United States v. Guy Wheelock

United States Court of Appeals
For the Eighth Circuit
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No. 14-1504
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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Guy Edward Wheelock

lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: October 10, 2014
Filed: November 20, 2014
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Before RILEY, Chief Judge, WOLLMAN and BYE, Circuit Judges.
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RILEY, Chief Judge.

After law enforcement used an administrative subpoena to match Guy Edward
Wheelock to a computer that downloaded child pornography through peer-to-peer
software, Wheelock pled guilty to receiving child pornography in violation of
18 U.S.C. § 2252(a)(2) and (b)(1). The district court1 sentenced Wheelock as a repeat
offender to a mandatory minimum of fifteen years imprisonment. Wheelock
challenges both the use of an administrative subpoena to obtain his internet service
subscriber information and the constitutionality of his mandatory minimum sentence.
We have appellate jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we
affirm.

I. BACKGROUND
Using investigative software, Officer Dale Hanson, of the Minneapolis Police
Department, learned child pornography was available for download from a certain
Internet Protocol (IP) address with Comcast Communications (Comcast) as the
Internet Service Provider (ISP). Pursuant to Minn. Stat. § 388.23, Officer Hanson
requested an administrative subpoena from the Hennepin County Attorney ordering
Comcast to produce subscriber information associated with the identified IP address.
Officer Hanson certified the information sought was “relevant to an ongoing,
legitimate law enforcement investigation of Distribution of Child Pornography.”

The Hennepin County Attorney faxed Comcast an administrative subpoena
ordering Comcast to produce the requested information. Comcast responded,
providing Wheelock’s name, address, and other information. Officer Hanson checked
this information against the Minnesota sex offender registry, which revealed
Wheelock’s prior conviction for possessing child pornography.

Using this information, Officer Hanson obtained a search warrant for
Wheelock’s house, the execution of which disclosed several hard drives, DVDs, and
CDs containing child pornography, as well as a computer actively downloading

1
The Honorable Michael J. Davis, Chief Judge, United States District Court for
the District of Minnesota, adopting the report and recommendation of Magistrate
Judge Tony N. Leung as to the suppression issue.

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suspected child pornography video files using Shareaza, a peer-to-peer file-sharing
program.

After being charged with possessing, receiving, and attempting to distribute
child pornography in violation of 18 U.S.C. § 2252(a)(2), (a)(4)(B), (b)(1), and (b)(2),
Wheelock moved to suppress all evidence obtained as a result of the administrative
subpoena. He contends the subpoena violated the Fourth Amendment of the United
States Constitution and federal and state statutes. Adopting the magistrate judge’s
report and recommendation, the district court denied the motions. Wheelock then
conditionally pled guilty to receiving child pornography, preserving the suppression
issue.

Before sentencing, Wheelock objected to 18 U.S.C. § 2252(b)(1) imposing a
statutory mandatory minimum of fifteen years in prison for repeat offenders. Among
other assertions, Wheelock argued this mandatory minimum is unconstitutional
because it arbitrarily punishes receipt more than possession. The district court
disagreed, concluding the statute survives a rational-basis inquiry. Wheelock timely
appealed.

II. DISCUSSION
A. Administrative Subpoena
Wheelock first challenges the district court’s denial of his motions to suppress,
contending, as he did in the district court, Officer Hanson’s use of an administrative
subpoena violated the Fourth Amendment and federal and state statutes. “‘When
reviewing the 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. Suing,
712 F.3d 1209, 1211-12 (8th Cir. 2013) (quoting United States v. Anderson, 688 F.3d
339, 343 (8th Cir. 2012)).

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 1. Fourth Amendment
Wheelock argues the use of an administrative subpoena (as opposed to a
warrant) violated his Fourth Amendment privacy interest in the subscriber
information obtained from Comcast. To prove he had a constitutionally cognizable
privacy interest, Wheelock “must show that (1) he ‘has a reasonable expectation of
privacy in the areas searched or the items seized,’ and (2) ‘society is prepared to
accept the expectation of privacy as objectively reasonable.’” United States v. James,
534 F.3d 868, 872-73 (8th Cir. 2008) (quoting United States v. Hoey, 983 F.2d 890,
892 (8th Cir. 1993)).

“‘[T]he Fourth Amendment does not prohibit the obtaining of information
revealed to a third party and conveyed by him to Government authorities, even if the
information is revealed on the assumption that it will be used only for a limited
purpose and the confidence placed in the third party will not be betrayed.’” United
States v. McIntyre, 646 F.3d 1107, 1111 (8th Cir. 2011) (quoting United States v.
Miller, 425 U.S. 435, 443 (1976)). This principle is dispositive here. With Comcast
in possession of his subscriber data, Wheelock cannot claim a reasonable
“‘expectation of privacy in [the] government’s acquisition of his subscriber
information, including his IP address and name from third-party service providers.’”
Suing, 712 F.3d at 1213 (alteration in original) (quoting United States v. Stults, 575
F.3d 834, 842 (8th Cir. 2009)); accord United States v. Perrine, 518 F.3d 1196, 1204-
05 (10th Cir. 2008) (“Every federal court to address this issue has held that subscriber
information provided to an internet provider is not protected by the Fourth
Amendment’s privacy expectation.”).

Wheelock questions the logic and ongoing viability of the third-party
disclosure principle in its current form by attempting to construct a Supreme Court
majority from the concurrences in United States v. Jones, 565 U.S. ___, 132 S. Ct.
945 (2012). Wheelock weaves Justice Sotomayor’s interest in revisiting the third-
party principle, see Jones, 565 U.S. at ___, 132 S. Ct. at 957 (Sotomayor, J.,

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concurring) (“[I]t may be necessary to reconsider the premise that an individual has
no reasonable expectation of privacy in information voluntarily disclosed to third
parties. This approach is ill suited to the digital age.”), with Justice Alito’s (joined
by Justices Ginsburg, Breyer, and Kagan) recognition that Fourth Amendment
doctrine may need to adapt to the demands of rapid technological advancement, see,
e.g., id. at ___, 132 S. Ct. at 962 (Alito, J., concurring). In Wheelock’s view, the
concurrences “illustrate the way in which the Court will decide privacy cases in the
future.” Time may prove Wheelock right, and the Supreme Court may revise its view
on third-party disclosures in the digital context, but until then, we are bound by
precedent, and the actual majority opinion in Jones did not address the third-party
disclosure doctrine, let alone purport to desert or limit it. Of the separately
concurring justices, it was only Justice Sotomayor who voiced any dissatisfaction
with the doctrine, and even then, she did not outright advocate its abandonment. See
id. at ___, 132 S. Ct. at 957 (Sotomayor, J., concurring).

Relying heavily on Justice Alito’s concurrence, Wheelock also argues
Minnesota’s internet privacy statutes create a reasonable expectation of privacy in
Wheelock’s identifying information because Minnesota prohibits ISPs from
“knowingly disclos[ing] personally identifiable information concerning a consumer,”
Minn. Stat. § 325M.02, including information identifying the “consumer by physical
or electronic address,” id. § 325M.01, subd. 5(1). “‘[W]hile state statutes and
regulations may inform our judgement [sic] regarding the scope of constitutional
rights, they fall far short of the kind of proof necessary to establish a reasonable
expectation of privacy.’” Eagle v. Morgan, 88 F.3d 620, 626 n.3 (8th Cir. 1996)
(quoting Nilson v. Layton City, 45 F.3d 369, 372 (10th Cir. 1995)). “Quite to the
contrary,” the precept of privacy from unreasonable searches “achieve[s its] scope
from ‘deeply rooted notions of fundamental personal interests derived from the
Constitution.’” Id. at 626 (quoting Nilson, 45 F.3d at 372). Plus, to the extent
Minnesota statutes are relevant, Wheelock could not have reasonably expected
§ 325M.02 to protect his subscriber information given that law’s provisions requiring

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the disclosure of information “to an investigative or law enforcement officer . . . while
acting as authorized by law” and information requested in “an administrative
subpoena, issued under authority of a law of this state,” id. § 325M.03(2), (6).

Because Wheelock had no reasonable expectation of privacy in the subscriber
information, a warrant was not necessary. See Suing, 712 F.3d at 1213.

2. Subpoena Statutes
Wheelock also contends Officer Hanson failed to follow proper procedure
under both federal and Minnesota administrative subpoena statutes. First, the
requirements in 18 U.S.C. § 3486 apply only to federal subpoenas and not to the
subpoenas in this case—obtained pursuant to state law and issued by a state actor.
See 18 U.S.C. § 3486(a)(1)(A) (discussing subpoenas issued by certain federal
officers).

Second, the Minnesota subpoena statute allows a county attorney to issue
administrative subpoenas only “for records that are relevant to an ongoing legitimate
law enforcement investigation.” Minn. Stat. § 388.23, subd. 1. Wheelock claims
Officer Hanson violated this requirement by failing to provide a factual basis in his
subpoena request from which the signing attorney could have made a “determination
as to the legitimacy of the law enforcement investigation.” First, Officer Hanson
requested retrievable information and certified “that the requested records [were]
relevant to an ongoing, legitimate law enforcement investigation of Distribution of
Child Pornography.” This is all the statute requires. Second, a violation of state
subpoena procedures “would not warrant suppression of the evidence gained because
federal courts in a federal prosecution do not suppress evidence that is seized by state
officers in violation of state law, so long as the search complied with the Fourth
Amendment.” United States v. Bach, 310 F.3d 1063, 1066 (8th Cir. 2002).

Thus, neither statute warrants suppression.

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 B. Sentence
Wheelock also challenges his sentence, arguing 18 U.S.C. § 2252(b)(1)’s
fifteen-year mandatory minimum for repeat offenders violates the Due Process Clause
of the Fifth Amendment of the United States Constitution because it arbitrarily sets
a minimum sentence for receipt of child pornography five years higher than the ten-
year mandatory minimum § 2252(b)(2) imposes on the same offender for possession.
“Once a person has been convicted of a crime in accordance with constitutional
guarantees, determining the severity of his punishment is, in the first instance, a
legislative task.” United States v. Meirick, 674 F.3d 802, 805 (8th Cir. 2012). We
must remain “highly deferential to legislative judgments about the most effective way
to protect the public from convicted criminals.” Id. To succeed, Wheelock must
show Congress’s “line-drawing” between possession and receipt was “totally
arbitrary” under a “rational basis” inquiry.2 Id.

Wheelock primarily contends there is little difference between possession and
receipt and that in the vast majority of cases, defendants convicted of possession are
also guilty of receipt. He adds that recent technological advances have removed any
other justifiable distinctions that may once have existed between the two offenses.

Initially, we note the distinction is not meaningless simply because knowing
receipt and knowing possession overlap in the usual case. Yet the underlying
point—that possession necessarily requires receipt (if not production) of the
possessed material—merits additional consideration. See, e.g., United States v.
Richardson, 238 F.3d 837, 839 (7th Cir. 2001) (“The puzzle is why receiving, which
under the first guideline and the statute that it implements is punished as severely as
sending, should be punished more severely than possessing, since possessors, unless
they fabricate their own pornography, are also receivers.” (internal citations omitted)).

2
Wheelock makes no claim the disparity is “based upon an impermissible factor
such as race.” Meirick, 674 F.3d at 805.

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 Possession of child pornography, while heinous in its own right, does not
necessarily spread the harm beyond the possessor himself, whereas “receiving
materials that have been shipped in interstate commerce is conduct more closely
linked to the market for child pornography.” United States v. Watzman, 486 F.3d
1004, 1009 (7th Cir. 2007). This closer link to the market and its attendant harms is
important because “[a] person who receives these images ‘furthers the market . . .
whether or not the person retains them.’” United States v. Sturm, 673 F.3d 1274,
1279 (10th Cir. 2012) (quoting United States v. Davenport, 519 F.3d 940, 949 (9th
Cir. 2008) (Graber, J., dissenting)); accord United States v. Ellison, 113 F.3d 77, 81
(7th Cir. 1997) (noting that “even the receipt of [child pornography] for personal use,
without more, keeps producers and distributors of this filth in business”). “‘Indeed,
even a person who receives the images and never gets around to viewing them still
causes these harms.’” Sturm, 673 F.3d at 1279-80 (quoting Davenport, 519 F.3d at
949 (Graber, J., dissenting)). Possession alone, however, does not necessarily
contribute to the market, and “[b]ecause the harms flowing from possession of child
pornography differ from those associated with distribution and receipt, differentiating
levels of punishment should not be unexpected.” Id. at 1280.

Wheelock seems to suggest the two crimes cannot be so easily separated
because the receiver of a thing will always possess it (even if only briefly) and the
possessor will always receive (or produce) it. This argument overlooks mens rea.
The fact that a knowing possessor received or produced pornography does not
necessarily mean he did so “knowingly,” as required by the statute. 18 U.S.C.
§ 2252(a)(2), (4). “It is possible to unwittingly receive child pornography and then
knowingly continue in possession of it; likewise, one can knowingly receive child
pornography and then cease possession.”3 Sturm, 673 F.3d at 1280; accord Watzman,

3
However, the knowing receiver who promptly discards the material is
necessarily guilty of knowingly possessing it for some brief period. See United States
v. Muhlenbruch, 634 F.3d 987, 1003 (8th Cir. 2011) (“[P]roof of receiving child
pornography under § 2252(a)(2) necessarily includes proof of illegal possession of

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486 F.3d at 1009-10 (“[A] person who receives child pornography by accident (for
example, if he sought adult pornography but was sent child pornography instead) is
not guilty of knowingly receiving it, though he is guilty of possessing it if he retains
it.”). Only the person who intentionally obtains child pornography—whether by
purchase or through peer-to-peer software—willingly participates in trafficking child
pornography,4 making that person the more deliberate, active promoter of the market
and the harms it creates and furthers, see Watzman, 486 F.3d at 1010.

Because knowing possession is not knowing receipt and each act threatens
distinct harms, the imposition of different mandatory minimums is not irrational.
Wheelock’s challenge must therefore fail.5

child pornography under § 2252(a)(4)(B).”).
4
Wheelock also seems to suggest receipt is not as reprehensible as it once was
because most receivers of child pornography do not pay for it and therefore “do not
financially contribute to the commercial child pornography industry anymore.” But
the crime of receipt is not limited to commercial transactions, and Congress has long
since removed any “sale” requirement based, in part, “upon Congress’s determination
that ‘much if not most child pornography material is distributed through an
underground network of pedophiles who exchange the material on a non-commercial
basis, and thus no sale is involved.’” Sturm, 673 F.3d at 1279 (quoting H.R. Rep. No.
99-910, at 4 (1996), reprinted in 1986 U.S.C.C.A.N. 5952, 5954). In any case, even
a peer-to-peer user who downloads child pornography furthers the “market” for it.
Peer-to-peer file-sharing software enables a communal network which “exist[s]—as
the name ‘file-sharing’ suggests—for users to share, swap, barter, or trade files
between one another.” United States v. Griffin, 482 F.3d 1008, 1013 (8th Cir. 2007).
Receivers (via downloading) are also potential distributors (via uploading), meaning
every download creates a new possible source of upload. This, and the network’s
encouragement to reciprocate the sharing, enhances its distribution capacity and
promotes the production of additional pornography, not unlike a commercial market.
5
Wheelock also attacks the calculation and severity of his sentencing guidelines
range. Given that his fifteen-year sentence was the mandatory minimum, see 18
U.S.C. § 2252(b)(1), any deficiency in the guidelines was harmless, see 28 U.S.C.
§ 2111.

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III. CONCLUSION
For the reasons stated, we affirm.
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