United States v. Mulholland

702 F. App'x 7
CourtCourt of Appeals for the Second Circuit
DecidedJuly 12, 2017
Docket14-4126(L); 16-4046(CON)
StatusPublished
Cited by2 cases

This text of 702 F. App'x 7 (United States v. Mulholland) 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. Mulholland, 702 F. App'x 7 (2d Cir. 2017).

Opinion

SUMMARY ORDER

Defendant-appellant Patrick Nayyar renews his appeal from a judgment entered October 31,2014, after a jury trial, convicting him of conspiracy to provide and providing material support to a foreign terrorist organization, conspiracy to contribute and contributing goods to and for the benefit of Hizballah, and conspiracy to traffic firearms and ammunition, in violation of 18 U.S.C. §§ 371 and 2339B, and 50 U.S.C. § 1705(a). This case returns to us after we remanded the matter to the district court on October 14, 2015, for a post-trial hearing on issues related to Nayyar’s motion for a mistrial and to suppress computer evidence.1 On November 18, 2016, the district court issued an opinion adhering to its decision to deny Nayyar’s motion. On December 2, 2016, Nayyar renewed his appeal. We assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal.

On September 24, 2009, the Federal Bureau of Investigation (“FBI”) seized-Nay-yar’s laptop computer from his home with the consent of his wife. On October 29, 2010, the government obtained a search warrant for the computer. Copies of the search warrant and supporting affidavit were produced in discovery to the defense on November 1, 2010. At trial in March 2012, Special Agent Candace Hunter, an FBI forensic examiner, testified that she began her examination of the computer on December 2, 2009. The next morning, Nay-yar moved for a mistrial, arguing that the evidence obtained from his computer was the product of an illegal warrantless search. The district court denied Nayyar’s motion for a mistrial, holding that Nayyar waived his right to challenge the computer evidence, and that, in any event, the “doctrine of inevitable discovery defeated any [10]*10suppression motion.” Special App. 11. We remanded for the district court to conduct a hearing on whether (1) Nayyar waived his right to challenge the evidence in question, (2) Nayyar’s wife’s consent was valid, and (3) the independent source doctrine applied.

In its November 18, 2016, opinion, the district court again denied Nayyar’s motion for a mistrial and to suppress the computer evidence.2 The district court determined that Nayyar waived his right to challenge the computer evidence because his motion to suppress was untimely; Nay-yar’s wife’s consent was invalid because the government did not, at the time of seizure, ask enough questions to determine whether she had authority to consent to a search of Nayyar’s computer; and the independent source doctrine applied to the search of the computer. In his renewed appeal, Nayyar challenges (1) the denial of his motion to suppress the computer evidence and for a mistrial, and (2) the sufficiency of the evidence of a conspiracy to traffic in firearms and ammunition. We address each issue in turn,

1. Motion to Suppress the Computer Evidence and for a Mistrial

On appeal from the denial of a motion to suppress, we review the district court’s legal conclusions de novo and its factual findings for clear error. United States v. Schaffer, 851 F.3d 166, 173 (2d Cir. 2017) (citing In re Terrorist Bombings of U.S, Embassies in E. Africa, 552 F.3d 177, 198 (2d Cir. 2008)). We review mixed questions of law and fact de novo. United States v. Rajaratnam, 719 F.3d 139, 153 (2d Cir. 2013) (citing United States v. Awadallah, 349 F.3d 42, 65 (2d Cir. 2003)).

The independent source doctrine “permits the admission of evidence seized pursuant to an unlawful search if that evidence would have been obtained through separate, lawful means.” United States v. Vilar, 729 F.3d 62, 83 n.19 (2d Cir. 2013) (citing Murray v. United States, 487 U.S. 533, 537, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988)). When such evidence is obtained pursuant to a warrant issued after an illegal search, the independent source doctrine applies if, “(1) the warrant [was] supported by probable cause derived from sources independent of the illegal [search]; and (2) the decision to seek the warrant [was] not ... prompted by information gleaned from the illegal conduct.” United States v. Johnson, 994 F.2d 980, 987 (2d Cir. 1993). If a motion to suppress is not made before trial and the movant cannot show good cause for the delay, the motion is untimely. See Fed. R. Crim. P. 12(b)(3)(C), (c)(3).

Prior to obtaining a search warrant, the FBI conducted a forensic examination of the computer pursuant to Nayyar’s wife’s consent. During the initial search, the examiner found possible child pornography, which halted his review. Three days later he learned that Nayyar’s wife did not have the password for the computer. The government then obtained a search warrant before conducting a further search of the computer. The district court determined that the independent source doctrine applied to the search of the computer because the decision to seek a warrant was' not motivated by the finding of possible child pornography, but rather was “to obtain evidence relevant to the pending charges against Nayyar and the months-long FBI investigation, as well as to buttress the legal authority for the search the [11]*11FBI had begun before anyone from the FBI saw any of the contents of Nayyar’s computer.” Special App. 31-32.

The district court properly concluded that the independent source doctrine applied. First, as the district court found, the only reason the agents failed to apply for a warrant prior to beginning the initial search was their mistaken belief they had consent to conduct the search. Second, the search warrant application did not rely on anything discovered during the initial war-rantless search. Third, any further search for child pornography after the issuance of the search warrant was only to determine whether making a copy of the computer would violate federal child pornography laws, which prohibited the distribution and transportation of child pornography.

Nayyar argues that “[h]ad [the examiner] not seen the [possible child pornography] images during the initial search, ... no warrant would have been sought.” Appellant’s Br. 27. The argument fails, While the discovery of possible child pornography led the government to realize Nay-yar’s wife’s consent was invalid, “exclusion may not be premised on the mere fact that a constitutional violation was a ’but-for’ cause of obtaining evidence.” Hudson v. Michigan, 547 U.S. 586, 592, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006); accord Mosby v. Senkowski, 470 F.3d 515, 522-23 (2d Cir.

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Bluebook (online)
702 F. App'x 7, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mulholland-ca2-2017.