United States v. Jon Kaiser

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 4, 2019
• Docket: 17-50294
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 4 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50294

Plaintiff-Appellee D.C. No. 2:15-CR-15-00706-BRO-1 v.

JON KAISER, AKA sasha12 MEMORANDUM* Defendant-Appellant

Appeal from the United States District Court for the Central District of California Beverly Reid O’Connell, District Judge, Presiding

Argued and Submitted May 17, 2019 Pasadena, California

Before: WARDLAW and HURWITZ, Circuit Judges, and KORMAN,** District Judge.

Jon Kaiser—under the username SASHA12—used an online message board

to comment on posts with links to child pornography. Based on these posts, law

enforcement obtained a warrant to search the computer at the residential address

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation.

1 associated with his username. The FBI agent’s affidavit in support of the warrant

asserted that there was probable cause to believe that Kaiser downloaded child

pornography because (1) in his experience, collectors of child pornography (a label

he gave Kaiser) tend to save the images in private, secure places like their

computers, and (2) Kaiser’s comments referenced multiple images, presumably the

linked images.

Pursuant to the warrant, law enforcement discovered several hundred images

of child pornography on Kaiser’s computer. Kaiser unsuccessfully moved to

suppress the images on the grounds that the agent’s affidavit did not establish

probable cause and contained reckless omissions that would have undermined a

finding of probable cause had they been included. Kaiser was convicted of

possessing child pornography after a stipulated-testimony trial. Kaiser appealed,

challenging both the finding of probable cause and the imposition of a 51-month

sentence of incarceration.

1. The agent’s affidavit established probable cause sufficient to support a

search warrant.

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . conclud[ing]’ that probable cause existed.

2 Illinois v. Gates, 462 U.S. 213, 238 (1983) (emphasis added) (quotation omitted).

While we review the district judge’s denial of a motion to suppress de novo, we

give “great deference” to the issuing judge’s finding of probable cause and review

it for clear error. United States v. Underwood, 725 F.3d 1076, 1081 (9th Cir. 2013)

(quotation omitted).

The combination of the agent’s extensive experience on child pornography

investigations, his detailed descriptions of the images focused on minors’ exposed

genitals, and reasonable inferences from Kaiser’s comments about multiple images

gave rise to a “fair probability” that Kaiser visited the external links on the forum’s

posts and downloaded images qualifying as child pornography onto his computer.

For example, the agent’s affidavit informed the magistrate that one of SASHA12’s

comments read, “Awesome set of beautiful Madison. Thx very much.” Like

Kaiser’s other comments restated in the affidavit, “set” indicates multiple images.

Considering that there was only one preview image in the post, the agent

reasonably concluded that “SASHA12 followed the links to download the

additional images of the girl.” Finding that Kaiser’s comments supported the

inference that he copied the linked web addresses, entered any required passwords

to download encrypted files, viewed the images at the web address, and proceeded

to download the images onto his computer was not an “untenable chain of

inferences,” as Kaiser claims.

3 2. Moreover, the district judge reasonably credited the agent’s testimony that

any omissions in his affidavit in support of the search warrant—e.g., the failure to

mention the poster’s signature image in the first post and to provide copies of the

images themselves—were “honest oversight[s],” and did not clearly err in finding

that the omissions were not intentional or reckless. Cf. United States v. Perkins,

850 F.3d 1109, 1116–18 (9th Cir. 2017) (holding that the agent’s omissions

constituted a “clear, intentional pattern” of deception).

3. The district judge also correctly concluded that the omissions were not

material, i.e., necessary to the determination of probable cause. See Franks v.

Delaware, 438 U.S. 154, 155–56 (1978). Including the relevant images with the

affidavit in support of a search warrant would have further insulated the search

warrant from attack and indeed would have been the better practice. Nevertheless,

the agent’s detailed descriptions of the images here were not “bare legal

assertion[s], absent any descriptive support.” United States v. Brunette, 256 F.3d

14, 17 (1st Cir. 2001). For example, the agent described one image where the girl

photographed was “lying on her back naked, her legs spread, showing a clear view

of her vagina[] and . . . a fluid substance on her bare chest.” See 18 U.S.C. §

2256(2)(A)(v) (defining “sexually explicit conduct” as the “lascivious exhibition of

the anus, genitals or pubic area”). Thus, the agent’s failure to include the

screenshots of the posts and the accompanying images does not undermine a

4 finding of probable cause and is therefore not material under Franks.

4. Finally, the district judge did not plainly err when he imposed a sentence

at the low end of the Sentencing Guidelines. The sentencing transcript makes clear

that the district judge did not treat the guidelines range as presumptively

reasonable but instead took into account all parties’ recommended sentences, made

an individualized assessment of the mitigating factors, and gave proper

consideration to the 18 U.S.C. § 3553(a) factors. See United States v. Carty, 520

F.3d 984, 991–92 (9th Cir. 2008) (en banc).

AFFIRMED.