In United States v. Nicholson, No. 19-11669 (Jan. 24, 2022) (Jill Pryor, Luck, and Brasher), the Court affirmed Nicholson’s convictions for child pornography and child sex abuse.
On appeal, Nicholson made three arguments: (1) the evidence was insufficient as to three counts; (2) the district court should have suppressed the evidence from the searches that occurred in New York and Kentucky; and (3) the district court should have granted his motion for a mistrial when it admitted, but then excluded, six images found in a camera’s unallocated space.
As to the first issue, the Court found the evidence sufficient to sustain the convictions. It first found that with regard to convictions under 18 U.S.C. § 2423, the government need not prove actual sexual activity, and that evidence of actual sex acts is not the only way to prove the criminal intent to commit those acts. The Court next rejected Nicholson’s venue challenge to his conviction under 18 U.S.C. §§ 2251(a), (e). The Court reaffirmed that venue need only be proved by a preponderance of the evidence as opposed to beyond a reasonable doubt. Additionally, the Court noted that there need not be direct proof of venue where circumstantial evidence in the record as a whole supports the inference that the crime was committed in the district where venue was laid.
As to the second issue, Nicholson argued first that the district court should have granted his motion to suppress images of child pornography found on his laptop in New York because the government failed to follow an addendum appended to the search warrant that required any search of electronic media be completed within sixty days, instead searching his laptop about six months after obtaining the warrant. The Court disagreed, finding that the Fourth Amendment does not specify that search warrants contain expiration dates and contains no requirements about when the search or seizure is to occur or the duration thereof. Additionally, the probable cause that justified the warrant did not dissipate or go stale. The Court also noted that any violation of Fed. R. Crim. P. 41 did not support suppression of the evidence.
Nicholson also argued that evidence resulting from the Kentucky search of the contents of the truck he had been driving should have been suppressed. The government conceded that the FBI’s delay in securing a warrant for the items taken from the truck violated the Fourth Amendment. As such, the Court addressed whether the evidence gathered from the eventual warrant-based search of that property should have been suppressed. The Court held no, finding that the good-faith exception applied. Though the Court found the FBI to be negligent, its negligence “does not warrant suppression.” The Court also found that any error was harmless beyond a reasonable doubt.
Finally, Nicholson argued that the court abused its discretion in denying his request for a mistrial based on the admission and publication of government exhibits that contained images of the victims obtained from his camera’s unallocated space, which the government only learned about from Nicholson’s own expert. The Court disagreed, holding that Nicholson had not demonstrated “incurable prejudice” because the district court excluded the exhibits and instructed the jury that those images would be unavailable during deliberations.