United States v. Christie

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 09-2908

UNITED STATES OF AMERICA

v.

RUSSELL CHRISTIE,

Appellant.

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 2-07-cr-00332-001)

District Judge: Hon. Harold A. Ackerman*

_______________

Submitted Under Third Circuit LAR 34.1(a)

July 16, 2010

*

Judge Harold A. Ackerman, a stalwart on the United States

District Court for the District of New Jersey for more than thirty

years, passed away on December 2, 2009.

Before: RENDELL, JORDAN, and GREENAWAY, JR.,

Circuit Judges.

(Filed: September 15, 2010)

Lorraine S. Gauli-Rufo

Office of Federal Public Defender

927 Broad Street - 4th Fl.

Newark, NJ 07102

Counsel for Appellant

George S. Leone

John F. Romano

Office Of United States Attorney

970 Broad Street - Rm. 700

Newark, NJ 07102

Counsel for Appellee

OPINION OF THE COURT

JORDAN, Circuit Judge.

Russell Christie appeals the judgment of conviction and

sentence entered by the United States District Court for the

District of New Jersey after a jury found him guilty of various

child pornography offenses. For the reasons that follow, we will

affirm.

2

I. Factual Background

On September 3, 2008, a grand jury returned an eight-

count second superceding indictment charging Christie with

possession, receipt, and advertising of child pornography, in

violation of 18 U.S.C. §§ 2251(d)(1)(A), 2252A(a)(2)(A), and

2252A(a)(5)(B). The indictment was the culmination of a two-

year investigation into the website of the North American Man-

Girl Love Association (“NAMGLA”), a site that featured a

password-protected forum where users could post links to

sexually explicit images and videos of children and comment on

those materials.

A. Investigation Culminating in Christie’s Arrest

The investigation began in November 2005 as the

byproduct of an unrelated fraud investigation into Jerrod

Lochmiller, who happened to be the administrator of the

NAMGLA site. Lochmiller, who was a fugitive and on

probation at all times pertinent to this case, contacted the United

States Attorney’s Office in Los Angeles through his attorney,

George Buehler. Buehler indicated that, in exchange for the

government’s dropping fraud charges against Lochmiller,

Lochmiller would, in turn, provide access to the NAMGLA

website and information on its users. The U.S. Attorney’s

Office agreed and referred the case to the Federal Bureau of

Investigation (“FBI”), which assigned Special Agent Douglas

MacFarlane as the primary case agent for the investigation.

Buehler furnished a user name and password, which

MacFarlane then used to access restricted areas of the

3

NAMGLA website. At trial, MacFarlane testified that the

password-protected areas of the website contained three sections

entitled the N Gallery, the Private Gallery, and the Private

Lounge. In the N Gallery – which MacFarlane identified as an

abbreviation for “Nude Gallery” – users could post links to other

websites containing sexually explicit images and videos of

children posing by themselves. The Private Gallery and Private

Lounge sections of the website operated in a similar manner,

except that the links posted in them typically contained images

of children engaged in sexual acts with adults or with one

another. MacFarlane testified that access to the site was free but

that users were required to submit links to child pornography to

the site moderators in order to obtain a username and password.

During the course of the investigation, one such user, who went

by the screen name “franklee,” consistently posted links to new

images and videos, and posted comments to the website. As a

result of MacFarlane’s investigation, the FBI undertook efforts

to identify the users of the website.

Identifying the users proved difficult, due to the manner

in which individual computers are identified when linked to the

internet. Residential internet customers typically connect to the

internet through an internet service provider (“ISP”). Each time

a customer connects, the ISP assigns a unique identifier, known

as an IP address, to the customer’s computer terminal.

Depending on the ISP, a customer’s IP address can change each

time he logs on to the internet. ISPs retain for a finite period of

time – usually thirty, sixty, or ninety days – records of the IP

addresses that they assign to customers. IP addresses are also

conveyed to websites that an internet user visits, and

administrators of websites, like NAMGLA’s, can see the IP

4

addresses of visitors to their sites. However, site administrators

do not possess information linking a given IP address to a

particular person. That information is held by the ISPs.

The FBI initially attempted to obtain the IP addresses of

visitors to the NAMGLA website from Lochmiller, but, because

all communications between the FBI and Lochmiller were

handled through Buehler, the information was too stale to be

useful. By the time government agents got the IP addresses

from Buehler, there was not enough time to subpoena customer

identities from the ISPs before the ISPs had purged their records

reflecting which IP addresses had been assigned to which

customers. Accordingly, in April 2006, the FBI requested that

Lochmiller give them administrator-level access to the

NAMGLA website, which he did. With that higher level of

access, the FBI was able to see the IP addresses associated with

each user. MacFarlane then began monitoring the IP addresses

that appeared on the NAMGLA site, and he ultimately identified

approximately forty individual users. From there, he apparently

acquired from the ISPs the identity of the users associated with

the IP addresses.

One of those individuals was Christie, who posted to

NAMGLA using the screen name “franklee.” According to

MacFarlane, Christie was one of the most prolific contributors

to the NAMGLA site, having written more than 2,500 posts

between October 2005 and July 2006. As a moderator for the

site, Christie enforced site rules and counseled less-experienced

users about how to name and password-protect files to avoid

detection by law enforcement authorities. Christie’s moderator-

5

level access also gave him the ability to approve new member

accounts.

On July 25, 2006, the FBI executed multiple search

warrants as part of a coordinated “takedown” effort aimed at the

website and many of its users. FBI agents at Christie’s

residence seized over five-hundred CD-ROMs containing

images of children engaged in sexually explicit conduct, printed

images with similar content, and Christie’s computer, the hard

drive from which held over 250,000 graphics files, including

“several thousand” images of child pornography. Agents also

seized five composition notebooks containing notes reflecting

the type of content on various child pornography websites as

well as instructions on how to access them. The notebooks

contained references to child pornography files that “franklee”

had posted to the NAMGLA website, girls’ names, child

pornography search terms, websites used to upload child

pornography, and Christie’s notes on various pictures and

websites. In addition, agents discovered a collection of

children’s toys.

Special Agent John Bennett interrogated Christie

following the search. Christie, who was fifty years old at the

time of trial and has no children, explained that he was

employed as a school bus driver for elementary and middle-

school students, and that he used the toys to pacify children who

became boisterous while riding the bus. Christie also admitted

to submitting two particular posts to the NAMGLA website.

One was titled “nine-year-old in a supermarket” and the other

told of becoming sexually aroused while changing a baby’s

diaper.

6

B. Pretrial Motions and Trial

Prior to trial, Christie made several pretrial motions,

including a motion for an evidentiary hearing to determine

whether the government’s work with Lochmiller constituted

outrageous conduct amounting to a violation of Christie’s due

process rights.1 The District Court denied the motion,

concluding that, at the pretrial stage, the government’s conduct

did not raise sufficient concern to warrant a hearing.

Additionally, in a pro se motion to suppress, Christie argued that

the government violated his Fourth Amendment rights by

obtaining his IP address without first acquiring a search warrant.

The District Court rejected that argument, holding that Christie

lacked any reasonable expectation of privacy in his IP address.

Trial commenced on the child pornography charges on

November 12, 2008. During the government’s case-in-chief,

Agent MacFarlane testified about the FBI’s contact with

Lochmiller and the efforts to obtain from him the IP addresses

of people using NAMGLA’s website. MacFarlane

acknowledged that Buehler served as an intermediary between

the FBI and Lochmiller and, on cross-examination, MacFarlane

admitted that he had never met Lochmiller personally. Defense

1

As discussed further below, Christie’s allegations of

outrageous conduct are based on his assertion that the

government violated its own guidelines for how government

officials should interact with confidential informants.

Essentially, Christie contends that the government’s failure to

follow those guidelines in its dealings with Lochmiller

compromised the integrity of the entire investigation.

7

counsel further questioned MacFarlane about whether

Lochmiller qualified as a confidential informant (“CI”) under

the Attorney General’s Guidelines Regarding the Use of

Confidential Informants (the “CI Guidelines”). Those

guidelines define a “confidential informant” as “any individual

who provides useful and credible information ... regarding

felonious criminal activities, and from whom [the FBI] expects

or intends to obtain additional useful and credible information

regarding such activities in the future.” ATT’Y GEN.

GUIDELINES REGARDING THE USE OF CONFIDENTIAL

INFORMANTS [hereinafter “CI GUIDELINES”] § I.B.6, available

at http://www.fas.org/irp/agency/doj/fbi/dojguidelines.pdf. The

guidelines establish rules applicable to all Department of Justice

law enforcement agencies, see id. § I.A.3, and generally prohibit

the use of fugitives and probationers as CIs. Id. § II.D.5-6.

They also require that a law enforcement agent personally meet

with and supervise an individual who will act as a CI. Id. §

III.C.4-5.

MacFarlane testified that he did not consider Lochmiller

to be a CI because, once Lochmiller provided access to the

NAMGLA site, the FBI did not anticipate using him to obtain

future information about illegal activities. Nonetheless, defense

counsel obtained an admission from MacFarlane on cross-

examination that the CI Guidelines are designed, in part, to

prevent the implication of innocent individuals in criminal

activity. Defense counsel later argued in closing that Lochmiller

qualified as a CI. Thus, counsel insinuated that MacFarlane had

deviated from the CI Guidelines in relying on information

supplied by Lochmiller and that MacFarlane’s conduct created

the risk that Lochmiller had falsely implicated Christie and other

8

users of the NAMGLA website. The alleged unreliability of the

investigation was central to Christie’s defense at trial.

On redirect examination, the government sought to rebut

the suggestion of unreliability by asking MacFarlane to “relay

... the circumstances and facts gathered at the takedown of this

investigation that would address the concerns ... raised in terms

of the implication of innocent people[.]” (App. at 380.) Christie

objected that MacFarlane lacked sufficient personal knowledge

to answer the question, but the Court overruled the objection

after the government pointed out that MacFarlane was the lead

agent on the case. MacFarlane then responded that, “[o]n the

day of the takedown nationwide, the F.B.I. executed

approximately 30 search warrants on houses all across the

country. Of those 30, it’s my understanding that the F.B.I.

obtained partial or full confessions from 24 separate individuals

on child pornography-related offenses.”2 (Id. at 381.)

Also during Agent MacFarlane’s testimony, the Court

questioned why users of the NAMGLA website did not pay a

fee to access the website’s content, which prompted the

following exchange:

THE COURT: Let me ask you this. A

person wants to be a user,

wants to get this

2

Christie did not move to strike MacFarlane’s response from

the record.

9

information. Does he pay

for it?

THE WITNESS: Not on this site, no.

THE COURT: Then it was just sexual

gratification in seeing these

pictures?

THE WITNESS: I would surmise that for the

people who would post this,

yes.

THE COURT: If you know, is there any

monetary return to these

people who engage in this

sort of activity, or are they

just getting their kicks, as

the word is used

colloquially?

(Id. at 235.) At that point, the defense raised an objection to the

line of questioning, which the Court overruled. MacFarlane

then continued:

THE WITNESS: On this website, I did not

see anything to indicate that

it had a financial motive or

there was any way you

10

could pay for this. It was

more of an exchange,

meaning – you give

something to get something.

That was not monetary, it

was pictures.

THE COURT: So what you’re saying, it’s

your opinion it’s the

gratification of seeing the

pictures.

11

THE WITNESS: That would be my

understanding of what these

people would be motivated

by, yes.

(Id. at 235-36.)

Later in the trial, Bennett testified regarding the two posts

that Christie admitted uploading under the screen name

“franklee.” Specifically, Bennett testified that Christie

acknowledged having submitted the posts and that Christie

described them as “fantasies.” (Id. at 608.) Although Bennett

told the jury that one post concerned a nine year old in a

supermarket and the other concerned becoming aroused while

changing a baby’s diaper, the government elicited no further

information regarding the content of those posts. Bennett also

testified that agents had discovered toys in Christie’s apartment,

and that Christie had explained that he used them to quiet rowdy

children on his school bus.

Christie objected to the testimony regarding the subjects

of the posts as irrelevant and unduly prejudicial, and he objected

to testimony concerning the toys as unduly prejudicial. The

Court overruled those objections. It reasoned that the posts

showed that Christie visited the NAMGLA site with the intent

of exchanging child pornography. The Court permitted

testimony about the toys after the government argued that it

linked Christie to his occupation as a bus driver and therefore

showed that he responded truthfully during the interrogation by

Bennett.

12

Trial lasted for eight days, after which the jury convicted

Christie on all eight counts of the indictment. Christie filed a

post-trial motion in which he argued that the jury’s verdict

should be vacated and the charges against him dismissed

because of the government’s allegedly outrageous conduct,

namely, its lack of control over Lochmiller and its permitting

Lochmiller to continue running the NAMGLA website, all in

violation of the CI Guidelines. The Court denied that motion,

concluding that, even if the CI Guidelines applied to Lochmiller,

“the FBI’s failure to follow [them,] without more, does not

constitute outrageous conduct worthy of setting aside a

conviction.” (App. at 79.)

C. Sentencing

Christie was sentenced on June 23, 2009. Under § 2G2.2

of the Sentencing Guidelines, the District Court calculated that,

after several applicable enhancements, Christie’s total offense

level was 45 and his criminal history category was I, producing

a Guideline range sentence of life imprisonment. The District

Court, recognizing that the recommended sentence was life

imprisonment, stated that it would impose “a life sentence

consisting of the statutory minimum sentence applied

consecutively on Counts 1 through 6.” (App. at 2007.) The

Court then sentenced Christie to 1,080 months imprisonment,

which represented the mandatory minimum sentence of fifteen

years on each of Counts 1 through 6, 18 U.S.C. § 2251(e), to be

served consecutively; the mandatory minimum of five years on

Count 7, id. § 2252A(b)(1) to be served concurrently; and a five-

year sentence on Count 8, id. § 2252A(b)(2), to be served

concurrently. In support of that sentence, the Court stated that

13

Christie was more than “a mere downloader of child

pornography,” (App. at 1996), that, instead, he had a collection

of child pornography containing thousands of images and was

a moderator of the NAMGLA website and a remorseless

promoter of materials depicting minors engaged in sexual

conduct.

II. Discussion3

On appeal, Christie advances four types of objection to

the proceedings in the District Court. First, he argues that the

District Court erred in admitting certain evidence at his trial.

Second, he argues that the manner in which the government

obtained evidence from Lochmiller violated due process. Third,

he argues that the government violated his Fourth Amendment

right against unreasonable searches and seizures when it

obtained his IP address without a warrant. And fourth, he

argues that his sentence is unreasonable. We address each of

those challenges in turn.

A. Evidentiary Rulings at Trial

Christie challenges the District Court’s permitting

MacFarlane to testify that the FBI apprehended other users of

the NAMGLA website on the same day he was arrested and that

twenty-four of those users confessed to child pornography-

related offenses. He also appeals the District Court’s decision

3

The District Court had jurisdiction pursuant to 18 U.S.C. §

3231. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28

U.S.C. § 1291.

14

to admit evidence concerning the two posts that he

acknowledged submitting to the NAMGLA website, the Court’s

allowing testimony about the toys seized from his apartment,

and the Court’s admitting into evidence his five composition

notebooks. Further, he argues that the District Court improperly

sensationalized the trial when it asked MacFarlane whether

people who visited the NAMGLA website did so to “get[] their

kicks” and for “sexual gratification.” (App. at 235.) Finally, he

contends that, the cumulative effect of all of these errors was

unfair jury prejudice against him.

We review for abuse of discretion both the admissibility

of evidence and the District Court’s questioning of a witness.

See United States v. Starnes, 583 F.3d 196, 213-14 (3d Cir.

2009) (“We review a trial court’s decision to admit or exclude

evidence for abuse of discretion.”); United States v. Adedoyin,

369 F.3d 337, 342 (3d Cir. 2004) (reviewing questioning of a

witness by a district court for abuse of discretion). Even if we

find an abuse of discretion, the Court’s ruling will stand if the

error was harmless. See United States v. Casoni, 950 F.2d 893,

902 (3d Cir. 1991). We review for plain error any objections

that were not specifically raised before the District Court. See

United States v. Iglesias, 535 F.3d 150, 158 (3d Cir. 2008).

Under that standard, a defendant must establish that there was

an error that was plain or obvious, that it affected his substantial

rights, and that, if not rectified, it would seriously affect “the

fairness, integrity or public reputation of judicial proceedings.”

United States v. Lessner, 498 F.3d 185, 192 (3d Cir. 2007)

(quotations omitted).

15

1. MacFarlane’s Statement that Other Users

of the NAMGLA Site Confessed to Child

Pornography Offenses

Christie objects on the following grounds to

MacFarlane’s statement regarding the confessions of other

NAMGLA site users: (1) MacFarlane lacked personal

knowledge about each of the interrogations; (2) MacFarlane’s

testimony was hearsay; (3) admission of the testimony violated

the Confrontation Clause under Crawford v. Washington, 541

U.S. 36 (2004); (4) the testimony was irrelevant; (5) even if it

was relevant, it was unduly prejudicial; and (6) the testimony

constitutes improper vouching. Of these objections, the only

one that Christie raised at trial was that MacFarlane lacked

personal knowledge. We thus review the District Court’s ruling

on that issue for abuse of discretion, and we review Christie’s

arguments on the remaining five issues for plain error. None

provide a basis for reversal.

Christie asserts that MacFarlane never testified that he

was actually involved in all 30 arrests and interrogations, and

that his testimony should therefore have been excluded under

Federal Rule of Evidence 602 because he lacked personal

knowledge from which to testify about the disposition of those

cases. The argument rests on the unsound premise that the only

competent testimony about a complicated transaction is

testimony from eyewitnesses at every step. “Although first-

hand observation is obviously the most common form of

personal knowledge, that is not the only basis for it.” 3 JACK B.

WEINSTEIN & MARGARET A. BERGER WEINSTEIN’S FEDERAL

EVIDENCE § 602.03[1][a] (2d ed. 2010); cf. United States v.

16

Neal, 36 F.3d 1190, 1206 (1st Cir. 1994) (bank employee could

testify as to bank’s federally insured status because, even though

she was not employed until after bank robbery at issue, her job

exposed her to records indicating that the bank was federally

insured). We reject Christie’s challenge because MacFarlane’s

responsibilities gave him sufficient information to testify about

various aspects of the investigation, including its immediate

aftermath. As the lead FBI agent, MacFarlane oversaw the

investigation of all of the users of the NAMGLA website, was

thoroughly familiar with the case, coordinated the efforts of

other agents, and personally directed the enforcement steps on

“takedown day,” even if he did not conduct each step himself.

The extent of that supervisory involvement provided an

appropriate level of personal knowledge for MacFarlane to

testify about the outcome of the investigation. See United States

v. Sutton, 795 F.2d 1040, 1057 (Temp. Emer. Ct. App. 1986)

(testimony of government witness who supervised audit was

based on personal knowledge). Accordingly, the District Court

properly rejected Christie’s assertion that MacFarlane was not

competent to testify about the responses of other targets of the

investigation.

Christie next argues that MacFarlane’s testimony about

the other targets’ acknowledgment of guilt constitutes

inadmissible hearsay and that the testimony was irrelevant

because it was not probative of Christie’s guilt. According to

Christie, even though he raised no objection along these lines at

trial, the District Court should have precluded the testimony sua

sponte. We disagree.

17

The Federal Rules of Evidence define hearsay as “a

statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth of

the matter asserted.” See FED. R. EVID. 801(c). MacFarlane

testified about the confessions only after Christie had insinuated

that Lochmiller was an unreliable source of information who

may have implicated innocent people in the NAMGLA

investigation, and that the FBI’s investigation was likewise

unreliable because it depended on information obtained from

Lochmiller. The District Court could properly have viewed

MacFarlane’s response as being elicited to explain why he

viewed Lochmiller as a credible source. From that perspective,

MacFarlane’s testimony is not hearsay because it was offered

for the purpose of rebutting Christie’s charge of misguided law

enforcement efforts and not offered for the truth of whatever the

other investigative targets may have said. Christie himself

acknowledges that the evidence had a rebuttal purpose, as he

recognizes in his brief that the government’s use of

MacFarlane’s testimony was meant to “establish the reliability

of the investigation.” (Appellant’s Op. Br. at 14.)

That distinction between a permissible and an

impermissible purpose for the evidence is no mere technicality.

Having put both MacFarlane’s and Lochmiller’s credibility at

issue, the defense invited MacFarlane to say why he viewed the

investigation as resting on reliable information. See United

States v. Milan, 304 F.3d 273, 290 & n.22 (3d Cir. 2002)

(defendant opened the door to testimony concerning judicial

approval of wiretaps obtained during investigation by suggesting

that “the government was willing to engage in improprieties ...

in order to convict [defendant]”). At that point, the question was

18

whether there were indicia of reliability regarding what

Lochmiller had told the FBI, and the existence of the

confessions provided an answer. Their existence, not their

details, or even ultimately their truth, was relevant to rebut the

implication that the investigation was a dragnet for the innocent

and that MacFarlane knew it. Thus, the testimony can be seen

as relevant to a proper, non-hearsay purpose because it

illustrated the reliability of the investigation, a fact of

considerable consequence since challenging the nature of the

investigation was at the crux of Christie’s defense. See United

States v. Lugo Guerrero, 524 F.3d 5, 14 (1st Cir. 2008) (finding

evidence admissible to combat defense theory).

Christie also contends that MacFarlane’s testimony

violated his rights under the Confrontation Clause of the

Constitution, see Crawford v. Washington, 541 U.S. 36 (2004),

because he had no opportunity to cross-examine any of the

individuals who confessed to child-pornography related

offenses. But, our conclusion that the testimony was properly

introduced for a non-hearsay purpose is fatal to Christie’s

Crawford argument, since “the Confrontation Clause ... ‘does

not bar the use of testimonial statements for purposes other than

establishing the truth of the matter asserted.’” See United States

v. Hendricks, 395 F.3d 173, 183 (3d Cir. 2005) (quoting

Crawford, 541 U.S. at 59 n.9)). We likewise reject Christie’s

assertion that the testimony was unfairly prejudicial, especially

since it was elicited for the purpose of rebutting Christie’s own

challenge to the investigation. See United States v. Boone, 279

F.3d 163, 188 (3d Cir. 2002) (“[G]iven [defendant’s] ... defense,

this evidence was proper under Rule 403.”). The District Court

19

did not plainly err in allowing the testimony to come into

evidence.

Finally, Christie argues that MacFarlane’s testimony

constitutes improper vouching or bolstering because he was

essentially assuring the jury that the investigations of other users

actually culminated in confessions, without introducing any

evidence to that effect. Vouching occurs when a prosecutor “(1)

assures the jury that the testimony of a government witness is

credible, and (2) ... bases his assurance on either his claimed

personal knowledge or other information not contained in the

record.” United States v. Lore, 430 F.3d 190, 211 (3d Cir.

2005). Here, the description of the investigation as it implicated

other users came from MacFarlane’s testimony, which was

based upon his knowledge as the lead agent on the case. Thus,

as already noted, MacFarlane’s knowledge provided a proper

basis for his testimony, and his testimony is itself the evidence

of record. There is no sensible vouching or bolstering challenge

to be made. See United States v. Milan, 304 F.3d 273, 290 (3d

Cir. 2002) (rejecting vouching challenge since prosecutor “never

made any statement that invited a plausible jury inference of

extra-record proof of reliability ... .”).

In sum, the District Court did not abuse its discretion or

otherwise commit error, let alone plain error, in admitting

MacFarlane’s testimony concerning the confessions of other

users of the website.

20

2. Admissibility of Two Posts to the

NAMGLA Website and the Children’s Toys

Christie next contends that the District Court should have

excluded as irrelevant and unfairly prejudicial the subject matter

of the two posts that Christie admitted putting on the NAMGLA

website (i.e., the post concerning a nine-year-old in a grocery

store and the post concerning arousal while changing a baby’s

diaper) and likewise should have excluded the evidence of the

children’s toys in his house. Although Christie objected at trial

to introduction of the subject matter of the NAMGLA posts as

irrelevant and unfairly prejudicial, he objected to the statement

concerning the toys only as unfairly prejudicial. Accordingly,

we review his challenge to the relevance of the testimony about

the toys for plain error.

The NAMGLA posts were certainly relevant to the

charged child-pornography offenses. The posts were submitted

under Christie’s screen name of “franklee” and indicated that

Christie visited the NAMGLA site with the purpose of

exchanging child pornography. Despite that obvious relevance,

Christie contends that the posts were unduly prejudicial because

they painted him as a sexual predator “actively engaged in

looking for children[.]” (Appellant’s Op. Br. at 35.) That

Christie’s own posts may bear that interpretation does not make

them irrelevant or unfairly prejudicial. The potential impact of

information about the NAMGLA posts was no doubt prejudicial,

but the District Court was well within the bounds of its

discretion in concluding that the danger of unfair prejudice did

not substantially outweigh the probative value of the evidence.

Furthermore, the government did not introduce the posts

21

themselves, instead eliciting only testimony concerning the

subjects of the posts. There was no abuse of discretion in the

District Court’s decision to admit that testimony. See Starnes,

583 F.3d at 215 (“[U]nfair prejudice does not simply mean

damage to the opponent’s cause. If it did, most relevant

evidence would be deemed [unfairly] prejudicial.... [T]he fact

that probative evidence helps one side prove its case obviously

is not grounds for excluding it under Rule 403.” (quotations

omitted and alterations in original)).

As to the toys, Christie asserts that “[n]othing about the

fact that he had children’s toys in his house made it more likely

that he possessed, received or advertised images of child

pornography than it would have been without the evidence,” and

that the evidence was “extremely prejudicial” because it created

the impression that he was a “sexual predator” even though he

was not charged with sexual abuse of a minor. (Appellant’s Op.

Br. at 34-35.) The government responds that testimony

concerning the toys was relevant because it corroborated

Christie’s confession to Bennett. The government’s reasoning

is that, since Christie was truthful about his profession as a bus

driver, and mentioned being a bus driver while explaining the

toys, he must have been telling the truth when he admitted to

posting his “fantasies” to the NAMGLA website. Further, the

government asserts that the testimony was not unduly

prejudicial since the government never actually argued that

Christie was a pedophile.

Here we are in agreement with Christie, and the

government’s painfully strained reasoning serves as its own

refutation. On this record, there does not appear to be any

22

legitimate basis for claiming that the toys were relevant. While

the truthfulness of Christie’s acknowledgment that he was a bus

driver may have some tendency, albeit weak, to suggest that he

was truthful in his entire discussion with Bennett, that point

could have been made without any mention of the toys at all.

Bus driving, not toy possession, is the supposed tie to

truthfulness. However, even if one assumes the toys had some

relevance, the danger of unfair prejudice clearly and

substantially outweighed it. The implication of the testimony is

just what Christie contends: that, as a bus driver with access to

children, he used the toys in attempt to make contact with

children and, given his aberrant interests, to molest them. But,

as Christie notes, he was charged with possession of child

pornography, not child molestation. Accordingly, the evidence

concerning the toys was substantially more likely to have an

unfair prejudicial effect than to benefit the jury in determining

Christie’s guilt on the crimes charged. The District Court

therefore erred in admitting Bennett’s testimony on that issue.

As unduly prejudicial as that evidence may have been in

this context, we nevertheless conclude that the error was

harmless given the truly overwhelming quantity of legitimate

evidence against Christie, including his admissions to Bennett,

his moderator status and activities on the NAMGLA site, his

handwritten notebooks documenting and rating various child-

pornography related websites, and the thousands and thousands

of images of child pornography in his possession. See United

States v. Dispoz-O-Plastics, Inc., 172 F.3d 275, 286 (3d Cir.

1999) (explaining that an error is harmless when the court is

convinced that the defendant was not prejudiced by it, and

23

noting that “[t]he factors to be examined [in making that

determination include] ... the scope of the comments and their

relationship to the proceeding, ... and the strength of the

evidence against [the] defendant[].”); see also United States v.

Vazquez, 271 F.3d 93, 100 (3d Cir. 2001) (noting the similarity

of harmless error standard and inquiry, under plain error

standard, as to whether an error affected a defendant’s

substantial rights). Christie himself acknowledges that “[t]he

government had ... an extraordinary amount of relevant,

admissible, and indisputably disturbing evidence, which it

displayed and described multiple times.” (Appellant’s Op. Br.

at 44.) The testimony concerning the toys was brief, spanning

only fifteen lines in the transcript of an eight day trial, and the

toys were not mentioned in the government’s closing.

Accordingly, it is “‘highly probable that the error did not

contribute to the judgment.’” See United States v. Vosburgh,

602 F.3d 512, 540 (3d Cir. 2010) (quoting Dispoz-O-Plastics,

Inc., 172 F.3d at 286); see also United States v. Anderskow, 88

F.3d 245, 251 (3d Cir. 1996) (holding that evidentiary error was

harmless when government did not rely on testimony in

summation and when evidence against defendant was

“overwhelming”).

3. Admissibility of the Composition

Notebooks

Christie next says it was error for the District Court to

admit into evidence the five composition notebooks seized from

his home. He acknowledges that “excerpts from the notebooks”

would have been admissible, but contends that admission of the

notebooks in their entirety was unfairly prejudicial under

24

Federal Rule of Evidence 403. (Appellant’s Br. at 40.)

Specifically, he contends that the notebooks were unnecessary

in light of the other evidence that he possessed and advertised

child pornography, and that the notebooks created a risk that the

jury would convict solely based on them instead of considering

whether any illegal images of child pornography could actually

be linked to him.

The notebooks were part and parcel of Christie’s trade in

child pornography and directly link him to the screen name

“franklee.” They show the lengths to which he went to make

such material accessible, and they provide significant proof that

he was not a mere possessor but acted as a facilitator and

conduit for others to obtain child pornography. The probative

value of the notebooks therefore clearly outweighed any danger

of unfair prejudice, and the District Court did not abuse its

discretion in refusing to exclude the notebooks under Rule 403.

4. The District Court’s Questioning

Christie next attacks the District Court for the nature of

its questions to MacFarlane regarding the likely motive of users

of the NAMGLA website. Federal Rule of Evidence 614 gives

the District Court the authority to question witnesses on its own.

The District Court did not abuse its discretion in asking

MacFarlane to describe, from his law enforcement experience,

why sites like NAMGLA do not require payment and why

individuals visit them. The Court’s questioning went to

appropriate issues such as how NAMGLA functioned and what

motive Christie had to provide a forum for swapping child

pornography. Furthermore, the Court instructed the jury not to

25

attribute any opinions to the Court in connection with its

questions. Although the Court’s framing of its questions in

colloquial terms, such as asking whether users visit such sites

for “kicks,” was less than ideal, there was no abuse of discretion

in the questioning.

5. Cumulative Effect of the Alleged

Evidentiary Errors

Christie asserts that, even if the alleged errors do not

constitute reversible error on their own, when taken together,

they created a prejudicial effect that overwhelmed any

possibility of a fair consideration of the evidence against him.

However, we have noted only one error in the numerous

evidentiary rulings that Christie challenges – the District Court’s

admission of the testimony concerning the toys seized from

Christie’s home – and we have already concluded that that error

was harmless, in light of the overwhelming evidence of guilt in

this case. We thus readily conclude that, taken together, the

purported errors do not entitle Christie to a new trial.

B. The Handling of Lochmiller Under the CI

Guidelines

Christie next argues, as he did to the District Court, that,

by failing to abide by the CI Guidelines, “[t]he government’s

investigation and prosecution of [the case against him]

constituted outrageous government conduct” that violated his

due process rights. (Appellant’s Op. Br. at 45.) He claims there

were several violations of the Guidelines, including (1) that

MacFarlane knew that Lochmiller was on probation but did not

26

contact probation authorities; (2) that the paperwork required to

register a confidential informant had not been completed; and

(3) that, although confidential informants are not supposed to

engage in criminal activity without authorization and

supervision, Lochmiller continued to run the NAMGLA

website. See CI GUIDELINES §§ II.A-B, II.D.5, III.C. According

to Christie, the government’s failure to follow the CI Guidelines

meant that MacFarlane and other agents lacked control over

Lochmiller, which Christie alleges violated his right to due

process because, absent such control, the government “simply

cannot vouch for the integrity of the data on [the NAMGLA]

site,” and thus innocent people are exposed to prosecution.

(Appellant’s Op. Br. at 54.)

In assessing Christie’s claim of outrageous government

conduct, we review the District Court’s factual findings for clear

error and exercise plenary review over the Court’s legal

conclusions. United States v. Lakhani, 480 F.3d 171, 181 (3d

Cir. 2007). “[W]e repeatedly have noted that we are ‘extremely

hesitant to find law enforcement conduct so offensive that it

violates the Due Process Clause.’” United States v. Hoffecker,

530 F.3d 137, 154 (3d Cir. 2008) (quoting United States v.

Voigt, 89 F.3d 1050, 1065 (3d Cir. 1996)).

The CI Guidelines do not themselves create rights for

criminal defendants. See United States v. Henry, 482 F.3d 27,

33 (1st Cir. 2007) (“Justice Department guidelines were not

compelled by statute, nor intended to create private rights.”); cf.

United States v. Caceres, 440 U.S. 741, 751-52 (1979)

(reversing suppression of evidence obtained in violation of IRS

regulations). Accordingly, even if those Guidelines were

27

violated, that would not mean, in itself, that Christie would be

entitled to relief. The pertinent question is whether the

government’s conduct was so outrageous or shocking that it

amounted to a due process violation. See Hoffecker, 530 F.3d

at 153-54; United States v. Nolan-Cooper, 155 F.3d 221, 229

(3d Cir. 1998) (“[A] criminal defendant may raise a due process

challenge to an indictment against her based on a claim that the

government employed outrageous law enforcement investigative

techniques.”). The CI Guidelines are relevant, if at all, only to

the extent that they indicate boundaries the FBI views as

defining good law enforcement practices in working with CIs.

They do not purport to be rules, much less a statement of the

limits of constitutional behavior.

Assuming that the CI Guidelines apply to the

government’s interactions with Lochmiller, which is a point in

dispute, the alleged failures to abide by the Guidelines did not

violate Christie’s due process rights. Cases in which we have

found due process violations have involved far more egregious

government conduct. For example, we have determined that due

process was violated when the government itself manufactured

the illegal activity and then prosecuted others who engaged in

that activity alongside government actors. See United States v.

Twigg, 588 F.2d 373, 379 (3d Cir. 1978) (“We do not believe

the Government may involve itself so directly and continuously

over such a long period of time in the creation and maintenance

of criminal operations, and yet prosecute its collaborators.”).

Here, in contrast, the government gained access to ongoing

illegal activity through an intermediary, Lochmiller. The

government benefitted from the information and site access that

Lochmiller provided, but it did nothing to create or encourage

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criminal acts, and there is no evidence that the information

Lochmiller gave was untrustworthy.

C. Unreasonable Search and Seizure

Christie contends that the District Court erred in denying

his motion to suppress because, as he sees it, the government’s

acquisition of his IP address, in connection with the

administrative access given by Lochmiller, violated his Fourth

Amendment rights. “We review the denial of a motion to

suppress for clear error as to the underlying factual

determinations and exercise plenary review over the application

of the law to those facts.” United States v. Veal, 453 F.3d 164,

167 (3d Cir. 2006).

Christie’s argument hinges on the flawed premise that he

possessed a reasonable expectation of privacy in his IP address.

Federal courts have uniformly held that “subscriber information

provided to an internet provider is not protected by the Fourth

Amendment’s privacy expectation” because it is voluntarily

conveyed to third parties. United States v. Perrine, 518 F.3d

1196, 1204 (10th Cir. 2008); see also United States v. Bynum,

604 F.3d 161, 164 (4th Cir. 2010) (holding that a defendant

could not point to any “evidence that he had a subjective

expectation of privacy in his internet ... subscriber information”

because he “voluntarily conveyed” that information to the

company, and “assumed the risk” that the company would

provide that information to the police (internal citations

omitted)); Guest v. Leis, 255 F.3d 325, 336 (6th Cir. 2001) (“We

conclude that plaintiffs ... lack a Fourth Amendment privacy

interest in their subscriber information because they

29

communicated it to the systems operators.”). Similarly, no

reasonable expectation of privacy exists in an IP address,

because that information is also conveyed to and, indeed, from

third parties, including ISPs. “IP addresses are not merely

passively conveyed through third party equipment, but rather are

voluntarily turned over in order to direct the third party’s

servers.” United States v. Forrester, 512 F.3d 500, 510 (9th Cir.

2008); cf. Smith v. Maryland, 442 U.S. 735, 743-44 (1979)

(pointing out that the Supreme Court “consistently has held that

a person has no legitimate expectation of privacy in information

he voluntarily turns over to third parties”). Christie therefore

had no reasonable expectation of privacy in his IP address and

so cannot establish a Fourth Amendment violation.4 The

District Court properly denied his motion to suppress.

4

The one case upon which Christie relies, State v. Reid, dealt

specifically with the New Jersey constitution, not the federal

constitution, and is thus inapposite here. 945 A.2d 26, 28 (N.J.

2008) (“We now hold that citizens have a reasonable

expectation of privacy, protected by Article I, Paragraph 7, of

the New Jersey Constitution, in the subscriber information they

provide to Internet service providers ... .”). Indeed, the court

specifically recognized the absence of a right to privacy in

subscriber information under the federal constitution, but

reached a contrary result under the New Jersey Constitution

because “the search and seizure protections in the federal and

New Jersey Constitutions are not always coterminous.” See id.

at 31-32 (quotations omitted).

30

D. Sentencing

Finally, Christie argues that his sentence is unreasonable.

He does not object to the enhancements imposed in his case.

Instead, he says that § 2G2.2 is inherently flawed because the

enhancements apply in even the most routine cases, thereby

producing unnecessarily severe results, and that his sentence is

thus per se unreasonable because it was based upon a sentencing

range dictated by that Guideline. We review a district court’s

sentencing order for reasonableness, under an abuse of

discretion standard.5 United States v. Tomko, 562 F.3d 558, 567

(3d Cir. 2009).

Whether or not § 2G2.2 may produce unreasonable

sentences in some cases – a subject on which we make no

comment here – the sentence in this case is not unreasonable.

First, Christie’s collection of many thousands of images of child

pornography powerfully indicates that his is not the routine case.

Second, and more importantly, Christie helped to run a network

that allowed for the trading of hundreds of thousands of

unlawful images. As a moderator of the NAMGLA site, he

facilitated the trading and possession of child pornography by

other users, showing that he is guilty of far more than mere

possession. Third, the District Court noted that Christie

expressed no remorse and believed that he was likely to reoffend

5

Although Christie purports to be arguing that his sentence is

both procedurally and substantively unreasonable, his sole

argument – that his sentence is unreasonable because it was

based on a Guideline that allegedly produces overly severe

sentences – is a challenge only to substantive reasonableness.

31

in the future. All of those facts support the reasonableness of

the District Court’s sentence, based on Christie’s particular

history and characteristics and the specific characteristics of his

offense. Accordingly, on the facts of this case, we are satisfied

that the sentence was within the bounds of reasonableness.

III. Conclusion

For the foregoing reasons, we will affirm the judgment of

conviction and sentence imposed by the District Court.

32