Summary
This published opinion from the United States Court of Appeals for the Fourth Circuit addresses a criminal appeal involving convictions for possessing and producing child sexual abuse material. The panel affirms the denial of the defendant's motion to suppress evidence from his Google account under the independent source doctrine and upholds the district court's jury instructions on defining 'lascivious exhibition.' However, it vacates and remands the sentence because the trial court failed to consider mandatory statutory factors when imposing a special assessment.
Topics
Practice areas
Questions Presented
- Whether the district court erred in denying the motion to suppress Google data obtained via an independent source.
- Whether the jury instruction defining "lascivious exhibition" was erroneous.
- Whether the district court erred in denying Deritis’s Rule 29 motion for acquittal on Counts One and Two.
- Whether the district court erred in sustaining hearsay objections to Deritis’s ex‑wife testimony.
- Whether the district court erred in imposing a special assessment without considering the statutory factors.
Holdings
- The district court did not err; the evidence was admissible because the government obtained it from an independent source.
- The district court’s instruction was proper; it adequately warned that mere nudity is insufficient and correctly incorporated the Dost factors as non‑mandatory guidance.
- The district court did not err; substantial evidence supported the convictions.
- The district court erred, but the error was harmless.
- The district court plainly erred; the special assessment is vacated and the case remanded for resentencing.
Key quotations
“lascivious exhibition means a depiction which displays or brings to view in order to attract notice to the genitals or pubic area of children, in order to excite lustfulness or sexual stimulation in the viewer.” (at 13)
“We hold that the district court did not err in denying Appellant’s motion to suppress because the Government obtained the challenged evidence from an independent source.” (at 11)
Factual background
Deritis placed a hidden camera in his stepdaughter's bathroom, recorded video and photographs of her nude, downloaded thousands of child sexual abuse images, and attempted to delete the data when police arrived. The government obtained the data from a search of his home and from a preservation request and subsequent warrant to Google.
Procedural history
The district court convicted Deritis of four child sexual abuse material offenses, sentenced him to 600 months imprisonment and imposed a $117,000 special assessment. Deritis appealed several issues including suppression of Google data, jury instruction on "lascivious exhibition," Rule 29 motion, exclusion of ex‑wife testimony, and the special assessment.
Remand instructions
Remand for resentencing on the special assessment issue, with the district court required to consider the statutory factors in 18 U.S.C. §§ 3553(a) and 3572.