United States v. Azucenas – CourtListener.com

                           NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                        OCT 8 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,                       No. 23-783
D.C. No.
Plaintiff - Appellee,              3:19-cr-02688-JLS-1
v.
MEMORANDUM*
ZODIAC AZUCENAS,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Argued and Submitted June 6, 2024
Pasadena, California
Before: CLIFTON and COLLINS, Circuit Judges, and RODRIGUEZ, District
Judge.**
Appellant Zodiac Azucenas, a 44-year-old United States citizen, was found
guilty by a jury of one count of receiving child pornography (

18 USC § 2252

(a)(2))
and one count of possessing child pornography (

18 USC § 2252

(a)(4)(B)).
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Xavier Rodriguez, United States District Judge for the
Western District of Texas, sitting by designation.
From September to December 2016, Azucenas engaged in several sexually
explicit online conversations via Facebook Messenger with a 15-year-old girl in the
Philippines. Azucenas persuaded the girl to provide photos and videos of her breasts
and genitals in exchange for money.
Through performing its own self-initiated searches designed to keep the
platform free from sexual exploitation of minors, Facebook discovered these
sexually explicit conversations and images. After Facebook employees reviewed the
explicit materials, Facebook filed three “CyberTips” with the National Center for
Missing & Exploited Children (“NCMEC”) in late December 2016 and January
2017. Soon thereafter, the NCMEC forwarded the CyberTips to law enforcement
agencies, including the San Diego Internet Crimes Against Children Task Force,
where the matter was assigned to Homeland Security Investigations (“HSI”) Agent
William Thompson (“Agent Thompson”).
After locating the Filipino victim and learning more about Azucenas’s efforts
to induce her to provide sexual images, Agent Thompson applied for and received a
state search warrant for Azucenas’s Facebook account in April 2017. In addition to
confirming the same chats and images memorialized in the CyberTips, the results of
this search revealed that Azucenas exchanged sexual photos with other female
Facebook users who appeared to be in their teens.
2                                   23-783
In January 2018, after several months of investigating Azucenas, Agent
Thompson applied for and received a federal search warrant for Azucenas’s house.
In executing this search warrant, HSI agents and the San Diego Police Department
discovered a computer and two hard drives that belonged to Azucenas, containing
images and videos of minors engaged in sexually explicit conduct.
Azucenas was subsequently charged with one count of receiving child
pornography and one count of possessing child pornography. After a jury returned
guilty verdicts on both counts, the district court imposed a sentence of 90 months in
prison and 10 years of supervised release on each count (concurrent), plus $33,000
in restitution to eleven identifiable victims in the child pornography found in
Azucenas’s possession.
Azucenas contends that the district court committed three reversible errors.
First, Azucenas argues that the district court erred in denying his motion to suppress
the child pornography found on his computer. Specifically, he alleges that the district
court erred in determining that Facebook did not act as an agent of the government
when it searched and reviewed his private user chats; in concluding that the private
search doctrine applied to the NCMEC forwarding Facebook’s reports of child
exploitation materials to law enforcement officials; and in failing to apply the correct
“common-law trespassory test” required by United States v. Jones, 

565 VS 400

,
409 (2012).
3                                     23-783
Second, Azucenas alleges that the district court applied the 2018 Amy, Vicky,
and Andy Child Pornography Victim Assistance Act (“AVAA”) to calculate his
restitution payment amount but should have instead relied on the statute in effect at
the time of the commission of his crimes, the 1996 Mandatory Victim Restitution
Act (“MVRA”). Because the AVAA provided a broader definition of “total loss”
than the MVRA and required a minimum restitution award per victim, Azucenas
argues that sentencing him under the AVAA exposed him to a higher restitution
award and thereby violated the Ex Post Facto Clause of the United States
Constitution.
Third, Azucenas asserts that the district court failed to provide sufficient
justification for imposing two supervised release conditions: i) Special Condition 7
prohibits Azucenas from associating with any child under age 18 absent adult
supervision or the probation officer’s approval, including his 8- or 9-year old half-
sister in the Philippines; and ii) Special Condition 11 requires Azucenas to
participate in sex offender treatment methods that he alleges are unreliable.
We have jurisdiction under 

28 USC § 1291

, and, for the following reasons,
we affirm Azucenas’s conviction and sentence.
I.
Azucenas first challenges the district court’s denial of his motion to suppress
the child pornography found on his computer and hard drives.
4                                       23-783
In reviewing a denial of a motion to suppress, we review the district court’s
factual findings for clear error and its legal conclusions de novo. United States v.
Vandergroen, 

964 F.3d 876

, 879 (9th Cir. 2020). We conclude that the lower court
did not err in rejecting Azucenas’s argument that Facebook acted as an agent of the
government when it conducted its search of his user-to-user messages.
The Fourth Amendment guarantees the right to be free from “unreasonable
searches and seizures.” U.S. CONST. amend. IV. But the Fourth Amendment only
“limits searches conducted by the government, not by a private party, unless the
private party acts as an ‘instrument or agent’ of the government.” United States v.
Young, 

153 F.3d 1079

, 1080 (9th Cir. 1998) (per curiam). To determine whether a
private party acted as an agent of the government under the Fourth Amendment,
courts consider “(1) whether the government knew of and acquiesced in the intrusive
conduct; and (2) whether the party performing the search intended to assist law
enforcement efforts or further his own ends.” United States v. Cleaveland, 

38 F.3d

1092

, 1093 (9th Cir. 1994) (citation and internal quotation marks omitted).
With respect to the first Cleaveland requirement, the government “must be
involved in the search ‘either directly as a participant or indirectly as an encourager
of the private citizen’s actions.’” United States v. Rosenow, 

50 F.4e 715

, 731 (9th
Cir. 2022) (quoting United States v. Walther, 

652 F.2d 788

, 791 (9th Cir. 1981)).

Here, an affidavit from a Facebook employee affirmed that Facebook’s searches of
5                                    23-783
Azucenas’s messages and corresponding filing of CyberTips to the NCMEC were
not at law enforcement’s request, with Facebook having “no record of receiving
legal process from the government.”
We considered a similar scenario in Rosenow. There, Yahoo investigated
numerous user accounts that it suspected of selling child pornography and notified
the NCMEC of its results. Id. at 725. Because there was no evidence that Yahoo
“was spurred into investigating (the defendant) by the government” or otherwise
“incentivized, directed, or encouraged” to continue its investigations by law
enforcement, we concluded that there was insufficient government participation to
trigger Fourth Amendment scrutiny. Id. at 732–33. For this same reason, in the
absence of any law enforcement assistance requests or other direction, we cannot
find that the government “knew of and acquiesced in” Facebook’s independent
review of Azucenas’s user-to-user messages. Cleaveland, 38 F.3d at 1094.1
In analyzing the second Cleaveland requirement, we examine whether the
private party acted to “assist law enforcement efforts,” or whether it had a
“legitimate, independent motivation to further its own ends.” Id. (citation and
internal quotations omitted). The affidavit from the Facebook employee explained
1
We have also expressly rejected Azucenas’s argument that an Electronic Service
Provider’s (“ESP”) compliance with the requirement contained in the Protect Our
Children Act of 2008 to report any child sexual exploitation to the NCMEC
transforms the ESP into a government agent. See Rosenow, 50 F.4th at 730–32.
6                                     23-783
that Facebook possessed “an independent business purpose in keeping its platform
safe and free from harmful content and conduct, including content and conduct that
sexually exploits children.” As we explained in Rosenow, such a “desire to purge
child pornography from (ESPs’) platforms” represents “a legitimate, independent
motive apart from any interest that the ESPs had in assisting the government.”
Rosenow, 50 F.4th at 734. Once such independent motive is established, “