United States v. Stephen J. Konn

Opinion

14-4021-cr United States v. Stephen J. Konn

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 17th day of December, two thousand fifteen. 5 6 PRESENT: DENNIS JACOBS, 7 DEBRA ANN LIVINGSTON, 8 CHRISTOPHER F. DRONEY, 9 Circuit Judges. 10 11 - - - - - - - - - - - - - - - - - - - -X 12 UNITED STATES OF AMERICA, 13 Appellee, 14 15 -v.- 14-4021-cr 16 17 STEPHEN J. KONN, 18 Defendant-Appellant. 19 - - - - - - - - - - - - - - - - - - - -X 20 21 FOR APPELLEE: Wayne A. Myers, Steven D. Clymer, 22 Assistant United States Attorneys, 23 for Richard S. Hartunian, United 24 States Attorney for the Northern 25 District of New York, Syracuse, New 26 York.

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1 FOR APPELLANT: Wayne P. Smith, Law Office of Wayne 2 P. Smith, Schenectady, New York. 3 4 Appeal from a judgment of the United States District 5 Court for the Northern District of New York (D’Agostino, 6 J.). 7 8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 9 AND DECREED that the judgment of the district court be 10 AFFIRMED. 11 12 Stephen J. Konn appeals from the judgment of the United 13 States District Court for the Northern District of New York 14 (D’Agostino, J.), sentencing him after trial principally to 15 10 years’ imprisonment and 25 years’ supervised release for 16 the receipt, distribution, and possession of child 17 pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and 18 (a)(5)(B). We assume the parties’ familiarity with the 19 underlying facts, the procedural history, and the issues 20 presented for review. 21 22 1. The evidence was sufficient to prove beyond a 23 reasonable doubt the interstate commerce element of each 24 offense. The jurisdictional elements of §§ 2252A(a)(2)(A) 25 and (a)(5)(B) do not require evidence that specific images 26 actually crossed state lines; it is enough that the images 27 were transported via the Internet. See Effective Child 28 Pornography Prosecution Act of 2007 (“2008 Amendments”), 29 Pub. L. No. 110-358, § 102(7), 122 Stat. 4001, 4002 (2008) 30 (“The transmission of child pornography using the Internet 31 constitutes transportation in interstate commerce.”); id. 32 § 103(a)(4)(B), (D), 122 Stat. at 4002-03; id. § 103(b), 122 33 Stat. at 4003 (replacing “in interstate or foreign commerce” 34 with “in or affecting interstate or foreign commerce”); see 35 also Russell v. United States, 471 U.S. 858, 859 & n.4 36 (1985) (the use of the phrase “‘affecting interstate or 37 foreign commerce’ expresses an intent by Congress to 38 exercise its full power under the Commerce Clause”). 39 40 Konn argues that, so interpreted, the statute would 41 exceed Congress’s commerce power. But there can be no 42 question that the Internet is a channel and instrumentality 43 of interstate commerce; and Congress may “regulate and 44 protect the instrumentalities of interstate commerce, . . . 45 even though the threat may come only from intrastate 46 activities,” United States v. Lopez, 514 U.S. 549, 558 47 (1995).

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1 2. Konn contends that the search warrant affidavit 2 could not provide a “substantial basis” for the magistrate 3 judge’s finding of probable cause. United States v. 4 Raymonda, 780 F.3d 105, 113 (2d Cir. 2015) (quoting United 5 States v. Wagner, 989 F.2d 69, 72 (2d Cir. 1993)). Konn 6 cites several cases that hold that, when probable cause 7 turns on the identification of images of child pornography, 8 it is not enough for the warrant affidavit to use conclusory 9 statements characterizing those images as “sexually 10 explicit,” “child pornography,” or “lewd and lascivious.” 11 Instead, Konn argues, the affidavit must contain a 12 description sufficiently detailed such that the magistrate 13 judge can independently assess whether the images likely 14 constitute child pornography, or else the magistrate judge 15 must view the images. See, e.g., United States v. Pavulak, 16 700 F.3d 651, 661 (3d Cir. 2012); United States v. Brunette, 17 256 F.3d 14, 17-19 (1st Cir. 2001); United States v. Genin, 18 594 F. Supp. 2d 412, 418-25 (S.D.N.Y. 2009), aff’d on 19 alternative ground, 524 F. App’x 737, 738 (2d Cir. 2013) 20 (summary order). Assuming arguendo that we were to require 21 a detailed description of the images absent attachment of 22 those images to the supporting affidavit, sufficient 23 description was provided in this case.1 24 25 3. Konn argues that his confession should have been 26 suppressed because he was in custody (and not given Miranda 27 warnings), and because his statements were involuntary. The 28 district court held a suppression hearing at which Konn and 29 Agent Fallon testified; we accept the district court’s 30 factual findings, which were not clearly erroneous.2 See 31 United States v. Bershchansky, 788 F.3d 102, 109-10 (2d Cir.

1 The affidavit described seven images that Agent Fallon downloaded from Konn’s shared folders. One was described as depicting “a prepubescent female, approximately 3-4 years old, sitting on a couch naked from the waist down. Her t-shirt is pulled up above her waist and her naked vaginal area is exposed. Her legs are spread apart and she is touching her vagina with her left hand.” Gov’t App. 20 ¶ 24(g). This is more than enough.

2 Evident in the district court’s recitation of facts and circumstances is an implicit finding of Agent Fallon’s credibility, including Fallon’s testimony that he informed Konn that Konn was “free to leave.” See Special App. 43-44 (discussing the “objective and credible circumstances”).

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1 2015) (factual determinations on motions to suppress are 2 either reviewed for clear error or viewed in the light most 3 favorable to the party that prevailed on the motion). 4 5 Konn was not in custody. The district court found 6 that: the interview took place in Konn’s home; Konn was not 7 placed in restraints; weapons were never drawn; the 8 interview lasted approximately 35 minutes; at no point did 9 Konn ask to leave or to end the conversation; at no point 10 did the agents raise their voices; Konn was never told that 11 he was under arrest; and Fallon “instructed [Konn] that ‘I 12 am not gonna let you roam around the residence while we do 13 this for our safety reasons. But you’re free to leave, you 14 don’t have to stay here.’” Special App. 44. A reasonable 15 person would have felt free to terminate the conversation 16 and leave. Moreover, Konn’s “freedom of action” was not 17 “curtailed to a degree associated with formal arrest.” 18 United States v. Falso, 293 F. App’x 838, 839 (2d Cir. 2008) 19 (summary order) (quoting United States v. Newton, 369 F.3d 20 659, 671-72 (2d Cir. 2004)); see also United States v. FNU 21 LNU, 653 F.3d 144, 153 (2d Cir. 2011) (discussing 22 circumstances relevant to custody inquiry). 23 24 Nor were Konn’s statements involuntary. In determining 25 the voluntariness of a confession, this Court evaluates the 26 totality of the circumstances, including “1) the accused’s 27 characteristics, 2) the conditions of the interrogation, and 28 3) the conduct of the police.” Parsad v. Greiner, 337 F.3d 29 175, 183 (2d Cir. 2003). Konn is an adult; he has a college 30 degree; he retired after 35 years’ employment as an analyst 31 for a state agency; he managed his mother’s property during 32 her life. See J.A. 192-94. The conditions of the interview 33 were not harsh or confining, and the officers’ conduct was 34 professional. Konn was not “subjected to any threats, 35 physical coercion, or protracted interrogation.” United 36 States v. Okwumabua, 828 F.2d 950, 953 (2d Cir. 1987). 37 38 4. The government concedes that the district court’s 39 Rule 26.2 discovery ruling was in error, because the chat 40 spreadsheets created by Konn’s expert witness (and ordered 41 disclosed) did not relate to the subject matter of that 42 expert’s trial testimony. However, we need not determine 43 whether this amounted to plain error (or whether the ruling 44 was erroneous on any ground Konn raised below), because the 45 spreadsheets were not used at trial, and the district 46 court’s consideration of the content of the chats at 47 sentencing was not improper. A district court should

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1 consider all relevant information at sentencing, see 18 2 U.S.C. § 3661; Fed. R. Crim. P. 32(d)(1)(D)(i)-(ii), 3 (d)(2)(A)(iii); U.S.S.G. § 6A1.3(a), absent a “showing of 4 significant countervailing values” (which Konn has not 5 made), United States v. Tejada, 956 F.2d 1256, 1262-63 (2d 6 Cir. 1992) (holding that a sentencing court must consider 7 evidence obtained in violation of the Fourth Amendment 8 absent a showing that officers obtained the evidence for the 9 express purpose of sentence enhancement). 10 11 5. The district court declined to decrease Konn’s 12 offense level pursuant to U.S.S.G. § 3E1.1 because it found 13 that Konn had not accepted responsibility for the 14 distribution offense. We defer to this factual 15 determination, which was not “without foundation.” United 16 States v. Harris, 13 F.3d 555, 557 (2d Cir. 1994) (quoting 17 United States v. Irabor, 894 F.2d 554, 557 (2d Cir. 1990)); 18 see United States v. Taylor, 475 F.3d 65, 68-69 (2d Cir. 19 2007) (per curiam); U.S.S.G. § 3E1.1 cmt. n.5. When 20 interviewed by the probation department after trial, Konn 21 “denied trading images”; stated that any images in his 22 shared folders were “child erotica” rather than child 23 pornography; asserted that any images of child pornography 24 in his shared folders were placed there by the government; 25 and claimed that “he never knowingly placed child 26 pornography in shared folders on Giga[T]ribe for others to 27 access.” PSR ¶ 46; see also PSR ¶ 49. 28 29 6. Konn’s sentence is substantively reasonable. See 30 United States v. Dorvee, 616 F.3d 174, 179 (2d Cir. 2010) 31 (substantive reasonableness is reviewed for abuse of 32 discretion; reversal is appropriate “only when the trial 33 court’s sentence ‘cannot be located within the range of 34 permissible decisions’” (quoting United States v. Cavera, 35 550 F.3d 180, 189 (2d Cir. 2008) (en banc))). 36 37 Konn argues that his sentence is unreasonable and 38 unconstitutional nevertheless because its starting point was 39 U.S.S.G. § 2G2.2, a Guideline that we labeled “fundamentally 40 different from most,” “eccentric,” “of highly unusual 41 provenance,” and even “irrational” in Dorvee. 616 F.3d at 42 184, 187-88. Konn’s Guidelines range was accurately 43 calculated at 292 to 365 months’ imprisonment; the district 44 court found that range to be “much greater than necessary to 45 meet the goals of sentencing” and, accordingly, imposed a 46 sentence (120 months’ imprisonment) substantially below the 47 low end of that range. J.A. 934.

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1 Even before Dorvee, this Court made the “truly 2 advisory” nature of the Guidelines “emphatically clear” to 3 district courts. Cavera, 550 F.3d at 191. Post-Dorvee, it 4 is even more unlikely that a defendant sentenced for a child 5 pornography offense in this Circuit can attribute his 6 sentence to § 2G2.2. In sentencing Konn, the district court 7 followed our instructions. It took “seriously the broad 8 discretion [district courts] possess in fashioning sentences 9 under § 2G2.2" and “carefully applied” the Guideline to 10 avoid “generat[ing] unreasonable results.” Dorvee, 616 F.3d 11 at 188. Thus Konn’s constitutional arguments necessarily 12 fail because § 2G2.2 “did not cause [Konn’s] alleged 13 sentencing injury.” United States v. Meirick, 674 F.3d 802, 14 805 (8th Cir. 2012); see also, e.g., Kimbrough v. United 15 States, 552 U.S. 85, 90-91 (2007) (“Booker . . . instructed 16 that ‘reasonableness’ is the standard controlling appellate 17 review of the sentences district courts impose.” (discussing 18 United States v. Booker, 543 U.S. 220, 261-62 (2005))). 19 20 In any event, Konn’s substantive due process challenge 21 would fail de novo rational basis review. See United States 22 v. Cruz-Flores, 56 F.3d 461, 463 (2d Cir. 1995). (Konn does 23 not argue that impermissible considerations went into the 24 Guideline.) As compared to the “run-of-the-mill” case that 25 concerned the Dorvee Court, 616 F.3d at 186, the 26 enhancements were not arbitrary as applied to Konn. “Many 27 of the images that Mr. Konn was viewing were horrific in 28 nature.”3 J.A. 928. And Konn easily qualified for the 600- 29 or-more-images enhancement without application of a 30 multiplier for each video.4 Nor does Konn demonstrate that 31 the Guideline fails rational basis review as a facial 32 matter. His argument relies entirely on language from 33 Dorvee; but Dorvee’s concern that § 2G2.2 can lead to 34 irrational, unfair results in “run-of-the-mill” cases, not

3 Some of these images depicted the rape of infants and toddlers; prepubescent females engaged in bestiality; the insertion of objects into prepubescent females’ genital areas; and a prepubescent female performing oral sex on an adult with a knife held to her head. J.A. 916, 928.

4 Konn’s offense included at least 499 still images and 865 videos, exceeding 600 images prior to application of the 75-images-per-video multiplier. J.A. 916; see U.S.S.G. § 2G2.2 cmt. n.4(B)(ii).

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1 all cases, has no bearing on a facial challenge. See United 2 States v. Salerno, 481 U.S. 739, 745 (1987). 3 4 For the foregoing reasons, and finding no merit in 5 Konn’s other arguments, we hereby AFFIRM the judgment of the 6 district court. 7 8 FOR THE COURT: 9 CATHERINE O’HAGAN WOLFE, CLERK