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United States v. Jarman

United States Court of Appeals, Fifth Circuit

February 1, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
GEORGE WILLIAM JARMAN, Defendant-Appellant

         Appeal from the United States District Court for the Middle District of Louisiana

          Before JOLLY, SMITH, and PRADO, Circuit Judges.

          E. GRADY JOLLY, Circuit Judge

         George Jarman conditionally pleaded guilty to the receipt and attempted receipt of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2) and (b)(1). He challenges the district court's denial of both his motion to suppress evidence obtained in the search of his home and his motion for reconsideration. He contends that the district court erred because: (1) it should not have applied the good faith exception to the exclusionary rule; (2) the search-warrant affidavit for his home does not establish probable cause; and (3) the Government's delay in searching the computers seized from his home violated the Fourth Amendment and Federal Rule of Criminal Procedure 41. Because the good faith exception applies and the Government's post-seizure delay did not violate the Fourth Amendment, we AFFIRM.

         I.

         The FBI began investigating Jarman when Jason Collins, the co-owner of a computer repair store, called FBI Special Agent ("SA") Larry Jones in November 2007. Collins told SA Jones that he suspected one of his customers had child pornography on his hard drive. He said that the customer had purchased a new computer and asked him to transfer the data from an old computer's hard drive onto it and to wipe the old hard drive clean. Collins's part-time employee, Charlie Wilson, performed the transfer at the customer's home. During the transfer, Wilson, who could see the file names, but not the actual files being copied, noticed file names which appeared to indicate child pornography. Wilson told Collins what he had seen, and Collins asked Wilson to bring the old hard drive back to the store.

         Collins inspected that hard drive, finding several file names suggestive of child pornography that he could not open and a video file in the root directory depicting a male performing anal sex on a prepubescent male child. Collins did not tell SA Jones the names of any of the alleged child pornography computer files. But he told SA Jones that he did not believe that the video file had been transferred to the new computer because it was on the hard drive's root directory. At the end of the interview, SA Jones asked Collins to keep the customer's hard drive until the FBI contacted him.

         SA Jones requested that an investigation be opened into the allegations, and SA Thomas Tedder was assigned the case. Shortly thereafter, SA Tedder began collaborating with Department of Justice ("DOJ") attorneys on the case.

         In January 2008, SA Tedder re-interviewed Collins. Collins gave SA Tedder the customer's hard drive[1] and told him generally the same story he told SA Jones. This time, however, Collins identified the customer as Jarman. He also provided more detail about the video file he had seen. When he went through the hard drive, Collins explained, he selected one suspected file and copied it to his computer to view. That file contained a grainy image of an adult male sodomizing a pre-pubescent child whom Collins believed to be under the age of twelve. After viewing that file, Collins stopped looking at the drive and contacted the FBI. Notably, Collins now claimed that he believed that Wilson copied all of the old data-including the possible child pornography- to Jarman's new computer, even though he had previously stated that the video file containing possible child pornography was not transferred to the new computer. SA Tedder testified that he asked Collins about this inconsistency and that Collins stood by his new conclusion.

         By March 2008, DOJ prosecutor Michael Yoon and SA Tedder had begun drafting a search-warrant affidavit for Jarman's home. While Yoon did most of the drafting, SA Tedder corrected misunderstandings of fact and revised language at least once.

         As of late March 2008, SA Tedder was aware of two investigations by U.S. Immigration and Customs Enforcement ("ICE") that implicated Jarman. In the first investigation, which concerned the child pornography site "illegal.CP, " ICE obtained Jarman's email address when it acquired the email addresses of those who had purchased access to the website. In the second investigation, which concerned the child pornography site "Home Collection, " ICE determined that Jarman purchased subscriptions to three child pornography sites in seven transactions from October 2006 to January 2007.

         SA Tedder testified that he talked to ICE agents about these investigations and reviewed all of the relevant evidence to ensure that the screen captures ICE took from these websites were of prepubescent children and that Jarman was, in fact, the person identified in the investigations. Moreover, he served a subpoena on Cox Communications to confirm that the email address that ICE tied to Jarman's home was an active account belonging to Jarman. However, SA Tedder testified that he did not have any direct knowledge that Jarman actually downloaded files from these child pornography sites when drafting the search-warrant affidavit.

         In December 2008, SA Tedder submitted a search-warrant affidavit for Jarman's home. A magistrate judge signed the search warrant on December 5th. Three days later, the FBI executed the warrant, seizing several hard drives and computers from Jarman's home.

         Because Jarman was an attorney, the FBI used a "taint process" to review the seized data. In this process, a "taint team, " which consisted of a DOJ attorney and a FBI computer expert, initially screened the seized data for any potentially privileged material before turning it over to the prosecution team. ...


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