United States v. William Wilkinson

FILED
NOT FOR PUBLICATION
AUG 25 2017

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-30078

Plaintiff-Appellee, D.C. No.
1:14-cr-00168-BLW-1
v.
MEMORANDUM*
WILLIAM ROGER WILKINSON,

Defendant-Appellant.

Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted June 16, 2017
Seattle, Washington

Before: BYBEE and M. SMITH, Circuit Judges, and DORSEY,** District Judge.

Following a four-day jury trial, defendant-appellant William Roger

Wilkinson received a 130-year sentence after he was convicted on three counts of

sexual exploitation of children in violation of 18 U.S.C. § 2251(a), one count of

possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), and

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jennifer A. Dorsey, United States District Judge for
the District of Nevada, sitting by designation.
one count of access with the intent to view child pornography in violation of 18

U.S.C. § 2252A(a)(5)(B). Before trial, the district court denied Wilkinson’s

motion to suppress evidence obtained under four different search warrants, request

for an evidentiary hearing under Franks v. Delaware, 438 U.S. 154 (1978), and

motion in limine to exclude testimony of the government’s expert. And the district

court granted the government’s motion in limine to admit evidence of uncharged

acts of child molestation. Wilkinson appeals those pre-trial decisions and the

substantive reasonableness of his sentence. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

1. The search warrants pass constitutional muster.

Wilkinson offers a host of reasons why the district court should have

suppressed evidence seized under the warrants to search his home, electronic

devices, and truck. We review suppression decisions de novo and the underlying

factual findings for clear error. United States v. Rodgers, 656 F.3d 1023, 1026 (9th

Cir. 2011). We also review the issuance of a search warrant for clear error, and we

give “great deference” to a magistrate judge’s finding of probable cause. United

States v. Krupa, 658 F.3d 1174, 1177 (9th Cir. 2011).

a. Residential search warrant

The question for the magistrate judge issuing a search warrant is whether,

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under the “totality-of-the-circumstances” set forth in the affidavit, “there is a fair

probability that contraband or evidence of a crime will be found in a particular

place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). Interpreting the affidavit in a

“commonsense[ ] manner” and paying “great deference” to the magistrate’s finding

of probable cause, as we must, id. at 236 (quotation marks and quoted references

omitted), we do not find that the affidavit supporting the search warrant of

Wilkinson’s home was deficient. The affidavit contains relevant statements from

the victim, her mother, and her grandfather that would lead a magistrate judge to

reasonably conclude that evidence that Wilkinson sexually abused the victim

would be found at the address.

Wilkinson complains that two categories of items listed in the warrant are

overbroad: videos and electronic data containing images of minor children. This is

a distinction without a difference because law enforcement did not search the

electronics or seize any video or electronic data under the residential search

warrant; they obtained other warrants to do that. See United States v. Clark, 31

F.3d 831, 836 (9th Cir. 1994) (“The remedy for an overbroad search warrant is

suppression of the seized evidence. The court need suppress, however, only those

items seized pursuant to the invalid portion of a search warrant.”).

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 b. Warrants to search electronics seized from Wilkinson’s home

Wilkinson argues that evidence obtained under two warrants to forensically

search electronics seized from his home should be suppressed because the warrants

are not sufficiently particular. Wilkinson did not provide the district court any

authority or analysis to demonstrate why the warrants fail the particularity

requirement, nor did he object when the court did not rule on this issue in denying

his suppression motion. Because he failed to adequately raise this argument below,

we deem it waived. See In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988,

992 (9th Cir. 2010) (noting that an issue will generally be deemed waived on

appeal if not sufficiently raised below).

c. Warrant to search Wilkinson’s truck

Wilkinson next contends that the 15-day delay between the seizure of his

truck and the warrant to search it was unreasonable. “An unreasonable delay

between the seizure of a package and obtaining a search warrant may violate the

defendant’s Fourth Amendment rights. The touchstone is reasonableness.” United

States v. Sullivan, 797 F.3d 623, 633 (9th Cir. 2015). In determining

reasonableness, “[w]e must balance ‘the nature and quality of the intrusion on the

individual’s Fourth Amendment interests against the importance of the

governmental interests alleged to justify the intrusion.’” Id. (quoting United States

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v. Place, 462 U.S. 696, 703 (1983)).

The extent of the intrusion on Wilkinson’s possessory interest in the truck

was minimal given the totality of the circumstances. The government had a

legitimate interest in seizing and retaining the truck based on the likelihood that it

was evidence of Wilkinson’s suspected crimes. The government’s course of

conduct was reasonable.

Wilkinson has not persuaded us that the warrants to search his home, truck,

or electronics fail to satisfy the Fourth Amendment’s requirements. We therefore

affirm the trial court’s decision denying Wilkinson’s suppression motion.

2. Wilkinson was not entitled to a Franks hearing.

Wilkinson next argues that the district court erred when it denied his request

for an evidentiary hearing under Franks v. Delaware, 438 U.S. 154 (1978),

because he made the requisite preliminary showing that false statements were

intentionally or recklessly included in the affidavit supporting the forensic search

warrants and the statements were necessary to a finding of probable cause. See

United States v. Kiser, 716 F.2d 1268, 1271 (9th Cir. 1983). “We review de novo a

district court’s decision not to conduct a Franks hearing.” United States v. Napier,

436 F.3d 1133, 1136 (9th Cir. 2006).

Wilkinson claims that three facts in the affidavit about what the victim stated

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during her social-services interview are deliberately false. But the supporting

affidavit contains sufficient factual detail to believe that this evidence would be

found on Wilkinson’s electronics without the challenged statements, and therefore

the challenged statements were not necessary to find probable cause. We thus

affirm the trial court’s decision denying Wilkinson’s request for a Franks hearing.

3. The district court’s evidentiary rulings are sound.

Wilkinson appeals from the district court’s evidentiary decisions:

(1) denying his motion to exclude testimony from a counselor of child victims of

sexual abuse regarding delayed disclosure and (2) granting the government’s

motion to admit testimony by the victim about uncharged acts of child molestation

that Wilkinson committed against her.

a. Expert-opinion evidence

A district court’s decision to admit expert-opinion testimony, and its finding

that evidence is more probative than prejudicial, are reviewed for abuse of

discretion. United States v. Gonzales, 307 F.3d 906, 909 (9th Cir. 2002); United

States v. LeMay, 260 F.3d 1018, 1024 (9th Cir. 2001). Wilkinson argues that the

counselor’s testimony should have been excluded under Federal Rule of Evidence

702 because it was neither helpful nor reliable. The district court found that the

counselor’s testimony would be helpful to the jury, and the record supports that

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finding. The district court also found that the counselor’s testimony was reliable

because her opinions were based on sufficient data from her own experience, and

the record supports that finding.

b. Uncharged-acts evidence

Wilkinson argues that the victim’s testimony about uncharged acts of

molestation was neither helpful to the jury nor practically necessary to prove the

charges against him, and its probative value was substantially outweighed by its

highly prejudicial impact. We have articulated five factors that district courts

“must evaluate in determining whether to admit evidence of a defendant’s prior

acts of sexual misconduct.” See LeMay, 260 F.3d at 1027–28. The district court

did not abuse its discretion in applying those factors.

We therefore affirm the district court’s evidentiary rulings.

4. The district court did not abuse its discretion when sentencing
Wilkinson.

Finally, Wilkinson argues that his 130-year sentence is substantively

unreasonable because it is longer than necessary to achieve the legitimate goals of

sentencing in light of his age and criminal history. When called to review the

reasonableness of a sentence imposed, “we ‘merely ask [ ] whether the trial court

abused its discretion.’” United States v. Apodaca, 641 F.3d 1077, 1079 (9th Cir.

2011) (alteration in the original) (quoting Rita v. United States, 551 U.S. 338, 351

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(2007)). “A substantively reasonable sentence is one that is sufficient, but not

greater than necessary to accomplish [18 U.S.C.] § 3553(a)(2)’s sentencing goals.”

United States v. Crowe, 563 F.3d 969, 977 n.16 (9th Cir. 2009) (quotation marks

and quoted reference omitted).

The district court carefully evaluated the statutory factors under 18 U.S.C.

§ 3553(a). The record does not support Wilkinson’s claim that the district court

failed to meaningfully consider his characteristics and history. It fully considered

both, but neither was truly remarkable, and both were greatly outweighed by the

other factors. Accordingly, the district court did not abuse its discretion when

sentencing Wilkinson to a term of 130 years.

Because the district court properly ruled on the pre-trial motions and did not

impose a substantively unreasonable sentence, we

AFFIRM.

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