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Date: 01-27-2019
Case Style:
United States of America v. Donald Ray Boles
Case Number: 17-1138-CR
Judge:
Court: United States Court of Appeals for the Second Circuit on appeal from the District of Vermont
Plaintiff's Attorney: Barbara A. Masterson and Gregory L. Waples
Defendant's Attorney: Steven L. Barth and, Barclay T. Johnson - FPD
Description:
In this case, defendant‐appellant Donald Ray Boles was convicted in
the United States District Court for the District of Vermont, following a jury trial,
of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). On
April 17, 2017, the district court sentenced him principally to 120 monthsʹ
incarceration and a ten‐year term of supervised release. On appeal, he contends
that the district court erred in denying his motion to suppress evidence obtained
in a search of his home pursuant to a warrant. He raises other issues relating to
his trial and sentence. We affirm the conviction and sentence, except that we
vacate the ʺriskʺ condition of his supervised release and remand in that respect
only.
BACKGROUND
A. The Facts1
In 2001, in an earlier case, Boles pleaded guilty to possession of child
pornography, also in the U.S. District Court for the District of Vermont. The
court (Sessions, J.) sentenced him to 15 months in prison and two yearsʹ
1 The facts herein are drawn from the affidavit that supported the warrant for Bolesʹs arrest, J. App.
40‐66.
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supervised release. Boles served his prison term and completed his supervised
release on August 8, 2004.
In January 2010, the Innocent Images Operations Unit (the ʺIIOUʺ) of
the Federal Bureau of Investigation (the ʺFBIʺ) investigated the distribution of
child pornography via an online message board called ʺGirls.Forumcircle.com.ʺ
The IIOU investigation revealed that the message board was passwordprotected,
had around 65 members, and was utilized to trade both illegal child
pornography and legal ʺchild eroticaʺ (images of children that are not sexually
explicit but that may be ʺsexually arousing to a given individual,ʺ see United
States v. Martin, 426 F.3d 68, 79 (2d. Cir. 2005)). The investigation further
revealed that a user named ʺdrb05ʺ was a member of Girls.Forumcircle.com and
was linked to the email address ʺdrb0505@hotmail.com.ʺ
Between August and November 2009, the administrator of
Girls.Forumcircle.com posted messages that usersʹ accounts would be deleted if
they did not post photos or videos on the forum by November 30. On November
30, 2009, user drb05 posted 13 images of child erotica (not child pornography)
depicting a young girl in sexually suggestive poses. User drb05 also posted two
comments on the message board indicating a sexual interest in young girls: one
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in response to other usersʹ posts of child erotica on November 29 and one
accompanying drb05ʹs post of child erotica on November 30.
On July 19, 2010, the IIOU served a subpoena on Microsoft. The
responsive materials revealed that ʺdrb0505@hotmail.comʺ was associated with a
ʺDon Bʺ in ʺVermont, 05301.ʺ The materials also revealed a log of IP addresses
for recent logins for drb0505@hotmail.com. On August 4, 2010, the IIOU
subpoenaed internet service provider FairPoint Communications (ʺFairPointʺ)
requesting information about subscribers associated with the IP addresses
obtained from Microsoft, but FairPoint responded that it could not link IP
addresses to specific subscribers.
During its investigation, the IIOU also operated an FBI undercover
website that advertised access to free child pornography. The ʺhome pageʺ of the
website made clear that its purpose was to share child pornography. The home
page also contained a login field that required a unique password to access the
rest of the website. Users obtained unique passwords by responding to a
personal email advertisement sent undercover by the FBI. Once a user entered
the unique password, the user was taken to the ʺlanding page,ʺ which listed and
described free child pornography videos available to view or download. When a
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user clicked on the ʺdownloadʺ button for any of these videos, the website
recorded the userʹs IP address, video sample number, and the number of
downloads attempted, but no child pornography was actually made available.
The landing page also included a link to a ʺpaid area,ʺ where users could
ostensibly pay to view a live stream of child pornography from Eastern Europe.
On September 2, 2010, the FBI sent such an email to
drb0505@hotmail.com. On September 6, 2010, a user from IP address
72.92.136.14 accessed the home page of the undercover website and entered the
unique password sent to drb0505@hotmail.com. After arriving at the landing
page, however, this user did not attempt to view or download any of the
advertised child pornography videos or access the ʺpaid areaʺ of the undercover
website. At some point after sending the first email, an agent sent a new email to
drb0505@hotmail.com, but the user did not respond. Using this information, the
IIOU again served a subpoena upon FairPoint requesting the information of any
subscribers associated with the IP address 72.92.136.14, but FairPoint again
stated that it could not link subscribers to IP addresses.
Nearly one year later, on July 21, 2011, FBI Special Agent Jeffrey
Alford sent an email to FBI Special Agent Christopher Hughes regarding an
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application for a warrant to search Bolesʹs residence, as Boles was the suspected
owner of drb0505@hotmail.com. In this email, Alford asked whether there had
been recent efforts to reach out to Boles regarding the undercover website,
acknowledging that ʺI might otherwise now have a ʹstalenessʹ issue.ʺ J. App. 67.
Hughes responded that he had sent a new email but ʺ[Boles] did not respond to
the new request ‐‐ there may be a staleness issue with this at this point but itʹs
worth seeing if the AUSA will go for it.ʺ J. App. 69. On August 19, 2011, the
agents confirmed from a subpoena served upon eBay that drb0505@hotmail was
operated by Boles, and the subpoena also revealed Bolesʹs home address.
On August 25, 2011, the agents applied for a warrant to search and
seize computer evidence from Bolesʹs residence. The district court (Sessions, J.)
issued the warrant the same day, finding that probable cause supported the
request. The agents executed the warrant on September 6, 2011. More than 100
images of child pornography were discovered on Bolesʹs computer and hard
drives.
B. Proceedings Below
On July 15, 2014, Boles was charged with possession of child
pornography in violation of 18 U.S.C. § 2252(a)(4)(B). He was ultimately tried on
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a second superseding indictment (the ʺIndictmentʺ) that charged three counts:
one count of possessing child pornography and two counts of access with intent
to view child pornography, all in violation of 18 U.S.C. § 2252(a)(4)(B).
On December 22, 2014, Boles moved to suppress the seized evidence
on the basis that the warrant was not supported by probable cause and the
information in the affidavit was stale when the warrant was issued. The district
court denied Bolesʹs motion in a written decision filed April 2, 2015.2
Trial commenced on May 31, 2016. The district court received into
evidence, over Bolesʹs objection, two computers (with hard drives inside) and a
separate hard drive seized at Bolesʹs residence pursuant to the warrant. Labels
affixed to the computers and hard drives identified the manufacturer and
showed the place of origin as being outside the United States (China and
Thailand). Boles argued that the labels were hearsay. The district court
overruled the objection and admitted the computer evidence. The district court
also permitted an FBI agent to testify, again over defense counselʹs objection, that
the types of computer hardware in question (Hitachi, Compaq, and Hewlett
Packard) were manufactured outside the United States. On June 3, 2016, the jury
2 In its opinion, the district court noted that it was ʺin the somewhat unusual position of
reviewing a warrant that it issued in the first place.ʺ J. App. 97.
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convicted Boles on the possession count but acquitted him on the two access
charges.
Prior to sentencing, Boles objected to several conditions of
supervised release proposed in his PSR, including two at issue on this appeal:
(1) the ʺriskʺ condition, which requires Boles to notify any person or organization
of any risk he posed if his probation officer determined Boles was a risk; and (2)
the ʺpolygraphʺ condition, which requires Boles to submit to a polygraph exam
as directed by the probation officer as part of his sex offender treatment program.
At sentencing on April 17, 2017, the district court overruled Bolesʹs objections to
the conditions. The district court sentenced Boles to 120 monthsʹ imprisonment
‐‐ the mandatory minimum ‐‐ and ten yearsʹ supervised release, imposing the
disputed conditions.
This appeal followed.
DISCUSSION
On appeal, Boles raises three principal challenges: (1) the district
court erred in denying his motion to suppress because the search warrant issued
without probable cause; (2) the government failed at trial to sufficiently prove
the interstate or foreign commerce element of the crime of conviction; and (3) the
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district court erred in sentencing him to a mandatory minimum term of
imprisonment and in imposing the two disputed conditions of supervised
release. We discuss each challenge in turn.
I. The Motion to Suppress
Boles argues that the warrant to search his residence was not
supported by probable cause because the affidavit submitted in support of the
request for the warrant alleged nothing more than legal activity and was based
on stale information. The government contends, however, that the district court
did not err in finding probable cause because the record established that Boles
was a collector of child pornography who likely was hoarding such images.
Moreover, the government argues that, even assuming the warrant issued
without probable cause, the district court did not err in denying the motion
based on the good faith exception to the exclusionary rule.
We do not decide whether probable cause existed to support the
issuance of the warrant, for we agree that in the circumstances here, even
assuming the warrant was not supported by probable cause, the good faith
exception applies.
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A. Applicable Law
The Fourth Amendment prohibits ʺunreasonable searches and
seizuresʺ and provides that ʺno Warrants shall issue, but upon probable cause,
supported by Oath or affirmation.ʺ U.S. Const. amend. IV.
In determining whether probable cause exists to support the
issuance of a warrant, a judge must ʺmake a practical, common‐sense decision
whether, given all the circumstances set forth in the affidavit before him, . . .
there is a fair probability that contraband or evidence of a crime will be found in
a particular place.ʺ United States v. Falso, 544 F.3d 110, 117 (2d Cir. 2008) (quoting
Illinois v. Gates, 462 U.S. 213, 238 (1983)) (alteration in original). ʺOn appeal from
a district courtʹs ruling on a motion to suppress, we review the courtʹs factual
findings for clear error. We review the courtʹs legal determinations, including
the existence of probable cause and the good faith of officers relying on a search
warrant, de novo.ʺ United States v. Raymonda, 780 F.3d 105, 113 (2d Cir. 2015)
(citation omitted). We accord ʺʹsubstantial deference to the finding of an issuing
judicial officer that probable cause exists,ʹ limiting our inquiry to whether the
officer ʹhad a substantial basisʹ for his determination.ʺ Id. (quoting United States
v. Wagner, 989 F.2d 69, 72 (2d Cir. 1993)).
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Even where a warrant was issued without probable cause in
violation of the Fourth Amendment, suppression of the evidence is not
automatic; rather, because the remedy exacts a heavy toll on the justice system,
the exclusionary rule will apply only to deter ʺdeliberate, reckless, or grossly
negligent conductʺ by law enforcement. Herring v. United States, 555 U.S. 135, 144
(2009). Accordingly, ʺ[w]hen an officer genuinely believes that he has obtained a
valid warrant . . . and executes that warrant in good faith, there is no conscious
violation of the Fourth Amendment, ʹand thus nothing to deter.ʹʺ Raymonda, 780
F.3d at 118 (quoting United States v. Leon, 468 U.S. 897, 921 (1984)); see also Falso,
544 F.3d at 125 (explaining that evidence obtained by officers ʺin objectively
reasonable relianceʺ on a subsequently invalidated warrant is not generally
subject to exclusion).
For an officer to be able to claim the benefits of the good faith
exception, however, his reliance on a warrant must be objectively reasonable. See
Leon, 468 U.S. at 922. Thus,
the good faith exception cannot shield [] an
officer who relies on a duly issued warrant in at
least four circumstances: (1) where the issuing
magistrate has been knowingly misled; (2) where
the issuing magistrate wholly abandoned his or
her judicial role; (3) where the application is so
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lacking in indicia of probable cause as to render
reliance upon it unreasonable; and (4) where the
warrant is so facially deficient that reliance upon
it is unreasonable.
Raymonda, 780 F.3d at 118 (quoting United States v. Clark, 638 F.3d 89, 100 (2d Cir.
2011); see also Leon, 468 U.S. at 923 (suppression is an appropriate remedy if the
magistrate issuing the warrant was ʺmisled by information in an affidavit that
the affiant knew was false or would have known was false except for his reckless
disregard of the truthʺ). ʺWhen the police exhibit ʹdeliberate,ʹ ʹreckless,ʹ or
ʹgrossly negligentʹ disregard for Fourth Amendment rights, the deterrent value of
exclusion is strong and tends to outweigh the resulting costsʺ of suppression.
Davis v. United States, 564 U.S. 229, 238 (2011) (internal quotation marks omitted).
B. Application
The existence of probable cause in this case presents a close
question. We need not decide the issue, however, because we conclude that,
even assuming probable cause was lacking, the good faith exception applies.
The government argues that even if the warrant to search Bolesʹs residence was
not supported by probable cause, the FBI agents were justified in relying on the
district courtʹs determination that the warrant was valid. We agree.
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In Raymonda, we directly addressed the exclusionary rule in the
context of an affidavit containing potentially stale and misleading information.
In that case, the affidavit supporting the warrant application alleged only that, on
one occasion nine months earlier, a user with an IP address associated with
Raymondaʹs home opened between one and three pages of a website housing
thumbnail links to images of child pornography but did not click on any
thumbnails to view full‐sized files. 780 F.3d at 117. The affidavit was written as
to suggest that the suspect intentionally accessed 76 pornographic images, and,
significantly, it omitted the fact that the images were open for just seventeen
seconds, a time span consistent with a user having ʺsimply closedʺ the site
immediately after clicking on it, rather than intentionally saving or viewing all of
the images that his browser had accessed. Id. at 111‐12.
Absent any further indicia that Raymonda was a collector of child
pornography, we concluded that the single incident of access, which was ʺat least
equally consistent with an innocent user inadvertently stumbling upon a child
pornography website,ʺ did not create a fair probability that child pornography
would be found on Raymondaʹs computer months later. Id. at 117. We therefore
agreed with the district court that the warrant lacked probable cause. We
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reversed, however, the district courtʹs grant of Raymondaʹs motion to suppress
the evidence, holding that the agents who had executed the search were entitled
to rely in good faith on the duly issued warrant for two reasons: (1) the
magistrate judge had reached an independent determination of probable cause
that, while ultimately incorrect, was not contrary to established law or so facially
deficient that reliance upon it would be unreasonable, and (2) we disagreed with
the district court that an agent had acted in such a ʺgrossly negligentʺ manner
with respect to the warrant application as to justify exclusion of the evidence.
See id. at 121.
In concluding that the agent had not been grossly negligent, first, we
disagreed with the district court that the agent was effectively on notice about a
staleness issue with the nine‐month old evidence because he had previously
worked on a case in which one‐year‐old evidence was found to be stale. Id. at
119. We explained that the agentʹs knowledge that an earlier case found nearly
year‐old evidence too stale to create probable cause could not have given him
sufficient notice that his affidavit in Raymonda would be found equally deficient.
See id. (ʺ[A prior holding by a district court cannot establish a binding principle
of law sufficient to undermine an agentʹs good faith reliance on a later warrant.ʺ).
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Second, we rejected the argument that there were key omissions and
exaggerations in the affidavit that had materially misled the magistrate judge
issuing the warrant. Although we acknowledged that the agent ʺmay have
exaggerated the significance ofʺ certain facts and potentially ʺmischaracteriz[ed]ʺ
the evidence, we nevertheless determined that, absent a finding that the agent
intended to deceive the magistrate judge with these statements, the ʺoversightsʺ
fell ʺshort of deliberate deception or gross negligence.ʺ Id. at 120. We therefore
held that agents were entitled to rely in good faith on the warrant. See id. at 121.
As in Raymonda, the agents in this case were entitled to rely in good
faith on the duly issued warrant. First, the district court made an independent
determination that the warrant was supported by probable cause, which it based
primarily on: (1) Bolesʹs membership in Girls.Forumcircle.com and his postings
of child erotica; (2) Bolesʹs visit to the FBI Undercover website using the unique
code that was emailed to him; and (3) Bolesʹs prior conviction for possession of
child pornography. Even assuming that these facts did not add up to probable
cause, the existence of probable cause in this case is an exceedingly close
question. Accordingly, the courtʹs finding of probable cause was not facially
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insufficient such that any reliance upon the warrant would be unreasonable. Id.
at 121.
Second, as in Raymonda, the representations in the affidavit here
were not intentionally false, reckless, or grossly negligent such as to otherwise
preclude the good faith exception. Boles attempts to distinguish this case from
Raymonda on the ground that here the agents were specifically aware that ʺthere
may be a staleness issue with [the evidence]ʺ prior to applying for the warrant.
We are not persuaded, however, that the agents acted in reckless disregard of
Bolesʹs Fourth Amendment rights merely because they knew of a possible
staleness issue before applying for the warrant. As the district court noted, the
exchange does indicate ʺsome degree of uncertainty on the part of the agentsʺ as
to whether the evidence would be considered stale. Sp. App. 15. But there was
nothing inappropriate in their leaving the issue to the prosecutor and court to
resolve. As this Court has repeatedly recognized, there is ʺno bright‐line rule for
staleness,ʺ Walcyzk v. Rio, 496 F.3d 139, 162 (2d Cir. 2007), which depends ʺon the
basis of the facts of each case,ʺ United States v. Martino, 664 F.2d 860, 867 (2d Cir.
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1981); accord Raymonda, 780 F.3d at 114. While some of the information here
arguably was stale, other facts weighed against a finding of staleness. 3
Even assuming the information was stale, the agents disclosed the
information to a neutral and detached judge, who was made aware of the
ʺstaleness issueʺ and the relevant facts and circumstances, but nevertheless
issued the warrant. The agents cannot be said to have acted in bad faith by
asking a judge to decide the question of staleness. See Leon, 468 U.S. at 922
(evidence seized ʺin objectively reasonable reliance onʺ warrant issued by
detached and neutral judge is admissible, even where reviewing court later
determines warrant was invalid).
3 For example, (1) Boles had previously been convicted of possession of child
pornography in June 2000, see Raymonda, 780 F.3d at 114 (evidence that ʺpersons
possessed child pornography in the past supports a reasonable inference that they
retain those images ‐‐ or have obtained new ones ‐‐ in the presentʺ); (2) Boles apparently
had joined Girls.Forumcircle.com, a website used for posting and trading illegal child
pornography and legal erotica, see Martin, 426 F.3d at 73 (upholding warrant to search
defendantʹs computer where he had recently joined an Internet group devoted to
distributing child pornography, even absent evidence that he had actually accessed any
illicit images through that site); and (3) Boles had entered a unique code enabling him to
access the FBI undercover page, which advertised its purpose as the distribution of
child pornography, see United States v. Vosburg, 602 F.3d 512, 517 (3d Cir. 2010) (no
staleness where suspect had to enter decoded URL and could not access images of child
pornography ʺwith a simple click of the mouseʺ).
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Finally, we note that the affidavit in this case disclosed that Boles
had not attempted to download child pornography from the FBI undercover
website and that he had not responded to the FBIʹs second email solicitation.
Hence, the agents disclosed these facts to the district court, and the district court
noted these facts in nonetheless denying the motion. While the agents here
arguably should have provided more information, including, for example,
details relating to the Girls.Forumcircle.com website, any omissions and
exaggerations were not as egregious as those in Raymonda, where we held that
the good faith exception applied even though there were at least arguable
omissions and exaggerations in the agentʹs affidavit. See 780 F.3d at 122 (Chin, J.,
dissenting). We are hard‐pressed to conclude that the agents acted in a
deliberate or reckless or grossly negligent manner here.
We therefore agree with the district court that, despite the agentsʹ
uncertainty as to whether the evidence was stale, ʺ[o]nce the Court ruled on the
legal sufficiency of the facts alleged in the affidavit, the officers were justified inʺ
subsequently relying on that determination and executing the warrant. See Sp.
App. 16; see also Herring, 555 U.S. at 144. We conclude that the district court did
not err in denying Bolesʹs motion to suppress the computer evidence.
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II. The Interstate or Foreign Commerce Requirement
Boles makes three arguments with respect to the interstate or foreign
commerce element of the crime of conviction: (a) the government constructively
amended the Indictment in its proof at trial; (b) the government failed to present
sufficient evidence that the images on his computer were ʺproducedʺ using
materials transported by a means of interstate or foreign commerce; and (c) the
district court erred in admitting evidence that the computers and hard drives
were manufactured outside the United States.
A. Constructive Amendment
Boles argues that the government constructively amended the
Indictment charging him with one count of possession of child pornography
under 18 U.S.C. § 2252(a)(4)(B).4 The Indictment alleged that Boles
4 The statute provides in relevant part:
Any person who . . . knowingly possesses, or knowingly accesses with
intent to view, 1 or more books, magazines, periodicals, films, video
tapes, or other matter which contain any visual depiction that has been
mailed, or has been shipped or transported using any means or facility of
interstate or foreign commerce or in or affecting interstate or foreign
commerce, or which was produced using materials which have been
mailed or so shipped or transported, by any means including by
computer, if ‐‐ (i) the producing of such visual depiction involves the use
of a minor engaging in sexually explicit conduct; and (ii) such visual
depiction is of such conduct; . . . [commits a crime].
18 U.S.C. § 2252(a)(4)(B).
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possessed at least one matter which contained a
visual depiction that was produced using
materials which had been mailed and shipped
and transported using any means and facility of
interstate and foreign commerce, including by
computer, the production of such visual depiction
involved the use of a minor engaging in sexually
explicit conduct, and such visual depiction was of
such conduct.
J. App. 15 (emphasis added). Boles argues that, as written, the Indictment
required the government ʺto prove that the computer hardware was mailed,
shipped, or transported ʹusingʹ a ʹmeans and facility of interstate or foreign
commerce.ʹʺ Def.‐Appellantʹs Reply Br. 15 (emphasis in original). The district
court charged the jury, however, that it had to find only ʺthat the visual depiction
was produced using materials that had been transported in or affecting interstate
or foreign commerce.ʺ J. App. 271. Boles contends that the government failed to
prove the actual means by which the hardware had traveled.
1. Applicable Law
We review a constructive amendment challenge de novo. See United
States v. Agrawal, 726 F.3d 235, 259 (2d Cir. 2013). To prevail on a constructive
amendment claim, a defendant must establish that ʺthe terms of the indictment
are in effect altered by the presentation of evidence and jury instructions which
so modify essential elements of the offense charged that there is a substantial
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likelihood that the defendant may have been convicted of an offense other than
that charged in the indictment.ʺ United States v. DʹAmelio, 683 F.3d 412, 416 (2d
Cir. 2012) (internal quotation marks omitted) (emphasis in original); see also
United States v. Spoor, 904 F.3d 141, 152 (2d Cir. 2018).
Where a defendant fails to raise a claim in the district court, we must
also review for plain error to assess the impact of any alleged error on the
defendantʹs rights. United States v. Taylor, 816 F.3d 12, 18 (2d Cir. 2016). To
establish plain error, a defendant must demonstrate ʺ(1) error, (2) that is plain,
and (3) that affect[s] substantial rights. If all three conditions are met, an
appellate court may then exercise its discretion to notice a forfeited error, but
only if (4) the error seriously affect[s] the fairness, integrity, or public reputation
of judicial proceedings.ʺ Id. (brackets in original) (quoting Johnson v. United
States, 520 U.S. 461, 467 (1997)).
2. Application
Boles argues that, under the Indictment as written, the government
was required to present evidence of the actual means or facility by which the
computer hardware traveled interstate. We conclude that the district court did
not plainly err in charging the jury that it only had to find that the hardware had
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been transported in or affected interstate commerce. Boles did not raise this
issue below, and, as did the government, proceeded on the basis that the
government was required only to prove that the computer hardware traveled in
interstate commerce, not the actual means by which it had traveled.
Furthermore, in discussions with the district court about the jury
charge, defense counsel specifically requested that the jurors not see the actual
Indictment because he did not want them ʺfocusedʺ on it. Boles was therefore
adequately informed about the arguments the government intended to make
about the jurisdictional element and the types of evidence it would produce to
support its theory. Thus, there was no error, much less error that was ʺplain.ʺ
Moreover, for purposes of plain error review, we do not view as
significant the difference between proving (a) the ʺmeans or facilityʺ of interstate
travel (that is, how the equipment was physically transported) and (b) the fact
that the equipment was shipped or transported in interstate or foreign
commerce. See 18 U.S.C. § 2252(a)(4)(B) (referring to any matter containing ʺany
visual depiction that has been . . . shipped or transported using any means or
facility of interstate or foreign commerceʺ or ʺproduced using materials which
have been mailed or so shipped or transported, by any meansʺ).
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Finally, we have held that there is sufficient evidence to support
conviction for possession of child pornography where a defendant possessed
images of child pornography on computer equipment manufactured outside this
country. See United States v. Ramos, 685 F.3d 120, 132‐33 (2d Cir. 2012) (applying
interstate commerce element of § 2252A(a)(5)(B)); accord United States v.
Grzybowicz, 747 F.3d 1296, 1306‐07 (11th Cir. 2014); United States v. Anderson, 280
F.3d 1121, 1125 (7th Cir. 2002). Accordingly, we are not persuaded that the error
ʺaffect[ed] the fairness, integrity, or public reputation of judicial proceedings.ʺ
Johnson, 520 U.S. at 467 (internal quotation marks omitted).
B. The Evidence of ʺProductionʺ
Boles further argues that the government failed to prove that the
hardware was used to ʺproduceʺ the child pornography because the government
did not present evidence that the seized hardware was used to create the child
pornography in the first instance (i.e., that Boles had manufactured the child
pornography using the hardware rather than merely storing copies of the images
on the hardware).
This Court has not specifically addressed the question of whether
merely transferring or copying child pornography using materials that have
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traveled interstate means that the child pornography has been ʺproducedʺ using
those materials as required under 18 U.S.C. § 2552(a)(4)(B). See Ramos, 685 F.3d
at 133 n.10 (explaining that the court would not reach the question of whether
ʺthe mere copying or downloading of an image is ʹproductionʹ for purposes of
the federal child pornography statutesʺ).5
Almost every circuit to address this issue, however, has held that the
word ʺproducedʺ encompasses mere copying or downloading of child
pornography. See United States v. Burdulis, 753 F.3d 255, 262 (1st Cir. 2014)
(images are ʺproducedʺ for the purposes of § 2254(a)(4)(B) when they are copied
or downloaded onto a digital medium); United States v. Dickson, 632 F.3d 186,
189‐90 (5th Cir. 2011) (same); United States v. Angle, 234 F.3d 326, 341 (7th Cir.
2000) (same); United States v. Lacy, 119 F.3d 742, 750 (9th Cir. 1997) (same). But see
United States v. Wilson, 182 F.3d 737, 742‐43 (10th Cir. 1999) (holding that the
5 Although the government argues that we decided this issue in United States v. Pattee, 820
F.3d 496 (2d Cir. 2016), there we interpreted ʺproductionʺ in the context of 18 U.S.C. § 2251,
rather than the statute at issue here, 18 U.S.C. § 2252(a)(4)(B). Moreover, we noted that
[i]t does not follow from this conclusion, however, that merely
transferring or copying a pornographic image that was produced
by someone else is tantamount to ʺproducingʺ child pornography,
such that simple possession, which typically involves making a
copy of a file to a hard disk or other medium, would qualify as
production.
Id. at 511 n.8.
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government produced insufficient evidence to support the interstate commerce
element of § 2252(a)(4)(B) because there was no evidence that the digital
mediums were used to produce the graphic files even though the files could be
stored on the mediums).
Those circuits that have interpreted ʺproducedʺ to include copying
or transferring rely on 18 U.S.C. § 2256(3), which defines the word ʺproducingʺ in
the child pornography and child exploitation statutes to mean ʺproducing,
directing, manufacturing, issuing, publishing, or advertising.ʺ 18 U.S.C.
§ 2256(3); see also Angle, 234 F.3d at 341. The plain meaning of the word
ʺproducedʺ would include producing or making a copy. Moreover, we agree
that to interpret ʺproducedʺ to exclude pulling up images on a computer monitor
is ʺfar too restrictive as it essentially renders meaningless the statutory definition
of ʹproducingʹ [in § 2256(3)] . . . and focuses entirely on the circumstances
surrounding the original or actual production of the visual depiction.ʺ Angle, 234
F.3d at 241. To read the statute this way would require the government to
present evidence about the original materials used to create the child
pornography in every case a defendant is charged under the ʺproduced using
materialsʺ language. Boles fails to point to, and we are unable to find, any
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evidence that Congress intended these subsections to be applied so narrowly.
Indeed, the nature of the industry is that these images are copied over and over
again as collectors share them, and it would be difficult in many cases to prove
the circumstances of the original ʺproduction.ʺ
Therefore, we agree that the government was not required to prove
that the hardware was used to create the pornography in the first instance and
that it was sufficient for the government to prove that the hardware was used to
make, store, or display copies of the pornographic images.
C. The Evidence the Computer Equipment
Was Manufactured Outside the United States
Boles argues that the district court erred by (1) admitting
inscriptions on the back of seized pieces of computer hardware because the
labels were inadmissible hearsay; and (2) allowing Agent Alfin to testify as an
expert about where the relevant companies manufacture hardware.
A district court has ʺbroad discretionʺ over the admission of
evidence. United States v. Nektalov, 461 F.3d 309, 318 (2d Cir. 2006). Accordingly,
ʺ[t]his [C]ourt reviews evidentiary rulings for abuse of discretion.ʺ United States
v. Cummings, 858 F.3d 763, 771 (2d Cir. 2017). ʺA district court has abused its
discretion if it based its ruling on an erroneous view of the law or on a clearly
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erroneous assessment of the evidence or rendered a decision that cannot be
located within the range of permissible decisions.ʺ United States v. Natal, 849 F.3d
530, 534 (2d Cir. 2017) (per curiam) (internal quotation marks omitted).
1. The Hardware Inscriptions
We have not directly addressed whether manufacturersʹ inscriptions
or labels identifying a productʹs country of origin are inadmissible hearsay. We
conclude that the district court did not abuse its discretion in allowing evidence
of the inscriptions here.
As a threshold matter, there is some doubt as to whether the
inscriptions are hearsay at all, as the government, relying principally on gun
cases, argues that under the ʺmechanical traceʺ theory, markings on products
designating country of origin are not ʺstatementsʺ subject to the hearsay rule. See
Fed. R. Civ. P. 801(a), (c); United States v. Bowling, 32 F.3d 326, 328 (8th Cir. 1994)
(holding that manufacturerʹs name stamped on firearm was not ʺa statement of
factʺ subject to hearsay rule); United States v. Thody, 978 F.2d 625, 630‐31 (10th Cir.
1992) (ʺ[T]he manufacturerʹs imprint in the gun is not hearsay. It is technically
not an assertion by a declarant as contemplated by the [hearsay rule].ʺ); United
States v. Alvarez, 972 F.2d 1000, 1004 (9th Cir. 1992) (ʺAn inscription placed on a
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firearm by the manufacturer is similarly a mechanical trace and not a statement
for purposes of Federal Rule of Evidence 801(c).ʺ), overruled on other grounds by
Kawashima v. Mukasey, 530 F.3d 1111, 1116 (9th Cir. 2008). We need not decide
the issue because, even assuming the inscriptions here are hearsay, we conclude
that they are nonetheless admissible.
Inscriptions indicating foreign origin are regulated, see 19 U.S.C.
§ 1304, and federal law prohibits misleading designations of origin, see 15 U.S.C.
§ 1405. Additionally, under Federal Rule of Evidence 902(7), trade inscriptions
are self‐authenticating, that is, they ʺrequire no extrinsic evidence of authenticity
in order to be admitted.ʺ Fed. R. Evid. 902. While Boles is correct that selfauthentication
alone does not qualify as an exception to the hearsay rule, it does
render the inscriptions particularly trustworthy. As the First Circuit has noted,
ʺ[a]n authentic inscription, of the kind made regularly by manufacturers in
accordance with federal law, bears significant similarity to other forms of
evidence admissible under the enumerated hearsay exceptions.ʺ Burdulis, 753
F.3d at 263‐64 (citing Fed. R. Evid. 803(6) (records of regularly conducted
activity), 803(9) (certain information reported to a public office in accordance
with a legal duty), and 807 (residual exception)); accord United States v. Koch, 625
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F.3d 470, 480 (8th Cir. 2010) (rejecting claim that ʺmanufacturerʹs inscription on a
product is inadmissible hearsayʺ). Any of these exceptions would suffice here,
and we hold that the district court did not abuse its discretion in overruling the
hearsay objection.
2. The Agentʹs Testimony as an Expert
Boles also argues that the district court erred by permitting FBI
Special Agent Alfin to testify about the origin of the computer hardware. Rule
702 permits testimony in the form of an opinion only if ʺthe expertʹs scientific,
technical, or other specialized knowledge will help the trier of fact to understand
the evidence or to determine a fact in issue.ʺ Fed. R. Evid. 702(a). Boles
additionally argues that the defense had been given no prior notice in the
governmentʹs Rule 16 expert disclosure that Alfin would testify about the
manufacturing origin of the hardware.
A district court has ʺbroad discretionʺ in deciding whether to admit
expert testimony, and the exercise of that discretion will not be disturbed unless
it is ʺmanifestly erroneous.ʺ United States v. Locasio, 6 F.3d 924, 936 (2d Cir. 1993);
accord United States v. Dukagjini, 326 F.3d 45, 52 (2d Cir. 2003). We discern no
manifest error here, where the district court permitted an FBI agent with
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specialized training and experience in computers, computer forensics, and
forensic imaging to testify that he knew the computer hardware in question was
manufactured outside Vermont and outside the United States.
While there is a dispute as to whether the government provided
sufficient notice of the agentʹs testimony as an expert as required by Fed. R.
Crim. P. 16(a), even assuming the testimony was not properly noticed, the
district court had the discretion to admit the evidence nonetheless as long as the
violation did not cause Boles ʺsubstantial prejudice.ʺ United States v. Thai, 29 F.3d
785, 804 (2d Cir. 1994). Here, Boles has not identified any prejudice from the
purported lack of advance notice, and the record is clear in any event that Boles
and his counsel knew that the government intended to introduce evidence to
prove the interstate or foreign commerce nexus. Finally, as we have held that the
manufacturersʹ inscriptions were admissible, any error with respect to the
admission of the agentʹs testimony in this respect was harmless.
III. The Sentence
Boles raises two challenges to his sentence: (a) the imposition of the
mandatory minimum term of imprisonment; and (b) the imposition of the two
disputed special conditions of supervised release.
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A. The Mandatory Minimum
First, Boles argues that the district courtʹs application of the ten‐year
mandatory minimum penalty, under 18 U.S.C. § 2252(b)(2), violated the Sixth
Amendment because Bolesʹs prior conviction was not found by the jury beyond a
reasonable doubt. His argument, however, is expressly foreclosed by this
Courtʹs decision in United States v. Arline, 835 F.3d 277 (2d Cir. 2016) (per curiam),
where we acknowledged that ʺ[t]he fact of a prior conviction may be decided by
a judge and need not be determined by a jury.ʺ Id. at 280 (citation omitted).
Accordingly, the district court properly recognized that the mandatory minimum
of ten years applied to Boles.
B. The Conditions of Supervised Release
Second, Boles raises challenges to two conditions of his supervised
release. He challenges Standard Condition 17, the ʺriskʺ condition, which
provides:
If the probation officer determines that you pose a risk
to another person (including an organization), the
probation officer may require you to notify the person
about the risk and you must comply with that
instruction. The probation officer may contact the
person and confirm that you have notified the person
about the risk.
PSR ¶ 95, Cond. 27.
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Boles specifically argues that the risk condition is ʺfar too vague to
be related to any goal of supervisionʺ because the court did not define ʺrisk,ʺ and
the condition leaves ʺtoo much discretion[] to the supervising officer.ʺ Def.‐
Appellantʹs Br. 14‐15.
Boles also challenges the ʺpolygraphʺ condition of supervised
release, which provides that Boles:
shall participate in an approved program of sex
offender evaluation and treatment, which may
include polygraph examinations, as directed by
the probation officer. Any refusal to submit to
such assessment or tests as scheduled is a
violation of the conditions of supervision.
PSR ¶ 96, Cond. (a).
Boles contends that the condition violates the Fifth Amendment,
because if he answers questions, he may incriminate himself, and on the other
hand, if he invokes his Fifth Amendment right to remain silent, he violates the
condition, and will be subject to having his supervised release revoked.
1. Applicable Law
We generally review the imposition of conditions of supervised
release for abuse of discretion. See United States v. Reeves, 591 F.3d 77, 80 (2d Cir.
2010). ʺWhen a challenge to a condition of supervised release presents an issue
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of law,ʺ however, ʺwe review the imposition of that condition de novo, bearing in
mind that any error of law necessarily constitutes an abuse of discretion.ʺ United
States v. McLaurin, 731 F.3d 258, 261 (2d Cir. 2013) (internal quotation marks
omitted).
A district court may
impose special conditions of supervised release to
the extent that they are reasonably related to (i)
the nature and circumstances of the offense and
the history and characteristics of the defendant,
and (ii) the purposes of sentencing, including the
need to afford adequate deterrence, to protect the
public from further crimes of the defendant, and
to provide the defendant with needed training or
treatment.
United States v. Johnson, 446 F.3d 272, 277 (2d Cir. 2006) (quoting United States v.
Germosen, 139 F.3d 120, 131 (2d Cir. 1998)); see also 18 U.S.C. § 3583(d). ʺWhile
district courts have broad discretion to tailor conditions of supervised release,
that discretion is not unfettered,ʺ and we will ʺcarefully scrutinize conditions that
may be excessively harsh or inexplicably punitive.ʺ United States v. Jenkins, 854
F.3d 181, 188 (2d Cir. 2017) (internal citations omitted).
2. Application
As to the first challenged condition, we agree with Boles that the
ʺriskʺ condition is vague and affords too much discretion to the probation officer.
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In United States v. Peterson, we vacated a district courtʹs imposition of two similar
standard conditions of supervised release, in part, because they, too, gave the
probation officer too much discretion. 248 F.3d 79, 86 (2d Cir. 2001) (per curiam).
The defendant in Peterson was convicted of bank larceny, but the court noted that
the supervised release conditions were ʺbased in part on a prior, unrelated New
York state‐sex‐offense conviction [for incest].ʺ Id. at 81.
In Peterson, we held that the conditions were impermissible to the
extent that they required Peterson to notify employers about his state conviction,
because occupational restrictions must be related to the offense of conviction at
issue. Id. at 85‐86. We further held, to the extent that the conditions required
Peterson to notify employers about his federal conviction, ʺthe [district] court
must determine, rather than leaving to the discretion of the probation officer,
whether such notification is required . . . [and] may not simply leave the issues of
employer notification to the probation officerʹs unfettered discretion.ʺ Id. at 86.
We therefore remanded the case for clarification of the nature and scope of
employer notification of the offense of conviction. Id.
Because the condition at issue here extends to warning employers of
risk and gives the probation office unfettered discretion with respect to the
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notification requirement, we agree with Boles that the condition is largely
indistinguishable from the one we struck down in Peterson. Accordingly, we
vacate the risk condition and remand to the district court to clarify the scope of
the ʺriskʺ condition.
We are not persuaded, however, as to Bolesʹs challenge to the
polygraph condition of supervised released. In Johnson, 446 F.3d at 272, we
upheld a polygraph condition against a Fifth Amendment challenge, similar to
the one at issue here. We held that requiring a defendant to take a polygraph test
as a condition of his supervised release does not violate the Fifth Amendment
because the defendant retains the right to later challenge any resulting selfincrimination
in court. Id. at 280; see also Asherman v. Meachum, 957 F.2d 978, 982‐
83 (2d Cir. 1992) (en banc) (explaining that revocation may be based on a refusal
to answer questions, so long as the administrator does nothing to impair later
invocation of the Fifth Amendment privilege).
Furthermore, in upholding the condition in Johnson, we recognized
the strong deterrent value of polygraph conditions, explaining that such
conditions ʺfurther sentencing objectives such as rehabilitation and deterrence,
with reasonably small incremental deprivations of liberty.ʺ Johnson, 446 F.3d at
- 37 -
278. When the district court imposed the polygraph condition at issue here, it
specifically noted that the condition is ʺa tremendous deterrent and satisfies a
very legitimate purpose in probationary supervision.ʺ J. App. 396. Accordingly,
we conclude that the district court did not abuse its discretion in ordering
polygraph examinations as part of Bolesʹs sex offender treatment following his
most recent conviction.
Outcome: For the reasons set forth above, we AFFIRM the judgment in all
respects except that we VACATE the ʺriskʺ condition of supervised release and
REMAND to the district court for clarification as set forth above.
Plaintiff's Experts:
Defendant's Experts:
Comments: