15-4113
United States v. Castro

                     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 17th day of January, two thousand seventeen.

    PRESENT: DENNIS JACOBS,
             ROBERT D. SACK,
             SUSAN L. CARNEY,
                           Circuit Judges,

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    UNITED STATES OF AMERICA,
             Appellee,

                 -v.-                                               15-4113

    JOSE CASTRO,
             Defendant-Appellant.
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    FOR APPELLANT:                        MATTHEW B. LARSEN, Federal
                                          Defenders of New York, New York,
                                          NY.

    FOR APPELLEE:                         NOAH SOLOWIEJCZYK (with Karl
                                          Metzner on the brief), for Preet
                                          Bharara, United States Attorney


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                           for the Southern District of New
                           York, New York, NY.

     Appeal from a judgment of the United States District
Court for the Southern District of New York (Schofield, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the district court be
AFFIRMED.

     Jose Castro appeals from the judgment of the United
States District Court for the Southern District of New York
(Schofield, J.). A jury convicted Castro of transporting,
receiving, and possessing child pornography. The district
court sentenced Castro chiefly to six years in prison and
eight years of supervised release. We assume the parties’
familiarity with the underlying facts, the procedural
history, and the issues presented for review.

     Castro challenges the affidavit offered in support of
the search warrant application. The affidavit averred that
a computer program used by law enforcement to monitor
transmission of child pornography had downloaded four files
of child pornography from a computer located at Castro’s
home. Castro argues that there was serious reason to doubt
that the downloads ever took place, and that had the
doubtful circumstances been disclosed in the affidavit, the
magistrate judge would not have found probable cause
sufficient to justify a search warrant.

     Castro argues that these omissions warrant suppression
of evidence. See Franks v. Delaware, 438 U.S. 154 (1978).
“To suppress evidence obtained pursuant to an affidavit
containing erroneous information, the defendant must show
that: ‘(1) the claimed inaccuracies or omissions are the
result of the affiant’s deliberate falsehood or reckless
disregard for the truth; and (2) the alleged falsehoods or
omissions were necessary to the [issuing] judge’s probable
cause finding.’” United States v. Canfield, 212 F.3d 713,
717-18 (2d Cir. 2000) (quoting United States v. Salameh, 152
F.3d 88, 113 (2d Cir. 1998)).

     “[W]hether a person acted with ‘reckless disregard for
the truth’ is ‘a factual question of intent, and we
therefore review the court’s decision for clear
error’ . . . .” United States v. Rajaratnam, 719 F.3d 139,
153 (2d Cir. 2013) (quoting United States v. Trzaska, 111

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F.3d 1019, 1028 (2d Cir. 1997)). The “factfinder may infer
reckless disregard from circumstances evincing obvious
reasons to doubt the veracity of the allegations.” Id. at
154 (quoting United States v. Whitley, 249 F.3d 614, 621
(7th Cir. 2001)). Castro contends that such circumstances
are present here. The affiant testified that her usual
practice when investigating reports from the computer
program at issue in this case was to review copies of the
downloaded files in an automatically created folder. At
some point after this warrant was issued, the affiant
attempted to review the expected folder, but was unable to
locate it. Castro suggests that the affiant’s inability to
locate the folder after the warrant issued reveals that she
could not locate the folder before preparing the affidavit,
which should have given her reason to doubt the accuracy of
the report. He argues that the factfinder should have
inferred from these circumstances the affiant’s reckless
disregard of the truth.

     The district court rejected this argument, concluding
that the affiant credibly testified that she did not
remember if she followed her usual practice before preparing
the affidavit and that Castro had failed to show that this
omission was reckless or made with the intent to deceive.
We find no clear error in the district court’s finding that
the affiant lacked the mental state required for suppression
of the evidence gathered by virtue of the search warrant.

     For the foregoing reasons, and finding no merit in
Castro’s other arguments, we hereby AFFIRM the judgment of
the district court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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