                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        OCT 2 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-50339

                Plaintiff-Appellee,             D.C. No.
                                                8:14-cr-00173-CAS-1
 v.

KEITH PRESTON GARTENLAUB, AKA                   MEMORANDUM*
Keith Preson Gartenlaub,

                Defendant-Appellant.

                   Appeal from the United States District Court
                       for the Central District of California
                   Christina A. Snyder, District Judge, Presiding

                     Argued and Submitted December 4, 2017
                              Pasadena, California

Before: WARDLAW and GOULD, Circuit Judges, and PIERSOL,** District
Judge.

      Keith Gartenlaub appeals his conviction for knowingly possessing child

pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). We have jurisdiction




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Lawrence L. Piersol, United States District Judge for
the District of South Dakota, sitting by designation.
under 28 U.S.C. § 1291, and we affirm.1

        1. There was sufficient evidence to sustain Gartenlaub’s conviction for

knowing possession of child pornography. Viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime—including knowledge—beyond a reasonable

doubt. The government presented sufficient evidence that Gartenlaub knew the

child pornography was present on his computers. See 18 U.S.C. § 2252A(a)(5)(B)

(requiring that the defendant must “knowingly possess[] . . . any . . . computer disk,

or any other material that contains an image of child pornography that has been . . .

transported using any means or facility of interstate or foreign commerce . . .

including by computer”).

        The government demonstrated that an individual intentionally downloaded

child pornography, copied it onto Gartenlaub’s hard drives, and organized and

reorganized the child pornography into folders reflecting the content of the videos.

See 18 U.S.C. § 2252A(a)(5)(B). A rational jury could have concluded beyond a

reasonable doubt that the user of the password-protected “Keith” account opened a

folder containing obviously child-pornographic filenames and then copied those

files onto a new computer, that “Keith” knowingly downloaded and organized the

child pornography collection in the first place, and that “Keith” was Keith


1
    The government’s motion to file an oversized brief, Dkt 51, is GRANTED.

                                          2
Gartenlaub himself. See United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir.

2010) (en banc); United States v. Willard, 230 F.3d 1093, 1095 (9th Cir. 2000)

(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

      2. The district court did not commit plain error by failing to suppress the

evidence from Gartenlaub’s computer as inadmissible for violating the Fourth

Amendment.2

      No controlling authority dictates the conclusion that the government’s

Foreign Intelligence Surveillance Act (“FISA”) search and subsequent use of

FISA-derived materials in a non-national security prosecution violates the Fourth

Amendment, such that the district court’s failure to follow it was plain error. See

United States v. Gonzalez-Aparicio, 663 F.3d 419, 428 (9th Cir. 2011), as amended

(Nov. 16, 2011). Our decision in United States v. Comprehensive Drug Testing,

Inc., 621 F.3d 1162 (9th Cir. 2010) (en banc), abrogation recognized by Demaree

v. Pederson, 887 F.3d 870 (9th Cir. 2018) (per curiam), is inapposite; it did not

decide the question presented by this case and, in fact, addressed no national

security concerns particular to the FISA context.

      The idea that the government can decide that someone is a foreign agent

based on secret information; on that basis obtain computers containing “[t]he sum


2
       Plain error review is the appropriate standard because Gartenlaub did not
assert the Fourth Amendment argument predicated on alleged misuse of the FISA
warrant before the district court.

                                          3
of [that] individual’s private life,” Riley v. California, 134 S. Ct. 2473, 2489

(2014); and then prosecute that individual for completely unrelated crimes

discovered as a result of rummaging through that computer comes perilously close

to the exact abuses against which the Fourth Amendment was designed to protect.3

However, the district court did not commit plain error by concluding otherwise.

      3. Based upon our independent review of the classified record evidence, we

conclude that the FISA warrant was supported by probable cause. The FISA

application and supporting materials demonstrated probable cause to believe that

Gartenlaub was an agent of a foreign power when the FISA order was issued. See

50 U.S.C. §§ 1801(b), 1821(1), 1824(a)(2).4 The district court did not err in

denying Gartenlaub a Franks hearing. The district court did not err in “finding that

the government did not intentionally or recklessly make false statements.” United

States v. Christie, 825 F.3d 1048, 1069 (9th Cir. 2016) (citation omitted); see

Franks v. Delaware, 438 U.S. 154 (1978).



3
       We thank amici curiae, Electronic Frontier Foundation and American Civil
Liberties Union, for their thought-provoking briefing.
4
       Although there is a split in the circuits as to what deference to afford a
district court’s determination that a FISA order was based on probable cause, we
do not resolve here which level of deference is appropriate as we are convinced
probable cause existed under either a de novo or an abuse of discretion standard of
review. See United States v. Turner, 840 F.3d 336, 340 (7th Cir. 2016) (applying a
de novo standard of review); United States v. Hassan, 742 F.3d 104, 139 n.29 (4th
Cir. 2014) (noting that the Fourth Circuit applies a de novo standard although the
Fifth and Second Circuits apply a more deferential standard).

                                           4
      4. We have conducted an in camera review of the underlying FISA

materials. We conclude that the disclosure of the FISA materials to Gartenlaub was

not “necessary to make an accurate determination of the legality of the search.” 50

U.S.C. § 1825(g); see also United States v. Ott, 827 F.2d 473, 476–77 (9th Cir.

1987) (finding “no indications of possible misrepresentation of fact, vague

identification of the persons to be surveilled, or surveillance records which include

a significant amount of non-foreign intelligence information, or any other factors

that would indicate a need for disclosure” (internal quotation marks omitted)). In

point of fact, disclosure was not necessary even under a less rigorous standard than

that proposed by the government. As well, the non-disclosure violated neither

Gartenlaub’s due process nor Brady rights. See Brady v. Maryland, 373 U.S. 83

(1963); Ott, 827 F.2d at 476–77.

      AFFIRMED.




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