     Case: 16-30468   Document: 00513858533        Page: 1   Date Filed: 02/01/2017




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                    No. 16-30468                        FILED
                                                                 February 1, 2017
                                                                   Lyle W. Cayce
UNITED STATES OF AMERICA,                                               Clerk

             Plaintiff - Appellee

v.

GEORGE WILLIAM JARMAN,

             Defendant - Appellant




                Appeal from the United States District Court
                    for the Middle District of Louisiana


Before JOLLY, SMITH, and PRADO, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
      George Jarman conditionally pleaded guilty to the receipt and attempted
receipt of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2) and (b)(1).
He challenges the district court’s denial of both his motion to suppress evidence
obtained in the search of his home and his motion for reconsideration. He
contends that the district court erred because: (1) it should not have applied
the good faith exception to the exclusionary rule; (2) the search-warrant
affidavit for his home does not establish probable cause; and (3) the
Government’s delay in searching the computers seized from his home violated
the Fourth Amendment and Federal Rule of Criminal Procedure 41. Because
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                                  No. 16-30468
the good faith exception applies and the Government’s post-seizure delay did
not violate the Fourth Amendment, we AFFIRM.
                                        I.
      The FBI began investigating Jarman when Jason Collins, the co-owner
of a computer repair store, called FBI Special Agent (“SA”) Larry Jones in
November 2007. Collins told SA Jones that he suspected one of his customers
had child pornography on his hard drive. He said that the customer had
purchased a new computer and asked him to transfer the data from an old
computer’s hard drive onto it and to wipe the old hard drive clean. Collins’s
part-time employee, Charlie Wilson, performed the transfer at the customer’s
home. During the transfer, Wilson, who could see the file names, but not the
actual files being copied, noticed file names which appeared to indicate child
pornography. Wilson told Collins what he had seen, and Collins asked Wilson
to bring the old hard drive back to the store.
      Collins inspected that hard drive, finding several file names suggestive
of child pornography that he could not open and a video file in the root directory
depicting a male performing anal sex on a prepubescent male child. Collins
did not tell SA Jones the names of any of the alleged child pornography
computer files. But he told SA Jones that he did not believe that the video file
had been transferred to the new computer because it was on the hard drive’s
root directory. At the end of the interview, SA Jones asked Collins to keep the
customer’s hard drive until the FBI contacted him.
      SA Jones requested that an investigation be opened into the allegations,
and SA Thomas Tedder was assigned the case. Shortly thereafter, SA Tedder
began collaborating with Department of Justice (“DOJ”) attorneys on the case.




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                                        No. 16-30468
       In January 2008, SA Tedder re-interviewed Collins. Collins gave SA
Tedder the customer’s hard drive 1 and told him generally the same story he
told SA Jones. This time, however, Collins identified the customer as Jarman.
He also provided more detail about the video file he had seen. When he went
through the hard drive, Collins explained, he selected one suspected file and
copied it to his computer to view. That file contained a grainy image of an
adult male sodomizing a pre-pubescent child whom Collins believed to be under
the age of twelve. After viewing that file, Collins stopped looking at the drive
and contacted the FBI. Notably, Collins now claimed that he believed that
Wilson copied all of the old data—including the possible child pornography—
to Jarman’s new computer, even though he had previously stated that the video
file containing possible child pornography was not transferred to the new
computer. SA Tedder testified that he asked Collins about this inconsistency
and that Collins stood by his new conclusion.
       By March 2008, DOJ prosecutor Michael Yoon and SA Tedder had begun
drafting a search-warrant affidavit for Jarman’s home. While Yoon did most
of the drafting, SA Tedder corrected misunderstandings of fact and revised
language at least once.
       As of late March 2008, SA Tedder was aware of two investigations by
U.S. Immigration and Customs Enforcement (“ICE”) that implicated Jarman.
In the first investigation, which concerned the child pornography site
“illegal.CP,” ICE obtained Jarman’s email address when it acquired the email
addresses of those who had purchased access to the website. In the second



       1 The district court suppressed the evidence found on this hard drive, holding that
“the government’s yearlong, warrantless seizure of [it] was unreasonable, and thus, violated
the Fourth Amendment.” Because that ruling is not challenged on appeal, we do not discuss
facts specifically relevant to that issue; we address only the court’s rulings on the suppression
of evidence acquired in a search of Jarman’s home pursuant to a warrant, which are
explained below.
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                                No. 16-30468
investigation, which concerned the child pornography site “Home Collection,”
ICE determined that Jarman purchased subscriptions to three child
pornography sites in seven transactions from October 2006 to January 2007.
      SA Tedder testified that he talked to ICE agents about these
investigations and reviewed all of the relevant evidence to ensure that the
screen captures ICE took from these websites were of prepubescent children
and that Jarman was, in fact, the person identified in the investigations.
Moreover, he served a subpoena on Cox Communications to confirm that the
email address that ICE tied to Jarman’s home was an active account belonging
to Jarman. However, SA Tedder testified that he did not have any direct
knowledge that Jarman actually downloaded files from these child
pornography sites when drafting the search-warrant affidavit.
      In December 2008, SA Tedder submitted a search-warrant affidavit for
Jarman’s home. A magistrate judge signed the search warrant on December
5th. Three days later, the FBI executed the warrant, seizing several hard
drives and computers from Jarman’s home.
     Because Jarman was an attorney, the FBI used a “taint process” to
review the seized data. In this process, a “taint team,” which consisted of a
DOJ attorney and a FBI computer expert, initially screened the seized data for
any potentially privileged material before turning it over to the prosecution
team. The taint team reported the results of their review on August 6, 2009.
      The prosecution team received the hard drives and computers from the
taint team on September 2, 2009, and July 9, 2010, and the Computer Analysis
Response Team (“CART”) began its forensic examination. CART completed its
examination on November 5, 2010, and reported that it found “sexually explicit
images and videos of minors on the computer hardware.”
      A grand jury subsequently charged Jarman with, among other things,
the receipt and attempted receipt of child pornography (“Count 1”).
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      In September 2013, Jarman moved to suppress the fruits of the search
of his home and for a Franks hearing, arguing that SA Tedder’s affidavit did
not establish probable cause, omitted material information, and contained
misrepresentations and unreliable information.        The district court held a
Franks hearing in April 2014.        Jarman then sought, and was granted,
additional discovery because, the court found, there were material
inconsistencies between SA Tedder’s testimony and his draft affidavits.
      In October 2014, the district court denied Jarman’s motion to suppress.
Because of the effect of the passage of time on one’s memory, the court found,
SA Tedder’s incorrect statements at the Franks hearing were not deliberate.
Moreover, the Government’s actions did not give rise to a reckless disregard
for the truth. Consequently, the court held that, although the “investigation
may have been less than ideal,” “the good faith exception [to the exclusionary
rule] applies.”
      Jarman promptly moved for reconsideration and for a second Franks
hearing. The district court granted a second Franks hearing in May 2015. But,
in August 2015, the court denied the motion for reconsideration on the ground
that the good faith exception still applied.          Although it “remain[ed]
uncomfortable with the [G]overnment’s conduct,” the court still did “not believe
that Jarman ha[d] established that [SA] Tedder’s conduct was in bad faith.”
      Jarman then conditionally pleaded guilty to Count 1 of the indictment,
reserving the right to appeal the denial of his motions to suppress the evidence
found in the search of his home.
      Now on appeal, Jarman asserts that the district court erred by denying
his motions to suppress and for reconsideration because: (1) the good faith
exception is inapplicable; (2) SA Tedder’s affidavit does not establish probable
cause; and (3) the Government’s delay in searching the data from his home
violated the Fourth Amendment and Federal Rule of Criminal Procedure 41.
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                                      II.
      This Court reviews the “[f]actual findings in a ruling on a motion to
suppress . . . for clear error” and questions of law de novo. United States v.
Moore, 805 F.3d 590, 593 (5th Cir. 2015) (citation omitted).       “The clearly
erroneous standard is particularly deferential where, as here, denial of a
suppression motion is based on live oral testimony . . . because the judge had
the opportunity to observe the demeanor of the witnesses.” United States v.
Robinson, 741 F.3d 588, 594 (5th Cir. 2014) (citation omitted).        But “the
constitutionality of law enforcement action” and the “determination of the
reasonableness of a law enforcement officer’s reliance upon a warrant issued
by a magistrate . . . for purposes of determining the applicability of the good-
faith exception to the exclusionary rule” are questions of law that are reviewed
de novo.    United States v. Cherna, 184 F.3d 403, 406–07 (5th Cir. 1999).
Nevertheless, “[t]he evidence is viewed in the light most favorable to the
prevailing party, here,” the Government. Moore, 805 F.3d at 593 (citation
omitted).
      This Court “generally review[s] the denial of a motion to reconsider for
abuse of discretion.” United States v. Rabhan, 540 F.3d 344, 346 (5th Cir. 2008)
(citation omitted).
      We hold that the district court did not err in denying suppression of the
evidence the Government seized from Jarman’s home because: (1) Jarman
failed to carry his burden to show that the good faith exception does not apply;
and (2) Jarman was not entitled to suppression based on the Government’s
delay in completing its search of the evidence because: (a) Jarman waived the
claim that the Government violated Rule 41; and (b) the Government did not
violate the Fourth Amendment because it acted reasonably under the
circumstances.


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                                            A.
       We begin by considering whether the district court erred by applying the
good faith exception. Moore, 805 F.3d at 593 (citation omitted).
       The good faith exception bars the application of the exclusionary rule to
exclude evidence obtained pursuant to a warrant if law enforcement officers
act under an objectively reasonable, good faith belief that the search warrant
in question is valid—even if it, in fact, is not. Robinson, 741 F.3d at 594
(citation omitted). But the good faith exception is not applicable if “the issuing-
judge was misled by information in an affidavit that the affiant knew was false
or would have known was false except for his reckless disregard of the truth.”
United States v. Gibbs, 421 F.3d 352, 358 (5th Cir. 2005) (citation omitted).
“[T]he initial burden here is upon the defendant.” United States v. Cavazos,
288 F.3d 706, 710 (5th Cir. 2002). Here, in attempting to impeach the warrant,
the defendant must establish: (1) “a knowing or reckless falsehood” by omission
or commission; (2) “that without the falsehood there would not be sufficient
matter in the affidavit to support the issuance of the warrant”; and that (3)
“[t]he omitted material [is] . . . dispositive, so that if the omitted fact were
included, there would not be probable cause.” Robinson, 741 F.3d at 595
(citations omitted); United States v. Davis, 226 F.3d 346, 351 (5th Cir. 2000).
       Jarman avers that the district court erred in holding that the good faith
exception applies, challenging more than a dozen statements in and omissions
from the search-warrant affidavit for his home. 2 The Government, on the other



       2Specifically, Jarman asserts that the good faith exception does not apply because SA
Tedder: (1) made false statements at the Franks hearings; (2) falsely stated in the search-
warrant affidavit that members of the taint team would not be involved in the investigation
when Yoon was involved with both; (3) made a false statement when he swore to the affidavit
and led the magistrate to believe that he had sufficiently corroborated and verified the
information in it; (4) acted in bad faith when he described child-pornography offenders’
characteristics in the affidavit and asserted and relied upon the nexus between them and the
assertion that Jarman likely hoarded child pornography; (5) included file names in the
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                                       No. 16-30468
hand, argues that the district court correctly held that the good faith exception
applies because Jarman has not shown that any statements in the affidavit
were knowingly or recklessly false.               Moreover, the Government asserts,
Jarman has not identified any material omissions from the affidavit, let alone
any omissions constituting knowing or reckless falsehoods.
       The district court heard all of the evidence and received extensive
briefing. The court then found that Jarman failed to satisfy the requirements
for attacking the good faith exception because, it determined, the Government
and SA Tedder did not act in bad faith and the statements and omissions that
Jarman calls material knowing or reckless falsehoods and omissions were
neither deliberate nor made in reckless disregard for the truth. After hearing
oral argument and studying the briefs, applicable parts of the record, and the
relevant law, we can find no error in the district court’s application of the good
faith exception.      We especially recognize that the district court had the
opportunity to observe witnesses. Robinson, 741 F.3d at 594 (citation omitted).


affidavit that he had no basis for including; (6) should not have implied in the affidavit that
Collins easily selected one file and observed the grainy image of an adult male sodomizing a
male child; (7) deliberately inserted in the affidavit the false statement that “[p]er JARMAN’s
request, all data from the old computer, to include the files depicting suspected child
pornography, was transferred over to the new computer at JARMAN’S residence”; (8)
knowingly and recklessly inserted in the affidavit the false statement that “Jarman retained
images of child pornography from October 2006 to November 2007 on the computer located
at his residence”; (9) did not mention in the affidavit that accessing or viewing child
pornography was not illegal before October 2008 or that the inadvertent downloading of child
pornography into temporary internet files did not necessarily constitute possession; (10) did
not mention in the affidavit that: (a) there was no evidence that Jarman accessed or
downloaded child pornography; (b) there was nothing showing that Jarman’s home
computers were linked to child pornography; and (c) the illegal.CP subscription information
was not associated with Jarman’s home; (11) made a false statement by swearing to the
affidavit without explaining that Yoon drafted most of it; (12) showed a reckless disregard
for the truth by re-interviewing Collins instead of interviewing Wilson and at least recklessly
omitted any mention of SA Jones’s initial interview of Collins and Collins’s initial statement
regarding what data was transferred; and (13) at least recklessly failed to include in the
affidavit the facts that Collins only found a single, grainy image of child pornography in the
root directory and that the only suggestive file names Collins saw were located in temporary
internet files that were not viewable.
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Furthermore, evidence must be “viewed in the light most favorable to the”
Government. See Moore, 805 F.3d at 593 (citation omitted). We thus uphold
the application of the good faith exception to any defects alleged by Jarman.
                                       B.
      We now turn to Jarman’s contention that the district court erred by
rejecting his argument that the duration of the Government’s post-seizure
review of his computer data requires the suppression of the seized evidence.
The district court did not explicitly rule on this issue as it relates to the
evidence that is the subject of the warrant. The court, however, necessarily
rejected this claim when it denied Jarman’s motions to suppress. And “this
court may . . . independently review the record to determine whether the
district court’s decision is supported by any reasonable review of the evidence.”
United States v. Santiago, 410 F.3d 193, 198 (5th Cir. 2005) (citation omitted).
      “The general touchstone of reasonableness which governs [the] Fourth
Amendment analysis . . . governs the method of execution of the warrant.” E.g.,
United States v. Ramirez, 523 U.S. 65, 71 (1998). As “many circuits have
recognized,” the Fourth Amendment “contain[s no] requirements about when
the search or seizure is to occur or the duration.” United States v. Cote, 72 M.J.
41, 44 (C.A.A.F. 2013) (citation omitted); United States v. Gerber, 994 F.2d
1556, 1559 (11th Cir. 1993). Courts have therefore consistently “permitted
some delay in the execution of search warrants involving computers because of
the complexity of the search” and they often restrict their “analysis of the delay
in executing . . . warrants [to] consider[ing] only whether the delay rendered
the warrants stale.” E.g., United States v. Brewer, 588 F.3d 1165, 1173 (8th
Cir. 2009); United States v. Syphers, 426 F.3d 461, 469 (1st Cir. 2005).
      Jarman contends that the district court erred by not granting
suppression because the Government violated the Fourth Amendment and
Federal Rule of Criminal Procedure 41 by taking twenty-three months to finish
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                                 No. 16-30468
searching the data it seized. His overarching argument is that this delay was
unreasonable.
       The Government counters that Jarman is not entitled to suppression on
this basis. Jarman, the Government asserts, waived the claim that its actions
violated Rule 41. Moreover, the Government argues, it acted reasonably under
the circumstances, and the only case Jarman relies upon, United States v.
Metter, 860 F. Supp. 2d 205 (E.D.N.Y. 2012), is distinguishable.
       We hold that the district court did not err by not granting suppression
based on the duration of the Government’s post-seizure review of the data it
seized from Jarman’s home.       First, Jarman waived the claim that the
Government’s actions violated Rule 41 because he merely mentions the issue
in a footnote with little or no argument. See United States v. Scroggins, 599
F.3d 433, 447–48 (5th Cir. 2010) (citation omitted) (summarizing this Court’s
appellate briefing requirements).
       Second, Jarman is not entitled to suppression under the Fourth
Amendment because the duration of the Government’s review of the seized
data was reasonable under the circumstances. The taint process here was
designed to protect Jarman’s clients’ privileged information.      Courts have
recognized that, in such circumstances, it is appropriate to screen privileged
information. See, e.g., Metter, 860 F. Supp. 2d at 215. Moreover, the taint team
review only took eight months. And the Government completed its forensic
examination less than four months after it received the last of the hard drives
and computers from the taint team. These periods are within the typical
periods of delay in executing warrants that courts have permitted due to the
complexity involved in searching computers. See, e.g., Syphers, 426 F.3d at
469.
       Moreover, Jarman has not argued that the delay caused the warrant to
become stale. Even if he had, “[n]umerous cases hold that a delay of several
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                                        No. 16-30468
months” or even years “between the seizure of electronic evidence and the
completion of the government’s review of [it] . . . is reasonable” and does not
render the warrant stale, especially in child-pornography cases. Metter, 860 F.
Supp. 2d at 215 (emphasis omitted). 3
       Additionally, the one case Jarman relies upon—an out-of-circuit district
court opinion—is inapposite. In Metter, the Government had not even begun
to “conduct[] its [privilege] review of the [electronic] evidence seized” fifteen
months after the warrant was executed and had “no plans whatsoever to begin
review of that data.” Metter, 860 F. Supp. 2d at 211, 215. Here, by contrast,
the Government completed its privilege review in eight months. Then, by the
end of twenty-three months, it completed its entire review of the evidence.
Further, in Metter, the court found that the Government displayed a “lack of
good faith” because it “failed to commence the review [of the evidence], despite
repeated requests from defense counsel and directions from the Court to do so,”
and it “indicate[d] that it had no intention of fulfilling its obligations” to do so.
Id. at 216.      Here, however, Jarman does not accuse the Government of
similarly acting in bad faith. Thus, Jarman is not entitled to suppression based
on the duration of the Government’s post-seizure review of his computer data.




       3 Accord, e.g., United States v. Kleinkauf, 487 F. App’x 836, 838–39 (5th Cir. 2012)
(finding that a nine-month delay did not render information stale); United States v. Allen,
625 F.3d 830, 842–43 (5th Cir. 2010) (finding that an eighteen-month delay did not render
information stale); United States v. Frechette, 583 F.3d 374, 378–79 (6th Cir. 2009) (finding
that a sixteen-month delay did not render information stale); United States v. Morales–
Aldahondo, 524 F.3d 115, 119 (1st Cir. 2008) (finding that a three-year delay did not render
information stale); Syphers, 426 F.3d at 469 (finding that a five-month delay was reasonable);
United States v. Riccardi, 405 F.3d 852, 863 (10th Cir. 2005) (finding that a five-year delay
did not render information stale); United States v. Newsom, 402 F.3d 780, 783 (7th Cir. 2005)
(“Information a year old is not necessarily stale as a matter of law.”); United States v. Gorrell,
360 F. Supp. 2d 48, 55 n.5 (D.D.C. 2004) (finding that a ten-month delay was reasonable).
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                             No. 16-30468
                                  III.
    For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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