NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ZODIAC AZUCENAS,

Defendant - Appellant.

No. 23-783

D.C. No.

3:19-cr-02688-JLS-1

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

Janis L. Sammartino, District Judge, Presiding

Argued and Submitted June 6, 2024

Pasadena, California

Before: CLIFTON and COLLINS, Circuit Judges, and RODRIGUEZ, District 

Judge.

**

Appellant Zodiac Azucenas, a 44-year-old United States citizen, was found 

guilty by a jury of one count of receiving child pornography (18 U.S.C. § 2252(a)(2)) 

and one count of possessing child pornography (18 U.S.C. § 2252(a)(4)(B)). 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Xavier Rodriguez, United States District Judge for the

Western District of Texas, sitting by designation.

FILED

OCT 8 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 23-783

From September to December 2016, Azucenas engaged in several sexually 

explicit online conversations via Facebook Messenger with a 15-year-old girl in the 

Philippines. Azucenas persuaded the girl to provide photos and videos of her breasts 

and genitals in exchange for money. 

Through performing its own self-initiated searches designed to keep the 

platform free from sexual exploitation of minors, Facebook discovered these 

sexually explicit conversations and images. After Facebook employees reviewed the 

explicit materials, Facebook filed three “CyberTips” with the National Center for 

Missing & Exploited Children (“NCMEC”) in late December 2016 and January 

2017. Soon thereafter, the NCMEC forwarded the CyberTips to law enforcement 

agencies, including the San Diego Internet Crimes Against Children Task Force, 

where the matter was assigned to Homeland Security Investigations (“HSI”) Agent 

William Thompson (“Agent Thompson”). 

After locating the Filipino victim and learning more about Azucenas’s efforts 

to induce her to provide sexual images, Agent Thompson applied for and received a 

state search warrant for Azucenas’s Facebook account in April 2017. In addition to 

confirming the same chats and images memorialized in the CyberTips, the results of 

this search revealed that Azucenas exchanged sexual photos with other female 

Facebook users who appeared to be in their teens.
3 23-783

In January 2018, after several months of investigating Azucenas, Agent 

Thompson applied for and received a federal search warrant for Azucenas’s house. 

In executing this search warrant, HSI agents and the San Diego Police Department 

discovered a computer and two hard drives that belonged to Azucenas, containing 

images and videos of minors engaged in sexually explicit conduct. 

Azucenas was subsequently charged with one count of receiving child 

pornography and one count of possessing child pornography. After a jury returned 

guilty verdicts on both counts, the district court imposed a sentence of 90 months in 

prison and 10 years of supervised release on each count (concurrent), plus $33,000 

in restitution to eleven identifiable victims in the child pornography found in 

Azucenas’s possession. 

Azucenas contends that the district court committed three reversible errors. 

First, Azucenas argues that the district court erred in denying his motion to suppress 

the child pornography found on his computer. Specifically, he alleges that the district 

court erred in determining that Facebook did not act as an agent of the government 

when it searched and reviewed his private user chats; in concluding that the private 

search doctrine applied to the NCMEC forwarding Facebook’s reports of child 

exploitation materials to law enforcement officials; and in failing to apply the correct 

“common-law trespassory test” required by United States v. Jones, 565 U.S. 400, 

409 (2012). 
4 23-783

Second, Azucenas alleges that the district court applied the 2018 Amy, Vicky, 

and Andy Child Pornography Victim Assistance Act (“AVAA”) to calculate his 

restitution payment amount but should have instead relied on the statute in effect at 

the time of the commission of his crimes, the 1996 Mandatory Victim Restitution 

Act (“MVRA”). Because the AVAA provided a broader definition of “total loss”

than the MVRA and required a minimum restitution award per victim, Azucenas 

argues that sentencing him under the AVAA exposed him to a higher restitution 

award and thereby violated the Ex Post Facto Clause of the United States

Constitution. 

Third, Azucenas asserts that the district court failed to provide sufficient 

justification for imposing two supervised release conditions: i) Special Condition 7 

prohibits Azucenas from associating with any child under age 18 absent adult 

supervision or the probation officer’s approval, including his 8- or 9-year old halfsister in the Philippines; and ii) Special Condition 11 requires Azucenas to 

participate in sex offender treatment methods that he alleges are unreliable. 

We have jurisdiction under 28 U.S.C. § 1291, and, for the following reasons, 

we affirm Azucenas’s conviction and sentence.

I.

Azucenas first challenges the district court’s denial of his motion to suppress 

the child pornography found on his computer and hard drives. 
5 23-783

In reviewing a denial of a motion to suppress, we review the district court’s 

factual findings for clear error and its legal conclusions de novo. United States v. 

Vandergroen, 964 F.3d 876, 879 (9th Cir. 2020). We conclude that the lower court 

did not err in rejecting Azucenas’s argument that Facebook acted as an agent of the 

government when it conducted its search of his user-to-user messages. 

The Fourth Amendment guarantees the right to be free from “unreasonable 

searches and seizures.” U.S. CONST. amend. IV. But the Fourth Amendment only 

“limits searches conducted by the government, not by a private party, unless the 

private party acts as an ‘instrument or agent’ of the government.” United States v. 

Young, 153 F.3d 1079, 1080 (9th Cir. 1998) (per curiam). To determine whether a 

private party acted as an agent of the government under the Fourth Amendment, 

courts consider “(1) whether the government knew of and acquiesced in the intrusive 

conduct; and (2) whether the party performing the search intended to assist law 

enforcement efforts or further his own ends.” United States v. Cleaveland, 38 F.3d 

1092, 1093 (9th Cir. 1994) (citation and internal quotation marks omitted). 

With respect to the first Cleaveland requirement, the government “must be 

involved in the search ‘either directly as a participant or indirectly as an encourager 

of the private citizen’s actions.’” United States v. Rosenow, 50 F.4th 715, 731 (9th 

Cir. 2022) (quoting United States v. Walther, 652 F.2d 788, 791 (9th Cir. 1981)). 

Here, an affidavit from a Facebook employee affirmed that Facebook’s searches of 
6 23-783

Azucenas’s messages and corresponding filing of CyberTips to the NCMEC were 

not at law enforcement’s request, with Facebook having “no record of receiving 

legal process from the government.” 

We considered a similar scenario in Rosenow. There, Yahoo investigated 

numerous user accounts that it suspected of selling child pornography and notified 

the NCMEC of its results. Id. at 725. Because there was no evidence that Yahoo 

“was spurred into investigating [the defendant] by the government” or otherwise 

“incentivized, directed, or encouraged” to continue its investigations by law 

enforcement, we concluded that there was insufficient government participation to 

trigger Fourth Amendment scrutiny. Id. at 732–33. For this same reason, in the 

absence of any law enforcement assistance requests or other direction, we cannot 

find that the government “knew of and acquiesced in” Facebook’s independent 

review of Azucenas’s user-to-user messages. Cleaveland, 38 F.3d at 1094.1

In analyzing the second Cleaveland requirement, we examine whether the 

private party acted to “assist law enforcement efforts,” or whether it had a 

“legitimate, independent motivation to further its own ends.” Id. (citation and 

internal quotations omitted). The affidavit from the Facebook employee explained 

1 We have also expressly rejected Azucenas’s argument that an Electronic Service 

Provider’s (“ESP”) compliance with the requirement contained in the Protect Our 

Children Act of 2008 to report any child sexual exploitation to the NCMEC 

transforms the ESP into a government agent. See Rosenow, 50 F.4th at 730–32.
7 23-783

that Facebook possessed “an independent business purpose in keeping its platform 

safe and free from harmful content and conduct, including content and conduct that 

sexually exploits children.” As we explained in Rosenow, such a “desire to purge 

child pornography from [ESPs’] platforms” represents “a legitimate, independent 

motive apart from any interest that the ESPs had in assisting the government.” 

Rosenow, 50 F.4th at 734. Once such independent motive is established, “[t]hat 

motivation [is] not negated by any dual motive to detect or prevent crime or assist 

the police.” Cleaveland, 38 F.3d at 1094.

The district court also correctly concluded that because the NCMEC and 

Agent Thompson relied upon the same evidence that had been obtained and 

reviewed by Facebook personnel for Facebook’s own business purpose, the private 

search doctrine was applicable. This doctrine exempts Fourth Amendment scrutiny 

of any later government review of the same facts already disclosed by a private 

search. See United States v. Jacobsen, 466 U.S. 109, 117 (1984). 

In challenging the district court’s finding, Azucenas urges us to conclude that 

the NCMEC qualifies as a government agent, as the Tenth Circuit did in United 

States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016). But doing so would not salvage 

Azucenas’s argument. In Ackerman, AOL identified that an email included one 

attachment consisting of child pornography and then provided this email (containing 

three other unreviewed attachments) to the NCMEC. Id. at 1305–06. The NCMEC 
8 23-783

then expanded on AOL’s initial search by examining the email itself as well as the 

three other attachments never reviewed by AOL. Id. The Tenth Circuit thus 

concluded that the private search doctrine was inapplicable. Id. at 1306–07. 

However, as even Azucenas acknowledges, Facebook provided an affidavit

in this matter affirming that its employees reviewed the entire contents of the files 

uploaded to the NCMEC. Accordingly, regardless of whether we define the NCMEC 

as a state actor, the record makes plain that the NCMEC did not exceed the scope of 

Facebook’s private search. “Once frustration of the original expectation of privacy 

occurs, the Fourth Amendment does not prohibit governmental use of the nownonprivate information.” United States v. Tosti, 733 F.3d 816, 821 (9th Cir. 2013)

(quoting Jacobsen, 466 U.S. at 117) (finding no Fourth Amendment violation where 

detective searches of child pornography on the defendant’s computer derived from 

a private party’s original search). Since there is no evidence in the record indicating 

that the NCMEC exceeded the scope of Facebook’s private search, we need not 

further analyze whether the NCMEC is a state actor, and we conclude that the private 

search doctrine is applicable. 

Azucenas also insists that the lower court failed to apply the “common-law 

trespassory test” articulated in United States v. Jones, 565 U.S. 400, 409 (2012)

(explaining that a search occurs if law enforcement trespasses on a constitutionally 

protected area to obtain information, even if the trespass does not violate a 
9 23-783

reasonable expectation of privacy). But Jones, which addresses the scope of what 

constitutes a “search” under the Fourth Amendment, has no bearing on this case, in 

which the relevant search was fully conducted by a private entity, namely, Facebook.

For these reasons, we conclude that there was insufficient governmental 

involvement in Facebook’s searches of Azucenas’s account to trigger Fourth 

Amendment protection. 

II.

Second, we find that the lower court did not violate the Ex Post Facto Clause 

of the United States Constitution by ordering Petitioner to pay $33,000 in restitution 

under a version of 18 U.S.C. § 2259 that post-dated his underlying criminal conduct. 

For a criminal or penal law to be ex post facto, the law “must be retrospective, 

that is, it must apply to events occurring before its enactment” and “it must 

disadvantage the offender affected by it.” Weaver v. Graham, 450 U.S. 24, 29 

(1981). At the time of the offense conduct—September 22, 2017 (Count One) and 

January 9, 2018 (Count Two)—the MVRA was in effect. At sentencing, however, 

the court applied the AVAA, an amendment to the MVRA not made effective until 

December 7, 2018. The AVAA amended the MVRA, inter alia, to i) impose a 
10 23-783

minimum award of $3,000 per victim and ii) expand the definition of “full amount 

of the victim’s losses.”

2 18 U.S.C. § 2259(c)(2).

Because Azucenas failed to object to the application of the AVAA—and, in 

fact, agreed that it was the applicable statute—we review for plain error. For 

Azucenas to prevail under plain error review, he must demonstrate “(1) an error, 

(2) that is plain, (3) that affects substantial rights, and (4) that seriously affects the 

fairness, integrity, or public reputation of judicial proceedings.” United States v. 

Smith, 424 F.3d 992, 1000 (9th Cir. 2005) (citing Johnson v. United States, 520 U.S. 

461, 467 (1997)). Plain error “is so clear-cut, so obvious, a competent district judge 

should be able to avoid it without benefit of objection.” Id. at 1002 (quoting United 

States v. Turman, 122 F.3d 1167, 1170 (9th Cir. 1997)).

With respect to the first two prongs of plain error review, the district court 

committed a plain error in applying the AVAA rather than the MVRA, the statute in 

2 Specifically, prior to the passage of the AVAA, 18 U.S.C. § 2259 defined the “full 

amount of the victim’s losses” as including any “costs incurred by the victim for—

(A) medical services relating to physical, psychiatric, or psychological care; (B) 

physical and occupational therapy or rehabilitation; (C) necessary transportation, 

temporary housing, and child care expenses; (D) lost income; (E) attorneys’ fees, as 

well as other costs incurred; and (F) any other losses suffered by the victim as a 

proximate result of the offense.” See United States v. Kennedy, 643 F.3d 1251, 1260 

(9th Cir. 2011) (quoting 18 U.S.C. § 2259(b)(3) (1996) (amended 2018)). The 

AVAA amendment includes losses “that are reasonably projected to be incurred in 

the future, by the victim, as a proximate result of the offenses involving the victim, 

and in the case of trafficking in child pornography offenses, as a proximate result of 

all trafficking in child pornography offenses involving the same victim.” 18 U.S.C. 

§ 2259(c)(2). 
11 23-783

effect at the time of the offense conduct. The Supreme Court has cautioned, 

“[r]etroactivity is not favored in the law. Thus, congressional enactments and 

administrative rules will not be construed to have retroactive effect unless their 

language requires this result.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 

(1988). The AVAA does not contain language permitting retroactive application. In 

fact, 18 U.S.C. § 2259B(d) provides, “[i]t is the sense of Congress that individuals 

who violate this chapter prior to the date of the enactment of the [AVAA], but who 

are sentenced after such date, shall be subject to the statutory scheme that was in 

effect at the time the offenses were committed.” The district court thus erred in 

imposing restitution under the AVAA. 

However, under the third prong of the plain error test, Azucenas still “bears 

the burden of persuading us that his substantial rights were affected.” United States 

v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005) (en banc) (holding an error affects 

a criminal defendant’s substantial rights where “the probability of a different result 

is sufficient to undermine confidence in the outcome of the proceeding” (citation 

and internal quotation marks omitted)). 

Here, the government sought the minimum amount permissible under the 

AVAA ($3,000) for each of the 11 victims for a total of $33,000. At the April 14, 

2023 sentencing hearing, Azucenas’s counsel conceded that the “Government has 

submitted extensive documentation from 11 alleged victims” and “I have no contrary 
12 23-783

factual information regarding the restitution, which is why I had intended to stipulate 

to the amount.” At the April 28, 2023 restitution hearing, the district court concluded 

that each victim substantiated losses resulting from Azucenas’s possession of images 

of their sexual abuse. Indeed, the district court observed “these victims could have 

requested and this Order could have been for much more...than what I’m doing,” 

explaining “many of these victims had far more than the $3,000.” 

First, the record supports that the lower court based its imposition of $3,000 

per victim on the evidence advanced by the prosecution, rather than a simple 

application of the minimum restitution amount statutorily mandated by the AVAA. 

Because the MVRA still required courts to impose restitution in the amount of any 

loss proven by any victim, it is not clear how the AVAA’s introduction of a $3,000 

minimum restitution amount—to the extent the Court even relied on it—prejudiced 

Azucenas’s rights. See Paroline v. United States, 572 U.S. 434, 445 (2014) (holding 

the MVRA “requires a court to order restitution for the full amount of the victim’s 

losses” (internal quotation marks omitted)). 

Further, in his opening brief, Azucenas failed to carry his burden to establish 

that any change in the definition of the scope of available restitution made any 

practical difference in this case and that the use of the MVRA’s definition would 

have resulted in a different outcome.
13 23-783

III.

Where a defendant objects to a condition of supervised release at sentencing, 

we review for abuse of discretion the conditions of supervised release imposed by a 

district court. See United States v. Bee, 162 F.3d 1232, 1234 (9th Cir. 1998). In 

applying this standard of review, “we give considerable deference to a district 

court’s determination of the appropriate supervised release conditions, reviewing 

those conditions deferentially.” United States v. Weber, 451 F.3d 552, 557 (9th Cir. 

2006). “In short, conditions are permissible if they are reasonably related to the goal 

of deterrence, protection of the public, or rehabilitation of the offender, and involve 

no greater deprivation of liberty than is reasonably necessary for the purposes of 

supervised release.” United States v. Rearden, 349 F.3d 608, 618 (9th Cir. 2003)

(citation and internal quotation marks omitted). 

At the time of sentencing, Azucenas objected to the lower court’s imposition 

of Special Condition 7, which prohibits him from associating with any child under 

age 18—including his 8- or 9-year-old half-sister residing in the Philippines—

without adult supervision or the probation officer’s approval. Azucenas alleges that 

we have previously recognized “the fundamental right to familial association” as a 

“particularly significant liberty interest,” thereby triggering an enhanced procedural 

requirement that mandates the sentencing judge to “point to the evidence in the 

record on which it relies and explain how on the basis of that evidence the particular 
14 23-783

restriction is justified.” United States v. Wolf Child, 699 F.3d 1082, 1092 (9th Cir. 

2012). Azucenas asserts that the district court failed to provide such an explanation 

justifying this restriction. 

Azucenas offers no evidence that his relationship with a half-sibling rises to 

the level of an “intimate relationship” akin to a life partner, child, or fiancé required 

to trigger such enhanced procedural requirements. See United States v. Magdaleno, 

43 F.4th 1215, 1222 (9th Cir. 2022) (rejecting applying enhanced procedural 

requirements where appellant failed to present any evidence of an “intimate 

relationship” with siblings and half-siblings). Indeed, the record does not even 

establish that Azucenas has met the child. 

Under our standard deferential review of supervised release conditions, a 

district court “need not state at sentencing its reasons for imposing each condition of 

supervised release, so long as its reasoning is apparent from the record.” Id. at 1221. 

Following Azucenas’s objection to Special Condition 7, the sentencing judge 

explained that the penalty “bears a reasonable relationship to what occurred here.” 

We agree. The evidence substantiates that Azucenas initiated contact with minors 

on Facebook to solicit nude photos and engage in sexual conversations, and, 

accordingly, this restriction on such communications protects the public. 

Further, the sentencing judge explained a reasonable limitation to Special 

Condition 7, noting “[i]t’s not going to restrict him from seeing [children] as long as 
15 23-783

there’s somebody there, as long as probation knows about it.” The record makes 

plain that Special Condition 7 serves to protect the public, while still being tailored 

to avoid impinging on Azucenas’s liberty. See United States v. Blinkinsop, 606 F.3d 

1110, 1121 (9th Cir. 2010) (noting “with approval” that special conditions limiting 

interaction with children for a defendant convicted of a child pornography crime 

“can be tailored” by requiring permission of the probation officer); United States v. 

Apodaca, 641 F.3d 1077, 1084–85 (9th Cir. 2011) (upholding a condition of release 

that allowed a defendant convicted of possessing child pornography to have contact 

with children in the presence of their duly notified parent or legal guardian). 

Because Azucenas failed to object to Special Condition 11 at the time of 

sentencing, we review for plain error. Magdaleno, 43 F.4th at 1221. 

Azucenas appeals Special Condition 11 to the extent it requires him to take a 

visual reaction time assessment (commonly called “Abel testing”), a diagnostic 

exam for sex offenders that studies “visual reaction time” based on how long a 

subject stares at slides of various categories of adults and children. We find this 

argument to be without merit. We have previously held that a district court “could 

reasonably conclude that the Abel test has value in rehabilitation and protection of 

the public as part of a treatment program for assessing a sex offender’s interest in 

children.” United States v. Stoterau, 524 F.3d 988, 1007 (9th Cir. 2008); see also 

United States v. Daniels, 541 F.3d 915, 926 (9th Cir. 2008) (holding that the district 
16 23-783

court “did not abuse its discretion in imposing a condition of supervised release that 

may require [appellant who pled guilty to possessing child pornography] to submit 

to Abel and polygraph testing”). Accordingly, Azucenas cannot establish that the 

district court committed plain error in imposing Special Condition 11. 

AFFIRMED.