United States of America v. KYLE EVAN PETERSON, AKA Tyler Allen Fish, AKA Tyler Allan Fisk, AKA Kyle Petersen,…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KYLE EVAN PETERSON, AKA Tyler
Allen Fish, AKA Tyler Allan Fisk,
AKA Kyle Petersen, AKA Kyle E.
Petersen, AKA Kyle Peterson, AKA
Kyleevan Peterson,
Defendant-Appellant.
No. 19-10246
D.C. No.
1:17-cr-00255-
LJO-SKO-1
OPINION
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted November 17, 2020
Pasadena, California
Filed May 3, 2021
Before: Johnnie B. Rawlinson, Danielle J. Hunsaker, and
Lawrence VanDyke, Circuit Judges.
Opinion by Judge Rawlinson

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UNITED STATES V. PETERSON 2
SUMMARY*
Criminal Law
The panel affirmed the district court’s orders denying
(1) the defendant’s motion to withdraw his guilty plea to
receipt of child pornography in violation of 18 U.S.C.
§ 2252(a)(2), and (2) his motions to suppress evidence of
sexually explicit images of minors found on two cell phones.
In seeking to withdraw his guilty plea, the defendant
contended that he was not fully informed of the essential
elements of the crime of receipt of child pornography—
specifically, that the district court failed to explain the
Government’s burden to prove that he knew the visual
depiction was a minor and that he knew the visual depiction
showed the minor engaged in sexually explicit conduct. The
panel held that the district court acted within its discretion in
denying the motion to withdraw the guilty plea. The panel
wrote that as the grammatical structure of § 2252 applies
“knowingly” to both the sexually explicit nature of the
material and the age of the performers, the indictment, by
tracking that language, adequately informed the defendant
that the crime of receipt of materials invoking the sexual
exploitation of minors required proof of those elements.
More importantly, the defendant affirmed in his plea
agreement and to the court that he had read the charges
contained in the indictment, discussed them with his attorney
who “fully explained” the charges, and that he fully
understood the nature and elements of the crime charged.
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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UNITED STATES V. PETERSON 3
The defendant argued that the parole searches in which
the cell phones were seized were not authorized because his
parole conditions did not unambiguously include cell phones
and their content as property subject to search. Affirming the
denial of the motion to suppress with respect to the parole
searches, the panel explained that the defendant, a California
parolee, had the same diminished privacy interest, and the
State of California had the same substantial interest in
supervising parolees as discussed in United States v. Johnson,
875 F.3d 1265 (9th Cir. 2017).
The defendant argued that the illegal seizure of his cell
phones during the parole searches required suppression of
forensic evidence subsequently obtained pursuant to a
warrant because the phones had been illegally kept in the
possession of the Government. Affirming the denial of the
motion to suppress with respect to the forensic searches, the
panel wrote that any illegality in the initial seizure of forensic
images from the defendant’s cell phones was cured by the
subsequent issuance of a warrant to search the forensic
images from the phones that were legally seized as the result
of valid parole searches.

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UNITED STATES V. PETERSON 4
COUNSEL
Devin Burstein (argued), Warren & Burstein, San Diego,
California, for Defendant-Appellant.
Brian W. Enos (argued), Assistant United States Attorney;
Camil A. Skipper, Appellate Chief; McGregor W. Scott,
United States Attorney; United States Attorney’s Office,
Fresno, California; for Plaintiff-Appellee.
OPINION
RAWLINSON, Circuit Judge:
Appellant-Defendant Kyle Peterson (Peterson) appeals
the district court’s order denying his motion to withdraw his
guilty plea, contending that the district court failed to apprise
him of the essential elements of his crime. He also
challenges the district court’s order denying his motion to
suppress evidence of sexually explicit images of minors
found on two separate cell phones. Because the district court
committed no error, we affirm.
I. BACKGROUND
In April 2017, Peterson was released from state prison in
California on parole. As a condition of his release, Peterson
signed a Notice and Conditions of Parole Form (Parole
Conditions) agreeing, among other conditions, that as a
parolee he could be searched at “any time . . . with or without
a search warrant, with or without cause.” Peterson also
specifically agreed not to possess a cell phone with a camera,
use social media sites, or possess “electronic media that

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UNITED STATES V. PETERSON 5
depicts sexually explicit conduct.” Peterson “consent[ed] to
announced or unannounced examination and/or search of
electronic devices to which [he had] access for the limited
purpose of detecting content prohibited by your conditions of
parole.”
While conducting searches under the Parole Conditions,
a parole agent discovered cell phones in Peterson’s
possession on May 23, 2017, and July 6, 2017, respectively,
both of which contained sexually explicit images of minors,
in violation of the terms of his parole. The parole agent
seized the phones and delivered them to federal agents at
Homeland Security Investigations (HSI) to conduct forensic
searches of images on the phones. After each search, a
California court revoked Peterson’s parole. He was
subsequently indicted in federal court for Receipt of Material
Involving the Sexual Exploitation of Minors, in violation of
18 U.S.C. § 2252(a)(2), among other charges.
Peterson moved to suppress the evidence found during the
forensic searches of the phones. The Government did not
oppose Peterson’s motion to suppress “with respect to HSI’s
forensic findings of either phone,” because an officer from
the California Department of Corrections and Rehabilitation
(CDCR) interpreted Policy No. 81034.5 of the CDCR’s
Operation Manual as providing that once parole was revoked,
a warrant was required to search items seized during a
warrantless parole search.1 In response, the district court
1 Although the phones were seized by the parole agent and
preliminarily searched before revocation of Peterson’s parole, they were
not searched by HSI until after his parole was revoked. According to the
CDCR officer’s interpretation of the policy, a warrant was required to
search the phones once parole was revoked. Because no warrant was

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UNITED STATES V. PETERSON 6
entered a minute order stating: “The evidence analyzed by
HSI from the cell phone searches . . . that occurred on May 23
and July 6, 2017 is suppressed.” However, the parole
officer’s “on-site previews of the phones’ contents [were] not
suppressed.”
The Government subsequently obtained a warrant to
search both phones. The affidavit supporting the warrant
application specifically informed the court of the prior
forensic search of the phones and affirmed that no
information from that search was used in the application. The
affidavit detailed that information used in the application was
derived from the parole agent’s preliminary searches when
the phones were initially seized and viewed by the parole
agent. Following issuance of a search warrant, the phones
were “reanalyzed utilizing previously captured forensic
images,” and child pornography was retrieved.
Peterson again moved to suppress evidence obtained from
the phones. Peterson argued that his parole conditions did not
“unambiguously encompass” cell phones. Peterson
maintained that the illegal seizure of his cell phones during
the parole searches required suppression of evidence obtained
from the parole searches and evidence obtained from HSI’s
forensic searches pursuant to the warrant. After briefing and
oral arguments, the district court denied the motion to
suppress.
Following the district court’s ruling, Peterson entered a
conditional guilty plea to count 1, which charged Peterson
obtained prior to the forensic searches performed by HSI after revocation
of parole, the Government did not oppose Peterson’s motion to suppress
the result of those searches.

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UNITED STATES V. PETERSON 7
with receipt of materials involving the sexual exploitation of
minors. Peterson preserved his right to appeal the district
court’s denial of his second motion to suppress. Before
accepting the guilty plea, the court reviewed the terms of the
plea agreement with Peterson. Peterson confirmed that after
reviewing the plea agreement with counsel, he understood
and agreed to the terms of the agreement.
Before sentencing, Peterson moved to withdraw his guilty
plea. Peterson argued that he was not fully informed of the
essential elements of the crime of receipt of child
pornography as set forth in 18 U.S.C. § 2252(a)(2), and
therefore his plea was invalid. After briefing and oral
arguments, the district court denied Peterson’s motion. The
district court then sentenced Peterson to 162 months in
custody. Peterson timely filed his notice of appeal.
II. STANDARDS OF REVIEW
“We review de novo the sufficiency of a Rule 11 plea
colloquy” and “a district court’s denial of a motion to
withdraw a guilty plea for abuse of discretion.” United States
v. Ross, 511 F.3d 1233, 1235 (9th Cir. 2008) (citations
omitted). “We review the denial of [a defendant’s]
suppression motion de novo, and the district court’s factual
findings for clear error. . . .” United States v. Johnson,
875 F.3d 1265, 1273 (9th Cir. 2017) (citation and internal
quotation marks omitted).

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UNITED STATES V. PETERSON 8
III. DISCUSSION
A. Withdrawal of Plea
Peterson contends that he was not fully informed of the
essential elements of the crime of receipt of child
pornography. More specifically, Peterson asserts that the
district court failed to explain the Government’s burden to
prove that he knew the visual depiction was of a minor and
that he knew the visual depiction showed the minor engaged
in sexually explicit conduct.
In United States v. Nostratis, 321 F.3d 1206, 1208 (9th
Cir. 2003), interpreting Rule 11(d)(2)(B) of the Federal Rules
of Criminal Procedure, we held that “[p]rior to sentencing, a
defendant can withdraw his guilty plea only by showing a fair
and just reason for withdrawal.” (citations omitted). “[T]he
decision to allow withdrawal of a plea is solely within the
discretion of the district court.” Id. (citations omitted).
In Bradshaw v. Stumpf, 545 U.S. 175, 182–83 (2005), the
United States Supreme Court held that a defendant’s “guilty
plea would indeed be invalid if he had not been aware of the
nature of the charges against him, including the elements of
the . . . charge to which he pleaded guilty.” The Court
reasoned that “[a] guilty plea operates as a waiver of
important rights, and is valid only if done voluntarily,
knowingly, and intelligently, with sufficient awareness of the
relevant circumstances and likely consequences.” Id. at 183
(citation and internal quotation marks omitted). “Where a
defendant pleads guilty to a crime without having been
informed of the crime’s elements, this standard is not met and
the plea is invalid.” Id. (citation omitted).

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UNITED STATES V. PETERSON 9
Nevertheless, in Bradshaw, the Court rejected the
argument that “the judge must himself explain the elements
of each charge to the defendant on the record.” Id. Rather,
Rule 11 requirements may be satisfied if the record accurately
reflects explanation of the elements of the crime. In addition,
the court usually may rely on representations from defense
counsel “that the defendant has been properly informed of the
nature and elements of the charge to which he is pleading
guilty.” Id. Indeed, “no specific method of advising the
defendant is mandated.” United States v. Rivera-Ramirez,
715 F.2d 453, 457 (9th Cir. 1983); see also United States v.
Mancinas-Flores, 588 F.3d 677, 682 (9th Cir. 2009) (noting
that “a court need not rely on the plea colloquy alone,” but
may rely upon “anything that appears on the record”)
(citation omitted); United States v. Kamer, 781 F.2d 1380,
1384 (9th Cir. 1986) (indicating that in “non-complex cases,
a reading of the indictment may suffice” to inform the
defendant of the nature of the charges) (citation and emphasis
omitted).
Contrary to Peterson’s contention, he was fully informed
of the essential elements of the crime of receipt of child
pornography. 18 U.S.C. § 2252 covers:
(a) Any person who . . . (2) knowingly
receives . . . any visual depiction . . . that has
been mailed, or has been shipped or
transported in or affecting interstate or foreign
commerce, or which contains materials which
have been mailed or so shipped or transported,
by any means including by computer, or
knowingly reproduces any visual depiction for
distribution using any means or facility of
interstate or foreign commerce . . . , if–

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UNITED STATES V. PETERSON 10
(A) the producing of such visual depiction
involves the use of a minor engaging in
sexually explicit conduct; and
(B) such visual depiction is of such
conduct. . . .
Count 1 of Peterson’s indictment tracked this language by
charging that Peterson
did knowingly receive at least one visual
depiction, the producing of which involved at
least one minor engaging in sexually explicit
conduct and which depiction was of such
conduct, as defined in Title 18, United States
Code, Section 2256, and which had been
shipped or transported in or affecting
interstate or foreign commerce, had been sent
or received using any means or facility of
interstate or foreign commerce, and which
contained materials which had been mailed,
shipped, or transported in interstate or foreign
commerce by any means, including by
computer, all in violation of Title 18, United
States Code, Section 2252(a)(2).
In his plea agreement, Peterson acknowledged that he had
“read the charges against him contained in the Indictment,
and those charges ha[d] been fully explained to him by his
attorney.” Peterson further acknowledged that he “fully
underst[ood] the nature and elements of the crime charged
in Count One of the Indictment to which he [was] pleading
guilty, together with the possible defenses thereto, and he
ha[d] discussed them with his attorney.” The plea

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UNITED STATES V. PETERSON 11
agreement, again tracking the language in 18 U.S.C.
§ 2252(a), set forth the elements of the crime of “Receipt of
Materials Involving the Sexual Exploitation of Minors” as
follows:
First, the defendant knowingly received;
Second, any visual depiction that had been
produced using materials that were
mailed, shipped, or transported in
interstate or foreign commerce;
Third, by any means, including by
computer;
Fourth, the producing of such visual
depiction(s) involved the use of a
minor engaging in sexually
explicit conduct; and
Fifth, the visual depiction was of such
conduct.
At the change of plea hearing, Peterson affirmed that he
signed the plea agreement and he had the opportunity to
review the agreement with his lawyer, that his lawyer
answered any questions he had to his satisfaction, and that he
had no remaining questions about the agreement. Peterson
acknowledged that he “underst[ood] the elements of Count I,”
and that he did not have “any questions at all about the plea
agreement.” The court then read count 1 of the indictment as
set forth above, to which Peterson pled “guilty.”

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UNITED STATES V. PETERSON 12
The indictment, which the district court read in open court
to Peterson and which tracked the language of 18 U.S.C.
§ 2252(a), adequately set forth the elements of the crime of
receipt of materials involving the sexual exploitation of
minors. Admittedly, the Supreme Court has held that “the
term ‘knowingly’ in § 2252 extends both to the sexually
explicit nature of the material and to the age of the
performer.” United States v. X-Citement Video, Inc.,
513 U.S. 64, 78 (1994). Nevertheless, the indictment in this
case was sufficient because it tracked the language of
18 U.S.C. § 2252(a)(2), the same language the Supreme
Court interpreted in X-Citement Video. See X-Citement
Video, 513 U.S. at 77–78 (determining “as a matter of
grammar it is difficult to conclude that the word ‘knowingly’
modifies one of the elements in subsections (1)(A) and (2)(A)
[of 18 U.S.C. § 2252], but not the other,” and applying “the
term ‘knowingly’ . . . to both elements”).
As the grammatical structure of § 2252 applies
“knowingly” to both the sexually explicit nature of the
material and to the age of the performers, the indictment, by
tracking that language, adequately informed Peterson that the
crime of receipt of materials involving the sexual exploitation
of minors required proof of those elements. See id.; see also
Hamling v. United States, 418 U.S. 87, 117 (1974)
(concluding that “[i]t is generally sufficient that an indictment
set forth the offense in the words of the statute itself, as long
as those words of themselves fully, directly, and expressly,
without any uncertainty or ambiguity, set forth all the
elements necessary to constitute the offence intended to be
punished”) (citation and internal quotation marks omitted).
More importantly, Peterson affirmed in his plea
agreement and to the court that he “ha[d] read the charges

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UNITED STATES V. PETERSON 13
against him contained in the Indictment,” discussed them
with his attorney, who “fully explained” the charges, and that
he “fully underst[ood] the nature and elements of the crime
charged.” The district court was entitled to rely upon
Peterson’s assurance that he understood the element of the
crime to which he entered a guilty plea. See United States v.
Hyde, 520 U.S. 670, 677 (1997) (explaining that a “guilty
plea is . . . a grave and solemn act,” that should not be
degraded “into something akin to a move in a game of
chess”) (citation and internal quotation marks omitted); see
also Chizen v. Hunter, 809 F.2d 560, 562 (9th Cir. 1986)
(noting that “statements made by a criminal defendant
contemporaneously with his plea should be accorded great
weight” because “[s]olemn declarations made in open court
carry a strong presumption of verity”) (citations omitted).
Peterson cites United States v. Portillo-Cano, 192 F.3d
1246, 1249 (9th Cir. 1999), as amended, to argue that Rule 11
requires the court to personally explain the nature of each
element of the crime, and the court may not rely on the
reading of the indictment, the plea agreement, or defendant’s
affirmation that his attorney explained the elements of the
charges. In Portillo-Cano, however, we expressly referenced
the district court’s failure to “mention” the indictment or “the
acts [the defendant] must have committed in order to be
found guilty of the crime.” 192 F.3d at 1251 & n.4. These
references would have been superfluous if our precedent
required the judge to personally explain the elements of each
charge to the defendant on the record. Instead, we noted that
the prosecutor, rather than the judge, could explain the
charges. See id. at 1251 n.4. In Portillo-Cano, we reviewed
the record of the plea proceedings to determine whether the
district court engaged in a plea colloquy demonstrating that

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UNITED STATES V. PETERSON 14
the defendant understood the nature of the charges. See id.
at 1250–52.
Peterson’s reliance on United States v. Szymanski,
631 F.3d 794 (6th Cir. 2011), is similarly unavailing. Unlike
Peterson, Szymanski “waived indictment,” and did not enter
into a plea agreement. Id. at 796. In addition, the record left
the court with the “the strong impression that the defendant,
his counsel, as well as government counsel at the arraignment
did not have an adequate understanding of the nature of the
charge at issue.” Id. Here, Peterson’s indictment, his plea
agreement, and the colloquy with the court informed him of
the elements required to be proven. Peterson does not assert
that his counsel failed to inform him of the knowledge
requirement for each element of the offense, and there is no
indication that the Government misunderstood the elements.
B. Motions to Suppress
Peterson argues that the parole searches were not
authorized because his parole conditions did not
unambiguously include cell phones and their content as
property subject to search. Peterson also contends that the
illegal seizure of his cell phones in the parole search required
suppression of the forensic evidence subsequently obtained
from the warrant because the phones had been illegally kept
in the possession of the Government.
1. Motion to Suppress Parole Searches
In Johnson, we affirmed the district court’s order denying
a motion to suppress evidence obtained as a result of the
warrantless searches of a parolee’s cell phone. 875 F.3d
at 1273–76. We recognized that “status as a parolee

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UNITED STATES V. PETERSON 15
significantly diminishes one’s privacy interests” and that
parolees “hold the most limited privacy interests among
people convicted of a crime but [who] are not actually
imprisoned.” Id. at 1273, 1275 (citations and footnote
reference omitted). California parolees are “‘subject to
search or seizure by a probation or parole officer or other
peace officer at any time of the day or night, with or without
a search warrant or with or without cause.’” Id. at 1274
(quoting Cal. Penal Code § 3067(b)(3)). We reasoned that
“[r]equiring officers to obtain a warrant before searching a
parolee’s cell phone would often undermine the state’s ability
to supervise effectively thousands of parolees and prevent
concealment of criminal conduct as in the case here.” Id.
(citation omitted). Accordingly, we upheld the warrantless
searches of a parolee’s cell phone against a Fourth
Amendment challenge. See id. at 1274–76.
Peterson, a California parolee, had the same diminished
privacy interest, and the State of California had the same
substantial interest in supervising parolees as discussed in
Johnson. See id. at 1273–74. Peterson agreed that as a
parolee he and his property could be searched at any time
with or without a warrant. Peterson specifically agreed not to
possess a cell phone with a camera, use social media sites, or
possess “electronic media” displaying sexually explicit
content. Finally, he consented to “announced or
unannounced examination and/or search of [his] electronic
devices.” The district court, therefore, appropriately denied
Peterson’s motion to suppress with respect to the parole
searches. See id. at 1273–74.

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UNITED STATES V. PETERSON 16
2. Motion to Suppress Forensic Searches
Peterson argues that the warrantless seizure of his cell
phones during the parole searches required suppression of the
forensic evidence subsequently obtained by warrant. As just
discussed, however, the parole searches were constitutionally
permissible, and this argument fails.
The Government did not rely on the independent source
doctrine because the original parole searches were valid. On
appeal, Peterson asserts that the phones “were reanalyzed
utilizing previously captured forensic images.” According to
Peterson, these images were ordered suppressed when the
Government filed a non-opposition to his first motion to
suppress. Peterson argues that “there can be no independent
source when there is no independent search.”
Peterson’s argument is unavailing. Peterson failed to
argue before the district court that the Government did not
make new forensic images to analyze after obtaining the
warrant, and therefore the argument is waived. See United
States v. Keesee, 358 F.3d 1217, 1220 (9th Cir. 2004)
(holding that a “theory for suppression not advanced in
district court cannot be raised for the first time on appeal”).
Had Peterson raised this argument below, the district court
could have ruled on this factual dispute in the first instance,
and if necessary, the asserted error could have been corrected
by obtaining new forensic images of the phones. See id.
(explaining that had the defendant made his suppression
argument to the district court, the issue could have been
addressed). The district court’s order denying Peterson’s
motion to suppress was without error.

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UNITED STATES V. PETERSON 17
IV. CONCLUSION
The plea colloquy between the district court and Peterson
adequately apprised Peterson of the elements of the offense
for which he was indicted. Consequently, the district court
acted within its discretion in denying Peterson’s motion to
withdraw his guilty plea. Any illegality in the initial seizure
of forensic images from Peterson’s cell phones was cured by
the subsequent issuance of a warrant to search the forensic
images from cell phones that were legally seized from
Peterson as the result of valid parole searches.
AFFIRMED.

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