18-339-cr
United States v. Asmodeo


                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT
                                        SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 5th day of March, two thousand nineteen.
PRESENT: GUIDO CALABRESI
           CHRISTOPHER F. DRONEY,
                       Circuit Judges,
           STEFAN R. UNDERHILL,
                       Chief District Judge. 
______________________________________________

UNITED STATES,

                                 Appellee,

                           v.                                                      No. 18-339-cr

JOHN ASMODEO,

                      Defendant-Appellant.
______________________________________________

    FOR APPELLANT:                                       COLLEEN P. CASSIDY, Federal Defenders of
                                                         New York, Inc., New York, NY



 Chief Judge Stefan R. Underhill, United States District Court for the District of Connecticut, sitting by
designation.

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  FOR APPELLEE:                                  MARCIA COHEN Assistant United States
                                                 Attorney (Lauren Schorr, Daniel B.
                                                 Tehrani, Assistant United States Attorneys,
                                                 on the brief), for Geoffrey S. Berman
                                                 United States Attorney for the Southern
                                                 District of New York, New York, NY

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

      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the orders of the district court entered on March 7, 2017, and
September 6, 2017, are AFFIRMED.

       Defendant-Appellant John Asmodeo appeals from the district court’s orders dated
March 7, 2017, and September 6, 2017, denying his motion to suppress evidence. On
appeal, Asmodeo contends that certain evidence should have been excluded as the product
of the government’s illegal search of his home. We assume the parties’ familiarity with
the underlying facts, the procedural history of the case, and the issues on appeal, to which
we refer only as necessary to explain our decision to affirm.

                                    BACKGROUND

        On April 22, 2014, law enforcement officials of the United States Department of
Homeland Security (“DHS”) applied for a warrant to search the residence at 166 See
Avenue, Mahopac, New York, which was affiliated with an Internet Protocol (“IP”)
address that had been used to download child pornography. A Justice of the Court of the
Town of Carmel, New York, issued a warrant to search the residence, identified as a “2
story multi family home with brick on the bottom and vinyl siding on top with an entrance
in the front and side,” and to seize a number of electronic devices and documents. App’x
at 31. The home at 166 See Avenue had two units, an upstairs apartment and a downstairs
apartment. Later, it was determined that Kelly Whelan lived in the second floor
apartment, while her nephew, the defendant John Asmodeo, lived in the first floor
apartment. The warrant did not describe which unit could be searched. The affidavit
supporting the issuance of the warrant identified three IP addresses, none of which was the
IP address identified in the warrant, and identified Whelan as the subscriber of one of the
addresses. Neither the affidavit nor the warrant mentioned Asmodeo by name.

       The following day, federal and local law enforcement officers executed the warrant
at 166 See Avenue. First, they entered the second-floor apartment of Kelly Whalen and

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then proceeded to search the first-floor apartment of Asmodeo. Upon finding evidence
of child pornography on Asmodeo’s computer, the officers arrested him.

       At the Town of Carmel police station, DHS Special Agent Christopher McClellan
conducted a videotaped interrogation of Asmodeo. The agent gave a Miranda warning
and Asmodeo stated that he was not willing to waive his rights. Nonetheless, McClellan
continued to question him, and he eventually disclosed substantial information concerning
his involvement with child pornography.

       During the interview, Asmodeo disclosed that his devices contained child
pornography downloaded from the internet. He also described two videos that he filmed
and had stored on his computer. Asmodeo filmed the first video of himself having sexual
relations with his “friend Jess” when, he said, he was sixteen years old and she was fourteen
(the “Jess Video”). App’x at 614. He told McClellan that the Jess Video could be found
on his computer in a folder entitled “girls,” and repeatedly denied having shared it with
any person other than the victim in the video. Asmodeo stated that he filmed the second
video using a hidden camera to record the nine- or ten-year-old daughter of a friend
changing into and out of a bathing suit in the bathroom. DHS Supervisory Special Agent
John Mirandona later conducted a forensic search of Asmodeo’s electronic devices,
looking specifically for the video filmed in the bathroom. The search revealed five videos
of a ten-year-old girl changing in the bathroom filmed on separate occasions (the
“Bathroom Videos”).

       The search also revealed more than 3,000 pornographic images and 20 pornographic
videos of children, downloaded from the internet and stored on Asmodeo’s devices.

       Asmodeo was first charged in New York state court, and then, on February 3, 2015,
the government filed a criminal complaint in the Southern District of New York, charging
Asmodeo with attempted sexual exploitation of a child in violation of 18 U.S.C. § 2251(a)
and (e), in relation to the Bathroom Videos, and receipt and distribution of child
pornography in violation of 18 U.S.C. § 2252A(a)(2)(B) and (b)(1), in relation to the
images and videos downloaded from the internet. On June 1, 2015, an indictment was
returned charging Asmodeo with one count of attempted sexual exploitation of a child in
connection with the Bathroom Videos and one count of receipt and distribution of child
pornography in connection with the internet images and videos.

       In February 2016, Asmodeo moved to suppress both the evidence seized from his
house and his post-arrest statements to McClellan. On June 30, 2016, about one month
before the court was scheduled to hear those motions, DHS Special Agent Steven Mullen
and Detective Sergeant Michael Nagle of the Carmel Police Department interviewed Eve

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Condon, the mother of Asmodeo’s son. Nagle learned about Condon and her son through
police reports concerning unrelated child sexual and domestic abuse incidents. He first
contacted Condon shortly after Asmodeo was arrested in order to arrange an interview of
her son to determine if he had been exposed to the child pornography found in Asmodeo’s
home. A few minutes after Nagle and Mullen concluded the June 2016 interview,
Condon called to give them a compact disk she had located containing a copy of the Jess
Video (the “CD”). Later review of the CD revealed that Asmodeo was twenty years old
at the time it was filmed and the victim was twelve.

        On July 27, 2016, a grand jury returned a superseding indictment charging Asmodeo
with one count of sexual exploitation of a child in violation of 18 U.S.C. § 2251(a) and one
count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and
(b)(2), in relation to the Jess Video on the CD. The government advised the court that it
had decided not to defend the search of Asmodeo’s home and electronic devices, and would
not offer the evidence obtained from the search or the defendant’s post-arrest statements at
trial, thereby mooting the February 2016 suppression motions. The government also
advised the court that the two counts in the superseding indictment were different from the
ones in the original indictment. The new counts related to the Jess Video, and not the
Bathroom Videos or the internet images and videos.

        Asmodeo then moved to suppress the CD of the Jess Video as the fruit of the
poisonous tree of the illegal search. The court held a hearing on the motion in January
2017. Mirandona testified that during his forensic search of Asmodeo’s devices, he used
keywords that are “intrinsically indicative of child pornography,” App’x at 368, and did
not use the search term “girls.” He testified that he either did not see the Jess Video or
that, if he did see it, it would have been “of less interest,” App’x at 392, because he was
focused on finding images of prepubescent children, and the victim in the Jess Video
appeared to be a teenager.

      Mullen and Nagle also testified about their June 2016 interview with Condon.
Mullen testified that they requested the interview to ask her to describe Asmodeo’s
apartment and other general questions. Mullen also testified that

       At almost the conclusion of the interview, Ms. Condon advised us that . . .
       [t]here had been some infidelity between them. And at the end, she said
       [Asmodeo] gave her a CD and said this is basically what I was doing while
       we were together, and she [told us] . . . she would be willing to turn it over
       to us if she could find it.

App’x at 446. Mullen and Nagle both testified that it was Condon who first mentioned

                                             4
the existence of the CD. Mullen asked Condon to call them if she found the CD, and then
Mullen and Nagle left. Two to three minutes later, Condon called Nagle to tell him that
she had found the CD, and Mullen and Nagle returned to her house to pick it up.

       On March 7, 2017, the district court issued an oral decision denying the motion to
suppress. The court rejected the government’s argument that the CD was obtained from
an independent source, but held that the CD was “too attenuated to warrant suppression.”
App’x at 747. The court assumed, without deciding, that the original search was
conducted in violation of the Fourth Amendment. It found, however, that this illegal
search of Asmodeo’s apartment and electronic devices was “neither purposeful nor
flagrant” and instead was the “result of sloppiness and laziness.” App’x at 744-45. It
further found that the 2016 discovery of the CD was remote in time from the 2014 search
and that Condon’s voluntary production of the CD was an intervening event that broke the
causal chain.

        On May 1, 2017, defense counsel requested that the court reopen the suppression
hearing to examine Mirandona and other government witnesses concerning whether other
computer evidence found in the search revealed the Jess Video. The court reopened the
suppression hearing on June 13, and heard further evidence. On September 6, 2017, the
court issued an oral decision adhering to its prior ruling because the new evidence did not
alter its conclusion that the discovery of the CD was too attenuated from the illegal search
to be considered tainted fruit of the search.

       Asmodeo and the government entered into a conditional plea agreement under
which he agreed to waive his appellate rights except with respect to the denial of the motion
to suppress. Asmodeo waived his right to indictment and pleaded guilty to Count One of
a superseding information, charging sexual exploitation of a child in violation of 18 U.S.C.
§ 2251(a) and (e) in connection with the CD (containing the Jess Video). On January 31,
2018, the court sentenced him to the mandatory minimum sentence of 15 years’
imprisonment, to be followed by 10 years’ supervised release.1

                                               DISCUSSION

       On appeal, Asmodeo contends that the discovery of the CD was not sufficiently
attenuated from two instances of allegedly illegal conduct of the government: (1) the
search of Asmodeo’s home and electronic devices, and (2) the interrogation of Asmodeo
at the police station. Before reviewing the merits of the appeal, we address the

1
    The district court also dismissed all counts of both indictments.



                                                       5
government’s threshold contention that Asmodeo forfeited the latter argument concerning
the interrogation.2

                                                  I.

        The government contends that Asmodeo forfeited the argument that the CD is the
fruit of the poisonous tree of the allegedly illegal interrogation by failing to raise it below.
In his reply brief on appeal, Asmodeo argues not only that the discovery of the CD is the
product of the interrogation, but also that the flagrancy of the interrogation bears on the
flagrancy of the search, because the interrogation was itself a fruit of the search.

       The government is correct that Asmodeo’s briefing on the motion to suppress before
the district court focuses principally on whether the discovery of the CD derived from the
search and makes only one reference to disclosing the Jess Video during the interrogation.
Asmodeo also did not argue below that the flagrancy of the interrogation bears on the
flagrancy of the search. Accordingly, Asmodeo forfeited those arguments for appellate
review.3

       Where a criminal defendant forfeited an argument by failing to raise it below, we
may still review the district court’s decision for plain error. United States v. Olano, 507
U.S. 725, 731 (1993). As described more fully in the following section, Asmodeo’s
statements to McClellan did not lead investigators to Condon or give them any reason to
believe that she held relevant evidence. Therefore, it was not plain error for the district
court to conclude that the discovery of the CD was too attenuated from the allegedly
unconstitutional conduct to warrant suppression.

       There is also little support in decided cases for Asmodeo’s contention that the
government’s conduct following an illegal search may exacerbate the flagrancy of the
search for the purpose of attenuation analysis. The only decision he cites to support that
contention stands for an entirely different proposition. See United States v. Reed, 349
F.3d 457, 465 (7th Cir. 2003) (“Conducting a custodial interrogation after an illegal arrest
in a congenial and non-threatening manner does not in and of itself disprove that the police
2
  While the government uses the term “waiver” in its brief, it argues in substance that Asmodeo forfeited
the argument by failing to raise it, rather than intentionally waiving it. See United States v. Brown, 352
F.3d 654, 663 (2d Cir. 2003) (“Waiver—the intentional relinquishment or abandonment of a known right—
extinguishes an error and obviates plain error review. Forfeiture—the failure to make the timely assertion
of a right—does not.” (internal quotation marks and citations omitted)).
3
  Asmodeo did, however, address the interrogation to the extent that it formed a link in the causal chain
leading the government from the initial search to the interview with Condon. We address that argument
below.

                                                    6
acted in bad faith.”). In the absence of existing relevant controlling or persuasive
authority, it was not plain error for the district court here to focus on the flagrancy of the
search and not the interrogation.

                                             II.

       Asmodeo invokes the “fruit of the poisonous tree” doctrine to argue that the
government’s allegedly illegal search led it to interview Condon and thus tainted the
evidence it obtained from her. On appeal from the denial of a motion to suppress, we
review “legal conclusions de novo,” “findings of fact for clear error,” and “mixed questions
of law and fact” de novo. United States v. Bershchansky, 788 F.3d 102, 108 (2d Cir.
2015) (internal quotation marks and citations omitted).

       To determine whether evidence is sufficiently attenuated from an illegal search to
be admitted, we first consider “the purpose and flagrancy of the official misconduct.”
Utah v. Strieff, 136 S. Ct. 2056, 2062 (2016) (quoting Brown v. Illinois, 422 U.S. 590, 604
(1975)). We also look to “the presence of intervening circumstances” and the “‘temporal
proximity’ between the unconstitutional conduct and the discovery of evidence to
determine how closely the discovery of evidence followed the unconstitutional search.”
Id. (quoting Brown v. Illinois, 422 U.S. at 603-04).

       The district court assumed, without deciding, that the search of Asmodeo’s home
was conducted illegally because the warrant did not specify the apartment to be searched—
although it identified the residence as a multifamily home—and contained multiple errors,
including identifying a different IP address in the warrant from the ones identified in the
affidavit supporting the warrant. Asmodeo also argues that the officers acted flagrantly
in presenting the warrant application to a town court justice, who may have been less likely
to catch the mistakes than a federal magistrate judge. The district court concluded that
the problems with the warrant were “neither purposeful nor flagrant” and instead were the
“result of sloppiness and laziness.” App’x at 744-45. In light of the “substantial social
costs” of applying the exclusionary rule, Hudson v. Michigan, 547 U.S. 586, 594 (2006)
(quoting United States v. Leon, 468 U.S. 897, 907 (1984)), we “favor[] exclusion only when the
police misconduct is most in need of deterrence—that is, when it is purposeful or flagrant,”
Utah v. Strieff, 136 S. Ct. at 2063. In view of the many errors in the warrant, we cannot
say that the officers’ misconduct was insignificant or that suppression would not deter
similar conduct.

       However, any deterrent value of suppression is significantly diminished because an
intervening circumstance disrupted the causal chain between the search and the discovery
of the CD. See Brown v. Illinois, 422 U.S. at 598 (observing that “an intervening

                                              7
independent act of a free will” may “purge the primary taint” of an illegal search) (quoting
Wong Sun v. United States, 371 U.S. 471, 486 (1963)). The district court concluded that
Condon’s unanticipated production of the CD was an intervening circumstance that
weighed against suppression. That conclusion is amply supported by the record. Nagle
first learned of Condon’s existence not through Asmodeo, but through an unrelated police
report. The district court credited Nagle’s and Mullen’s testimony that they interviewed
Condon not to find evidence of Asmodeo’s illegal activities, but instead to learn more about
his background and residence, and Asmodeo does not challenge that credibility finding.
It was Condon who first brought up the existence of the CD, and neither Nagle nor Mullen
knew that Condon had a copy of the Jess Video. The officers left Condon’s house without
the CD, instructing her to call if she found it. She did so minutes later, and the officers
returned to pick it up. From those facts, there is no question that the district court did not
err in concluding that Condon’s statement was voluntary in the sense that it was not coerced
or obtained by fear. See United States v. Snype, 441 F.3d 119, 135 (2d Cir. 2006)
(concluding that host’s voluntary consent to search her apartment for evidence of guest’s
crime was intervening act of free will sufficient to purge taint of illegal search that had
occurred only twenty minutes before because the fearful atmosphere created by the search
had dissipated).

      The fact that Asmodeo described the Jess Video during the interrogation and told
McClellan where to find it in his electronic files is not sufficient to reject the district court’s
conclusion that the search did not lead law enforcement to seek a copy of the Video from
Condon. In fact, during the interrogation, Asmodeo specifically and repeatedly denied
having given the Jess Video to anyone other than the victim. Accordingly, Condon’s
voluntary production of the CD constitutes an intervening circumstance weighing against
suppression, as the district court found.

       The long delay between the search and discovery of the CD also suggests a weak
causal connection between the two events and undermines the potential deterrent value of
suppression. Law enforcement officers searched Asmodeo’s apartment on April 23,
2014. Nagle and Mullen interviewed Condon more than two years later, on June 30,
2016. The significant gap between those events supports the district court’s finding that
the search did not directly lead to the interview because, if the search or interrogation
pointed law enforcement officers to evidence in Condon’s possession, they likely would
have immediately scheduled the interview or requested the evidence during their initial
meeting with her in May 2014.

       Weighing all three factors together we conclude that the district court did not err in
finding that the discovery of the CD was sufficiently attenuated from the illegal search to
permit its admission.

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                                      * * *

      We have considered Asmodeo’s remaining arguments and find them to be without
merit. We AFFIRM the March 7, 2017 and September 6, 2017 orders of the district court
denying the Asmodeo’s motion to suppress.

                                FOR THE COURT:
                                Catherine O’Hagan Wolfe, Clerk of Court




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