14‐4126‐cr United States v. Nayyar

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 14th day of October, two thousand fifteen.

PRESENT: DENNY CHIN, CHRISTOPHER F. DRONEY, Circuit Judges, KATHERINE B. FORREST, District Judge.1 ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

UNITED STATES OF AMERICA, Appellee,

v. 14‐4126‐cr

CONRAD STANISCLAUS MULHOLLAND, AKA Stan, AKA Conrad Stan, Defendant,

PATRICK NAYYAR, Defendant‐Appellant.

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1 The Honorable Katherine B. Forrest, of the United States District Court for the Southern District of New York, sitting by designation. FOR APPELLEE: SEAN S. BUCKLEY, Stephen J. Ritchin, Michael A. Levy, Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York.

FOR DEFENDANT‐APPELLANT: LAURA GROSSFIELD BIRGER, Stephanie B. Turner, Cooley LLP, New York, New York.

Appeal from the United States District Court for the Southern District of

New York (Sweet, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that this case is REMANDED.

Defendant‐appellant Patrick Nayyar appeals from a judgment entered

October 31, 2014, after a jury trial, convicting him of conspiracy to provide and

providing material support to terrorists, conspiracy to contribute and contributing

goods to and for the benefit of Hizballah, and conspiracy to traffic firearms and

ammunition.

, 2339B;

(a). On October 27, 2014, the

district court sentenced Nayyar to fifteen yearsʹ incarceration. We assume the partiesʹ

familiarity with the underlying facts, procedural history of the case, and issues on

appeal.

On September 24, 2009, Nayyar was arrested by the FBI. With the consent

of his wife, the FBI searched Nayyarʹs apartment and seized his laptop. Nayyarʹs wife

also provided written consent to search the laptop. More than a year later, on October

29, 2010, the government obtained a search warrant for the laptop. Nayyarʹs wifeʹs

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written consent form, the search warrant and warrant application, and evidence

obtained from the search of the computer were produced to Nayyar during pre‐trial

discovery. The laptop was found to contain internet bookmarks and browsing history

for websites relating to military equipment, as well as a news article that identified

Hizballah as an Iran‐backed terrorist organization, and the computer evidence was

received at trial.

On the second day of trial, Special Agent Candace Hunter, an FBI forensic

examiner, testified on cross‐examination that she began her examination of the

computer on December 2, 2009, although the search warrant was not obtained until

October 29, 2010. The next day, Nayyar moved for a mistrial on the grounds that the

evidence from his computer was the product of an illegal search. Nayyar claimed that

before Hunterʹs testimony, he had not been apprised of the fact that the hard drive had

been searched prior to the application for the search warrant. On the motion for a

mistrial, the district court suggested recalling Hunter to testify at a hearing. But the

government told the court that she was already on her way back to Alabama, and that it

was not necessary to bring her back because there was no material factual dispute, and

because the motion could be denied on the basis of waiver or the inevitable discovery

doctrine.

Rather than conduct an evidentiary hearing, the district court agreed to

proceed by means of a government proffer. The district court denied Nayyarʹs motion

for a mistrial, and declined to strike the testimony regarding evidence obtained from ‐ 3 ‐

the laptop or the evidence itself, holding that because Nayyar had not challenged the

validity of his wifeʹs consent to search the computer before trial, the instant challenge

was waived. Even if there was no waiver, the district court held, testimony derived

from the laptop searches was protected by the inevitable discovery doctrine.

On appeal, Nayyar argues that (1) he did not waive his right to challenge

the search of his laptop; (2) the agents did not receive valid consent to search the laptop

from Nayyarʹs wife; (3) the independent source doctrine does not salvage the evidence;

and (4) the evidence was insufficient to prove that Nayyar engaged in a gun and

ammunition trafficking conspiracy.

We hold that the district court could not properly deny the suppression

motion on this record, and we remand for the district court to conduct a post‐trial

hearing on the issues relating to the computer evidence received at trial. See, e.g., United

States v. Hamilton,

, 169‐70 (2d Cir. 2008) (remanding for post‐trial

suppression hearing, where district court erred in denying suppression motion made at

trial, but did not reach alternative arguments for and against suppression); United States

v. Pena,

, 339‐40 (2d Cir. 1992) (remanding for post‐trial suppression

hearing concerning evidence that had been introduced at trial).

First, the government concedes on appeal that the record before this Court

is insufficient to determine whether Nayyarʹs wife had the authority to consent to a

search of her husbandʹs laptop, and the question was insufficiently addressed below.

Indeed, the written consent form that the government includes in its addendum was ‐ 4 ‐

not part of the record before the district court, and the district court explicitly

acknowledged that it had not seen it.

Second, at oral argument, the government acknowledged that it misspoke

during its evidentiary proffer when it advised the district court that Nayyar himself

gave the agents the password. This was an error the government did not correct in the

district court.

Third, the record is unclear as to the issue of the timeliness of Nayyarʹs

motion to suppress.2 Under Federal Rule of Criminal Procedure 12(c)(3), ʺ[i]f a party

does not meet the deadline for making a Rule 12(b)(3) motion, the motion is untimely.

But a court may consider the defense, objection, or request if the party shows good

cause.ʺ Fed. R. Crim. P. 12(c)(3). It is unclear whether good cause exists here. There is

a lack of clarity as to whether the evidence introduced at trial was obtained from a

search of the laptop based on the wifeʹs purported consent or based on the warrant.

Moreover, while Nayyarʹs trial counsel apparently was unaware until Hunter testified

that the government had searched the contents of the laptop a year before the warrant

2 While the parties have presented this issue as a question of ʺwaiver,ʺ the Court notes that the applicable rule, Federal Rule of Criminal Procedure 12, was revised in 2014 to remove the reference to ʺwaiver,ʺ because ʺthe rule [did] not contemplate waiver as that term is traditionally used in criminal cases.ʺ United States v. McMillian,

, 636 n.3 (7th Cir. 2015) (citing Fed. R. Crim. P. 12(c) advisory committeeʹs note to 2014 amendment). The applicable standard, however, is unchanged: ʺBefore a court may consider an untimely motion to suppress, ʹa defendant must first establish good cause for the absence of a pretrial motion.ʹʺ

at 636 (quoting United States v. Acox,

(7th Cir. 2010)).

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issued, it is unclear whether Nayyarʹs prior counsel was on notice before trial that the

laptop had been searched before the warrant issued. See J. App. at 158.

Fourth, there is uncertainty as to the applicability of the independent

source doctrine. The government bears the burden of establishing by a preponderance

of the evidence that the independent source (or inevitable discovery) doctrine applies.

See Murray v. United States,

(1988); Nix v. Williams,

(1984) (ʺIf the prosecution can establish by a preponderance of the evidence that the

information ultimately or inevitably would have been discovered by lawful means . . .

then the deterrence rationale has so little basis that the evidence should be received.ʺ).

For the independent source doctrine to apply, ʺ(1) the warrant must be supported by

probable cause derived from sources independent of the illegal entry; and (2) the

decision to seek the warrant may not be prompted by information gleaned from the

illegal conduct.ʺ United States v. Johnson,

(2d Cir. 1993).3 Here, there is

a lack of clarity in the record as to the second prong: it is unclear whether the agents

were prompted to seek the warrant by what they saw on the laptop before they obtained

the warrant, that is, the two purportedly pornographic images. The present record is

3 In the proceedings below, both the Government and the district court referred to the applicable doctrine as the inevitable discovery doctrine. Under the inevitable discovery doctrine, ʺevidence that was illegally obtained will not be suppressed ʹif the government can prove that the evidence would have been obtained inevitablyʹ even if there had been no statutory or constitutional violation.ʺ United States v. Roberts,

, 675‐76 (2d Cir. 1988) (quoting Nix,

). The Government argues on appeal that the doctrine relied upon below is better described as the independent source doctrine, because ‐‐ according to the Government ‐‐ the evidence was, in fact, recovered pursuant to a valid warrant. ‐ 6 ‐

insufficient ‐‐ as to the timeline of the search, the discovery of the images, and the

deliberations about the consent validity ‐‐ for the district to have found that the pre‐

warrant search ʺdid not result in the government obtaining evidence it would not

otherwise have obtained,ʺ such that ʺthe government d[id] not gain an advantage from

its initial violation.ʺ

* * *

As we are remanding, we do not reach Nayyarʹs sufficiency of the

evidence argument. For the foregoing reasons, we do not vacate the conviction but we

REMAND this case to the district court to conduct a hearing on whether (1) Nayyar

waived his right to challenge the evidence in question, (2) Nayyarʹs wifeʹs consent was

valid, and (3) the independent source doctrine applies.

This panel will retain jurisdiction over any subsequent appeal pursuant to

United States v. Jacobson,

(2d Cir. 1994). Accordingly, either party may

notify the Clerk of a renewed appeal within fourteen days of the district courtʹs

decision. See

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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