UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2022

(Argued: February 17, 2023 Decided: February 27, 2024)

No. 22-1086

––––––––––––––––––––––––––––––––––––

UNITED STATES OF AMERICA,

Appellee,

-v.-

CORY JOHNSON,

Defendant-Appellant.

–––––––––––––––––––––––––––––––––––– Before: LIVINGSTON, Chief Judge, CARNEY, and BIANCO, Circuit Judges.

Defendant Cory Johnson challenges his conviction for production of child pornography, in violation of 18 U.S.C. § 2251(a), after the United States District Court for the District of Vermont (Crawford, C.J.) denied his motions (1) to suppress evidence derived from an examination of segregated digital data, seized pursuant and identified as responsive to a search warrant, that took place after sentencing in connection with an earlier prosecution; and (2) to dismiss the indictment as precluded by an earlier plea agreement. We conclude that the later review of digital data seized and segregated as within the scope of the search warrant did not violate the Fourth Amendment and therefore that the district court

1 correctly denied Johnson’s motion to suppress. We further agree with the district court that the plea agreement did not bar Johnson’s second prosecution. The district court thus properly declined to dismiss the indictment. Accordingly, we AFFIRM Johnson’s conviction. FOR DEFENDANT-APPELLANT: DENNIS J. JOHNSON (Frank J. Twarog, Catamount Law PLLC, Burlington, VT, on the brief), The Law Office of Dennis J. Johnson, South Hero, VT. FOR APPELLEE: EUGENIA A.P. COWLES, Assistant United States Attorney (Gregory L. Waples, on the brief), on behalf of Nikolas P. Kerest, United States Attorney for the District of Vermont, Burlington, VT. DEBRA ANN LIVINGSTON, Chief Judge:

Defendant-Appellant Cory Johnson (“Johnson”) appeals from a May 12, 2022, judgment of the United States District Court for the District of Vermont (Crawford, C.J.), convicting him of a single count of the knowing production of child pornography in violation of 18 U.S.C. § 2251(a), and sentencing him to a term of imprisonment of 240 months, to be followed by a 15-year term of supervised release. When Johnson was first identified by federal authorities as trading child sexual abuse material (“CSAM”) within an Internet chat group in 2018, the execution of a search warrant at his South Burlington, Vermont home resulted in the seizure of electronic media containing over 8,000 videos and over 6,000 images

2 of such material. Johnson was first indicted for the distribution of child pornography but as the result of a plea agreement pled guilty to a superseding information charging him only with the possession of child pornography. For that crime, he was sentenced principally to a 45-month term of imprisonment. A later review of previously seized and segregated digital data responsive to the original warrant produced evidence that Johnson had not only possessed child pornography in 2018 but had sexually assaulted his then two-and-a-half-year-old daughter and filmed the abuse. Johnson was indicted on the present production charge in 2019 and again pled guilty, this time reservi