1 11-2960-cr United States v. DeProspero 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 COURT = S LOCAL RULE 32.1. 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 A SUMMARY ORDER @ ). 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 Cour t of Appeals for the Second Circuit, held at 1 the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New 2 York, on the 19 th day of June, two thousand twelve. 3 4 PRESENT: GUIDO CALABRESI, 5 JOS É A. CABRANES, 6 RAYMOND J. LOHIER, JR., 7 Circuit Judges. 8

------------------------------------------------------------------ 9 10 UNITED STATES OF AMERICA, 11 12 Appellee , 13 14 v. No. 11-2960-cr 15 16 STEPHEN M. DePROSPERO, 17 18 Defendant-Appellant. 19 20

------------------------------------------------------------------ 21 22 FOR APPELLANT: F RANK P OLICELLI , E SQ ., Utica, NY. 23 24 FOR APPELLEE: P AUL D. S ILVER , Assistant United States Attorney 25 (Lisa M. Fletcher, Assistant United States Attorney, on 26 the brief ) for Richard S. Hartunian, United States 27 Attorney for the Northern District of New York, 28 Syracuse, NY. 292 Appeal from a judgment of the United States District Court for the Northern 1 District of New York (David N. Hurd, Judge ). 2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 3 AND DECREED that the judgment of the District Court is AFFIRMED. 4 Defendant-Appellant Stephen M. DeProspero appeals from a judgment of 5 conviction entered in 2011, following a guilty plea to two counts of production of child 6 pornography in violation of 18 U.S.C. § 2251. The District Court imposed consecutive 7 240-month terms of imprisonment on each count. We assume the parties’ familiarity with 8 the facts and record of the prior proceedings, which we refer to only as necessary to 9 explain our decision to affirm. 10 1. State Proceedings 11 In May 2009, pursuant to a valid state search warrant, various electronic media and 12 devices were seized from DeProspero’s residence in Rome, New York. A preliminary 13 search of DeProspero’s computer disclosed one image of child pornography. In 14 September 2009 DeProspero pleaded guilty in state court to one count of possessing a 15 sexual performance by a child based upon that image. He was sentenced to six months’ 16 imprisonment in the Oneida County jail. 17 In February 2010, three months after DeProspero, through counsel, requested that 18 the seized electronic devices be returned, the devices were reviewed by the New York 19 State Police (the “State Police”) to determine whether they contained contraband. The 20 examination of one of DeProspero’s cameras resulted in the recovery of images of a 21 minor boy in a sex act with DeProspero. Further investigation identified the victim as an 22 autistic minor who lived in a group home where DeProspero worked as an aide. Similar 23 images of the same victim were recovered from a hard drive that had also been seized 24 from DeProspero’s residence. The images revealed that DeProspero had repeatedly 25
abused the victim. 263 2. Federal Proceedings 1 DeProspero was arrested by federal law enforcement officials on March 2, 2010, 2 and charged with production of child pornography in violation of 18 U.S.C. § 2251(a). 3 On March 15, 2010, a federal search warrant authorized the full forensic examination of 4 DeProspero’s electronic media for evidence of production, distribution, transmission, and 5 possession of child pornography. To establish probable cause, the warrant application 6 relied on the images previously recovered by the State Police. DeProspero moved to 7 suppress the evidence obtained from his computer and camera. The District Court denied 8 the motion. Pursuant to a plea agreement that preserved his right to appeal the denial of 9 the suppression motion, DeProspero entered guilty pleas to both counts of the indictment. 10 The District Court imposed a below-Guidelines sentence of consecutive 240-month terms 11 of imprisonment on each of the counts, for a total sentence of 480-months’ imprisonment 12 On appeal, DeProspero argues that the District Court erred in denying his motion 13 to suppress the evidence obtained from his electronic media and that the 480-month term 14 of imprisonment is unreasonable. Even if we assume that the review of the electronic 15 media by the state law enforcement officers was improper, the evidence was nonetheless 16 admissible because the federal law enforcement agents relied in good faith on a facially 17
valid federal search warrant. See United States v. Leon , 468 U.S. 897, 926 (1984); see 18
also United States v. Thomas , 757 F.2d 1359, 1368 (2d Cir. 1985). In Leon , the Supreme 19 Court recognized an exception to the exclusionary rule for evidence obtained in 20 “objectively reasonable reliance” on a search warrant, even where the warrant is 21 subsequently invalidated. 468 F.3d at 922, 926. Here, the application for the federal 22 search warrant presented all of the relevant facts to the federal magistrate judge, including 23 the information that the images seized from the camera and hard drive were discovered 24 only after DeProspero’s request to the State Police for the return of those items triggered 25 a search for contraband, and the magistrate judge determined that there was probable 264 cause. See Thomas , 757 F.2d at 1368. There is no record evidence that the federal law 1 enforcement agent who signed the warrant application deliberately misled the magistrate, 2 that the magistrate abdicated his duty, that the warrant application lacked probable cause, 3 or that the warrant was facially deficient. See United States v. Clark , 638 F.3d 89, 100 4 (2d Cir. 2011). We therefore conclude that the District Court did not err in refusing to 5 suppress the seized images. 6 Nor did the District Court abuse its discretion by imposing a 480-month term of 7 imprisonment. See United States v. Cavera , 550 F.3d 180, 189 (2d Cir. 2008). 8 DeProspero’s criminal conduct persisted over a lengthy period of time and involved at 9 least six separate episodes. The District Court considered that the conduct was 10 particularly egregious as well as the “serious risk and danger [DeProspero] pose[s] as the 11 predator of extremely vulnerable children and the need to deter other individuals from 12 committing similar crimes.” Moreover, the sentence fell below the advisory Guidelines 13 range of 30 years’ imprisonment on each count, which had been capped by the relevant 14 statutory maximum. 15 We have considered all of DeProspero’s other arguments and conclude that they 16 are without merit. For the foregoing reasons, the judgment of the District Court is 17
AFFIRMED. 18

FOR THE COURT: 19 Catherine O’Hagan Wolfe, Clerk of Court 20 21