NOT FOR PUBLICATION FILED

FEB 22 2024

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-30191

Plaintiff-Appellee, D.C. No. 9:21-cr-00028-DLC-1 v.

TAUREAN JEROME WEBER, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Dana L. Christensen, District Judge, Presiding

Argued and Submitted February 9, 2024 Portland, Oregon

Before: GOULD, BYBEE, and BRESS, Circuit Judges.

Taureen Weber was convicted of eight counts of transportation, distribution,

and receipt of child pornography in violation of 18 U.S.C. §§ 2252A(a)(1),

2252(a)(2), following a jury trial. Police began investigating Weber after

Instagram submitted a series of CyberTips through the National Center for Missing

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. and Exploited Children (“NCMEC”) indicating that Instagram accounts later

identified as belonging to Weber contained child pornography. On appeal, Weber

argues the district court erred in denying his motion to suppress evidence because a

detective viewed the media attached to the CyberTips without a warrant. He also

contends the district court erred in denying his motion to dismiss on speedy trial

grounds and by permitting the government to ask guilt-assuming hypotheticals to

certain witnesses. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm.

1. We affirm the district court’s denial of Weber’s motion to suppress. “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.

Rosenow, 50 F.4th 715, 728 (9th Cir. 2022) (citation omitted), cert. denied, 143 S.

Ct. 786 (2023). On appeal, Weber presses only a Jones-style trespass theory of the

Fourth Amendment and does not argue that he had a reasonable expectation of

privacy in the contents of his Instagram account.

We need not decide whether the trespass theory applies to searches of

electronic information, because the disclosure of Weber’s media by Instagram to

the government was licensed pursuant to Instagram’s Terms of Service. See

Florida v. Jardines, 569 U.S. 1, 7–8 (2013); United States v. Esqueda, 88 F.4th

2 818, 830 (9th Cir. 2023). Instagram’s license here was clear that it would extend to

the dissemination of certain information to law enforcement. As a condition to

using Instagram, a user must agree to Instagram “shar[ing] information about

misuse or harmful content with other Facebook Companies or law enforcement.”

This is not a blanket Fourth Amendment waiver. Instead, when Instagram learns of

“harmful” or “deceptive” behavior, it is authorized by the Terms of Service to share

that information with law enforcement. Even then, the government may access

only the information collected by Instagram—it may not conduct its own, free-

roaming search of a user’s account. We offer no opinion on more general terms of

service, nor do we consider a license’s effect under a reasonable-expectation-of-

privacy theory.

Alternatively, the good-faith exception applies even if there was a search.

“The good-faith exception precludes suppression of evidence seized by officers

who acted ‘in objectively reasonable reliance’ on a search warrant that is later

declared invalid.” United States v. Artis, 919 F.3d 1123, 1133 (9th Cir. 2019)

(quoting United States v. Leon, 468 U.S. 897, 922 (1984)). We previously held that

the good-faith exception did not apply where “[t]he constitutional error was made

by the officer[,] . . . not by the magistrate,” United States v. Vasey, 834 F.2d 782,

789 (9th Cir. 1987), but “the Supreme Court’s precedent . . . has shifted somewhat

3 since we decided Vasey[,]”; see generally Herring v. United States, 555 U.S. 135

(2009).

In Artis, we recognized that the good-faith exception is not “categorically

inapplicable whenever a search warrant is issued on the basis of evidence illegally

obtained as a result of constitutional errors by the police.” Artis, 919 F.3d at 1133.

Rather, the proper inquiry is “whether the police misconduct that led to discovery

of the illegally obtained evidence is itself subject to the good-faith exception. If it

is, suppression of the evidence seized pursuant to the warrant will not be justified.”

Id.

In this case, Detective Hall reasonably relied on the CyberTip report that

indicated Instagram had viewed the media attachments. Acting in reliance on this

information, as well as training she had received on Instagram’s policies and

practices, Detective Hall viewed the media believing that she was not exceeding

the scope of Instagram’s search vis-à-vis the private search doctrine. Additionally,

she viewed the images prior to our holding in Wilson, which requires the

government to demonstrate that a human being viewed the attachments in the

CyberTip for the private search doctrine to apply. United States v. Wilson, 13 F.4th

961, 971–72 (9th Cir. 2021). Thus, the good-faith exception applies.

4 2. Weber also challenges the district court’s denial of his motion to dismiss

for a Speedy Trial Act violation. “We review the district court’s interpretation and

application of the Speedy Trial Act de novo, and . . . [its] findings of fact for clear

error.” United States v. Medina, 524 F.3d 974, 982 (9th Cir. 2008).

In general, “the Speedy Trial Act requires that a criminal trial begin within

seventy days from the date on which the indictment was filed.” United States v.

Olsen, 995 F.3d 683, as amended 21 F.4th 1036, 1040 (9th Cir. 2022) (per curiam)

(citing 18 U.S.C. § 3161(c)(1)). However, “the Act includes a long and detailed

list of periods of delay that are excluded in computing” those seventy days, Zedner

v. United States, 547 U.S. 489, 497 (2006), including delays resulting from

“pretrial motions, the unavailability of essential witnesses, and delays to which the

defendant agrees.” Olsen, 21 F.4th at 1040–41; see 18 U.S.C. § 3161(h).

Weber contends that the district court violated the Speedy Trial Act by

setting a trial date that would have been outside of the seventy countable days had

the government not filed an additional motion that “stopped the clock.” The

district court acknowledged that “it inadvertently set [the trial] for a date outside of

the [then-]remaining 70-day period,” but found that the timing of the government’s

motion ultimately resulted in a trial date in accordance with the Act.

5 The text of the Speedy Trial Act does not provide a basis for a violation

unless a defendant “[wa]s not brought to trial within” seventy countable days. 18

U.S.C. § 3161(a)(2). Both parties agree that Weber was brought to trial within

seventy countable days, so Weber has no basis to claim a Speedy Trial Act

violation. Weber’s argument that a potential violation equates to an actual

violation is unpersuasive. Further, Weber did not oppose the government’s

“fortuitous” motion that stopped the clock. The unopposed continuance fell

squarely within the excludable category of “delays to which the defendant agrees.”

Olsen, 21 F.4th at 1040–41. The discovery of a near-violation is not actionable

under the Speedy Trial Act.

3. Lastly, Weber contends that the district court erred in allowing the

government to ask guilt-assuming hypotheticals to certain witnesses. “[I]t is error

for the prosecution to ask questions on cross-examination that assume the

defendant’s guilt of the precise acts for which he is on trial.” United States v.

Shwayder, 312 F.3d 1109, 1120 (9th Cir. 2002). We assume without deciding that

the guilt-assuming hypotheticals were error, but we conclude that the errors were

harmless.

Because guilt-assuming hypotheticals implicate due process concerns, the

government bears the burden of demonstrating that any error was harmless beyond

6 a reasonable doubt. United States v. Evans, 728 F.3d 953, 959 (9th Cir. 2013).

Contrary to Weber’s contentions that these witnesses were critical to his defense,

we conclude that whatever harm these hypothetical questions might have inflicted

on Weber’s credibility was eclipsed by the government’s overwhelming evidence

of Weber’s guilt. We are persuaded that the jury would have convicted Weber even

in the absence of these statements given the thousands of images and videos of

child pornography located in his home office, the government’s evidence

connecting the Instagram accounts to his email accounts, as well as the IP address

information related to his electronic devices. The witnesses—who had close

personal relationships with Weber—had no firsthand knowledge of the facts

underlying the offense, and their testimony about Weber’s good moral character

was of minimal probative value. Therefore, any error was harmless.

For these reasons, we AFFIRM the judgement of the district court.

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