Petition for Writ of Certiorari — Bruce Mitchell Nicholson, Petitioner v. United States

No. _______

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2021

BRUCE NICHOLSON,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

_____________________________________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE ELEVENTH CIRCUIT COURT OF APPEALS

PETITION FOR A WRIT OF CERTIORARI

J.D. Lloyd

The Law Office of J.D. Lloyd

1914 4th Ave. N. Ste. 100

Birmingham, AL 35203

Office: (205) 538-3340

JDLloyd@JDLloydLaw.com

QUESTION PRESENTED

Does a violation of a time-limit prescribed in a search warrant render

a search unreasonable under the Fourth Amendment?

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PARTIES TO THE PROCEEDINGS

Both parties are identified in the case caption. Because neither party

is a corporation, a corporate disclosure statement is not required.

STATEMENT OF RELATED PROCEEDINGS

• United States v. Nicholson, Northern District of Alabama, 2:15-cr00418

• United States v. Nicholson, Eleventh Circuit Court of Appeals, No. No.

19-11669 (published at 24 F.4th 1341 (11th Cir. 2022))

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TABLE OF CONTENTS

Question Presented .................................................................................... i

Parties to the Proceedings......................................................................... ii

Corporate Disclosure ................................................................................. ii

Statement of Related Proceedings ............................................................ ii

Table of Authorities ................................................................................... ii

Opinions Below .......................................................................................... 1

Statement of Jurisdiction .......................................................................... 1

Relevant Constitutional Provisions .......................................................... 1

Statement of the Case ............................................................................... 2

Reasons for Granting the Petition ............................................................ 8

This Court should consider the question of whether a violation of a

time-limit prescribed for a search warrant renders a search unreasonable ........................................................................................................ 8

Conclusion ............................................................................................... 12

Appendix A— Alabama Supreme Court Certificate of Judgment .... A001

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TABLE OF AUTHORITIES

Cases

Page(s)

United States v. Cote, 72 M.J. 41 (C.A.A.F. 2013) ............................. 10,11

United States v. Nicholson, 24 F.4th 1341 (11th Cir. 2022) ........ ii,1,10,11

Federal Statutes

18 U.S.C. § 2251 ........................................................................................ 3

18 U.S.C. § 2252A ...................................................................................... 2

18 U.S.C. § 2423 ........................................................................................ 2

28 U.S.C. § 1254 ........................................................................................ 1

Rules of Court

Rule 41, Fed. R. Crim. P.......................................................................... 10

Rule 29.6, Supreme Court Rules............................................................... ii

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OPINIONS BELOW

The Eleventh Circuit’s opinion affirming Mr. Nicholson’s convictions

is attached as App. A.

STATEMENT OF JURISDICTION

The Eleventh Circuit affirmed Mr. Nicholson’s convictions via published opinion on January 24, 2022, in United States v. Nicholson, 24

F.4th 1341 (11th Cir. 2022). This Court has jurisdiction to consider this

petition under 28 U.S.C. § 1254.

RELEVANT CONSTITUTIONAL PROVISIONS

The right of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the

place to be searched, and the persons or things to be seized.

U.S. Const., amend IV.

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STATEMENT OF THE CASE

On December 28, 2015, a grand jury in the Northern District of Alabama indicted Mr. Nicholson in a six-count indictment. Doc. 1.

In Counts 1 and 2, the grand jury charged Mr. Nicholson with knowingly transporting K.M. and J.F., who were under the age of 18, in interstate commerce with the intent to engage in sexual activity for which a

person can be charged with a criminal offense, a violation of 18 U.S.C. §

2423(a). In Count 3, the grand jury charged Mr. Nicholson with traveling

in interstate commerce for the purpose of engaging in illicit sexual contact with J.F, a violation of 18 U.S.C. § 2423(b). In Count 4, the grand

jury charged Mr. Nicholson using means of interstate commerce to

transport child pornography using an Acer laptop computer and a Polaroid camera, a violation of 18 U.S.C. § 2252A(a)(1). In Count 5, the grand

jury charged Mr. Nicholson with knowingly possessing child pornography

on the Acer laptop, but not including the child pornography described in

Count 4 or 6, a violation of 18 U.S.C. § 2252A(a)(5)(B). In Count 6, the

grand jury charged Mr. Nicholson with using, persuading, inducing, enticing or coercing K.M., who was under 18 years old, to engage in sexually

explicit conduct for the purposes of producing a visual depiction of the

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conduct and that depiction was transported in interstate commerce, a violation of 18 U.S.C. § 2251(a) and (e).

After a four-day trial, a jury convicted Mr. Nicholson of all six counts.

Doc. 114-119; Doc. 168 at 565. On April 19, 2019, the district court sentenced Mr. Nicholson to terms of life imprisonment for his convictions for

Counts 1 and 2, 360 months for Counts 3, 120 months for Count 4, 120

months for Count 5 and 360 months for Count 6. Doc. 170 at 35; Doc. 139.

Mr. Nicholson filed a timely notice of appeal on April 30, 2019. Doc. 141.

At the heart of this case lies allegations that Mr. Nicholson left Birmingham, Alabama, with his daughter, J.F., and K.M, the daughter of

his long-term girlfriend, Rebecca Baker, in the summer of 2012. According to these women, Mr. Nicholson had sexually abused them for years.

Mr. Nicholson and Baker were involved in a relationship for eleven

years. Doc. 165 at 94. Baker had a daughter, K.M. (born October 21,

1995), from a previous relation and Mr. Nicholson served as a father figure to her. Id. at 97-98; Doc. 167 at 382. Mr. Nicholson later father J.F.

by Baker on July 31, 1998. Doc. 166 at 257.

In April 2008, K.M. and J.F. were removed from the Mr. Nicholson and

Baker’s household due to abuse allegations involving Baker. Doc. 165 at

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99-100. At the time, K.M. was 12 years old and J.F. was 9 years old. Id.

at 99. After being removed from the house, the girls lived with Janet

Baker and her husband, who was Rebecca Baker’s uncle. Id. at 94, 100.

While both girls lived with Janet, they had overnight weekend visits with

Mr. Nicholson. Id. at 102. J.F. eventually went back to live with Mr. Nicholson; K.M. continued to live with Janet. Id. 101. Although Janet had

custody of K.M., she visited Mr. Nicholson and J.F. overnight on weekends after J.F. moved back in with Mr. Nicholson. Id. at 101-02. At the

time, K.M. saw Mr. Nicholson every other weekend. Id. at 102.

The events leading to the present prosecution began to unfold in June

2012. At the time, K.M. was 16 and J.F. was 13. Id. at 103. According to

Janet Baker, K.M. had volleyball practice twice a day with the first practice beginning at 6 a.m. before coming home around 10 or 11 a.m. Id. at

104-5. On June 12, 2012, however, K.M. did not come home after practice

and her car was later found at the Summit shopping center. Id. at 105.

Janet reported K.M. missing and involved law enforcement. Id. On July

16, 2012, K.M. and J.F. were located with Mr. Nicholson in Kentucky. Id.

at 106. Janet traveled to Kentucky to pick up K.M. Id. at 107. On the way

back to Alabama, K.M. informed Janet that she was pregnant. Id.

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At trial, J.F. and K.M. testified against Mr. Nicholson. The two alleged

that Mr. Nicholson had been sexually abusing them for some time. K.M.

testified that Mr. Nicholson began sexually abusing her when she was

young – back when she was 6 or 7. Doc. 167 at 382. According to K.M.

this abuse occurred when she and J.F. lived with their mother and Mr.

Nicholson. Id. Occasionally, Mr. Nicholson would take K.M. out on the

road with him for work, where the sexual abuse would continue. Id. at

388. The contact continued after K.M. and J.F. were removed from Mr.

Nicholson and Rebecca’s house when K.M. would visit with J.F. Id. at

397. When she K.M. was 14 or 15, Mr. Nicholson began having intercourse with her. Id. at 397-98. K.M. became pregnant at the age of 16 by

Mr. Nicholson in 2012. Id. at 398. According to K.M., her pregnancy

prompted Mr. Nicholson to leave Alabama with her and J.F. Id. at 399.

J.F. testified that Mr. Nicholson began sexually abusing her when she

was seven years old. Doc. 166 at 263. J.F. alleged that the abuse continued until right before the three left Birmingham. Id. at 273. As with

K.M., J.F. explained that they left town because of K.M.’s pregnancy. Id.

at 272.

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J.F. and K.M. testified that during this period, both saw Mr. Nicholson

watch child pornography. Id. at 270; Doc. 167 at 388-89. J.F. identified

an Acer laptop computer that Mr. Nicholson had. Doc. 166 at 270-271.

K.M. testified that Mr. Nicholson would show her child porn and believed

that he did so to teach he what to do to him. Doc. 167 at 389. Mr. Nicholson also took pictures and video of both girls naked and in specially

bought lingerie. Id. at 390-91. J.F. identified a green Polaroid camera as

the camera Mr. Nicholson used to photograph her and K.M. Doc. 166 at

264-267. Mr. Nicholson called it a fashion show when he took pictures of

the girls. Id.; Doc. 167 at 391. During one fashion show, Mr. Nicholson

performed oral sex on both girls. Id. at 392. When K.M. lived with Janet,

Mr. Nicholson was in stored her cell phone as “Nick Brady” to hide his

identity. Id. at 395. Mr. Nicholson would ask her to send him “something

pretty,” which she interpreted as naked pictures of her body including

her genitals. Id. at 395-97. She would do so. Id. at 395-397, 414. K.M.

identified Exhibit 15 as a picture of her vagina that she sent to Mr. Nicholson after he asked her for a picture. Id. at 396.

On June 12, 2012, the three left Birmingham in Mr. Nicholson’s Ford

F-150 truck. They traveled to Florida and then up the east coast ending

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in Syracuse, New York. Doc. 166-167. There, Mr. Nicholson took a job

driving a tractor-trailer rig for J.B. Hunt. Id. at 275; Doc. 167 at 402. Mr.

Nicholson left his F-150 in Syracuse. Id. Authorities eventually located

Mr. Nicholson, J.F., and K.M. in Kentucky on July 16, 2012.

In December 2012 and January 2013, search warrants were executed

on Mr. Nicholson’s truck in Syracuse as well boxes of the contents removed from the cab of the J.B. Hunt truck Mr. Nicholson was driving in

Kentucky at the time of the arrest. The searches from Kentucky and New

York yielded a green Polaroid digital camera and an Acer laptop computer. Doc. 166 at 136, 138, 193, 211. A forensic examiner with the FBI

found multiple images of child pornography on the camera’s memory card

and on the hard drive removed from the Acer laptop. Doc. 166 at 312,

318.

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REASONS FOR GRANTING THE PETITION

This Court should consider the question of whether a violation

of a time-limit prescribed for a search warrant renders a search

unreasonable.

Mr. Nicholson suffered a violation of his Fourth Amendment rights

when authorities searched his laptop computer well outside the time limitation imposed by the search warrant.

The United States conceded that law enforcement failed to search the

hard drive of Mr. Nicholson’s Acer computer within the time limits prescribed by the New York search warrant but argued that suppression of

evidence from the hard drive was not warranted despite clear violations

of the warrant’s provisions. Doc. 92 at 6-9; Doc. 102 at 10-11. Over Mr.

Nicholson’s objection, the district court allowed evidence discovered on

the Acer laptop at trial. Doc. 166 at 310, 318. The district court should

have suppressed this evidence.

Law enforcement in New York obtained a search warrant for Mr. Nicholson’s truck and personal belongings in Syracuse, New York on December 18, 2012. Doc. 101-1. The warrant contained an addendum that

provided “[t]he computer or electronic media search authorized by this

warrant shall be completed within sixty (60) days of the date of this

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warrant. This period may be extended by the court upon a showing of

good cause.” Doc. 92-2 at 6. The warrant was executed the next day. Id.

According to Joy Speakman, an evidence control tech, the Birmingham

FBI office received the Acer laptop from the New York FBI on January

31, 2013.

According to Wendy Davis, a digital forensic examiner with the Computer Analysis Response Team at the FBI in Birmingham, the Birmingham FBI office assigned the Acer laptop to a forensic examiner on March

1, 2013. Doc. 92-2. The laptop was then assigned to her verbally on June

16, 2013, and formally on June 17, 2013. Id. Davis would later testify

made a forensic copy of the hard drive and began her review on June 17,

2013. Doc. 164 at 89. She was not aware of the 60-day addendum to the

warrant. Id. at 90. A total of 180 days passed between the seizure of the

Acer laptop and the forensic search of its hard drive and 135 days passed

from law enforcement in Birmingham receiving the laptop from New

York authorities. The United States never applied for an extension to the

warrant’s time limits.

The Court below rejected the contention that fruits of the search were

due to be suppressed. The Court believed the violation was equivalent to

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a violation of the temporal limits of Rule 41, Fed. R. Crim. P. See Nicholson, 24 F.4th at 1351-52. Because it believed Mr. Nicholson had not

proven that (1) he suffered prejudice from the tardy search, or (2) there

was evidence of intentional and deliberate disregard for the time limit,

then he wasn’t entitled to any relief for this violation. Id. at 1352.

Another circuit has rejected the Rule 41 comparison and found a constitutional violation where the time limitations of the search warrant are

violated. The United States Court of Appeals for the Armed Forces

reached the opposite conclusion of the Eleventh Circuit in United States

v. Cote, 72 M.J. 41 (C.A.A.F. 2013). There, investigators finally searched

the hard drive of a computer well over one year after the computer was

seized pursuant to a warrant. Id. at 43. Like Mr. Nicholson’s warrant,

Cote’s warrant contained a 90-day time limit for searching the hard drive.

Id. at 42. That Court recognized “that the Fourth Amendment harm being protected against by the ninety-day provision in this case is from a

seizure of unreasonable duration and the resulting interference with

Cote's possessory interest in noncriminal materials.” Id. at 45. The Court

ultimately upheld the suppression of the evidence on the grounds that

the warrant violation was not a de minimis violation and because the

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United States “did not show any fact which would support the argument

that its violation of the warrant's terms was reasonable under the circumstances.” Id. at 46.

Cote and the decision below create a tension as to how courts should

address searches conducted after the temporal limitation for a warrant

expires. While the Court below couched its focus on a “staleness’ concern,

see Nicholson, 24 F.4th at 1351, the Court of Appeals for the Armed

Forces looked to Mr. Cote’s possessory interest and how the delay interfered with his right to possess his computer. Thus, the question exists as

to the tension between the staleness/prejudice focus applied by the Eleventh Circuit here or the possessory interest concern discussed by the

Court of Appeals for the Armed Forces.

Because the circuits are split on this issue, this Court should grant a

writ of certiorari to further explore this emerging area of digital evidence

and the Fourth Amendment.

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CONCLUSION

For these reasons, this Court should grant Mr. Nicholson’s petition for

a writ of certiorari.

Respectfully submitted,

/s J.D. Lloyd

J.D. LLOYD

Counsel of Record

The Law Office of J.D. Lloyd

1914 Fourth Ave. N., Ste. 100

Birmingham, AL 35203

Office: (205) 538-3340

JDLloyd@JDLloydLaw.com

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