United States of America v. John Lewis Kramer

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-1358
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UNITED STATES OF AMERICA
v.
JOHN LEWIS KRAMER,
Appellant
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On Appeal from the Middle District of Pennsylvania
(D.C. No. 3:20-cr-00147-001)
District Court Judge: Honorable Malachy E. Mannion
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Submitted Under Third Circuit L.A.R. 34.1(a)
January 17, 2023
Before: AMBRO,* PORTER, and FREEMAN, Circuit
Judges.
* Judge Ambro assumed senior status on February 6, 2023.

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(Opinion filed: August 1, 2023)
William J. Watt, III
Saporito Falcone & Watt
48 South Main Street
Suite 300
Pittston, PA 18640
Counsel for Appellant
Jenny P. Roberts
Office of United States Attorney
235 North Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503
Counsel for Appellee
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OPINION OF THE COURT
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FREEMAN, Circuit Judge.
John Lewis Kramer was convicted of sexual
exploitation of a minor and attempted witness tampering. On
appeal, he challenges the District Court’s denial of his motion
to suppress evidence that his then-wife provided to police.
Because his then-wife conducted a private search of his
cellphone and voluntarily provided the evidence to the
government, we hold that the evidence was admissible at trial

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without implicating the Fourth Amendment. We also hold that
the District Court properly denied Kramer’s motion to dismiss
the attempted witness tampering charge, so we will affirm the
District Court’s judgment.
I
In March 2020, Kramer’s then-wife, Terry Kramer
(“Terry”), found a document on her husband’s computer that
led her to believe that Kramer may have engaged in sexual
conduct with a minor child (“the victim”). Later that month,
Terry found photographs on Kramer’s cellphone depicting the
victim engaged in sexual acts. Terry contacted the police and
arranged a meeting during which she described the sexually
explicit photographs to police and showed them the document
that she found on Kramer’s computer. Terry emailed the five
photographs to her own email account, powered off the
cellphone, and provided it to police.1
That same day, the victim participated in a forensic
interview during which she reported that Kramer had sexually
abused her for years and had used his cellphone to take pictures
of her engaged in sexual conduct. Later that day, the police
interviewed Kramer, who admitted to having a sexual
relationship with the victim and to using his cellphone to take
photographs and video of the victim engaged in sexual activity.
After meeting with the police, Terry sent the five explicit
1 As discussed below, Terry testified that a police detective
directed her to email the photographs to her own email account
and then to email the photographs to the detective, but police
witnesses testified that Terry emailed the photographs to
herself before contacting them and later provided them the
evidence voluntarily.

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photographs that she had forwarded to her own email account
to a police detective’s email address.
The police used the statements of Terry, the victim, and
Kramer to obtain a warrant to search Kramer’s cellphone.
Their initial forensic examination of the cellphone yielded no
sexually explicit photographs or video. They suspected
problems with the forensic software, so they conducted a
manual search of the cellphone and found four videos and one
photograph depicting sexual acts involving the victim. The
F.B.I. conducted further forensic analysis of the cellphone and
found five more photographs—the same five photographs that
Terry had found and sent to the police.
Kramer was initially charged with one count: sexual
exploitation of children, in violation of 18 U.S.C. § 2251(a).
While in custody, he sent Terry a letter stating, inter alia, “You
crossed [the] line and it IS going to cost you in the end one way
or another and nothing will stop it!” Gov’t Br. at 27 (quoting
letter). He repeatedly stated in the letter that, if he went to trial
for the exploitation charge, he would have Terry arrested and
jailed for crimes she purportedly committed on the day she
called police to report the sexually explicit photographs. He
also told Terry that he had proof of her “testimony to the
police” and reports to state and federal law enforcement, which
he had obtained in discovery. Id. He wrote that he would have
Terry jailed if she did not answer his letter, told anyone
involved in his case about the letter, or responded to the letter
in a negative way. Terry provided the letter to law
enforcement, and Kramer was later charged with an additional
count: attempted witness tampering, in violation of 18 U.S.C.
§ 1512(b)(1).

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During trial, Kramer moved to suppress the five explicit
photographs that Terry found on his cellphone and sent to the
police, arguing that they were obtained in violation of the
Fourth Amendment. He also moved to suppress the four
videos and one additional photograph that the police found on
his cellphone, arguing that this evidence was the fruit of the
poisonous tree. The District Court denied both motions.
At the close of the government’s case, Kramer moved
for a judgment of acquittal on the attempted witness tampering
charge, arguing that the letter he sent to Terry did not support
an intent to threaten her. The District Court denied the motion,
finding that the letter was meant to intimidate and threaten
Terry about her potential testimony.
Kramer was convicted of both counts and was
sentenced to an aggregate term of 360 months’ imprisonment.
He timely appealed.
II
The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have jurisdiction under 28 U.S.C. § 1291.
Our Court applies a mixed standard of review over a
denial of a motion to suppress evidence: we review findings of
fact for clear error, and we exercise plenary review over legal
determinations. United States v. Tracey, 597 F.3d 140, 146 (3d
Cir. 2010). Because the District Court denied the suppression
motion, we view the facts in the light most favorable to the
Government. United States v. Dyer, 54 F.4th 155, 158 (3d Cir.
2022).

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We exercise plenary review over a denial of a motion
for judgment of acquittal. United States v. Brodie, 403 F.3d
123, 133 (3d Cir. 2005). We independently “review the record
in the light most favorable to the prosecution to determine
whether any rational trier of fact could have found proof of
guilt[] beyond a reasonable doubt based on the available
evidence.” Id. (citations omitted).
III
A
Kramer argues that Terry was acting as an agent of the
government when she preserved explicit photographs from his
cellphone and provided the photographs to police. We have
not previously adopted a test for when a private party acts as
an agent of the government for purposes of the Fourth
Amendment, so we do so here.
Although the Fourth Amendment does not protect
against the independent actions of private citizens, it does
protect against searches or seizures conducted by a private
party acting as an agent of the government. Skinner v. Ry. Lab.
Execs.’ Ass’n, 489 U.S. 602, 614 (1989). Whether the private
party was acting as an agent of the government “turns on the
degree of the Government’s participation in the private party’s
activities, a question that can only be resolved in light of all the
circumstances.” Id. at 614–15 (cleaned up).
Four of our sister Courts of Appeals assess whether a
private party was an agent of the government by evaluating two
factors: (1) whether the government knew of and acquiesced in
the intrusive conduct, and (2) whether the private citizen

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performing the search intended to assist law enforcement or
acted to further her or his own legitimate and independent
purposes. United States v. Rosenow, 50 F.4th 715, 731 (9th
Cir. 2022); United States v. Koerber, 10 F.4th 1083, 1114 (10th
Cir. 2021), cert. denied, 143 S. Ct. 326 (2022); United States
v. Jarrett, 338 F.3d 339, 344 (4th Cir. 2003); United States v.
Steiger, 318 F.3d 1039, 1045 (11th Cir. 2003). Other Courts
of Appeals apply variations of this two-factor inquiry.2
2 The Seventh Circuit assesses the two factors in text as
“critical factors,” and it notes that “[o]ther useful criteria are
whether the private actor acted at the request of the government
and whether the government offered the private actor a
reward.” United States v. Shahid, 117 F.3d 322, 325 (7th Cir.
1997) (citation omitted). The Eighth Circuit assesses the two
factors in text plus a third factor: whether the citizen acted at
the government’s request. United States v. Avalos, 984 F.3d
1306, 1307–08 (8th Cir. 2021). The Sixth Circuit applies a
similar two-pronged inquiry: “the police must have instigated,
encouraged or participated in the search,” and “the individual
must have engaged in the search with the intent of assisting the
police in their investigative efforts.” United States v. Lambert,
771 F.2d 83, 89 (6th Cir. 1985). In the Second Circuit, a
“search conducted by private individuals at the instigation of a
government officer or authority may sometimes be attributable
to the government for purposes of the Fourth Amendment; but
private actions are generally attributable to the government
only where there is a sufficiently close nexus between the State
and the challenged action of the entity so that the action of the
latter may be fairly treated as that of the State itself.” United
States v. DiTomasso, 932 F.3d 58, 67–68 (2d Cir. 2019)
(cleaned up).

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We adopt this two-pronged inquiry, which is consistent
with our previous decisions. See, e.g., Meister v. Comm’r, 504
F.2d 505, 510 (3d Cir. 1974) (rejecting Fourth Amendment
argument where the record clearly established that the private
actor conducted a search and seizure without
the Government’s knowledge); United States v. Valen, 479
F.2d 467, 469–70 (3d Cir. 1973) (a private citizen was not
acting as a government agent where “no attempt was made by
the government to use him to do that which the agents
themselves were forbidden to do” and the private citizen
conducted the search only “to protect himself and his
employer”); Doe v. Luzerne Cnty., 660 F.3d 169, 179 (3d Cir.
2011) (a video recording conducted by a law enforcement
officer who “acted for personal reasons and outside the scope
of a governmental investigation” does not implicate the Fourth
Amendment). The defendant bears the burden of proving that
a private party was acting as an instrument of the government
for purposes of the Fourth Amendment. See United States v.
Donahue, 764 F.3d 293, 298 (3d Cir. 2014) (a defendant
moving to suppress evidence seized in a search bears the
burden of proving that the search was illegal).3
Applying the inquiry here, we conclude that Terry’s
first search of Kramer’s cellphone—conducted at her home, for
her own purposes, before she contacted law enforcement—did
not implicate the Fourth Amendment. Neither did Terry’s
second search of the cellphone—when she re-reviewed the
photographs and preserved them.
3 Our sister Circuits likewise place the burden on the defendant
to prove that a private party acted as an instrument of the
government. See, e.g., Rosenow, 50 F.4th at 729; Avalos, 984
F.3d at 1308; Jarrett, 338 F.3d at 344; Shahid, 117 F.3d at 325.

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The record contains conflicting testimony about
whether the police instructed Terry to preserve the photographs
or whether she preserved the photographs of her own volition.
Terry testified that the police directed her to email the
photographs to her own email account and then to a detective’s
email address, but that detective denied giving any such
direction and testified that Terry had preserved the
photographs before calling the police. Another detective
testified that Terry told him she had previously emailed the
photos to herself and volunteered to email the photos to him.
When the District Court considered the motion to
suppress, it informed the parties that it would assume Terry’s
testimony was accurate. Although the parties treat that as a
factual finding for the purposes of this appeal, the District
Court did not make a factual finding that Terry’s testimony was
accurate; it simply recounted the evidence in the light most
favorable to the defense. Because this Court reviews the denial
of a motion to suppress by construing the facts in the light most
favorable to the government, we must assume that Terry
preserved the photographs and sent them to the police of her
own volition. This makes the application of the agency test
easy. Terry searched Kramer’s cell phone without the
government’s knowledge or acquiescence, and she did so to
further her own legitimate and independent purposes. There is
no state action when a private person voluntarily turns over
property she discovered from legitimate private actions. Cf.
United States v. Smythe, 84 F.3d 1240, 1243 (10th Cir.
1996) (“Fourth Amendment concerns simply are not
implicated when a private person voluntarily turns over
property belonging to another and the government’s direct or
indirect participation is nonexistent or minor.” (quotations
omitted)).

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Neither of Terry’s searches of Kramer’s cell phone
implicated the Fourth Amendment.4 As a result, Kramer’s
fruit-of-the-poisonous-tree argument must fail.
B
To prove attempted witness tampering, the Government
needed to show that: (1) the defendant intimidated, threatened,
or corruptly persuaded the witness; (2) the defendant was
motivated by a desire to prevent the communication between
any person and law enforcement authorities concerning the
commission or possible commission of an offense; (3) the
offense was actually a federal offense; and (4) there was a
reasonable likelihood that the person whom the defendant
believes may communicate with law enforcement would in fact
make a relevant communication with a federal law
enforcement officer. 18 U.S.C. § 1512(b)(1); United States v.
Tyler, 956 F.3d 116, 123 (3d Cir. 2020).
The District Court properly denied Kramer’s motion for
judgment of acquittal on the attempted witness tampering
charge. The government introduced sufficient evidence for a
rational trier of fact to find each element of the offense proven
4 The scenario here is much like the hypothetical described in
Coolidge v. New Hampshire, which the Supreme Court
described as being one that would not implicate the Fourth
Amendment: “Had Mrs. Coolidge, wholly on her own
initiative, sought out her husband’s guns and clothing and then
taken them to the police station to be used as evidence against
him, there can be no doubt under existing law that the articles
would later have been admissible in evidence.” 403 U.S. 443,
487 (1971), abrogated in part by Horton v. California, 496
U.S. 128 (1990).

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beyond a reasonable doubt. It is undisputed that Kramer sent
the letter to Terry and that sexual exploitation of a minor is a
federal offense. And a rational factfinder could determine the
remaining elements proven by Kramer’s emphatic written
statements that he would have Terry jailed if he went to trial
and his references to Terry’s statements to law enforcement
implicating him in the sexual-exploitation offense.
IV
For the foregoing reasons, we will affirm the District
Court’s judgment.

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