United States v. Seaway, Lamere ( 2020 )

18‐1468 (L)
United States v. Seaway, Lamere
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 24th day of January, two thousand twenty.
PRESENT: PETER W. HALL,
RICHARD J. SULLIVAN,
JOSEPH F. BIANCO,
Circuit Judges.
_____________________________________
United States of America,
Appellee,
v. 18‐1468; 18‐1916; 18‐2795
Tammy M. Martin,
Defendant,
Clif J. Seaway, Tammy J. Lamere,
Defendants‐Appellants.
_____________________________________
For Appellant Seaway: Melissa A. Tuohey, Assistant Federal Public
Defender for Lisa A. Peebles, Federal Public
Defender, Syracuse, New York.
For Appellant Lamere: ROBERT G. WELLS, Syracuse, New York.
For Appellee: CARINA H. SHOENBERGER, Thomas R. Sutcliffe,
Lisa M. Fletcher, Assistant United States
Attorneys for Grant C. Jaquith, United States
Attorney for the Northern District of New York,
Syracuse, New York.
Appeal from judgments of the United States District Court for the Northern
District of New York (Mordue, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgments of the district court are
AFFIRMED.
Clif Seaway and Tammy Lamere appeal from judgments of the United
States District Court for the Northern District of New York (Mordue, J.) entered
on May 3, 2018 and June 18, 2018, respectively. We assume the parties’ familiarity
with the underlying facts, the record of prior proceedings, and arguments on
appeal, which we reference only as necessary to explain our decision to affirm.
I.
Defendant‐Appellant Clif Seaway was convicted following a jury trial of two
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counts of Conspiracy to Sexually Exploit a Child and ten counts of Sexual
Exploitation of a Child, in violation of 18 U.S.C. § 2251(a) and (e). The district court
principally sentenced Seaway to thirty years’ imprisonment on each count, to run
consecutively, for a total term of three hundred and sixty years’ imprisonment.
Seaway argues that the district court erred in denying his motion to suppress
evidence seized pursuant to a search warrant which he asserts was unsupported
by probable cause.
Defendant‐Appellant Tammy Lamere was convicted following a guilty plea of
one count of Conspiracy to Sexually Exploit a Child and one count of Sexual
Exploitation of a Child, in violation of 18 U.S.C. § 2251(a) and (e). The district court
sentenced Lamere to thirty years’ imprisonment on each count, to run
concurrently, followed by fifteen years of supervised release. Lamere argues on
appeal that the district court improperly applied a four‐level enhancement,
applicable where a child pornography offense involves material portraying
sadistic or masochistic conduct, to her Sentencing Guidelines calculation. Lamere
further contends that her sentence is substantively unreasonable.
II.
“On an appeal from a ruling on a motion to suppress, we review a district
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court’s findings of historical fact for clear error, but analyze de novo the ultimate
determination of such legal issues as probable cause and the good faith of police
officials in relying upon a warrant.” United States v. Smith, 9 F.3d 1007, 1011 (2d
Cir. 1993). Here, we owe no particular deference to the district court’s conclusions,
and in reviewing whether there was probable cause for a search warrant our task
“is simply to ensure that the [issuing judge] had a substantial basis for concluding
that probable cause existed,” id., 9 F.3d at 1012 (internal quotation marks,
alterations, and citations omitted). “A[n issuing judge’s] determination of
probable cause should be paid great deference by reviewing courts.” Illinois v.
Gates, 462 U.S. 213, 236 (1983) (internal quotation marks and citation omitted).
“We review a sentence for procedural and substantive reasonableness,
which is akin to a ‘deferential abuse‐of‐discretion standard.’” United States v.
McCrimon, 788 F.3d 75, 78 (2d Cir. 2015) (quoting United States v. Cavera, 550 F.3d
180, 189 (2d Cir. 2008)).
III.
The search warrant authorizing a search of Seaway’s property was issued
based on information provided by Seaway’s nephew, William Raymond III, while
Raymond was incarcerated for crimes relating to his sexual conduct with a minor.
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In Raymond’s statement attached to the warrant application, he explained that he
observed images and videos of child pornography on Seaway’s computer while
residing at Seaway’s house in August through September of 2015. The statement,
which was given during a face‐to‐face meeting with an investigator, went into
detail about (among other things): the circumstances surrounding Seaway
showing Raymond the pornography, the content of the photos and videos, how
Raymond knew the age of the children in the photos, the color of the hard drive
on which Seaway stores his child pornography, Seaway’s password to his
computer, Seaway’s address, and the fact that Seaway had a light blue school bus
behind his trailer used for storage. Raymond also disclosed that, while he was
living with Seaway, Raymond “had a girlfriend at the time who was 13 years old”
and that this was the reason he was “locked up here at the jail.” Seaway App. 66.
A few days after Raymond made this statement, investigating police
inquired about Seaway’s criminal history and discovered that he had been
arrested for acting “in manner [sic] to injure child [sic] less than 17,” Seaway App.
63, and had been the subject of an investigation into alleged sexual abuse of a
prepubescent minor. The police also verified the address Raymond gave as
Seaway’s residence and confirmed that Seaway still was associated with that
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address. Based on an application setting forth these facts, a county judge issued a
search warrant authorizing a search of Seaway’s home and property (including
the bus) approximately one month after Raymond made his statement. A few days
later, police executed the warrant and seized evidence used to support Seaway’s
indictments.
Seaway argues that Raymond’s statements did not bear sufficient indicia of
reliability because nothing in the investigator’s affidavit attached to the warrant
application or in Raymond’s attached statement gave reason for the issuing judge
to believe that Raymond was reliable or telling the truth. Seaway takes particular
issue with the fact that the full extent of Raymond’s criminal history was
undisclosed in the warrant application and supporting materials and further
suggests that Raymond may have had a motive to lie to receive leniency on
pending criminal charges.
When determining whether there is probable cause to support a search
warrant, “[t]he task of the issuing magistrate is simply to make a practical,
common‐sense decision whether, given all the circumstances set forth in the
affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons
supplying hearsay information, there is a fair probability that contraband or
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evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238.
Though we need not defer to the district court’s conclusion in this case, we accord
“great deference” to the issuing judge’s determination of probable cause, id. at 236,
and are instructed to resolve “doubtful or marginal cases” in harmony with the
“preference to be accorded to warrants,” Smith, 9 F.3d at 1012 (quoting United
States v. Ventresca, 380 U.S. 102, 109 (1965)).
Given the totality of the circumstances and considering the deference we
give to the issuing judge, the district court was correct to deny the motion to
suppress. It is true that “a criminal informer is less reliable than an innocent
bystander with no apparent motive to falsify,” United States v. Gagnon, 373 F.3d
230, 235 (2d Cir. 2004) (internal quotation mark and citation omitted), so
Raymond’s reliability may be undermined by the fact that he was incarcerated at
the time of his interview. But we have also explained that “a face‐to‐face informant
must . . . be thought more reliable than an anonymous telephone tipster, for the
former runs the greater risk that he may be held accountable if his information
proves false.” Id. (internal quotation marks, alterations, and citation omitted).
While Raymond’s reliability may be undermined by his criminality, it is bolstered
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by his face‐to‐face interview and the fact that he had an incentive to tell the truth
lest he “be held accountable.” Id.
Raymond’s reliability is further supported by the fact that he “testified
under threat of the criminal sanction for perjury,” and that his eye‐witness report
of the crime was incredibly detailed. United States v. Hernandez, 85 F.3d 1023, 1028
(2d Cir. 1996); see also id. (“We think that such a detailed eye‐witness report of a
crime is self‐corroborating; it supplies its own indicia of reliability.” (internal
quotation mark, alteration, and citations omitted)). His statement set forth in
detail his basis for knowing about the collection of child pornography on Seaway’s
computer, how and where the collection was stored, and what kinds of
photographs and videos Raymond directly observed. The fact that Raymond had
a criminal history not fully detailed in the warrant application or its attachments
does not erase these strong indications of reliability. This is particularly true given
that Raymond’s recent crimes – the nature of which were referenced in his
statement – do not bear on his honesty and, in fact, could help explain why Seaway
showed Raymond the pictures and videos in the first instance.
Viewing the circumstances as a whole, it is clear that the issuing judge had
a “substantial basis” to conclude there was probable cause to search Seaway’s
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property. The district court did not err in denying Seaway’s motion to suppress
the evidence gathered as a result of the search warrant.
IV.
Lamere argues on appeal that the sentencing court improperly applied a
four‐level enhancement when it adopted the Guidelines calculation set forth in the
Presentence Investigation Report (“PSR”). Defense counsel did not object to the
PSR’s Guidelines calculations, which included this enhancement, either in
Lamere’s sentencing memorandum before the district court or at the sentencing
hearing. Lamere’s challenge to the calculation of the Guidelines is therefore
reviewed under a plain error standard. See, e.g., McCrimon, 788 F.3d at 78 (failure
to object to purported mistake in Guidelines calculation is reviewed for plain
error).
To demonstrate plain error, Lamere must show that “(1) there is an error;
(2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the
error affected the appellant’s substantial rights, which in the ordinary case means
it affected the outcome of the district court proceedings; and (4) the error seriously
affects the fairness, integrity or public reputation of judicial proceedings.” United
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States v. Marcus, 560 U.S. 258, 262 (2010) (internal quotation marks, alterations, and
citation omitted).
The enhancement at issue applies where “the offense involved material that
portrays . . . sadistic or masochistic conduct or other depictions of violence.”
U.S.S.G. § 2G2.1(b)(4). “We have . . . explained that this enhancement will apply
where (1) an image depicts sexual activity involving a minor and (2) the depicted
activity would have caused pain to the minor.” United States v. Bleau, 930 F.3d 35,
40 (2d Cir. 2019) (internal quotation marks and citation omitted). Both physical
and mental pain suffice to trigger the enhancement, and the analysis of whether a
depiction is “sadistic” under the enhancement is an objective one. Id. An objective
inquiry directs the district court to “determine only whether an outside viewer, as
he is watching, would perceive the depicted activity as causing physical or mental
pain to the minor during the course of the activity.” Id. at 41.
The PSR explains that it applied the enhancement because of the depictions
of Lamere digitally penetrating the victim’s vagina and because of Lamere’s
involvement in producing a video of the victim performing oral sex on Seaway.
We have upheld the application of the enhancement to situations where a
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prepubescent child has been penetrated with a foreign object. See, e.g., United
States v. Delmarle, 99 F.3d 80, 83 (2d Cir. 1996) (finding no error in district court’s
determination that enhancement for sadistic depictions applied where
photograph showed young boy being penetrated by unidentified object). It was
not a “clear or obvious” error, Marcus, 560 U.S. at 262, if it was error at all, for the
district court to find that the material portrayed was sadistic. It was therefore not
plain error for the district court to apply the enhancement.
V.
Lamere next argues that her sentence was substantively unreasonable and
greater than necessary to accomplish the goals of sentencing. Lamere suggests
that because of her intellectual disabilities, she is less morally culpable than her
sentence reflects and that her thirty‐year sentence is effectively a sentence of life in
prison because of her health problems.
“Upon review for substantive unreasonableness, we take into account the
totality of the circumstances, giving due deference to the sentencing judge’s
exercise of discretion, and bearing in mind the institutional advantages of district
courts.” United States v. Brown, 843 F.3d 74, 80 (2d Cir. 2016) (internal quotation
marks and citation omitted). In giving this due deference, we “provide relief only
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in the proverbial ‘rare case.’” United States v. Bonilla, 618 F.3d 102, 109 (2d Cir.
2010) (quoting United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009)). “A
sentencing judge has very wide latitude to decide the proper degree of
punishment for an individual offender and a particular crime,” and “[w]e will . . .
set aside a district court’s substantive determination only in exceptional cases
where the trial court’s decision cannot be located within the range of permissible
decisions.” Cavera, 550 F.3d at 188, 188‐89 (internal quotation marks and citation
omitted).
Lamere’s unfortunate personal circumstances do not render her sentence
substantively unreasonable. At sentencing, the district court indicated that it
thoroughly considered Lamere’s background and characteristics when imposing
the sentence. In sentencing Lamere to the statutory maximum of thirty years on
each count to run concurrently, the district court explained that it was doing so in
part because of Lamere’s repeated victimization of the minor victim over a period
of years. Notably, while the district court imposed the maximum sentences for
each conviction, it did not sentence Lamere to consecutive terms of imprisonment,
which thereby would have imposed the maximum available sentence of sixty
years. As the district court explained, the sentence “reflects the seriousness of
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[Lamere’s] offense and provides just punishment for [her] conduct, while
promoting respect for the law, and avoiding unwarranted sentencing disparities.”
Lamere App. 85.
It is also worth noting that we have upheld much longer sentences for the
production of child pornography. In fact, we have explained that a sixty‐year
sentence, which may result in a de facto life sentence, “is within the realm of
punishments that this Court has upheld as reasonable for production of child
pornography.” Brown, 843 F.3d at 83. Given the heinous facts of this case and
given that we have upheld as reasonable much longer sentences for similar
conduct, we cannot say that the district court abused its discretion in imposing
Lamere’s sentence.
***
We have considered Appellants’ remaining arguments and find them to be
without merit. We hereby AFFIRM the judgments of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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