United States v. Lewis

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0145p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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-
-
No. 09-1162
v.
,
>
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Defendant-Appellant. -
TODD FRANKLIN LEWIS,
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Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 08-00184-001—Robert J. Jonker, District Judge.
Argued: April 22, 2010
Decided and Filed: May 19, 2010
*
Before: KENNEDY and COLE, Circuit Judges; JORDAN, District Judge.

_________________

COUNSEL
ARGUED: Jodi M. Latuszek, SPEAKER LAW FIRM, Lansing, Michigan, for
Appellant. Russell A. Kavalhuna, ASSISTANT UNITED STATES ATTORNEY,
Grand Rapids, Michigan, for Appellee. ON BRIEF: Michael J. Nichols, THE
NICHOLS LAW FIRM, PLLC, East Lansing, Michigan, for Appellant. Nils R. Kessler,
ASSISTANT UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee.
_________________

OPINION
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KENNEDY, Circuit Judge. Defendant-Appellant Todd Franklin Lewis pleaded
guilty to transporting a visual depiction of a minor engaged in sexually explicit conduct,
in violation of 18 U.S.C. § 2252(a)(1). At sentencing, Lewis unsuccessfully challenged

*
The Honorable Robert Leon Jordan, United States District Judge for the Eastern District of
Tennessee, sitting by designation.

1
No. 09-1162 United States v. Lewis Page 2

the two-level guideline sentence enhancement the court imposed for his use of a
computer in commission of the crime of conviction. Lewis now appeals the ruling of the
court as to this enhancement, and he also challenges the court’s denial of his motion for
a second continuance in order to file an unrelated motion to suppress evidence seized
during a search of his home computer. Lewis also argues that he received ineffective
assistance of counsel in violation of the Sixth Amendment, due both to his trial
attorney’s failure to timely raise a motion to suppress and his negotiation of a plea
agreement with the government that prohibited Lewis from raising substantive appeals.
For the reasons that follow, we DISMISS Lewis’s ineffective assistance claims and
AFFIRM the judgments of the district court.

FACTUAL/PROCEDURAL BACKGROUND

On April 13, 2007, United States Secret Service Special Agent Eric Adams
logged on to the Yahoo! Internet chat room “Fetishes.” Using the undercover name
“miamimisswith2,” Agent Adams posed as a 35-year-old adult female with two young
daughters ages 9 and 12. Another user with the screenname “sigmadogman” then
initiated a conversation via instant messaging with Agent Adams. “Sigmadogman”
indicated that he was a 42-year-old man from Michigan and used graphic language to
indicate his interest in engaging in sexual acts with Agent Adams’ fictional daughters.
During this chat, “sigmadogman” also sent at least twenty different images to
“miamimisswith2” that depicted various sexual acts. Agent Adams later sent these
images to the National Center for Missing and Exploited Children, who determined that
at least six of the images qualified as child pornography involving female minors ages
8 and 12.

On April 23, 2007, Agent Adams had another undercover conversation with
“sigmadogman” about the prospect of him traveling to Miami to have sexual intercourse
with the two fictional daughters of “miamimisswith2.” In this conversation,
“sigmadogman” indicated that he was willing to travel in May 2007 and would pay
$1300 to be able to have sexual intercourse for an entire week with both daughters and
with “miamimisswith2” herself.
No. 09-1162 United States v. Lewis Page 3

Meanwhile, Agent Adams obtained a subpoena of Yahoo! Legal Compliance in
order to procure customer and registration information for the user name
“sigmadogman.” On May 1, 2007, Yahoo! Legal Compliance responded to the
subpoena and indicated that the user name was registered to Defendant-Appellant Todd
Lewis in Kalkaska, Michigan, and remained active. Yahoo! also provided the IP
addresses that were used by “sigmadogman” on the days in question. Agent Adams then
located and subpoenaed the Internet provider of these IP addresses, who eventually
revealed that the addresses in question had been assigned to Todd Lewis on the days in
which “sigmadogman” had “chatted” with Agent Adams.

This investigation took Agent Adams until the end of June 2007 to complete. A
Secret Service agent in Grand Rapids, Michigan eventually filed an application for a
search warrant of Lewis’s home. But the application was not filed until December 10,
2007, almost eight months after Agent Adams’s conversations with Lewis. The
application was submitted to a magistrate along with a supporting affidavit that
contained a detailed account of the conversations in question, the images Agent Adams
received from Lewis, and the results of Agent Adams’s investigation into the registration
data for “sigmadogman.” The affidavit also contained information about the affiant’s
experience with persons who possess and distribute child pornography, including his
belief that such persons “rarely, if ever, dispose of their sexually explicit materials.”

The search warrant was authorized on the same day it was filed, and officers
executed the warrant on December 11, 2007. Lewis was present during the search and
was properly read his Miranda rights. Lewis waived his rights, however, and told
officers that he possessed a large quantity of child pornography on his computer and had
in fact chatted with “miamimisswith2” about traveling to Florida and paying for sexual
intercourse with her and her children. Lewis’s computer was seized, and a subsequent
forensic examination of it revealed that it stored at least fifteen images of child
pornography.

On August 7, 2008, a grand jury in the Western District of Michigan returned an
indictment against Lewis, charging him with transporting and shipping child
No. 09-1162 United States v. Lewis Page 4

pornography in violation of 18 U.S.C. § 2252(a)(1), and possession of material
containing child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B), 2252A(b)(2),
and 2256(8). Shortly thereafter, the district court appointed Lewis defense counsel and
set a trial date. On September 12, 2008, defense counsel moved for an ends-of-justice
continuance on the grounds that he needed more time to investigate possible suppression
motions. The court quickly granted that motion and set September 29, 2008, as the
deadline for filing any pretrial motions. On October 1, 2008, defense counsel filed a
second motion for an ends-of-justice continuance, or in the alternative, an extension of
time until October 3, 2008, to file a motion to suppress. In the motion for a time
extension, defense counsel indicated that he had identified and was working on a
potentially dispositive motion to suppress and that he was waiting for a return phone call
from a potential government witness who likely had information relevant to the motion.
Counsel also indicated that he would be able to file his motion to suppress by no later
than October 3, 2008.

On October 6, 2008, before the court had ruled on the motion for a second
continuance, defense counsel filed his motion to suppress. In this motion, which was
filed seven days after the court’s original deadline, counsel argued that the only relevant
information in the search warrant linking Lewis to criminal activity was stale, and that
the good faith exception pursuant to United States v. Leon, 468 U.S. 897 (1984), did not
apply. In response, the government moved to strike the motion as untimely.

On October 9, 2008, the district court held a hearing to resolve all of the pending
motions. At the hearing, the court asked the parties for argument on the merits of the
suppression motion itself as well as on the continuance motion. Without discussing the
merits of the suppression motion, defense counsel argued that he had needed additional
time to file the motion because he had to learn the technical complexities of how IP
addresses are assigned. The government meanwhile argued that it was not a
technologically challenging case, that there was more than enough information in the
warrant application to support a finding of probable cause, and that the court should
strike the motion to suppress. After hearing the arguments, the court denied the motion
No. 09-1162 United States v. Lewis Page 5

for the second ends-of-justice continuance. Finding that the motion to suppress was
consequently untimely filed, the court denied the motion as waived under Rule 12 of the
Federal Rules of Criminal Procedure. The court added, however, that “even if this had
been timely filed, I think on the merits that it would be a stretch, to say the least, that the
defense would be entitled to any relief on it. In fact, . . . the Court would not be inclined
to grant it and probably wouldn’t even grant an evidentiary hearing without more.” The
court specifically addressed the merits of the suppression motion, noting that there was
more than enough evidence of criminal activity connected to Lewis to support a finding
that there was a reasonable probability that evidence of a crime would be found in a
search of Lewis’s home. On October 10, 2008, the day after the hearing, the district
court also issued an order denying the motion for a continuance for lack of good cause
and denied the motion to suppress as untimely “and alternatively for lack of merit as
detailed at the hearing.”

On October 15, 2008, pursuant to a written plea agreement with the government,
Lewis pleaded guilty to one count of transporting and shipping child pornography. In
the agreement, Lewis waived his right “to pursue any affirmative defense, Fourth or
Fifth Amendment claims, and other pretrial motions that could have been filed or could
be filed.” In exchange for these concessions, the government agreed to dismiss the child
pornography possession count of the indictment, and it agreed not to oppose Lewis’s
request for a sentence reduction for acceptance of responsibility.

During the sentencing phase of Lewis’s case, defense counsel objected to a
proposed two-level enhancement to Lewis’s offense level, based on United States
Sentencing Guidelines (“U.S.S.G.”) § 2G2.2(b)(6), for his use of a computer to transmit
child pornography. Counsel argued that imposition of the enhancement would constitute
impermissible double-counting because the use of a computer was a substantive element
of the crime of conviction itself. The district court disagreed and opted to impose the
two-level enhancement. The court adopted all of the recommendations and calculations
provided in the Presentence Investigation Report (“PSR”) filed by the United States
Probation Office and sentenced Lewis to 151 months in prison, the bottom of the
No. 09-1162 United States v. Lewis Page 6

sentencing guidelines range when the U.S.S.G. § 2G2.2(b)(6) enhancement was
incorporated.

This appeal followed.

ANALYSIS

I. Ineffective Assistance Claims

Lewis first argues that his trial attorney provided ineffective assistance in
violation of the Sixth Amendment. Lewis relies on two different alleged errors
committed by his lawyer to support his ineffectiveness claim: 1) defense counsel’s
failure to file a potentially dispositive motion to suppress in a timely manner; and 2)
counsel’s advice to Lewis to sign a plea agreement that waived Lewis’s right to appeal
his Fourth Amendment claims. Lewis argues that these errors amounted to deficient
representation that prejudiced him, thereby meeting the two-prong test for proving
ineffective assistance set forth in Strickland v. Washington, 466 U.S. 668 (1984).

This Court generally does not assess the merits of an ineffective-assistance-of-
counsel claim on direct appeal. See, e.g., United States v. Sanders, 404 F.3d 980, 986
(6th Cir. 2005). However, we have previously reached such claims on direct appeal
notwithstanding the aforementioned general rule if and when the record adequately
presents the issue. See United States v. Wunder, 919 F.2d 34, 37 (6th Cir. 1990). In the
instant case, there is sufficient factual development in the record regarding counsel’s
failure to file a timely suppression motion. In his motion for a second continuance and
at the October 9, 2008 hearing, counsel provided his reasons for failing to file the
suppression motion timely. Further, the district court clearly indicated how it would
have ruled on the suppression motion had it been timely filed. Thus, we question the
usefulness of holding an evidentiary hearing regarding counsel’s conduct as to this issue
and the potential prejudice it may have caused.

Lewis, however, has not presented this alleged error as a distinct ineffectiveness
claim. Instead, he has indicated that his ineffective assistance claim is dependent on the
combination of this error and his attorney’s other alleged error—namely, negotiating a
No. 09-1162 United States v. Lewis Page 7

plea agreement that waived Lewis’s right to pursue his Fourth Amendment claims on
appeal. With respect to the Strickland deficiency prong, Lewis states in his brief to this
Court: “In this instance trial counsel committed two errors, which, taken together,
resulted in a denial of effective assistance of counsel” (emphasis added). Later, when
discussing the prejudice prong of his claim, Lewis explicitly states that his ability to
satisfy the Strickland standard depends directly on the combination of the failure to file
the motion on time and the subsequent plea agreement negotiation. In other words,
according to Lewis, the two errors allegedly committed by his attorney must be analyzed
together in order to assess the merit of his ineffectiveness claim.

Unlike the continuance motion, the facts surrounding the plea agreement and
defense counsel’s role in Lewis’s acceptance of it are not sufficiently developed in the
record to enable us to properly review it now. The record does not indicate what
strategy, if any, counsel was pursuing when he advised Lewis to plead guilty and to
waive his right to raise substantive appeals. We know nothing about the plea
negotiations except the final result. The record does not show whether other deals were
offered, how hard defense counsel pushed for a better deal, or why the actual agreement
was the best deal counsel thought he could arrange for Lewis. These are all exactly the
kinds of factual determinations that must be made in the district court before this
ineffective assistance claim can be reviewed properly by this Court. Because Lewis has
intertwined this issue and these unresolved factual determinations with counsel’s alleged
error in failing to file a timely suppression motion, we decline to review the entirety of
Lewis’s ineffective-assistance-of-counsel claim at this time.

II. Denial of Continuance

Lewis also appeals the district court’s denial of his motion for a second ends-of-
justice continuance. We review the denial of such a motion for abuse of discretion,
United States v. Howard, 218 F.3d 556, 563 (6th Cir. 2000), and we note that district
courts have wide discretion on matters such as when to grant or deny continuances,
Morris v. Slappy, 461 U.S. 1, 11 (1983). The Supreme Court has held that the denial of
a continuance in this context is an abuse of discretion only when the district court
No. 09-1162 United States v. Lewis Page 8

engages in “an unreasoning and arbitrary insistence upon expeditiousness in the face of
a justifiable request for delay.” United States v. Vasquez, 560 F.3d 461, 466 (6th Cir.
2009) (quoting Morris, 461 U.S. at 11-12) (internal quotation marks omitted). In order
for the error to be reversible, the defendant must also show that the denial of the
continuance actually prejudiced his or her defense. Burton v. Renico, 391 F.3d 764, 772
(6th Cir. 2004) (citing Powell v. Collins, 332 F.3d 376, 396 (6th Cir. 2003)); see also
United States v. Monger, 879 F.2d 218, 221 (6th Cir. 1989). “‘Actual prejudice’ is
established ‘by showing that a continuance would have . . . added something to the
defense.’” United States v. Crossley, 224 F.3d 847, 855 (6th Cir. 2000) (quoting United
States v. King, 127 F.3d 483, 487 (6th Cir. 1997)).

In this case, the “something” that would have been added by the continuance was
the motion to suppress that was otherwise untimely. But this motion to suppress would
only have “added something” if it would have been successful. We hold, however, that
Lewis’s motion to suppress did not have any merit and would not have been successful.
In that motion, Lewis argues that the relevant portions of the warrant application and
underlying affidavit relied exclusively on stale information that did not support probable
cause. According to Lewis’s suppression motion, the affidavit (minus its boilerplate
language) simply states that Lewis sent an image of child pornography to an undercover
agent from his home computer on April 13, 2007, which was more than seven months
before the December 10, 2007 warrant application was submitted. Because there is no
other evidence of continuous involvement with child pornography, the motion argues,
there is no basis for probable cause that there would still have been evidence of that
crime in Lewis’s possession, or more specifically, on Lewis’s computer.

We disagree. Although a warrant application must allege “facts so closely
related to the time of the issue of the warrant as to justify a finding of probable cause at
that time,” Sgro v. United States, 287 U.S. 206, 210 (1932), “[t]he expiration of probable
cause is determined by the circumstances of each case and depends on the inherent
nature of the crime,” United States v. Paull, 551 F.3d 516, 522 (6th Cir. 2009) (quoting
United States v. Hython, 443 F.3d 480, 485 (6th Cir. 2006)); see also United States v.
No. 09-1162 United States v. Lewis Page 9

Frechette, 583 F.3d 374, 378 (6th Cir. 2009). This Court has held on multiple occasions
that the “same time limitations that have been applied to more fleeting crimes do not
control the staleness inquiry for child pornography.” Paull, 551 F.3d at 522; see also
Frechette, 583 F.3d at 378. We have also noted in a previous child pornography case
that “[i]mages typically persist in some form on a computer hard drive even after the
images have been deleted and . . . can often be recovered by forensic examiners.”
United States v. Terry, 522 F.3d 645, 650 n.2 (6th Cir. 2008). In fact, the relevant
warrant application in Terry was based primarily on pornographic images linked to the
defendant that were more than five months old, yet we found that the delay did not
change “the probable cause calculus much, if at all.” Id. at 650; see also United States
v. Lapsins, 570 F.3d 758, 767 (6th Cir. 2009) (finding probable cause despite nine-month
lapse between police obtainment of illicit images linked to defendant and filing of
warrant application). And, as previously noted by this Court, the relaxed approach
toward temporal constraints in child pornography cases also “comports with the practice
of other circuits.” Paull, 551 F.3d at 522 (citing United States v. Lacy, 119 F.3d 742,
746 (9th Cir. 1997) (finding probable cause to search apartment over ten months after
depictions of child pornography were last linked to defendant)).

Based on this precedent, we hold that the affidavit in the instant case supported
a finding of probable cause. Although the images that Lewis sent to Agent Adams were
more than seven months old at the time of the warrant application, this time gap fits
within the range supported by our precedent and that of our sister circuits. As noted
above, such images are not usually deleted by those who possess them, and they likely
remain on the possessor’s computer indefinitely anyway. Moreover, there was nothing
to suggest that Lewis’s case was any different from the run-of-the-mill case in this
context. Because the warrant application was supported by probable cause, Lewis’s
motion to suppress the evidence seized pursuant to the authorized search is without
merit. Lewis consequently cannot show that he was prejudiced by the district’s decision
not to grant him a continuance so that he could file his suppression motion.
Accordingly, we affirm the district court’s denial of Lewis’s motion for a second ends
of justice continuance.
No. 09-1162 United States v. Lewis Page 10

III. Challenge to Sentence Enhancement for Use of a Computer

Finally, Lewis argues that the district court committed reversible error by
applying a two-level sentence enhancement under U.S.S.G. § 2G2.2(b)(6) for his use of
a computer to transmit the illicit images. Lewis claims that this enhancement amounts
to impermissible double-counting in his case because use of a computer is already an
inherent element of the crime of conviction itself. We disagree.

Lewis pleaded guilty to violating 18 U.S.C. § 2252(a)(1), which states the
following:

(a) Any person who--
(1) knowingly transports or ships using any means or
facility of interstate or foreign commerce or in or
affecting interstate or foreign commerce by any means
including by computer or mails, any visual depiction, if--
(A) the producing of such visual depiction
involves the use of a minor engaging in
sexually explicit conduct; and
(B) such visual depiction is of such
conduct;
...
shall be punished as provided in subsection (b) of this section.

18 U.S.C. § 2252(a) (emphasis added). The sentencing guidelines, meanwhile, provide
a two-point enhancement to a defendant’s total offense level “[i]f the offense involved
the use of a computer or an interactive computer service for the possession, transmission,
receipt, or distribution of the material, or for accessing with intent to view the material.”
U.S.S.G. § 2G2.2(b)(6). Lewis points to the phrase “including by computer” in the text
of 18 U.S.C. § 2252(a) and argues that use of a computer, at least in his case, was an
element of the offense that the government had to prove. Therefore, he argues, it
amounted to double-counting when the sentencing judge also gave Lewis a two-level
enhancement under § 2G2.2(b)(6) for the same computer use.

Lewis mischaracterizes the elements of a § 2252(a) offense. The fact that the
statute articulates computer use as one means of transporting the proscribed depictions
does not mean that use of a computer is a required element of the crime. Lewis did not
No. 09-1162 United States v. Lewis Page 11

need to use a computer in order to violate the criminal statute in question. According
to the statutory language, Lewis would have violated § 2252(a) had he transported the
depiction “by any means” affecting interstate commerce. Admittedly, Lewis’s use of a
computer did serve to satisfy the jurisdictional element of § 2252(a) in this case. But
because Lewis could have violated the statute without using a computer, we cannot say
that computer use is an element of the crime. The fact that he did use a computer, then,
may serve as an offense characteristic affecting the determination of his sentence, see
U.S.S.G. § 1B1.3(a)(1) (including as relevant conduct all of defendant’s acts that
“occurred during the commission of the offense of conviction”), and which may result
in an additional sentence enhancement.

This position is bolstered by the fact that the U.S.S.G. § 2G2.2(b)(6)
enhancement for using a computer aims at punishing a distinct harm beyond the mere
transmission of child pornography. Specifically, “[d]istributing child pornography
through computers is particularly harmful because it can reach an almost limitless
audience. Because of its wide dissemination and instantaneous transmission, computer-
assisted trafficking is also more difficult for law enforcement officials to investigate and
prosecute.” United States v. Lebovitz, 401 F.3d 1263, 1271 (11th Cir. 2005) (quoting
H.R. Rep. No. 104-90, at 3-4 (1995), as reprinted in 1995 U.S.C.C.A.N. 759, 760-61).
As such, we cannot accept Lewis’s position that enhancing his sentence for his use of
a computer is double-counting when the enhancement is designed to address a distinct
harm.

This interpretation of § 2252(a) and U.S.S.G. § 2G2.2(b)(6) comports with the
approach applied by the Seventh Circuit, the only other circuit that has directly
addressed this issue. See United States v. Tenuto, 593 F.3d 695, 698-99 (7th Cir. 2010).
The approach we now adopt has also been implicitly approved by other circuits in
related contexts. See, e.g., Lebovitz, 401 F.3d at 1270-1271 (noting that sentencing
enhancements in child pornography context for use of computer targets a separate harm
than the underlying crime itself); United States v. Goldberg, 295 F.3d 1133, 1136 n.1
No. 09-1162 United States v. Lewis Page 12

(10th Cir. 2002) (same); United States v. Woodward, 277 F.3d 87, 90 n.1 (1st Cir. 2002)
(same); United States v. Demerritt, 196 F.3d 138, 140 (2d Cir. 1999) (same).

CONCLUSION

For the foregoing reasons, we DISMISS Defendant-Appellant Todd Franklin
Lewis’s ineffective-assistance-of-counsel claims, and we AFFIRM the judgment of the
district court challenged by Lewis in this appeal.