In United States v. Cory Johnson, 2d Cir. No. 22-1086-cr (February 27, 2024), the panel (Livingston, Carney, Bianco) rejects Johnson’s claims and affirms his conviction and 20-year sentence for producing child pornography (CP) in violation of 18 U.S.C. § 2251(a). The opinion, by Chief Judge Livingston, concludes that the instant prosecution for CP production – which follows Johnson’s 2019 conviction for CP possession, after a guilty plea pursuant to a plea agreement– is not barred by the prior agreement. The opinion also rules that the evidence leading to the production charge, discovered during an examination of electronic data seized in the possession case that occurred after Johnson’s sentencing, was not obtained in violation of the Fourth Amendment.
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Here’s the gist.
After “Johnson was first identified by federal authorities as trading child sexual abuse material (CSAM) within an Internet chat group in 2018, the execution of a search warrant at his South Burlington, Vermont home resulted in the seizure of electronic media containing over 8,000 videos and over 6,000 images of such material” on multiple devices (laptops, cellphones, desktops, hard drives, and thumb drives). Johnson was initially indicted in the District of Vermont “for the distribution of child pornography but as the result of a plea agreement pled guilty to a superseding information charging him only with the possession of child pornography.”
“The agreement included the following provision: ‘12. The United States agrees that in the event that CORY JOHNSON fully and completely abides by all conditions of this agreement, the United States will: a. not prosecute him in the District of Vermont for any other criminal offenses known to the United States as of the date it signs this plea agreement, committed by him in the District of Vermont relative to his knowing possession or distribution of child pornography. . . .’” (emphases added).
No one alleged that this case involved “hands-on” conduct by Johnson. To the contrary, everyone agreed that this was a non-contact case involving simply the possession of banned material. The Government thus “informed the district court in its sentencing memorandum that it was ‘not aware of any allegations of abuse within the defendant’s home.’”
Johnson “was sentenced principally to a 45-month term of imprisonment” in May 2019.
“About a month later, SA Moynihan [the Homeland Security agent in charge of the case] sent the National Center for Missing and Exploited Children (NCMEC) copies of the contraband video and image files provided to her by the HSI forensic analyst who had located this material on Johnson’s devices and flagged it as responsive to the search warrant.”
“This segregated material constituted a subset of the much larger body of digital data on his various devices. Law enforcement agencies like HSI regularly submit such material to NCMEC, which is organized as a private nonprofit but established by Congress, so that newly seized CSAM can be compared with material in [its] database in order to identify children not previously known to law enforcement who might be at risk and to assist in obtaining restitution for victims. Ordinarily this review would have been conducted during the investigatory phase of Johnson’s original prosecution, but SA Moynihan forgot to send NCMEC the files until June” 2019.
A few months later, the NCMEC “notified SA Moynihan that it had identified a video that was not already in its CSAM database.” In particular, there was a “ video, which depicted the sexual abuse of a toddler by an adult, [that] appeared to have been created near Burlington, Vermont. NCMEC based this determination on the video’s metadata, which included GPS coordinates indicating that the video may have been produced in South Burlington.”
SA Moynihan then “retrieved and reviewed the video file, which was originally located among the digital files on a cell phone seized from Johnson. The video depicted an adult male abusing a young girl by rubbing his penis against her buttocks and ejaculating. SA Moynihan recognized Johnson’s voice in the video and believed the young child to be about the age of Johnson’s daughter at the time the video was created.”
“After matching the GPS longitude and latitude coordinates provided by NCMEC to the approximate location of Johnson’s house, SA Moynihan sought and obtained a second warrant to again search Johnson’s home, this time looking for distinctive bedding that appeared in the background of the video: a white and pink blanket; a yellow, pink, and blue-flowered sheet; a pink pillow with flowers and butterflies; and fabric decorated with a green elephant.”
Following the recovery of “the bedding see on the video,” a Vermont grand jury indicted Johnson for production of CP, in violation of § 2251(a). That’s this case.
Johnson argued to the district court that the NCMEC’s post-sentence examination of the data seized in the prior case violated the Fourth Amendment and that the instant prosecution was barred by the earlier plea agreement. The court rejected both claims.
Johnson then pleaded guilty to producing CP, but preserved the right to appeal those rulings. The court sentenced him to 20 years’ imprisonment.
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Johnson raises the same two arguments on appeal. The panel rejects both and affirms his conviction and sentence.
First, the panel concludes that there is no Fourth Amendment violation in the NCMEC’s post-sentence examination of data seized in the earlier prosecution.
“Assuming arguendo that NCMEC acted as a Government agent in reviewing the CSAM files located on Johnson’s digital devices and identified pursuant to the 2018 search warrant, it in no way violated the Fourth Amendment in conducting this review. NCMEC examined digital material that was responsive to the 2018 search warrant and that had already been segregated from Johnson’s other digital information as falling within the warrant’s scope. Neither NCMEC nor SA Moynihan violated the Fourth Amendment by examining this previously-segregated, responsive digital information, nor, contrary to Johnson’s claim, was this examination constitutionally unreasonable because of its timing.”
Indeed, “NCMEC’s review of the digital information provided to it by SA Moynihan did not constitute a search for Fourth Amendment purposes.”
“After the seizure of Johnson’s electronic storage devices, material responsive to the warrant was identified during a forensic review that was completed in June 2018. The CSAM examined by NCMEC in 2019 had thus already been identified as responsive and segregated from the remainder of Johnson’s digital information.’” Looking closer at the same material is not another search.
“When criminal investigators reexamine evidence that has lawfully been seized pursuant to a warrant – returning to look again at a drug ledger, for instance, or to perform lab tests on a blood-stained jacket – we do not ordinarily view such investigative steps as constituting a new Fourth Amendment event.” And ”the general principle that law enforcement can reexamine lawfully seized material during the course of an investigation without engaging in a new search has clear application in a case like this, where stored data responsive to a search warrant has been separated out from nonresponsive data, and investigators return to reexamine only the responsive material in pursuit of law enforcement ends.”
Second, the panel concludes that the instant prosecution is not barred by the plea agreement in the possession case. The factual history of the case and the language of the agreement compel this result.
“[T]he evidence is undisputed” that the Government learned of Johnson’s abuse of his toddler and his production of child pornography only in September 2019” — five months after sentencing in the possession case – “when SA Moynihan was notified by NCMEC of the video Johnson had made.”
And “[t]he language of the plea agreement is clear: the Government’s commitment is to not prosecute Johnson in the District of Vermont ‘for any other criminal offenses known to the United States’ as of the date it entered into the agreement . . . .” (emphasis added in opinion). “The plea agreement itself . . . does not reference the production of child pornography.” And as noted, the record is “not only devoid of any indication that the Government was aware of Johnson’s sexual abuse of his daughter and his production of CSAM: it affirmatively reflects the Government’s understanding that Johnson had not engaged in the abuse of children. . . . In such circumstances, Johnson could not harbor the reasonable expectation that the plea agreement absolved him of future prosecution for the as-yet undiscovered crime of producing CSAM.”
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