United States v. Charles Fulton Sr. (5th Cir. June 2019), On Petition for Rehearing

Fourth Amendment/Search Warrants – Search warrant was insufficiently particularized where it failed to specifically identify the computers, electronics, or phones to be seized, but suppression was not warranted under the good faith exception.

The Court denied the defendant’s petition for rehearing and affirmed his conviction and sentence for sex trafficking under 18 U.S.C. § 1591. The substantive counts were charged under § 1591(a) and (b), while he was also convicted of a conspiracy count under § 1591(c).

First, the Court agreed that the initial warrant by local law enforcement failed to particularize that computers, electronics, or phones were to be seized, so the seizure of the phone was improper. However, the Court held that the evidence was admissible under the good faith exception, since the federal agents that later acquired the phone from the local police and executed a search warrant did not know the police seized it unlawfully (as they had held on to the phone for a year) and since the applicability of the warrant to cell phones was a close question. The defendant failed to preserve a challenge to the local police’s prolonged seizure of his phone.

The Court also held that the district court erred by instructing the jury that the Government only had to prove that the defendant had a “reasonably opportunity to observe the victim,” when § 1591(a) and (b) require knowledge that the victim is under 18 years old. The Court affirmed, however, under the plain error standard, though it noted that it had reversed such errors in similar cases where the issue was preserved.

The Court also rejected the defendant’s confrontation clause challenge and his challenge to the sufficiency of the evidence on the court’s instructions to the jury on special findings.

Appeal from the Southern District of Texas

Opinion by Southwick, joined by Wiener and Costa

Click here to read the opinion.


Tom Church

Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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