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No. 15-1993

 

United States of America
Plaint?- Appellee
V.

Joshua Welch

Defendant - Appellant

Appeal from United States District Court
for the District of Nebraska - Omaha

Submitted: November 1 9, 20 5
Filed: January 21, 2016

Before RILEY, Chief Judge, BEAM and KELLY, Circuit Judges.

BEAM, Circuit Judge.

Joshua Welch was convicted of receiving, attempting to receive, and accessing
with intent to View child pornography in Violation of 18 U.S.C. 2252A(a)(2),

 He challenges the district court's1 denial of his motion to suppress and
(2) exclusion of hearsay evidence. We af?rm.

I. BACKGROUND

The FBI began an investigation in 2012 into a computer server in Bellevue,
Nebraska, that was hosting child-pornography websites. This case pertains to one of
those websites, "PedoBook." The website operates on a clandestine network,
accessible only with special software and designed to obscure a user's identity. This
prevented FBI agents from discovering the Internet Protocol (IP) addresses of
PedoBook users. An Internet Service Provider (ISP) assigns an IP address to an
individual computer using its Internet service and associates the IP address with the
physical address to which that service is being provided. If investigators know an
Internet user's IP address, they can subpoena that user's ISP to provide the associated
physical address.

Rather than shut the server down, the FBI sought to install software on the
server that would circumvent this network, providing agents with information about
any user who accessed certain content on PedoBook (the "Network Investigative
Technique" or NIT). This information included the user's IP address, the date and
time the user accessed the content, and his or her computer's operating system. The
FBI obtained a warrant (the NIT warrant) to install the software in November 2012
and kept the website in operation for approximately three weeks, collecting
information on several PedoBook users. Based on this information, the FBI obtained
Welch's IP address. Sometime around December 11, 2012, the FBI received the
subscriber information for that IP address from an ISP, revealing Welch's name and
the address of his Florida residence. The FBI obtained a warrant to search that

 

1The Honorable Joseph F. Bataillon, United States District Judge for the
District of Nebraska.

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address on April 4, 2013 (the residential search warrant). On April 9 agents executed
the residential search warrant and arrested Welch, and he was provided with notice
of the NIT warrant shortly thereafter.

Before trial, Welch objected to the introduction of evidence obtained as a result
of the NIT warrant. He argued the failure of agents to provide a copy of the warrant
to him within the time allowed under Federal Rule of Criminal Procedure 41 
violated his rights under the Fourth Amendment. Upon recommendation from a
magistrate judge, the district court denied the motion. The district court held that the
rule was not violated and, in the alternative, that any violation did not amount to a
constitutional violation. During trial, counsel for Welch cross-examined the
investigating agent who swore out the af?davit supporting the application for the
residential search warrant. "Based on [the agent's] previous investigative experience
related to child pornography investigations, and the training and experience of other
law enforcement of?cers with whom [he had] had discussions," the af?davit
enumerated the types of evidence of?cers would expect to ?nd in the home of a
typical consumer of child pornography. Counsel for Welch sought to question him
about this list of expected evidence for the purpose of asking the agent whether that
evidence was found in Welch's home. The government vigorously objected to the use
of statements in the af?davit in questioning the agent on the basis of hearsay and
relevance. The district court sustained the government's objection.

The jury returned a guilty verdict. Welch now appeals, arguing the district
court should have suppressed evidence obtained from the NIT warrant and that it
should have admitted the statements in the af?davit underlying the residential search

warrant.2

 

2In his brief, Welch alludes to a third argument, that the evidence was
insuf?cient to support his conviction. Although he references this argument in the
Summary of the Argument and Standard of Review sections of his brief, he does not

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II. DISCUSSION
1. Rule 41(1) Notice of the NIT Warrant

Federal Rule of Criminal Procedure 41(f) requires that a copy of an executed
search warrant be provided to the owner of the property seized, but by statute such
provision may be delayed under certain circumstances for thirty days or to a later date
certain and of?cers may seek extensions.3 The NIT warrant provided that because

 

address it in the Statement of the Issues or Argument sections. At no point does he
cite authority, cite to the record, or provide reasoning in support of this argument.
Federal Rule of Appellate Procedure 28(a)(8) requires that briefs contain an
"argument, which must contain: (A) appellant's contentions and the reasons for them,
with citations to the authorities and parts of the record on which the appellant relies."
We ?nd, therefore, that Welch has waived this argument. See also Chav?Velasquez
v. Ashcroft, 367 F.3d 751, 756 (8th Cir. 2004) ("Since there was no meaningful
argument on this claim in his opening brief, it is waived").

3Rule states:

The officer executing the warrant must give a copy of the warrant and
a receipt for the property taken to the person from whom, or from whose
premises, the property was taken or leave a copy of the warrant and
receipt at the place where the of?cer took the property.

Rule 41(f)(3) allows a delay in providing the warrant if authorized by statute. Title
18 U.S.C. 3103a(b) provides that notice of a warrant may be delayed if:

(1) the court finds reasonable cause to believe that providing
immediate notification of the execution of the warrant may have

an adverse result . . . 

(2) the warrant prohibits the seizure of any tangible property, any

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immediate noti?cation may have an adverse impact on the investigation, notice may
be delayed by thirty days.

Welch argues the district court erred in admitting evidence obtained as a result
of the NIT warrant because he was provided notice beyond the thirty-day time period
and that such delay violated Rule 41, and thereby the Fourth Amendment. "When
reviewing a district court's denial of a suppression motion, we review for clear error
the district court's factual ?ndings and review de novo whether the Fourth
Amendment was violated." United States v. Bell, 480 F.3d 860, 863 (8th Cir. 2007).
Importantly, a Rule 41 violation amounts to a violation of the Fourth Amendment

 

warranting exclusion "only if a defendant is prejudiced or if reckless disregard of
proper procedure is evident." United States v. Spencer, 439 F.3d 905, 913 (8th Cir.
2006)

 

 

wire or electronic communication . . . or . . . any stored wire or
electronic information, except where the court ?nds reasonable
necessity for the seizure; and

(3) the warrant provides for the giving of such notice within a
reasonable period not to exceed 30 days after the date of its
execution, or on a later date certain if the facts of the case justify
a longer period of delay.

"Adverse result" in 3103a(b)(l) is de?ned under 18 U.S.C. 2705(a)(2),
inter alia, as "?ight from prosecution," "destruction of or tampering with evidence,"
or "otherwise seriously jeopardizing an investigation." Section 3103a(c) further
provides that such delay

may be extended by the court for good cause shown, subject to the
condition that extensions should only be granted upon an updated
showing of the need for further delay and that each additional delay
should be limited to periods of 90 days or less, unless the facts of the
case justify a longer period of delay.

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The district court found that the warrant intended the thirty-day notice period
to begin running when the FBI identi?ed an individual "behind the keyboard." This
occurred in April 2013 when of?cers executed the residential search warrant on
Welch's home. Before that time, the FBI possessed a residential address but could not
identify which individual at that residence had accessed the website. The district
court concluded that sending a copy of the warrant to the identi?ed address before
identifying an individual would seriously jeopardize the investigation. By this
calculation, Welch was given notice two days after the FBI identi?ed him, well
within the thirty-day period. Alternatively, the district court found no showing of
prejudice or reckless disregard of procedure.

Welch argues that the thirty-day period began to run from the date the
government received the subscriber information for Welch's IP address from his ISP
in December 2012. Welch points to testimony by investigating agents that the NIT
warrant was used to obtain a user's IP address. Thus, argues Welch, the subject of the
warrant was the subscriber assigned that IP address, and so the subject was
"identi?ed" in December, not the following April. Because Welch did not receive
notice of the NIT warrant until April 2013, he argues the delay was 122 days, well
past the 30 days provided for in the warrant. Furthermore, Welch argues this 122-day
delay showed reckless disregard of proper procedure. The government reasserts the
district court's ?ndings and conclusions. It also argues that Rule 41 is simply
inapplicable to the NIT warrant because it merely collected information and did not
seize property interfering with a possessory interest of Welch's. The government
argues that Welch had no reasonable expectation of privacy in his subscriber
information.

We assume, without deciding, that Rule 41 applies to the NIT warrant.4 The
statute authorizing the magistrate judge to delay notice is perfectly clear?the thirty-
day extension runs from the execution of the warrant. 18 U.S.C. 3103a(b)(3). This
occurred on November 19, 2012, meaning notice was to be provided within thirty
days of that date. Moreover, the "notice" provided by the government was
insuf?cient. The government points to a hearing Welch attended in which an agent
testi?ed about the NIT and to the entry of the residential search warrant into evidence
as notice "provided during the discovery process." But under Rule 41 Welch should
have been given a copy of the NIT warrant. Of course it is plainly true that if agents
were required to send a copy of the warrant to the subscriber address they obtained
before they could search the premises and identify the individual user, Welch would
have had ample time to ?ee prosecution, destroy or tamper with evidence, and
otherwise seriously jeopardize the investigation. But these special considerations
would have allowed for the magistrate judge to either specify a later date certain,
which he did not do, or for the government to return for extensions of time under
3103a(c), which it did not do. Therefore, the notice given Welch failed to comport
with Rule 41.

 

4Rule requires that a copy of the warrant and a receipt of the
property taken be left with the "person from whom, or from whose premises, the
property was taken." Rule 41 de?nes property to "include[] documents, books,
papers, any other tangible objects, and information." Fed. R. Crim. P. 
(emphasis added). Whether Welch's IP address (which is generated by a third party
and assigned by the ISP), the time and date he accessed PedoBook content, and his
computer's operating system are the kind of "information" considered to be property
under Rule 41 is an open question. Because we af?rm the district court, we need not
address that argument here. (Whether, as the government asserts, Welch did not have
a reasonable expectation of privacy in that information is a question that governs the
applicability of the Fourth Amendment, not Rule 41.)

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As we have explained, however, a procedural violation is not per se an
unreasonable search and seizure in violation of the Fourth Amendment. 
States V. Freeman, 897 F.2d 346, 348-49 (8th Cir. 1990). Welch must show, in
addition to the Rule 41 violation, either that he was prejudiced by the violation or that

 

the investigators recklessly disregarded proper procedure. I_d. Welch argues the
delay was a reckless disregard of proper procedure because it extended so far beyond
the thirty-day period. We disagree.

The application for the search warrant requested authorization to postpone
notice "until 30 days after any individual accessing [PedoBook] has been identi?ed
to a suf?cient degree as to provide notice." The NIT warrant indicated a thirty-day
delay had been granted, but it did not specify whether that period ran from execution
of the warrant or from identi?cation of an individual. Because the warrant
application speci?cally requested the latter, it appears the of?cers' delay was a good-
faith application of the warrant rather than a deliberate violation of Rule 41. This
conclusion is corroborated by the agent that swore out the af?davit and applied for
the NIT warrant, who testi?ed that the "delayed notice period was to begin when the
government identi?ed the true name user of an individual that accessed one of these
three websites." Believing the warrant ran from the point at which they identi?ed
Welch as the individual at that address accessing PedoBook, of?cers 
provided him with notice. That agents did not provide Welch an actual copy of the
NIT warrant again appears to be an error made in good faith and not a deliberate
procedural violation. The district court's ?nding that any Rule 41 violation was not
due to reckless disregard of proper procedure was not clearly erroneous.

Furthermore, there is no evidence of prejudice to Welch. "To determine
prejudice, we ask whether the search would have occurred had the rule been followed.
If so, there is no prejudice to the defendant." United States v. Hyten, 5 F.3d 1154,
1157 (8th Cir. 1993). Nothing in the record indicates that had the of?cers followed

 

Rule 41 they would not have been able to search Welch's residence and obtain the
evidence they did. The nature of the investigation indicates they could have easily
obtained extensions had they sought them. The indictment charged eight different
PedoBook users and premature notice to one user risked adverse effects on the other
pending investigations. Therefore, the district court's ?ndings that any Rule 41
violation did not prejudice Welch was also not clearly erroneous. Accordingly, the
delayed notice to Welch of the NIT warrant did not violate the Fourth Amendment
and so did not warrant suppression of evidence obtained from it.

2. Cross-Examination of the Agent

Welch also argues that the district court violated his rights under the
Confrontation Clause of the Sixth Amendment by sustaining the government's
hearsay objection to his use of an af?davit during cross-examination of a witness.
The Confrontation Clause prohibits admission of testimonial statements by an
unavailable witness against a criminal defendant unless the defendant has had an

opportunity to cross-examine the witness. Crawford v. Washington, 541 US. 36, 59

 

(2004). "We review evidentiary rulings for abuse of discretion. Even when an
evidentiary ruling is improper, we will reverse a conviction on this basis only when
the ruling affected substantial rights or had more than a slight in?uence on the
verdict." United States v. Gustafson, 528 F.3d 587, 590-91 (8th Cir. 2008) (citation
omitted). "We review de novo evidentiary rulings that 'implicate constitutional
rights."' United States v. Campbell, 764 F.3d 880, 887 (8th Cir. 2014) (quoting
United States v. Pumpkin Seed, 572 F.3d 552, 558 (8th Cir. 2009)), cert. denied 135
S. Ct. 1514 (2015).

 

 

 

 

Welch ?rst appears to argue that the af?davit was not hearsay under Federal
Rule of Evidence 801(d)(1) as a declarant-witness's prior statement. He also argues
that the af?davit was admitted into evidence and that he was denied an opportunity

to confront the agent about it, in violation of the Confrontation Clause. The
government responds that the af?davit was hearsay, the agent was subject to

extensive cross-examination, and the af?davit was not received in evidence.

The af?davit contained out-of-court statements made by the agent, and Welch
sought to offer them for the truth of the matters asserted?that the agent expected to
?nd particular types of evidence in Welch's home. Rule 801(d)(l) is inapplicable
because the agent had not given any testimony?consistent or inconsistent with the
af?davit?about what he expected to ?nd. We acknowledge an argument could be
made (but was not in this case) that the af?davit is admissible under Rule 801(d)(2)
as the statement of a party opponent or under Rule public?records exception.
See United States v. Ramirez, 894 F.2d 565, 5 70 (2d Cir. 1990). We need not address
these arguments, however, as we ?nd that any purportedly improper exclusion did not

 

prejudice the outcome of the trial. The record reveals abundant evidence of Welch's
guilt, and we ?nd the presence or absence of expected evidence in Welch's home
would not have had more than a slight in?uence on the verdict. Moreover, counsel
for Welch did not need to rely on the statements in the af?davit to develop his theory
that Welch's residence did not contain the type of evidence expected to be found in
the home of a consumer of child pornography. He was free to directly question the
agent on the agent's expectations or to introduce an expert on the subject during his
case in chief. Second, although the af?davit was received into evidence in a motion?
to-suppress hearing before the magistrate judge, it was not offered into evidence at
trial and at no point was the agent questioned about its contents on direct
examination. Furthermore, the agent was thoroughly cross?examined. Accordingly,
there was no violation of the Confrontation Clause.

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 CONCLUSION

For the reasons stated herein, we af?rm the district court in all respects.

 

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