NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
APR 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 15-30245
Plaintiff-Appellee, D.C. No.
2:14-cr-00030-SAB-1
v.
RANDY ZACHERLE, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Stanley Allen Bastian, District Judge, Presiding
Argued and Submitted February 9, 2017
Seattle, Washington
Before: FISHER, PAEZ and CALLAHAN, Circuit Judges.
Randy Zacherle was convicted for possessing child pornography in violation
of 18 U.S.C. § 2252A. He appeals that conviction, raising four arguments: (1) the
evidence of child pornography found on one of his laptops must be suppressed
because it was the product of an unreasonable search and seizure; (2) the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
government violated his privilege against self-incrimination by discussing his
physical response to a single question during an interrogation in which he waived
his right to remain silent; (3) a jury had to find beyond a reasonable doubt he was
previously convicted for possessing child pornography; and (4) alleged sentencing
guideline calculation errors must be reversed despite receiving the mandatory
minimum sentence for his conviction. We have jurisdiction, and we affirm.
1
The district court did not err in finding Zacherle abandoned the laptop on
which child pornography was found. See United States v. Nordling, 804 F.2d
1466, 1469 (9th Cir. 1986) (“A determination of abandonment is a factual finding
that we review for clear error.”). Zacherle left this laptop in Marianne Mosqueda’s
bedroom for three months without any instruction as to what she was to do with it
and did not tell her anything about his whereabouts. That he was incarcerated
during this absence is not dispositive. Zacherle could have asserted control over
the laptop. He sent his mother to collect his pickup from Mosqueda’s home.
Moreover, he was simply a guest in Mosqueda’s home. He paid no rent or bills
and performed only modest chores in exchange for room and board. He could not
reasonably expect Mosqueda to store his belongings for months without any
request from him to do so. Her decision to rid herself of Zacherle’s computer by
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giving it to his estranged sister – who subsequently gave it to law enforcement –
did not violate Zacherle’s Fourth Amendment rights. See United States v. Wilson,
472 F.2d 901, 902 (9th Cir. 1972) (“Search or seizure of abandoned property, even
without a warrant, is simply not unreasonable.”).
To the degree Zacherle argues the files on his computer were entitled to
greater protection than the computer itself, we are not persuaded. Zacherle
abandoned his computer, and he exhibited no greater concern for the files it
contained. There is no evidence suggesting the files were locked. Rather, he left
his unlocked computer with unlocked files in a guest bedroom for months without
any attempt to exert control over the computer or files in which he now asserts a
privacy expectation. It may be that Zacherle thought there was no need to protect
his files or computer from Mosqueda, his estranged sister or even law enforcement
because he was confident all evidence of his wrongdoing was deleted by the file-
eraser-software FBI agents later found on his computer. That he did not possess
the “technical savvy” to understand deleted files could be recovered with the right
tools does not give him the right to assert an expectation of privacy he previously
abandoned. United States v. Borowy, 595 F.3d 1045, 1048 (9th Cir. 2010) (quoting
United States v. Ganoe, 538 F.3d 1117, 1127 (9th Cir. 2008)).
2
3
Zacherle’s Fifth Amendment rights were not violated when the jury was
allowed to hear a description of his physical response after being asked whether he
downloaded child pornography. Zacherle agreed to speak with law enforcement
officers after being read his Miranda rights. He answered all of their questions
with verbal responses, except for one. To that question, Zacherle gave a physical
response – curling into a fetal position on his chair. There is no evidence the
questioning officer “exert[ed] pressure” or was anything but “courteous.” United
States v. Lorenzo, 570 F.2d 294, 298 (9th Cir. 1978). Nor is there evidence
Zacherle made any explicit statement alerting the officer he wished to exercise his
privilege against self-incrimination as to that question and not others. Indeed, he
answered the questions that followed with verbal responses. Given Zacherle’s
“willingness . . . to talk” and “continued [willingness] to do so after his failure to
respond [verbally] to a single question,” “he cannot be said to have invoked his
right to remain silent,” totally or selectively. Id.
3
The Supreme Court has long recognized “the fact of a prior conviction” is a
narrow exception to the general rule that facts increasing the statutory sentence
must be submitted to a jury and proven beyond a reasonable doubt. Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000); see also Alleyne v. United States, 133 S. Ct.
4
2151, 2160 n.1 (2013) (citing Almendarez-Torres v. United States, 523 U.S. 224
(1998)). Accordingly, the jury did not have to determine that Zacherle was
previously convicted of possession of child pornography to trigger the mandatory
minimum sentence of 10 years. See Apprendi, 530 U.S. at 490; 18 U.S.C.
§ 2252A(b)(2).
4
Because Zacherle’s conviction for possession of child pornography carried a
minimum 10-year sentence in light of his previous conviction, any other
sentencing error is moot because the district court had no discretion to impose a
sentence lower than the one he received. See Melendez v. United States, 518 U.S.
120, 126-27 (1996).
The judgment of the district court is AFFIRMED.
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