FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT July 28, 2020 Christopher M. Wolpert _________________________________ Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 19-3043 (D.C. No. 6:17-CR-10045-EFM-1) PATRICK STEIN, (D. Kan.) Defendant - Appellant. _________________________________ ORDER AND JUDGMENT* _________________________________ Before HARTZ, EBEL, and MATHESON, Circuit Judges. _________________________________ In this direct criminal appeal, Defendant Patrick Stein challenges his conviction for possession of child pornography, arguing the Government unlawfully obtained the evidence on which this charge was based using a defective search warrant. Having jurisdiction under 28 U.S.C. § 1291, we reject Stein’s arguments and AFFIRM his conviction. I. BACKGROUND After an eight-month investigation, the Federal Bureau of Investigation (“FBI”), in October 2016, arrested Stein and two other members of a militia group * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. for conspiring to use a weapon of mass destruction against Muslim Somali immigrants living in southwestern Kansas. Agents then obtained a warrant to search Stein’s home, where they seized, among other things, a computer and several thumb drives. While going through the contents of those electronic devices, agents came across images of child pornography. They stopped their search, obtained a second warrant authorizing the agents to search for child pornography and, in executing that second warrant, discovered up to 149 images of child pornography on the computer and two of the thumb drives seized from Stein’s home. Based on those images, the United States charged Stein in this case with one count of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). Stein unsuccessfully moved in this case to suppress the evidence seized during the search of his home conducted pursuant to the first search warrant. He then conditionally pled guilty to possession of child pornography, reserving his right to appeal the denial of his suppression motion. See Fed. R. Crim. P. 11(a)(2). The district court sentenced Stein to forty-four months in prison on the child pornography conviction, to run consecutively to the 360-month sentence Stein received for his convictions stemming from the conspiracy to use a weapon of mass destruction. II. DISCUSSION The focus of this appeal, then, is the validity of the warrant the FBI obtained to search Stein’s home for evidence of the conspiracy to use a weapon of mass destruction. Summarizing, that warrant authorized FBI agents to search for and seize several categories of “fruits, evidence, and/or instrumentalities” of that criminal 2 activity, including tools and materials that could be used to make bombs, receipts for the purchase of bomb-making materials, bomb-making instructions, including those that are “computer-generated or stored,” “[a]ny writing or printed word items or computer files . . . that may relate to terrorist individuals, explosives, bombs, terrorism, or terrorist attacks,” information ...
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