MEMORANDUM *
Defendant-Appellant Richard Lee Saterstad appeals from a final judgment of conviction of Receipt or Distribution of Child Pornography in violation of 18 U.S.C. § 2252A(a)(2) following a bench trial. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
We review the district courts denial of Saterstads motion for a Franks hearing and to suppress on the merits de novo and review the district courts underlying factual findings for clear error. See United States v. Norris, 942 F.3d 902, 907 (9th Cir. 2019). A search warrant must be based on “probable cause, supported by Oath or affirmation․” U.S. Const. amend. IV. “A Franks hearing is ‘an evidentiary hearing on the validity of the affidavit underlying a search warrant’ that a defendant is entitled to if he ‘can make a substantial preliminary showing that (1) the affidavit contains intentionally or recklessly false statements or misleading omissions, and (2) the affidavit cannot support a finding of probable cause without the allegedly false information’; i.e., the challenged statements or omissions are material.” United States v. Kleinman, 880 F.3d 1020, 1038 (9th Cir. 2017) (quoting United States v. Reeves, 210 F.3d 1041, 1044 (9th Cir. 2000)); see Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Saterstad failed to satisfy either requirement. First, Detective Shannon Tooley, the search warrant affiant, testified that she had no reason to believe that IP spoofing technologies were in play at the time of applying for the search warrant and that she would not have been able to detect those technologies prior to forensic examination of the devices searched. Second, Saterstad did not demonstrate that any of the allegedly omitted information was material, i.e., that misdirection was so likely that it would have undermined the probable cause determination.“Probable cause to search a location exists if, based on the totality of the circumstances, there is a ‘fair probability’ that evidence of a crime may be found there.” United States v. Perkins, 850 F.3d 1109, 1119 (9th Cir. 2017). That misdirection might have been possible did not mean that there was no “fair probability” that evidence of Receipt or Distribution of Child Pornography would have been found in Saterstads residence. The district court did not err.
We review the district courts denial of Saterstads motion to continue his trial for abuse of discretion. United States v. Walter-Eze, 869 F.3d 891, 907 (9th Cir. 2017). Denial of Saterstads motion to continue was not “arbitrary and unreasonable” in light of the district courts findings that (1) Saterstad had not been diligent,
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(2) the court, the government, and the public would be prejudiced by further continuance,
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(3) Saterstad failed to explain why additional continuance was needed,
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and (4) Saterstad would not be prejudiced.
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See United States v. Tham, 960 F.2d 1391, 1396 (9th Cir. 1991); see also United States v. Lane, 765 F.2d 1376, 1379 (9th Cir. 1985) (requiring that a defendant demonstrate actual prejudice to his defense). The district court properly exercised its discretion.
We review the district courts decision to exclude Saterstads proffered expert, Larry Smith, from testifying at trial for abuse of discretion. United States v. Finley, 301 F.3d 1000, 1007 (9th Cir. 2002). Saterstad argues that the district court abused its discretion in excluding Smiths testimony as a sanction under Federal Rules of Criminal Procedure Rule 16 (“Rule 16”) without first finding that Saterstads discovery violation was “willful and motivated by a desire to obtain a tactical advantage.” Id. at 1018 (quoting Taylor v. Illinois, 484 U.S. 400, 415, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988)); see also Fed. R. Crim. P. 16(b)(1)(C), 16(d)(2). Even assuming that the district court abused its discretion, any error was harmless. See United States v. Peters, 937 F.2d 1422, 1426 (9th Cir. 1991) (conducting harmless error review after concluding that the trial court abused its discretion in excluding the testimony of a defendants expert witnesses); Finley, 301 F.3d at 1018 (“In assessing the choice of sanctions, this circuit has instructed that the ‘decisive value’ of the evidence be considered.”) (quoting United States v. Duran, 41 F.3d 540, 545 (9th Cir. 1994)). Officers recovered two laptops, two hard drives, and eight DVDs containing child pornography from Saterstads bedroom. Saterstads failure to identify what Smiths opinion would have been or how it might have changed the outcome at trial is telling. Saterstad sought to offer Smiths opinion as a computer forensic expert, apparently to identify problems with the governments computer forensic examination or undermine the governments forensic examiners testimony. However, testimony related to the forensic examination of Saterstads devices or the capabilities of IP spoofing technologies could not have accounted for the physical evidence, including DVDs, found in Saterstads bedroom. Even if Smiths testimony might have cast doubt on whether Saterstad distributed child pornography, the district court also found that Saterstad knowingly received child pornography and Saterstad had materials containing child pornography in his bedroom.
We review the district courts decision to admit the governments experts’ testimony for abuse of discretion. Id. at 1007. Saterstad contends that the district court abused its discretion in allowing the governments witnesses to testify at trial despite the governments failure to provide timely Rule 16 notice of the testimony. Rule 16(a)(1)(G) provides that “[a]t the defendants request, the government must give to the defendant a written summary” of any expert testimony the government intends to offer at trial. Fed. R. Crim. P. 16(a)(1)(G). Saterstad does not contest that he failed to make expert disclosure requests—required to trigger the governments disclosure obligations—until four days before trial, and that his request was made after the government had already provided him with Notices of Expert Testimony for Detective Gregory Sawyer and Forensic Examiner Matthew Trafford. See id. Moreover, because the government offered Special Agent Mari Panovich and Detective Tooley as percipient witnesses, Rule 16(a)(1)(G)’s disclosure requirements did not apply to their testimony.
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See id. Saterstad fails to identify any violation of Rule 16 which could have served as the basis for a Rule 16(d)(2) sanction. The district court properly exercised its discretion.
AFFIRMED.
FOOTNOTES
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. The district court granted many continuances, delaying trial for over three years to accommodate Saterstads need to prepare for trial as a pro se defendant.
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. Saterstad concedes prejudice to the court and the public.
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. Although Saterstad contends that he was unable to review thousands of pages of Forensic Toolkit (“FTK”) reports given to him less than two months before trial, he does not challenge the district courts statement that, at two status conferences, Saterstads expert, Larry Smith, represented to the court that he had received and reviewed all the relevant reports. Furthermore, he does not explain why two months time was insufficient.
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. Saterstad does not identify any evidence in the FTK reports that could have been used to challenge the governments evidence or show innocence.
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. Saterstad does not argue that the district court abused its discretion by allowing the governments percipient witnesses to testify based on scientific, technical, or specialized knowledge in violation of Federal Rule of Evidence 701(c), nor did he object to the governments questioning of the witnesses at trial.