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Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 8:12-cr-00457-SCB-MAP-1.
For United States of America, Plaintiff - Appellee: Todd B. Grandy, Arthur Lee Bentley III, Stacie B. Harris, James A. Muench, Jennifer Lynn Peresie, U.S. Attorney's Office, Tampa, FL.
For Arnold Maurice Mathis, Defendant - Appellant: Tracy N. DaCruz, Rosemary Cakmis, Donna Lee Elm, Federal Public Defender's Office, Orlando, FL; Jenny L. Devine, Federal Public Defender's Office, Tampa, FL.
Before HULL, MARCUS and BLACK, Circuit Judges.
Arnold Maurice Mathis, a registered sex offender, enticed a minor to engage in sexual activity in 2004. Seven years later, in 2011, he attempted to convince a minor to take sexually explicit pictures and send them to him via text message, and he actually succeeded in convincing a different minor to do so. Based on this conduct, a jury convicted Mathis of several child exploitation offenses and the district court sentenced him to a 480-month total term of imprisonment. On appeal, Mathis raises numerous challenges to his convictions and sentences, which we address in turn. After a thorough review of the record and consideration of the parties' briefs, and with the benefit of oral argument, we affirm Mathis's convictions and sentences. However, we remand to the district court for the limited purpose of correcting a scrivener's error in the judgment.
A. Mathis's Sexual Abuse of Jarvis J. and Subsequent Arrest
In 2004, Mathis, who was approximately 34 years old, approached Jarvis J. after a high school basketball game. Jarvis was 14 years old at the time. Mathis introduced himself as Pastor Maurice and gave Jarvis approximately $20 to purchase items at the concession stand. Mathis also told Jarvis that he was willing to act as a father figure or mentor and that he could assist Jarvis financially by helping him purchase shoes and clothes. Mathis gave Jarvis his cell phone number and told Jarvis to call him the next day.
At some point the following week, Jarvis met Mathis and Mathis gave him a pair of shoes, a shirt, and $100 to purchase a prepaid cell phone. Jarvis subsequently purchased a cell phone, phone card, and minutes for the phone. Jarvis used the phone to talk to Mathis, and the two met a few days after Jarvis bought the phone. On that occasion, after going to a fast food restaurant, Mathis took Jarvis to Mathis's house where Mathis eventually goaded Jarvis into showing him his penis. Mathis then performed oral sex on Jarvis. Mathis told Jarvis not to tell anyone about the encounter and promised that he would give Jarvis money and take care of him. Mathis took Jarvis to an ATM and gave him money.
Following the incident at Mathis's house, Jarvis used his cell phone to talk to Mathis on a daily basis. During his conversations with Jarvis, Mathis became more explicit and told Jarvis that he wanted to engage in sexual conduct with him. Mathis eventually met Jarvis again and, after having a meal, Mathis took Jarvis to Mathis's house. Mathis performed oral sex on Jarvis and instructed him to perform anal sex on Mathis. Jarvis complied with Mathis's instructions.
Sometime thereafter, Mathis talked to Jarvis on the phone about traveling to Orlando to go bowling. When Mathis arrived
to pick up Jarvis, Jarvis observed another man in the car with Mathis as well as a boy around Jarvis's own age. The group drove to Orlando, but instead of going bowling, they went to a diner and then a hotel. At the hotel, Mathis performed oral sex on Jarvis and had Jarvis perform anal sex on him while the other boy performed anal sex on the other man.
Subsequently, Mathis took Jarvis to a townhouse in Lakeland and tried to perform oral sex on him, but Jarvis resisted. Jarvis did not tell anyone about his experiences with Mathis until December 2011, nearly seven years later. At that time, Jarvis ran into the other man who had gone with him and Mathis to Orlando. After arguing with the man in a store, Jarvis talked to his pastor and then went to the Polk County Sheriff's Office. At the sheriff's office, Jarvis told Sergeant James Evans and Detective Zoe Vizcarrondo about his experiences with Mathis. Detective Vizcarrondo asked Jarvis to make a recorded phone call to Mathis. During the call, Mathis acknowledged that he had engaged in sexual conduct with Jarvis.
A few hours after Jarvis's recorded call with Mathis, law enforcement officers arrested Mathis. During the arrest, officers seized Mathis's cell phone, which was a Sprint smartphone.
B. The Search of Mathis's Smartphone
After Mathis was arrested, Detective Vizcarrondo obtained a search warrant for the contents of his cell phone. In support of her application for a search warrant, Detective Vizcarrondo submitted an affidavit which provided in pertinent part that the victim in the case, Jarvis, was 21 years old and that when he was between the ages of 14 and 15, Mathis sexually abused him. The affidavit explained that, according to Jarvis, Mathis continuously called him from Mathis's cell phone and that Mathis would also communicate with him via text message. Detective Vizcarrondo stated that Mathis had maintained the same phone number since the time of the crimes, and that a forensic examination of the phone would reveal a log of the recorded phone call between Jarvis and Mathis. In addition, Detective Vizcarrondo averred that, based on her knowledge, experience, and training in child sexual abuse investigations,
[T]here are certain characteristics common to many individuals involved in the communication made between the suspect and victim of such investigations. These suspects sometimes possess and maintain " soft copies" of such communication in the privacy and security of their personal cell phones and retain these items for many years. They often conceal such correspondence and often maintain lists of names, addresses, and telephone numbers of individuals with whom they have been in contact with and who share the same interests in encounters, sexual in nature, with children.
Glenn Hayes, a computer forensics examiner with the Polk County Sheriff's Office, initially examined Mathis's cell phone on December 22, 2011. During the initial examination of Mathis's phone, Hayes was able to retrieve contact lists, phone logs, and text messages, but could not retrieve multimedia messages--i.e., text messages to which a file was attached. Hayes examined the phone a second time on August 1, 2012. During the second examination, Hayes was able to retrieve all of the same data as before in addition to multimedia messages. Based on information obtained from Mathis's cell phone, law enforcement officers believed that he had either persuaded or attempted to persuade two other minors--Jerel A. and Harold J.--to
send him sexually explicit pictures of themselves.
C. The Indictment
A grand jury returned a second superseding indictment charging Mathis with (1) knowingly employing, using, persuading, inducing, enticing, and coercing Jerel A., a minor, to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, and attempting to do so, in violation of 18 U.S.C. § 2251(a) (Count One); (2) knowingly attempting to employ, use, persuade, induce, entice and coerce Harold J., a minor, to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, in violation of 18 U.S.C. § 2251(a) (Count Two); (3) knowingly persuading, inducing, and enticing Jarvis J., a minor, to engage in sexual activity, and attempting to do so, in violation of 18 U.S.C. § 2422(b) (Count Three); and (4) committing the offenses in Counts One through Three while he was required to register as a sex offender under the laws of Florida, in violation of 18 U.S.C. § 2260A (Count Four).
D. Mathis's Motion to Suppress
Prior to trial, Mathis moved to suppress the evidence obtained from the search of his cell phone. Mathis argued Detective Vizcarrondo's affidavit in support of the search warrant was misleading because it indicated Mathis used his cell phone to commit crimes against Jarvis J., even though the events giving rise to the charge occurred in 2004, when Mathis had a different cell phone. Mathis further maintained the search warrant was not supported by probable cause to believe evidence of an offense committed seven years prior to the search would be found on Mathis's current smartphone; that the information on which the warrant was based was stale; and that once law enforcement officials determined the smartphone did not contain text messages from before 2011, any further search exceeded the scope of the warrant.
At a suppression hearing held before a magistrate judge, Sergeant Evans testified that when he spoke with Jarvis J. at the Polk County Sheriff's Office in December 2011, Jarvis stated that, in 2004 and 2005, Mathis would communicate with him on the phone, in person, and via text message. Sergeant Evans stated that he knew Mathis did not have the same cell phone in 2011 as he did in 2004. Nevertheless, based on his training and experience, Sergeant Evans believed evidence of a crime committed in 2004 could be present on a cell phone in 2011. For instance, the phone could contain soft copies of information, digital images and media could be placed on a phone from an external source, and digital media could be transferred from one phone to another with a media card. Sergeant Evans further testified that, in his experience, individuals who sexually abuse minors generally maintain soft copies of evidence on their cell phones. Sergeant Evans acknowledged there was no indication that Mathis took photographs of Jarvis with his cell phone or that any text messages between Mathis and Jarvis were sexual in nature.
Adam Sharp, an expert in data recovery and the forensic analysis of computers and cell phones, testified it was highly improbable that text messages sent from a phone in 2004 would be present on a smartphone in 2011. Sharp explained that cell phones in 2004 could hold approximately one hundred text messages and that once the phone's capacity was reached, old text messages would be cleared when new text messages were received. Furthermore, it was not generally possible to transfer information from one cell phone to another if
an individual changed cell phone carriers. In addition, data was stored differently in 2004 than in 2011, and various other factors would have made it improbable that a text message from a cell phone in 2004 would be transferred to subsequent cell phones.
The magistrate judge issued a report and recommendation (R& R), concluding Mathis's motion to suppress should be denied because Detective Vizcarrondo did not recklessly mislead the state court judge who issued the search warrant, and because law enforcement acted in good faith reliance on the warrant when searching Mathis's cell phone. Over Mathis's objections, the district court adopted the magistrate judge's R& R and denied the motion to suppress.
E. The Trial
At trial, Jarvis J. testified and recounted his interactions with Mathis in detail. In addition, the Government introduced a copy of Mathis's 1995 judgment from the Circuit Court for Leon County, which showed that he entered a plea of nolo contendere to lewd and lascivious assault on a child, in violation of § 800.04 of the Florida Statutes. The Government also introduced a judgment from February 21, 1997, establishing that Mathis was sentenced to 48 months' imprisonment for violating his probation on his § 800.04 offense.
While Hayes was testifying at trial, Mathis renewed his motion to suppress, arguing for the first time that the second search of his cell phone in August 2012 was not authorized by the search warrant. In response, the Government elicited testimony from Hayes, who explained that during the December 2011 examination, the device he used to remove information from Mathis's cell phone was not able to extract multimedia messages from the phone. However, the device was subsequently updated numerous times before Hayes examined the phone again in August 2012. After the device was updated, Hayes was able to retrieve everything from Mathis's phone, including multimedia messages. The district court denied the renewed motion to suppress. The court explained that law enforcement officers had not acted in bad faith in waiting approximately eight months before searching the phone a second time and, regardless, Mathis was not prejudiced by the delay.
During the third day of trial, the Assistant United States Attorney (AUSA) advised the district court that earlier that morning she was in the elevator with Sergeant Evans when a juror stepped into the elevator as the doors were closing. Before the AUSA noticed the juror, the AUSA told Sergeant Evans that she had been at work until 2:00 a.m., to which Sergeant Evans responded, " [t]hat sucks."
Michelle Gonzalez, a special agent with the Federal Bureau of Investigation (FBI), testified that, based on their birth certificates, Jerel A. and Harold J. turned 16 years old in 2011, and that Jarvis J. was 14 years old in 2004.
Rashaad J. testified that he was friends with Harold J. Rashaad first met Mathis in the summer of 2011, when Rashaad was 17 years old. Rashaad met Mathis through Harold. Rashaad testified he took three pictures of Harold shirtless for Harold to send to Mathis, and that he saw Harold send one of the pictures to Mathis. Rashaad ...