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.
R. Aframe, Assistant United States Attorney, with whom John
J. Farley, Acting United States Attorney, was on brief, for
Torruella, Kayatta, and Barron, Circuit Judges.
BARRON, Circuit Judge.
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.
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.
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 and recording a number of video chats
as they appeared on his screen. He then stored those
recordings on his personal computer.
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.
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.
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
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.
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 ...