United States v. Johnson

93 F.4th 605

UNITED STATES of America, Appellee, v. Cory JOHNSON, Defendant-Appellant.

No. 22-1086

August Term 2022

United States Court of Appeals, Second Circuit

Argued: February 17, 2023

Decided: February 27, 2024

Appeal from the United States District Court for the District of Vermont (Crawford, C.J.)

For Defendant-Appellant: Dennis J. Johnson (Frank J. Twarog, Catamount Law PLLC, Burlington, VT, on the brief), The Law Office of Dennis J. Johnson, South Hero, VT.

For Appellee: Eugenia A.P. Cowles, Assistant United States Attorney (Gregory L. Waples, on the brief), on behalf of Nikolas P. Kerest, United States Attorney for the District of Vermont, Burlington, VT.

Before: Livingston, Chief Judge, Carney, and Bianco, Circuit Judges.

Debra Ann Livingston, Chief Judge:

Defendant-Appellant Cory Johnson ("Johnson") appeals from a May 12, 2022, judgment of the United States District Court for the District of Vermont (Crawford, C.J.), convicting him of a single count of the knowing production of child pornography in violation of 18 U.S.C. § 2251(a), and sentencing him to a term of imprisonment of 240 months, to be followed by a 15-year term of supervised release. When 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. Johnson was first indicted 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. For that crime, he was sentenced principally to a 45-month term of imprisonment. A later review of previously seized and segregated digital data responsive to the original warrant produced evidence that Johnson had not only possessed child pornography in 2018 but had sexually assaulted his then two-and-a-half-year-old daughter and filmed the abuse. Johnson was indicted on the present production charge in 2019 and again pled guilty, this time reserving the right to appeal the denial of his motions to suppress evidence and to dismiss the 2019 charge as precluded by his 2018 plea agreement. As explained below, we conclude that Johnson's arguments on appeal are without merit. Accordingly, we affirm the district court judgment.

I. Factual Background¹

A. The 2018 Investigation

In March 2018, a North Carolina-based Homeland Security Investigations ("HSI") Special Agent infiltrated a chat group on Kik, a smartphone messaging app, and obtained several videos of CSAM from a user named "textiles."² Upon consulting subscriber information subpoenaed from Kik and Comcast and matching that information to a public Facebook page, the special agent came to suspect that "textiles" was Johnson. Because Johnson lived in South Burlington, Vermont, the information developed in North Carolina was forwarded for further investigation to Vermont-based HSI Special Agent Caitlin Moynihan ("SA Moynihan").

After further querying a Vermont state law enforcement database, conducting surveillance outside Johnson's house, inspecting license plate registrations, and verifying Johnson's identity by tracking him down at his job behind a Costco deli counter, SA Moynihan sought and obtained a warrant to search Johnson's home for CSAM and evidence of crimes involving child pornography. See Supp. App'x 5-6. The warrant authorized the seizure of any "records, documents, and items," including any electronic devices, constituting, in relevant part, "evidence, contraband . . . and property . . . used in violations of Title 18 U.S.C. § 2252A, relating to material involving the receipt, distribution, transportation and possession of child pornography." Supp. App'x 5. Records "bearing on the production . . . of any visual depictions of minors engaged in sexually explicit conduct as defined in 18 U.S.C. § 2256" were also subject to seizure. Supp. App'x 7. As for any electronic device found to contain CSAM, the warrant authorized, inter alia, seizure of evidence "of who used, owned or controlled" the device at the time such material was created, edited, or deleted; evidence of the times the device was used; and "[c]ontextual information necessary to understand" the material subject to seizure. Supp. App'x 8.

The search warrant was executed on March 20, 2018. HSI special agents seized "multiple computers, cell phones, tablets, cameras, thumb drives, and other electronic devices," and Johnson was charged with distributing child pornography the same day. App'x 27. A subsequent forensic review of the seized material, completed in June 2018, revealed approximately 8,816 videos and 6,931 images of CSAM on multiple devices, as well as other digital evidence falling within the search warrant's scope.

Originally charged with the distribution of child pornography, Johnson entered into a written plea agreement with the Government in November 2018 pursuant to which he ultimately pled guilty to a single count of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). 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. . . .

App'x 69. Pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), the parties stipulated to a term of imprisonment of 45 months. Johnson entered his plea on January 4, 2019. The United States District Court for the District of Vermont (Crawford, C.J.) imposed the 45-month sentence in May of 2019.

B. The 2019 Investigation

About a month later, SA Moynihan sent the National Center for Missing and Exploited Children ("NCMEC") copies of the contraband video and image files - the CSAM - 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.³ 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,⁴ so that newly seized CSAM can be compared with material in the NCMEC 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.⁵ 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.⁶

After conducting its review over the summer, NCMEC notified SA Moynihan that it had identified a video that was not already in its CSAM database. In an email on September 4, 2019, NCMEC informed SA Moynihan that the video, which depicted the sexual abuse of a toddler by an adult, 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.⁷ SA Moynihan 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." App'x 28. 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 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.⁸

The second warrant issued in September 2019. When the execution of that warrant turned up the bedding seen on video, the Government sought and obtained an indictment from the Grand Jury charging Johnson with production of child pornography in violation of 18 U.S.C. § 2251(a). The present prosecution ensued.

II. Procedural History

Before the district court, Johnson sought to suppress the digital data seized during the 2018 search and reviewed by NCMEC in 2019 (i.e., the CSAM video of his daughter and its associated metadata), as well as the fruits of the 2019 search of Johnson's home, including the seized bedding. As relevant to this appeal, Johnson argued that NCMEC, acting as a Government agent, violated the Fourth Amendment by searching data beyond the scope of the 2018 warrant for evidence of a new crime (i.e., production of child pornography, rather than distribution and possession). Even if NCMEC's search was within the scope of the initial warrant, Johnson further urged, it still violated the Fourth Amendment because it was not conducted within a reasonable time.

Johnson also sought dismissal of the 2019 indictment, arguing that the production charge was precluded by his 2018 plea agreement and that the Government had breached the agreement by prosecuting him again. Johnson argued that the new charge ran afoul of the Government's promise not to prosecute him in the District of Vermont "for any other criminal offenses known to the United States" as of the date it signed the plea agreement "committed by him in the District of Vermont relative to his knowing possession or distribution of child pornography." United States v. Johnson, No. 19-CR-140 (D. Vt.)...