019 Page: 11 of 11

3E1.1(b), which provides that “[t]he government should not withhold [a § 3E1.1(b)

motion] based on interests not identified in § 3E1.1, such as whether the defendant

agrees to waive his or her right to appeal.” U.S.S.G. § 3E1.1(b) cmt. 6. Because the

sentencing court is in a unique position to determine whether a defendant has

accepted responsibility, we review such determinations for clear error and with great

deference. See United States v. McPhee, 108 F.3d 287, 289 (11th Cir. 1997). See

also U.S.S.G. § 3E1.1(b), cmt. n.5.

Citing to case law from other circuits, Mr. Gregg argues that a § 3E1.1(b)

reduction may not be withheld solely because the defendant moved for suppression

of evidence. The government explains that it declined to move for a § 3E1.1(b)

reduction in part because of the “significant resources” expended in the litigation of

the suppression motion, but also because it engaged in trial preparation during the

three weeks between the district court’s denial of the suppression motion and when

Mr. Gregg agreed to stipulate to facts for the bench trial. Given the deference we

afford the district court and the government to assess whether a § 3E1.1(b) reduction

is warranted, we see no reason to question the result here.

IV

For the foregoing reasons, we affirm.

AFFIRMED.