     17-1699
     USA v. DiTomasso



 1                        UNITED STATES COURT OF APPEALS

 2                               FOR THE SECOND CIRCUIT

 3                                           ------

 4                                  August Term, 2018

 5   (Argued: January 23, 2019                                   Decided: July 30, 2019)

 6                                  Docket No. 17-1699

 7   _________________________________________________________

 8   UNITED STATES OF AMERICA,

 9                                                Appellee,

10                                  - v. -

11   FRANK DiTOMASSO,

12                                                Defendant-Appellant.

13   _________________________________________________________

14   Before: KEARSE, JACOBS, and SACK, Circuit Judges.

15               Appeal from a judgment entered in the United States District Court for

16   the Southern District of New York, Valerie E. Caproni, Judge, convicting defendant,

17   following a jury trial before then-Judge Shira A. Scheindlin, of producing child
 1   pornography, in violation of 18 U.S.C. §§ 2251(a) and (e), and transporting and

 2   distributing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(1) and (a)(2)(B).

 3   On appeal, defendant contends principally that the district court erred in denying his

 4   pretrial motion to suppress certain electronic communications found through

 5   searches, allegedly without his consent, by two internet service providers and by the

 6   National Center for Missing and Exploited Children, allegedly a government actor

 7   for Fourth Amendment purposes, see 56 F.Supp.3d 584 (2014); 81 F.Supp.3d 304

 8   (2015). He also contends that he was entitled to a hearing on his posttrial motion for

 9   a new trial on the ground of ineffective assistance of counsel, based on his attorney's

10   failure to call as a witness defendant's uncle who allegedly would have testified that

11   he, and not defendant, was guilty of the offense conduct. We find no merit in

12   defendant's contentions.

13                Affirmed.

14                      KIMBERLY J. RAVENER, Assistant United States Attorney,
15                          New York, New York (Geoffrey S. Berman, United
16                          States Attorney for the Southern District of New
17                          York, Margaret Graham, Anna M. Skotko, Assistant
18                          United States Attorneys, New York, New York, on
19                          the brief), for Appellee.
20

21                      THOMAS EDDY, New York, New York (Lori Cohen, Law
22                          Offices of Lori Cohen, New York, New York, on the
23                          brief), for Defendant-Appellant.

                                               2
 1   KEARSE, Circuit Judge:

 2                Defendant Frank DiTomasso appeals from a judgment entered in the

 3   United States District Court for the Southern District of New York, Valerie E. Caproni,

 4   Judge, convicting him, following a jury trial before then-Judge Shira A. Scheindlin, of

 5   producing child pornography, in violation of 18 U.S.C. §§ 2251(a) and (e), and of

 6   transporting and distributing child pornography, in violation of 18 U.S.C.

 7   §§ 2252A(a)(1) and (a)(2)(B). DiTomasso was sentenced principally to 25 years'

 8   imprisonment, to be followed by a life term of supervised release. On appeal, he

 9   contends principally that the district court erred in denying his pretrial motion to

10   suppress certain of his electronic communications found through searches, allegedly

11   without his consent, conducted by two Internet Service Providers ("ISPs")--America

12   Online ("AOL") and Omegle.com LLC ("Omegle")--and by the National Center for

13   Missing and Exploited Children ("NCMEC"), which he asserts is a government actor

14   for purposes of the Fourth Amendment. He also contends that the court abused its

15   discretion in denying, without a hearing, his motion for a new trial on the ground of

16   ineffective assistance of counsel, based on his attorney's failure to call as a witness

17   DiTomasso's uncle who allegedly would have testified that he, and not DiTomasso,

18   was guilty of the offense conduct. Finding no merit in DiTomasso's contentions, we

19   affirm.

                                                3
 1                                       I. BACKGROUND




 2                 Every computer that communicates with an internet network is assigned

 3   a unique Internet Protocol ("IP") address. See generally United States v. Bershchansky,

 4   788 F.3d 102, 105 n.2 (2d Cir. 2015). An IP address contains information with regard

 5   to, inter alia, the geographic location from which a device connects to the internet,

 6   although it does not identify the person using the device. ISPs may have additional

 7   information showing the identity of a person associated with a given IP address.

 8                 NCMEC is a private, nonprofit corporation, which aims to reunite

 9   families with missing children, reduce child sexual exploitation, and prevent the

10   victimization of children. It maintains an initiative whereby individual persons and

11   ISPs can report to NCMEC on a range of internet-based misconduct, including the

12   apparent presence of child pornography. ISPs that "obtain[] actual knowledge" of

13   unlawful conduct involving child pornography are required by § 2258A of Title 18 of

14   the United States Code to report that conduct to NCMEC, 18 U.S.C. § 2258A(a), and

15   they face substantial fines if they fail to do so, see id. § 2258A(e). However, the statute

16   provides that "[n]othing in this section shall be construed to require a[n ISP] . . . to . . .


                                                   4
 1   monitor any user," to monitor the "content of any [user] communication," or to

 2   "affirmatively seek facts or circumstances" involving child pornography violations,

 3   id. § 2258A(f). Once child pornography conduct has been reported to NCMEC,

 4   NCMEC is required to "forward" any such report to law enforcement.                 Id.

 5   § 2258A(c)(1).




 6   A. The Offense Conduct in this Case

 7                The evidence at DiTomasso's March 2016 trial, viewed in the light most

 8   favorable to the government, included the following. In March 2013, law enforcement

 9   agents in Florida received a report from NCMEC, forwarding a complaint from

10   "Dropbox," an internet file-sharing service that allows users to store files in online

11   data centers and allows anyone to access them on any computer by signing into the

12   user's account with the user's password. Dropbox complained that someone at a

13   specified IP address, using a specified email address and a specified pseudonym as

14   a user name, had been uploading child pornography to the internet. The Dropbox

15   complaint attached several files, including an image of female breasts, and two

16   images of a vagina from different vantage points.




                                               5
 1               Sergeant Richard Heaton of the sheriff's office in Pinellas County,

 2   Florida, sent a subpoena to the network that issued the specified IP address and

 3   obtained information as to, inter alia, the customer's name, email address, telephone

 4   number, and street address. The local law enforcement database indicated that the

 5   residents at that street address in 2013 were a mother, her adult son, and her

 6   daughter.

 7               Based on the pseudonym that had been adopted as the user name on the

 8   Dropbox account, the authorities inferred that the person uploading child

 9   pornography to the Dropbox account was the daughter--who at trial was referred to

10   by the pseudonym "Sarah." In August 2013, Heaton went to the address in question,

11   saw Sarah, who appeared to be about 13 or 14 years old (DiTomasso and the

12   government stipulated that Sarah was born in 1999), and interviewed the mother.

13   After the mother learned why Heaton was there, she gave permission for a forensic

14   examination of Sarah's computer.

15               Heaton and other State experts examined the computer and found on it

16   child pornography, including the same pictures of breasts and vagina that had been

17   sent to NCMEC by Dropbox, along with another picture of breasts and a video of a

18   female masturbating. The parties stipulated that the pictures and the video depicted

19   Sarah and that they had been made by Sarah.

                                              6
 1                The computer also contained logs of chats on "Skype"--an internet

 2   program that allows users to communicate with one another via text messages and/or

 3   video conferences--between Sarah and a "Frankie" whose Skype name was

 4   "frankiepthc." The letters "PTHC" as used on the internet are understood to stand for

 5   preteen hard-core, a type of child pornography. (E.g., Trial Transcript ("Trial Tr.")

 6   197.) Sarah's computer contained transcripts of Skype conversations in which

 7   frankiepthc had, inter alia, asked to see Sarah "head to toes naked," and evidence that

 8   in response to such a request in February 2013, Sarah that day uploaded to her

 9   Dropbox account still images of herself nude, and the next day uploaded a video of

10   herself nude and masturbating.

11                There was abundant evidence that frankiepthc was in fact DiTomasso.

12   First, frankiepthc's Skype profile as revealed on Sarah's computer said that his birth

13   date was September 21, 1979, his residence was in Manhattan, New York, and his

14   telephone number was 1 646-530-6864 (the "6864 telephone number").                 The

15   frankiepthc Skype account accessed the internet from an IP address for an account

16   that was subscribed to by Frank DiTomasso in Manhattan, at 2252 First Avenue,

17   Apartment 3A, New York, New York; and the 6864 telephone number was registered

18   to DiTomasso.


                                               7
 1                 Second, the parties stipulated that DiTomasso had previously pleaded

 2   guilty to and been convicted of attempted possession of an obscene sexual

 3   performance by a child under the age of 16 years. (At trial in this action he testified

 4   that he had in fact been innocent.) DiTomasso was thus a registered sex offender.

 5   The birth date shown on his sex offender registration was September 21, 1974; and his

 6   address on file with the New York State Sex Offender Registry was 2252 First Avenue,

 7   Apartment 3A, New York, New York ("DiTomasso's Residence" or the "First Avenue

 8   Apartment").

 9                 Further,   the   Skype     frankiepthc     account     had    provided

10   "frankieinnyc1@aol.com" as a related email address, an AOL account that DiTomasso

11   at trial admitted was his, set up by him (see Trial Tr. 735-36). An account associated

12   with "frankieinnyc1@aol.com" stated that the user was named "Frankie," was Italian,

13   was 6'1", weighed 160 pounds, and had brown hair and green eyes. DiTomasso's sex

14   offender registration described him as Italian, 6'1", 165 pounds, with brown hair and

15   green eyes.

16                 When DiTomasso was arrested, an Xbox--a computing device capable

17   of connecting to the internet--was seized from his residence. Forensic analysis

18   revealed that the Xbox had been used to search for child pornography and to access,


                                               8
 1   inter alia, Skype, Dropbox, AOL, and Omegle. The government introduced three

 2   complaints that Omegle had sent to NCMEC, flagging a user at an IP address

 3   assigned to DiTomasso's Residence for displaying child pornography to other users

 4   in videochats. The government introduced multiple NCMEC reports containing

 5   screenshots of child pornography transmitted by a user accessing the internet from

 6   an IP address associated with DiTomasso's Residence; several of the screenshots were

 7   overlaid with a smaller picture-in-picture image of a naked man masturbating.

 8   DiTomasso conceded that he was that man and had so photographed himself (see

 9   Trial Tr. 722-23), although he denied having had anything to do with joining his

10   photo with the pictures of child pornography.

11                In appealing his conviction, DiTomasso does not challenge the

12   sufficiency of the evidence or any aspect of the court's conduct of the trial. Rather, he

13   principally claims that his pretrial motion to suppress evidence of his emails and

14   chats should have been granted.




15   B. DiTomasso's Motion To Suppress

16                In December 2013, after the Florida authorities had examined Sarah's

17   computer and seen that frankiepthc's Skype account linked him to a New York


                                                9
 1   address, Heaton had contacted the local FBI office in Florida; that office contacted the

 2   FBI office in New York City, which led the remainder of the investigation. The New

 3   York FBI agents learned of, inter alia, DiTomasso's conviction in 2010 as a sex offender

 4   and learned from his probation officer that DiTomasso resided in Manhattan at 2252

 5   First Avenue, Apartment 3A.

 6                The agents learned from the New York City Police Department that since

 7   August 2012, AOL had twice sent NCMEC complaints of suspected receipt of child

 8   pornography by the address "frankieinnyc1@aol.com"--which were recorded in

 9   NCMEC reports numbered 1558963 and 1560137--and had twice informed NCMEC

10   of user complaints of sexually explicit messages referring to child abuse and child

11   pornography sent by that account. The agents also learned that on three occasions

12   between November 2012 and December 2013, Omegle's monitoring system had

13   flagged a user at an IP address associated with DiTomasso's Residence for displaying

14   child pornography to other users via video chat.

15                In January 2014, Sarah was interviewed by law enforcement agents in

16   Florida. During these sessions, she said she had met an individual named "Frankie"

17   on the social networking site Omegle; that she had communicated with "Frankie"

18   using the internet program Skype; and that "Frankie's" Skype username was


                                               10
 1   "frankiepthc." Sarah said she had told "Frankie" she was a minor during at least one

 2   Skype chat session. The Skype transcripts on Sarah's computer revealed that her

 3   chats with "Frankie" began in October 2012 and continued into February 2013 (see

 4   Government Exhibit ("GX") 706), and that Sarah had told "Frankie" in November that

 5   she was under the age of 14 (see, e.g., id. at 6-7).

 6                Sarah told the agents that during multiple chat sessions, "Frankie" had

 7   directed her to engage in various forms of sexually provocative behavior, such as

 8   revealing her genitals and using foreign objects to penetrate her genitals; that

 9   "Frankie" had instructed her to produce and upload to her Dropbox account sexually

10   explicit images and videos of herself; and that "Frankie" had helped her to find and

11   download child pornography on the internet, which she later uploaded to her

12   Dropbox account.

13                The Skype calls that Sarah received from "frankiepthc" were calls using

14   Skype's video function. At one interview session, the agents showed Sarah photo

15   arrays; from the array containing a picture of DiTomasso, she positively identified

16   him as "Frankie."

17                In January and February 2014, the government obtained warrants to

18   search the AOL account "frankieinnyc1@aol.com," the Omegle chat records for the


                                                  11
 1   user with an IP address associated with DiTomasso's Residence, and DiTomasso's

 2   Residence itself. The affidavits accompanying the applications principally cited (a)

 3   information gleaned from interviews with Sarah and from her computer, (b)

 4   information as to the Dropbox images that had been sent to NCMEC and forwarded

 5   by NCMEC to law enforcement, (c) the fact that DiTomasso was a registered sex

 6   offender, (d) the reports to NCMEC by AOL or Omegle as to child pornography

 7   messages or video chats received, maintained, or disseminated by the account

 8   "frankieinnyc1@aol.com" or other IP addresses assigned to DiTomasso's Residence,

 9   and (e) additional reports from Omegle of chats containing split-screen depictions of

10   child pornography in one segment of the screen, and in another segment a naked

11   adult male with his hands on his genitals. The search of DiTomasso's Residence

12   turned up, inter alia, the Xbox referred to in Part I.A. above, as well as hardware that

13   allows users to connect to the internet. Execution of that warrant also revealed certain

14   displays in DiTomasso's Residence that were consistent with holiday decorations that

15   had been described by frankiepthc in a Skype conversation with Sarah.

16                In March 2014, a grand jury returned an indictment charging DiTomasso

17   with production, transportation, and distribution of child pornography, in violation

18   of 28 U.S.C. §§ 2251(a), 2252A(a)(1) and (a)(2)(B) (a superseding indictment with the


                                               12
 1   final charges was filed in January 2016). In August 2014, DiTomasso moved to

 2   suppress the contents of electronic communications and all other evidence obtained

 3   through AOL searches of the "frankieinnyc@aol.com" [sic] account and Omegle

 4   searches of an IP address specified in the January warrant, as violative of his rights

 5   under the Fourth Amendment. He contended as a matter of law, submitting no

 6   sworn factual allegations, that he had a reasonable expectation of privacy in the

 7   contents of the emails and chats he had sent or received over AOL and Omegle; that

 8   those ISPs through their respective monitoring systems, had conducted warrantless

 9   searches of his communications; and that, in so doing, AOL and Omegle had acted

10   as agents of the government. He also sought suppression of any evidence obtained

11   through subsequent FBI searches, as fruit of the poisonous tree(s).

12                The government opposed the motion on various grounds, arguing, inter

13   alia, that DiTomasso had no reasonable expectation of privacy in his electronic

14   communications; that, in any event he had consented to the searches because the AOL

15   terms of use and the Omegle privacy policy advised users that communications were

16   monitored and could be turned over to law enforcement; that Omegle monitored

17   chats to protect its pecuniary and reputational interests and did not act as a

18   government agent in conducting those searches; and that, even if all of the


                                              13
 1   information obtained from the AOL and Omegle searches were excised, the search

 2   warrant applications presented probable cause to support the warrants' issuance. In

 3   support of its contentions, the government submitted, inter alia, declarations of

 4   officials from AOL and Omegle.

 5               Based on the parties' written submissions, the district court, in an

 6   Opinion and Order dated October 28, 2014, reported at 56 F.Supp.3d 584 ("2014

 7   Opinion"), denied so much of DiTomasso's motion as sought suppression of the

 8   search of his AOL emails but ordered further briefing and a hearing as to Omegle.




 9         1. AOL

10               As to AOL's operations and terms of use, the district court made the

11   following findings, which are not disputed. When AOL users send or receive emails

12   containing attachments, AOL runs monitoring systems to scan for illicit material,

13   including child pornography. Essentially, these systems look either for images that

14   exactly match a known child pornography image or for images that are sufficiently

15   similar to such images. If an attached file is an exact match, AOL automatically

16   generates a report that is sent to NCMEC; if an attached file is similar to a known

17   pornographic image but not an exact match, an AOL employee reviews the flagged


                                             14
 1   file and, if the employee determines that the file does in fact contain child

 2   pornography, a report is sent to NCMEC.

 3                Using these monitoring methods, AOL in August 2012 identified two

 4   emails (the "challenged searches") addressed to "frankieinnyc1@aol.com" that

 5   attached files containing child pornography. These two emails led to the AOL

 6   complaints that generated NCMEC Reports numbered 1558963 and 1560137.

 7                At the time of AOL's challenged searches, AOL's terms of service,

 8   privacy policy, and community guidelines provided, in relevant part, that AOL users

 9   must not "post content that contains explicit or graphic descriptions or accounts of

10   sexual acts" (AOL Terms of Service, Ex. I to Government's Memorandum in

11   Opposition to Defendant's Motion[] To Suppress ("Gov. Suppression Mem."), at 1);

12   that if "AOL has a good faith belief that a crime has been or is being committed by an

13   AOL user," the "contents of . . . online communications" may be disclosed by AOL

14   (AOL Privacy Policy, Ex. H to Gov. Suppression Mem., at 2); and that "AOL has zero

15   tolerance for illegal activity on the service" and "reserves the right to take any action

16   it deems warranted," including, but not limited to, "cooperat[ing] with law

17   enforcement" (AOL Member Community Guidelines, Ex. G to Gov. Suppression

18   Mem., at 1-2).


                                                15
 1               The district court found that AOL had made it clear that it intended

 2   actively to assist law enforcement, and that DiTomasso, in using AOL's services, had

 3   voluntarily agreed to that practice. Accordingly, although finding that AOL's

 4   searches constituted government searches, the court concluded that they did not

 5   violate DiTomasso's Fourth Amendment rights because he had consented, and that

 6   NCMEC Reports 1558963 and 1560137 would be admissible at trial. See 2014 Opinion,

 7   56 F.Supp.3d at 597.




 8         2. Omegle

 9               The district court also found that DiTomasso had consented to the

10   monitoring done by Omegle but found it unclear whether that monitoring, like

11   AOL's, was meant to perform a law enforcement function. The court scheduled a

12   hearing for testimony as to the motivation for Omegle's monitoring, i.e., whether its

13   screening of chats was a "private search, outside the bounds of constitutional

14   protection, or whether it was a search carried out at the behest of law enforcement,

15   which would trigger Fourth Amendment scrutiny." 2014 Opinion, 56 F.Supp.3d

16   at 597-98 (internal quotation marks omitted). After a hearing at which Omegle's

17   founder and operating officer testified with regard to the impetus for and contours


                                              16
 1   of Omegle's monitoring policy, the court, in a January 26, 2015 Opinion and Order

 2   reported at 81 F.Supp.3d 304 ("2015 Opinion"), rejected DiTomasso's contention that

 3   Omegle's monitoring program served no purpose other than to ferret out evidence

 4   of criminal activity and thus constituted governmental action, see id. at 309-11. The

 5   court instead found credible the nongovernmental reasons given for the Omegle

 6   policy, and it denied DiTomasso's motion to suppress any Omegle-generated reports,

 7   ruling that "Omegle's monitoring constituted a purely 'private search,' beyond the

 8   reach of the Fourth Amendment." Id. at 306.




 9   C. Posttrial Proceedings

10                Following the jury's verdict finding him guilty of the child pornography

11   crimes charged against him, DiTomasso moved before Judge Caproni, to whom the

12   case had been reassigned following Judge Scheindlin's retirement from the bench, for

13   a new trial. He asserted that his attorney had denied him effective assistance by, inter

14   alia, failing to call as a witness DiTomasso's uncle who would have claimed complete

15   responsibility for the offense conduct at issue and thereby exonerated DiTomasso.

16   That motion was denied. (See Part II.B. below.)




                                               17
 1                DiTomasso was thereafter sentenced principally to 25 years'

 2   imprisonment--the statutory minimum for a person convicted of production of child

 3   pornography after a prior child pornography conviction, see 18 U.S.C. § 2251(e)--to

 4   be followed by a life term of supervised release. This appeal followed.




 5                                       II. DISCUSSION




 6                On appeal, DiTomasso contends principally that the district court erred

 7   in finding that the searches of his emails and/or chats by AOL and/or Omegle did not

 8   violate his Fourth Amendment rights because DiTomasso had consented to those

 9   searches (see DiTomasso brief on appeal at 23-34), arguing that the court had no basis

10   for its findings of consent (see, e.g., id. at 28-32); and he contends that his rights were

11   violated by NCMEC (see id. at 35-42). He also contends that he should have been

12   granted a new trial because he received ineffective assistance of counsel. We reject

13   these contentions for the reasons that follow.




                                                 18
 1   A. Denial of the Suppression Motion

 2                DiTomasso's appellate Fourth Amendment contentions with respect to

 3   AOL, Omegle, and NCMEC are meritless on various grounds.




 4         1. AOL

 5                DiTomasso's contention that the district court erred in ruling that

 6   NCMEC Reports 1558963 and 1560137, generated from the two AOL complaints

 7   resulting from the challenged searches, were admissible based on its finding that

 8   DiTomasso had consented to AOL's searching his emails, provides no basis for relief,

 9   regardless of whether there was consent, for the searches of those emails played no

10   material role in the proceedings.      First, those NCMEC reports--and the AOL

11   complaints on which they were based--were not offered or admitted at trial.

12                Second, to the extent that DiTomasso argues that even though those

13   complaints were not used at trial they were used to secure search warrants leading

14   to evidence against him, and that the resulting evidence was fruit of the poisonous

15   tree, his argument is also without merit. When "deciding whether probable cause

16   exists for a search warrant, a judge must determine whether there is a fair probability

17   that contraband or evidence of a crime will be found in a particular place." United


                                               19
 1   States v. Salameh, 152 F.3d 88, 112-13 (2d Cir. 1998) (internal quotation marks omitted),

 2   cert. denied 526 U.S. 1028 (1999). This determination requires only "'a practical,

 3   common-sense decision'" as to that probability, "'given all the circumstances set forth in

 4   the affidavit.'" United States v. Martin, 426 F.3d 68, 74 (2d Cir. 2005) (quoting Illinois

 5   v. Gates, 462 U.S. 213, 238 (1983) (emphasis in United States v. Martin)), cert. denied, 547

 6   U.S. 1192 (2006). If a search warrant application contains erroneous or inappropriate

 7   information, our question becomes, "after putting aside" the improvidently included

 8   information, "whether . . . there remains a residue of independent and lawful

 9   information sufficient to support probable cause." United States v. Canfield, 212 F.3d

10   713, 718 (2d Cir. 2000) (internal quotation marks omitted). That question is easily

11   answered in the affirmative here.

12                While DiTomasso suggests that it was the challenged searches by AOL

13   (or Omegle) that "spawned the NCMEC reports on which the investigation and

14   prosecution was [sic] based" (DiTomasso brief on appeal at viii; id. at 23), the record

15   makes clear that the investigation had gone on for many months before the federal

16   government was aware of the AOL and Omegle complaints to NCMEC. The NCMEC

17   report leading up to this case was sent to local law enforcement in Florida in March

18   2013; it relayed a complaint that had been made to NCMEC not by AOL or Omegle


                                                 20
 1   but by Dropbox. That report led to Sergeant Heaton's interview of Sarah's mother in

 2   August 2013, and the ensuing forensic examination of Sarah's computer by Florida

 3   law enforcement. The FBI, which learned of the AOL complaints from New York

 4   police, was not involved until December 2013, some nine months after the

 5   investigation had begun. It is thus clear that the AOL and Omegle searches did not

 6   precipitate this investigation of DiTomasso.

 7                Independent of any complaints to NCMEC by AOL, the search warrant

 8   applications, as described in Part I.B. above, cited, inter alia, the data found on Sarah's

 9   computer, the Dropbox pornographic images of Sarah, the statements Sarah made to

10   the investigators describing her communications and video chats with frankiepthc,

11   Sarah's positive photo identification of DiTomasso as frankiepthc, the fact that

12   DiTomasso was a registered sex offender, and several complaints made to NCMEC

13   by Omegle. Thus, even without consideration of the AOL complaints, the search

14   warrant applications showed probable cause for the issuance of the warrants.

15                Accordingly, we need not reach the question of whether the district court

16   erred in finding that DiTomasso had consented to AOL's searches of his emails,

17   because if there was any error in the denial of DiTomasso's motion to suppress the

18   AOL-generated NCMEC reports, it was beyond a doubt harmless.


                                                 21
 1         2. Omegle

 2                DiTomasso also contends that the district court erred in finding that he

 3   "'voluntarily agreed to . . . Omegle's policies.'" (DiTomasso brief on appeal at 31

 4   (quoting 2014 Opinion, 56 F.Supp.3d at 596).) However, that quoted fragment

 5   misrepresents the court's rationale for denying the motion to suppress the Omegle-

 6   generated NCMEC reports. As to Omegle, the court said

 7                there is no question that DiTomasso voluntarily agreed to . . .
 8                Omegle's policies. The only question is what he consented to by
 9                doing so,

10   2014 Opinion, 56 F.Supp.3d at 596 (emphasis in original), and scheduled further

11   proceedings, saying that, on the record as it stood, "I cannot conclude that" the

12   Omegle searches were conducted "in a law enforcement capacity," id. (emphases added).

13                Fourth Amendment principles governing searches and seizures apply

14   only to "governmental action" and are thus "wholly inapplicable to a search or

15   seizure, even an unreasonable one, effected by a private individual not acting as an

16   agent of the Government or with the participation or knowledge of any governmental

17   official." United States v. Jacobsen, 466 U.S. 109, 113 (1984) (internal quotation marks

18   omitted).   A "search conducted by private individuals at the instigation of a

19   government officer or authority" may sometimes be attributable to the government


                                               22
 1   "for purposes of the Fourth Amendment," Cassidy v. Chertoff, 471 F.3d 67, 74 (2d Cir.

 2   2006); but private actions are generally "attributable to" the government only where

 3   "there is a sufficiently close nexus between the State and the challenged action of the

 4   . . . entity so that the action of the latter may be fairly treated as that of the State itself,"

 5   United States v. Stein, 541 F.3d 130, 146 (2d Cir. 2008) (internal quotation marks

 6   omitted). The requisite nexus is not shown merely by government approval of or

 7   acquiescence in the activity, or by the fact that the entity is subject to government

 8   regulation.    "'The purpose of the [close-nexus requirement] is to assure that

 9   constitutional standards are invoked only when it can be said that the [government]

10   is responsible for the specific conduct of which the [accused] complains.'" Id. at 146-47

11   (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (emphasis in Blum)); see, e.g.,

12   Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 614 (1989) ("Whether a private

13   party should be deemed an agent or instrument of the Government for Fourth

14   Amendment purposes necessarily turns on the degree of the Government's

15   participation in the private party's activities . . . .").

16                 The need to determine whether Omegle conducted its searches as an

17   agent or instrument of the government was what led the district court to order a

18   hearing to receive testimony from Omegle's founder and operating officer as to


                                                    23
 1   Omegle's monitoring motivations. See 2014 Opinion, 56 F.Supp.3d at 597-98. After

 2   considering that testimony, the court ruled that "Omegle's monitoring constituted

 3   a purely 'private search,'" and was therefore "beyond the reach of the Fourth

 4   Amendment," 2015 Opinion, 81 F.Supp.3d at 306.

 5               Thus, the motion to suppress the Omegle-generated reports was denied

 6   on the private-search basis alone. That rationale is not challenged in DiTomasso's

 7   brief on appeal, and we accordingly do not disturb the court's decision.




 8         3. NCMEC

 9               Finally, on appeal, DiTomasso argues that NCMEC is a government actor

10   whose review of his AOL emails and Omegle chats--after AOL and Omegle had

11   submitted their respective reports to NCMEC--violated his Fourth Amendment rights

12   by exceeding the scope of the AOL and Omegle searches. (See DiTomasso brief on

13   appeal at 35-42.) In so arguing, DiTomasso relies on decisions in United States v.

14   Ackerman, 831 F.3d 1292 (10th Cir. 2016) ("Ackerman") and United States v. Keith, 980

15   F.Supp.2d 33 (D. Mass. 2013) ("Keith"), which found that NCMEC had conducted

16   searches that exceeded the scope of the searches conducted by the reporting ISP, see




                                              24
 1   Ackerman, 831 F.3d at 1306, or had "expanded the review by opening the file and

 2   viewing (and evaluating) its contents," Keith, 980 F.Supp.2d at 43.

 3                However, DiTomasso did not argue in the district court that NCMEC

 4   had engaged in such conduct with respect to the AOL and Omegle complaints at

 5   issue here. While he claims on appeal that he did make such an argument, he

 6   acknowledges that his "notice of motion failed to formally denominate . . . []NCMEC[]

 7   as an independent actor in the warrantless searches" (DiTomasso brief on appeal at 3).

 8   He argues that the issue of whether NCMEC was a government actor was raised in

 9   his suppression motion memorandum because "Appellant headed his first point 'The

10   Information That AOL And Omegle Included In the Cyber Tips They Sent To NCMEC

11   Was Constitutionally Protected From Disclosure.'"           (Id. (quoting DiTomasso

12   Memorandum of Law in Support of Motion To Suppress ("DiTomasso Suppression

13   Mem.") at 3 (emphasis in brief on appeal)).) But that heading itself does not suggest

14   that there was any search by NCMEC, or that NCMEC was a government actor. And

15   the argument made in that first section contains no mention whatever of NCMEC.

16   The only other place that DiTomasso's brief on appeal cites as having raised an issue

17   as to the status of NCMEC in the district court is a sentence that the brief says

18   "argu[es] that '. . . the ISPs and NCMEC certainly qualify as the agents and instruments


                                               25
 1   of the government'" (DiTomasso brief on appeal at 3 (quoting DiTomasso Suppression

 2   Mem. at 12 (emphases in brief on appeal)). But that sentence contains no factual

 3   representations as to acts by NCMEC and is buried in a section of DiTomasso's

 4   memorandum called "The Searches By The ISPs Constitute Government Action"

 5   (DiTomasso Suppression Mem. at 7).

 6                Unsurprisingly, given these perfunctory references to NCMEC, the

 7   district court made no ruling with respect to whether NCMEC, after receiving the

 8   complaints from AOL and Omegle, had engaged in any search of its own, or had

 9   opened the files they received and reviewed or evaluated the contents, or had acted

10   as a government agent. And equally unsurprisingly, given DiTomasso's lack of any

11   apparent serious focus on NCMEC, DiTomasso did not move for reconsideration to

12   suggest that the court had overlooked any significant issue.

13                DiTomasso having made no effort in the district court to develop a

14   record as to any conduct by NCMEC other than its forwarding of reports to law

15   enforcement, there is no foundation for his appellate contention that there was action

16   by NCMEC that violated his Fourth Amendment rights.

17                                          *****




                                              26
 1                In sum, DiTomasso has proffered no viable basis for disturbing the

 2   district court's denial of his motion to suppress.




 3   B. DiTomasso's Ineffective-Assistance-of-Counsel Claim

 4                DiTomasso's trial ended in March 2016. In May, DiTomasso sent a

 5   handwritten letter to the district court alleging misrepresentations at trial by the

 6   government and complaining that his attorney lacked sufficient knowledge as to, inter

 7   alia, the capability of an Xbox to access Skype. The district court had the letter

 8   docketed as a motion for a new trial, granted a request by DiTomasso's attorney to be

 9   relieved as counsel, appointed new counsel for DiTomasso, and set a schedule for the

10   filing of posttrial motions. Thereafter, represented by new counsel, DiTomasso

11   formally moved pursuant to Fed. R. Crim. P. 33 for a new trial, contending that he

12   had been denied constitutionally effective assistance of counsel.

13                Rule 33 provides that the district court may "vacate any judgment and

14   grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). The

15   discretion so conferred should be used "sparingly," and only "in the most

16   extraordinary circumstances"; the "ultimate test on [such a] motion is whether letting




                                               27
 1   a guilty verdict stand would be a manifest injustice." United States v. Ferguson, 246

 2   F.3d 129, 134 (2d Cir. 2001) (internal quotation marks omitted).

 3                In order to succeed on a claim that he has been denied constitutionally

 4   effective assistance of counsel, the defendant must show both (a) "that counsel's

 5   representation fell below an objective standard of reasonableness" and (b) "that there

 6   is a reasonable probability that, but for counsel's unprofessional errors, the result of

 7   the proceeding would have been different." Strickland v. Washington, 466 U.S. 668,

 8   688, 694 (1984). Trial counsel's "[a]ctions or omissions . . . that might be considered

 9   sound trial strategy," including decisions not to "call specific witnesses--even ones

10   that might offer exculpatory evidence--[are] ordinarily not viewed as a lapse in

11   professional representation." United States v. Best, 219 F.3d 192, 201 (2d Cir. 2000)

12   (internal quotation marks omitted), cert. denied, 532 U.S. 1007 (2001).

13                We review de novo the issues of whether the defendant has met the two

14   prongs of the Strickland test; we review the district court's ultimate decision on a Rule

15   33 motion for abuse of discretion. See, e.g., United States v. Guang, 511 F.3d 110, 119

16   (2d Cir. 2007). We also review for abuse of discretion the court's decision as to the

17   extent to which a hearing on a Rule 33 motion is needed. See generally United States

18   v. Forbes, 790 F.3d 403, 406, 411 (2d Cir. 2015).


                                                28
 1                DiTomasso in his Rule 33 motion, to the extent pertinent to this appeal,

 2   contended that he was denied constitutionally effective assistance because his

 3   attorney failed to call Robert Marcus, DiTomasso's uncle, as a witness at trial,

 4   asserting that Marcus "could have not only corroborated Mr. DiTomasso's trial

 5   testimony, but was willing to exonerate Mr. DiTomasso under oath at trial."

 6   (DiTomasso Memorandum in Support of Motion for a New Trial at 19.) In support

 7   of this contention, DiTomasso submitted an affirmation from his uncle that stated in

 8   pertinent part as follows:

 9                      10. When I was in the First Avenue Apartment, I had full
10                access to the Xbox and regularly . . . access[ed] the internet on a
11                number of devices . . . .

12                       11. I also had regular access to email and other internet
13                accounts that I had set up and helped set up in Frank's name. I . . .
14                regularly accessed and used accounts in Frank's name to access the
15                internet. I never thought that my online activities would come
16                back to harm Frank.

17                      ....

18                       13. When . . . discovery was provided to [DiTomasso's attorney]
19                and Frank, it became very obvious to both Frank and me that I had to
20                come forward and let someone know that I was the one who engaged in
21                the conduct, not Frank. . . .

22                      ....



                                                29
 1                      15. I contacted Frank's attorney, Lee Ginsberg. I informed
 2                him that Frank did not commit these crimes. I told Mr. Ginsberg that I
 3                was the person responsible for these crimes, not Frank. Mr. Ginsberg
 4                never asked me any questions, never made any inquiry into the
 5                how or why of my actions; he just brushed me aside. . . .

 6                      ....

 7                     20. After Frank's testimony, I wanted to testify, but Mr.
 8                Ginsberg told me he would not put me on the stand.

 9   (Affirmation of Robert Marcus dated September 12, 2016 ("Marcus Aff."), ¶¶ 10, 11,

10   13, 15, 20 (emphases added); see also id. ¶ 21 ("I told Frank what I would say and I am

11   sure that Frank told Mr. Ginsberg that I was going to accept full responsibility").)

12                In opposition to this motion, the government submitted, inter alia, a

13   declaration from DiTomasso's trial counsel Ginsberg, denying that Marcus had either

14   said he was guilty or said he wanted to so testify at trial. Ginsberg stated in part as

15   follows:

16                      33. Beginning in July of 2014 and continuing through June of
17                2016, counsel [was] . . . in almost daily communication with
18                Robert Marcus . . . [regarding] every aspect of Mr. DiTomasso's
19                defense . . . .

20                      ....

21                      35. Shortly after counsel's appointment . . . Mr. DiTomasso
22                began to claim that the Government had planted evidence in his
23                apartment . . . . [A]round October of 2015, Mr. DiTomasso began


                                                30
 1   to tell counsel . . . that if someone was responsible for the criminal
 2   activity, it was Mr. Marcus.

 3         36. Subsequently, Mr. Marcus began asking counsel
 4   hypothetical questions regarding what would happen if he "came
 5   forward." Counsel advised him that it was my belief that the
 6   Government would continue to prosecute Mr. DiTomasso . . . .

 7        37. Counsel also advised Marcus that he should have his
 8   own attorney. . . .

 9          38. Shortly thereafter, . . . [an attorney] was appointed to
10   represent Mr. Marcus. . . . [Marcus's attorney] advised [Marcus]
11   that because he was now represented all communication should
12   go through [his attorney]; this advice was disregarded by Mr.
13   Marcus.

14            39. At no point after the appointment of [Marcus's attorney]
15   . . . did Mr. Marcus state either that he was the true culprit or that he
16   wished to testify. Mr. Marcus would periodically ask what effect his
17   "coming forward" would have . . . but never expressed an actual desire
18   to "come forward" nor did he state that he committed the crimes for
19   which Mr. DiTomasso was charged.

20          ....


21          41. Based on conversations counsel had with Mr. Marcus
22   and Mr. DiTomasso and a review of phone calls between the two,
23   counsel was made aware that Mr. DiTomasso believed he would
24   be freed if his uncle took responsibility for these activities and that
25   he was pressuring Mr. Marcus to "come forward," which Mr.
26   Marcus refused to do . . . .

27          ....


                                    31
 1                       44. Mr. Marcus, who sat through the entire trial, never told
 2                counsel he wished to testify nor did counsel tell Mr. Marcus that I
 3                refused to put him on the stand. . . . Mr. Marcus's affirmation, in large
 4                part, is false . . . and simply an attempt to obtain a new trial for
 5                Mr. DiTomasso based upon events that never occurred.

 6   (Affidavit of Lee Ginsberg filed January 19, 2017, ¶¶ 33, 35-39, 41, 44 (emphases

 7   added).)

 8                In addition, the government pointed to a telephone conversation

 9   between DiTomasso and Marcus while DiTomasso was in jail awaiting trial, which

10   had been played for the jury at trial. In the following exchange, when DiTomasso

11   proposed to place all blame on Marcus, Marcus showed no inclination to agree:

12                       DiTomasso: If I have to testify . . . I basically have to you
13                know say, how can I put this, there's no easy way to put this, that
14                I basically have to try to say as much bad about you as possible.

15                       Marcus: . . . I don't think that would be a good idea.

16   (Government Memorandum in Opposition to Motion for a New Trial at 18 (emphasis

17   added); see Trial Tr. 786-87.)

18                At the hearing on DiTomasso's Rule 33 motion, the government also

19   noted that in the final pretrial conference in 2016, a week before the then-scheduled

20   start of trial, when DiTomasso requested an adjournment so that Marcus would be

21   able to attend, the court denied the request, saying


                                                 32
 1                "'He is not a necessary witness. I realize he's family support, but
 2                it is not as if this is the key witness in the trial. In no way has
 3                anybody told me this is a key witness.'"

 4   (Hearing Transcript, April 21, 2017 ("Rule 33 Motion H.Tr."), at 6 (quoting Pretrial

 5   Conference, January 25, 2016, at 5-6).) The government pointed out that although

 6   DiTomasso had shown himself "well able to address the Court sua sponte on other

 7   occasions and in other conferences," he made "no argument" at that point to inform

 8   the court that Marcus could in any way be an important witness. (Rule 33 Motion

 9   H.Tr. 6.)

10                DiTomasso's new attorney, Ms. Cohen, argued at the hearing that

11   DiTomasso's former counsel "ineffectively represent[ed] Mr. DiTomasso at the trial

12   . . . . once Robert Marcus came to [DiTomasso's trial counsel] and indicated to him that

13   he was the real perpetrator in this case" (Rule 33 Motion H.Tr. 2-3 (emphasis added)),

14   but she conceded the district court's point that "that doesn't mean he confessed" (id.

15   at 3; see id. ("MS. COHEN: No, it does not.")). And although defense counsel also

16   argued that the case against DiTomasso "was substantially circumstantial" (id.), the

17   court responded that the circumstantial evidence was "overwhelming" and that there

18   was also "a fair amount of direct evidence" (id.; see id. at 4 ("MS. COHEN: I would




                                               33
 1   say, your Honor, the only direct evidence are the video chats. THE COURT: That

 2   would be the evidence I would be talking of." (emphasis added)).

 3                After hearing additional argument, the court denied the motion, stating

 4   principally as follows:

 5                [A]n attorney's decision not to call a particular witness for tactical
 6                reasons does not satisfy the standard for ineffective assistance. . . .

 7                       Thus, even if . . . Marcus had told Mr. Ginsberg that he was
 8                the guilty party and that his nephew was entirely innocent, the
 9                decision not to call Marcus would not establish ineffective
10                assistance.

11                       In this case, though, there is substantial reason to question
12                that those facts are accurate. First, Mr. Ginsberg, as an officer of
13                the court, denies that Marcus told him that he, not the defendant,
14                was the guilty party.

15                       Second, the undisputed facts tend to confirm that neither
16                Mr. Ginsberg nor Mr. DiTomasso believed that Marcus was a potential
17                witness. The jail conversation between DiTomasso and Marcus
18                confirms that defendant wanted to pursue a strategy of pointing the
19                finger at his uncle, not that his uncle was prepared to state under oath
20                that he had engaged in a very elaborate job of framing his nephew, but
21                was now ready to testify and confess to the crimes.

22                       Further, it is undisputable that Mr. DiTomasso raised many
23                issues regarding his defense directly with Judge Scheindlin, but
24                when it came time to discuss whether there would be a defense case, he
25                did not mention that his uncle had confessed to his attorney and should
26                be called as a witness. To the contrary, he made clear that he, the
27                defendant, was the only potential witness in his behalf.

28   (Rule 33 Motion H.Tr. 13-14 (emphases added).)

                                                 34
 1                The court also found it significant that when DiTomasso made his first

 2   posttrial complaint about Ginsberg's performance, in his May 2016 letter to the court,

 3   he "focused entirely on his view that an [Xbox] cannot do the things the trial

 4   witnesses said it did. That was the issue that he believed deprived him of a fair trial."

 5   (Id. at 14.) In that letter, DiTomasso "did not raise" any semblance of "his current

 6   claim that his lawyer was inept because he failed to call his [uncle] as a witness." (Id.)

 7                The court thus properly concluded that Ginsberg's performance was not

 8   deficient, finding, without need for live testimony, (a) that Marcus's conclusory

 9   assertions--"I was the one who engaged in the conduct, not Frank" (Marcus Aff. ¶ 13

10   (emphasis added)), and "I told [DiTomasso's trial counsel] that I was the person

11   responsible for these crimes, not Frank" (id. ¶ 15 (emphasis added))--did not constitute

12   a confession; (b) that the record was replete with circumstantial evidence--in the

13   telephone conversation between DiTomasso and Marcus, and in DiTomasso's

14   statements to the court both shortly before and shortly after trial--supporting

15   Ginsberg's declaration that Marcus had not told Ginsberg either that Marcus was

16   guilty of the acts attributed to DiTomasso or that Marcus wanted to testify at

17   DiTomasso's trial.




                                                35
 1                Rather, the record supports the conclusion that neither DiTomasso nor

 2   Marcus had any belief that Marcus was willing to testify at DiTomasso's trial to say

 3   that Marcus had performed all of the acts at issue. Indeed, even DiTomasso's new

 4   attorney apparently had no such belief. She stated:

 5                I think their thinking was they would go to trial, Mr. DiTomasso
 6                would go to trial, and if he was acquitted, then fine, Mr. Marcus didn't
 7                have to get on the stand and admit his culpability. But once Mr.--if
 8                Mr. DiTomasso got convicted, then Mr. Marcus, the true perpetrator,
 9                would come forward . . . .

10   (Rule 33 Motion H.Tr. 7-8 (emphases added).) Plainly a plan to have Marcus testify

11   only "if" and "[w]hen" DiTomasso had been convicted showed no willingness by

12   Marcus to testify at DiTomasso's trial.

13                There was no error in the district court's conclusion that DiTomasso

14   could not establish that Ginsberg's not calling Marcus as a witness constituted

15   deficient performance.

16                Nor was there error in the court's view that--even if Marcus had been a

17   witness and testified in the manner suggested in his affirmation--there was no

18   reasonable probability that the outcome of DiTomasso's trial would have been

19   different. While there may be no reason to doubt Marcus's statement that "[w]hen"

20   he "was in the First Avenue Apartment" he had "full access to [DiTomasso's] Xbox


                                                 36
 1   and" DiTomasso's other devices and "accounts" (Marcus Aff. ¶¶ 10, 11), that fact

 2   could not exonerate DiTomasso. First, "full" access, is not the same as exclusive

 3   access. As the district court pointed out, the fact that Marcus may have engaged in

 4   child pornography activities does not mean that DiTomasso did not. (See Rule 33

 5   Motion H.Tr. 3.) Second, even if Marcus had resided with DiTomasso full time, he

 6   could not know what DiTomasso was doing every minute of every hour of the day

 7   and night; Marcus's statement that "Frank" did "not" perform any of the acts with

 8   which he was charged was a conclusory statement the truth of which Marcus could

 9   not know.     Further, DiTomasso's online communications with Sarah occurred

10   between October 2012 and, at the latest, August 5, 2013. (See, e.g., GX 706 (quoting

11   conversations from October 3, 2012, through February 1, 2013, and a message from

12   frankiepthc on August 5); see also Trial Tr. 202-04 (noting April 7, 2013 as the last date

13   of child pornography sharing from Sarah's computer).) Marcus was in no position

14   even to claim to know that DiTomasso did not perform the alleged acts during that

15   period, for he did not "move[] into the First Avenue Apartment" until "November of

16   2013" (Marcus Aff. ¶ 9). And finally, Sarah and frankiepthc had extended Skype chats

17   with video; in a photo array, Sarah identified DiTomasso as frankiepthc.




                                                37
 1                Thus, as the district court pointed out, even if in fact Marcus had planned

 2   to--and did--testify that he had performed the acts charged to DiTomasso, a flaw in

 3   the defense "premise" was "that either Mr. Marcus is guilty or Mr. DiTomasso is

 4   guilty, . . . ignor[ing] the possibility that they're both guilty" (Rule 33 Motion H.Tr. 3).

 5   DiTomasso's attorney responded that their argument was that having Marcus testify

 6   would have changed the outcome of the trial "whether they're both guilty or not."

 7   (Id.) Plainly, the court was not required to accept the premise that if both Marcus and

 8   DiTomasso were guilty, there was a reasonable probability that DiTomasso would not

 9   be found guilty.

10                In sum, we see no error in the district court's view that DiTomasso's

11   claim of ineffective assistance of counsel did not satisfy either prong of the Strickland

12   test. DiTomasso's contentions that he should have been granted a new trial in the

13   interest of justice and that the court could not properly deny his motion without

14   hearing live testimony are meritless.




                                                 38
1                                   CONCLUSION




2               We have considered all of DiTomasso's arguments on this appeal and

3   have found them to be without merit. The judgment of conviction is affirmed.




                                           39
