NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 3 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 20-30051 21-30138 Plaintiff-Appellee, 21-30157
v. D.C. No. 1:18-cr-00214-DCN-1 SETH ANTHONY JOHNSON, MEMORANDUM* Defendant-Appellant.
Appeal from the United States District Court for the District of Idaho David C. Nye, Chief District Judge, Presiding
Argued and Submitted April 13, 2022 Seattle, Washington
Before: BOGGS,** HAWKINS, and FORREST, Circuit Judges.
We consider three appeals stemming from the conviction of defendant Seth
Anthony Johnson (“Johnson”) for production of child pornography, possession of
child pornography, and production of child pornography while a registered sex
offender. Johnson appeals the introduction of certain evidence during his trial (“trial
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. appeal”), the court’s award of $15,300 in restitution to the minor victim (“restitution
appeal”), and the district court’s order finding Johnson in criminal contempt for
willfully disobeying a court order freezing his assets (“contempt appeal”). We
affirm all three appeals.
I. Appeal No. 20-30051 (“Trial Appeal”)
There was no error in denying Johnson’s motion to suppress images found on
his cell phone during a warrantless search of the phone. The reasonableness of a
search under the Fourth Amendment is determined by the totality of the
circumstances, balancing the privacy interests of the defendant against the
government’s interests. United States v. Johnson, 875 F.3d 1265, 1273 (9th Cir.
2017). In this case, Johnson was on supervised release, and the terms of that release
included very specific authorizations for searches of his computers and any other
“electronic communications or data storage devices or media.” His supervised
release conditions also expressly included allowing “the retrieval and copying of all
data from his computer or other electronic devices/media” and that such retrieval
and copying could occur with or without suspicion of violations. Thus, Johnson had
a significantly reduced expectation of privacy in his cell phone. See id. at 1275; cf.
United States v. Lara, 815 F.3d 605, 610 (9th Cir. 2016).
The government’s interest in the search, which is already considered high
when it comes to monitoring the behavior of parolees, was particularly high in this
2 case due to the information the Probation Office had received that suggested Johnson
had violated multiple provisions of his supervised release by having unapproved
contact with a minor, drinking alcohol, and possessing a prohibited firearm. Thus,
in balancing these interests, the court did not err by concluding the government’s
interests significantly outweighed those of Johnson, and the search did not violate
the Fourth Amendment. See Johnson, 875 F.3d at 1275‒76.
Nor was the involvement of Homeland Security Investigations (“HSI”) in the
search of the phone improper. The Probation Office may enlist the help of other law
enforcement agencies in conducting searches. See United States v. Harper, 928 F.2d
894, 897 (9th Cir. 1991), overruled on other grounds by United States v. King, 687
F.3d 1189 (9th Cir. 2012). The Probation Office conducted the initial search of the
phone, viewed images that it identified as possible child erotica, and then enlisted
the help of HSI in retrieving, copying, and preserving the data. See United States v.
Jarrad, 754 F.2d 1451, 1454 (9th Cir. 1985) (no violation of Fourth Amendment
where search was independently initiated by parole officer and other law
enforcement became involved after the parole officer’s request for assistance).
Nor was there error in admitting evidence of child erotica that was found on
Johnson’s cell phone in 2013, which had been later excluded from a state-court
prosecution due to a Fourth Amendment violation. The prior exclusion does not
necessarily preclude the introduction of the same evidence in this subsequent
3 prosecution; the exclusionary rule’s goal is to deter illegal searches, so if suppression
“does not result in appreciable deterrence,” then the evidence should not be
excluded. United States v. Lopez-Martinez, 725 F.2d 471, 476 (9th Cir. 1983)
(citation omitted). We consider the nexus between the illegal evidence gathering
and the later prosecution in which the evidence might be used, the length of time
that had passed, whether the entity conducting the illegal search was the same
seeking to use the evidence later, and whether the offending officers had already
been sanctioned and deterred in another proceeding. Id. All these factors favor
admission in this case.
Nor was there an abuse of discretion in admitting testimony regarding
Johnson’s 2007 rape conviction involving a fourteen-year-old girl. Johnson’s prior
child-molestation conviction was admissible under Federal Rule of Criminal
Procedure 414. The court also considered the balancing requirement of Rule 403
and determined that the probative value of the prior incident—which also occurred
with a young girl in a bathroom—outweighed any prejudice. It considered the
similarity of the acts, the proximity in time, the frequency of the prior acts, and the
need for the evidence at trial, United States v. LeMay, 260 F.3d 1018, 1027 (9th Cir.
2001), and concluded that most of these factors weighed in favor of admission. The
court also heard the proposed testimony by the prior victim outside the presence of
the jury to make sure it was very limited and not overly prejudicial before agreeing
4 the government could examine the witness in the presence of the jury. There was
no abuse of discretion.
Johnson’s conviction is AFFIRMED.
II. Appeal No. 21-30138 (“Restitution Appeal”)
The district court retained jurisdiction to award restitution even though it did
not determine the amount of restitution within ninety days after sentencing. The
ninety-day period in 18 U.S.C. § 3664(d)(5) is not jurisdictional and the exact
amount of restitution may be determined outside that time period so long as the court
has sufficiently expressed an intent to award restitution. Dolan v. United States, 560
U.S. 605, 611 (2010). Here, because the crime involved child pornography, the
court was required to award restitution. 18 U.S.C. § 2259. The court referenced a
future hearing to determine the amount of this restitution multiple times during the
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 3 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 20-30051 21-30138 Plaintiff-Appellee, 21-30157
v. D.C. No. 1:18-cr-00214-DCN-1 SETH ANTHONY JOHNSON, MEMORANDUM* Defendant-Appellant.
Appeal from the United States District Court for the District of Idaho David C. Nye, Chief District Judge, Presiding
Argued and Submitted April 13, 2022 Seattle, Washington
Before: BOGGS,** HAWKINS, and FORREST, Circuit Judges.
We consider three appeals stemming from the conviction of defendant Seth
Anthony Johnson (“Johnson”) for production of child pornography, possession of
child pornography, and production of child pornography while a registered sex
offender. Johnson appeals the introduction of certain evidence during his trial (“trial
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. appeal”), the court’s award of $15,300 in restitution to the minor victim (“restitution
appeal”), and the district court’s order finding Johnson in criminal contempt for
willfully disobeying a court order freezing his assets (“contempt appeal”). We
affirm all three appeals.
I. Appeal No. 20-30051 (“Trial Appeal”)
There was no error in denying Johnson’s motion to suppress images found on
his cell phone during a warrantless search of the phone. The reasonableness of a
search under the Fourth Amendment is determined by the totality of the
circumstances, balancing the privacy interests of the defendant against the
government’s interests. United States v. Johnson, 875 F.3d 1265, 1273 (9th Cir.
2017). In this case, Johnson was on supervised release, and the terms of that release
included very specific authorizations for searches of his computers and any other
“electronic communications or data storage devices or media.” His supervised
release conditions also expressly included allowing “the retrieval and copying of all
data from his computer or other electronic devices/media” and that such retrieval
and copying could occur with or without suspicion of violations. Thus, Johnson had
a significantly reduced expectation of privacy in his cell phone. See id. at 1275; cf.
United States v. Lara, 815 F.3d 605, 610 (9th Cir. 2016).
The government’s interest in the search, which is already considered high
when it comes to monitoring the behavior of parolees, was particularly high in this
2 case due to the information the Probation Office had received that suggested Johnson
had violated multiple provisions of his supervised release by having unapproved
contact with a minor, drinking alcohol, and possessing a prohibited firearm. Thus,
in balancing these interests, the court did not err by concluding the government’s
interests significantly outweighed those of Johnson, and the search did not violate
the Fourth Amendment. See Johnson, 875 F.3d at 1275‒76.
Nor was the involvement of Homeland Security Investigations (“HSI”) in the
search of the phone improper. The Probation Office may enlist the help of other law
enforcement agencies in conducting searches. See United States v. Harper, 928 F.2d
894, 897 (9th Cir. 1991), overruled on other grounds by United States v. King, 687
F.3d 1189 (9th Cir. 2012). The Probation Office conducted the initial search of the
phone, viewed images that it identified as possible child erotica, and then enlisted
the help of HSI in retrieving, copying, and preserving the data. See United States v.
Jarrad, 754 F.2d 1451, 1454 (9th Cir. 1985) (no violation of Fourth Amendment
where search was independently initiated by parole officer and other law
enforcement became involved after the parole officer’s request for assistance).
Nor was there error in admitting evidence of child erotica that was found on
Johnson’s cell phone in 2013, which had been later excluded from a state-court
prosecution due to a Fourth Amendment violation. The prior exclusion does not
necessarily preclude the introduction of the same evidence in this subsequent
3 prosecution; the exclusionary rule’s goal is to deter illegal searches, so if suppression
“does not result in appreciable deterrence,” then the evidence should not be
excluded. United States v. Lopez-Martinez, 725 F.2d 471, 476 (9th Cir. 1983)
(citation omitted). We consider the nexus between the illegal evidence gathering
and the later prosecution in which the evidence might be used, the length of time
that had passed, whether the entity conducting the illegal search was the same
seeking to use the evidence later, and whether the offending officers had already
been sanctioned and deterred in another proceeding. Id. All these factors favor
admission in this case.
Nor was there an abuse of discretion in admitting testimony regarding
Johnson’s 2007 rape conviction involving a fourteen-year-old girl. Johnson’s prior
child-molestation conviction was admissible under Federal Rule of Criminal
Procedure 414. The court also considered the balancing requirement of Rule 403
and determined that the probative value of the prior incident—which also occurred
with a young girl in a bathroom—outweighed any prejudice. It considered the
similarity of the acts, the proximity in time, the frequency of the prior acts, and the
need for the evidence at trial, United States v. LeMay, 260 F.3d 1018, 1027 (9th Cir.
2001), and concluded that most of these factors weighed in favor of admission. The
court also heard the proposed testimony by the prior victim outside the presence of
the jury to make sure it was very limited and not overly prejudicial before agreeing
4 the government could examine the witness in the presence of the jury. There was
no abuse of discretion.
Johnson’s conviction is AFFIRMED.
II. Appeal No. 21-30138 (“Restitution Appeal”)
The district court retained jurisdiction to award restitution even though it did
not determine the amount of restitution within ninety days after sentencing. The
ninety-day period in 18 U.S.C. § 3664(d)(5) is not jurisdictional and the exact
amount of restitution may be determined outside that time period so long as the court
has sufficiently expressed an intent to award restitution. Dolan v. United States, 560
U.S. 605, 611 (2010). Here, because the crime involved child pornography, the
court was required to award restitution. 18 U.S.C. § 2259. The court referenced a
future hearing to determine the amount of this restitution multiple times during the
sentencing hearing, and the minutes of the sentencing also reflect that the defendant
was required to pay restitution. This was all sufficient to notify Johnson that a
specific restitution award was forthcoming.
Nor was there an abuse of discretion by awarding estimated future costs of
counseling to the minor victim. These losses were of the type that one would expect
a child-pornography victim to suffer, as they are both foreseeable results of and
within the scope of the risk created by child pornography production, distribution,
and possession. See Paroline v. United States, 572 U.S. 434, 449‒50 (2014). The
5 court reasonably relied on expert testimony from a mental-health professional about
the extent and cost of recommended future therapy for the minor victim. See United
States v. Doe, 488 F.3d 1154, 1160‒61 (9th Cir. 2007); United States v. Laney, 189
F.3d 954, 966 (9th Cir. 1999).
The award of restitution is AFFIRMED.
III. Appeal No. 21-30157 (“Contempt Appeal”)
The district court had jurisdiction to order Johnson not to dispose of his
personal property without court permission in order to preserve his assets for
restitution. Pursuant to the All Writs Act, federal courts may “issue all writs
necessary or appropriate in aid of their respective jurisdictions and agreeable to the
usages and principles of law,” 28 U.S.C.§ 1651(a), including preventing a convicted
defendant from frustrating collection of restitution debt. See United States v.
Catoggio, 698 F.3d 64, 67‒68 (2d Cir. 2012) (per curiam); United States v. Yielding,
657 F.3d 722, 726‒27 (8th Cir. 2011). Nor did the district court plainly err by failing
to recuse itself sua sponte from determining whether Johnson had violated its order.
See Fed. R. Crim P. 42(a)(3). The statements Johnson made on recorded jail
conversations were not personal attacks on the judge himself, but expressions of
disregard for the order. If there is no personal attack on the judge, disqualification
is not required. United States v. Rylander, 714 F.2d 996, 1004 (9th Cir. 1983).
The criminal contempt order is AFFIRMED.