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United States v. Fifer

United States Court of Appeals, Seventh Circuit

July 17, 2017

United States of America, Plaintiff-Appellee,
Marcus B. Fifer, Defendant-Appellant.

          Argued April 6, 2017

         Appeal from the United States District Court for the Central District of Illinois. No. 3:14-cr-30006 - Sue E. Myerscough, Judge.

          Before Easterbrook, Manion, and Hamilton, Circuit Judges.

          Manion, Circuit Judge.

          Marcus Fifer was tried and convicted on multiple counts of producing child pornography. On appeal he challenges several of the district court's evidentiary rulings and one of its jury instructions. He also appeals the terms of his supervised release. We find no error and affirm.

          I. Background

         A. Search and Seizure

         In November 2013, police used a confidential source to complete two controlled buys of heroin from an apartment in Springfield, Illinois. The apartment belonged to a registered sex offender named Marcus Fifer. Shortly afterwards, the police obtained a search warrant from an Illinois state court authorizing them to search Fifer's apartment for drugs and other evidence including cell phones and computers. During the search, they discovered a half-naked 16-year-old girl hiding under a bed. The girl (whose initials are C.T) was at first uncooperative; she refused to come out from under the bed and she lied about her name and age.

         One of the officers attempted to identify the girl by looking through some cell phones and a tablet that were recovered from the apartment. When the officer saw sexually explicit images of C.T. and Fifer on those devices, he referred the case to his department's sex-crimes division.[1] Officers from that division eventually secured C.T.'s cooperation. C.T. revealed that she and Fifer had been living together over the past several months and had produced a number of sex videos using the electronic devices (four cell phones, a laptop computer, and a tablet) found in the apartment.

          The police then got a warrant from federal court to search the electronic devices for child pornography. The application for the federal warrant made no mention of the initial on-site search of the phones or tablet, but was based entirely on C.T.'s statements to the officers from the sex-crimes division. The execution of the federal warrant revealed sexually explicit images and videos of C.T and Fifer.

         B. Proceedings

         In 2015 Fifer was charged with more than twenty counts of producing child pornography in violation of 18 U.S.C. §§ 2251(a) and (e). Before trial, Fifer moved to suppress the evidence obtained from his electronic devices on the ground that the state search warrant lacked probable cause. The district court found probable cause and denied the motion to suppress. At the same time, the court granted the government's motion to exclude evidence regarding Fifer's knowledge (or lack of knowledge) of C.T.'s age, and also excluded as irrelevant a number of exhibits and witnesses proffered by Fifer to show that he and C.T. had a "loving relationship." Initially the court also barred evidence of Fifer's prior sex-offense convic- tion, [2] but later admitted the conviction after Fifer testified at trial that his "sole purpose" in producing pornography with C.T. was to enhance their loving relationship.

         At the close of the evidence, the court used this Circuit's pattern jury instruction[3] to advise the jury on how to evaluate the opinion testimony presented at trial. Fifer unsuccessfully objected to the instruction on the ground that it bolstered the government's expert witnesses by mentioning their official titles. Here's the portion of the instruction to which Fifer objected:

You have heard witnesses, namely, Department of Homeland Security Task Force Officer Ellen Price, who gave opinions and testimony about forensic examination of electronic items as well as the extraction of child pornography from those same electronic items, and Department of Homeland Security Resident agent in charge Michael Mitchell....

         The jury ultimately found Fifer guilty of eighteen counts of producing child pornography. The district court sentenced Fifer to 35 years in prison plus lifetime supervised release with mandatory sex-offender treatment. The court ordered Fifer to "abide by the rules of the [sex-offender] treatment provider [and] submit to physiological testing, including polygraph testing."

         II. Discussion

         On appeal Fifer challenges each of the district court's evidentiary rulings recounted above. He also challenges the jury instruction on opinion testimony and the length and terms of his supervised release. We address each challenge in turn.

         A. Motion to Suppress

         In reviewing the district court's denial of Fifer's motion to suppress, we review its legal conclusions de novo and its factual findings for clear error. United States v. McPhaul, 835 F.3d 687, 689 (7th Cir. 2016).

          1. ...

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