United States v. Shawn Parrish ( 2019 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0271p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
> No. 18-3446
v. │
│
│
SHAWN P. PARRISH, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:16-cr-00243-1—Algenon L. Marbley, District Judge.
Argued: October 24, 2019
Decided and Filed: November 1, 2019
Before: SUTTON, COOK, and THAPAR, Circuit Judges.
_________________
COUNSEL
ARGUED: John Endresen, Tyler J. Owen, UNIVERSITY OF MICHIGAN LAW SCHOOL,
Ann Arbor, Michigan, for Appellant. Kevin Koller, UNITED STATES ATTORNEY’S
OFFICE, Cincinnati, Ohio, for Appellee. ON BRIEF: John Endresen, Tyler J. Owen, Melissa
M. Salinas, UNIVERSITY OF MICHIGAN LAW SCHOOL, Ann Arbor, Michigan, for
Appellant. C. Mitchell Hendy, UNITED STATES ATTORNEY’S OFFICE, Cincinnati, Ohio,
for Appellee.
_________________
OPINION
_________________
SUTTON, Circuit Judge. Police executed a search warrant at Shawn Parrish’s house
after detecting that an IP address associated with his home had downloaded child pornography.
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The search turned up nude videos of Parrish’s twelve-year-old daughter on his cell phone.
A jury convicted him of receiving and possessing child pornography, and a prior related
conviction triggered a sentence enhancement. Parrish appeals his conviction, arguing that the
search of his cell phone violated the Fourth Amendment and that the child pornography statute is
void for vagueness. He also appeals his sentence, arguing his prior conviction exceeded the
mandatory minimum’s scope. The district court rejected each argument. We affirm.
I.
In August 2016, officers executed a search warrant at 87 Daugherty Circle in Newark,
Ohio. Days earlier, investigators with Franklin County’s Internet Crimes Against Children
Taskforce had detected child pornography being downloaded via peer-to-peer file-sharing
software. They traced the downloads to an IP address belonging to Brenda Meckley, who lived
at 87 Daugherty Circle. Ms. Meckley lived there with two other people, Jerimiah Wigle and
Shawn Parrish. The taskforce thought Parrish might be responsible for the downloads due to his
prior North Carolina conviction for “indecent liberties with children.” N.C. Gen. Stat. § 14-
202.1(a)(1).
Special Agent Nate Simon, a member of the task force, prepared a warrant application,
which included a detailed affidavit and two attachments. The affidavit explained what the
officer knew about the downloads and about the storage of child pornography. Attachment A
listed evidence the task force hoped to find, such as “visual depictions of minor(s) engaged in
sexually explicit conduct, child pornography or child erotica.” R.122 at 23. Attachment B
detailed the places to be searched, including “[t]he residence . . . [and] all its appurtenances,
parking areas, outdoor working areas, and detached buildings, and any computers or digital
media located therein.” Id. at 24.
When the taskforce executed the warrant, Parrish and two other residents came to the
front door and let the officers enter the house after learning that they had a warrant. Eleven or
twelve officers conducted the search. Before long, two officers—Special Agent Simon and
Investigator Amanda Saxton—asked if Parrish would speak to them in their mobile forensic lab.
No. 18-3446 United States v. Parrish Page 3
Parrish agreed, following the officers to the mobile lab. Both officers carried sidearms, and
Saxton wore a bulletproof vest.
The mobile lab is a modified truck with a cab and two segments in the back. The front
segment contains forensic gear and controls for the audio and video equipment. The rear
segment is an interview room, which has a table with bench seats on either side. The lab was
new and had been used just a few times before.
So new, its audio equipment created challenges for the officers. During the interview,
one of them pushed the mute button, turning off the audio recording. That meant Parrish’s
interview was captured on video alone.
After introducing themselves, Simon and Saxton explained that they were at Parrish’s
home to execute a search warrant for child pornography and gave Parrish a form spelling out his
Miranda rights. Everyone, including Parrish, agrees that Parrish told the agents he understood
the form.
Simon explained to Parrish “what devices we would be looking at, you know, whether
it’s laptops, cell phones, thumb drives, hard drives.” R.37 at 78. Parrish admits he volunteered
that he had nude pictures of his 12-year-old daughter on his cell phone. Either before or after
this statement—the record points in both directions—Simon asked Parrish for his cell phone. He
gave it to them, and Simon asked Parrish to change the phone’s password to a simple one.
After Parrish changed the password to 1-2-3-4, Simon scrolled through the cell phone’s
contents and located the videos. In response, Parrish explained what would become his defense
theory at trial: that he had discovered the videos on his daughter’s phone after she sent them to a
man on Facebook, prompting Parrish to copy them to his own phone to confront her about the
risks of such behavior. Because his daughter lived with her grandparents, he said he needed to
preserve the videos so he could confront her about them later.
The interview lasted about 30 minutes. At the end, Parrish signed a consent form
authorizing the police to search and seize his daughter’s cell phone to confirm his story that she
had taken the nude videos herself. The agents also seized his phone.
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Forensic evidence confirmed part of Parrish’s story. His daughter had sent the images to
a man on Facebook, and most of the videos on Parrish’s phone originated on his daughter’s
phone. But he had taken at least one inappropriate video of her on his own. And analysis
showed that he hadn’t just saved the videos on his phone; he had watched them repeatedly, on
different days at different times, and had taken screenshots of them. Nor, when he had the
chance, did he confront his daughter or her grandparents about the videos she created.
A jury convicted Parrish of receiving and possessing child pornography. 18 U.S.C.
§ 2252(a)(2), (a)(4)(B). At the prosecution’s request, the district court dismissed the possession
charge to avoid the risk of a double jeopardy violation. Parrish received a sentence of 180
months on the remaining count, the mandatory minimum for someone with a prior offense
relating to “abusive sexual conduct involving a minor.” 18 U.S.C. § 2252(b)(1).
II.
Parrish’s challenge to the search implicates three questions: Did the warrant authorize
officers to search Parrish’s phone? If not, did the officers have a reasonable, good-faith belief
that the warrant authorized the search? United States v. Leon, 468 U.S. 897, 905 (1984). If not,
did Parrish consent to the search?
Warrant authorization. There are two sides to the warrant-authorization question.
On one side, the warrant permitted officers to search “any computers or digital media” in
Parrish’s house or “its appurtenances, parking areas, outdoor working areas, and detached
buildings.” R.122 at 6. Dictionary definitions suggest that a cell phone counts as a form of
digital media. A medium, in the relevant sense, is “something (as a magnetic disk) on which
information may be stored,” Merriam-Webster Unabridged Online (2016), or a “physical
material (as tape, disk, paper, etc.) used for the storage of data,” Oxford English Dictionary
Online (3d ed. 2019). Appending the adjective “digital” just changes the kind of data being
stored. Cell phones store digital information, seemingly bringing them within the scope of the
warrant’s permission to search “digital media” in Parrish’s house. Pointing in the same
direction, the warrant covered “[a]ny visual depiction of minor(s) engaged in sexually explicit
conduct.” R.122 at 5. Ordinarily, police executing a warrant of a house may search anywhere
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there is probable cause to believe an item described in the warrant might be found, unless the
warrant adds location restrictions. See Horton v. California, 496 U.S. 128, 140–41 (1990);
United States v. Ross, 456 U.S. 798, 823–24 (1982). This warrant did not include location
restrictions.
On the other side, the warrant did not explicitly permit a search of persons (and any cell
phones on them), an easy enough request and a rather obvious one when it comes to a search for
evidence of child pornography. So obvious, the officers sought authority to search “any persons,
computers, and computer related media” located at 87 Daugherty Circle. R.122 at 22. But the
magistrate, for reasons of his own, granted authority only to search the premises plus the
“computers or digital media located therein”—and did not mention permission to search persons.
Id. at 6. We need not decide which side of this complex debate is the correct side.
Good faith. A difficult question of warrant construction makes for an easy question of
Leon application. Under Leon, courts will not exclude evidence from trial that was seized “by
officers reasonably relying on a warrant issued by a detached and neutral magistrate.” 468 U.S.
at 913. Even if the warrant technically did not permit a search of Parrish and the cell phone on
him, the officers reasonably could have believed it did.
As just shown, the ordinary meaning of the terms used in the warrant—authorizing the
search and seizure of “digital media”—covers a cell phone. We thus could not fault an officer
for thinking, reasonably, that it reached cell phones. Confirming the customary use of this
language, one officer at trial used the phrase “digital media” to describe his area of expertise.
R.116 at 230. When asked to explain to the jury what that meant, he said it included
“[c]omputers, mobile devices, such as cell phones, digital cameras, [and] flash drives.” Id. at
231. No contrary testimony appears in the record of the trial or of the suppression hearing. The
unchallenged common meaning of “digital media” to a reasonable officer on the task force
executing the warrant included cell phones, placing this case within Leon’s boundaries.
The officers had a second reasonable basis for searching the cell phone. The warrant
permitted them to search for child pornography anywhere on the premises they had probable
cause to think it might be found. Because that description includes cell phones, a “reasonably
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well-trained officer” executing the warrant could have reasonably believed that he was acting
within its scope. United States v. Moorehead, 912 F.3d 963, 968 (6th Cir. 2019).
Consent. One other ground exists for affirming the district court’s decision. Parrish
consented to the seizure and search of his cell phone.
A 360-degree view guides us in determining whether an individual voluntarily consented
to a search or seizure. Relevant considerations include the characteristics of the person being
interviewed—age, education, intelligence—and the circumstances of the situation, like whether
the police told him about his constitutional rights, how long the interview lasted, and whether
police asserted authority to take the action regardless of consent. Schneckloth v. Bustamonte,
412 U.S. 218, 226 (1973) (collecting cases).
Whether consent was voluntary is a question of fact. Id. at 227. Clear-error review thus
applies to the finding. United States v. Carter, 378 F.3d 584, 587 (6th Cir. 2004) (en banc).
The district court did not clearly err when it found that Parrish consented to handing over
his cell phone. Parrish voluntarily followed the officers into the mobile lab for an interview.
At the beginning of the interview, Parrish read the Miranda warnings the officers provided him.
Special Agent Simon testified, and the video confirmed, that the interview was low key and
conducted in a cooperative spirit. The officers did not restrain Parrish. Nor did they lock the
door to keep him inside the mobile lab. Investigator Saxton testified that, had Parrish tried to
leave or otherwise end the interview, the officers would have let him. Parrish worked with the
officers to remove the passcode from his phone and change it. And the record contains no
evidence, as the district court found, that the officers told Parrish the warrant covered the cell
phone before asking for his consent to search it.
Parrish insists that Bumper v. North Carolina establishes that any time police assert
lawful authority to take an action, consent to that action becomes coerced and invalid. 391 U.S.
543 (1968). But that’s not what Bumper held. It ruled that consent in such a situation cannot be
proved by “no more than” acquiescence to an assertion of authority. Id. at 548–49. Removing
all doubt, the Supreme Court later clarified that an assertion of authority to act is one factor, not
the only factor, in considering whether consent was voluntary. In Schneckloth, the Court
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reasoned that Bumper renders consent invalid only “if under all the circumstances it has appeared
that the consent was not given voluntarily—that it was . . . granted only in submission to a claim
of lawful authority.” Schneckloth, 412 U.S. at 233.
No matter how one reads the cases, the district court at any rate did not clearly err in
finding that the police never told Parrish that the warrant allowed them to take his cell phone.
Parrish, it is true, testified to the contrary. He said that Simon restrained him, patted him down,
and took the phone out of his pocket before putting it back in his pocket and taking him into the
mobile lab for the interview. But the district court found that, while Simon may have patted
Parrish down before the interview, Parrish’s testimony that Simon took the phone out of his
pocket and put it back in was not credible. Both officers, it’s also true, wore holstered sidearms,
and Investigator Saxton wore a bulletproof vest. But these realities, when considered alongside
the other circumstances, do not show that the district court clearly erred in finding Parrish was
coerced into handing over his cell phone. All in all, Parrish does not have a Fourth Amendment
right to exclude the evidence on his cell phone.
III.
Parrish maintains that the relevant statute—defining “sexually explicit conduct” to
include “lascivious exhibition of the genitals or pubic area of any person,” 18 U.S.C.
§ 2256(2)(A)(v)—is unconstitutionally vague. We don’t think so.
Criminal statutes violate the Fifth Amendment’s due process clause if they are too vague
“to give ordinary people fair notice” of the criminalized conduct or “so standardless” as to
“invite[] arbitrary enforcement.” Johnson v. United States, 135 S. Ct. 2551, 2556 (2015). The
statute clears that bar. The Supreme Court has already given its stamp of approval to this phrase
of the statute, describing the vagueness argument as “insubstantial.” United States v. X-Citement
Video, Inc., 513 U.S. 64, 78–79 (1994).
Pressing the point, Parrish invokes a purported circuit split over the meaning of
“lascivious exhibition,” suggesting that it does not give fair notice. While circuit splits
sometimes establish ambiguity, they do not necessarily establish vagueness. A statute provides
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fair notice “where reasonable persons would know that their conduct is at risk.” Maynard v.
Cartwright, 486 U.S. 356, 361 (1988). This definition provides plenty of notice on that score.
The apparent circuit split is a mirage anyway. The cited decisions in reality apply the
same standard we do. Compare United States v. Amirault, 173 F.3d 28, 31–33 (1st Cir. 1999),
with Doe v. Chamberlin, 299 F.3d 192, 196 (3d Cir. 2002), and United States v. Brown, 579 F.3d
672, 680 (6th Cir. 2009).
IV.
Parrish claims that his 180-month sentence as a repeat offender, see 18 U.S.C.
§ 2252(b)(1), should have been lower because he was a first-time offender. The higher range
applies if a defendant has a prior conviction under certain federal statutes “or under the laws of
any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving
a minor or ward.” Id. Parrish has one relevant prior conviction—a state law conviction.
North Carolina convicted him of indecent liberties with children in 1998. N.C. Gen. Stat.
§ 14-202.1(a)(1). At issue is whether this conviction “relat[es] to . . . abusive sexual conduct
involving a minor.” 18 U.S.C. § 2252(b)(1).
In resolving the question, we apply the categorical approach, most familiar to
connoisseurs of the Armed Career Criminal Act but also applicable to the child pornography
statute. United States v. Mateen, 806 F.3d 857, 859 (6th Cir. 2015). That means we construct a
generic version of the crime and compare it to the range of conduct the state law criminalizes.
Id. Then we look to the sentencing enhancement to determine how close the match must be.
Under the Armed Career Criminal Act, the match must be fairly close. The state crime
doesn’t trigger the enhancement if its coverage exceeds the generic version of the crime. That’s
because the Act defines a “violent felony” as “any crime” that “is” one of the named crimes:
“burglary, arson, or extortion.” 18 U.S.C. § 924(e)(2)(b)(ii). The match doesn’t have to be
nearly as close for the child pornography statute. That’s because a state crime triggers the
enhancement if it “relat[es] to” the relevant conduct: “aggravated sexual abuse, sexual abuse, or
abusive sexual conduct involving a minor or ward.” Id. § 2252(b)(1); Mateen, 806 F.3d at 861.
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In our view, as in the district court’s view, Parrish’s North Carolina conviction is
“relat[ed] to” abusive sexual conduct involving a minor. Consistent with our case law and
dictionary definitions, it’s fair to treat the generic version of “abusive sexual conduct involving a
minor or ward” as improper, perverted, or damaging behavior associated with libidinal
gratification concerning a minor or ward. See Webster’s Third New International Dictionary 8
(1981) (defining “abusive” as “characterized by wrong or improper use or action,” “perverted,”
or “physically injurious”); Black’s Law Dictionary 13 (10th ed. 2009) (roughly the same);
Mateen, 806 F.3d at 861 (defining “sexual” as “of or relating to the sphere of behavior associated
with libidinal gratification”).
Two other circuits agree. The Second and Eighth Circuits have defined the generic crime
as “misuse or maltreatment of a minor for a purpose associated with sexual gratification.”
United States v. Barker, 723 F.3d 315, 318, 324 (2d Cir. 2013); United States v. Sonnenberg,
556 F.3d 667, 671 (8th Cir. 2009). The Eleventh Circuit has gestured toward a potentially
narrower definition, “behaving in a way that harms a minor for the purpose of one’s libidinal
gratification,” but it has not adopted that definition in a precedential decision. United States v.
Johnson, 681 F. App’x 735, 740 (11th Cir. 2017) (per curiam).
We have no trouble concluding that North Carolina’s crime of indecent liberties with
children “relat[es] to” this generic crime. The North Carolina crime occurs when someone over
16 and at least five years older than the child “[w]illfully takes or attempts to take any immoral,
improper, or indecent liberties with any child of either sex under the age of 16 years for the
purpose of arousing or gratifying sexual desire.” N.C. Gen. Stat. § 14-202.1(a)(1). Those
elements satisfy the generic definition. Improper, perverted, or damaging behavior? The North
Carolina crime requires “immoral, improper, or indecent liberties.” Id. Associated with libidinal
gratification? The crime requires the liberties to have been “for the purpose of arousing or
gratifying sexual desire.” Id. Related to or concerning a minor? The statute criminalizes a
subset of cases involving minors—only those in which the child is under 16 and at least 5 years
younger than the perpetrator. Id. All of this “relat[es] to” the “abusive sexual conduct involving
a minor.” 18 U.S.C. § 2252(b)(1).
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Contrary to Parrish’s suggestion, United States v. Lockhart does not tell us what “abusive
sexual conduct involving a minor” means. 136 S. Ct. 958 (2016). Sure, that case interpreted the
same statute. But it answered a different question. Lockhart explained that in the list
“aggravated sexual abuse, sexual abuse, and abusive sexual conduct involving a minor,” the last
phrase, “involving a minor,” modifies only the last element in the list, “abusive sexual conduct.”
Id. at 962. That point tells us something about the scope of “aggravated sexual abuse” and
“sexual abuse,” but it does not fix the meaning of “abusive sexual conduct involving a minor.”
We affirm.