NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 28 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-30137
Plaintiff-Appellee, D.C.2:12-cr-00260-RAJ-1
v.
MEMORANDUM*
PHILLIP ALLEN,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued and Submitted July 10, 2014
Seattle, Washington
Before: MURGUIA and TASHIMA, Circuit Judges, and CARNEY, District
Judge.**
Defendant-appellant Phillip Allen appeals the district court’s denial of his
motions to suppress evidence obtained as a result of a warrant to search his e-mail
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Cormac J. Carney, United States District Judge for the
Central District of California, sitting by designation.
account. Allen entered a conditional guilty plea to Sexual Exploitation of Children
in violation of 18 U.S.C. § 2251(a). We affirm.
We review a district court’s denial of a timely motion to suppress evidence
de novo, and we review the magistrate’s finding of probable cause to issue a search
warrant for clear error. United States v. Battershell, 457 F.3d 1048, 1050 (9th Cir.
2006). A magistrate’s finding of probable cause is entitled to “great deference.”
Illinois v. Gates, 462 U.S. 213, 236 (1983). “The task of the issuing magistrate is
simply to make a practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him, . . . there is a fair probability
that contraband or evidence of a crime will be found in a particular place.” Id. at
238.
The magistrate did not clearly err in finding probable cause to issue a
warrant to search Allen’s e-mail account, entooyung@yahoo.com (the “entooyung
account”). Special Agent Barrett’s supporting affidavit described that an e-mail
was sent to the entooyung account by David Bostic, a known trader of child
pornography, that 11 images of child pornography or suspected child pornography
were attached to that e-mail, and that Bostic included a message requesting that
Allen respond by sending pornographic images of a specific female child to which
Allen had access. Bostic’s message implies prior communication between himself
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and Allen, and makes reasonable the inference that Allen was not an unwitting
recipient of the e-mail. These facts—considered together with the strong inference
created by the e-mail moniker “entooyung” that its user has an interest in
children—provided the requisite probable cause that evidence of the possession,
distribution, or receipt of child pornography would be found within the entooyung
account.
The warrant was not made deficient by Special Agent Barrett’s decision to
describe the offending images in the text of his affidavit, rather than attach any of
the images to it. The images were sent to Allen by a known trader of child
pornography, leaving no reason to question that they were in fact images of
children. See United States v. Gourde, 440 F.3d 1065, 1070 (9th Cir. 2006) (en
banc) ( “[T]he magistrate judge had no reason to question whether the images
described constituted child pornography because the [website] owner himself
acknowledged he purveyed illegal images.”). It was also not misleading for
Special Agent Barrett to attest that Allen “received” an e-mail from Bostic.
Special Agent Barrett merely conveyed that the e-mail had been successfully
delivered to Allen’s account, not that it had been opened by him. See id. at 1069
(noting that a warrant should be evaluated through a “commonsense” rather than
“hypertechnical” analysis).
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Nor was the warrant overbroad. The warrant was supported by probable
cause to believe that evidence of child pornography-related crimes would be found
in the entooyung account, and it described with reasonable particularity which
items could be seized from the account. See United States v. Towne, 997 F.2d 537,
544 (9th Cir. 1993) (“[T]he scope of the warrant [must] be limited by the probable
cause on which the warrant is based.” (internal quotation marks omitted)).
Finally, the district court did not abuse its discretion in refusing to consider
the merits of Allen’s second, untimely motion to suppress evidence found as a
result of the search of the entooyung account. See United States v. Tekle, 329 F.3d
1108, 1112 (9th Cir. 2003) (reviewing the denial of an untimely motion to suppress
for abuse of discretion). Because the second motion did not present any new
evidence that was not readily available to or considered by the district court in
denying the first motion to suppress, the district court properly found that there
was no good cause to consider the untimely motion. See Fed R. Crim. P. 12(e)
(permitting a court to grant relief from the waiver of an untimely argument “for
good cause”). Contrary to Allen’s contention, Special Agent Barrett’s affidavit did
not omit the material fact that only one e-mail had been exchanged between Bostic
and Allen. Indeed, that fact was apparent from the face of the affidavit, which
described only one e-mail.
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AFFIRMED.
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