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U.S. v Christie

Case No. 09-2908 (C.A. 3, Sep. 15, 2010)

Russell Christie appeals the judgment of conviction and sentence entered by the United States District Court for the District of New Jersey after a jury found him guilty of various child pornography offenses. For the reasons that follow, we will affirm.

I. Factual Background

On September 3, 2008, a grand jury returned an eightcount second superceding indictment charging Christie with possession, receipt, and advertising of child pornography, in violation of 18 U.S.C. §§ 2251(d)(1)(A), 2252A(a)(2)(A), and 2252A(a)(5)(B). The indictment was the culmination of a twoyear investigation into the website of the North American Man- Girl Love Association (“NAMGLA”), a site that featured a password-protected forum where users could post links to sexually explicit images and videos of children and comment on those materials.

A. Investigation Culminating in Christie’s Arrest

The investigation began in November 2005 as the byproduct of an unrelated fraud investigation into Jerrod Lochmiller, who happened to be the administrator of the NAMGLA site. Lochmiller, who was a fugitive and on probation at all times pertinent to this case, contacted the United States Attorney’s Office in Los Angeles through his attorney, George Buehler. Buehler indicated that, in exchange for the government’s dropping fraud charges against Lochmiller, Lochmiller would, in turn, provide access to the NAMGLA website and information on its users. The U.S. Attorney’s Office agreed and referred the case to the Federal Bureau of Investigation (“FBI”), which assigned Special Agent Douglas MacFarlane as the primary case agent for the investigation.

Buehler furnished a user name and password, which MacFarlane then used to access restricted areas of the NAMGLA website. At trial, MacFarlane testified that the password-protected areas of the website contained three sections entitled the N Gallery, the Private Gallery, and the Private Lounge. In the N Gallery – which MacFarlane identified as an abbreviation for “Nude Gallery” – users could post links to other websites containing sexually explicit images and videos of children posing by themselves. The Private Gallery and Private Lounge sections of the website operated in a similar manner, except that the links posted in them typically contained images of children engaged in sexual acts with adults or with one another. MacFarlane testified that access to the site was free but that users were required to submit links to child pornography to the site moderators in order to obtain a username and password. During the course of the investigation, one such user, who went by the screen name “franklee,” consistently posted links to new images and videos, and posted comments to the website. As a result of MacFarlane’s investigation, the FBI undertook efforts to identify the users of the website.
 

 

Judge(s): Kent Jordan
Jurisdiction: U.S. Court of Appeals, Third Circuit
Circuit Court Judge(s)
Joseph Greenaway, Jr.
Kent Jordan
Marjorie Rendell

 
Trial Court Judge(s)
Harold Ackerman

 
Appellant Lawyer(s) Appellant Law Firm(s)
Lorraine Gauli-Rufo Office of the Federal Public Defender

 
Appellee Lawyer(s) Appellee Law Firm(s)
George Leone U.S. Department of Justice
John Romano U.S. Department of Justice

 

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2. admissibility of two posts to the people would be motivated see anything to indicate that store and the post concerning arousal while changing a baby's approximately 30 search warrants on houses all across the then continued: users about how to name and password-protect files to avoid (3) that, although confidential informants are not supposed to following the search. christie, who was fifty years old at the c. sentencing just what christie contends: that, as a bus driver with access to namgla site users: (1) macfarlane lacked personal (pointing out that the supreme court "consistently has held that responsibilities gave him sufficient information to testify about obtained his ip address without a warrant. and fourth, he based on a guideline that allegedly produces overly severe on appeal, christie advances four types of objection to the district court denied the motion, that appeared on the namgla site, and he ultimately identified 604 f.3d 161, 164 (4th cir. 2010) (holding that a defendant sentences ­ is a challenge only to substantive reasonableness. had posted to the namgla website, girls' names, child 4. the district court's questioning (3d cir. 1998) ("[a] criminal defendant may raise a due process challenge to an indictment against her based on a claim that the pornography. furthermore, the court instructed the jury not to those materials. under christie's screen name of "franklee" and indicated that value of the notebooks therefore clearly outweighed any danger the one case upon which christie relies, state v. reid, dealt internet through an internet service provider ("isp"). each time investigation that would address the concerns ... raised in terms particular person. that information is held by the isps. sponte. we disagree. that his testimony should therefore have been excluded under specifically with the new jersey constitution, not the federal process because, absent such control, the government "simply discretion in concluding that the danger of unfair prejudice did child pornography offenses. for the reasons that follow, we will colloquial terms, such as asking whether users visit such sites christie did not move to strike macfarlane's response from and the court's admitting into evidence his five composition recognizes in his brief that the government's use of lochmiller qualified as a confidential informant ("ci") under submitted under third circuit lar 34.1(a) legitimate basis for claiming that the toys were relevant. while evidence admissible to combat defense theory). day of the takedown nationwide, the f.b.i. executed supervision, lochmiller continued to run the namgla whether or not § 2g2.2 may produce unreasonable by, yes. 2008) ("we now hold that citizens have a reasonable rights, and that, if not rectified, it would seriously affect "the 4 the district court had jurisdiction pursuant to 18 u.s.c. § the government may involve itself so directly and continuously informants [hereinafter "ci guidelines"] § i.b.6, available of harmless error standard and inquiry, under plain error judge harold a. ackerman, a stalwart on the united states website and many of its users. fbi agents at christie's because of the government's allegedly outrageous conduct, lochmiller give them administrator-level access to the 602 f.3d 512, 540 (3d cir. 2010) (quoting dispoz-o-plastics, admissible, and indisputably disturbing evidence, which it to admit evidence concerning the two posts that he since it was elicited for the purpose of rebutting christie's own posting his "fantasies" to the namgla website. further, the the federal rules of evidence define hearsay as "a diaper. states v. milan, 304 f.3d 273, 290 & n.22 (3d cir. 2002) 4 "the fbi's failure to follow [them,] without more, does not that allowed for the trading of hundreds of thousands of 1. macfarlane's statement that other users 927 broad street - 4th right against unreasonable searches and seizures when it to submitting two particular posts to the namgla website. as an ip address, to the customer's computer terminal. (testimony of government witness who supervised audit was the witness: not on this site, no. years on each of counts 1 through 6, 18 u.s.c. § 2251(e), to be people who visited the namgla website did so to "get[] their having put both macfarlane's and lochmiller's credibility at themselves, instead eliciting only testimony concerning the christie was more than "a mere downloader of child to the namgla site, having written more than 2,500 posts driver may have some tendency, albeit weak, to suggest that he the use of fugitives and probationers as cis. id. § ii.d.5-6. constitutes improper vouching. of these objections, the only abbreviation for "nude gallery" ­ users could post links to other was harmless, in light of the overwhelming evidence of guilt in as relevant to a proper, non-hearsay purpose because it year sentence on count 8, id. § 2252a(b)(2), to be served irrelevant and unfairly prejudicial, he objected to the statement something to get something. range dictated by that guideline. we review a district court's of the two posts that christie admitted putting on the namgla issue, the defense invited macfarlane to say why he viewed the conduct. appellant. depending on the isp, a customer's ip address can change each trial, the district court should have precluded the testimony sua confidential informants (the "ci guidelines"). those obtained partial or full confessions from 24 separate individuals of exchanging child pornography. the court permitted therefore erred in admitting bennett's testimony on that issue. twenty-four of those users confessed to child pornography- visitors to the namgla website from lochmiller, but, because images of children engaged in sexually explicit conduct, printed website and information on its users. the u.s. attorney's addresses of visitors to their sites. however, site administrators investigation was at the crux of christie's defense. see united that lochmiller was an unreliable source of information who the site moderators in order to obtain a username and password. testimony from eyewitnesses at every step. "although first- investigation. otherwise commit error, let alone plain error, in admitting at 31-32 (quotations omitted). a customer connects, the isp assigns a unique identifier, known regulations). accordingly, even if those guidelines were notebooks. further, he argues that the district court improperly for the purpose of rebutting christie's charge of misguided law expectation of privacy, protected by article i, paragraph 7, of is not grounds for excluding it under rule 403." (quotations one was titled "nine-year-old in a supermarket" and the other based upon his knowledge as the lead agent on the case. thus, looking for children[.]" (appellant's op. br. at 35.) that compromised the integrity of the entire investigation. opinion of the court could pay for this. it was identities from the isps before the isps had purged their records of the posts as irrelevant and unduly prejudicial, and he objected violated his rights under the confrontation clause of the 14 sentence entered by the united states district court for the 12 entitled the n gallery, the private gallery, and the private government's interactions with lochmiller, which is a point in prejudicial since the government never actually argued that evidentiary errors result of macfarlane's investigation, the fbi undertook efforts violates the due process clause.'" united states v. hoffecker, of record. there is no sensible vouching or bolstering challenge the record. those challenges in turn. probation at all times pertinent to this case, contacted the united second, he argues that the manner in which the government macfarlane to describe, from his law enforcement experience, password-protected forum where users could post links to (defendant opened the door to testimony concerning judicial for the third circuit violation of 18 u.s.c. §§ 2251(d)(1)(a), 2252a(a)(2)(a), and 30 macfarlane, christie was one of the most prolific contributors convinced that the defendant was not prejudiced by it, and this context, we nevertheless conclude that the error was constitution, and is thus inapposite here. 945 a.2d 26, 28 (n.j. pornography, not child molestation. accordingly, the evidence whether any illegal images of child pornography could actually people who engage in this notebooks in their entirety was unfairly prejudicial under country. of those 30, it's my understanding that the f.b.i. from buehler, there was not enough time to subpoena customer determinations and exercise plenary review over the application child pornography, and that the notebooks created a risk that the counsel for appellant conviction." (app. at 79.) (d.c. no. 2-07-cr-00332-001) christie contends that the district court erred in denying compelled by statute, nor intended to create private rights."); cf. children posing by themselves. the private gallery and private a moderator of the namgla website and a remorseless 29 meaning ­ you give 5. cumulative effect of the alleged error and exercise plenary review over the court's legal this evidence was proper under rule 403."). the district court "franklee." they show the lengths to which he went to make information regarding the content of those posts. bennett also they also require that a law enforcement agent personally meet level access also gave him the ability to approve new member 3 christie visited the namgla site with the purpose of as already noted, macfarlane's knowledge provided a proper testify as to bank's federally insured status because, even though christie objected to the testimony regarding the subjects christie's guilt on the crimes charged. the district court kicks" and for "sexual gratification." (app. at 235.) finally, he his motion to suppress because, as he sees it, the government's united states v. lessner, 498 f.3d 185, 192 (3d cir. 2007) christie asserts that, even if the alleged errors do not 167 (3d cir. 2006). acknowledgedsubmittingtothenamglawebsite,thecourt's time ­ usually thirty, sixty, or ninety days ­ records of the ip christie on all eight counts of the indictment. christie filed a acknowledged that buehler served as an intermediary between concurrently. in support of that sentence, the court stated that christie next argues that macfarlane's testimony about christie was sentenced on june 23, 2009. under § 2g2.2 by failing to abide by the ci guidelines, "[t]he government's (id. at 381.) supplied by lochmiller and that macfarlane's conduct created future information about illegal activities. nonetheless, defense credible, and (2) ... bases his assurance on either his claimed united states v. caceres, 440 u.s. 741, 751-52 (1979) website (i.e., the post concerning a nine-year-old in a grocery that the evidence was "extremely prejudicial" because it created one that christie raised at trial was that macfarlane lacked thus per se unreasonable because it was based upon a sentencing approvalofwiretapsobtainedduringinvestigationbysuggesting made any statement that invited a plausible jury inference of to answer the question, but the court overruled the objection imprisonment, stated that it would impose "a life sentence subscriber information under the federal constitution, but line of questioning, which the court overruled. macfarlane * other investigative targets may have said. christie himself personal knowledge or other information not contained in the thoroughly familiar with the case, coordinated the efforts of fee to access the website's content, which prompted the properly rejected christie's assertion that macfarlane was not george s. leone suppress for clear error as to the underlying factual error was harmless. see united states v. casoni, 950 f.2d 893, told the jury that one post concerned a nine year old in a toys were not mentioned in the government's closing. f.3d 163, 188 (3d cir. 2002) ("[g]iven [defendant's] ... defense, objected that macfarlane lacked sufficient personal knowledge that distinction between a permissible and an just getting their kicks, as macfarlane testified that he did not consider lochmiller of children engaged in sexual acts with adults or with one child pornography and directly link him to the screen name christie asserts that macfarlane never testified that he had no reasonable expectation of privacy in his ip address and children, he used the toys in attempt to make contact with pornography," (app. at 1996), that, instead, he had a collection find an abuse of discretion, the court's ruling will stand if the (3d cir. 2009). the district court rejected that argument, holding that christie outrageous conduct are based on his assertion that the twigg, 588 f.2d 373, 379 (3d cir. 1978) ("we do not believe became boisterous while riding the bus. christie also admitted statement, other than one made by the declarant while testifying acquired from the isps the identity of the users associated with admission of the testimony concerning the toys seized from communicated it to the systems operators."). similarly, no felonious criminal activities, and from whom [the fbi] expects substantial rights). christie himself acknowledges that "[t]he also during agent macfarlane's testimony, the court his home. he acknowledges that "excerpts from the notebooks" and that macfarlane knew it. thus, the testimony can be seen consisting of the statutory minimum sentence applied determination include] ... the scope of the comments and their agent on the case. macfarlane then responded that, "[o]n the could not point to any "evidence that he had a subjective 27 assures the jury that the testimony of a government witness is questioned why users of the namgla website did not pay a the attorney general's guidelines regarding the use of access, the fbi was able to see the ip addresses associated with macfarlane's testimony concerning the confessions of other 32 prevent the implication of innocent individuals in criminal website. see ciguidelines §§ ii.a-b, ii.d.5, iii.c. according for the district of new jersey employed as a school bus driver for elementary and middle- toys, he must have been telling the truth when he admitted to amendment's privacy expectation" because it is voluntarily 8 office of united states attorney for "kicks," was less than ideal, there was no abuse of discretion weinstein & margaret a. berger weinstein's federal newark, nj 07102 christie challenges the district court's permitting admitted that he had never met lochmiller personally. defense specifically, he contends that the notebooks were unnecessary pictures? iii. conclusion 2005). here, the description of the investigation as it implicated agent macfarlane testified about the fbi's contact with discretion standard.5 concerning the toys was substantially more likely to have an the district court's sentence, based on christie's particular christie next contends that the district court should have individuals visit them. the court's questioning went to united states court of appeals cases. the argument rests on the unsound premise that the only a guideline range sentence of life imprisonment. the district constitute reversible error on their own, when taken together, as discussed further below, christie's allegations of children on his school bus. assertion that the testimony was unfairly prejudicial, especially affirm. investigation as resting on reliable information. see united handwritten notebooks documenting and rating various child- november 12, 2008. during the government's case-in-chief, pornographypowerfullyindicatesthathisisnottheroutinecase. u.s.c. § 1291. macfarlane's response as being elicited to explain why he sentences in some cases ­ a subject on which we make no the truthfulness of christie's acknowledgment that he was a bus macfarlane's testimony was meant to "establish the reliability on appeal from the united states district court hesitant to find law enforcement conduct so offensive that it at the trial or hearing, offered in evidence to prove the truth of should be vacated and the charges against him dismissed the impression that he was a "sexual predator" even though he another. macfarlane testified that access to the site was free but 369 f.3d 337, 342 (3d cir. 2004) (reviewing questioning of a conclude that plaintiffs ... lack a fourth amendment privacy bennett. after several applicable enhancements, christie's total offense here, in contrast, the government gained access to ongoing implication that the investigation was a dragnet for the innocent investigation and prosecution of [the case against him] u.s. 36 (2004); (4) the testimony was irrelevant; (5) even if it however, we have noted only one error in the numerous follow those guidelines in its dealings with lochmiller considerable consequence since challenging the nature of the harmless given the truly overwhelming quantity of legitimate children's toys in his house. although christie objected at trial this case. we thus readily conclude that, taken together, the is that, since christie was truthful about his profession as a bus were several violations of the guidelines, including (1) that specifically recognized the absence of a right to privacy in lochmiller to continue running the namgla website, all in between october 2005 and july 2006. as a moderator for the "franklee." specifically, bennett testified that christie competent to testify about the responses of other targets of the iii.c.4-5. bus driving, not toy possession, is the supposed tie to sexually explicit images and videos of children and comment on trial lasted for eight days, after which the jury convicted described them as "fantasies." (id. at 608.) although bennett as christie notes, he was charged with possession of child d. sentencing v. sutton, 795 f.2d 1040, 1057 (temp. emer. ct. app. 1986) details, or even ultimately their truth, was relevant to rebut the sensationalized the trial when it asked macfarlane whether he was not a mere possessor but acted as a facilitator and supermarket and the other concerned becoming aroused while amounted to a due process violation. see hoffecker, 530 f.3d the court: so what you're saying, it's level was 45 and his criminal history category was i, producing unfair prejudicial effect than to benefit the jury in determining consecutively on counts 1 through 6." (app. at 2007.) the at 153-54; united states v. nolan-cooper, 155 f.3d 221, 229 on child pornography-related offenses."2 an error that was plain or obvious, that it affected his substantial unfair jury prejudice against him. customers. accordingly, in april 2006, the fbi requested that because that information is also conveyed to and, indeed, from district court for the district of new jersey for more than thirty the namgla website on the same day he was arrested and that knowledge about each of the interrogations; (2) macfarlane's whether the government's work with lochmiller constituted following exchange: be linked to him. district court properly denied his motion to suppress. to christie, the government's failure to follow the ci guidelines provide to internet service providers ... ."). indeed, the court 2 of the sentencing guidelines, the district court calculated that, unreliable because it depended on information obtained from images with similar content, and christie's computer, the hard pictures. officials should interact with confidential informants. byproduct of an unrelated fraud investigation into jerrod users of the namgla website. the alleged unreliability of the he argues that the government violated his fourth amendment who provides useful and credible information ... regarding served consecutively; the mandatory minimum of five years on pornography offenses acknowledges that the evidence had a rebuttal purpose, as he george buehler. buehler indicated that, in exchange for the christie's argument hinges on the flawed premise that he constitute outrageous conduct worthy of setting aside a diaper) and likewise should have excluded the evidence of the in the questioning. except that the links posted in them typically contained images testify about the outcome of the investigation. see united states substantially outweighed it. the implication of the testimony is that probative evidence helps one side prove its case obviously 24 techniques."). the ci guidelines are relevant, if at all, only to pornography search terms, websites used to upload child athttp://www.fas.org/irp/agency/doj/fbi/dojguidelines.pdf. the examination that the ci guidelines are designed, in part, to but the district court was well within the bounds of its purported errors do not entitle christie to a new trial. of images of child pornography in his possession. see united namgla site. lochmiller, who was a fugitive and on comment here ­ the sentence in this case is not unreasonable. year investigation into the website of the north american man- russell christie appeals the judgment of conviction and the toys for plain error. the other targets' acknowledgment of guilt constitutes administrative access given by lochmiller, violated his fourth person wants to be a user, was pictures. investigation ("fbi"), which assigned special agent douglas there was any way you and that christie had explained that he used them to quiet rowdy 6 cir.2002)(rejectingvouchingchallengesinceprosecutor"never of people using namgla's website. macfarlane possession, receipt, and advertising of child pornography, in violate christie's due process rights. cases in which we have for it? was truthful in his entire discussion with bennett, that point lochmiller. the district court could properly have viewed of the implication of innocent people[.]" (app. at 380.) christie government benefitted from the information and site access that testified about the confessions only after christie had insinuated the of evidence and the district court's questioning of a witness. such material accessible, and they provide significant proof that personal knowledge, that is not the only basis for it." 3 jack b. warrants as part of a coordinated "takedown" effort aimed at the see united states v. starnes, 583 f.3d 196, 213-14 (3d cir. constitution, see crawford v. washington, 541 u.s. 36 (2004), facilitated the trading and possession of child pornography by (filed: september 15, 2010) the fbi and lochmiller and, on cross-examination, macfarlane the extent that they indicate boundaries the fbi views as conveyed to third parties. united states v. perrine, 518 f.3d united states v. tomko, 562 f.3d 558, 567 lochmiller provided, but it did nothing to create or encourage accounts. reasonable expectation of privacy exists in an ip address, found due process violations have involved far more egregious they do not purport to be rules, much less a statement of the changing a baby's diaper, the government elicited no further namgla using the screen name "franklee." according to only fifteen lines in the transcript of an eight day trial, and the christie's confession to bennett. the government's reasoning related offenses. he also appeals the district court's decision fairness, integrity or public reputation of judicial proceedings." in which individual computers are identified when linked to the lorraine s. gauli-rufo on redirect examination, the government sought to rebut office of federal public defender information. does he pay possibility of a fair consideration of the evidence against him. f.3d 245, 251 (3d cir. 1996) (holding that evidentiary error was new jersey constitutions are not always coterminous." see id. (id. at 235.) at that point, the defense raised an objection to the the illegal activity and then prosecuted others who engaged in passivelyconveyedthroughthirdpartyequipment,butratherare time he logs on to the internet. isps retain for a finite period of witness by a district court for abuse of discretion). even if we the proceedings in the district court. first, he argues that the office agreed and referred the case to the federal bureau of evidentiaryrulingsthatchristiechallenges­thedistrictcourt's we review for abuse of discretion both the admissibility 33 (1st cir. 2007) ("justice department guidelines were not vazquez, 271 f.3d 93, 100 (3d cir. 2001) (noting the similarity christie was a pedophile. after the government pointed out that macfarlane was the lead counsel obtained an admission from macfarlane on cross- actually culminated in confessions, without introducing any for the foregoing reasons, we will affirm the judgment of acknowledged having submitted the posts and that christie 1 guidelines establish rules applicable to all department of justice seized five composition notebooks containing notes reflecting the district court the authority to question witnesses on its own. 15 inc., 172 f.3d at 286); see also united states v. anderskow, 88 namgla website. at trial, macfarlane testified that the the suggestion of unreliability by asking macfarlane to "relay evidence against christie, including his admissions to bennett, may have implicated innocent people in the namgla interest in their subscriber information because they to introduction of the subject matter of the namgla posts as namely, its lack of control over lochmiller and its permitting in sum, the district court did not abuse its discretion or so cannot establish a fourth amendment violation.4 20 christie also contends that macfarlane's testimony counsel for appellee law enforcement agencies, see id. § i.a.3, and generally prohibit 18 engage in criminal activity without authorization and a person has no legitimate expectation of privacy in information servers." united states v. forrester, 512 f.3d 500, 510 (9th cir. impermissible purpose for the evidence is no mere technicality. at 44.) the testimony concerning the toys was brief, spanning offenses. but, our conclusion that the testimony was properly personal knowledge. we thus review the district court's ruling contribute to the judgment.'" see united states v. vosburgh, based on personal knowledge). accordingly, the district court christie's own posts may bear that interpretation does not make government violated its own guidelines for how government christie contends that the posts were unduly prejudicial because did not plainly err in allowing the testimony to come into because it was not probative of christie's guilt. according to whether there were indicia of reliability regarding what governmentemployedoutrageouslawenforcementinvestigative violated, that would not mean, in itself, that christie would be during the course of the investigation, one such user, who went truthfulness. however, even if one assumes the toys had some excluded as irrelevant and unfairly prejudicial the subject matter introduced for a non-hearsay purpose is fatal to christie's addresses that they assign to customers. ip addresses are also 16 lochmiller would, in turn, provide access to the namgla guidelines regarding the use of confidential v. hendricks, 395 f.3d 173, 183 (3d cir. 2005) (quoting states attorney's office in los angeles through his attorney, court, recognizing that the recommended sentence was life qualified as a ci. thus, counsel insinuated that macfarlane had refutation. on this record, there does not appear to be any christie's home ­ and we have already concluded that that error company, and "assumed the risk" that the company would drive from which held over 250,000 graphics files, including under that standard, a defendant must establish that there was lounge. in the n gallery ­ which macfarlane identified as an c. unreasonable search and seizure monetary return to these displayed and described multiple times." (appellant's op. br. defining good law enforcement practices in working with cis. macfarlane to testify that the fbi apprehended other users of to testimony concerning the toys as unduly prejudicial. the deviated from the ci guidelines in relying on information each user. macfarlane then began monitoring the ip addresses criminal defendants. see united states v. henry, 482 f.3d 27, namglawebsiteandthechildren'stoys she was not employed until after bank robbery at issue, her job to be made. see united states v. milan, 304 f.3d 273, 290 (3d register a confidential informant had not been completed; and furthermore, the government did not introduce the posts the investigation began in november 2005 as the provide a basis for reversal. illegal activity through an intermediary, lochmiller. the could have been made without any mention of the toys at all. the witness: i would surmise that for the years, passed away on december 2, 2009. of the namgla site confessed to child government's conduct was so outrageous or shocking that it investigation of all of the users of the namgla website, was enforcement efforts and not offered for the truth of whatever the because "the search and seizure protections in the federal and before: rendell, jordan, and greenaway, jr., no. 09-2908 your opinion it's the residence seized over five-hundred cd-roms containing second, and more importantly, christie helped to run a network omitted)); guest v. leis, 255 f.3d 325, 336 (6th cir. 2001) ("we 583 f.3d at 215 ("[u]nfair prejudice does not simply mean other agents, and personally directed the enforcement steps on july 16, 2010 count second superceding indictment charging christie with district court's decision to admit that testimony. see starnes, 1196, 1204 (10th cir. 2008); see also united states v. bynum, that users were required to submit links to child pornography to 9 evidence would be deemed [unfairly] prejudicial.... [t]he fact useful. by the time government agents got the ip addresses extra-record proof of reliability ... ."). relationship to the proceeding, ... and the strength of the in the future. all of those facts support the reasonableness of allowing testimony about the toys seized from his apartment, including a motion for an evidentiary hearing to determine prior to trial, christie made several pretrial motions, do not possess information linking a given ip address to a children and, given his aberrant interests, to molest them. but, standard, as to whether an error affected a defendant's attribute any opinions to the court in connection with its he voluntarily turns over to third parties"). christie therefore buehler furnished a user name and password, which "takedown day," even if he did not conduct each step himself. noting that "[t]he factors to be examined [in making that assuming that the ci guidelines apply to the voluntarily turned over in order to direct the third party's 25 informationaboutthenamglapostswasnodoubtprejudicial, federal rule of evidence 602 because he lacked personal although christie purports to be arguing that his sentence is of the namgla website. federal rule of evidence 614 gives lochmiller, which christie alleges violated his right to due lochmiller and the efforts to obtain from him the ip addresses the matter asserted." see fed. r. evid. 801(c). macfarlane 21 on september 3, 2008, a grand jury returned an eight- record." united states v. lore, 430 f.3d 190, 211 (3d cir. in assessing christie's claim of outrageous government yes. motive christie had to provide a forum for swapping child other users came from macfarlane's testimony, which was additionally, in a pro se motion to suppress, christie argued that ii. discussion3 driver, and mentioned being a bus driver while explaining the the witness: that would be my children's toys. conclusions. united states v. lakhani, 480 f.3d 171, 181 (3d pornography than it would have been without the evidence," and appropriate issues such as how namgla functioned and what gratification of seeing the gratification in seeing these site," and thus innocent people are exposed to prosecution. christie next argues, as he did to the district court, that, summation and when evidence against defendant was government's dropping fraud charges against lochmiller, enhancements apply in even the most routine cases, thereby jordan, circuit judge. the government violated his fourth amendment rights by third parties, including isps. "ip addresses are not merely concluding that, at the pretrial stage, the government's conduct by the screen name "franklee," consistently posted links to new evidence § 602.03[1][a] (2d ed. 2010); cf. united states v. as unduly prejudicial as that evidence may have been in special agent john bennett interrogated christie users of the website. first, christie's collection of many thousands of images of child 902 (3d cir. 1991). we review for plain error any objections that christie admitted uploading under the screen name john f. romano images and videos, and posted comments to the website. as a challenge to the investigation. see united states v. boone, 279 they created a prejudicial effect that overwhelmed any finally, christie argues that his sentence is unreasonable. activity. defensecounsellaterarguedinclosingthatlochmiller did not raise sufficient concern to warrant a hearing. linked christie to his occupation as a bus driver and therefore acquisition of his ip address, in connection with the pornography, and christie's notes on various pictures and constituted outrageous government conduct" that violated his amendment rights. "we review the denial of a motion to contends that, the cumulative effect of all of these errors was voigt, 89 f.3d 1050, 1065 (3d cir. 1996)). 22 2009) ("we review a trial court's decision to admit or exclude meant that macfarlane and other agents lacked control over crawford, 541 u.s. at 59 n.9)). we likewise reject christie's in order to convict [defendant]"). at that point, the question was 28 other users, showing that he is guilty of far more than mere both procedurally and substantively unreasonable, his sole states v. lugo guerrero, 524 f.3d 5, 14 (1st cir. 2008) (finding not substantially outweigh the probative value of the evidence. federal courts have uniformly held that "subscriber information which represented the mandatory minimum sentence of fifteen that were not specifically raised before the district court. see the ci guidelines do not themselves create rights for here we are in agreement with christie, and the expectation of privacy in his internet ... subscriber information" why sites like namgla do not require payment and why of criminal operations, and yet prosecute its collaborators."). with and supervise an individual who will act as a ci. id. § process was violated when the government itself manufactured testimony was hearsay; (3) admission of the testimony violated to be a ci because, once lochmiller provided access to the lacked any reasonable expectation of privacy in his ip address. 970 broad street - rm. 700 relevance, the danger of unfair prejudice clearly and br. at 34-35.) the government responds that testimony arguments on the remaining five issues for plain error. none lounge sections of the website operated in a similar manner, b. pretrial motions and trial 3. admissibility of the composition 3 macfarlane as the primary case agent for the investigation. concerning the toys only as unfairly prejudicial. accordingly, administrators of websites, like namgla's, can see the ip insured). we reject christie's challenge because macfarlane's accordingly, it is "`highly probable that the error did not christie next says it was error for the district court to process rights.1 harmless when government did not rely on testimony in cannot vouch for the integrity of the data on [the namgla] counsel further questioned macfarlane about whether the witness: on this website, i did not (quotations omitted). websites containing sexually explicit images and videos of evidence. basis for his testimony, and his testimony is itself the evidence approximately forty individual users. from there, he apparently the fbi initially attempted to obtain the ip addresses of of child pornography containing thousands of images and was conduit for others to obtain child pornography. the probative (reversing suppression of evidence obtained in violation of irs united states v. iglesias, 535 f.3d 150, 158 (3d cir. 2008). t h e w o r d i s u s e d people who would post this, understanding of what these the namgla posts were certainly relevant to the appropriate level of personal knowledge for macfarlane to aftermath. as the lead fbi agent, macfarlane oversaw the on that issue for abuse of discretion, and we review christie's all communications between the fbi and lochmiller were handled through buehler, the information was too stale to be the court: then it was just sexual showed that he responded truthfully during the interrogation by government asserts that the testimony was not unduly sentencing order for reasonableness, under an abuse of 11 questions. although the court's framing of its questions in macfarlane knew that lochmiller was on probation but did not discretion in refusing to exclude the notebooks under rule 403. christie objects on the following grounds to investigation, and that the fbi's investigation was likewise instead, he says that § 2g2.2 is inherently flawed because the the extent of that supervisory involvement provided an exchanging child pornography. despite that obvious relevance, admit into evidence the five composition notebooks seized from various aspects of the investigation, including its immediate guidelines define a "confidential informant" as "any individual site, christie enforced site rules and counseled less-experienced the notebooks were part and parcel of christie's trade in in light of the other evidence that he possessed and advertised exposed her to records indicating that the bank was federally was not charged with sexual abuse of a minor. (appellant's op. reflecting which ip addresses had been assigned to which the confrontation clause under crawford v. washington, 541 constitutes improper vouching or bolstering because he was charged child-pornography offenses. the posts were submitted school students, and that he used the toys to pacify children who promoter of materials depicting minors engaged in sexual 3231. we have jurisdiction pursuant to 18 u.s.c. § 3742 and 28 7 not bar the use of testimonial statements for purposes other than namgla site, the fbi did not anticipate using him to obtain websites. in addition, agents discovered a collection of argument ­ that his sentence is unreasonable because it was his moderator status and activities on the namgla site, his 13 court overruled those objections. it reasoned that the posts showed that christie visited the namgla site with the intent history and characteristics and the specific characteristics of his as to the toys, christie asserts that "[n]othing about the 26 1999) (explaining that an error is harmless when the court is outrageous conduct amounting to a violation of christie's due united states of america evidence for abuse of discretion."); united states v. adedoyin, we review his challenge to the relevance of the testimony about confessions provided an answer. their existence, not their wants to get this because he "voluntarily conveyed" that information to the 31 reached a contrary result under the new jersey constitution newark, nj 07102 offense. accordingly, on the facts of this case, we are satisfied that was not monetary, it provide that information to the police (internal citations obtaining his ip address without first acquiring a search warrant. investigation was central to christie's defense at trial. (appellant's op. br. at 54.) fact that he had children's toys in his house made it more likely producing unnecessarily severe results, and that his sentence is circuit judges. lochmiller had told the fbi, and the existence of the lochmiller gave was untrustworthy. omitted and alterations in original)). of the investigation." (appellant's op. br. at 14.) court then sentenced christie to 1,080 months imprisonment, more of an exchange, viewed lochmiller as a credible source. from that perspective, obtained evidence fromlochmiller violated due process. third, time of trial and has no children, explained that he was neal, 36 f.3d 1190, 1206 (1st cir. 1994) (bank employee could guidelines the court: if you know, is there any conviction and sentence imposed by the district court. sort of activity, or are they well as instructions on how to access them. the notebooks he does not object to the enhancements imposed in his case. provided to an internet provider is not protected by the fourth hand observation is obviously the most common form of was relevant, it was unduly prejudicial; and (6) the testimony _______________ post-trial motion in which he argued that the jury's verdict evidence to that effect. vouching occurs when a prosecutor "(1) would have been admissible, but contends that admission of the a. investigation culminating in christie's arrest laterinthetrial,bennetttestifiedregardingthetwoposts the new jersey constitution, in the subscriber information they internet. residential internet customers typically connect to the 530 f.3d 137, 154 (3d cir. 2008) (quoting united states v. 5 concerning the toys was relevant because it corroborated or intends to obtain additional useful and credible information district judge: hon. harold a. ackerman* governmentconduct. forexample,wehavedeterminedthatdue 2008); cf. smith v. maryland, 442 u.s. 735, 743-44 (1979) unlawful images. as a moderator of the namgla site, he limits of constitutional behavior. detection by law enforcement authorities. christie's moderator- i. factual background competent testimony about a complicated transaction is of unfair prejudice, and the district court did not abuse its macfarlane then used to access restricted areas of the macfarlane's testimony is not hearsay because it was offered one of those individuals was christie, who posted to ... the circumstances and facts gathered at the takedown of this states v. dispoz-o-plastics, inc., 172 f.3d 275, 286 (3d cir. because he had no opportunity to cross-examine any of the finally, christie argues that macfarlane's testimony knowledge from which to testify about the disposition of those namgla website, which he did. with that higher level of christie next attacks the district court for the nature of on july 25, 2006, the fbi executed multiple search it had a financial motive or the court: let me ask you this. a violation of the ci guidelines. the court denied that motion, dispute, the alleged failures to abide by the guidelines did not count 7, id. § 2252a(b)(1) to be served concurrently; and a five- colloquially? (id. at 235-36.) they painted him as a sexual predator "actively engaged in identifying the users proved difficult, due to the manner pornography related websites, and the thousands and thousands the district court did not abuse its discretion in asking v. regarding such activities in the future." att'y gen. criminal acts, and there is no evidence that the information district court erred in admitting certain evidence at his trial. 10 of the law to those facts." united states v. veal, 453 f.3d 164, that activity alongside government actors. see united states v. damage to the opponent's cause. if it did, most relevant "overwhelming"). notebooks 17 essentially assuring the jury that the investigations of other users the risk that lochmiller had falsely implicated christie and other macfarlane's statement regarding the confessions of other federal rule of evidence 403. (appellant's br. at 40.) that the sentence was within the bounds of reasonableness. jury would convict solely based on them instead of considering inadmissible hearsay and that the testimony was irrelevant evidence against [the] defendant[]."); see also united states v. concludingthat,eveniftheciguidelinesappliedtolochmiller, cir. 2007). "[w]e repeatedly have noted that we are `extremely lochmiller, who happened to be the administrator of the illustrated the reliability of the investigation, a fact of 23 trial commenced on the child pornography charges on 19 due process rights. (appellant's op. br. at 45.) he claims there to identify the users of the website. government had ... an extraordinary amount of relevant, individuals who confessed to child-pornography related district of new jersey after a jury found him guilty of various that "the government was willing to engage in improprieties ... possessed a reasonable expectation of privacy in his ip address. 5 was actually involved in all 30 arrests and interrogations, and crawford argument, since "the confrontation clause ... `does contained references to child pornography files that "franklee" the ip addresses. told of becoming sexually aroused while changing a baby's "several thousand" images of child pornography. agents also christie, even though he raised no objection along these lines at fl. possession. third, the district court noted that christie over such a long period of time in the creation and maintenance that he possessed, received or advertised images of child expressed no remorse and believed that he was likely to reoffend establishing the truth of the matter asserted.'" see united states argues that his sentence is unreasonable. we address each of them irrelevant or unfairly prejudicial. the potential impact of government's painfully strained reasoning serves as its own its questions to macfarlane regarding the likely motive of users the type of content on various child pornography websites as conduct, we review the district court's factual findings for clear russell christie, entitled to relief. the pertinent question is whether the conveyed to websites that an internet user visits, and b. the handling of lochmiller under the ci 2 girl love association ("namgla"), a site that featured a essentially, christie contends that the government's failure to subjects of the posts. there was no abuse of discretion in the 2252a(a)(5)(b). the indictment was the culmination of a two- password-protectedareasofthewebsitecontainedthreesections testified that agents had discovered toys in christie's apartment, contact probation authorities; (2) that the paperwork required to testimony about the toys after the government argued that it a. evidentiary rulings at trial precedential


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