United States v. Trader

981 F.3d 961

UNITED STATES of America, Plaintiff-Appellee,

v.Scott Joseph TRADER, Defendant-Appellant.

No. 17-15611

United States Court of Appeals, Eleventh Circuit.

November 25, 2020

Aileen Cannon, Emily M. Smachetti, U.S. Attorney Service - SFL, Christine Hernandez, U.S. Attorney's Office, HIDTA Task Force, Miami, FL, for Plaintiff-Appellee.

Michael Caruso, Federal Public Defender, Federal Public Defender's Office, Miami, FL, R. Fletcher Peacock, Federal Public Defender's Office, Fort Pierce, FL, for Defendant-Appellant.

Before WILLIAM PRYOR, Chief Judge, HULL and MARCUS, Circuit Judges.

WILLIAM PRYOR, Chief Judge:

This appeal requires us to decide whether the government needed a warrant to obtain a criminal suspect's email address and internet protocol addresses from a third party's business records. It also requires us to decide whether probable cause supported a warrant to search the defendant's house and whether a sentence of life imprisonment was an unreasonable punishment for his crimes involving child pornography. We conclude that the government did not need a warrant for the third party's business records, probable cause supported the warrant to search the defendant's house, and the sentence was reasonable. We affirm.

I. BACKGROUND

For years, Scott Trader recorded videos of himself sexually abusing his daughters and distributed the videos on the internet. The abuse occurred while one daughter was a preteen and the other was a toddler. When abusing his own children was not enough, Trader used messaging apps to send child pornography to other young girls and to solicit nude photos and videos from them. He exchanged child pornography with more than forty minors and engaged in sexually explicit conversations with more than a hundred apparent minors. And he took other opportunities when they presented themselves, like recording a video of himself exposing his daughter's young friend during a sleepover.

Trader came to the attention of the Department of Homeland Security on May 30, 2017, when a parent in North Carolina discovered that someone had sent his nine-year-old daughter child pornography and solicited nude photos from her. The conversation occurred on an app called SayHi, and the perpetrator's username was "Scott." The parent reported the conversation to his local police department, which referred the report to Homeland Security.

Homeland Security agents examined the nine-year-old's device and learned that "Scott" sent her a sexually explicit video that he said depicted himself and his daughter. He also sent a photo of his face. The agents observed that Scott's profile on SayHi disclosed his username on another messaging app, Kik. The associated Kik profile photo matched the photos of "Scott" on SayHi.

The investigation unfolded quickly. Because SayHi was based abroad but Kik was domestic, agents thought Kik would be more responsive to requests for information about the user. The agents sent Kik an emergency disclosure request seeking information about the user. Kik provided the user's email address and recently used internet protocol addresses. The email address associated with the account was "strader0227@yahoo.com." And the user had repeatedly logged into Kik from a cell phone using a particular internet protocol address over the last month.

Homeland Security next traced the internet protocol address to the internet service provider, Comcast. Agents sent Comcast an emergency disclosure request for the subscriber records associated with the repeated internet protocol address. Comcast obliged. The account was registered to Shelly Trader and located at an address on Edinburgh Drive in Port St. Lucie, Florida.

State records revealed that a person named Scott Trader had a driver's license associated with the mailing address, and his driver's license photo matched the photos from SayHi and Kik. A criminal records check revealed that Trader had been charged in December 2016 with molesting a victim younger than 12. And property records revealed that Shelly Trader-Bonanno and Leon Bonanno owned the Edinburgh Drive house, and Trader-Bonanno's age was consistent with her being Trader's mother.

Homeland Security used that information to apply for a warrant to search the Edinburgh Drive house. The warrant affidavit recited the steps of the investigation. It explained that "there were logons to the [Kik] account from" the internet protocol address associated with Trader's residence "starting 1 May 2017, through 31 May 2017, at 06:36 UTC." The warrant affidavit also explained that child pornography distributors and collectors "almost always possess and maintain their material ... in the privacy and security of their homes" and that traces of child pornography could likely be found through forensic examination of devices that had been used to access child pornography.

A federal magistrate judge issued the warrant shortly before midnight on May 31. Law enforcement executed the warrant that same night. They found a stash of electronic devices hidden behind a loose board under a storage cabinet in Trader's bedroom. Forensic examination of the devices revealed years’ worth of videos of Trader sexually abusing his daughters, along with thousands of images and videos of child pornography Trader had downloaded from the internet, plus archived messages in which Trader shared child pornography with others and solicited nude images and videos from young girls. The devices also contained conversations in which Trader described in graphic detail his abuse of his daughters and his plans to escalate that abuse in the future. He also encouraged two women to ignore their feelings of guilt, participate in abusing his daughters, and abuse their own daughters.

Officers arrested Trader. A grand jury indicted him for enticing a minor to engage in sexual activity, enticing a minor to produce a sexually explicit video, and possessing and distributing child pornography. 18 U.S.C. §§ 2251(a), (e) ; 2252(a)(2), (a)(4)(B), (b)(1)–(2); 2256(2); 2422(b). Trader moved to suppress the evidence from Kik and from the search of the Edinburgh Drive house. The district court denied the motion. Trader pleaded guilty to all the charges on the condition that he retained the right to appeal the denial of the motion to suppress and could withdraw his guilty plea if he succeeded on appeal.

The presentence report detailed that Trader had been caught engaging in similar behavior before. He was charged in 2012 with promoting a sexual performance by a child, possessing child pornography, and lewd behavior after a police officer discovered a stash of child pornography on Trader's laptop computer. But the more serious charges were dismissed, and Trader eventually pleaded no contest to felony child neglect. In December 2016, he was charged with molesting a victim younger than 12. That charge arose out of a September 2016 report by Trader's older daughter that Trader was molesting her. But Trader managed to keep custody of his daughters, and he continued to abuse them and collect child pornography while he was on bond awaiting prosecution for that crime.

At the sentencing hearing, the government played several pornographic videos of his daughters that Trader created. The government also played child pornography videos Trader had downloaded that involved sadomasochistic conduct, abuse of toddlers, and bestiality. The prosecutor summed up the rest of Trader's library of child pornography as containing "the most disturbing things that the [case] agent and I have ever seen." And the government played a recorded jail call during which Trader promised to kill the mother of one of his daughters if released. Last, the government presented the testimony of the mothers of Trader's daughters. Both women described the effects of Trader's abuse on the girls, and both asked the judge to impose a life sentence.

For his part, Trader presented the testimony of a forensic psychologist who explained that Trader was a pedophile who would always want to abuse children, but that he would have a low risk of abusing children if he received therapy in prison and was not released until age 60. The psychologist admitted that he was not aware that Trader continued molesting his daughters and downloading child pornography while on probation and bond, that he had over 100 victims, or that he threatened to dox his young victims if they did not continue sending him images. And he admitted that some of those facts raised the likelihood that Trader would reoffend. Relying on the psychologist's testimony, Trader asked for a 28-year sentence so that he would be released at age 60.

Trader's base offense level was 32, based on section 2G2.1 of the United States Sentencing Guidelines. He received two-level enhancements for distribution, commission of a sexual act or sexual contact, and being a parent of a minor involved in the offense; four-level enhancements for depicting an infant or toddler or sadistic or masochistic content and for having victims younger than 12; and a five-level enhancement for a pattern of behavior. He received a three-level reduction for acceptance of responsibility, producing an offense level of 48, which the guidelines treat as the maximum offense level of 43. His criminal history category was III, so his guideline-sentencing range was life imprisonment.

The district court sentenced Trader to life imprisonment for enticing a minor to engage in sexual activity, along with concurrent sentences of 240 months each for possessing and distributing child pornography and 360 months each for two counts of producing child pornography. The district court explained that it had "considered the advisory guidelines as well as the statutory factors and the arguments of Counsel." It viewed the most important statutory factors as the "serious nature of the offense," "the characteristics of the offender," and "the need to protect the public." The district court expressed "no confidence that [Trader] will...