United States v. Gibeault

UNPUBLISHED OPINION

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 COURT'S 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 "SUMMARY ORDER"). 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 8^th day of December, two thousand twenty-one.

On appeal from the United States District Court for the Northern District of New York (Mae A. D'Agostino, J.).

For Appellee: Carina H. Schoenberger, Assistant United States Attorney, for Antoinette T. Bacon, Acting United States Attorney for the Northern District of New York, Syracuse, NY, for Appellee.

For Defendant-Appellant: Daniel M. Perez, Law Offices of Daniel, M. Perez, Newton, NJ, for Defendant-Appellant.

PRESENT: GUIDO CALABRESI, DENNY CHIN, WILLIAM J. NARDINI, Circuit Judges.

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UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of conviction and sentence entered by the district court on March 16, 2020, is AFFIRMED.

Defendant-Appellant Robert E. Gibeault, Jr. appeals from a judgment of conviction and sentence entered by the district court on March 16, 2020, pursuant to a conditional plea agreement between Gibeault, Jr. and the Government dated October 18, 2019. On appeal, Gibeault, Jr. challenges the district court's denial of his motion to suppress evidence and request for an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). We assume the reader's familiarity with the underlying record.

In 2017, law enforcement officers conducted undercover investigations on the BitTorrent peer-to-peer file-sharing network in which they downloaded several files depicting child pornography from a user with the IP address 72.244.103.211 (the "IP address"). Special Agent James Hamilton ("SA Hamilton") from the United States Immigration and Customs Enforcement Office of Homeland Security Investigations ("HSI") determined that the IP address was assigned to an account registered to "Robert Gibeault" residing at 321 Old West Road, Gansevoort, New York 12831 ("321 Old West Road" or the "property"). Further investigation revealed that "Robert E. Gibeault" and "Jill A. Gibeault" lived at 321 Old West Road. SA Hamilton then surveilled the property and discovered that the home had two available wireless network connections and a single mailbox with the number 321. SA Hamilton then obtained a search warrant from a federal magistrate judge.

The search warrant identified as the places and items to be searched "the property located at 321 Old West Road, Gansevoort, NY," including "all rooms, attics, closed containers, and other places therein . . . under the control of the occupants of the residence . . . the persons of Robert GIBEAULT and Jill GIBEAULT, . . . [and] any computers, computer equipment, or computer storage media and electronic storage media located during the course of said searches." App'x at 19. The search warrant also identified as among the items to be seized and searched "records and evidence identifying who the particular user was who distributed, transmitted, downloaded or possessed any child pornography found on any computer or computer media (evidence of attribution)." Id. at 22.

SA Hamilton and other law enforcement officers executed the search warrant on November 2, 2017. Upon arriving at 321 Old West Road, SA Hamilton met Robert E. Gibeault, Sr., who informed him that Jill Gibeault and Gibeault, Jr. were inside the home. When SA Hamilton was unable to locate Gibeault, Jr., Gibeault, Sr. informed SA Hamilton that his son was in the sunroom at the back of the house. SA Hamilton left the home through the front door, walked to the back of the house, and walked to the sliding glass door to the sunroom. The door had a paper sign taped to it that read "321 Old West Rd. APT. 2." Id. at 63. SA Hamilton asked Gibeault, Jr., whom he

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could see through the sunroom door, to open the door. Gibeault, Jr. did. After securing the room, SA Hamilton called the U.S. Attorney's Office in Albany, New York to confirm his belief that the sunroom fell within the scope of the search warrant. Based on what SA Hamilton observed-the sunroom shared the same roof, exterior walls, and basement as the rest of home; inside it had a toilet, sink, and minimal cooking facilities; and the door to the sunroom was labeled as "APT. 2"- an Assistant U.S. Attorney stated that the...