     12-1086-cr
     United States v. Genin

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 7th day of May, two thousand thirteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                ROBERT D. SACK,
 9                              Circuit Judge,
10                JED S. RAKOFF,*
11                              District Judge.
12
13       - - - - - - - - - - - - - - - - - - - -X
14       UNITED STATES OF AMERICA,
15                Appellee,
16
17                    -v.-                                               12-1086-cr
18
19       RICHARD GENIN,
20                Defendant-Appellant,
21       - - - - - - - - - - - - - - - - - - - -X
22



                *
                  The Honorable Jed S. Rakoff, United States
         District Judge for the Southern District of New York,
         sitting by designation.
                                                  1
 1   FOR APPELLANT:             Clinton W. Calhoun, III, Calhoun
 2                              & Lawrence, LLP, White Plains,
 3                              New York.
 4
 5   FOR APPELLEE:              Sarah R. Krissoff (Brent S.
 6                              Wible, on the brief), for Preet
 7                              Bharara, United States Attorney
 8                              for the Southern District of New
 9                              York, New York, New York.
10
11        Appeal from a judgment of the United States District
12   Court for the Southern District of New York (Robinson, J.).
13
14        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
15   AND DECREED that the judgment of the district court be
16   AFFIRMED.
17
18        Richard Genin appeals from the judgment of the United
19   States District Court for the Southern District of New York
20   (Robinson, J.1), denying his motion to suppress. Genin
21   argues that the search warrant was not supported by probable
22   cause because the warrant affidavit failed to describe
23   sufficiently the videos that Genin had ordered from an
24   online retailer of child pornography. We assume the
25   parties’ familiarity with the underlying facts, the
26   procedural history, and the issues presented for review.
27
28        With respect to denial of the motion to suppress, we
29   review the district court’s factual findings for clear error
30   and review its conclusions of law de novo. See United
31   States v. Rodriguez, 356 F.3d 254, 257 (2d Cir. 2004).
32
33        The search warrant was supported by probable cause.
34   Although the warrant affidavit did not describe in detail
35   the videos that Genin referenced in his e-mails to the child
36   pornography website operator, the following information,
37   taken together, sufficed. An FBI analyst had reviewed those
38   videos and concluded that they met the definition of child
39   pornography in 18 U.S.C. §§ 2252(a)(4)(B) and 2256(2)(A).
40   “Nearly all” of the approximately 150 videos recovered from
41   the European child pornography website operator depicted


         1
              Judge Robinson decided the motion to suppress.
     When Judge Robinson left the bench in 2010, the case was
     assigned to Chief Judge Preska, who presided over the bench
     trial and sentencing.
                                  2
 1   minors engaging “in sexual acts, or . . . with their legs
 2   spread, or the camera lens zoomed in close on their pubic
 3   region, thereby clearly exposing the minor’s genitals.”
 4   Genin purchased a number of these videos. E-mails from
 5   Genin to the website operator referenced the ages of the
 6   girls in the videos, his desire to see “younger girls[,] and
 7   . . . to see them move, not simply pose.” Genin’s e-mails
 8   demonstrate his taste for sexually charged videos.
 9
10        The warrant affidavit’s specific description of these
11   e-mails and its characterization of approximately 150 videos
12   obtained by the FBI distinguish this case from the cases
13   Genin cites. In those cases, the warrant affidavits
14   contained only a perfunctory statement that the materials at
15   issue contained “child pornography,” United States v.
16   Groezinger, 625 F. Supp. 2d 145, 149-50 (S.D.N.Y. 2009), or
17   “children displaying a lewd and lascivious exhibition of the
18   genitals and pubic areas,” United States v. Jasorka, 153
19   F.3d 58, 59 (2d Cir. 1998) (per curiam).
20
21        The warrant affidavit therefore contained sufficient
22   facts from which the magistrate could conclude that there
23   was “a fair probability that contraband or evidence of a
24   crime w[ould] be found” in Genin’s possession. Illinois v.
25   Gates, 462 U.S. 213, 238 (1983).
26
27        For the foregoing reasons, and finding no merit in
28   Genin’s other arguments, we hereby AFFIRM the judgment of
29   the district court.
30
31                              FOR THE COURT:
32                              CATHERINE O’HAGAN WOLFE, CLERK
33




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