18‐1468 (L)
United States v. Seaway, Lamere


                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                               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 24th day of January, two thousand twenty.

PRESENT:    PETER W. HALL,
            RICHARD J. SULLIVAN,
            JOSEPH F. BIANCO,
                        Circuit Judges.
_____________________________________

United States of America,

                                  Appellee,

                                  v.                           18‐1468; 18‐1916; 18‐2795

Tammy M. Martin,
                                  Defendant,

Clif J. Seaway, Tammy J. Lamere,

                  Defendants‐Appellants.
_____________________________________
For Appellant Seaway:                Melissa A. Tuohey, Assistant Federal Public
                                     Defender for Lisa A. Peebles, Federal Public
                                     Defender, Syracuse, New York.

For Appellant Lamere:                ROBERT G. WELLS, Syracuse, New York.

For Appellee:                        CARINA H. SHOENBERGER, Thomas R. Sutcliffe,
                                     Lisa M. Fletcher, Assistant United States
                                     Attorneys for Grant C. Jaquith, United States
                                     Attorney for the Northern District of New York,
                                     Syracuse, New York.

      Appeal from judgments of the United States District Court for the Northern

District of New York (Mordue, J.).

      UPON      DUE     CONSIDERATION,         IT   IS    HEREBY      ORDERED,

ADJUDGED, AND DECREED that the judgments of the district court are

AFFIRMED.

      Clif Seaway and Tammy Lamere appeal from judgments of the United

States District Court for the Northern District of New York (Mordue, J.) entered

on May 3, 2018 and June 18, 2018, respectively. We assume the parties’ familiarity

with the underlying facts, the record of prior proceedings, and arguments on

appeal, which we reference only as necessary to explain our decision to affirm.

                                        I.

   Defendant‐Appellant Clif Seaway was convicted following a jury trial of two


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counts of Conspiracy to Sexually Exploit a Child and ten counts of Sexual

Exploitation of a Child, in violation of 18 U.S.C. § 2251(a) and (e). The district court

principally sentenced Seaway to thirty years’ imprisonment on each count, to run

consecutively, for a total term of three hundred and sixty years’ imprisonment.

Seaway argues that the district court erred in denying his motion to suppress

evidence seized pursuant to a search warrant which he asserts was unsupported

by probable cause.

   Defendant‐Appellant Tammy Lamere was convicted following a guilty plea of

one count of Conspiracy to Sexually Exploit a Child and one count of Sexual

Exploitation of a Child, in violation of 18 U.S.C. § 2251(a) and (e). The district court

sentenced Lamere to thirty years’ imprisonment on each count, to run

concurrently, followed by fifteen years of supervised release. Lamere argues on

appeal that the district court improperly applied a four‐level enhancement,

applicable where a child pornography offense involves material portraying

sadistic or masochistic conduct, to her Sentencing Guidelines calculation. Lamere

further contends that her sentence is substantively unreasonable.

                                       II.

      “On an appeal from a ruling on a motion to suppress, we review a district

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court’s findings of historical fact for clear error, but analyze de novo the ultimate

determination of such legal issues as probable cause and the good faith of police

officials in relying upon a warrant.” United States v. Smith, 9 F.3d 1007, 1011 (2d

Cir. 1993). Here, we owe no particular deference to the district court’s conclusions,

and in reviewing whether there was probable cause for a search warrant our task

“is simply to ensure that the [issuing judge] had a substantial basis for concluding

that probable cause existed,” id., 9 F.3d at 1012 (internal quotation marks,

alterations, and citations omitted).     “A[n issuing judge’s] determination of

probable cause should be paid great deference by reviewing courts.” Illinois v.

Gates, 462 U.S. 213, 236 (1983) (internal quotation marks and citation omitted).

      “We review a sentence for procedural and substantive reasonableness,

which is akin to a ‘deferential abuse‐of‐discretion standard.’” United States v.

McCrimon, 788 F.3d 75, 78 (2d Cir. 2015) (quoting United States v. Cavera, 550 F.3d

180, 189 (2d Cir. 2008)).

                                       III.

      The search warrant authorizing a search of Seaway’s property was issued

based on information provided by Seaway’s nephew, William Raymond III, while

Raymond was incarcerated for crimes relating to his sexual conduct with a minor.

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In Raymond’s statement attached to the warrant application, he explained that he

observed images and videos of child pornography on Seaway’s computer while

residing at Seaway’s house in August through September of 2015. The statement,

which was given during a face‐to‐face meeting with an investigator, went into

detail about (among other things): the circumstances surrounding Seaway

showing Raymond the pornography, the content of the photos and videos, how

Raymond knew the age of the children in the photos, the color of the hard drive

on which Seaway stores his child pornography, Seaway’s password to his

computer, Seaway’s address, and the fact that Seaway had a light blue school bus

behind his trailer used for storage. Raymond also disclosed that, while he was

living with Seaway, Raymond “had a girlfriend at the time who was 13 years old”

and that this was the reason he was “locked up here at the jail.” Seaway App. 66.

      A few days after Raymond made this statement, investigating police

inquired about Seaway’s criminal history and discovered that he had been

arrested for acting “in manner [sic] to injure child [sic] less than 17,” Seaway App.

63, and had been the subject of an investigation into alleged sexual abuse of a

prepubescent minor. The police also verified the address Raymond gave as

Seaway’s residence and confirmed that Seaway still was associated with that

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address. Based on an application setting forth these facts, a county judge issued a

search warrant authorizing a search of Seaway’s home and property (including

the bus) approximately one month after Raymond made his statement. A few days

later, police executed the warrant and seized evidence used to support Seaway’s

indictments.

      Seaway argues that Raymond’s statements did not bear sufficient indicia of

reliability because nothing in the investigator’s affidavit attached to the warrant

application or in Raymond’s attached statement gave reason for the issuing judge

to believe that Raymond was reliable or telling the truth. Seaway takes particular

issue with the fact that the full extent of Raymond’s criminal history was

undisclosed in the warrant application and supporting materials and further

suggests that Raymond may have had a motive to lie to receive leniency on

pending criminal charges.

      When determining whether there is probable cause to support a search

warrant, “[t]he task of the issuing magistrate is simply to make a practical,

common‐sense decision whether, given all the circumstances set forth in the

affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons

supplying hearsay information, there is a fair probability that contraband or

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evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238.

Though we need not defer to the district court’s conclusion in this case, we accord

“great deference” to the issuing judge’s determination of probable cause, id. at 236,

and are instructed to resolve “doubtful or marginal cases” in harmony with the

“preference to be accorded to warrants,” Smith, 9 F.3d at 1012 (quoting United

States v. Ventresca, 380 U.S. 102, 109 (1965)).

      Given the totality of the circumstances and considering the deference we

give to the issuing judge, the district court was correct to deny the motion to

suppress. It is true that “a criminal informer is less reliable than an innocent

bystander with no apparent motive to falsify,” United States v. Gagnon, 373 F.3d

230, 235 (2d Cir. 2004) (internal quotation mark and citation omitted), so

Raymond’s reliability may be undermined by the fact that he was incarcerated at

the time of his interview. But we have also explained that “a face‐to‐face informant

must . . . be thought more reliable than an anonymous telephone tipster, for the

former runs the greater risk that he may be held accountable if his information

proves false.” Id. (internal quotation marks, alterations, and citation omitted).

While Raymond’s reliability may be undermined by his criminality, it is bolstered




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by his face‐to‐face interview and the fact that he had an incentive to tell the truth

lest he “be held accountable.” Id.

      Raymond’s reliability is further supported by the fact that he “testified

under threat of the criminal sanction for perjury,” and that his eye‐witness report

of the crime was incredibly detailed. United States v. Hernandez, 85 F.3d 1023, 1028

(2d Cir. 1996); see also id. (“We think that such a detailed eye‐witness report of a

crime is self‐corroborating; it supplies its own indicia of reliability.” (internal

quotation mark, alteration, and citations omitted)). His statement set forth in

detail his basis for knowing about the collection of child pornography on Seaway’s

computer, how and where the collection was stored, and what kinds of

photographs and videos Raymond directly observed. The fact that Raymond had

a criminal history not fully detailed in the warrant application or its attachments

does not erase these strong indications of reliability. This is particularly true given

that Raymond’s recent crimes – the nature of which were referenced in his

statement – do not bear on his honesty and, in fact, could help explain why Seaway

showed Raymond the pictures and videos in the first instance.

      Viewing the circumstances as a whole, it is clear that the issuing judge had

a “substantial basis” to conclude there was probable cause to search Seaway’s

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property. The district court did not err in denying Seaway’s motion to suppress

the evidence gathered as a result of the search warrant.

                                         IV.

      Lamere argues on appeal that the sentencing court improperly applied a

four‐level enhancement when it adopted the Guidelines calculation set forth in the

Presentence Investigation Report (“PSR”). Defense counsel did not object to the

PSR’s Guidelines calculations, which included this enhancement, either in

Lamere’s sentencing memorandum before the district court or at the sentencing

hearing. Lamere’s challenge to the calculation of the Guidelines is therefore

reviewed under a plain error standard. See, e.g., McCrimon, 788 F.3d at 78 (failure

to object to purported mistake in Guidelines calculation is reviewed for plain

error).


      To demonstrate plain error, Lamere must show that “(1) there is an error;

(2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the

error affected the appellant’s substantial rights, which in the ordinary case means

it affected the outcome of the district court proceedings; and (4) the error seriously

affects the fairness, integrity or public reputation of judicial proceedings.” United



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States v. Marcus, 560 U.S. 258, 262 (2010) (internal quotation marks, alterations, and

citation omitted).


      The enhancement at issue applies where “the offense involved material that

portrays . . . sadistic or masochistic conduct or other depictions of violence.”

U.S.S.G. § 2G2.1(b)(4). “We have . . . explained that this enhancement will apply

where (1) an image depicts sexual activity involving a minor and (2) the depicted

activity would have caused pain to the minor.” United States v. Bleau, 930 F.3d 35,

40 (2d Cir. 2019) (internal quotation marks and citation omitted). Both physical

and mental pain suffice to trigger the enhancement, and the analysis of whether a

depiction is “sadistic” under the enhancement is an objective one. Id. An objective

inquiry directs the district court to “determine only whether an outside viewer, as

he is watching, would perceive the depicted activity as causing physical or mental

pain to the minor during the course of the activity.” Id. at 41.


      The PSR explains that it applied the enhancement because of the depictions

of Lamere digitally penetrating the victim’s vagina and because of Lamere’s

involvement in producing a video of the victim performing oral sex on Seaway.

We have upheld the application of the enhancement to situations where a



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prepubescent child has been penetrated with a foreign object. See, e.g., United

States v. Delmarle, 99 F.3d 80, 83 (2d Cir. 1996) (finding no error in district court’s

determination that enhancement for sadistic depictions applied where

photograph showed young boy being penetrated by unidentified object). It was

not a “clear or obvious” error, Marcus, 560 U.S. at 262, if it was error at all, for the

district court to find that the material portrayed was sadistic. It was therefore not

plain error for the district court to apply the enhancement.

                                          V.

      Lamere next argues that her sentence was substantively unreasonable and

greater than necessary to accomplish the goals of sentencing. Lamere suggests

that because of her intellectual disabilities, she is less morally culpable than her

sentence reflects and that her thirty‐year sentence is effectively a sentence of life in

prison because of her health problems.

      “Upon review for substantive unreasonableness, we take into account the

totality of the circumstances, giving due deference to the sentencing judge’s

exercise of discretion, and bearing in mind the institutional advantages of district

courts.” United States v. Brown, 843 F.3d 74, 80 (2d Cir. 2016) (internal quotation

marks and citation omitted). In giving this due deference, we “provide relief only

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in the proverbial ‘rare case.’” United States v. Bonilla, 618 F.3d 102, 109 (2d Cir.

2010) (quoting United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009)).        “A

sentencing judge has very wide latitude to decide the proper degree of

punishment for an individual offender and a particular crime,” and “[w]e will . . .

set aside a district court’s substantive determination only in exceptional cases

where the trial court’s decision cannot be located within the range of permissible

decisions.” Cavera, 550 F.3d at 188, 188‐89 (internal quotation marks and citation

omitted).

      Lamere’s unfortunate personal circumstances do not render her sentence

substantively unreasonable. At sentencing, the district court indicated that it

thoroughly considered Lamere’s background and characteristics when imposing

the sentence. In sentencing Lamere to the statutory maximum of thirty years on

each count to run concurrently, the district court explained that it was doing so in

part because of Lamere’s repeated victimization of the minor victim over a period

of years. Notably, while the district court imposed the maximum sentences for

each conviction, it did not sentence Lamere to consecutive terms of imprisonment,

which thereby would have imposed the maximum available sentence of sixty

years. As the district court explained, the sentence “reflects the seriousness of

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[Lamere’s] offense and provides just punishment for [her] conduct, while

promoting respect for the law, and avoiding unwarranted sentencing disparities.”

Lamere App. 85.

      It is also worth noting that we have upheld much longer sentences for the

production of child pornography. In fact, we have explained that a sixty‐year

sentence, which may result in a de facto life sentence, “is within the realm of

punishments that this Court has upheld as reasonable for production of child

pornography.” Brown, 843 F.3d at 83. Given the heinous facts of this case and

given that we have upheld as reasonable much longer sentences for similar

conduct, we cannot say that the district court abused its discretion in imposing

Lamere’s sentence.

                                      ***

      We have considered Appellants’ remaining arguments and find them to be

without merit. We hereby AFFIRM the judgments of the district court.




                                    FOR THE COURT:
                                    Catherine O’Hagan Wolfe, Clerk of Court




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