     14-4021-cr
     United States v. Stephen J. Konn

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 17th day of December, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                DEBRA ANN LIVINGSTON,
 8                CHRISTOPHER F. DRONEY,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               14-4021-cr
16
17       STEPHEN J. KONN,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLEE:                   Wayne A. Myers, Steven D. Clymer,
22                                       Assistant United States Attorneys,
23                                       for Richard S. Hartunian, United
24                                       States Attorney for the Northern
25                                       District of New York, Syracuse, New
26                                       York.
27


                                                  1
 1   FOR APPELLANT:         Wayne P. Smith, Law Office of Wayne
 2                          P. Smith, Schenectady, New York.
 3
 4        Appeal from a judgment of the United States District
 5   Court for the Northern District of New York (D’Agostino,
 6   J.).
 7
 8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 9   AND DECREED that the judgment of the district court be
10   AFFIRMED.
11
12        Stephen J. Konn appeals from the judgment of the United
13   States District Court for the Northern District of New York
14   (D’Agostino, J.), sentencing him after trial principally to
15   10 years’ imprisonment and 25 years’ supervised release for
16   the receipt, distribution, and possession of child
17   pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and
18   (a)(5)(B). We assume the parties’ familiarity with the
19   underlying facts, the procedural history, and the issues
20   presented for review.
21
22        1.  The evidence was sufficient to prove beyond a
23   reasonable doubt the interstate commerce element of each
24   offense. The jurisdictional elements of §§ 2252A(a)(2)(A)
25   and (a)(5)(B) do not require evidence that specific images
26   actually crossed state lines; it is enough that the images
27   were transported via the Internet. See Effective Child
28   Pornography Prosecution Act of 2007 (“2008 Amendments”),
29   Pub. L. No. 110-358, § 102(7), 122 Stat. 4001, 4002 (2008)
30   (“The transmission of child pornography using the Internet
31   constitutes transportation in interstate commerce.”); id.
32   § 103(a)(4)(B), (D), 122 Stat. at 4002-03; id. § 103(b), 122
33   Stat. at 4003 (replacing “in interstate or foreign commerce”
34   with “in or affecting interstate or foreign commerce”); see
35   also Russell v. United States, 471 U.S. 858, 859 & n.4
36   (1985) (the use of the phrase “‘affecting interstate or
37   foreign commerce’ expresses an intent by Congress to
38   exercise its full power under the Commerce Clause”).
39
40        Konn argues that, so interpreted, the statute would
41   exceed Congress’s commerce power. But there can be no
42   question that the Internet is a channel and instrumentality
43   of interstate commerce; and Congress may “regulate and
44   protect the instrumentalities of interstate commerce, . . .
45   even though the threat may come only from intrastate
46   activities,” United States v. Lopez, 514 U.S. 549, 558
47   (1995).

                                  2
 1        2.  Konn contends that the search warrant affidavit
 2   could not provide a “substantial basis” for the magistrate
 3   judge’s finding of probable cause. United States v.
 4   Raymonda, 780 F.3d 105, 113 (2d Cir. 2015) (quoting United
 5   States v. Wagner, 989 F.2d 69, 72 (2d Cir. 1993)). Konn
 6   cites several cases that hold that, when probable cause
 7   turns on the identification of images of child pornography,
 8   it is not enough for the warrant affidavit to use conclusory
 9   statements characterizing those images as “sexually
10   explicit,” “child pornography,” or “lewd and lascivious.”
11   Instead, Konn argues, the affidavit must contain a
12   description sufficiently detailed such that the magistrate
13   judge can independently assess whether the images likely
14   constitute child pornography, or else the magistrate judge
15   must view the images. See, e.g., United States v. Pavulak,
16   700 F.3d 651, 661 (3d Cir. 2012); United States v. Brunette,
17   256 F.3d 14, 17-19 (1st Cir. 2001); United States v. Genin,
18   594 F. Supp. 2d 412, 418-25 (S.D.N.Y. 2009), aff’d on
19   alternative ground, 524 F. App’x 737, 738 (2d Cir. 2013)
20   (summary order). Assuming arguendo that we were to require
21   a detailed description of the images absent attachment of
22   those images to the supporting affidavit, sufficient
23   description was provided in this case.1
24
25        3.  Konn argues that his confession should have been
26   suppressed because he was in custody (and not given Miranda
27   warnings), and because his statements were involuntary. The
28   district court held a suppression hearing at which Konn and
29   Agent Fallon testified; we accept the district court’s
30   factual findings, which were not clearly erroneous.2 See
31   United States v. Bershchansky, 788 F.3d 102, 109-10 (2d Cir.


         1
           The affidavit described seven images that Agent
     Fallon downloaded from Konn’s shared folders. One was
     described as depicting “a prepubescent female, approximately
     3-4 years old, sitting on a couch naked from the waist down.
     Her t-shirt is pulled up above her waist and her naked
     vaginal area is exposed. Her legs are spread apart and she
     is touching her vagina with her left hand.” Gov’t App. 20
     ¶ 24(g). This is more than enough.
         2
           Evident in the district court’s recitation of facts
     and circumstances is an implicit finding of Agent Fallon’s
     credibility, including Fallon’s testimony that he informed
     Konn that Konn was “free to leave.” See Special App. 43-44
     (discussing the “objective and credible circumstances”).
                                  3
 1   2015) (factual determinations on motions to suppress are
 2   either reviewed for clear error or viewed in the light most
 3   favorable to the party that prevailed on the motion).
 4
 5        Konn was not in custody. The district court found
 6   that: the interview took place in Konn’s home; Konn was not
 7   placed in restraints; weapons were never drawn; the
 8   interview lasted approximately 35 minutes; at no point did
 9   Konn ask to leave or to end the conversation; at no point
10   did the agents raise their voices; Konn was never told that
11   he was under arrest; and Fallon “instructed [Konn] that ‘I
12   am not gonna let you roam around the residence while we do
13   this for our safety reasons. But you’re free to leave, you
14   don’t have to stay here.’” Special App. 44. A reasonable
15   person would have felt free to terminate the conversation
16   and leave. Moreover, Konn’s “freedom of action” was not
17   “curtailed to a degree associated with formal arrest.”
18   United States v. Falso, 293 F. App’x 838, 839 (2d Cir. 2008)
19   (summary order) (quoting United States v. Newton, 369 F.3d
20   659, 671-72 (2d Cir. 2004)); see also United States v. FNU
21   LNU, 653 F.3d 144, 153 (2d Cir. 2011) (discussing
22   circumstances relevant to custody inquiry).
23
24        Nor were Konn’s statements involuntary. In determining
25   the voluntariness of a confession, this Court evaluates the
26   totality of the circumstances, including “1) the accused’s
27   characteristics, 2) the conditions of the interrogation, and
28   3) the conduct of the police.” Parsad v. Greiner, 337 F.3d
29   175, 183 (2d Cir. 2003). Konn is an adult; he has a college
30   degree; he retired after 35 years’ employment as an analyst
31   for a state agency; he managed his mother’s property during
32   her life. See J.A. 192-94. The conditions of the interview
33   were not harsh or confining, and the officers’ conduct was
34   professional. Konn was not “subjected to any threats,
35   physical coercion, or protracted interrogation.” United
36   States v. Okwumabua, 828 F.2d 950, 953 (2d Cir. 1987).
37
38        4.  The government concedes that the district court’s
39   Rule 26.2 discovery ruling was in error, because the chat
40   spreadsheets created by Konn’s expert witness (and ordered
41   disclosed) did not relate to the subject matter of that
42   expert’s trial testimony. However, we need not determine
43   whether this amounted to plain error (or whether the ruling
44   was erroneous on any ground Konn raised below), because the
45   spreadsheets were not used at trial, and the district
46   court’s consideration of the content of the chats at
47   sentencing was not improper. A district court should

                                  4
 1   consider all relevant information at sentencing, see 18
 2   U.S.C. § 3661; Fed. R. Crim. P. 32(d)(1)(D)(i)-(ii),
 3   (d)(2)(A)(iii); U.S.S.G. § 6A1.3(a), absent a “showing of
 4   significant countervailing values” (which Konn has not
 5   made), United States v. Tejada, 956 F.2d 1256, 1262-63 (2d
 6   Cir. 1992) (holding that a sentencing court must consider
 7   evidence obtained in violation of the Fourth Amendment
 8   absent a showing that officers obtained the evidence for the
 9   express purpose of sentence enhancement).
10
11        5.  The district court declined to decrease Konn’s
12   offense level pursuant to U.S.S.G. § 3E1.1 because it found
13   that Konn had not accepted responsibility for the
14   distribution offense. We defer to this factual
15   determination, which was not “without foundation.” United
16   States v. Harris, 13 F.3d 555, 557 (2d Cir. 1994) (quoting
17   United States v. Irabor, 894 F.2d 554, 557 (2d Cir. 1990));
18   see United States v. Taylor, 475 F.3d 65, 68-69 (2d Cir.
19   2007) (per curiam); U.S.S.G. § 3E1.1 cmt. n.5. When
20   interviewed by the probation department after trial, Konn
21   “denied trading images”; stated that any images in his
22   shared folders were “child erotica” rather than child
23   pornography; asserted that any images of child pornography
24   in his shared folders were placed there by the government;
25   and claimed that “he never knowingly placed child
26   pornography in shared folders on Giga[T]ribe for others to
27   access.” PSR ¶ 46; see also PSR ¶ 49.
28
29        6.  Konn’s sentence is substantively reasonable. See
30   United States v. Dorvee, 616 F.3d 174, 179 (2d Cir. 2010)
31   (substantive reasonableness is reviewed for abuse of
32   discretion; reversal is appropriate “only when the trial
33   court’s sentence ‘cannot be located within the range of
34   permissible decisions’” (quoting United States v. Cavera,
35   550 F.3d 180, 189 (2d Cir. 2008) (en banc))).
36
37        Konn argues that his sentence is unreasonable and
38   unconstitutional nevertheless because its starting point was
39   U.S.S.G. § 2G2.2, a Guideline that we labeled “fundamentally
40   different from most,” “eccentric,” “of highly unusual
41   provenance,” and even “irrational” in Dorvee. 616 F.3d at
42   184, 187-88. Konn’s Guidelines range was accurately
43   calculated at 292 to 365 months’ imprisonment; the district
44   court found that range to be “much greater than necessary to
45   meet the goals of sentencing” and, accordingly, imposed a
46   sentence (120 months’ imprisonment) substantially below the
47   low end of that range. J.A. 934.

                                  5
 1        Even before Dorvee, this Court made the “truly
 2   advisory” nature of the Guidelines “emphatically clear” to
 3   district courts. Cavera, 550 F.3d at 191. Post-Dorvee, it
 4   is even more unlikely that a defendant sentenced for a child
 5   pornography offense in this Circuit can attribute his
 6   sentence to § 2G2.2. In sentencing Konn, the district court
 7   followed our instructions. It took “seriously the broad
 8   discretion [district courts] possess in fashioning sentences
 9   under § 2G2.2" and “carefully applied” the Guideline to
10   avoid “generat[ing] unreasonable results.” Dorvee, 616 F.3d
11   at 188. Thus Konn’s constitutional arguments necessarily
12   fail because § 2G2.2 “did not cause [Konn’s] alleged
13   sentencing injury.” United States v. Meirick, 674 F.3d 802,
14   805 (8th Cir. 2012); see also, e.g., Kimbrough v. United
15   States, 552 U.S. 85, 90-91 (2007) (“Booker . . . instructed
16   that ‘reasonableness’ is the standard controlling appellate
17   review of the sentences district courts impose.” (discussing
18   United States v. Booker, 543 U.S. 220, 261-62 (2005))).
19
20        In any event, Konn’s substantive due process challenge
21   would fail de novo rational basis review. See United States
22   v. Cruz-Flores, 56 F.3d 461, 463 (2d Cir. 1995). (Konn does
23   not argue that impermissible considerations went into the
24   Guideline.) As compared to the “run-of-the-mill” case that
25   concerned the Dorvee Court, 616 F.3d at 186, the
26   enhancements were not arbitrary as applied to Konn. “Many
27   of the images that Mr. Konn was viewing were horrific in
28   nature.”3 J.A. 928. And Konn easily qualified for the 600-
29   or-more-images enhancement without application of a
30   multiplier for each video.4 Nor does Konn demonstrate that
31   the Guideline fails rational basis review as a facial
32   matter. His argument relies entirely on language from
33   Dorvee; but Dorvee’s concern that § 2G2.2 can lead to
34   irrational, unfair results in “run-of-the-mill” cases, not



         3
           Some of these images depicted the rape of infants and
     toddlers; prepubescent females engaged in bestiality; the
     insertion of objects into prepubescent females’ genital
     areas; and a prepubescent female performing oral sex on an
     adult with a knife held to her head. J.A. 916, 928.
         4
           Konn’s offense included at least 499 still images and
     865 videos, exceeding 600 images prior to application of the
     75-images-per-video multiplier. J.A. 916; see U.S.S.G.
     § 2G2.2 cmt. n.4(B)(ii).
                                  6
 1   all cases, has no bearing on a facial challenge.   See United
 2   States v. Salerno, 481 U.S. 739, 745 (1987).
 3
 4        For the foregoing reasons, and finding no merit in
 5   Konn’s other arguments, we hereby AFFIRM the judgment of the
 6   district court.
 7
 8                              FOR THE COURT:
 9                              CATHERINE O’HAGAN WOLFE, CLERK
10




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