United States Court of Appeals For the First Circuit

No. 17-1683

UNITED STATES OF AMERICA,

Appellee,

v.

BRIAN POWELL,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Torruella, Kayatta, and Barron, Circuit Judges.

Jeffrey W. Langholtz for appellant. Seth R. Aframe, Assistant United States Attorney, with whom John J. Farley, Acting United States Attorney, was on brief, for appellee.

July 16, 2018 BARRON, Circuit Judge. Brian Powell appeals his

conviction based on his guilty plea for production of child

pornography in violation of

(a). Because we see

no error in the District Court's ruling denying his motion to

withdraw his guilty plea, we affirm the conviction.

I.

On April 19, 2016, the government filed a one-count

information against Brian Powell, alleging that he had produced

child pornography in violation of

(a). On May 2,

2016, Powell pleaded guilty to that count. At the plea hearing,

the government offered the following facts in support of the

charge.

Omegle is a chat website that allows users to see each

other and "chat" using their computers' video cameras and through

instant messaging. In July 2015, Powell used Omegle to produce

child pornography by initiating sexually explicit video-chats with

minors1 and recording a number of video chats as they appeared on

1 The District Court noted that the government had not adduced evidence demonstrating that at least one individual depicted in the screenshots was a minor, because the individual was not identified. The Court then confirmed with Powell's counsel that he had "reviewed this issue with [Powell] and [was] satisfied . . . [that Powell] understands that the government would have to prove that this was a minor child and he is not prepared to contest the government's contention on that point[.]" Powell's counsel then confirmed that he had spent "as much time as [he] needed with the forensic detective" reviewing the images and discussed the matter with Powell in discussing his decision whether to plead guilty.

- 2 - his screen. He then stored those recordings on his personal

computer.

Before taking Powell's plea, the District Court engaged

him in a colloquy pursuant to Rule 11 of the Federal Rules of

Criminal Procedure in which, among other things, he was asked if

he "disagree[d] with anything that [the prosecutor] ha[d] said,"

and Powell confirmed that he did not. See Fed. R. Crim. P. 11.

The District Court also confirmed that Powell understood the

potential sentence that he was facing and how that sentence would

be calculated. Powell was next asked if he was "satisfied with

the legal advice [he had] received from [his] attorney," to which

Powell responded that he was. The District Court also asked

Powell's attorney if "to [his] knowledge, is [Powell] pleading

guilty because of any illegally obtained evidence in the

government's possession?" Powell's attorney replied that he "did

not believe" so. At the end of the colloquy, the District Court

accepted Powell's guilty plea.

Nevertheless, many months later, on February 17, 2017,

Powell filed a motion to withdraw his guilty plea. He alleged in

that motion that his Fourth Amendment rights had been violated

because Omegle had forwarded screenshots it had collected of

Powell's chat sessions and the IP address used for them to the

National Center for Missing and Exploited Children (NCMEC), which

had then viewed those screenshots and forwarded the IP address and

- 3 - the screenshots to law enforcement. Powell argued that his

counsel, in advising him with respect to the guilty plea, had

provided him with ineffective assistance of counsel in violation

of his Sixth Amendment right to counsel, see Strickland v.

Washington,

(1984), by not having moved pursuant

to the Fourth Amendment to suppress the evidence that Omegle had

sent to NCMEC.

The District Court acknowledged that Powell would be

entitled to withdraw his guilty plea if his counsel had failed to

file a meritorious suppression motion, and so it held a hearing to

address the potential merits of any such motion. At that hearing,

the District Court adduced the following undisputed facts.

Powell's solicitation of child pornography was picked up

through Omegle's systematic review process. In this process,

Omegle automatically records periodic screenshots of users' video

chats. Omegle employees then review these records and forward

images that employees suspect of being child pornography to NCMEC,

an entity that "is statutorily obliged to maintain an electronic

tip line . . . to report possible Internet child sexual

exploitation violations to the government." United States v.

Ackerman,

(10th Cir. 2016), reh'g denied (Oct.

4, 2016). NCMEC employees then view the images and run the

corresponding IP addresses through a publicly-available system to

- 4 - identify the source's geographic location. NCMEC then passes those

images and the IP address on to law enforcement.

Omegle followed this process in this case. During

Powell's online interactions, Omegle automatically took

screenshots. Omegle staff then reviewed these screenshots, along

with information about Powell's IP address and webcam. An Omegle

employee identified the screenshots as containing possible child

pornography. Omegle submitted the screenshots and computer and

webcam information to NCMEC. NCMEC reviewed those screenshots and

determined that they contained child pornography. NCMEC also

identified Powell's geographic area based on his IP address. NCMEC

forwarded the screenshots and IP information to law enforcement.

On these facts, the District Court denied Powell's

motion on May 25, 2017, because it found that the only information

that NCMEC obtained from Omegle was information that Omegle had

viewed through its own independent searches prior to providing

that information to NCMEC. It thus concluded that NCMEC had not

violated Powell's Fourth Amendment rights. Powell now brings this

appeal from that ruling.

II.

Our review of "a district court's denial of a motion to

withdraw [a guilty plea is] for abuse of discretion." United

States v. Dunfee,

(1st Cir. 2016). In making

that assessment, we consider "the strength of the reasons offered

- 5 - in support of the motion," United States v. Isom,

(1st Cir. 2009), recognizing that the motion should be permitted

"if the defendant offers 'a fair and just reason'" for the motion.

United States v. Sousa,

(1st Cir. 2006) (quoting

Fed. R Crim. P. 11(d)(2)(B)). In determining whether the defendant

offered such a "fair and just reason," our review of the District

Court's legal conclusions in denying a motion to withdraw is de

novo. United States v. Gates,

(1st Cir. 2013).

We have explained that when a defendant seeks to withdraw

a guilty plea based on a claim of ineffective assistance of counsel

under the Sixth Amendment, that defendant must make two showings.

First, he must demonstrate "that counsel's representation 'fell

below an objective level of reasonableness.'" United States v.

Pellerito,

(1st Cir. 1989) (quoting Hill v.

Lockhart,

, 57–59 (1985)). Second, he must show that

the "counsel's deficient performance resulted in prejudice -- that

is, 'that there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have

been different.'" United States v. Mercedes-De La Cruz,

(1st Cir. 2015) (quoting Strickland v. Washington,

(1984)).

Powell agrees that, in accord with these requirements,

he can succeed on his challenge to the denial of his motion to

withdraw his guilty plea only by showing that the motion to

- 6 - suppress that he contends that his counsel should have filed would

have been meritorious. Mercedes-De La Cruz,

.2 But,

for the reasons that we now explain, we conclude that he has failed

to show that it would have been.

The Fourth Amendment provides that the "right of the

people to be secure in their persons, houses, papers and effects,

against unreasonable searches and seizures, shall not be

violated." U.S. Const. amend. IV. This protection applies when

"the person invoking its protection can claim a . . . 'legitimate

expectation of privacy' that has been invaded by government

action." Smith v. Maryland,

(1979).

The parties do not dispute that Powell had a reasonable

expectation of privacy in the screenshots of his Omegle video chat

conversations. They also do not dispute that Omegle, under our

precedent, was not acting as a governmental entity or agent, United

States v. Cameron,

(1st Cir. 2012). Nor do they

dispute that, for all relevant purposes, NCMEC was. What they do

2 Powell also gestures at an argument that his counsel's performance was ineffective because, relying on United States v. Cavitt,

(5th Cir. 2008), Powell's counsel did not provide him with the opportunity to adequately review discovery before he accepted a guilty plea. However, even were this argument not waived for lack of development, see United States v. Zannino,

(1st Cir. 1990), he clarified at oral argument that his ineffective assistance of counsel argument was not based on inadequate access to discovery, but rather solely the failure to file a suppression motion that would have been successful. We thus do not need to address that argument here.

- 7 - dispute is whether NCMEC's warrantless viewing of the screenshots

and its review of the other related information that Omegle had

sent to NCMEC requires the suppression of that evidence.

Powell contends, pursuant to what is known as the private

search doctrine, that a motion to suppress that evidence would

have been successful. The private search doctrine provides that,

if a private actor (such as Omegle) searches evidence in which an

individual has a reasonable expectation of privacy, and then

provides that evidence to law enforcement or its agent (such as,

in this case, NCMEC), "[t]he additional invasions of [the

individual's] privacy by the government agent must be tested by

the degree to which they exceeded the scope of the private search."

United States v. Jacobsen,

(1984).

Under this doctrine, there is no Fourth Amendment

violation if the search by law enforcement or its agent is

coextensive with the scope of the private actor's private search

and there is "a virtual certainty that nothing else of

significance" could be revealed by the governmental search.

; accord Ackerman,

. But if, instead, that

search "exceed[s] the scope of the private search," then the

government must have "the right to make an independent search"

under the Fourth Amendment in order for that search to comport

with the Constitution. Jacobsen, 466 U.S. at 116.

- 8 - Powell argues that NCMEC's search of the screenshots

exceeded the scope of Omegle's private search, and he relies for

that contention on the Tenth Circuit's decision in United States

v. Ackerman,

(10th Cir. 2016). But that case does

not help him.

In Ackerman, the defendant's internet service provider

(ISP) employed an "automated filter designed to thwart the

transmission of child pornography" through the use of "hash value

matching." Ackerman,

. "A hash value is (usually)

a short string of characters generated from a much larger string

of data (say, an electronic image) using an algorithm -- and

calculated in a way that makes it highly unlikely another set of

data will produce the same value."

Ackerman's ISP's hash

value matching protocol identified an attachment to Ackerman's

email as potentially child pornography and automatically forwarded

that email and its attachments to NCMEC.

NCMEC employees

then viewed Ackerman's email and attachments before passing this

material on to law enforcement.

The Tenth Circuit, on the understanding that Ackerman

had a reasonable expectation of privacy in his emails,

at 1304-

05, concluded that NCMEC's viewing of the email and attachments

without a warrant violated the Fourth Amendment because the ISP

had "never opened the email itself. Only NCMEC did that, and in

at least this way exceeded rather than repeated [the ISP's] private

- 9 - search."

. Nor, Ackerman reasoned, was there "any

doubt NCMEC's search of the email itself quite easily 'could [have]

disclose[d]' information previously unknown to the government

besides whether the one attachment contained contraband."

(quoting Jacobsen,

) (alterations in original).

The images of the screenshots that NCMEC viewed in

Powell's case, however, were precisely the ones that had already

been viewed by the private actor, Omegle. And, given the form in

which NCMEC received that material, NCMEC's viewing of those images

could not have disclosed any "fact previously unknown." Jacobsen,

; see also Ackerman,

. Thus, under

the private search doctrine as Jacobsen defines it, Powell has

failed to show that his Fourth Amendment rights were violated.

Powell does suggest, in cursory fashion, that subsequent

developments in Fourth Amendment jurisprudence cast doubt on the

applicability of the private search doctrine in the digital age,

such that the screenshots might need to be suppressed even though

NCMEC did not exceed the scope of the search conducted by Omegle.

But while he cites in general terms to United States v. Jones,

(2012), and what was the then-pending case of

Carpenter v. United States, No. 16-402, ___ U.S. ___ (2018), he

fails to explain how these cases, neither of which (at least

directly) concern the private search doctrine, bear on Jacobsen's

- 10 - application here. Thus, any argument along those lines is waived

for lack of development. Zannino,

.

III.

The conviction is affirmed.

- 11 -