NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 19-3792

UNITED STATES OF AMERICA

v.

DERRICK BAER, Appellant

Appeal from the United States District Court for the District of New Jersey (D.C. Criminal Action No. 2:15-cr-00417-001) District Judge: Honorable Claire C. Cecchi

Submitted Under Third Circuit L.A.R. 34.1(a) January 11, 2021

Before: AMBRO, KRAUSE and PHIPPS, Circuit Judges

(Opinion filed: January 20, 2021) OPINION *

AMBRO, Circuit Judge.

Appellant Derrick Baer appeals his conviction on one count of knowing receipt and

attempt to receive child pornography and one count of knowing possession of material that

contained at least three images of child pornography. Baer also appeals his within-

Guidelines sentence of 168 months. For the reasons stated below, we affirm Baer’s

conviction and sentence.

I.

In May 2010, Baer reported the death of his then-girlfriend, Lorianne Kosnac. Upon

arriving at their home, the police received oral and written consent from Baer to conduct a

“complete search” of the residence and to remove “any documents, materials, things or

other property.” While the search was ongoing, Kosnac’s sister called police to express

concerns that Baer may be responsible for Kosnac’s death. The sister told police the

following:

1. A few months before her death, Kosnac discovered jars containing washcloths

that smelled like ammonia under her bed. From that incident, Kosnac learned

that Baer previously used homemade chloroform to render her unconscious and

perform sex acts on her.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 2. When confronted, Baer admitted to her that (a) he had used chloroform on

Kosnac, (b) he learned to make chloroform on the internet, and (c) he had a

problem with porn.

3. Baer and Kosnac’s daughter told Kosnac that she had awoken once to find Baer

standing over her with a washcloth.

4. Kosnac said Baer “had a problem with kiddy porn” and had “been on the internet

and . . . pulled all kinds of stuff off there.”

Kosnac’s sister also stated that her own minor daughter had alleged Baer once took a

picture of her in the shower.

After this interview, law enforcement returned to interview Baer while the search

of his house was ongoing. Baer denied having chloroform in the house and researching

how to make chloroform on his computer. But he did not object to the search or removal

of his computers and expressly stated that law enforcement would not find any evidence of

chloroform research on the devices. Officers then asked Baer about a rag found in his

house, and he responded that the rag would not test positive for chloroform (law

enforcement later confirmed that the rag had chloroform on it). In addition to the rag, law

enforcement seized many devices from Baer’s residence, including disks labeled

“Derrick’s eyes ONLY,” “pics incriminating,” and “porn.”

In the months after the search, Baer’s daughter confirmed in an interview with law

enforcement that she had once awoken to her dad standing over her with a washcloth that

smelled like paint. The medical examiner also issued its report and concluded that

3 “exposure to chloroform” was a “[c]ontributory [c]ondition” of Kosnac’s death, although

the official cause of death was a heart condition. App. 25–26.

One of the primary officers on the case, Sgt. Robb, sought a search warrant to

analyze Baer’s computers, but the prosecutor assigned to the case denied Robb’s request. 1

In August 2011, after a new prosecutor was assigned to the case, Robb obtained a warrant

from New Jersey state court. About a month later, Robb submitted a request to a local

computer forensics laboratory for forensic examination of Baer’s devices. The laboratory

notified Robb that it was ready to begin its examination in July 2012, and Robb brought

the devices to the lab that same day. The forensic analysis report, issued in October 2012,

found thirteen confirmed—and hundreds of possible—images of child pornography. In

November 2012, police charged Baer with one count of possessing child pornography, and

a grand jury later indicted him. 2 The FBI soon launched their own investigation and, in

2015, the U.S. Attorney’s Office for the District of New Jersey charged Baer with the two

counts at issue in this appeal. A federal grand jury later indicted Baer on these charges.

During these proceedings, Baer’s ex-girlfriend (whom Baer began dating after

Kosnac died), Carly Jones, gave police an external hard drive that belonged to Baer (the

“Hard Drive”). Jones made a passing remark about child pornography but did not expressly

assert that the drive contained explicit material. Then, in March 2017, Jones’s eleven-year-

old son reported that Baer had sexually abused him and shared pictures of this abuse with

1 Sgt. Robb testified that the original prosecutor was skeptical about whether Baer’s use of chloroform for sex was consensual. 2 These charges were dropped after the U.S. Attorney’s Office filed federal charges. 4 friends. Federal law enforcement soon learned of the allegation and obtained a warrant to

search the Hard Drive, discovering child pornography.

In 2019, a federal jury convicted Baer for both receiving and possessing child

pornography. The District Court sentenced him to 168 months’ imprisonment and lifetime

supervision. Baer now appeals (i) the District Court’s denial of his motion to suppress the

devices and images seized from his home in 2010 and the images collected from the Hard

Drive; (ii) the District Court’s denial of his request for a Franks hearing based on factual

inaccuracies in the search warrant affidavit; (iii) the District Court’s decision to admit three

pieces of evidence; and (iv) the Court’s refusal to grant a downward variance on his

sentence.

II.

A. Motion to Suppress Seized Devices and Media

Baer first argues that the devices and resulting media should have been suppressed

because the affidavit used to search his devices failed to establish probable cause and that

delays in investigating and searching the devices violated the Fourth Amendment. We

review the District Court’s underlying factual findings for clear error and the Court’s

application of the law to those facts de novo. United States v. Perez,

(3d Cir. 2002).

Here, none of the searches required probable cause because they were conducted

with the consent of the owner. Looking first to the devices seized from Baer’s residence,

Baer consented to a full search of his residence without limitation and never sought to

revoke his consent or to have the devices returned. Schneckloth v. Bustamonte,

5 218, 219 (1973) (noting that one exception to “the requirements of both a warrant and

probable cause is a search that is conducted pursuant to consent”). To the extent Baer

complains of the Government’s failure to return his devices, his argument fails because he

never sought their return. Defendants who never seek the return of the property cannot

argue that delay violated the Fourth Amendment. United States v. Stabile,

,

235–36 (3d Cir. 2011) (citing United States v. Johns,

(1985)).

Jones also gave express consent for police to search the Hard Drive, and her joint

access and subsequent control of the device gave her the authority to do so. See Stabile,

(providing that a cohabitant with joint access and control over computers

had authority to consent to warrantless seizure of hard drives under the Fourth

Amendment). Jones also never revoked or limited her consent or sought the return of the

Hard Drive.

Further, to the extent officers needed the August 2011 warrant to search Baer’s

devices, the warrant was supported by probable cause. Probable cause is established if

there is a “fair probability” that contraband or evidence of a crime will be found in a

particular place. Illinois v. Gates,

(1983). Here, law enforcement had

evidence from multiple sources confirming the fair probability that the devices contained

evidence of a crime. In his affidavit, Sgt. Robb extensively referenced various witnesses’

allegations concerning Baer’s research and use of chloroform, as well as the chloroform

rag officers discovered in Baer’s home. Robb also recounted witness allegations that Baer

had “a problem with kiddy porn,” had taken a picture of his minor niece in the shower, and

had attempted to use chloroform on his daughter. App. 134, 139. The affidavit also

6 referenced Baer’s large collection of electronic media and the suspicious labels on that

media. While some of the evidence referenced in the affidavit is hearsay, hearsay

statements can support a finding of probable cause if law enforcement has a “substantial

basis for crediting the hearsay.” App. 241–42. Here, many of the hearsay statements from

various witnesses either directly or indirectly corroborated each other (e.g., allegations that

Baer had an interest in child pornography were corroborated by Baer’s alleged attempts to

victimize his daughter and Kosnac’s niece), and physical evidence in the home also

corroborated those statements. Thus, law enforcement had a substantial basis for crediting

the hearsay, and the affidavit established a fair probability that the seized devices had

evidence of the crimes for which law enforcement was investigating.

B. Denial of Franks Hearing Request

Baer also argues that the District Court erred in denying his motion for a Franks

hearing because inaccurate statements by Sgt. Robb in the search warrant affidavit merited

a hearing. See Franks v. Delaware,

(1978) (establishing specific review for

allegations of false testimony by police in affidavits establishing cause for a warrant). We

have not yet determined the standard of review that applies to a district court’s denial of a

Franks hearing. See United States v. Aviles,

, 509 n.3 (3d Cir. 2019) (declining

to adopt a standard because conclusion is the same under any standard).

Baer, however, would lose even under a fresh review. Two prongs must be satisfied

for a defendant to obtain a Franks hearing: (1) “a substantial preliminary showing that a

false statement knowingly and intentionally, or with reckless disregard for the truth, was

included by the affiant in the warrant affidavit”; and (2) “the allegedly false statement is

7 necessary to the finding of probable cause.” Franks, 438 U.S. at 155–56. The District

Court properly decided that the inaccuracies in the affidavit—which included minor

inaccuracies in quoted witness statements—were inadvertent and accurately conveyed the

information. Further, the alleged errors are insufficient to meet the second prong. Even if

the witness statements were inaccurate, the suspicious nature of the labels on the devices

and the discovery of a chloroform-soaked rag in Baer’s home also supported probable

cause. And while Baer makes much of Robb’s misrepresentations that he had worked on

other media-related child pornography investigations in the past, this minor inconsistency

does not affect the probable-cause analysis because Robb had significant evidence, as

previously discussed, that Baer’s devices may have contained evidence of child

endangerment, child pornography, and/or criminal homicide. Baer was therefore not

entitled to a Franks hearing.

C. Abuse of Discretion in Admitting Evidence of Baer’s Conduct

Baer argues that the District Court abused its discretion in admitting certain

evidence used to show that Baer used the computer on which child pornography was found

and that his possession of the media was not accidental. He takes issue with the admission

of three pieces of evidence: (1) testimony that he photographed Kosnac’s niece showering;

(2) recordings of him admitting to using his computer to research chloroform recipes; and

(3) child pornography found on the Hard Drive.

1. Testimony that Baer photographed Kosnac’s niece showering

The District Court admitted testimony by Kosnac’s niece for the purpose of proving

that Baer is sexually attracted to children and thus intentionally obtained the illicit media 8 found on his devices. Baer contends that the evidence was unduly prejudicial under Federal

Rule of Evidence 403. When a district court conducts an on-the-record weighing of

probative value against unfair prejudice, its evidentiary decision is reviewed for abuse of

discretion and is thus entitled to great deference. United States v. Lacerda,

(3d Cir. 2020). We agree with the District Court that the risk of prejudice was

tempered because the niece would be testifying as a teenager, not as her eight-year-old self

from the incident; her testimony would be less inflammatory than other evidence that

would be heard at trial; and her evidence was not any more disparaging than other evidence

necessary to the trial. Thus the District Court did not abuse its discretion in admitting this

evidence.

2. Recordings of Baer admitting to using his computer to research chloroform recipes Recordings and testimony from Noel Gowran (a friend of Jones) were admitted

under Rule 404(b). 3 This evidence showed that Baer came to Gowran’s house and

demonstrated on Gowran’s computer how Baer found chloroform recipes. The

Government sought to admit this evidence, along with evidence that Baer researched

chloroform recipes on his own computer a month before child pornography files were

saved on that computer, to prove that Baer had indeed used the computer on which child

pornography was found. In short, the Government needed this evidence to rebut the

defense that Baer did not use the computer—it did not use the evidence to show he used

3 To be admissible under Rule 404(b), other acts “must (1) have a proper evidentiary purpose; (2) be relevant; (3) satisfy Rule 403; and (4) be accompanied by a limiting instruction (where requested) about the purpose for which the jury may consider it.” United States v. Green,

(3d Cir. 2010). We conduct a plenary review of whether evidence falls within the scope of Rule 404(b).

. 9 chloroform, and the evidence omitted any mention of Kosnac or Baer’s intent for the use

of the chloroform.

This evidence has a proper purpose and is relevant. The Government sought to use

the evidence to prove that Baer had used his computer shortly before the child pornography

was downloaded. As the District Court observed, the “obscure topic of the search,” how

to make chloroform, “ha[d] the potential to significantly narrow the pool of possible people

who may be responsible for the alleged child pornography.” App. 891. Furthermore, the

evidence was highly probative, as Baer’s use of the computer was at the heart of the case.

Finally, prior to trial, the Government offered to inform the jury that the parties had agreed

that Baer used the computer on a specific date, without using the word “chloroform,” but

Baer rejected this offer. The District Court was also prepared to issue a limiting instruction,

but Baer requested that it not do so. Baer thus had the opportunity to avoid prejudice, but

he refused. The District Court therefore did not err in admitting this evidence.

3. Child pornography found on the Hard Drive

Baer further contends that the District Court erred in admitting images collected

from the Hard Drive under Rule 403 because they were unfairly prejudicial. The images,

which are different from those images that form the basis of the indictment, were admitted

under Rule 414: “In a criminal case in which a defendant is accused of child molestation,

the court may admit evidence that the defendant committed any other child molestation.

The evidence may be considered on any matter to which it is relevant.” Fed. R. Evid.

414(a). Baer does not challenge the evidence’s admission under this rule. Nonetheless, he

argues that the images were unfairly prejudicial under Rule 403 because (1) the jury could 10 have taken the images as improper character evidence, and (2) the images could have

belonged to Jones and thus have little probative value.

This admission was also proper. The District Court found that the images on the

Hard Drive were similar to those that formed the basis for Baer’s indictment, as both

depicted children under the age of fourteen and were all found within a four-year period.

The images were relevant because they spoke to Baer’s knowing possession of the images

for which he was charged, even after law enforcement seized his original devices. These

facts sufficiently tie the images to Baer, thus making the evidence probative, even though

Jones had possession of the Hard Drive at one time. Further, the risk of prejudice was

reduced because the images from the Hard Drive were no more shocking than the other

images and videos introduced at trial. We therefore agree with the District Court that this

evidence had significant probative value, and the danger of unfair prejudice did not

outweigh that value. Moreover, in cases where evidence of a past sexual offense admitted

under Rule 414 is substantially similar to the acts for which the defendant is being tried,

“it is Congress’s intent that the probative value of the similar act be presumed to outweigh

Rule 403’s concerns.” Johnson v. Elk Lake Sch. Dist.,

(3d Cir. 2002).

The Court thus did not abuse its discretion in admitting this evidence.

D. Sentencing

The District Court sentenced Baer to 168 months, the top of the Guideline range of

135 to 168 months. See Appx.1433. He presented two arguments in his request for a

downward departure and variance: the conditions of his pretrial detention and policy-based

arguments regarding Sentencing Guidelines for child pornography offenses.

11 Because Baer’s sentence is within the Guidelines range, we presume it is reasonable.

United States v. Handerhan,

, 119–20 (3d Cir. 2014). However, even without

this presumption, his arguments are unpersuasive. Baer first argues that his sentence was

procedurally unreasonable because the District Court failed to acknowledge either

argument in its discussion of the

(a) sentencing factors. See United States

v. Tomko,

(3d Cir. 2009) (stating that a sentence is procedurally

unreasonable if, among other things, the District Court failed to consider the § 3553(a)

factors or failed to explain adequately its reasoning). This argument fails because the Court

considered these factors when it denied Baer’s downward departure and variance requests

at sentencing. While the Court did not recite Baer’s arguments in summarizing its

judgment, it expressly considered and rejected Baer’s in-depth arguments on both topics in

the context of the § 3553(a) factors. App. 1426–30 (prison conditions), 1441–43 (policy

arguments).

Baer next argues that his sentence was substantively unreasonable. See Tomko,

(stating that a sentence is substantively unreasonable if “no reasonable

sentencing court would have imposed the same sentence on that particular defendant for

the reasons the district court provided”). Here the District Court thoroughly explained its

reasons in sentencing Baer at the top of the Guideline range. They included the size of

Baer’s collection, the steps Baer took to conceal his crime, and the particularly heinous

nature of the specific images on his devices. The Court also emphasized that specific

deterrence was warranted in this case because Baer compiled a new collection of child

pornography on the Hard Drive after law enforcement seized his original devices.

12 Moreover, it denied the Government’s motion for an upward variance because the

Guideline sentence had already taken the seriousness of Baer’s offense into account.

Hence his sentence is substantively reasonable.

* * * * *

We therefore affirm the District Court’s judgment of conviction and sentence.

13