Federal courts are loathed to reverse a criminal conviction for technical statutory violations. This was evidenced in the January 21, 2016 decision by the Eighth Circuit Court of Appeals in United States v. Welch.


John Welch was convicted of receiving, attempting to receive, and accessing with intent to view child pornography in violation of 18 U.S.C. § 2252A (a) (2), (a) (5) (H).


Unlawful Search Upheld by Appeals Court


The Welch case involved an unlawful search.


Rule 41(f) (1) (C) of the Federal Rules of Criminal Procedure requires that an officer executing a search warrant to “give a copy of the warrant and a receipt for the property taken to the person” from whom the property is seized.


Statutory Reasons for Delay in Execution of Warrant


Subsection (f) (3) of Rule 41 permits a delay in providing a copy of the warrant if such a delay is authorized by statute. 18 U.S.C. § 3103a (b). A notice of the warrant may be delayed under the following three circumstances:


  1. The Court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result ….
  2. The warrant prohibits the seizure of any tangible property, any wire or electronic communication … or … any stored or electronic information, except where the court finds reasonable necessity for the seizure; and
  3. The warrant provides for the giving of such notice within a reasonable period not to exceed 30 days after the date of its execution, or on a later date certain if the facts of the case justify a longer period of delay.


Feds Take Down PedoBook


In the Welch case, federal investigators in 2012 initiated an investigation into a computer server in Bellevue, Nebraska. This server was hosting a number of child pornography websites. One of those websites was called “PedoBook.” Access to this site could only be had through special software designed to conceal its user’s identity. This software prevented investigators from identifying the Internet Protocol (IP) addresses of PedoBook users.


The FBI had two choices in the PedoBook investigation: either shut down the server, or, as the Eighth Circuit pointed out, “install software on the server that would circumvent this network, providing agents with information about any user who accessed certain content on Pedobook (the ‘Network Investigative Technique’ or NIT).”


The FBI exercised the second choice because it not only provided investigators with the user’s IP address but also gave them the date and time the user accessed content from the site as well as his computer operating system.


Network Investigative Technique Warrant Secured November 2012


The FBI secured its NIT warrant in November 2012. The agency decided to keep PedoBook operating for approximately three weeks during which it allowed the dissemination of thousands of horrific images of children being sexually abused to hundreds of viewers.


In 2013, we posted a piece here about the FBI’s decision to get involved in the child porn business in this case.


The decision by the FBI to distribute child porn for three weeks led them to Welch’s IP address.


Residential Warrant Secured on April 4, 2013, Executed Five Days Later


In early December, 2012, the FBI received Welch’s name and physical address in Florida from an ISP. Armed with this information, agents on April 4, 2013 sought and secured a residential warrant. They executed that warrant five days later on April 9, 2013.


Welch was arrested on April 9 and provided with notice of the NIT warrant shortly afterwards.


Prior to trial, Welch filed a motion to suppress the evidence obtained through the NIT warrant.  The basis for his motion was that the FBI failed to provide him with a copy of the warrant within the time frame set forth in Rule 41. The Government vigorously opposed the motion. The trial court agreed with the Government, denying Welch’s suppression motion.


Government Failed to Give Notice under Rule 41


A jury subsequently convicted Welch. He raised the Rule 41 issue on appeal. The Eighth Circuit agreed, finding:


“We assume, without deciding, that Rule 41 applies to the NIT warrant. The statute authorizing the magistrate judge to delay notice is perfectly clear—the thirty-day extension runs from the execution of the warrant. This occurred on November 19, 2012, meaning notice was to be provided within thirty days of that date. Moreover, the ‘notice’ provided by the government was insufficient. The government points to a hearing Welch attended in which an agent testified about the NIT and to the entry of the residential search warrant into evidence as notice ‘provided during the discovery process.’ But under Rule 41 Welch should have been given a copy of the warrant. Of course it is plainly true that if the agents were required to send a copy of the warrant to the subscriber address they obtained before they could search the premises and identify the individual user, Welch would have had ample opportunity to flee prosecution, destroy or tamper with evidence, and otherwise seriously jeopardize the investigation. But these special considerations would have allowed the magistrate judge to either specify a later date certain, which he did not do, or for the government to return for extensions of time under § 3103a(c), which he did not do. Therefore, the notice given Welch failed to comport with Rule 41.”


But something happened on the way to the bank…


Violation of 4th Amendment, But No Bad Faith or Prejudice


The Eight Circuit held in 2006 that a Rule 41 violation amounts to a violation of the Fourth Amendment warranting exclusion “only if a defendant is prejudiced or if reckless disregard of proper procedure is evident.”


The appeals court ruled that Welch had shown no evidence that either the FBI agents acted in bad faith by deliberately violating Rule 41 or that he had been prejudiced by the violation itself.


Put simply, the FBI in this case not only engaged in quasi-official criminal conduct by operating a child porn website for three weeks but violated the law in order to seize the evidence that convicted John Welch who visited that site.  Given the nature of the offense, it looks like the Courts strained to find reasons to uphold the conviction.