22

- 1637

- cr United States of America v. Pratt

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, 1 held at the Thur good Marshall United States Courthouse, 40 Foley Square, in the 2 City of New York, on the 2 n d day of O c t o b e r , two thousand twenty

- three

. 3 4 PRESENT: REENA RAGGI, 5 RAYMOND J. LOHIER, JR., 6 SUSAN L. CARNEY , 7 Circuit Judges

. 8

------------------------------------------------------------------ 9 UNITED STATES OF AMERICA, 10 11 Appellee, 12 13

v. No. 22

- 1637

- cr 14 15 CHRISTOPHER J. PRATT, 16 17 Defendant

- Appellant

. 18

------------------------------------------------------------------ 19 202 FOR DEFENDANT

- APPELLANT : R ICHARD D. W ILLSTATTER 1 (Theodore S. Green, on the 2 brief ), Green & Willstatter, 3 White Plains, NY 4
FOR APPELL EE : P AUL David Silver , Rajit Singh 5 Dosanjh , Assistant United 6 States Attorney s , for Carla B. 7 Freedman, United States 8 Attorney for the Northern 9 District of New York, Albany , 10 NY 11 Appeal from a judgment of the United States District Court for the 12

Northern District of New York (Mae A. D’Agostino , Judge ). 13
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 14

AND DECREED that the judgment of the District Court is AFFIRMED

. 15

Defendant

- Appellant Christopher J. Pratt appeals from a judgment of the 16

United States District Court for the Northern District of New York ( D’Agostino , 17
J. ) convicting him of (1) distribution of child pornography , (2) receipt of child 18
pornography, and (3) possession of child pornography involving prepubescent 19
minors or minors under the age of 12 , in violation of 18 U.S.C §§ 2252A(a)(2)(A) , 20
2252A(b)(1) , 2252A(b)( 2 ) , 2252A(a)(5)(B) , and 2256(8)(A)

. In July 2019 t he District 21

Court denied Pratt ’ s pre

- trial mo tion to suppress evidence seized during a search 22

of his home , as well as statements he made to police

. In August 2021, pursuant 233 to a written plea agreement, Pratt entered a conditional guilty plea to all three 1
counts, reserving his right to appeal the D istrict C ourt’s denial of his motion to 2
suppress evidence

. Pratt was later sentenced principally to a term of 148 months ’ 3
imprisonment

. On appeal, Pratt challenges the denial of his motion to suppress

. 4
We assume the parties’ familiarity with the underlying facts and the record of 5
prior proceedings , to which we refer only as necessary to explain our decision to 6

affir m. 7

T he written plea agreement permits Pratt to raise only two issues on 8
appeal: (1) “[w]hether the June 1, 2017 search warrant established probable cause 9
to believe that child pornography would be found in [his] home,” and (2) 10
“[w]hether law enforcement acted in good faith reliance on the June 1, 2017 11
search warrant when searching [his] home on Jun e 5, 2017.” App’x 142. On 12
appeal, Pratt makes the additional argument that his statements to police should 13
be suppresse d

. We conclude that Pratt has waived that argument, however, 14

because it wa s no t clearly included in the plea agreement’s reservation o f issues 15
for appellate review

. United States v. Coffin , 76 F.3d 494, 497 (2d Cir. 1996)

. 16

“O n appeal from a district court ’ s ruling on a motion to suppress, we 17

review the court ’ s factual findings for clear error. We review the court ’ s legal 184 determinations, including the existence of probable cause and the good faith of 1
officers relying on a search warrant, de novo. ” United States v. Raymonda , 780 2
F.3d 105, 113 (2d Cir. 2015)

. 3

Pratt argues that there was no probable cause supporting the w arrant in 4

this case because “no verbal description of the [computer] files was provided” to 5
the judge who authorized the warrant. Appellant’s Br. 17 (quotation marks 6
omitted). Pratt also argues that the information contained in the search warrant 7
was “too stale to be relied upon” because the “ warrant application described just 8
a single download of files

. . . eight months prior to the application. ” Appellant’s 9

Br. at 21

- 22 ; see Raymonda , 780 F. 3d at 114 ( “ [W] e may conclude that a warrant 10
lacks probable cause where the evidence supporting it is not sufficiently close in 11
time to the issuance of the warrant that probable cause can be said to exist as of 12

the time of the search

— that is, where the f acts supporting criminal activity have 13
grown stale by the time that the warrant issues.” ) (quotation marks omitted). 14

W e need not resolve the probable cause issue because we agree with the 15

District Court that the good faith exception to the exclusionary rule applies even 16
assuming that probable cause was lacking

. See U nited States v. Jones , 43 F.4th 94, 17

110

– 11 (2d Cir. 2022) ; United States v. Boles , 914 F.3d 95, 10 3 (2d Cir. 2019)

. Pratt 185 relies on our decision in Raymonda to argue that the good faith exception does not 1
appl y for two reasons. 2

First, Pratt describes the warrant as “ so lacking in indicia of probable cause 3

as to render official belief in its existence entirely unreasonable .” Appellant’s Br. 4

7. T h e issue of whether a warrant contains adequate indicia of probable cause 5

“ most frequently arises when affidavits are bare bones

— that is, when they are 6
totally devoid of factual circumstances to support conclusory allegations. ” Jones , 7

43 F.4th at 112 (quotation marks omitted). “ The concern is particularly acute 8

when facts indicate that the bare

- bones description .

. . was almost calculated to 9

mislead.” United States v. Clark , 638 F.3d 89, 103 (2d Cir. 2011) (quotation marks 10
omitted). “We have empha sized that this is a very difficult threshold to meet

. ” 11
Jones , 43 F.4th at 112 (quotation marks omitted, emphasis supplied)

. 12
We do not agree that t he warrant application in this case w as “ totally 13

devoid ” of factual support such that it was unreasonable to rely on it

. Clark , 638 14

F.3d at 103

. To be sure, the warrant application approaches the line between just 15
enough and too little specificity with respect to the description of the computer 16

files at issue. But the warrant application did ad vise that another FBI Task Force 176 Officer downloaded files that “consisted of” child pornography from a 1
BitTorrent “share” folder that was later connected to Pratt. App’x 34. 2

W e have explained that “[w]here a relevant legal deficiency was not 3
previously established in precedent, [an] agent’s failure to recognize that 4
deficiency cannot vitiate good faith.” Raymonda , 780 F.3d at 119 (quotation 5
marks omitted). As relevant here, we have not previously identified the level of 6
specificity required in a warrant application that describes computer files . Nor 7

have we decided whether downloading and sharing a file on a plat form such as 8

BitTorrent can , in and of itself, rebut staleness

. For that reason, the officers’ 9
failure to notice any legal deficiency in the level of factual detail in the warrant in 10

this case does not “ vitiate [their] good faith” reliance on the warrant. Id. 11
Second, Pratt contends that the authorizing judge’s decision to “rubber

12
stamp the warrant was proof he wholly abandoned his judicial role.” 13
Appellant’s Reply Br. 12 ; see Raymonda , 780 F.3d at 118 (listing one circumstance 14
where good faith exception does not apply as “where the issuing magistrate 15
wholly abandoned his or her judicial role”). We see no evidence, however, that 16
the judge was not “independent of the police and prosecut ion” or that he 177 abandoned his “judicial neutrality and detachment” when he approved the 1

warrant. Clark , 638 F.3d at 101. 2
Even so, we note concern about the conclusory nature of the allegations set 3

forth in the warrant application and the application’s ap parent ly complete 4

reliance on Pratt’s use of BitTorrent to defeat staleness. In particular, the 5
application omitted details that might more clearly have demonstrated probable 6

cause to think that Pratt was a “collector” of child pornography, including a 7
description of the steps he must have taken to seek out or share such files on 8

BitTorrent

. See Raymonda , 780 F.3d at 115 (holding that an issuing judge can find 9
probable cause for a warrant based on months

- old evidence where a suspect 10

either r edistributed or took “sufficiently complicated steps” to access child 11
pornography). Moreover, at oral argument, government counsel was unable to 12

say whether a BitTorrent user shares files as a default or by taking an affirmative 13

step

. Accordingly, it would have been better practice for the government to 14
provide greater detail to establish probable cause that child pornography 15
remained on Pratt’s devices at the time the warrant was sought. 16
Given the novelty of this issue, however, and for the rea sons stated above, 17

we nonetheless affirm the D istrict C ourt’s denial of Pratt’s motion to suppress on 188 the ground that t he searching officers relied in good faith on the issuing judge’s 1
determination that the search warrant was supported by probable cause. 2

We have considered Pratt’s remaining arguments and conclude that they 3
are without merit. For the foregoing reasons, the judgment of the District Court 4

is AFFIRMED

. 5

FOR THE COURT: 6 Catherine O’Hagan Wolfe, Clerk of Court 7 8