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United States v. Sweeney

United States Court of Appeals, First Circuit

April 11, 2018

NEIL SWEENEY, Defendant, Appellant.


          Joan M. Fund for appellant.

          Jo-Ann 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.

          Before Lynch, Stahl, and Kayatta, Circuit Judges.

          STAHL, Circuit Judge.

         Defendant 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.

         I. Background

         In 2014, the Federal Bureau of Investigation ("FBI") was investigating the distribution of child pornography through a network called GigaTribe.[1] 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."[2] Agent Matthews made contact with irishrebble, and irishrebble expressed an interest in young boys between the ages of eight to fifteen.

         Several 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.

         Following 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, 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.

         Based 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 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.

         On the 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.

         II. Analysis

         Sweeney contests his conviction and sentence on a variety of grounds. We address each issue in turn.

         A. Fourth Amendment Challenge: Motion to Suppress Evidence as it Relates to the Search Warrant

         Sweeney 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.

         Generally, 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.[3] As such, because of his waiver, we need not address the merits of Sweeney's appeal.

B. Fifth and Sixth Amendment Challenge: Motion to Suppress Statements

         On May 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."[4] 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 form.

         After 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.

         On 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.

         i. Statements Made During Arrest

         Defendant 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 self-incrimination."

         All 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 interrogation.").

         The 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 ...

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