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United States v. Smith

United States Court of Appeals, First Circuit

March 15, 2019

BRAD SMITH, Defendant, Appellant.


          Richard Guerriero, with whom Lothstein Guerriero, PLLC was on brief, for appellant.

          Seth R. Aframe, Assistant United States Attorney, with whom Scott W. Murray, United States Attorney, was on brief for appellee.

          Before Lynch, Stahl, and Barron, Circuit Judges.


         This appeal arises out of Defendant-Appellant Brad Smith's conviction for producing six videos depicting him sexually assaulting a three-year-old child. Smith challenges the district court's denial of his motion to suppress evidence recovered from his residence on a Louisiana pecan farm, including a laptop computer and two hard drives that contained the videos in question, as well as statements he made to law enforcement at the farm and during a later interrogation. He argued that law enforcement agents had violated his Fourth Amendment rights, and that he was coerced into consenting to the search of the residence. The district court disagreed, holding that there was no Fourth Amendment violation and that Smith knowingly and voluntarily consented to the search.

         After a short jury trial, Smith was convicted of six counts of violating 18 U.S.C. § 2251(a), the federal child pornography production statute. At sentencing, Smith argued that because the videos were taken during one continuous sexual assault, the charges were multiplicitous. The district court disagreed and ultimately sentenced Smith to a term of imprisonment of fifty years.

         On appeal, Smith challenges both the district court's denial of his motion to suppress and his sentence. However, even assuming arguendo that the agents committed a Fourth Amendment violation at some point before encountering Smith on the pecan farm, we find that any prior illegality did not significantly influence or even play an important role in his subsequent consent to the search of his computer and hard drives. He voluntarily consented to the seizure of his computer and hard drives and his consent was not obtained by exploitation of any Fourth Amendment violation. In addition, we hold on the facts here that the proper unit of prosecution under Section 2251(a) is each video depicting the victim. Accordingly, and for the following reasons, we affirm.

         I. Factual Background

         We recount the facts in two parts. First, we describe events occurring before the law enforcement agents' entry onto the pecan farm, which for purposes of this appeal are uncontested. Second, we recount the facts relevant to the motion to suppress, including the agents' entry onto the farm and subsequent seizure of Smith's computer and hard drives, "as the trial court found them, consistent with record support." United States v. Andrade, 551 F.3d 103, 106 (1st Cir. 2008) (internal quotation marks and citation omitted). We describe further facts relevant to sentencing issues in that section.

         A. Events Leading Up to the Agents' Entry

         Beginning in 2010, Smith was employed at a concrete plant in New Hampshire by the victim's father. Over the next few years, Smith befriended the father and his family, and he occasionally performed repairs at their home. Smith also regularly came to the victim's home for holidays.

         Sometime in early 2015, the father learned that Smith had misused company funds. The company's counsel and distribution manager recommended that Smith be terminated. However, the father instead decided to transfer Smith to work on a pecan farm in Breaux Bridge, Louisiana, that the victim's family owned.

         In May 2015, before moving to Louisiana, Smith was working at the father's home. On May 25, during one of his visits, Smith used a pair of Google glasses to record six videos of him sexually assaulting the victim, who was then three years old. The videos depicted various sexual acts that occurred between roughly 12:43 p.m. and 1:49 p.m. In the immediate term, Smith remained on friendly terms with the father, who was unaware of either the assault on his child or the video recordings. In August 2015, Smith relocated to Louisiana to begin working on the pecan farm.

         Meanwhile, in September 2014, agents with the Department of Homeland Security's Immigration and Customs Enforcement Division ("HSI") obtained a search warrant in the Eastern District of Michigan to search the e-mail account HSI agents discovered that, in October 2013, that account had received an e-mail from the address (the "Yahoo Account") containing child pornography. In November 2015, Yahoo! provided law enforcement information pertaining to the Yahoo Account in response to an administrative subpoena and search warrant. From Yahoo!'s response, HSI agents discovered that the Yahoo Account was registered to Smith, and that he was residing in Louisiana at the pecan farm. HSI Special Agent Lance Lopez ("Lopez") led the investigation into Smith and worked with fellow HSI Special Agent Erol Catalan ("Catalan") and Louisiana State Police Investigator Georgiana Kibodeaux ("Kibodeaux").

         B. The Agents' Entry onto the Pecan Farm and Subsequent Events

         The pecan farm abuts a state highway just outside the city limits of Breaux Bridge, Louisiana. The farm itself has a see-through perimeter fence that runs parallel to the highway. A driveway leads from the highway to the residential areas of the farm, and the entrance to that driveway is gated at the highway. The gate runs wider than the driveway and consists of two metal sections that meet in the center. To open the gate, a person would have to enter a code on a keypad located on a nearby pole outside the fence. The code was not posted, although at all relevant times, there was a sign near the gate carrying a phone number with a New Hampshire area code to call for "deliveries." There were no other signs on or around the front gate.

         The gate controls access to a driveway that runs through adjacent pecan fields for 300 to 500 feet.[1] The farm's primary residence and an adjacent smaller secondary residence lie to the right of the driveway just before it terminates in a wider paved area. A paved footpath travels from the driveway to the front porch of the main residence. A solid six-foot tall wooden privacy fence extends from both sides of the primary residence. Viewing the primary residence from the driveway, the privacy fencing extended a short distance from the left side of the primary residence to a nearby carport. From the right side of the primary residence, the privacy fencing extends farther and encloses a larger area behind the home, including the secondary residence. The carport consists of a large, roofed structure with partially enclosed sides, and covers a portion of the paved area at the end of the driveway. The carport was located next to the primary residence and nearby a workshop. Smith resided in the secondary residence.

         In early January 2016, Lopez surveilled the pecan farm. Following one of his reconnaissance visits, Lopez called the phone number posted near the gate for deliveries, pretending to be a schoolteacher interested in a tour of the farm. A male identifying himself as Smith answered the phone, but responded that the owner of the property was not currently giving tours.

         On January 12, 2016, Lopez and a local Assistant United States Attorney discussed the possibility of obtaining a search warrant for the pecan farm and residences. However, they concluded that the evidence from the Yahoo Account was too stale for a warrant. Therefore, Lopez decided to instead attempt a "knock and talk"[2] entry onto the property.

         In the early afternoon of January 14, 2016, Lopez, Catalan, and Kibodeaux approached the gate in a truck. They initially called the "deliveries" number several times, but nobody answered. Lopez and Kibodeaux, on foot, then "stepped through the gate." This required Kibodeaux and Lopez to "duck[] down" and pass between the top and middle bars forming the gate. Lopez testified that this crossing was "like . . . [going] through a barbed wire fence." When the district court asked Lopez about what appeared to be a gap "meant for people to pass through" -- a short length between the two sections of the gate that lacked a top bar -- Lopez clarified that the gap was not wide enough for either agent. After crossing through, Kibodeaux and Lopez realized that, when pushed, the two gate sections could be separated far enough for Kibodeaux to fit through. Catalan stayed behind and waited by the gate in his truck.

         Lopez and Kibodeaux walked down the driveway and knocked on the door to the primary residence (but not the secondary residence, where Smith resided), but nobody answered. As the agents walked back to the driveway, they heard machinery operating behind the carport. The agents then walked to the carport and saw two individuals: a male (later identified as Smith) and a female working in a pecan field behind the carport. Lopez waved his arms to draw their attention and flagged Smith over.

         Neither the record nor the district court's decision indicate precisely where exactly Smith and the agents first met. It appears, however, that Lopez walked a few feet off the carport's concrete padding towards Smith, while Smith simultaneously walked towards Lopez. Smith, Lopez, and Kibodeaux then moved to the driveway.

         At that point, Lopez identified himself as an HSI agent, and Kibodeaux as a Louisiana State Police investigator. Lopez (falsely) told Smith that they were there to investigate potential illegal immigrants working at the farm. Lopez also requested that Smith provide the gate code so that Catalan could drive the truck up the driveway and join them. Smith provided Lopez the code, which Catalan used to open the gate. Catalan then drove the truck onto the driveway and parked near the carport.

         Soon afterwards, Lopez asked Smith for his driver's license and e-mail address. Smith provided his license and the email address "," which had the same username as the account linked to the child pornography investigation, but had a different webmail provider. Lopez then asked if Smith had an alternate e-mail address, and Smith provided the Yahoo Account address. At that point, Lopez asked Smith if they could go into his residence to discuss additional matters, and Smith agreed. The woman who had been standing with Smith when the agents first saw him did not join them.

         Once inside the secondary residence, Lopez asked Smith whether he looked at pornography, to which Smith responded yes. Lopez then asked whether Smith had come across and downloaded child pornography, and Smith replied that he had accidentally downloaded it on several occasions. Lopez then asked if the computer on which Smith downloaded the pornography was inside the residence. Smith admitted it was, and stated that it was his practice to download the pornography and then move it into another folder to delete it. He further admitted that the computer still had child pornography files on it. Kibodeaux recalled that while Smith was "embarrassed" during this conversation, "[h]e was not resistant."

         After Smith admitted to possessing child pornography, Lopez asked Smith if he would consent to a search of his computer. Lopez also read aloud a consent to search form.[3] Smith demurred, asking what would happen if he refused to grant consent. Kibodeaux replied that it was his right to refuse consent, but that the agents could detain the computer based on his admission that he had downloaded child pornography on it, and that they ...

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