15-4113

United States v. Castro

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 32.1.1. 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 “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 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 17 day of January, two thousand seventeen. th

PRESENT: DENNIS JACOBS,

ROBERT D. SACK,

SUSAN L. CARNEY,

Circuit Judges,

- - - - - - - - - - - - - - - - - - - -X

UNITED STATES OF AMERICA,

Appellee,

-v.- 15-4113

JOSE CASTRO, 

Defendant-Appellant.

- - - - - - - - - - - - - - - - - - - -X

FOR APPELLANT: MATTHEW B. LARSEN, Federal

Defenders of New York, New York,

NY.

FOR APPELLEE: NOAH SOLOWIEJCZYK (with Karl

Metzner on the brief), for Preet

Bharara, United States Attorney

1
for the Southern District of New

York, New York, NY. 

Appeal from a judgment of the United States District

Court for the Southern District of New York (Schofield, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

AND DECREED that the judgment of the district court be

AFFIRMED. 

Jose Castro appeals from the judgment of the United

States District Court for the Southern District of New York

(Schofield, J.). A jury convicted Castro of transporting,

receiving, and possessing child pornography. The district

court sentenced Castro chiefly to six years in prison and

eight years of supervised release. We assume the parties’

familiarity with the underlying facts, the procedural

history, and the issues presented for review.

Castro challenges the affidavit offered in support of

the search warrant application. The affidavit averred that

a computer program used by law enforcement to monitor

transmission of child pornography had downloaded four files

of child pornography from a computer located at Castro’s

home. Castro argues that there was serious reason to doubt

that the downloads ever took place, and that had the

doubtful circumstances been disclosed in the affidavit, the

magistrate judge would not have found probable cause

sufficient to justify a search warrant. 

Castro argues that these omissions warrant suppression

of evidence. See Franks v. Delaware, 438 U.S. 154 (1978). 

“To suppress evidence obtained pursuant to an affidavit

containing erroneous information, the defendant must show

that: ‘(1) the claimed inaccuracies or omissions are the

result of the affiant’s deliberate falsehood or reckless

disregard for the truth; and (2) the alleged falsehoods or

omissions were necessary to the [issuing] judge’s probable

cause finding.’” United States v. Canfield, 212 F.3d 713,

717-18 (2d Cir. 2000) (quoting United States v. Salameh, 152

F.3d 88, 113 (2d Cir. 1998)).

“[W]hether a person acted with ‘reckless disregard for

the truth’ is ‘a factual question of intent, and we

therefore review the court’s decision for clear 

error’ . . . .” United States v. Rajaratnam, 719 F.3d 139,

153 (2d Cir. 2013) (quoting United States v. Trzaska, 111

2
F.3d 1019, 1028 (2d Cir. 1997)). The “factfinder may infer

reckless disregard from circumstances evincing obvious

reasons to doubt the veracity of the allegations.” Id. at

154 (quoting United States v. Whitley, 249 F.3d 614, 621

(7th Cir. 2001)). Castro contends that such circumstances

are present here. The affiant testified that her usual

practice when investigating reports from the computer

program at issue in this case was to review copies of the

downloaded files in an automatically created folder. At

some point after this warrant was issued, the affiant

attempted to review the expected folder, but was unable to

locate it. Castro suggests that the affiant’s inability to

locate the folder after the warrant issued reveals that she

could not locate the folder before preparing the affidavit,

which should have given her reason to doubt the accuracy of

the report. He argues that the factfinder should have

inferred from these circumstances the affiant’s reckless

disregard of the truth. 

The district court rejected this argument, concluding

that the affiant credibly testified that she did not

remember if she followed her usual practice before preparing

the affidavit and that Castro had failed to show that this

omission was reckless or made with the intent to deceive. 

We find no clear error in the district court’s finding that

the affiant lacked the mental state required for suppression

of the evidence gathered by virtue of the search warrant. 

For the foregoing reasons, and finding no merit in

Castro’s other arguments, we hereby AFFIRM the judgment of

the district court.

FOR THE COURT:

CATHERINE O’HAGAN WOLFE, CLERK

3