UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 22-1358 ___________

UNITED STATES OF AMERICA

v.

JOHN LEWIS KRAMER,

Appellant

___________

On Appeal from the Middle District of Pennsylvania (D.C. No. 3:20-cr-00147-001) District Court Judge: Honorable Malachy E. Mannion ___________ 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. (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

___________ OPINION OF THE COURT ___________ 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

2 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.

3 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