14

‐ 4126(L)

United States v. Nayyar

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A SUMMARY

ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE

OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ʹ S L OCAL R ULE 32.1.1. W HEN CITING A

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST CITE EITHER THE

F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION ʺ SUMMARY ORDER ʺ ). 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 12 th day of July, two thousand seventeen.

PRESENT: DENNY CHIN,

CHRISTOPHER F. DRONEY,

Circuit Judges

, KATHERINE B. FORREST,

District Judge .*

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x

UNITED STATES OF AMERICA,

Appellee

,

14

‐ 4126(L)

v. 16

‐ 4046(CON)

CONRAD STANISCLAUS MULHOLLAND,

AKA STAN, AKA CONRAD STAN,

Defendant,

PATRICK NAYYAR,

Defendant

‐ Appellant

.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x

* Judge Katherine B. Forrest, United States District Court for the Southern District

of New York, sitting by designation.2 FOR APPELLEE: SEAN S. BUCKLEY, Assistant United States

Attorney (Stephen J. Ritchin, Anna M. Skotko,

Assistant United States Attorneys, on the brief ),

for Joon H. Kim, Acting United States Attorney

for the Southern District of New York, New

York, New York.

FOR DEFENDANT

‐ APPELLANT: LAURA GROSSFIELD BIRGER (Stephanie B.

Turner, on the brief ), 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 the judgment of the district court is AFFIRMED

.

Defendant

‐ appellant Patrick Nayyar renews his appeal from a judgment

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

providing material support to a foreign terrorist organization, conspiracy to contribute

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

firearms and ammunition, in violation of 18 U.S.C. §§ 371 and 2339B, and 50 U.S.C.

§ 1705(a). This case returns to us after we remanded the matter to the district court on

October 14, 2015, for a post

‐ trial hearing on issues related to Nayyar ʹ s motion for a

mistrial and to suppress computer evidence. 1 On November 18, 2016, the district court

issued an opinion adhering to its decision to deny Nayyar ʹ s motion. On December 2,

1 We did not reach Nayyar ʹ s argument that the evidence was insufficient to

support his firearms and ammunition trafficking conspiracy conviction.3 2016, Nayyar renewed his appeal. We assume the parties ʹ familiarity with the

underlying facts, procedural history, and issues on appeal.

On September 24, 2009, the Federal Bureau of Investigation ( ʺ FBI ʺ ) seized

Nayyar ʹ s laptop computer from his home with the consent of his wife. On October 29,

2010, the government obtained a search warrant for the computer. Copies of the search

warrant and supporting affidavit were produced in discovery to the defense on

November 1, 2010. At trial in March 2012, Special Agent Candace Hunter, an FBI

forensic examiner, testified that she began her examination of the computer on

December 2, 2009. The next morning, Nayyar moved for a mistrial, arguing that the

evidence obtained from his computer was the product of an illegal warrantless search.

The district court denied Nayyar ʹ s motion for a mistrial, holding that Nayyar waived

his right to challenge the computer evidence, and that, in any event, the ʺ doctrine of

inevitable discovery defeated any suppression motion. ʺ Special App. 11. We remanded

for the district court to conduct a hearing on whether (1) Nayyar waived his right to

challenge the evidence in question, (2) Nayyar ʹ s wife ʹ s consent was valid, and (3) the

independent source doctrine applied.

In its November 18, 2016, opinion, the district court again denied Nayyar ʹ s

motion for a mistrial and to suppress the computer evidence. 2 The district court

determined that Nayyar waived his right to challenge the computer evidence because

2 The district court did not conduct an evidentiary hearing, as the parties entered

into a stipulation of facts, with numerous exhibits attached. The parties and the district court

agreed that the stipulated facts obviated the need for an evidentiary hearing.4 his motion to suppress was untimely; Nayyar ʹ s wife ʹ s consent was invalid because the

government did not, at the time of seizure, ask enough questions to determine whether

she had authority to consent to a search of Nayyar ʹ s computer; and the independent

source doctrine applied to the search of the computer. In his renewed appeal, Nayyar

challenges (1) the denial of his motion to suppress the computer evidence and for a

mistrial, and (2) the sufficiency of the evidence of a conspiracy to traffic in firearms and

ammunition. We address each issue in turn.

1. Motion to Suppress the Computer Evidence and for a Mistrial

On appeal from the denial of a motion to suppress, we review the district

court ʹ s legal conclusions de novo and its factual fi ndings for clear error. United States v.

Scha ff

er

, 851 F.3d 166, 173 (2d Cir. 2017) (citing In re Terrorist Bombings of U.S. Embassies

in E. Africa

, 552 F.3d 177, 198 (2d Cir. 2008)). We review mixed questions of law and fact

de novo

. United States v. Rajaratnam

, 719 F.3d 139, 153 (2d Cir. 2013) (citing United States

v. Awadallah

, 349 F.3d 42, 65 (2d Cir. 2003)).

The independent source doctrine ʺ permits the admission of evidence

seized pursuant to an unlawful search if that evidence would have been obtained

through separate, lawful means. ʺ United States v. Vilar

, 729 F.3d 62, 83 n.19 (2d Cir.

2013) (citing Murray v. United States

, 487 U.S. 533, 537 (1988)). When such evidence is

obtained pursuant to a warrant issued after an illegal search, the independent source

doctrine applies if, ʺ (1) the warrant [was] supported by probable cause derived from

sources independent of the illegal [search]; and (2) the decision to seek the warrant5 [was] not

. . . prompted by information gleaned from the illegal conduct. ʺ United States

v. Johnson

, 994 F.2d 980, 987 (2d Cir. 1993). If a motion to suppress is not made before

trial and the movant cannot show good cause for the delay, the motion is untimely. See

Fed. R. Crim. P. 12(b)(3)(C), (c)(3).

Prior to obtaining a search warrant, the FBI conducted a forensic

examination of the computer pursuant to Nayyar ʹ s wife ʹ s consent. During the initial

search, the examiner found possible child pornography, which halted his review. Three

days later he learned that Nayyar ʹ s wife did not have the password for the computer.

The government then obtained a search warrant before conducting a further search of

the computer. The district court determined that the independent source doctrine

applied to the search of the computer because the decision to seek a warrant was not

motivated by the fi nding of possible child pornography, but rather was ʺ to obtain

evidence relevant to the pending charges against Nayyar and the months

‐ long FBI

investigation, as well as to bu tt ress the legal authority for the search the FBI had begun

before anyone from the FBI saw any of the contents of Nayyar ʹ s computer. ʺ Special

App. 31

‐ 32.

The district court properly concluded that the independent source

doctrine applied. First, as the district court found, the only reason the agents failed to

apply for a warrant prior to beginning the initial search was their mistaken belief they

had consent to conduct the search. Second, the search warrant application did not rely

on anything discovered during the initial warrantless search. Third, any further search6 for child pornography after the issuance of the search warrant was only to determine

whether making a copy of the computer would violate federal child pornography laws,

which prohibited the distribution and transportation of child pornography.

Nayyar argues that ʺ [h]ad [the examiner] not seen the [possible child

pornography] images during the initial search,

. . . no warrant would have been

sought. ʺ Appellant ʹ s Br. 27. The argument fails. While the discovery of possible child

pornography led the government to realize Nayyar ʹ s wife ʹ s consent was invalid,

ʺ exclusion may not be premised on the mere fact that a constitutional violation was a

ʹ but

‐ for ʹ cause of obtaining evidence. ʺ Hudson v. Michigan

, 547 U.S. 586, 592 (2006);

accord Mosby v. Senkowski

, 470 F.3d 515, 522

‐ 23 (2d Cir. 2006) ( ʺ While [defendant ʹ s] arrest

might, in some sense, have been a but

‐ for cause

. . ., this is not su ffi cient to justify

exclusion. ʺ ). Rather, as the district court concluded, if the government had not believed

it had consent, it would have sought a warrant long before the examiner saw the

suspected pornographic images.

Further, as the district court found, Nayyar waived his right to challenge

the computer evidence because he should have realized, before trial, that the

government conducted a warrantless search of his computer. First, on September 1,

2010, the government provided Nayyar with his wife ʹ s wri tt en consent to search the

computer. Because Nayyar knew his wife did not have the computer ʹ s password, he

should have known that a search premised on his wife ʹ s consent was unlawful. Second,

the government twice provided Nayyar, on March 22, 2011, and February 24, 2012, with7 a document specifying that the FBI began searching the computer ʹ s contents on either

December 2, 2009, or December 3, 2009. Third, three of the documents that the

government provided to Nayyar on March 14, 2012, revealed that the examination of

his computer began in 2009. Finally, Nayyar received copies of the search warrant and

supporting affidavit in discovery on November 1, 2010. Accordingly, Nayyar had

ample notice of the warrantless search, and he could have moved to suppress long

before the start of trial. The district court did not err in fi nding that Nayyar waived his

right to challenge the computer evidence.

2. Su ffi ciency of the Conspiracy Evidence

A defendant challenging the su ffi ciency of the evidence bears a heavy

burden because we will uphold a judgment of conviction if ʺ any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt. ʺ

Jackson v. Virginia

, 443 U.S. 307, 319 (1979). Although we review su ffi ciency of evidence

de novo

, United States v. Harvey

, 746 F.3d 87, 89 (2d Cir. 2014), the reviewing court must

draw all permissible inferences in the government ʹ s favor and resolve all issues of

credibility in favor of the jury verdict, United States v. Kozeny

, 667 F.3d 122, 139 (2d Cir.

2011) (citing United States v. Desena

, 287 F.3d 170, 176

‐ 77 (2d Cir. 2002)).

Count Five of the Superseding Indictment charged Nayyar and Conrad

Mulholland with conspiring to tra ffi c fi rearms and ammunition, in violation of 188 U.S.C. § 371. 3 Nayyar argues there was insu ffi cient proof from which a jury could

conclude that he and Mulholland conspired to be illegal ʺ dealers ʺ in guns and

ammunition. See 18 U.S.C. § 922(a)(1)(A), 18 U.S.C. § 921(a)(21)(C).

A ʺ dealer in fi rearms

. . . [is] a person who devotes time, a tt ention, and

labor to dealing in fi rearms as a regular course of trade or business with the principal

objective of livelihood and pro fi t through the repetitive purchase and resale of

fi rearms. ʺ 18 U.S.C. § 921(a)(21)(C). The de fi nition does not extend to a person who

makes occasional sales for a personal collection or hobby, id.

, and the government need

only prove that a person was ʺ ready and able to procure [ fi rearms] for the purpose of

selling them from time to time, ʺ United States v. Nadirashvili

, 655 F.3d 114, 119 (2d Cir.

2011) (quoting United States v. Carter

, 801 F.2d 78, 82 (2d Cir. 1986)), rev’d on other

grounds

, United States v. Spies

, 661 F.3d 1158 (2d Cir. 2011).

The evidence was su ffi cient to support a fi nding that Nayyar and

Mulholland conspired to be illegal ʺ dealers ʺ of guns and ammunition. See 18 U.S.C.

§ 921(a)(21)(C). First, they dedicated ʺ time, a tt ention, and labor ʺ to dealing in fi rearms.

Id. The government presented evidence that although Nayyar was not licensed to sell

weapons, from late 1999 through 2001, Nayyar a tt empted to establish himself as a

broker of weapons manufactured by Romtechnica, a Romanian company a ffi liated with

a former Romanian general. Thereafter, Nayyar paid for Mulholland, who Nayyar

3 Mulholland was also charged in Counts One through Four. Prior to Nayyar ʹ s

arrest, Mulholland travelled to the United Kingdom, and he remains a fugitive.9 considered his business partner, to travel from the United Kingdom to the United States

to assist Nayyar in fi rearms dealings.

Second, the government presented evidence that Nayyar held himself out

as ʺ ready and able to procure ʺ fi rearms to sell. Nadirashvili

, 655 F.3d at 119 (quoting

Carter

, 801 F.2d at 82). At trial, the government introduced numerous recorded

meetings between Nayyar and a man that Nayyar thought was acting on behalf of

Hizballah, but who was actually a con fi dential informant ( ʺ CI ʺ ), during which Nayyar

o ff ered to sell the CI M

‐ 16 ri fl es, M

‐ 18 Claymore mines, sniper ri fl es, and ammunition

manufactured only for the Central Intelligence Agency. The government o ff ered proof

of more than a dozen meetings between Nayyar and the CI, lasting about twenty hours.

The government introduced evidence that Nayyar supplied the CI with a handgun, a

box of ammunition, and a pick

‐ up truck. The government also introduced evidence

that, during one of the meetings, Nayyar inquired as to when the CI would be traveling

to Lebanon to meet with Hizballah, o ff ering to provide the CI with a sample to show his

contacts.

Moreover, the government presented evidence that Nayyar had the ability

to deal fi rearms. He instructed the CI to call Hizballah to make arrangements for future

transactions because, as he explained to the CI, his own ʺ side ʺ of the transaction was

ʺ one hundred percent ʺ ready. Nayyar also told the CI that he could ship bulletproof

vests directly to Lebanon. Accordingly, there was su ffi cient evidence to support

Nayyar ʹ s conspiracy conviction.10 * * *

We have considered all of Nayyar ʹ s remaining arguments and conclude

they are without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT:

Catherine O ʹ Hagan Wolfe, Clerk