    11-2922-cr
    United States v. Russell

                                 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
    Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
    on the 5th day of November, two thousand twelve.

    PRESENT:

             JOHN M. WALKER, JR.,
             DEBRA ANN LIVINGSTON,
             CHRISTOPHER F. DRONEY,

                            Circuit Judges.
    _______________________________________________

    UNITED STATES OF AMERICA,

                                      Appellee,

                      -v.-                                                       No. 11-2922-cr

    RICHARD P. RUSSELL, JR.,

                            Defendant-Appellant.
    _______________________________________________

                                               BRENDA K. SANNES (Lisa M. Fletcher, on the brief), for
                                               Richard S. Hartunian, United States Attorney for the Northern
                                               District of New York, Syracuse, N.Y., for Appellee.

                                               NICHOLAS J. PINTO, New York, N.Y., for Defendant-
                                               Appellant.



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        UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED

that the judgment of the District Court is AFFIRMED.

        Defendant-Appellant Richard P. Russell, Jr. (“Russell”) appeals from a July 8, 2011

judgment of conviction in the United States District Court for the Northern District of New York

(Mordue, J.) of three counts of producing child pornography in violation of 18 U.S.C. § 2251(a).

On appeal, Russell argues that: (1) his written statement to the police was taken in violation of his

rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), because the interrogating officers

ignored his requests for an attorney; (2) his arrest in his own home was unlawful, and his written

statement should have been suppressed as the fruit of that arrest; (3) the Town Justice who issued

the search warrant for his and his father’s homes lacked a substantial basis for doing so; (4) the

warrant to search his and his father’s homes was not sufficiently particular; and (5) he was entitled

to a hearing in connection with his suppression motion pursuant to Franks v. Delaware, 438 U.S.

154 (1978). We assume the parties’ familiarity with the underlying facts and procedural history of

this case.

        “When reviewing a district court's decision in the government's favor on a motion to

suppress, this Court examines the record in the light most favorable to the government.” United

States v. Moore, 670 F.3d 222, 226 (2d Cir. 2012) (quoting United States v. Rommy, 506 F.3d 108,

131 (2d Cir. 2007)) (internal quotation marks and brackets omitted). We review the district court’s

factual findings for clear error. Id.

        Russell first argues that the police ignored his requests for a lawyer during interrogation, thus

violating his Miranda rights. See Edwards v. Arizona, 451 U.S. 477, 484–85 (1981). The District

Court, however, did not find Russell’s testimony about requesting a lawyer to be credible. We find


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no clear error in that credibility determination. Russell also alleges that the police "created an

additional obstruction" to his obtaining a lawyer by keeping his girlfriend and father from contacting

him once he arrived at the police station. To the extent Russell is claiming these actions destroyed

the voluntariness of his waiver of Miranda rights, however, this argument is foreclosed by Moran

v. Burbine, 475 U.S. 412 (1986). We therefore see no basis on which to disturb the District Court’s

conclusion that the police did not violate Russell’s Miranda rights.

       Russell next argues that his written statement to the police should have been suppressed

because his arrest inside his own home violated Payton v. New York, 445 U.S. 573 (1980). The

police, however, entered Russell’s home pursuant to a lawful search warrant, and probable cause

supported Russell’s arrest. No violation of Payton therefore occurred. See, e.g., Russell v. Harms,

397 F.3d 458, 466 (7th Cir. 2005) (Payton permits police, when lawfully in defendant’s residence,

to arrest defendant based on probable cause). Moreover, even if a violation of Payton had occurred,

it would not require suppression of Russell’s post-arrest statements made outside his home. See New

York v. Harris, 495 U.S. 14, 21 (1990); Mosby v. Senkowski, 470 F.3d 515, 521 (2d Cir. 2006).

       Third, Russell contends that the evidence recovered from his and his father’s houses should

have been suppressed because the Town Justice who issued the search warrant for those places

lacked a substantial basis for concluding that evidence would be found there. See Illinois v. Gates,

462 U.S. 213, 239 (1983) (noting that in reviewing a magistrate’s decision to issue a warrant, court

must determine if magistrate had substantial basis to find probable cause). This argument is likewise

without merit. The affidavit supporting the application for the search warrant contained the

statements of two children, both of whom offered that Russell requested that they provide him with

pornographic photographs of themselves, and one of whom admitted that he had done so. Given,


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inter alia, that Russell’s encounters with these children took place in Russell’s former home, that

one child stated he had made such photographs in Russell’s former home, that according to both

children Russell thereafter uploaded the images to his computer, and that after Russell moved to a

new residence at least one of the children continued to visit him there, the Town Justice had a

substantial basis for concluding that evidence of Russell’s offenses would be found in his house.

As to the search of the home of Russell’s father, Russell lacks standing to challenge this search, as

he did not establish a personal expectation of privacy there in the proceedings before the district

court. See Minnesota v. Carter, 525 U.S. 83, 88 (1998); United States v. Haqq, 278 F.3d 44, 47 (2d

Cir. 2002).

       Fourth, Russell argues that the search warrant was not sufficiently particular because it

permitted the police to seize any computer or camera equipment in his possession. Russell did not

make this argument below, and it is thus waived. See United States v. Klump, 536 F.3d 113, 120

(2d Cir. 2008). Even if this were not the case, the argument fails on the merits. See United States

v. Hay, 231 F.3d 630, 636–38 (9th Cir. 2000) (warrant authorizing seizure of all computer and

camera equipment belonging to defendant suspected of possessing child pornography is sufficiently

particular); United States v. Upham, 168 F.3d 532, 534–36 (1st Cir. 1999) (same).

       Finally, Russell argues that he is entitled to a Franks hearing because of false statements

included in the affidavit supporting the application for the search warrant. See Franks, 438 U.S. at

156. Specifically, the affidavit misidentified Russell as “Richard F. Russell, Jr.,” and incorrectly

stated that Russell had been convicted of aggravated harassment and false reporting in 1994. The

district court did not clearly err in finding that the challenged facts were neither knowingly nor

recklessly included in the search warrant affidavit, nor material to the finding of probable cause to


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search Russell’s and his father’s homes. We thus agree with the district court that Russell was not

entitled to a Franks hearing.

       We have reviewed Russell’s remaining arguments and find them to be without merit. For

the foregoing reasons, Russell’s conviction is AFFIRMED.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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