UNITED STATES of America, Appellee, v. Jose CASTRO, Defendant-Appellant, 675 F. App'x 62

SUMMARY ORDER Jose Castro appeals from the judgment of the United States District Court for the Southern District of New York (Schofield, J.). A jury convicted Castro of transporting, receiving, and possessing child pornography. The district court sentenced Castro chiefly to six years in prison and eight years of supervised release. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review. Castro challenges the affidavit offered in support of the search warrant application.

The affidavit averred that a computer program used by law enforcement to monitor transmission of child pornography had downloaded four files of child pornography from a computer located at Castro’s home. Castro argues that there was serious reason to doubt that the downloads ever took place, and that had the doubtful circumstances been disclosed in the affidavit, the magistrate judge would not have found probable cause sufficient to justify a search warrant. Castro argues that these omissions warrant suppression of evidence. See Franks v.

Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). “To suppress evidence obtained pursuant to an affidavit containing erroneous information, the defendant must show that: ‘(1) the claimed inaccuracies or omissions are the result of the affiant’s deliberate falsehood or reckless disregard for the truth; and (2) the alleged falsehoods or omissions were necessary to the [issuing] judge’s probable cause finding.’ ” United States v. Canfield, 212 F.3d 713, 717-18 (2d Cir. 2000) (quoting United States v.

Salameh, 152 F.3d 88, 113 (2d Cir. 1998)). “[W]hether a person acted with ‘reckless disregard for the truth5 is ‘a factual question of intent, and we therefore review the court’s decision for clear error’.... ” United States v. Rajaratnam, 719 F.3d 139, 153 (2d Cir. 2013) (quoting United States v. Trzaska, 111 F.3d 1019, 1028 (2d Cir. 1997)). The “factfinder may infer reckless .disregard from circumstances evincing obvious reasons to doubt the veracity of the allegations.” Id. at 154 (quoting United States v. Whitley, 249 F.3d 614, 621 (7th Cir. 2001)). Castro contends that such circumstances are present here.

The affiant testified that her usual practice when investigating reports from the computer program at issue in this case was to review copies of the downloaded files in an automatically created folder. At some point after this warrant was issued, the affiant attempted to review the expected folder, but was unable to locate it. Castro suggests that the affiant’s inability to locate the folder after the warrant issued reveals that she could not locate the folder before preparing'the affidavit, which should have given her reason to doubt the accuracy of the report.

He argues that the factfinder should have inferred from these circumstances the affiant’s reckless disregard of the truth. The district court rejected this argument, concluding that the affiant credibly testified that she did not remember if she followed her usual practice before preparing the affidavit and that Castro had failed to show that this omission was reckless or made with the intent to deceive. We find no clear error in the district court’s finding that the affiant lacked the mental state required for suppression of the evidence gathered by virtue of the search warrant.

For the foregoing reasons, and finding no merit in Castro’s other arguments, we hereby AFFIRM the judgment of the district court.