FILED NOT FOR PUBLICATION MAR 24 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10303
Plaintiff-Appellee, D.C. No. 2:15-cr-00125-APG-EJY-1 v.
RICHARD LEE SATERSTAD, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding
Argued and Submitted March 8, 2021 Las Vegas, Nevada
Before: CLIFTON, NGUYEN, and BENNETT, Circuit Judges.
Defendant-Appellant Richard Lee Saterstad appeals from a final judgment of
conviction of Receipt or Distribution of Child Pornography in violation of 18
U.S.C. § 2252A(a)(2) following a bench trial. We have jurisdiction pursuant to 28
U.S.C. § 1291 and affirm.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. We review the district court’s denial of Saterstad’s motion for a Franks
hearing and to suppress on the merits de novo and review the district court’s
underlying factual findings for clear error. See United States v. Norris, 942 F.3d
902, 907 (9th Cir. 2019). A search warrant must be based on “probable cause,
supported by Oath or affirmation . . . .” U.S. Const. amend. IV. “A Franks hearing
is ‘an evidentiary hearing on the validity of the affidavit underlying a search
warrant’ that a defendant is entitled to if he ‘can make a substantial preliminary
showing that (1) the affidavit contains intentionally or recklessly false statements
or misleading omissions, and (2) the affidavit cannot support a finding of probable
cause without the allegedly false information’; i.e., the challenged statements or
omissions are material.” United States v. Kleinman, 880 F.3d 1020, 1038 (9th Cir.
2017) (quoting United States v. Reeves, 210 F.3d 1041, 1044 (9th Cir. 2000)); see
Franks v. Delaware, 438 U.S. 154 (1978). Saterstad failed to satisfy either
requirement. First, Detective Shannon Tooley, the search warrant affiant, testified
that she had no reason to believe that IP spoofing technologies were in play at the
time of applying for the search warrant and that she would not have been able to
detect those technologies prior to forensic examination of the devices searched.
Second, Saterstad did not demonstrate that any of the allegedly omitted
information was material, i.e., that misdirection was so likely that it would have
2 undermined the probable cause determination.“Probable cause to search a location
exists if, based on the totality of the circumstances, there is a ‘fair probability’ that
evidence of a crime may be found there.” United States v. Perkins, 850 F.3d 1109,
1119 (9th Cir. 2017). That misdirection might have been possible did not mean that
there was no “fair probability” that evidence of Receipt or Distribution of Child
Pornography would have been found in Saterstad’s residence. The district court did
not err.
We review the district court’s denial of Saterstad’s motion to continue his
trial for abuse of discretion. United States v. Walter-Eze, 869 F.3d 891, 907 (9th
Cir. 2017). Denial of Saterstad’s motion to continue was not “arbitrary and
unreasonable” in light of the district court’s findings that (1) Saterstad had not been
diligent,1 (2) the court, the government, and the public would be prejudiced by
further continuance,2 (3) Saterstad failed to explain why additional continuance
1 The district court granted many continuances, delaying trial for over three years to accommodate Saterstad’s need to prepare for trial as a pro se defendant. 2 Saterstad concedes prejudice to the court and the public. 3 was needed,3 and (4) Saterstad would not be prejudiced.4 See United States v.
Tham, 960 F.2d 1391, 1396 (9th Cir. 1991); see also United States v. Lane, 765
F.2d 1376, 1379 (9th Cir. 1985) (requiring that a defendant demonstrate actual
prejudice to his defense). The district court properly exercised its discretion.
We review the district court’s decision to exclude Saterstad’s proffered
expert, Larry Smith, from testifying at trial for abuse of discretion. United States v.
Finley, 301 F.3d 1000, 1007 (9th Cir. 2002). Saterstad argues that the district court
abused its discretion in excluding Smith’s testimony as a sanction under Federal
Rules of Criminal Procedure Rule 16 (“Rule 16”) without first finding that
Saterstad’s discovery violation was “willful and motivated by a desire to obtain a
tactical advantage.” Id. at 1018 (quoting Taylor v. Illinois, 484 U.S. 400, 415
(1998); see also Fed. R. Crim. P. 16(b)(1)(C), 16(d)(2). Even assuming that the
district court abused its discretion, any error was harmless. See United States v.
Peters, 937 F.2d 1422, 1426 (9th Cir. 1991) (conducting harmless error review
3 Although Saterstad contends that he was unable to review thousands of pages of Forensic Toolkit (“FTK”) reports given to him less than two months before trial, he does not challenge the district court’s statement that, at two status conferences, Saterstad’s expert, Larry Smith, represented to the court that he had received and reviewed all the relevant reports. Furthermore, he does not explain why two months time was insufficient. 4 Saterstad does not identify any evidence in the FTK reports that could have been used to challenge the government’s evidence or show innocence. 4 after concluding that the trial court abused its discretion in excluding the testimony
of a defendant’s expert witnesses); Finley, 301 F.3d at 1018 (“In assessing the
choice of sanctions, this circuit has instructed that the ‘decisive value’ of the
evidence be considered.”) (quoting United States v. Duran, 41 F.3d 540, 545 (9th
Cir. 1994)). Officers recovered two laptops, two hard drives, and eight DVDs
containing child pornography from Saterstad’s bedroom. Saterstad’s failure to
identify what Smith’s opinion would have been or how it might have changed the
outcome at trial is telling. Saterstad sought to offer Smith’s opinion as a computer
forensic expert, apparently to identify problems with the government’s computer
forensic examination or undermine the government’s forensic examiner’s
testimony. However, testimony related to the forensic examination of Saterstad’s
devices or the capabilities of IP spoofing technologies could not have accounted
for the physical evidence, including DVDs, found in Saterstad’s bedroom. Even if
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FILED NOT FOR PUBLICATION MAR 24 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10303
Plaintiff-Appellee, D.C. No. 2:15-cr-00125-APG-EJY-1 v.
RICHARD LEE SATERSTAD, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding
Argued and Submitted March 8, 2021 Las Vegas, Nevada
Before: CLIFTON, NGUYEN, and BENNETT, Circuit Judges.
Defendant-Appellant Richard Lee Saterstad appeals from a final judgment of
conviction of Receipt or Distribution of Child Pornography in violation of 18
U.S.C. § 2252A(a)(2) following a bench trial. We have jurisdiction pursuant to 28
U.S.C. § 1291 and affirm.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. We review the district court’s denial of Saterstad’s motion for a Franks
hearing and to suppress on the merits de novo and review the district court’s
underlying factual findings for clear error. See United States v. Norris, 942 F.3d
902, 907 (9th Cir. 2019). A search warrant must be based on “probable cause,
supported by Oath or affirmation . . . .” U.S. Const. amend. IV. “A Franks hearing
is ‘an evidentiary hearing on the validity of the affidavit underlying a search
warrant’ that a defendant is entitled to if he ‘can make a substantial preliminary
showing that (1) the affidavit contains intentionally or recklessly false statements
or misleading omissions, and (2) the affidavit cannot support a finding of probable
cause without the allegedly false information’; i.e., the challenged statements or
omissions are material.” United States v. Kleinman, 880 F.3d 1020, 1038 (9th Cir.
2017) (quoting United States v. Reeves, 210 F.3d 1041, 1044 (9th Cir. 2000)); see
Franks v. Delaware, 438 U.S. 154 (1978). Saterstad failed to satisfy either
requirement. First, Detective Shannon Tooley, the search warrant affiant, testified
that she had no reason to believe that IP spoofing technologies were in play at the
time of applying for the search warrant and that she would not have been able to
detect those technologies prior to forensic examination of the devices searched.
Second, Saterstad did not demonstrate that any of the allegedly omitted
information was material, i.e., that misdirection was so likely that it would have
2 undermined the probable cause determination.“Probable cause to search a location
exists if, based on the totality of the circumstances, there is a ‘fair probability’ that
evidence of a crime may be found there.” United States v. Perkins, 850 F.3d 1109,
1119 (9th Cir. 2017). That misdirection might have been possible did not mean that
there was no “fair probability” that evidence of Receipt or Distribution of Child
Pornography would have been found in Saterstad’s residence. The district court did
not err.
We review the district court’s denial of Saterstad’s motion to continue his
trial for abuse of discretion. United States v. Walter-Eze, 869 F.3d 891, 907 (9th
Cir. 2017). Denial of Saterstad’s motion to continue was not “arbitrary and
unreasonable” in light of the district court’s findings that (1) Saterstad had not been
diligent,1 (2) the court, the government, and the public would be prejudiced by
further continuance,2 (3) Saterstad failed to explain why additional continuance
1 The district court granted many continuances, delaying trial for over three years to accommodate Saterstad’s need to prepare for trial as a pro se defendant. 2 Saterstad concedes prejudice to the court and the public. 3 was needed,3 and (4) Saterstad would not be prejudiced.4 See United States v.
Tham, 960 F.2d 1391, 1396 (9th Cir. 1991); see also United States v. Lane, 765
F.2d 1376, 1379 (9th Cir. 1985) (requiring that a defendant demonstrate actual
prejudice to his defense). The district court properly exercised its discretion.
We review the district court’s decision to exclude Saterstad’s proffered
expert, Larry Smith, from testifying at trial for abuse of discretion. United States v.
Finley, 301 F.3d 1000, 1007 (9th Cir. 2002). Saterstad argues that the district court
abused its discretion in excluding Smith’s testimony as a sanction under Federal
Rules of Criminal Procedure Rule 16 (“Rule 16”) without first finding that
Saterstad’s discovery violation was “willful and motivated by a desire to obtain a
tactical advantage.” Id. at 1018 (quoting Taylor v. Illinois, 484 U.S. 400, 415
(1998); see also Fed. R. Crim. P. 16(b)(1)(C), 16(d)(2). Even assuming that the
district court abused its discretion, any error was harmless. See United States v.
Peters, 937 F.2d 1422, 1426 (9th Cir. 1991) (conducting harmless error review
3 Although Saterstad contends that he was unable to review thousands of pages of Forensic Toolkit (“FTK”) reports given to him less than two months before trial, he does not challenge the district court’s statement that, at two status conferences, Saterstad’s expert, Larry Smith, represented to the court that he had received and reviewed all the relevant reports. Furthermore, he does not explain why two months time was insufficient. 4 Saterstad does not identify any evidence in the FTK reports that could have been used to challenge the government’s evidence or show innocence. 4 after concluding that the trial court abused its discretion in excluding the testimony
of a defendant’s expert witnesses); Finley, 301 F.3d at 1018 (“In assessing the
choice of sanctions, this circuit has instructed that the ‘decisive value’ of the
evidence be considered.”) (quoting United States v. Duran, 41 F.3d 540, 545 (9th
Cir. 1994)). Officers recovered two laptops, two hard drives, and eight DVDs
containing child pornography from Saterstad’s bedroom. Saterstad’s failure to
identify what Smith’s opinion would have been or how it might have changed the
outcome at trial is telling. Saterstad sought to offer Smith’s opinion as a computer
forensic expert, apparently to identify problems with the government’s computer
forensic examination or undermine the government’s forensic examiner’s
testimony. However, testimony related to the forensic examination of Saterstad’s
devices or the capabilities of IP spoofing technologies could not have accounted
for the physical evidence, including DVDs, found in Saterstad’s bedroom. Even if
Smith’s testimony might have cast doubt on whether Saterstad distributed child
pornography, the district court also found that Saterstad knowingly received child
pornography and Saterstad had materials containing child pornography in his
bedroom.
We review the district court’s decision to admit the government’s experts’
testimony for abuse of discretion. Id. at 1007. Saterstad contends that the district
5 court abused its discretion in allowing the government’s witnesses to testify at trial
despite the government’s failure to provide timely Rule 16 notice of the testimony.
Rule 16(a)(1)(G) provides that “[a]t the defendant’s request, the government must
give to the defendant a written summary” of any expert testimony the government
intends to offer at trial. Fed. R. Crim. P. 16(a)(1)(G). Saterstad does not contest
that he failed to make expert disclosure requests—required to trigger the
government’s disclosure obligations—until four days before trial, and that his
request was made after the government had already provided him with Notices of
Expert Testimony for Detective Gregory Sawyer and Forensic Examiner Matthew
Trafford. See id. Moreover, because the government offered Special Agent Mari
Panovich and Detective Tooley as percipient witnesses, Rule 16(a)(1)(G)’s
disclosure requirements did not apply to their testimony.6 See id. Saterstad fails to
identify any violation of Rule 16 which could have served as the basis for a Rule
16(d)(2) sanction. The district court properly exercised its discretion.
AFFIRMED.
6 Saterstad does not argue that the district court abused its discretion by allowing the government’s percipient witnesses to testify based on scientific, technical, or specialized knowledge in violation of Federal Rule of Evidence 701(c), nor did he object to the government’s questioning of the witnesses at trial. 6