United States v. Jose Acevedo-Lemus

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 9, 2020
• Docket: 18-50324
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 9 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50324

Plaintiff-Appellee, D.C. No. 8:15-cr-00137-CJC-1 v.

JOSE ANTONIO ACEVEDO-LEMUS, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding

Submitted April 1, 2020** Pasadena, California

Before: WARDLAW, MURGUIA, and MILLER, Circuit Judges.

Jose Antonio Acevedo-Lemus was sentenced to sixty months imprisonment

and a lifetime term of supervised release following a conditional guilty plea for

possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B),

2252A(b)(2).

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). In January 2015, the Federal Bureau of Investigation (“FBI”) seized the

servers of “Playpen,” an online child pornography bulletin board hosted on servers

located in North Carolina, and began operating the website after moving the

servers to FBI facilities in Newington, Virginia. Then, in February 2015, the FBI

obtained a warrant from a magistrate judge in the Eastern District of Virginia

authorizing use of a Network Investigative Technique (“NIT”) to identify users of

Playpen (the “NIT Warrant”). Using the information gathered from the NIT

Warrant, agents then obtained a local warrant to search Acevedo-Lemus’s

residence. Acevedo-Lemus challenges the district court’s denial of his motion to

suppress evidence, arguing that the NIT Warrant was issued in violation of Federal

Rule of Criminal Procedure 41(b), and that the local warrant was not supported by

probable cause. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

1. Acevedo-Lemus acknowledges that his challenge to the NIT Warrant

is foreclosed by our decision in United States v. Henderson, 906 F.3d 1109 (9th

Cir. 2018). Indeed, Henderson addressed the precise warrant at issue here. In

Henderson, we held that the NIT Warrant violated Federal Rule of Criminal

Procedure 41(b), but that suppression was not required under the good-faith

exception to the exclusionary rule. Id. at 1113–15. We see no reason to depart

from that holding here.

2. Acevedo-Lemus does not establish good cause for his failure to

2 challenge the local warrant in the district court and therefore waived his right to

challenge it on appeal. Under Federal Rule of Criminal Procedure 12, a “‘theory

for suppression not advanced in district court cannot be raised for the first time on

appeal’ absent a showing of good cause.” United States v. Guerrero, 921 F.3d

895, 897–98 (9th Cir. 2019) (quoting United States v. Keesee, 358 F.3d 1217, 1220

(9th Cir. 2004)); see also United States v. Restrepo-Rua, 815 F.2d 1327, 1329 (9th

Cir. 1987) (per curiam). Contrary to Acevedo-Lemus’s contention, the suppression

motion’s passing reference to the local warrant in a section of the motion entitled

“The NIT Warrant Violated the Warrant Clause’s Particularity Requirement” did

not adequately raise the issue. See George v. Morris, 736 F.3d 829, 837 (9th Cir.

2013) (“Although no bright line rule exists to determine whether a matter [has]

been properly raised below, an issue will generally be deemed waived on appeal if

the argument was not raised sufficiently for the trial court to rule on it.” (quoting In

re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010))).

“[J]ust as a failure to file a timely motion to suppress evidence constitutes a

waiver, so too does a failure to raise a particular ground in support of a motion to

suppress.” United States v. Wright, 215 F.3d 1020, 1026 (9th Cir. 2000) (quoting

Restrepo-Rua, 815 F.2d at 1329).

3. But even if Acevedo-Lemus’s challenge to the local warrant were

reviewable, substantial evidence supports a finding of probable cause. The local

3 warrant established that Acevedo-Lemus: (1) became a registered member of

Playpen, which is accessible only if the user knows the exact web address and

installs appropriate software to connect to the network; (2) accessed Playpen for

over eight hours; (3) viewed at least 175 threads on the website, two of which

contained images of child pornography; and (4) accessed an additional post entitled

“Mona” in the forum “Toddlers,” which contained two embedded contact sheets

with thumbnail images of a naked baby. Furthermore, the affidavit supporting the

local warrant established that users had to take “numerous affirmative steps” to

access Playpen, “making it extremely unlikely that any user could have simply

stumbled upon [Playpen] without first understanding its content and knowing that

its primary purpose was to advertise and distribute child pornography.” Because

probable cause “requires only a probability or substantial chance of criminal

activity, not an actual showing of such activity,” District of Columbia v. Wesby,

138 S. Ct. 577, 586 (2018) (emphasis added) (quoting Illinois v. Gates, 462 U.S.

213, 243–44 n.13 (1983)), we conclude that probable cause supported the local

warrant.

AFFIRMED.