FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Timothy S. Hillman, U.S. District Judge]
M. Fund for appellant.
Karshon, Office of the Solicitor General, United States
Department of Justice, with whom William D. Weinreb, Acting
United States Attorney, was on brief, for appellee.
Lynch, Stahl, and Kayatta, Circuit Judges.
Neil Sweeney ("Sweeney") was convicted of
distribution and possession of child pornography, in
violation of 18 U.S.C. § 2252A. On appeal, Sweeney
raises the following arguments: (1) the district court erred
in admitting evidence that was collected based on an overly
broad and stale search warrant in violation of his Fourth
Amendment rights; (2) the district court erred in failing to
suppress statements made in violation of his Fifth and Sixth
Amendment rights; (3) the district court abused its
discretion in admitting evidence pursuant to Federal Rule of
Evidence 414; (4) the district court erred in giving an
aiding and abetting jury instruction; and (5) the sentence
imposed by the district court violated the Constitution. We
affirm his conviction and sentence in all respects.
2014, the Federal Bureau of Investigation ("FBI")
was investigating the distribution of child pornography
through a network called GigaTribe. In December 2014, FBI Agent
Kevin Matthews ("Agent Matthews") logged onto
GigaTribe using the alias "localboy" in order to
make contact with GigaTribe user
"irishrebble." Agent Matthews made contact with
irishrebble, and irishrebble expressed an interest in young
boys between the ages of eight to fifteen.
months later, on April 9, 2015, Agent Matthews, through the
alias localboy, again made contact with irishrebble on
GigaTribe. Irishrebble shared the password to his file folder
with localboy, in exchange for localboy providing irishrebble
with the password to localboy's folder. Agent Matthews
was able to download thirty images and videos that
constituted child pornography from irishrebble's folder,
however he lost access to the folder after about 1.5 minutes
of downloading. Matthews assumed that he was cut off from
irishrebble's folder once irishrebble learned that the
password Matthews provided was unusable. Agent Matthews
determined that there were 239 files in irishrebble's
shared folder on GigaTribe. Agent Matthews saw dozens of
video and image files in the folder and their names suggested
that the files were child pornography.
this event, FBI agents traced the IP address used by
irishrebble on April 9, 2015 to 54 Elm Street, Worcester,
Massachusetts. During the relevant period, Sweeney lived on
the third floor of the residence. Several other people
resided at the location, which also included a carriage house
in the rear. The moniker "irishrebble" was used by
Defendant on various social networking websites, including
LinkedIn, Twitter, and a Yahoo account,
firstname.lastname@example.org. The Yahoo account was linked to the
Facebook profile of one Neil Sweeney and the GigaTribe
account of irishrebble. The Facebook profile of one Neil
Sweeney included pictures of the Defendant. The password for
the GigaTribe account user irishrebble was Primo6765. The
numerical part of the password, 6765, corresponded to
Defendant's birthday, June 7, 1965.
on this information, FBI agents obtained a search warrant for
Sweeney's residence and on March 20, 2015, the warrant
was executed. Inside Sweeney's residence, agents
discovered a Chromebook, which was damaged and unsearchable,
and a Dell laptop. The laptop had the same registered IP
address as the one used on April 9, 2015 by GigaTribe user
irishrebble. The computer had three users: one primary user,
irishrebble, and two other accounts associated with a Michael
Riel and a Matthew Nunnelly. The computer had accessed the
Yahoo account of email@example.com and the Facebook
account of a Neil Sweeney. On the laptop, agents uncovered
thumbnail image files that depicted young boys engaged in
sexual activity. The agents could not tell if the computer
had accessed GigaTribe, nor could they find the specific
files that GigaTribe user irishrebble shared with Agent
Matthews on April 9, 2015.
day the warrant was executed, Sweeney was arrested at his
residence. On August 19, 2015, Sweeney was indicted on two
counts for Distribution of Child Pornography and with Aiding
and Abetting that crime, and Possession of Child Pornography.
On October 3, 2016, following a six-day trial, Sweeney was
convicted on both counts. On March 13, 2017, Sweeney was
sentenced to seventeen years of imprisonment, followed by ten
years of supervised release.
contests his conviction and sentence on a variety of grounds.
We address each issue in turn.
Fourth Amendment Challenge: Motion to Suppress Evidence as it
Relates to the Search Warrant
filed a motion to suppress the evidence seized as a result of
the search warrant, claiming that the warrant violated the
Fourth Amendment because it was overly broad and stale. The
district court denied the motion and also found that it was
untimely filed. On appeal, Sweeney renews his challenge to
the search warrant.
this Court reviews the district court's legal conclusions
denying a motion to suppress de novo, and its factual
findings for clear error. See United States v.
Crooker, 688 F.3d 1, 6 (1st Cir. 2012). However,
pursuant to Fed. R. Crim P. 12(c)(3), the Court need not
review a motion to suppress that was untimely filed. Even
when the district court rules on an untimely motion, as the
court did here, an untimely motion to suppress is deemed
waived unless the party seeking to suppress can show good
cause as to the delay. See, e.g., United States
v. Walker-Couvertier, 860 F.3d 1, 9 & n.1 (1st Cir.
2017); United States v. Santos Batista, 239 F.3d 16,
20 (1st Cir. 2001); United States v. Bashorun, 225
F.3d 9, 14 (1st Cir. 2000). Sweeney neither challenged the
finding of untimeliness before the district court, nor does
he now argue that his delay in filing the motion to suppress
was excused by good cause. As such, because of his waiver, we need
not address the merits of Sweeney's appeal.
B. Fifth and Sixth Amendment Challenge: Motion to
20, 2015, when Sweeney was arrested in his home, he asked the
agents what the charges were against him. Agent Weidlich
responded that he was being charged with possession and
distribution of child pornography. Sweeney stated, "I
don't even own a computer." Sweeney was not Mirandized
until he was brought to the Worcester Police Station. At the
station, Agent Weidlich, along with Detective Bisceglia,
advised Sweeney of his Miranda rights. When asked if he
understood his rights, Sweeney responded in the affirmative.
Agent Weidlich asked Sweeney to sign a form acknowledging
that he understood his rights and that he was willing to be
questioned without a lawyer present. When Sweeney told the
officers that he did not have his glasses, Detective
Bisceglia offered to suspend the questioning to get
Sweeney's glasses, but Sweeney declined. Agent Weidlich
offered to read through the form again, but Sweeney again
rejected the offer and signed the Miranda acknowledgment
about ten minutes of the interview, the agents began to ask
Sweeney about his email accounts. Sweeney explained,
"I'm trying to keep myself -- I don't want to
dig a hole. I need to speak to a lawyer." Agent Weidlich
told Sweeney, "it's certainly your right to talk to
a lawyer, so if, we're, you want to be done here,
we're done." Sweeney then made another statement
about digging himself into a hole, and Bisceglia stated,
"[s]o, are you asking for a lawyer." Sweeney asked,
"[d]o I need a lawyer?" Agent Weidlich explained
that they could not answer that question and Bisceglia
offered Sweeney some time to think about it. The officers
left the room and when they returned, Sweeney stated,
"I'm screwed. I need a lawyer" and said nothing
else. At which point, the interview ended. The entire
encounter at the police station was videotaped.
appeal, Sweeney renews his challenge as to the district
court's decision denying his motion to suppress these
statements. Sweeney argues that (1) his statements made to
police during his arrest were un-Mirandized and therefore
involuntary; (2) he did not knowingly waive his Miranda
rights; and (3) the police continued to question him after he
requested counsel. Again, this Court reviews the district
court's legal conclusions as to a decision to deny a
motion to suppress de novo, and its factual findings for
clear error. See Crooker, 688 F.3d at 6.
Statements Made During Arrest
maintains that his un-Mirandized statement, "I don't
even own a computer, " should be suppressed because it
was made during an interrogation in violation of his Miranda
rights. Pursuant to Miranda v. Arizona, 384 U.S.
436, 444 (1966), "the prosecution may not use statements
. . . stemming from custodial interrogation of the defendant
unless it demonstrates the use of procedural safeguards
effective to secure the privilege against
parties acknowledge that Defendant was not Mirandized when he
was first arrested at his home. Therefore, the only question
on appeal is whether Defendant was being interrogated because
Miranda is only applicable during a custodial
interrogation. See Rhode Island v. Innis, 446 U.S.
291, 300 (1980) ("It is clear therefore that the special
procedural safeguards outlined in Miranda are
required not where a suspect is simply taken into custody,
but rather where a suspect in custody is subjected to
district court correctly found that Defendant's
statement, "I don't even own a computer, " was
not the product of an interrogation. Defendant asked the
arresting officer a question, and the officer responded. The
officer's comment did not require a response. As the
district court explained, "Mr. Sweeney initiated the
conversation by asking what he was being charged with and
gratuitously responding." See United States v.
Conley, 156 F.3d 78, 83 (1st Cir. 1998) ("A law
enforcement officer's mere description of the evidence
and of ...