USA v. William Michael Spearman

FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-10300
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM MICHAEL SPEARMAN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:22-cr-80173-AMC-2
____________________
Before R OSENBAUM , BRANCH, and K IDD, Circuit Judges.
B RANCH, Circuit Judge:
William Spearman was the lead administrator of an
enormous network of child pornography orchestrated through a
dark-web site referred to as “Website A.” After the FBI received a
tip from a foreign law enforcement agency (“FLEA”) that an IP
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address associated with the site was associated with Spearman’s
address in Alabama, agents obtained a warrant to search his home
and subsequently found incriminating evidence. Spearman moved
to suppress all evidence obtained in the search. The district court
denied his motion without an evidentiary hearing, and Spearman
pleaded guilty to one count of engaging in a child exploitation
enterprise, in violation of 18 U.S.C. § 2252A(g).1 He was sentenced
to life in prison.
On appeal, Spearman challenges the district court’s failure
to hold an evidentiary hearing on his motion to suppress. He
argues that he alleged facts that, if proven, would have shown
enough “substantial participation” by the FBI in the FLEA’s search
leading to the discovery of his IP address that a “joint venture”
between the agencies occurred. He further argues that such a
“joint venture” would implicate the Fourth Amendment because
the FBI would have needed a warrant to obtain his IP address on
its own. Spearman also challenges his sentence, arguing the district
court failed to properly account for his “extraordinary mitigating
factors.”
The problem for Spearman’s suppression argument is that
while he alleged some cooperation and technology sharing
between the FBI and the FLEA, he failed to allege such
1 In exchange for his plea, the government agreed to dismiss two separate
counts against Spearman: conspiring to advertise child pornography, in
violation of 18 U.S.C. § 2251(d) and (e); and conspiring to distribute child
pornography, in violation of 18 U.S.C. §§ 2252A(a)(2) and (b)(1).
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participation by the FBI that we must consider the FLEA’s actions
as if they were taken by the FBI itself. And because such
participation is a necessary element for subjecting a foreign search
to Fourth Amendment scrutiny, the district court was not required
to hold a hearing before denying Spearman’s motion. Likewise,
the record confirms that the district court considered Spearman’s
mitigating circumstances, and the government presented ample
evidence of the depth and depravity of Spearman’s crimes, such
that the district court did not abuse its discretion in sentencing him
to life in prison. We therefore affirm on both counts.
I. Background
In this section, we recount the facts relevant to Spearman’s
challenges to the district court’s failure to hold an evidentiary
hearing and to his life sentence. The facts recounted herein focus
on the disputes central to those two challenges and do not recount
the disturbing details of Spearman’s crimes in full.
A. Spearman controls an online network profiting off
child pornography
The events leading to Spearman’s conviction begin with
Spearman’s involvement with a dark web internet domain referred
to only as “Website A.” “The [d]ark [w]eb is a general term that
describes hidden Internet sites that users cannot access without
using special software.” McMorris v. Carlos Lopez & Assocs., LLC,
995 F.3d 295, 302 n.4 (2d Cir. 2021) (quotations omitted). These
restrictions on access make it the home of many criminals and
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“other malicious actors” who utilize those restrictions to attempt
to shield their actions from the view of law enforcement. Id.
Spearman eventually became the lead administrator of
Website A, which housed many such criminals and “malicious
actors.” Id. In order to exist on the dark web and maintain
anonymity, Website A operated over the Tor network. The Tor
network allows users to operate or access websites available only
to users within the network. It also uses technology that masks the
internet protocol (“IP”) address of users. This masking ostensibly
allows users to operate anonymously without the fear that others,
including law enforcement, will be able to discover their identity.
Website A’s main purpose was to provide access to child
pornography, though it did not directly host child pornography on
its servers. Instead, it maintained a series of chat rooms in which
users could exchange child pornography by posting URL links that
redirected to another Tor network website where child
pornography was displayed or available for download. To better
facilitate the sharing of child pornography, Website A contained a
guide on how to share child pornography through links. When
users posted the links, they used “tags” with words or phrases to
describe the category of child pornography they were sharing. The
tags used included an “age” tag specifying if the content involved
babies, toddlers, or preteens; a “gender” tag specifying whether the
content involved boys, girls, or both; an “activity” tag describing
the type of sexual activity involved; and, for some content, an
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“extreme” tag specifying if the video involved “torture,” “rape,”
“crying,” or “strangulation.”
Website A took various measures to reward and encourage
users who were deeply involved in child pornography. New users
of Website A were restricted to one chat room called the Website
A “Gateway.” The Gateway’s description stated that guests who
participated by chatting and sharing child pornography could be
invited to other Website A rooms as “members.” Users who were
promoted to “member” and beyond could access other rooms,
including, for example, “Aphrodite’s Playground” (which
encouraged users to post pornographic content of children
between ages 5 and 15, but prohibited extreme content), “Tots-R-
Us” (which encouraged users to post pornographic content of
children 5 years and younger, but prohibited extreme content),
“The Library” (which was a repository of links to child
pornography without chat and which was limited to members who
had contributed significantly to the website), and a “No-Limits
Chat” (which was dedicated to “extreme topics” such as “Death,
Gore, BDSM, Hurtcore, Bestiality, [and] Scat”).
Spearman’s role in Website A started as a baseline user but
grew over time.2 In his initial posts, he included links to hardcore
child pornography. These posts allowed him increased access to
the website, and over time, he rose through its ranks to become its
lead administrator. As the lead administrator of Website A,
2 He eventually stopped posting child pornography once his leadership status
gave him access to the various chat rooms on the site.
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Spearman supervised and directed other Website A staff, helped
clean up and organize links to child pornography on the website,
ensured staff were present at all times in different sections of
Website A, presided over staff meetings, promoted and demoted
users and staff, and oversaw the day-to-day organization and
maintenance of Website A. Spearman used the username
“N****1” which he later changed to “K****,”3 and other high-
ranking Website A users referred to Spearman as “boss.” Hundreds
of thousands of images or videos of child pornography were
accessible and distributed throughout Website A.
B. The FBI Investigation into Spearman
The FBI began investigating Website A in 2020, but at first
had very little success. Then, in June 2022, according to internal
FBI documents, the FBI’s Child Exploitation Operational Unit
(“CEOU”) “executed an operation that allowed CEOU to conduct
offensive technical operations which eventually led to the
identification of an IP address for who CEOU believes is ‘N****1.’”
Details regarding what exactly occurred during that investigation
are sparse, and no arrest was made involving Spearman at that
time.4 Instead, at around the same time (on June 30, 2022), the FBI
3 The usernames Spearman used have been redacted by the parties’ public
filings and are not a matter of public record.
4 Notably, the N****1 username was inactive at this time and was thus not
actively being used by Spearman, who had transitioned to the K****
username, and there is no indication in the record that the FBI knew at this
time who the N****1 username was connected to. The inactivity of the
N****1 username may help explain the FBI’s apparent confusion regarding
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executed multiple search warrants regarding the website’s second-
in-command, Selwyn Rosenstein (username “Tony”), who was
subsequently arrested.
The arrest of Rosenstein allowed the FBI to access his
account, including its ability to message other members of Website
A, providing the FBI with new tools as it continued its investigation
of Website A. Through Rosenstein’s account, the FBI began
interacting with members of Website A and attempting to discover
the identities of other users. One of the tools the FBI deployed
included sending “target files” with “offensive code” to other users
of Website A.5 When users downloaded the files, the offensive
whose IP address it had obtained in June of 2022, as the IP address it obtained
in June of 2022 did not belong to Spearman and was thus not the IP address of
N****1, despite its original “belie[f].”
5 The FBI obtained several warrants prior to using them against various
Website A users. However, despite allegedly having a warrant to execute this
same operation for the username K****, the FBI claims it never executed the
warrant. And indeed, such a warrant is not in the record. The FBI mentions
it for the first time in its brief on appeal. The reason for this absence in the
record, the FBI claims, is that Spearman did not allege below that the FBI gave
the FLEA access to Website A’s servers and directed the FLEA to search his
computer using a remote-access technique, so there was no need to produce
a warrant showing the FBI would not have needed the FLEA’s help to do so.
This may be true. However, for purposes of this appeal, given the warrant is
not in the record, we assume, as Spearman alleges, that such a warrant does
not exist.
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code caused the user’s computer to contact an FBI server and
convey to it the user’s IP address.
According to the FBI, its focus on Spearman began not with
the June 2022 offensive operation, but from tips provided by a
foreign law enforcement agency. On August 17, 2022, the FBI
received two tips from a FLEA stating that, on August 14, 2022, the
user of a specified IP address in the United States “was involved in
the management” of Website A. The FLEA advised that it had
“lawfully acquired” this information, though it did not disclose
how it did so or provide any other information about its
investigation. According to the FBI, these tips eventually led to the
identification of Spearman’s home address. Once it received these
tips, the FBI served an administrative subpoena on the internet
service provider connected with Spearman’s IP address. The
internet provider traced the IP address to Spearman’s physical
address in Alabama.
Now armed with Spearman’s home address (and his identity
as the registered owner of that physical address), the FBI was
prepared to move on Spearman. It took its findings to a magistrate
judge and applied for a no-knock warrant in November 2022 to
arrest Spearman and search his home. The warrant application did
not mention or discuss any “offensive operations” by the FBI itself.
Instead, the application focused exclusively on the tip provided by
the FLEA and the information gained from Spearman’s internet
provider. The FBI received the warrant.
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That same month, FBI agents executed the warrant at
Spearman’s home. After entering his home, FBI agents
encountered and arrested Spearman. FBI agents also recovered
several devices from Spearman’s garage which contained 19,422
images or videos of child pornography. This material included
images and videos of older children being instructed to abuse
toddlers, and of adults engaging in the sexual torture of physically
restrained toddlers.
The agents also interviewed Spearman, who told the agents
that he used the names “N****1” and “K****” on Website A. He
also told them that he was one of the four main administrators of
Website A, that he began accessing it in early 2018, that he was an
administrator of another child pornography website on the Tor
network, and that he maintained a large collection of child
pornography at his home.
C. Procedural History
After his arrest and arraignment before the district court,
Spearman moved for an evidentiary hearing on his motion to
suppress all evidence obtained from the search of his residence and
personal devices, as well as his subsequent interview. He alleged
that the FBI violated the Fourth Amendment in obtaining his IP
address, such that all the evidence subsequently discovered in the
warrant-based searches of his residence and interview were
infected by that violation.
Spearman argued that the FBI must have violated the
Fourth Amendment because the only way to obtain his Tor-
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protected IP address was through “offensive code,” possessed by
the FBI, which can remotely access a server or computer and
instruct it to send back its IP address. But, he alleged, rather than
obtaining a warrant to perform such a search, the FBI engaged in a
cooperative investigative partnership with the FLEA through
which the FLEA obtained and shared Spearman’s IP address to the
FBI instead. After all, Spearman pointed out, internal FBI
documents reported that its own offensive technical operations in
June 2022 eventually identified an IP address they “believed” was
N****1, never mentioning a foreign government, suggesting that
the FBI was so actively engaged in the joint operation that it
considered it entirely its own.6 Spearman thus argued that when
the FLEA obtained his address, it did so as an “agent” of the FBI.
As such, Spearman argued, the FLEA’s search that identified his
address was an unlawful warrantless search in violation of the
Fourth Amendment.
The district court denied the motion to suppress and the
request for a hearing. The court emphasized the general rule that
the Fourth Amendment does not apply to searches carried out by
foreign officials in their own countries. Thus, the court held that
Spearman bore the burden to prove the “joint venture” exception
to that general rule. The district court held that he failed to meet
this burden because the evidence he cited showed no more than
6 As noted above, however, the FBI did mention the FLEA’s tips when it
applied for the November 2022 warrant.
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generalized cooperation and information sharing between the FBI
and the FLEA.
The district court likewise concluded that an evidentiary
hearing was not required. The district court “credit[ed]” the
documents attached to the pleadings—i.e., the warrant application
for the search of Spearman’s home from November of 2022, the
FLEA tip, and the internal FBI reports from June 2022. However,
according to the court, Spearman’s allegations and inferences from
those documents made only “general” and “conclusory” assertions
about the relationship between the FBI and the FLEA. The court
thus held an evidentiary hearing was unnecessary because there
were no evidentiary issues to resolve and denied Spearman’s
motion to suppress.
D. Sentencing
After his motion to suppress was denied, Spearman pleaded
guilty. In the presentence investigation report (“PSI”), the
probation officer calculated Spearman’s total offense level at 43, the
maximum offense level. Because of Spearman’s lack of previous
criminal conduct, the probation officer calculated Spearman’s
criminal history category as I. Based on Spearman’s criminal
history category of I and his total offense level of 43, the probation
officer determined that the guideline imprisonment range was a life
sentence.
i. Evidence Presented During Sentencing
At his sentencing hearing, Spearman argued that he merited
a downward variance from the guidelines range because of
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extraordinary mitigating factors, which were wide-ranging in type
and substance. In support of this argument, Spearman provided
the following information in an interview with the probation office
prior to sentencing.
Spearman was diagnosed with PTSD while in the military in
the late-1990s and with depression around 2008. He received
treatment for, among other mental conditions, chronic PTSD,
memory lapses or loss, primary insomnia, major depressive
disorder, generalized anxiety disorder, and attention deficit
hyperactivity disorder. Spearman noted that he had three children,
including an eight-year-old son with his current wife.
Spearman also pointed to his 22 years of service in the
United States Army as a factor for the court to consider in his favor.
Spearman received several military decorations, including a
Bronze Star Medal, a Meritorious Service Medal, a National
Defense Service Medal, a Kuwait Liberation Medal, a Korean
Defense Service Medal, a Global War on Terrorism Service Medal,
a Master Parachutist Badge with Combat Distinguishing Device,
and a Master Parachutist Badge. Spearman also served 3 years, 10
months, and 26 days of foreign deployments, including service in
Panama, Saudi Arabia, Qatar, Bahrain, Kuwait, Ecuador, Peru,
Antigua and Dominica, and Thailand. Military performance
reviews Spearman provided to the court described Spearman as
“an invaluable asset to both tactical and strategic intelligence unit
commanders,” “one of the most innovative officers in the
Battalion,” “an officer of the highest caliber,” “[a] true visionary,”
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“one of the Army’s finest counterintelligence technicians,” “[f]ully
ready for the most senior warrant officer positions,” and “clearly
among the finest Military Intelligence warrant officers in the U.S.
Army.”
Finally, at the sentencing hearing, Spearman presented the
testimony of witnesses of his own, including the expert testimony
of forensic psychologist Dr. Amy Swan. Dr. Swan testified that she
had conducted a personality assessment inventory of Spearman
and concluded that he suffered from a major depressive disorder, a
generalized anxiety disorder, and a somatic symptom disorder. Dr.
Swan also testified that Spearman “ha[d] one of the most severe
cases of [PTSD]” she had ever seen and that it “had resulted in
significant impairment in his ability to function on a daily basis.”
Finally, Dr. Swan testified that Spearman’s sexual abuse as a child,
ongoing business failures, and deaths within the family, when
combined with his PTSD, led Spearman to self-soothe by engaging
in irregular sexual conduct. Dr. Swan thus testified that, in her
opinion, Spearman’s offense stemmed from “a perfect storm of
events that caused him to . . . have impaired functioning.” Dr.
Swan testified that based on her analyses of Spearman, he posed
only a 2.4 percent chance of reoffending over the next 5 years.
For its part, the government presented testimony at the
sentencing hearing from several witnesses in support of a life
sentence. First, the government solicited the testimony of FBI
agent David Backlund, who described Spearman as the FBI’s most
wanted child pornography offender in the world and as the FBI’s
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“Osama bin Laden from the dark net.” Next, the government
presented the testimony of FBI data scientist John-Robert Lee
Marsh. Marsh described the content of some of the pornography
recovered from Spearman’s devices, including, among other
examples, a video in which an 18-month-old female is hung upside
down while a woman beats the child and burns her with candle
wax, several videos of the sexual torture of children 8 years old or
younger, and an image of a topless child with blood across her body
who appears to be dead.
ii. The District Court’s Findings and Sentencing
Before announcing the sentence, the district court said that
it had heard “extensive testimony [and] hours of witness
presentation” and had read, among other materials, the PSI, Dr.
Swan’s report, the parties’ competing filings, and “the entire
record.” The district court stated that it had “made sure to consider
it all, given the severity of th[e] case and the government’s
recommendation of a life sentence,” and that it had done so
“against the backdrop . . . of the statutory factors in [§ ] 3553(a).”
The court described the “seriousness of [Spearman’s] offense” as
“off the charts,” citing, among other factors, the “very premise of
[Website A] [as] encourag[ing] and incentiviz[ing] other deviant
individuals into posting more and more child pornography and to
do so with the expectation of rising through the ranks in the
website to attain greater privileges.”
The district court also addressed Spearman’s military service
and found that it was not a clear-cut mitigating factor. The district
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court voiced its concerns that it was “almost as if [Spearman] took
what [he] learned in the military and then perverted it into this
frightening operation.” The court also stated that Spearman was a
“pedophile” who was, “without a doubt, a danger to society,”
citing the significant collection of child pornography found in
Spearman’s home, his use of “concealment tactics
and . . . sophisticated knowledge” he acquired in the military to run
the website, his operation of other child pornography websites, and
Dr. Swan’s testimony that Spearman had some interest in children.
The court finally found that “[g]eneral deterrence” and the need to
“send a clear message that engaging in these underground
communities of child exploitation is . . . horrific and will be
penalized accordingly” was also an important sentencing factor.
The district court said that it had also considered Spearman’s
“extensive” mitigation evidence and arguments. The court
acknowledged that it was “hard to discount” Spearman’s 22 years
of military service, but found that Spearman’s service did not
warrant a variance or departure because of the “unspeakable
nature” of Spearman’s crimes and because he seemed to use his
military experience to operate Website A. Likewise, the court
found that while Spearman suffered from severe PTSD, PTSD
could not explain his decision to run a website dedicated to the
exploitation of children.
The court thus agreed with the recommendation of the
probation officer and the government and sentenced Spearman to
a guidelines sentence of life imprisonment.
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Spearman timely appealed.
II. Standard of Review
We review a district court’s decision not to hold an
evidentiary hearing on a motion to suppress for an abuse of
discretion. United States v. Cooper, 203 F.3d 1279, 1285 (11th Cir.
2000). We review for plain error any theories supporting a motion
to suppress that were not raised below. United States v. Young, 350
F.3d 1302, 1305 (11th Cir. 2003).
We also review the substantive reasonableness of a sentence
for an abuse of discretion. United States v. Butler, 39 F.4th 1349,
1354–55 (11th Cir. 2022).
III. Discussion
On appeal, Spearman challenges the district court’s failure
to hold a suppression hearing, arguing he alleged facts that if
proven would have shown a “joint venture” between the FBI and
the FLEA such that a warrant to obtain his IP address was required
to comply with the Fourth Amendment. Spearman also challenges
his sentence, arguing that the district court failed to properly
account for his “extraordinary mitigating factors.” We disagree
and affirm the district court on both counts.
A. The district court did not abuse its discretion in
refusing to hold a suppression hearing
Spearman argues that he was entitled to a suppression
hearing because he sufficiently alleged factual issues in his motion
to suppress that, if proven, would show that the FBI’s collaboration
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with the FLEA to obtain his IP address violated the Fourth
Amendment. He raises two arguments in support of this claim.
First, he argues that he adequately alleged the FBI had engaged in
a joint operation with the FLEA in order to obtain his IP address,
thus implicating the FBI in a warrantless search. Second, Spearman
argues (for the first time on appeal) that the FLEA performed a
search of his computer on American soil, thereby independently
violating the Fourth Amendment.
The government responds that the district court did not err
in refusing to hold a suppression hearing. Regarding Spearman’s
“joint venture” argument, the government argues that the Fourth
Amendment’s warrant requirement generally does not apply to
searches made by foreign authorities, and that Spearman failed to
allege any concrete facts that would suggest FBI involvement was
so pervasive that the Fourth Amendment nonetheless applies. As
for Spearman’s “any search on American soil” argument, the
government points out that Spearman did not raise this issue
before the district court, which they argue subjects the argument
to plain error review only. And because no court has embraced
this argument before, the government argues Spearman’s claims
on this ground must also fail on the merits.
We agree with the government and hold that the district
court did not abuse its discretion in refusing to hold an evidentiary
hearing.
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1. Spearman did not allege facts that, if proven,
would show a “joint venture” between the
FBI and the FLEA requiring Fourth
Amendment scrutiny
Spearman argues that the district court erred in denying his
request for an evidentiary hearing on his suppression motion
because he alleged sufficient facts that, if proven true, would have
shown a “joint venture” between the FBI and the FLEA. In his
view, he adequately alleged that the FBI evaded the Fourth
Amendment’s warrant requirement by directing the FLEA to
search Spearman’s computer to obtain his Tor-protected IP
address. He argues that if it is true that the FBI directed the FLEA
to search his computer to obtain his IP address, all of the evidence
derived from that IP address should have been suppressed. Thus,
he argues, we should remand to the district court to conduct an
evidentiary hearing on the veracity of his allegations.
The government disagrees. It argues that the Fourth
Amendment’s warrant requirement does not apply to searches
made by foreign authorities, and that Spearman failed to allege
facts showing that the narrow joint-venture exception applied. In
the government’s view, Spearman’s allegations were speculative at
best and, even if taken as true, would not require suppression.
Under the Fourth Amendment, the government is
prohibited from engaging in “unreasonable searches and seizures”
of an individual’s person or property. U.S. Const. amend. IV.
“Generally, the way to ensure the ‘reasonableness’ of any search is
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by securing a warrant.” United States v. Holmes, 141 F.4th 1183, 1193
(11th Cir. 2025). When a warrantless search is conducted absent
any “reasonable” excuse, the evidence obtained must be excluded
under the “exclusionary rule.” Murray v. United States, 487 U.S. 533,
536–37 (1988). Thus, under the exclusionary rule, a defendant who
believes evidence has been obtained in violation of the Fourth
Amendment may move to exclude the evidence. See Cooper, 203
F.3d at 1285.
Upon receiving such a motion to suppress, a district court
may elect to hold a hearing. See id. But it need not do so in all
circumstances. Instead, for a hearing to be required, “the motion
must allege facts which, if proven, would provide a basis for relief.”
United States v. Richardson, 764 F.2d 1514, 1527 (11th Cir. 1985). A
hearing is required only if the motion to suppress alleges facts that
“are sufficiently definite, specific, detailed, and nonconjectural, to
enable the court to conclude that a substantial claim is presented.”
United States v. Smith, 546 F.2d 1275, 1280 (5th Cir. 1977) (quotation
omitted).7 In other words, the district “court need not act upon
general or conclusory assertions founded on mere suspicion or
conjecture.” Id. So to be entitled to a hearing, Spearman needed
to specifically and concretely allege plausible, detailed facts that
would show a violation of the Fourth Amendment. Richardson, 764
F.2d at 1527.
7 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed
down before October 1, 1981.
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Our analysis therefore begins with what is required to show
a violation of the Fourth Amendment. When the United States
receives evidence from a foreign government, “[t]he general rule is
that evidence obtained from searches carried out by foreign
officials in their own countries is admissible” and does not
implicate the Fourth Amendment, much less violate it, for the
Fourth Amendment binds only the government of the United
States. United States v. Emmanuel, 565 F.3d 1324, 1330 (11th Cir.
2009).
This “general rule” is not, however, an absolute rule. When
federal officials receive evidence from another sovereign, the
Supreme Court has said that such evidence may still be subject to
Fourth Amendment scrutiny under what has become known as the
“silver platter” doctrine. Lustig v. United States, 338 U.S. 74, 78–79
(1949). “The crux of that doctrine is that a search is a search by a
federal official if he had a hand in it,” but “it is not a search by a
federal official if evidence secured by [non-federal] authorities is
turned over to the federal authorities on a silver platter.” Id. We
have examined the “silver platter” doctrine in cases where foreign
nations provide evidence and have identified two exceptions to the
general rule that foreign-obtained evidence does not implicate the
Fourth Amendment: (1) when the mechanism of obtaining the
evidence “shocks the judicial conscience” and (2) when the
exclusionary rule would still have a deterrent effect because the
American law enforcement agency engaged in a “joint venture”
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24-10300 Opinion of the Court 21
with the foreign law enforcement agency.8 United States v. Behety,
32 F.3d 503, 510–11 (11th Cir. 1994) (alteration adopted); United
States v. Frank, 599 F.3d 1221, 1227–29 (11th Cir. 2010). The joint
venture rule deters American law enforcement from using
“circuitous and indirect methods” to circumvent the Constitution,
8 When foreign officials conduct a search outside the United States, we would
find a “joint venture” if “American law enforcement officials substantially
participate[d] in the foreign search, or if the foreign authorities actually
conducting the search were acting as agents for their American counterparts.”
United States v. Rosenthal, 793 F.2d 1214, 1231 (11th Cir. 1986); see also Stonehill
v. United States, 405 F.2d 738, 744 (9th Cir. 1968) (finding no Fourth
Amendment violation when American law enforcement provided
information to foreign authorities but did not participate in what would have
been an illegal raid had it been performed by American law enforcement, but
was instead carried out by a FLEA). We have never found a joint venture
when the search occurred abroad, even when American involvement was
notable. See, e.g., Rosenthal, 793 F.2d at 1230–31 (finding no joint venture
where American agents were present at the search); United States v. Morrow,
537 F.2d 120, 139–41 (5th Cir. 1976) (finding no joint venture where Americans
transmitted “the name and telephone number of a possibly valuable informant
across national borders”).
We have never decided whether a search that implicates the Fourth
Amendment occurs when a foreign government traces an IP address of
unknown origin to a location that happens to be in the United States. We
need not do so here because Spearman argues, and the government does not
contest, that the search occurred on American soil. And in this case, we need
not decide whether American law enforcement participation in FLEA searches
that occur in the United States must be “substantial” to create a joint venture
that implicates the Fourth Amendment because Spearman does not plausibly
allege the FBI’s participation in the search, substantial or otherwise, or that the
FLEA acted as an agent of American law enforcement.
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22 Opinion of the Court 24-10300
such as by using agents to do what American law enforcement
could not.9 Byars v. United States, 273 U.S. 28, 32 (1927).
With this legal background in mind, we turn to the
allegations in Spearman’s suppression motion to assess whether, if
true, they would prove a “joint venture” between the FBI and
FLEA—the sole exception that Spearman presses on appeal. As
discussed above, to have been entitled to a hearing, Spearman must
have specifically and concretely alleged plausible, detailed facts that
would show a violation of the Fourth Amendment. Richardson, 764
F.2d at 1527.
Spearman generally alleges the existence of a “partnership”
between the FLEA and the FBI. In support of this general
allegation, he alleges three key facts: (1) use of offensive code was
required to discover his IP address, (2) the FLEA used that code,
and (3) that the FBI “knew of and acquiesced” in the FLEA’s
intrusive conduct as part of their partnership. Nowhere in his
motion to suppress does Spearman claim the FBI ordered the FLEA
to undertake the search or helped the FLEA carry it out. And he
does not otherwise provide specific details of how the
“partnership” allegedly functioned, beyond alleging general
information sharing and joint interests between the FBI and FLEA.
9 Our traditional rules for agency relationships, albeit in other contexts, require
“control by the principal over the actions of an agent.” Whetstone Candy Co. v.
Kraft Foods, Inc., 351 F.3d 1067, 1077 (11th Cir. 2003).
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24-10300 Opinion of the Court 23
Taken as true, none of these alleged facts would warrant
suppression.
Spearman’s first allegation, that a “partnership” existed
generally, is easily dispensed with. Merely alleging the existence of
a partnership without more details to show the scope of such
partnership is both conclusory and insufficiently detailed to show
the “joint venture” our case law requires. See Richardson, 764 F.2d
at 1527 (finding that in a motion to suppress, “[a] court need not
act upon general or conclusory assertions founded on mere
suspicion or conjecture, and the court has discretion in
determining the need for a hearing”). Accordingly, Spearman’s
allegation that a partnership existed between the FBI and the
FLEA, on its own, does not require an evidentiary hearing that
there was a “joint venture”
Spearman’s other allegations warrant closer consideration,
though they too ultimately fail. He alleges that use of offensive
code was required to discover his address, the FLEA used that code,
and the FBI “knew of and acquiesced” in the FLEA’s intrusive
conduct as part of a partnership with the FLEA. The question is
thus whether this set of alleged facts is enough to allege a joint
venture such that it would be an abuse of discretion not to hold a
hearing. See Richardson, 764 F.2d at 1527. We hold that it is not.
Even accepting Spearman’s suggestion that we should infer
from his allegations that the FBI provided the offensive code used
by the FLEA and that code was used to obtain his identity, sharing
technology and relevant usernames in an investigation of a
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24 Opinion of the Court 24-10300
transnational criminal enterprise can, at most, be considered
cooperation, not agency. See Behety, 32 F.3d at 510–11; Rosenthal,
793 F.2d at 1230–31; see also Stonehill, 405 F.2d at 744. We have
recognized that “normal lines of communication between the law
enforcement agencies of different countries are beneficial without
question[,] . . . are to be encouraged,” and do not violate the
Fourth Amendment. United States v. Morrow, 537 F.2d 120, 140 (5th
Cir. 1976). Spearman did not allege the FBI knew how the FLEA
would use the technology or where the ultimate perpetrator would
be discovered. Nor did he allege that the FBI provided the code to
the FLEA so the FLEA could perform a search that the FBI could
not under our Constitution. The FLEA still had significant
independent work left to do after receiving the tip from the United
States, including finding a way to convey the code to Spearman’s
computer. We cannot say that the FBI’s alleged information
sharing here indicates FBI involvement that would subject the
search to Fourth Amendment scrutiny.
Accordingly, because the degree of cooperation alleged by
Spearman is either conclusory or does not rise to the involvement
level that implicates the Fourth Amendment, the district court did
not abuse its discretion in declining to hold an evidentiary hearing
based on Spearman’s argument that a joint venture occurred
between the FBI and a foreign government. See Richardson, 764
F.2d at 1527.
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24-10300 Opinion of the Court 25
2. Spearman cannot show plain error on his
claim that a search by a foreign sovereign on
American soil always implicates the Fourth
Amendment and necessitated a suppression
hearing
Alternatively, Spearman argues that we need not consider
the joint-venture doctrine because any search by a foreign
sovereign on American soil is subject to Fourth Amendment
scrutiny. As discussed, in his suppression motion, Spearman
alleged the FLEA used “offensive code” to obtain his IP address.
Such code requires transmission to the physical components of a
computer, which here was located in Alabama. So, Spearman
argues, because the search of his computer required sending code
to a computer that was physically in the United States, the search
should be subject to Fourth Amendment scrutiny even if
conducted by a foreign government.
The government raises two arguments in response. First,
the government points out that Spearman failed to make this
argument below and it is thus subject to plain error review, a
burden which it argues Spearman cannot meet. Second, the
government argues that the “general rule” against exclusion of
evidence obtained by foreign authorities applies even to searches
that occur on American soil.10
10 As noted supra n.8, because the government does not contest Spearman’s
argument that the search was on American soil, we need not address that issue
for the first time. Further, because we review for plain error only, we need
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26 Opinion of the Court 24-10300
The question of whether all searches by foreign sovereigns
on American soil are subject to the Fourth Amendment is an issue
of first impression in this circuit. In each case where we have
addressed Fourth Amendment claims involving evidence obtained
by a foreign government, we have limited our holdings to searches
carried out on foreign soil and under foreign law. We have held
that “the fourth amendment exclusionary rule does not apply to
arrests and searches made by foreign authorities on their home
territory and in the enforcement of foreign law.” Morrow, 537 F.2d
at 139; see also Birdsell v. United States, 346 F.2d 775, 782 (5th Cir.
1965); Rosenthal, 793 F.2d at 1230 (same); Gov’t of Canal Zone v.
Sierra, 594 F.2d 60, 72 (5th Cir. 1979) (same). We later reaffirmed
“[t]he general rule is that evidence obtained from searches carried
out by foreign officials in their own countries is admissible in
United States courts.” Emmanuel, 565 F.3d at 1330; see also Behety,
32 F.3d at 510 (“The Fourth Amendment is generally inapplicable
to actions carried out by foreign officials in their own countries
enforcing their own laws.”).
Spearman asks us to resolve this open question. But as the
government pointed out (and Spearman did not contest),
Spearman did not raise the “any search on American soil”
argument in his suppression motion before the district court. This
not decide whether, even if such a search occurs on American soil, it would
violate the Fourth Amendment, because “there can be no plain error where
there is no precedent from the Supreme Court or this Court directly resolving”
a legal issue. United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003).
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24-10300 Opinion of the Court 27
new theory therefore faces plain error review, for “[w]e review for
plain error any theories supporting a motion to suppress that were
not raised below.” United States v. Bruce, 977 F.3d 1112, 1116 (11th
Cir. 2020); see also Young, 350 F.3d at 1305.
Plain error review is a demanding standard, and one
Spearman cannot meet. For plain error to have occurred, “the
error must be one that is obvious and is clear under current
law.” United States v. Madden, 733 F.3d 1314, 1322 (11th Cir. 2013).11
Indeed, “[i]t is the law of this circuit that, at least where the explicit
language of a statute or rule does not specifically resolve an issue,
there can be no plain error where there is no precedent from the
Supreme Court or this Court directly resolving it.” United States v.
Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003).
Here, while we have resolved cases involving searches by
foreign sovereigns on foreign land, we have never addressed
whether a foreign sovereign’s search on our soil violates the Fourth
Amendment. See, e.g., Emmanuel, 565 F.3d at 1330; Behety, 32 F.3d
at 510; Birdsell, 346 F.2d at 782. So, even reading that caselaw in the
light most favorable to Spearman, in describing the “general rule”
as applying to foreign searches on foreign land, the most we may
11 The test for plain error has four prongs: (1) an error (2) that is plain and
(3) that has affected the defendant’s substantial rights; and if the first three
prongs are met, then a court may exercise its discretion to correct the error if
(4) the error “seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.” Madden, 733 F.3d at 1320. Because this case can be
resolved on the first two steps (that there was no error that was plain), we do
not address the final two steps.
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28 Opinion of the Court 24-10300
have done was suggest or imply that we might take a different view
if the search occurred on American soil. We have never embraced
Spearman’s position that all searches by foreign sovereigns on
American soil are subject to the Fourth Amendment’s exclusionary
rule, even in dicta. Id. Thus, we cannot say that any plain error
occurred. See Madden, 733 F.3d at 1322.
B. The district court did not abuse its discretion in
imposing a life sentence on Spearman
Spearman also argues that his sentence is substantively
unreasonable because the district court did not properly consider
his extraordinary mitigating factors. Spearman raises three
arguments in support of this claim. First, he claims that the district
court effectively discounted his military service to irrelevance by
merely stating that a life sentence remained appropriate despite his
service because of the severity of his offense. Second, he argues the
district court did not adequately consider Dr. Swan’s testimony
that he suffered from severe PTSD that, when combined with his
sexual abuse as a child, business failures, and deaths within the
family, led Spearman to self-soothe by engaging in irregular sexual
conduct. Finally, Spearman argues that the district court failed to
adequately consider his low risk of recidivism, which, he contends,
was supported by Dr. Swan’s testimony. We disagree and hold the
district court did not abuse its discretion in imposing a life sentence
for Spearman’s conduct.
A challenge to the substantive reasonableness of a prison
sentence is reviewed for abuse of discretion. United States v. Irey,
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24-10300 Opinion of the Court 29
612 F.3d 1160, 1188–89 (11th Cir. 2010) (en banc). “A district court
abuses its discretion when it (1) fails to afford consideration to
relevant factors that were due significant weight, (2) gives
significant weight to an improper or irrelevant factor, or
(3) commits a clear error of judgment in considering the proper
factors.” Id. at 1189 (quotation omitted). And while “we do not
automatically presume a sentence within the guidelines range is
reasonable, we ordinarily . . . expect [such] a sentence . . . to be
reasonable.” United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008)
(quotation omitted).
The relevant factors a district court must consider in
imposing a sentence on a criminal defendant are laid out in 18
U.S.C. § 3553(a).12 Under that statute, a district court must
12 In full, those factors are:
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant;
(2) the need for the sentence imposed--
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for
the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed educational
or vocational training, medical care, or other
correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established
for--
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30 Opinion of the Court 24-10300
consider, among other factors, “the nature and circumstances of
the offense and the history and characteristics of the defendant.”
Hunt, 526 F.3d at 746 (citing 18 U.S.C. § 3553(a)(1)). The district
court must also ensure it “impose[s] a sentence that is ‘sufficient,
but not greater than necessary’ to reflect the seriousness of the
offense, to promote respect for the law, to provide just punishment
for the offense, to afford adequate deterrence, and to protect the
public from further crimes of the defendant.” Butler, 39 F.4th at
1355 (quoting 18 U.S.C. § 3553(a)(2)).
We are highly deferential to the district court’s balancing of
the § 3553(a) factors: “[T]he weight given to each [§ 3553(a)] factor
is committed to the sound discretion of the district court,” and we
“will not second guess the weight given to a § 3553(a) factor so long
as the sentence is reasonable under the circumstances.” Id. Thus,
we will vacate a sentence as substantively unreasonable only when
we are “left with the definite and firm conviction that the district
court committed a clear error of judgment in weighing the
§ 3553(a) factors by arriving at a sentence that lies outside the range
(A) the applicable category of offense committed by
the applicable category of defendant as set forth in the
guidelines
. . .
(5) any pertinent policy statement . . .
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct; and
(7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a).
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24-10300 Opinion of the Court 31
of reasonable sentences dictated by the facts of the case.” Irey, 612
F.3d at 1190 (quotation omitted).
This deference is fatal to Spearman’s arguments against his
life sentence. As an initial matter, Spearman’s sentence was within
the range provided by the sentencing guidelines and as calculated
by the probation officer assigned to the case. While being inside
the guideline range does not “automatically” ensure life
imprisonment was reasonable, it is strong evidence of the same.
See Hunt, 526 F.3d at 746.
Further, the district court confirmed that it was not
persuaded that the mitigating factors cited by Spearman warranted
a downward variance in light of the § 3553(a) factors, including
(1) the “seriousness of the offense” (based on, e.g., the “astounding”
nature of the material posted on Website A, Spearman’s conduct
as the website’s lead administrator, and Spearman’s status as the
FBI’s most wanted child pornography target); (2) the “danger to
society” Spearman posed (based on, e.g., the significant collection
of child pornography found in Spearman’s garage, Spearman’s
operation of other child pornography websites, and his seeming
use of the “concealment tactics and . . . sophisticated knowledge”
he acquired in the military to run the website); and (3) the need to
promote “[g]eneral deterrence.” This rundown of the relevant
facts and their relation to the § 3553(a) factors was more than
sufficient to show the district court gave serious consideration to
the § 3553(a) factors and all the evidence Spearman presented. See
United States v. Sanchez, 30 F.4th 1063, 1078–79 (11th Cir. 2022)
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32 Opinion of the Court 24-10300
(upholding a life sentence for a defendant convicted of child sex
crimes as substantively reasonable despite the defendant’s previous
military service).
Spearman complains that the district court did not give
greater weight to testimony about his mental health and low risk
of recidivism from his psychological expert, Dr. Swan, but he
misunderstands the district court’s obligation at sentencing. We
have repeatedly held that mere acknowledgment of the sentencing
factors and evidence relevant to them shows the district court
considered them. See Butler, 39 F.4th at 1355. Indeed, we have held
that “[a] district court’s failure to discuss mitigating evidence does
not indicate that the court erroneously ignored or failed to consider
the evidence.” Id. at 1356 (quotation omitted and alteration
adopted). “[A] district court’s acknowledgment that it has
considered the § 3553(a) factors and the parties’ arguments is
sufficient.” Id. And here, the district court explicitly stated that it
had considered the § 3553(a) factors, Dr. Swan’s report, the
“extensive testimony [and] hours of witness presentation,” “the
entire record,” and Spearman’s mitigation arguments, including his
military history and mental health issues. This statement was
sufficient to show that the district court adequately considered all
of Dr. Swan’s testimony given in mitigation. Butler, 39 F.4th at
1355; see also Sanchez, 30 F.4th at 1078–79 (upholding a sentence as
substantively reasonable despite the district court rejecting the
defendant’s argument that he posed a low risk of recidivism).
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24-10300 Opinion of the Court 33
Neither are we convinced by Spearman’s arguments that the
district court failed to adequately consider his decorated military
service. The district court expressly discussed his military service
and explained why it did not warrant a downward variance given
“the unspeakable nature of [Spearman’s] crimes.” As noted
previously, the weight to be afforded the sentencing factors “is
committed to the sound discretion of the district court.” Butler, 39
F.4th at 1355. The court reasonably exercised its discretion when
it found that Spearman’s military service, while “hard to discount,”
did not outweigh the disturbing nature of Spearman’s crimes,
particularly since Spearman seemed to use his military experience
to run Website A. While a contrary decision may have also been
permissible, the district court did not abuse its discretion in
concluding Spearman’s military experience did not mitigate his
crimes.13
In summary, the weight of these § 3553(a) factors relative to
the mitigating factors cited by Spearman was a determination that
fell within the district court’s sound discretion, see Butler, 39 F.4th
at 1355, and the sentence the district court imposed was reasonable
for the very reasons it cited. Accordingly, we conclude that the
13 Spearman’s reliance on the Supreme Court’s precedent in Porter v. McCollum
is unavailing, for Porter addressed an entirely different issue than the one
before us. 558 U.S. 30 (2009). In Porter, the Supreme Court ruled that a habeas
petitioner was prejudiced by his counsel’s failure to investigate or present
evidence of his military service to the trial court—not that the trial court
would have abused its discretion had it failed to lower his sentence after
considering this military service. See id. at 43–44.
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34 Opinion of the Court 24-10300
sentence was substantively reasonable, and the district court did
not abuse its discretion in imposing a guideline sentence of life
imprisonment on Spearman.
IV. Conclusion
Spearman’s conviction and sentence are affirmed.
AFFIRMED.
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24-10300 K IDD, J., Dissenting 1
K IDD, Circuit Judge, dissenting:
A two-hour suppression hearing. That is all Spearman
requested. He credibly alleged that the FBI was cooperating with a
foreign law enforcement agency. We know this to be true because
that foreign agency provided his IP address to the FBI. Spearman
suspected, but could not prove, that the FBI worked with the
agency to obtain his IP address without the search warrant that
would be required in the United States. See United States v. Conroy,
589 F.2d 1258, 1265 (5th Cir. 1979) (“The mere consent of foreign
authorities to a seizure that would be unconstitutional in the
United States does not dissipate its illegality even though the search
would be valid under local law.”). So he asked for two hours of the
district court’s time to probe the extent of the foreign law
enforcement agency’s involvement in his identification. The district
court denied him this valuable tool to aid his defense. And now, so
do we.
Federal criminal discovery is limited—too limited, in my
view. A contrast with federal civil discovery is illustrative. In a civil
case, if the discovery indicates that a person might have knowledge
of an event that is not otherwise reduced to writing, a party seeking
that knowledge has several options. The party can send that person
an interrogatory. Fed. R. Civ. P. 33. Or a request for admission. Fed.
R. Civ. P. 36. Or take that person’s deposition, either orally or by
written questions. Fed. R. Civ. P. 30, 31.
Not so in the criminal context. “There is no general
constitutional right to discovery in a criminal case . . . .” Weatherford
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2 K IDD, J., Dissenting 24-10300
v. Bursey, 429 U.S. 545, 559 (1977). The only statements a criminal
defendant is entitled to receive are the defendant’s own statements.
Fed. R. Crim. P. 16(a)(1)(A), (B). Otherwise, the single rule in the
Federal Rules of Criminal Procedure concerning discovery requires
only that the government turn over “books, papers, documents,
data, photographs, tangible objects, buildings or places, or copies
or portions of any of these items.” Fed. R. Crim. P. 16(a)(1)(E).1
But if the government obtains evidence in violation of the
Fourth Amendment, the evidence must be suppressed. See Weeks v.
United States, 232 U.S. 383, 391–93 (1914), overruled in part on other
grounds by, Elkins v. United States, 364 U.S. 206 (1960). And
defendants are typically afforded a hearing to present evidence of
any alleged violation. Critically, if a government agent’s knowledge
is not reduced to writing, then a hearing often is the only
mechanism a criminal defendant can use to probe that person’s
knowledge.
In this case, the discovery allowed Spearman specifically to
allege:
1. In June 2022, after “infiltrat[ing]” Website A, the FBI used
“offensive technical operations” to identify the IP address
of one of the operators of Website A (not Spearman).
1 Of course, the government also has constitutional disclosure obligations,
such as those imposed by Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v.
United States, 405 U.S. 150 (1972), and statutory ones, such as those required
by the Jencks Act, 18 U.S.C. § 3500, but none of those limited obligations are
at issue in this case.
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24-10300 KIDD, J., Dissenting 3
Spearman supported this allegation with a citation to
official FBI reports.
2. In August 2022, a foreign law enforcement agency
provided the FBI with the IP address of someone who
“managed” Website A. Spearman supported this
allegation with a citation to the search warrant
application for his home.
3. The FBI “issued administrative subpoenas for subscriber
information” associated with the IP address and
“identified Mr. Spearman as the subscriber connected to
that address.” Spearman did not cite the source of this
information, but it appears in an official FBI report that
Spearman submitted as an exhibit.
4. The foreign law enforcement agency “has a ‘long history’
of ‘sharing criminal investigative information with U.S.
law enforcement’ related to ‘the investigation of crimes
against children,’ and . . . ‘it is common practice’ to share
such information with each other” even though there
was no formal agreement to do so. Spearman quoted this
language from the search warrant application for his
home.
5. The FBI case agent stated in the sworn search warrant
affidavit that “‘[t]he FBI and its foreign partners’ had
identified Mr. Spearman as being involved in Website A.”
(emphasis in original).
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4 K IDD, J., Dissenting 24-10300
Our predecessor Court previously explained that “a
[suppression] hearing is required” if “the moving papers, including
affidavits if any are filed, are sufficiently definite, specific, detailed,
and nonconjectural, to enable the court to conclude that a
substantial claim is presented.” United States v. Smith, 546 F.2d 1275,
1280 (5th Cir. 1977) (citation modified). In my view, Spearman met
that burden. He made specific, nonconjectural allegations that the
FBI partnered with a foreign law enforcement agency to identify
him. Each of his allegations was supported by the FBI’s own words,
including the case agent’s sworn affidavit.
The majority appears to agree with the district court, which
criticized Spearman for not “offer[ing] declarations, affidavits, or
other evidentiary materials from witnesses or persons with
knowledge from which the Court could conclude that a joint
venture occurred.” We have now seen that Spearman did offer
“affidavits” and “other evidentiary materials from . . . persons with
knowledge.” Presumably the district court wanted more
information. But how would Spearman be able to obtain any
additional declarations, affidavits, or evidence?
The only “witnesses or persons with knowledge” of a joint
venture between the U.S. government and the foreign law
enforcement agency would be the very people Spearman sought to
examine at a hearing: the government agents who worked on the
case. Spearman cited their reports and their sworn search warrant
affidavit. The district court had the power to compel those agents
to submit additional declarations regarding any cooperation
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24-10300 KIDD, J., Dissenting 5
between the two agencies if the court wanted more details before
granting a hearing. But it did not do so. And Spearman himself,
powerless under our criminal justice system, had no mechanism by
which to do so.
What additional information would the majority require
before Spearman could obtain a suppression hearing? The majority
finds that Spearman needed to credibly “claim the FBI ordered the
FLEA to undertake the search or helped the FLEA carry it out” and
to “provide specific details of how the ‘partnership’ alleged
functioned,” including that “the FBI knew how the FLEA would
use the technology or where the ultimate perpetrator would be
discovered” and that “the FBI provided the code to the FLEA.” In
other words, Spearman needed to specifically “prove a ‘joint
venture’ between the FBI and FLEA.” Majority Op. 22 (emphasis
added).
The majority offers no guidance as to how a defendant like
Spearman, lacking any discovery tools and not privy to the internal
workings of the FBI and its dealings with foreign law enforcement
agencies, might gather these “specific details.” The only answer I
can offer is exactly what he tried to do: request a hearing.
The majority’s holding impacts any defendant who has
reason to believe that the U.S. government might be cooperating
with a foreign government to violate his or her constitutional
rights. It places those defendants in a classic catch-22 situation: To
establish entitlement to a hearing, a defendant must present
evidence that only a hearing would uncover. If Spearman had the
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6 K IDD, J., Dissenting 24-10300
information that he sought to uncover, then he would not need a
hearing; he could simply present, as the district court demanded
(and the majority endorses), the “declarations, affidavits, or other
evidentiary materials from witnesses or persons with knowledge
from which the Court could conclude that a joint venture
occurred.” But Spearman did not have this information that only a
hearing could uncover. So he gets no hearing.
A suppression hearing is one of the few tools available to
criminal defendants to probe the extent of the government’s
intrusion upon their “persons, houses, papers, and effects.” U.S.
C ONST. amend. IV. Because I disagree with the height of the
majority’s hurdle to obtain this essential tool to vindicate a
constitutional right, I respectfully dissent.
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