14‐4126‐cr
United States v. Nayyar
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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 14th day of October, two thousand fifteen.
PRESENT: DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges,
KATHERINE B. FORREST,
District Judge.1
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UNITED STATES OF AMERICA,
Appellee,
v. 14‐4126‐cr
CONRAD STANISCLAUS MULHOLLAND,
AKA Stan, AKA Conrad Stan,
Defendant,
PATRICK NAYYAR,
Defendant‐Appellant.
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1 The Honorable Katherine B. Forrest, of the United States District Court for the
Southern District of New York, sitting by designation.
FOR APPELLEE: SEAN S. BUCKLEY, Stephen J. Ritchin,
Michael A. Levy, Assistant United States
Attorneys, for Preet Bharara, United States
Attorney for the Southern District of New
York, New York, New York.
FOR DEFENDANT‐APPELLANT: LAURA GROSSFIELD BIRGER, Stephanie B.
Turner, Cooley LLP, New York, New York.
Appeal from the United States District Court for the Southern District of
New York (Sweet, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that this case is REMANDED.
Defendant‐appellant Patrick Nayyar appeals from a judgment entered
October 31, 2014, after a jury trial, convicting him of conspiracy to provide and
providing material support to terrorists, conspiracy to contribute and contributing
goods to and for the benefit of Hizballah, and conspiracy to traffic firearms and
ammunition. 18 U.S.C. §§ 371, 2339B; 50 U.S.C. § 1705(a). On October 27, 2014, the
district court sentenced Nayyar to fifteen yearsʹ incarceration. We assume the partiesʹ
familiarity with the underlying facts, procedural history of the case, and issues on
appeal.
On September 24, 2009, Nayyar was arrested by the FBI. With the consent
of his wife, the FBI searched Nayyarʹs apartment and seized his laptop. Nayyarʹs wife
also provided written consent to search the laptop. More than a year later, on October
29, 2010, the government obtained a search warrant for the laptop. Nayyarʹs wifeʹs
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written consent form, the search warrant and warrant application, and evidence
obtained from the search of the computer were produced to Nayyar during pre‐trial
discovery. The laptop was found to contain internet bookmarks and browsing history
for websites relating to military equipment, as well as a news article that identified
Hizballah as an Iran‐backed terrorist organization, and the computer evidence was
received at trial.
On the second day of trial, Special Agent Candace Hunter, an FBI forensic
examiner, testified on cross‐examination that she began her examination of the
computer on December 2, 2009, although the search warrant was not obtained until
October 29, 2010. The next day, Nayyar moved for a mistrial on the grounds that the
evidence from his computer was the product of an illegal search. Nayyar claimed that
before Hunterʹs testimony, he had not been apprised of the fact that the hard drive had
been searched prior to the application for the search warrant. On the motion for a
mistrial, the district court suggested recalling Hunter to testify at a hearing. But the
government told the court that she was already on her way back to Alabama, and that it
was not necessary to bring her back because there was no material factual dispute, and
because the motion could be denied on the basis of waiver or the inevitable discovery
doctrine.
Rather than conduct an evidentiary hearing, the district court agreed to
proceed by means of a government proffer. The district court denied Nayyarʹs motion
for a mistrial, and declined to strike the testimony regarding evidence obtained from
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the laptop or the evidence itself, holding that because Nayyar had not challenged the
validity of his wifeʹs consent to search the computer before trial, the instant challenge
was waived. Even if there was no waiver, the district court held, testimony derived
from the laptop searches was protected by the inevitable discovery doctrine.
On appeal, Nayyar argues that (1) he did not waive his right to challenge
the search of his laptop; (2) the agents did not receive valid consent to search the laptop
from Nayyarʹs wife; (3) the independent source doctrine does not salvage the evidence;
and (4) the evidence was insufficient to prove that Nayyar engaged in a gun and
ammunition trafficking conspiracy.
We hold that the district court could not properly deny the suppression
motion on this record, and we remand for the district court to conduct a post‐trial
hearing on the issues relating to the computer evidence received at trial. See, e.g., United
States v. Hamilton, 538 F.3d 162, 164, 169‐70 (2d Cir. 2008) (remanding for post‐trial
suppression hearing, where district court erred in denying suppression motion made at
trial, but did not reach alternative arguments for and against suppression); United States
v. Pena, 961 F.2d 333, 339‐40 (2d Cir. 1992) (remanding for post‐trial suppression
hearing concerning evidence that had been introduced at trial).
First, the government concedes on appeal that the record before this Court
is insufficient to determine whether Nayyarʹs wife had the authority to consent to a
search of her husbandʹs laptop, and the question was insufficiently addressed below.
Indeed, the written consent form that the government includes in its addendum was
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not part of the record before the district court, and the district court explicitly
acknowledged that it had not seen it.
Second, at oral argument, the government acknowledged that it misspoke
during its evidentiary proffer when it advised the district court that Nayyar himself
gave the agents the password. This was an error the government did not correct in the
district court.
Third, the record is unclear as to the issue of the timeliness of Nayyarʹs
motion to suppress.2 Under Federal Rule of Criminal Procedure 12(c)(3), ʺ[i]f a party
does not meet the deadline for making a Rule 12(b)(3) motion, the motion is untimely.
But a court may consider the defense, objection, or request if the party shows good
cause.ʺ Fed. R. Crim. P. 12(c)(3). It is unclear whether good cause exists here. There is
a lack of clarity as to whether the evidence introduced at trial was obtained from a
search of the laptop based on the wifeʹs purported consent or based on the warrant.
Moreover, while Nayyarʹs trial counsel apparently was unaware until Hunter testified
that the government had searched the contents of the laptop a year before the warrant
2 While the parties have presented this issue as a question of ʺwaiver,ʺ the Court notes that the
applicable rule, Federal Rule of Criminal Procedure 12, was revised in 2014 to remove the
reference to ʺwaiver,ʺ because ʺthe rule [did] not contemplate waiver as that term is
traditionally used in criminal cases.ʺ United States v. McMillian, 786 F.3d 630, 636 n.3 (7th Cir.
2015) (citing Fed. R. Crim. P. 12(c) advisory committeeʹs note to 2014 amendment). The
applicable standard, however, is unchanged: ʺBefore a court may consider an untimely motion
to suppress, ʹa defendant must first establish good cause for the absence of a pretrial motion.ʹʺ
Id. at 636 (quoting United States v. Acox, 595 F.3d 729, 731 (7th Cir. 2010)).
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issued, it is unclear whether Nayyarʹs prior counsel was on notice before trial that the
laptop had been searched before the warrant issued. See J. App. at 158.
Fourth, there is uncertainty as to the applicability of the independent
source doctrine. The government bears the burden of establishing by a preponderance
of the evidence that the independent source (or inevitable discovery) doctrine applies.
See Murray v. United States, 487 U.S. 533, 540 (1988); Nix v. Williams, 467 U.S. 431, 444
(1984) (ʺIf the prosecution can establish by a preponderance of the evidence that the
information ultimately or inevitably would have been discovered by lawful means . . .
then the deterrence rationale has so little basis that the evidence should be received.ʺ).
For the independent source doctrine to apply, ʺ(1) the warrant must be supported by
probable cause derived from sources independent of the illegal entry; and (2) the
decision to seek the warrant may not be prompted by information gleaned from the
illegal conduct.ʺ United States v. Johnson, 994 F.2d 980, 987 (2d Cir. 1993).3 Here, there is
a lack of clarity in the record as to the second prong: it is unclear whether the agents
were prompted to seek the warrant by what they saw on the laptop before they obtained
the warrant, that is, the two purportedly pornographic images. The present record is
3 In the proceedings below, both the Government and the district court referred to the
applicable doctrine as the inevitable discovery doctrine. Under the inevitable discovery
doctrine, ʺevidence that was illegally obtained will not be suppressed ʹif the government can
prove that the evidence would have been obtained inevitablyʹ even if there had been no
statutory or constitutional violation.ʺ United States v. Roberts, 852 F.2d 671, 675‐76 (2d Cir. 1988)
(quoting Nix, 467 U.S. at 447). The Government argues on appeal that the doctrine relied upon
below is better described as the independent source doctrine, because ‐‐ according to the
Government ‐‐ the evidence was, in fact, recovered pursuant to a valid warrant.
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insufficient ‐‐ as to the timeline of the search, the discovery of the images, and the
deliberations about the consent validity ‐‐ for the district to have found that the pre‐
warrant search ʺdid not result in the government obtaining evidence it would not
otherwise have obtained,ʺ such that ʺthe government d[id] not gain an advantage from
its initial violation.ʺ Id.
* * *
As we are remanding, we do not reach Nayyarʹs sufficiency of the
evidence argument. For the foregoing reasons, we do not vacate the conviction but we
REMAND this case to the district court to conduct a hearing on whether (1) Nayyar
waived his right to challenge the evidence in question, (2) Nayyarʹs wifeʹs consent was
valid, and (3) the independent source doctrine applies.
This panel will retain jurisdiction over any subsequent appeal pursuant to
United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994). Accordingly, either party may
notify the Clerk of a renewed appeal within fourteen days of the district courtʹs
decision. See id.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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