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United States v. Powell

United States Court of Appeals, First Circuit

July 16, 2018

UNITED STATES OF AMERICA, Appellee,
v.
BRIAN POWELL, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Paul J. Barbadoro, U.S. District Judge]

          Jeffrey W. Langholtz for appellant.

          Seth R. Aframe, Assistant United States Attorney, with whom John J. Farley, Acting United States Attorney, was on brief, for appellee.

          Before Torruella, Kayatta, and Barron, Circuit Judges.

          BARRON, Circuit Judge.

         Brian Powell appeals his conviction based on his guilty plea for production of child pornography in violation of 18 U.S.C. § 2251(a). Because we see no error in the District Court's ruling denying his motion to withdraw his guilty plea, we affirm the conviction.

         I.

         On April 19, 2016, the government filed a one-count information against Brian Powell, alleging that he had produced child pornography in violation of 18 U.S.C. § 2251(a). On May 2, 2016, Powell pleaded guilty to that count. At the plea hearing, the government offered the following facts in support of the charge.

         Omegle is a chat website that allows users to see each other and "chat" using their computers' video cameras and through instant messaging. In July 2015, Powell used Omegle to produce child pornography by initiating sexually explicit video-chats with minors[1] and recording a number of video chats as they appeared on his screen. He then stored those recordings on his personal computer.

         Before taking Powell's plea, the District Court engaged him in a colloquy pursuant to Rule 11 of the Federal Rules of Criminal Procedure in which, among other things, he was asked if he "disagree[d] with anything that [the prosecutor] ha[d] said," and Powell confirmed that he did not. See Fed. R. Crim. P. 11. The District Court also confirmed that Powell understood the potential sentence that he was facing and how that sentence would be calculated. Powell was next asked if he was "satisfied with the legal advice [he had] received from [his] attorney," to which Powell responded that he was. The District Court also asked Powell's attorney if "to [his] knowledge, is [Powell] pleading guilty because of any illegally obtained evidence in the government's possession?" Powell's attorney replied that he "did not believe" so. At the end of the colloquy, the District Court accepted Powell's guilty plea.

         Nevertheless, many months later, on February 17, 2017, Powell filed a motion to withdraw his guilty plea. He alleged in that motion that his Fourth Amendment rights had been violated because Omegle had forwarded screenshots it had collected of Powell's chat sessions and the IP address used for them to the National Center for Missing and Exploited Children (NCMEC), which had then viewed those screenshots and forwarded the IP address and the screenshots to law enforcement. Powell argued that his counsel, in advising him with respect to the guilty plea, had provided him with ineffective assistance of counsel in violation of his Sixth Amendment right to counsel, see Strickland v. Washington, 466 U.S. 668, 697 (1984), by not having moved pursuant to the Fourth Amendment to suppress the evidence that Omegle had sent to NCMEC.

         The District Court acknowledged that Powell would be entitled to withdraw his guilty plea if his counsel had failed to file a meritorious suppression motion, and so it held a hearing to address the potential merits of any such motion. At that hearing, the District Court adduced the following undisputed facts.

         Powell's solicitation of child pornography was picked up through Omegle's systematic review process. In this process, Omegle automatically records periodic screenshots of users' video chats. Omegle employees then review these records and forward images that employees suspect of being child pornography to NCMEC, an entity that "is statutorily obliged to maintain an electronic tip line . . . to report possible Internet child sexual exploitation violations to the government." United States v. Ackerman, 831 F.3d 1292, 1296 (10th Cir. 2016), reh'g denied (Oct. 4, 2016). NCMEC employees then view the images and run the corresponding IP addresses through a publicly-available system to identify the source's geographic location. NCMEC then passes those images and the IP address on to law enforcement.

         Omegle followed this process in this case. During Powell's online interactions, Omegle automatically took screenshots. Omegle staff then reviewed these screenshots, along with information about Powell's IP address and webcam. An Omegle employee identified the screenshots as containing possible child pornography. Omegle submitted the screenshots and computer and webcam information to NCMEC. NCMEC reviewed those screenshots and determined that they contained child pornography. NCMEC ...


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