United States v. Adrian Grisanti ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 18-2993 & 19-1576
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ADRIAN GRISANTI,
Defendant-Appellant.
____________________
Appeals from the United States District Court for the
Southern District of Indiana, New Albany Division.
No. 4:16-cr-00018-TWP-VTW-1 — Tanya Walton Pratt, Judge.
____________________
ARGUED OCTOBER 2, 2019 — DECIDED NOVEMBER 22, 2019
____________________
Before BAUER, RIPPLE, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Appellant Adrian Grisanti was
convicted of child-pornography offenses and destruction of
evidence. On appeal, he challenges the denial of his motion to
suppress evidence and the length of his sentence. We affirm
on both issues. We have already held that the good-faith ex-
ception applies to the same warrant at issue in this case, which
authorized the use of a sophisticated technique to identify us-
ers of a child-pornography website. See United States
2 Nos. 18-2993 & 19-1576
v. Kienast, 907 F.3d 522, 529 (7th Cir. 2018). Grisanti’s reasons
for reconsidering Kienast are not persuasive. Also, his sen-
tence was not unreasonable and the district court did not
make any procedural error.
I. Factual Background and Procedural History
The Federal Bureau of Investigation gained control of a
child-pornography website called “Playpen.” The FBI kept
Playpen running for two weeks from a server in Newington,
Virginia, to locate people who distributed and viewed child
pornography on the site. Because Playpen allowed visitors to
use it anonymously, the FBI applied to a magistrate judge in
the Eastern District of Virginia for a warrant authorizing the
use of a “Network Investigative Technique,” or “NIT,” to
identify the site’s users. When a user logged into Playpen, the
NIT installed malware on the user’s computer and relayed
identifying information about that computer back to the FBI’s
server in Virginia. An affidavit supporting the warrant appli-
cation explained this to the magistrate judge.
Exactly where these searches would occur was not quite
as clear. The application said that the property to be searched
was “located in the Eastern District of Virginia.” The applica-
tion’s “Place to be Searched” addendum stated, though, that
the NIT would be “deployed” on a server “located at a gov-
ernment facility in the Eastern District of Virginia” to obtain
information from “activating computer[s]”—those of “any
user” who logged into Playpen. And the supporting affidavit
added that the NIT “would cause an activating computer—
wherever located—to send” information to the Virginia
server. Based on these representations, the magistrate judge
issued a warrant authorizing the use of the NIT to search
Nos. 18-2993 & 19-1576 3
property “located in the Eastern District of Virginia” to obtain
information from the computers of Playpen users.
When Grisanti logged into Playpen from his work com-
puter in Indiana, the NIT malware was installed and sent
identifying information to the FBI. Using that information, the
FBI obtained additional search warrants in Indiana and found
evidence of child pornography on Grisanti’s work computer.
Before the FBI could complete its investigation, however,
Grisanti learned of the inquiry. He destroyed the hard drive
and a flash drive. He was charged in the Southern District of
Indiana with destruction of evidence and several child-por-
nography offenses. See 18 U.S.C. §§ 1519, 2252A(a)(2)(A), &
2252A(a)(5)(B).
Grisanti moved to suppress all evidence obtained as a re-
sult of the NIT warrant. Judge Pratt agreed with him that the
warrant was invalid because the magistrate judge had ex-
ceeded her jurisdiction by authorizing searches outside of the
Eastern District of Virginia, in violation of the Federal Magis-
trates Act, 28 U.S.C § 636(a)(1), and the version of Federal
Rule of Criminal Procedure 41(b) in effect when the warrant
was issued in 2015. Judge Pratt denied the motion to suppress,
however, concluding that the FBI agents had relied on the
warrant in good faith. 1
A jury found Grisanti guilty of all charges. The Presen-
tence Report proposed a Sentencing Guideline range of 108 to
135 months in prison. Judge Pratt later adopted that calcula-
tion without objection. In Grisanti’s sentencing memoran-
1 As noted in Kienast, 907 F.3d at 527 n.1, Rule 41 was amended in 2016
to permit magistrate judges to issue warrants like the NIT warrant here.
See Fed. R. Civ. P. 41(b)(6)(A).
4 Nos. 18-2993 & 19-1576
dum, he requested a 78-month sentence, arguing that he had
an “addiction” to child pornography and needed treatment.
He also cited the “Child Pornography Offender Risk Tool,”
the “Correlates of Admission of Sexual Interest in Children”
assessment, and other research to argue that he is unlikely to
recidivate because he is “white, employed, and had no previ-
ous criminal history,” and had not committed any so-called
“contact offenses.” 2
At the sentencing hearing, Grisanti’s attorney argued that
Grisanti had “compartmentalized” his criminal behavior and
was otherwise a “good, loving husband” and “caring em-
ployee.” The judge raised her concern that Grisanti had de-
fended himself by blaming others and still failed to take full
responsibility. Even though Grisanti accepted that he had “an
addiction or a criminal problem,” the judge noted, he would
not be able to “get better” if he refused to accept that he had
an “issue” that “needs treatment”—he would be “just like”
another defendant whom the judge had sentenced earlier that
day for his second conviction for child pornography. The
judge also questioned Grisanti’s argument about low risk of
recidivism and specifically whether race had “anything to do
with being a child pornographer.” The judge asked further if
a psychologist had assessed Grisanti. Defense counsel an-
swered that Grisanti had not been evaluated and agreed with
2 See Angel Wyatt Eke et al., Scoring Guide for the Child Pornography
Offender Risk Tool (CPORT): Version 2, ResearchGate (2018); Angel Wyatt
Eke et al., Scoring Guide for the Child Pornography Offender Risk Tool
(CPORT): Version 2, ResearchGate (2018); Michael Seto et al., Contact Sexual
Offending by Men with Online Sexual Offenses, 23 Sexual Abuse: A Journal
of Research & Treatment 124 (2011).
Nos. 18-2993 & 19-1576 5
the judge that, “for him to be in a position to not reoffend, yes,
he has to be prepared to get help and treatment.”
The court then heard the remainder of counsel’s argu-
ments, Grisanti’s allocution, and the government’s argument
for a sentence of 135 months, at the high end of the guideline
range. The judge sentenced Grisanti to 120 months in prison.
In explaining the decision, she emphasized the seriousness of
the crime: Grisanti possessed more than 600 images of child
pornography—some involving prepubescent children—and
then destroyed the evidence to thwart the investigation. He
knew his actions were wrong, the judge continued, but if he
had a problem, he never sought treatment for it and instead
blamed others when he was caught. Finally, the judge agreed
with Grisanti that he “could fulfill much of his untapped po-
tential and move on with his life” if he got some treatment.
II. The Motion to Suppress and the Good-Faith Exception
The NIT warrant at issue here has led to many prosecu-
tions and has been attacked by defendants across the country.
Grisanti joins them, challenging the denial of his motion to
suppress the evidence obtained through its use. He acknowl-
edges that in United States v. Kienast, 907 F.3d 522, 529 (7th Cir.
2018), we held that the good-faith exception applies to agents
who relied on this very warrant. Ten other circuits have
agreed with that conclusion: United States v. Levin, 874 F.3d
316, 321–24 (1st Cir. 2017); United States v. Eldred, 933 F.3d 110,
118–21 (2d Cir. 2019); United States v. Werdene, 883 F.3d 204,
215–18 (3d Cir. 2018); United States v. McLamb, 880 F.3d 685,
689–91 (4th Cir. 2018); United States v. Ganzer, 922 F.3d 579,
587–90 (5th Cir. 2019); United States v. Moorehead, 912 F.3d 963,
967–71 (6th Cir. 2019); United States v. Horton, 863 F.3d 1041,
1051–52 (8th Cir. 2017); United States v. Henderson, 906 F.3d
6 Nos. 18-2993 & 19-1576
1109, 1117–20 (9th Cir. 2018); United States v. Workman,
863 F.3d 1313, 1317–21 (10th Cir. 2017); United States v. Taylor,
935 F.3d 1279, 1282 (11th Cir. 2019).
Grisanti argues, however, that the good-faith exception
should be deemed categorically inapplicable to warrants that
are issued “without jurisdiction” and thus, he contends, “void
ab initio.” In Kienast, 907 F.3d at 528, we found that this argu-
ment is incompatible with the Supreme Court’s decision in
Herring v. United States, 555 U.S. 135 (2009), which applied the
good-faith exception to a search based on a warrant that al-
ready had been recalled. Accord, Eldred, 933 F.3d at 120 (ap-
plying Herring to the NIT warrant); Werdene, 883 F.3d at 216
(same); Ganzer, 922 F.3d at 587 (same); Moorehead, 912 F.3d
at 969 (same); Horton, 863 F.3d at 1051 (same); Henderson,
906 F.3d at 1119 (same); Workman, 863 F.3d at 1318 & n.1
(same); Taylor, 935 F.3d at 1290–91 (same). Even if the magis-
trate judge lacked jurisdiction or some other degree of author-
ity to issue a warrant that reached beyond the Eastern District
of Virginia, we must consider whether the good-faith excep-
tion applies.
“[W]hen an officer acting with objective good faith has ob-
tained a search warrant from a judge or magistrate and acted
within its scope,” the good-faith exception generally applies
even if the warrant turns out to be invalid. United States
v. Leon, 468 U.S. 897, 920 (1984). Suppression remains an ap-
propriate remedy if the officer misled the issuing judge with
knowingly false information or reckless disregard of the
truth, or if a reasonable officer would know from the face of
the warrant that it was invalid or that the search goes beyond
its scope. Id. at 923; see also Groh v. Ramirez, 540 U.S. 551, 564–
Nos. 18-2993 & 19-1576 7
65 & n.8 (2004) (denying officer qualified immunity where
warrant omitted items to be seized). 3
In Kienast, the defendants argued that the good-faith ex-
ception should not apply because a well-trained officer would
have known that the magistrate judge lacked authority to au-
thorize searches of computers across the country and there-
fore would have recognized that the NIT warrant was facially
invalid. We rejected that argument. 907 F.3d at 528. Grisanti
concedes that if the warrant invalidly authorized a nation-
wide search, then the magistrate judge is to blame. He argues,
though, that the FBI is “not faultless” for having sought and
executed such an expansive warrant “from a magistrate judge
with limited territorial jurisdiction.” This argument, however,
is no different from that presented in and rejected by Kienast.
Characterizing the extent of the magistrate judge’s power to
issue the NIT warrant as an unsettled and difficult question,
we concluded in Kienast that the FBI could have reasonably
believed that the magistrate judge had the requisite authority.
Specifically, because Rule 41(b)(4) permits a magistrate judge
to authorize the installation of a “tracking device” within her
district to track movement outside the district, so too might a
magistrate judge be able to permit an electronic search of
property outside the district. Id. at 529. Suppressing the evi-
dence from the NIT warrant would be inappropriate because
penalizing the officer for the magistrate’s arguable error ra-
ther than his own “cannot logically contribute to the
3Leon also held that the good-faith exception is unavailable when the
magistrate judge “wholly abandoned” her neutral judicial role or when
the warrant is based on an affidavit “so lacking in indicia of probable
cause as to render official belief in its existence entirely unreasonable.”
468 U.S. at 923 (citations omitted). Grisanti does not rely on these grounds.
8 Nos. 18-2993 & 19-1576
deterrence of Fourth Amendment violations.” Kienast,
907 F.3d at 528, quoting Leon, 468 U.S. at 921.4
Grisanti raises other grounds for declining to apply the
good-faith exception, which we did not address in Kienast.
First, he argues, the FBI obtained the warrant in bad faith
because the affidavit assured the magistrate judge that the
“property” to be searched was “located in the Eastern District
of Virginia,” though the FBI planned to search computers
anywhere in the world. Without dwelling on the rather
slippery question of just where the searches would take place,
we find that the affidavit sufficiently informed the magistrate
judge that the FBI would be obtaining identifying information
from computers outside her district—“wherever located.”
See McLamb, 880 F.3d at 690–91; Horton, 863 F.3d at 1051–52;
Taylor, 935 F.3d at 1292; see also United States v. Spears,
673 F.3d 598, 605–07 (7th Cir. 2012) (applying good-faith
exception where omissions and inconsistencies were
immaterial). The difference between the affidavit and a more
detailed description of how the software would work does
not allow an inference that the agents intentionally
misrepresented or recklessly omitted material information to
mislead the magistrate judge. See United States v. Daniels,
906 F.3d 673, 677 (7th Cir. 2018); Leon, 468 U.S. at 923;
see also Taylor, 935 F.3d at 1292 (holding that application and
4 Kienast did not actually decide whether Rule 41(b)(4) confers this
power on magistrate judges, but all circuits that have answered the ques-
tion have concluded that issuance of the warrant by the magistrate judge,
as opposed to a district judge, violated both Rule 41 (before the 2016
amendment) and the Fourth Amendment. See Werdene, 883 F.3d at 211–
14; Horton, 863 F.3d at 1046–49; Henderson, 906 F.3d at 1113–17; Taylor,
935 F.3d at 1286–88. As in Kienast, however, we need not decide that un-
derlying issue.
Nos. 18-2993 & 19-1576 9
affidavit for NIT warrant “sufficiently disclosed bounds of
intended search”). If the magistrate judge had had concerns
about geography, the application made clear that the FBI
sought permission to use the equipment in Virginia to obtain
information from users’ computers wherever they were
located. The application also provided ample information to
have prompted further questions before the NIT warrant was
issued if geographic limits had been a concern.
Second, Grisanti argues that the government cannot rely
on the good-faith exception because the agents knowingly ex-
ceeded the scope of the warrant, which purportedly author-
ized searches only within the Eastern District of Virginia. The
good-faith exception does not apply to a search that clearly
exceeds the scope of a warrant. Leon, 468 U.S. at 921–22;
see also Messerschmidt v. Millender, 565 U.S. 535, 555 (2012)
(examining, in qualified-immunity context, officer’s good
faith in construing validity and scope of warrant); Groh,
540 U.S. at 561 n.4. Although the NIT warrant did not specifi-
cally authorize searches outside the Eastern District of Vir-
ginia, it permitted agents to obtain information from any com-
puter used to log into Playpen. On this basis, the First, Second,
Third, and Ninth Circuits have all held that a reasonable agent
could rely on the NIT warrant as permitting the use of the
software and equipment in Virginia to obtain information
from computers outside the magistrate judge’s district. Levin,
874 F.3d at 323; Eldred, 933 F.3d at 119; Werdene, 883 F.3d
at 217; Henderson, 906 F.3d at 1119. We agree.
Our view that the agents did not unreasonably exceed the
scope of the warrant also comports with the Supreme Court’s
standard for demonstrating objective bad faith in executing a
warrant. The defendant must show “conscious or flagrant”
10 Nos. 18-2993 & 19-1576
disregard of the warrant’s scope. See Rawlings v. Kentucky,
448 U.S. 98, 110 (1980). The question is whether the officers’
execution of the warrant was “objectively understandable and
reasonable.” Maryland v. Garrison, 480 U.S. 79, 88 (1987) (ap-
plying good-faith exception to officer’s reliance on warrant
with ambiguous scope); see also Messerschmidt, 565 U.S.
at 555 (applying similar standard in examining whether am-
biguous warrant was facially invalid). “The NIT warrant spec-
ifies into which homes an intrusion is permitted (those where
the activating computers are located), and on what basis (that
the users in those homes logged into Playpen).” Levin,
874 F.3d at 323. We cannot infer that agents believed them-
selves to be cabined in the Eastern District of Virginia but fla-
grantly disregarded that boundary when the stated purpose
of the warrant, as issued, was to uncover the unknown locations
of anonymous users. Finally, we recently concluded that the
Fourth Amendment does not require a tracking warrant to
specify a geographic scope at all (even if other laws do).
See United States v. Brewer, 915 F.3d 408, 413–14 (7th Cir.
2019). Under the circumstances, the FBI agents could have
reasonably believed that “any” computer used to log into
Playpen was within the scope of the warrant, not just those in
the Eastern District of Virginia. The district court did not err
by denying the motion to suppress.
III. Sentencing
Grisanti argues that the district court erred procedurally
by sentencing him based on improper comparisons to an un-
related defendant and unfounded speculation that he had a
medical condition that would inevitably cause him to commit
another child-pornography offense. The government re-
sponds in three parts: (1) Grisanti waived this argument by
Nos. 18-2993 & 19-1576 11
assenting to the judge’s remarks; (2) Grisanti invited any error
by asserting that he had an addiction; and (3) the judge did
not err by accepting Grisanti’s argument that he had an illness
and encouraging him to obtain treatment.
We agree with the government that Grisanti invited the
judge’s comments about his purported addiction and the
need for and possible benefit of treatment. Grisanti asserted
just that in his sentencing memorandum and again at the
hearing. “A party may not ‘invite’ error and then argue on
appeal that the error for which he was responsible entitles him
to relief.” United States v. Gaya, 647 F.3d 634, 640 (7th Cir.
2011) (alterations and citations omitted). Grisanti’s choice to
focus on an asserted need for professional help was “purpose-
ful; it was part of a strategy” to mitigate his culpability for his
crimes. See United States v. Addison, 803 F.3d 916, 920 (7th Cir.
2015). “It is not our job to rescue [Grisanti] from the conse-
quences of that strategic choice.” Id.
Grisanti counters that he may have agreed that he had an
addiction, but he never suggested that he was likely to com-
mit more crimes. See Zedner v. United States, 547 U.S. 489,
505–06 (2006) (addressing argument on appeal where party’s
contentions were not inconsistent with earlier position). Yet
the risk of future crimes seems to be where his addiction ar-
gument pointed. Even if Grisanti did not invite the judge’s re-
mark about becoming a repeat offender, there was no error
here. The judge did not rely on conjecture, extraneous factors,
or her own medical opinion that Grisanti has an addiction
that is likely to cause future crimes. In fact, the judge asked
whether a psychologist had evaluated him. Rather than sug-
gest that Grisanti would inevitably commit new crimes, the
judge expressed optimism that he could succeed and realize
12 Nos. 18-2993 & 19-1576
his potential. She did not find that Grisanti suffers from an
illness beyond his control that would render attempts at treat-
ment futile. See United States v. Adams, 646 F.3d 1008, 1012
(7th Cir. 2011). And judges “routinely” make predictions
about a defendant’s future conduct, so the judge did not err
by reasoning that Grisanti might reoffend if he did not get
treatment. See United States v. Kluball, 843 F.3d 716, 720
(7th Cir. 2016). Indeed, a judge must consider any need for
“correctional treatment.” 18 U.S.C. § 3553(a)(2)(D). The
judge’s statements also do not show that she equated Grisanti
with the other defendant she mentioned, who had just been
sentenced for a second offense. In context, the judge was only
commenting on her desire that Grisanti obtain treatment and
avoid reoffending.
Grisanti also asserts that the judge erred by failing to ad-
dress what he now calls his “principal” mitigation argument,
that he deserved a shorter sentence because he had not com-
mitted a “contact sex offense.” Grisanti never mentioned this
point at the sentencing hearing. Neither the district judge nor
we can treat it as central to his plea for leniency. Grisanti ad-
vanced this contention in his sentencing memorandum as
part of his broader argument that he was unlikely to reoffend,
a subject that the judge addressed at length. A judge must
“meaningfully” consider the defendant’s principal argu-
ments, but that requirement “does not apply mechanically.”
United States v. Hancock, 825 F.3d 340, 343 (7th Cir. 2016),
quoting United States v. Estrada-Mederos, 784 F.3d 1086, 1091
(7th Cir. 2015). The district judge discussed the studies that
Grisanti cited about recidivism and the reasons he argued that
he was unlikely to offend; the explanation was sufficient.
Nos. 18-2993 & 19-1576 13
We must also note that Judge Pratt properly rejected
Grisanti’s suggestion—based on the Child Pornography Of-
fender Risk Tool and the Correlates of Admission of Sexual
Interest in Children assessment—that he is less likely to com-
mit future crimes because he is white. Subject to constitutional
limits, sentencing judges have broad discretion about the in-
formation they may consider when deciding on an appropri-
ate sentence. See Dean v. United States, 137 S. Ct. 1170, 1175
(2017), citing Pepper v. United States, 562 U.S. 476, 487–89
(2011); see also 18 U.S.C. § 3661. But imposing different sen-
tences based on race would violate the Equal Protection
Clause of the Fourteenth Amendment and the Sentencing
Guidelines. See U.S.S.G. § 5H1.10; United States v. Campbell,
813 F.3d 1016, 1018 (7th Cir. 2016). The Supreme Court in
other contexts has permitted consideration of race to offset
negative effects of past discrimination and to combat harmful
stereotypes. See generally Grutter v. Bollinger, 539 U.S. 306,
328–30 (2003) (upholding public law school’s affirmative ac-
tion program). On the other hand, the use of actuarial tools
that use race as a factor for assessing probabilities of future
crimes, like the studies cited by Grisanti, carry “the potential
to reify, rather than ameliorate, extant racial disparities.”
See J.C. Oleson, Risk in Sentencing: Constitutionally Suspect Var-
iables & Evidence-Based Sentencing, 64 SMU L. Rev. 1329, 1387
(2011). The Supreme Court has also recognized that some sen-
tencing differentials “foster[] disrespect for and lack of confi-
dence in the criminal justice system because of a widely-held
perception that [they] promote[] unwarranted disparity based
on race.” Kimbrough v. United States, 552 U.S. 85, 98, 101 (2007)
(internal quotation marks omitted) (citing United States Sen-
tencing Commission report and holding that courts may sen-
tence based on policy considerations). The district judge did
14 Nos. 18-2993 & 19-1576
not err by recoiling from Grisanti’s reliance on studies that
factor in race.
Finally, Grisanti contends that his sentence is substan-
tively unreasonable because the application of U.S.S.G.
§ 2G2.2, which applies to his child-pornography offenses, re-
sulted in an unreasonably long guideline range. He asserts
that some federal courts routinely vary below this guideline
on the ground that it is “flawed.” See United States v. Halliday,
672 F.3d 462, 473 (7th Cir. 2012). A sentencing court may reject
any guideline on policy grounds as long it acts reasonably in
doing so. E.g., United States v. Corner, 598 F.3d 411, 415
(7th Cir. 2010) (en banc). A sentencing court cannot, however,
be required to accept a policy argument that rejects a guideline.
To sustain the presumption that a within-guideline sentence
is reasonable, “a district court need provide only a justifica-
tion … adequate to allow for meaningful appellate review
and to promote the perception of fair sentencing.” United
States v. Horton, 770 F.3d 582, 585 (7th Cir. 2014), quoting
United States v. Pilon, 734 F.3d 649, 656 (7th Cir. 2013). Here,
the judge appropriately discussed Grisanti’s history and char-
acteristics (describing a “deceitful” man who was “not naïve”
about his actions), the seriousness of his crimes and the need
to protect the public (noting that he had worked near children
and the offense involved prepubescent children), and the
need to promote respect for the law (observing that he de-
stroyed evidence and implicitly blamed his wife and co-work-
ers). And though the judge commented on Grisanti’s defense,
she properly declined to view as an aggravating factor his de-
cision to exercise his right to go to trial.
The judgment of the district court is
AFFIRMED.