Court Affirms CSAM Convictions, Clarifies Status of Dost Factors

US v. Deritis: In 2019, a tip from Microsoft led investigators to Deritis. In addition to seizing and searching his computer (where they found images of Deritis’ 12-year-old stepdaughter naked in his bathroom (they later found a hidden camera), they submitted a “preservation request” to Google for his email account for “Google to pull and hold the records associated with” the account while investigators obtained a warrant. Google provided two sets of a data that included on “minor differences” – one from the date of the preservation request and one from the date of the search warrant. In the Google account, investigators found a photo taken on Deritis’ phone of his “stepdaughter’s hand touching his penis” and another showing him “touching her genitals.” The district court denied Deritis’ motion to suppress the Google information and he was convicted at trial of four counts related to the production and possession of child sexual abuse material (CSAM). He was sentenced to 600 months in prison.

On appeal, the Fourth Circuit affirmed Deritis’ conviction, although it vacated his sentence as to the special assessments imposed. First, the court affirmed the district court’s denial of Deritis’ motion to suppress. The court ultimately concluded that it did not need to reach the main challenges (that Detritis was subject to a warrantless seizure and an unreasonably lengthy delay in getting the warrant) because Google had provided two “identical set[s]” of data and there was no claim that the warrant itself was defective. Second, the court held that the district court’s jury instructions were not erroneous, in the process summing up the status of the Dost factors in determining whether images involve “lascivious exhibition” of genitals, noting that the factors can be utilized by a jury, so long as they are not definitive or given undue weight by the instructions. Third, the court found that while the district court erred by not allowing Deritis’ ex wife to testify about instructions not to let the stepdaughter use the bathroom where the camera was found (they were admissible as non-hearsay commands), the error was harmless. Finally, the court found plain error in the district court’s failure to make the require findings to impose enhanced special assessments at sentencing.