An Unknown White Female

The Maine Supreme Court has ordered the interim suspension of an attorney convicted of a “serious crime” which was affirmed by the United States Court of Appeals for the First Circuit

In late June 2015, agents with the Department of Homeland Security (DHS) obtained a video depicting suspected child pornography that had been shared over the internet by a computer using an IP address assigned to a home in Portland, Maine. Investigators learned that the home was owned and occupied by Royle, a local attorney, and that its internet service was registered in his name.

On several occasions beginning July 1, 2015, DHS Special Agent David Fife (SA Fife) conducted surveillance outside Royle’s home. Among other observations, he noted a man matching Royle’s physical description standing in the driveway and entering the house, as well as a car registered to Royle and his ex-wife parked near the house. SA Fife also conducted surveillance of Royle’s law firm, where he observed this same man and car in the parking lot. At one point during his surveillance of the home, SA Fife observed Royle “embrace and kiss an unknown white female,” who then left in a separate vehicle.

While this surveillance was ongoing, SA Fife prepared documents to apply for a search warrant for Royle’s home. For instance, on Monday, July 6, 2015, SA Fife sent a draft search warrant affidavit to a federal prosecutor, seeking review and feedback. The two discussed edits to the draft over the next two days and, on the morning of July 8, planned via email to seek and execute a warrant for Royle’s home on Monday, July 13. As reflected in their emails, this agreed-upon timing was intended to accommodate staffing concerns and allow sufficient time for internal approval.

During the evening of July 8, SA Fife and another DHS agent continued surveillance of Royle’s home. There, they observed that the front door and a few windows remained “wide open” for several hours, though there was no car in the driveway. Purportedly concerned about the “unsecured nature of the home,” agents contacted the Portland Police Department (PPD) to “conduct a welfare check.”

Two PPD officers arrived at Royle’s house around 10:30 p.m. Officers reported that they observed a mess through the open front door and that no one appeared to be home. After knocking on the screen door without response, the officers entered the residence. After “[s]everal minutes” looking around the residence, the officers exited. PPD then proceeded to talk to a neighbor, inquiring about Royle, and explaining that “[s]omebody called in a welfare check” on Royle, “[be]cause the front door was wide open, unlocked.”

After PPD exited Royle’s house, SA Fife approached the PPD cruiser to ask about “what happened.” PPD told him that “no one was present in the home but that there were no signs of forced entry or other suspicious activity beyond the open door.” SA Fife asked if PPD “s[aw] things there [in the house] that would ․ not still be there if the place had been ․ robbed.” PPD responded that they observed “a laptop and several televisions, leading them to believe that no one had been in the residence to steal or attempt to steal anything.” The next day, SA Fife wrote up a report about the events of July 8. Royle eventually received a copy of this report nearly three years later, in June 2018, in connection with pre-indictment talks with the government. This pre-indictment disclosure was the first time Royle learned that the July 8 search had taken place.

On Monday July 13, 2015, SA Fife obtained a search warrant for Royle’s home and executed it the next morning at approximately 7:40 a.m. At this time, Royle was the only adult home. His two children, who were “[q]uite a bit under ten years old,” were also present. SA Fife asked Royle whether there was someone who could pick the children up; Royle said his ex-wife could help and provided her phone number to the agents to arrange for the pickup.

During their search, agents discovered and seized a MacBook computer in an upstairs room, and that computer was later found to contain images depicting child pornography. No other computers were seized during the search. At the time the laptop was discovered, it was powered on and on top of a desk. Agents further determined that the laptop was in the process of running “a wipe function,” which the agents were able to stop by powering down the computer. Forensic examiners later discovered that the wipe function running on the MacBook had been initiated at around 6:55 a.m. that day.

In November 2018, Royle was charged with one count of knowingly possessing and accessing with intent to view child pornography, and attempt to do the same, in violation of 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2), and 2256(8)(A). In July 2019, Royle moved to dismiss the indictment, arguing that SA Fife’s failure to disclose the existence and details of the July 8 search at any time before June 2018 violated his procedural and substantive due process rights. In the alternative, he moved to suppress the fruits of the July 13 warrant-backed search on the grounds that the evidence was derivative of observations made during the warrantless search on July 8. Following a hearing in October 2019, the district court denied Royle’s motion to suppress, holding that the July 8 search was justified under the community caretaking exception to the warrant requirement or the good faith exception “vis-a-vis the wellness check.” The court also ruled that, in any event, the evidence obtained from the July 14 search was admissible under the independent source doctrine. The district court further rejected Royle’s arguments regarding the failure to give earlier notice of the July 8 search. The court explained that Royle’s analogies to the pre-indictment delay and Speedy Trial Act contexts “don’t ․ really work here, [and] certainly not in a way that would lead me to dismiss the case.” The court explained, however, that while it was denying Royle’s motion, “if there are ways at trial that this failure to disclose has prejudiced [him] in a way that I can remedy at trial, I’m open to it.”

Royle was convicted on January 23, 2020, following a three-day jury trial. The government’s evidence consisted principally of testimony from special agents Fife, Douglas McDonnell, and Seth Plumb, as well as various exhibits reflecting images and data recovered from the MacBook. SA Fife testified as to the circumstances surrounding the warrant execution at Royle’s home, as discussed above, and SA McDonnell testified about his role as a member of the team that executed the search warrant on July 14. As will be further detailed below, the forensic evidence — introduced mainly through SA Plumb — included images of minors engaged in sexually explicit conduct, internet browsing history, and other tranches of data demonstrating that the laptop recovered from Royle’s home was used to access child pornography. The government argued to the jury that this data, along with other circumstantial evidence that will be discussed, proved that Royle knowingly possessed and accessed the child pornography found on the MacBook.

At the close of the government’s evidence, Royle moved for an acquittal, arguing that the government failed to prove beyond a reasonable doubt that he knowingly used the laptop to access child pornography. The district court reserved judgment, see Fed. R. Crim. P. 29(b), and ultimately denied Royle’s renewed motion for acquittal in a written order following the verdict. This timely appeal followed.

(Mike Frisch)