08-0572-cr
United States v. Cahill

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                   SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY
ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED A ND IS GOVERNED BY THIS COURT’S
LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER
PAPER IN W HICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN WHICH A
CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL APPENDIX OR
BE ACCOM PANIED BY THE NOTATION: “(SUM M ARY ORDER).” A PARTY CITING A SUM M ARY
ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER W ITH THE PAPER IN
W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL
UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE W H IC H IS
PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY
OF THE ORDER ON SUCH A DATABASE, THE CITATION M UST INCLUD E R EFERENCE TO THAT
DATABASE AND THE DOCKET NUM BER OF THE CASE IN W HICH THE ORDER W AS ENTERED.


       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 10 th day of December, two thousand nine.

PRESENT:         JOHN M. WALKER, JR.,
                 JOSEPH M. McLAUGHLIN,
                 REENA RAGGI,
                                          Circuit Judges.
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UNITED STATES OF AMERICA,
                                 Appellee,
                         v.                                           No. 08-0572-cr
SCOTT CAHILL,
                                 Defendant-Appellant.
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APPEARING FOR APPELLANT:                                  K IM P. B O N ST R O M , B onstrom &
                                                          Murphy, Shelter Island, New York.

APPEARING FOR APPELLEE:                           R IC HA RD C. TARLOW E, Assistant
                                                  United States Attorney (Daniel A. Braun,
                                                  Assistant United States Attorney, on the
                                                  brief), for Lev L. Dassin, Acting United
                                                  States Attorney for the Southern District of
                                                  New York, New York, New York.
       Appeal from the United States District Court for the Southern District of New York

(Stephen C. Robinson, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of conviction entered on February 1, 2008, is AFFIRMED.

       Defendant Scott Cahill appeals from his conviction after a bench trial on one count

of receiving and distributing child pornography, see 18 U.S.C. § 2252A(a)(2)(B), and one

count of possessing child pornography, see id. § 2252A(a)(5)(B), on the ground that evidence

obtained pursuant to an invalid search of his home should have been suppressed. Cahill also

challenges his 168-month sentence, asserting that the district court failed properly to consider

a pre-sentence report and the sentencing factors set forth in 18 U.S.C. § 3553(a). We assume

the parties’ familiarity with the facts and record of prior proceedings, which we reference

only as necessary to explain our decision to affirm.

       1.      The Search Warrant

       Cahill argues that the warrant authorizing the search of his home was invalid because

the supporting affidavit omitted material information. See Franks v. Delaware, 438 U.S. 154

(1978). Specifically, Cahill asserts that the affidavit’s failure to mention an exterior staircase

leading to a second-floor entrance to the house to be searched obscured the existence of two

separate residences. Cahill submits that disclosure of the staircase would have precluded a

finding of probable cause to search the entire house. We are not persuaded.

       We note first that Cahill’s failure to raise a Franks challenge before the district court

“operates as a waiver of the right to challenge the subsequent admission of evidence on that


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ground.” United States v. Klump, 536 F.3d 113, 120 (2d Cir. 2008) (internal quotation marks

omitted). Even if Cahill could clear this hurdle, his challenge fails because he cannot

demonstrate that “(1) the claimed inaccuracies or omissions [were] the result of the affiant’s

deliberate falsehood or reckless disregard for the truth; and (2) the alleged . . . omissions

were necessary to the issuing judge’s probable cause finding.” United States v. Canfield, 212

F.3d 713, 717-18 (2d Cir. 2000) (internal quotation marks and alterations omitted)

(describing standard for suppressing evidence under Franks v. Delaware, 438 U.S. at 171-

72).

       Cahill cannot demonstrate deliberate falsehood or reckless disregard for the truth

because the information known by the agent at the time he submitted the affidavit firmly

supported his conclusion that the house “appear[ed] to be a single-family dwelling.” Aff. at

3; see United States v. Falso, 544 F.3d 110, 126 (2d Cir. 2008) (“If additional information

– not mentioned in the affidavit – led the FBI to the qualified conclusion that ‘it appear[ed]’

that [defendant committed a particular act], it is hard to understand how the district court

could have been misled . . . .” (emphasis in original)). Specifically, the house had a single

mailbox and house number; one utility account, in the name of Cahill; and, according to a

commercial database check, no associated addresses that might suggest multiple dwellings.

Further, the agent had observed that the exterior staircase was accessible only from a fenced-

in area. Indeed, Judge Robinson found that the house was, in fact, used as a single-family

dwelling, just as the affidavit indicated. We detect no error, let alone clear error, in this

finding, given record evidence that (1) the house had one address number, one driveway, and


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one utility account; (2) the elevated entrance had no doorbell, intercom, or address number;

(3) Cahill used an internal stairway to access a laundry room in the basement; (4) Cahill

appeared at the downstairs entrance when law enforcement officials went to the home; and

(5) Cahill interpreted his restriction to “home confinement” to allow access to the entire

house. See In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 177, 198

(2nd Cir. 2008) (“When a defendant challenges the denial of a suppression motion, we

review the district court’s factual findings for clear error . . . .”). In light of the foregoing,

we identify no deliberate falsehood or reckless disregard for the truth by the affiant.

       We further conclude that the alleged omission was immaterial because the affidavit

would have supported the district court’s probable cause finding even if it had mentioned the

exterior staircase. See United States v. Awadallah, 349 F.3d 42, 65 (2d Cir. 2003) (“If the

corrected affidavit supports probable cause, the inaccuracies were not material to the

probable cause determination and suppression is inappropriate.”).

       Accordingly, the district court properly declined to suppress evidence discovered in

Cahill’s home.

       2.      The Sentence

       Cahill contends that the district court failed to consider adequately a pre-sentence

report recommending a below-Guideline sentence of 120 months based on Cahill’s alcohol

addiction, immaturity, below-average intelligence, and anger-management problems. The

argument is without merit. Judge Robinson explicitly referenced the pre-sentence report and

its recommendation; indeed, he paraphrased sections of the report during the sentencing


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hearing. The only plausible inference to be drawn from his statement that he read the

recommendation with interest but “didn’t understand it,” Sent. Tr. at 21, is that he strongly

disagreed with the recommended below-Guideline sentence.

       Cahill’s argument that the district court failed to consider the sentencing factors set

forth in 18 U.S.C. § 3553(a) is similarly baseless. Judge Robinson’s express listing of the

relevant factors was sufficient to demonstrate that he considered them. See United States v.

Brown, 514 F.3d 256, 264, 270 (2d Cir. 2008) (observing that sentencing judges are not

required to employ “robotic incantations” or “any particular formula” to demonstrate

consideration of § 3553(a) factors). Thus, we detect no error in the district court’s sentence.

       We have considered all of Cahill’s remaining arguments and conclude that they are

without merit. Accordingly, the judgment of the district court is AFFIRMED.

                             FOR THE COURT:
                             CATHERINE O’HAGAN WOLFE, Clerk of Court


                             By:




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