U.S. v. Runyan

Decision Date18 April 2002
Docket NumberNo. 01-11207.,No. 00-10821.,00-10821.,01-11207.
Citation290 F.3d 223
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Robert Beam RUNYAN, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Robert Beam Runyan, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Chad Eugene Meacham (argued), Dallas, TX, for Plaintiff-Appellee.

J.W. Johnson, Johnson Law Office, San Angelo, TX, Jack B. Zimmermann (argued), Terri Raye Zimmermann Jacobs, Zimmermann & Lavine, Houston, TX, for Defendant-Appellant.

Appeals from the United States District Court for the Northern District of Texas.

Before KING, Chief Judge, and JOLLY and BENAVIDES, Circuit Judges.

KING, Chief Judge:

Defendant-Appellant Robert Beam Runyan was convicted of sexual exploitation of a child in violation of 18 U.S.C. § 2251 and of distribution, receipt, and possession of child pornography in violation of 18 U.S.C. § 2252A. In two separate actions, Runyan appeals his conviction (No. 00-10821) and the district court's denial of his post-trial motion for a new trial (No. 01-11207). On September 24, 2001, we consolidated these two cases for the purposes of appeal. On December 10, 2001, this court issued a non-dispositive opinion: (1) holding that aspects of the Government's investigation violated the Fourth Amendment; and (2) remanding the case to the district court for further factfinding that would enable this court to assess the applicability of exceptions to the exclusionary rule. On January 10, 2002, the district court issued an order providing the requisite findings of fact. We now conclude our analysis of Runyan's Fourth Amendment claims and address Runyan's remaining claims, from both his appeal of his conviction and his appeal of the district court's denial of his motion for new trial. For the following reasons, we AFFIRM Runyan's convictions for receipt and possession of child pornography and for sexual exploitation of a child, but REVERSE his conviction for distribution of child pornography. We also VACATE Runyan's sentence and REMAND to the district court for entry of judgment and resentencing consistent with this opinion.

I. Factual and Procedural Background

The facts of this case are described in detail in this court's December 10, 2001 decision. Accordingly, we only briefly reiterate the underlying facts of the case. We address specific facts pertinent to each of Runyan's remaining claims in greater detail within our discussion of each claim below.

In brief, Robert Beam Runyan ("Runyan") and his wife Judith Runyan ("Judith") separated in January of 1999. In June of 1999, Judith (accompanied at different times by her daughter and various friends) made several trips to Runyan's ranch to retrieve items of her personal property while Runyan was out-of-town. At the ranch, Judith and one of her companions found two duffel bags in the barn containing items of pornography, including Polaroid photographs of two individuals, one of whom appeared to be a very young teenager. Judith removed these items from the ranch. Judith and her companions also removed from the ranch a desktop computer and a collection of floppy disks, compact discs ("CDs"), and ZIP disks (collectively, "the disks") that were lying on the floor surrounding the computer.

One of Judith's companions, Brandie Epp, reassembled the computer at Judith's residence and examined approximately 20 of the CDs and floppy disks taken from the ranch. Epp discovered that some of these CDs and floppy disks contained images of child pornography.1 Epp contacted the sheriff's department and turned these materials over to a deputy. Over the next few weeks, Judith turned over various additional items found at the Runyan ranch to a number of different law enforcement agencies. These items included the desktop computer, additional disks containing child pornography, and the duffel bags found in the barn.

Texas Ranger Bobby Grubbs ("Ranger Grubbs") used his computer to view some of the disks delivered by Judith and observed images of child pornography. He printed out several of these images on a color printer and showed them to members of the Coleman County District Attorney's staff. An investigator in the District Attorney's office, Darla Tibbetts, tentatively identified the girl photographed in one of the images. An intern working for the District Attorney's office, Melissa Payne, was brought to the sheriff's office to assist with the identification. She positively identified the girl in the pictures as Misty Metcalf ("Misty"), a former high school classmate.2

On June 28, 1999, upon learning that he was a potential suspect, Runyan met with Ranger Grubbs. At this meeting, after Runyan had been given Miranda warnings, he stated that he found a bag of pornography at a rest stop. Runyan admitted that he viewed the materials in the bag and that, out of curiosity, he used his computer to view child pornography available on the Internet.3

On July 7, 1999, Customs Service Special Agent Rick Nuckles ("Agent Nuckles") joined the investigation. Agent Nuckles examined several images from each floppy disk, ZIP disk, and CD turned over by Judith and Epp. Agent Nuckles found two images of Misty, apparently taken with a digital camera or taken with a Polaroid camera and then scanned into a computer.

Also on July 7, Tibbetts and Ranger Grubbs interviewed Misty. Misty stated that Runyan hired her when she was a young teenager to perform odd jobs around his ranch and to iron clothes for him. She said that he approached her when she was fifteen about posing for nude photographs. Misty told Tibbetts that Runyan had taken sexually explicit photographs of her on numerous occasions when she was between the ages of fifteen and seventeen. She reported that Runyan had sometimes paid her approximately five dollars per photographic session and that he had promised her more money once he sold the pictures over the Internet to customers in Japan.

Agent Nuckles then filed two applications for federal search warrants, supported by his own affidavits. The first application sought a warrant to search the desktop computer and all the disks for files containing illegal images. The second application sought a warrant to search Runyan's ranch house for any and all computers, computer hardware, software, and computer devices. The affidavits supporting these applications included statements made by Misty and Judith to Ranger Grubbs as well as information from Runyan's voluntary statement to Ranger Grubbs. In addition, one of the affidavits contained a statement indicating that Agent Nuckles had conducted a "cursory" review of the computer storage media. Magistrate Judge Philip Lane issued both warrants. Law enforcement officials subsequently searched Runyan's ranch house and discovered a computer backup tape that contained one picture of child pornography.

On October 13, 1999, Runyan was indicted on six counts of child pornography charges. Runyan filed three separate motions to suppress the evidence against him, primarily contending that the pre-warrant searches of the disks conducted by various law enforcement officials involved in the investigation violated his Fourth Amendment rights. The trial court held a hearing on Runyan's motions to suppress on April 20, 2000. At the close of the hearing, the trial court denied the motions, finding that the pre-warrant police searches did not violate Runyan's Fourth Amendment rights.

On April 21, 2000, a jury convicted Runyan of four counts:4 Count 1 — sexual exploitation of a child in violation of 18 U.S.C. § 2251; Count 3 — distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2); Count 4 — receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2); and Count 5 — possession of child pornography in violation of § 2252A(5)(B). On July 28, 2000, the district court sentenced Runyan to 240 months on Count 1; 60 months on Count 3, to be served consecutively to Count 1; and 180 months on Counts 4 and 5, to run concurrently with the sentence imposed on Count 1, for a total sentence of 300 months of imprisonment. In addition, the district court imposed a three-year term of supervised release and mandatory special assessments totaling $400.

Runyan timely appealed his convictions and his sentence, contending that: (1) the trial court erred in failing to suppress the evidence obtained directly and indirectly from the pre-warrant police searches; (2) there was insufficient evidence introduced at trial to establish the interstate commerce element of each of the four charges; (3) the trial court erred in refusing to order the Government to produce Misty's boyfriend's computer and in refusing to conduct an in camera review of evidence on that computer that Runyan contends was exculpatory; (4) the trial court erred in admitting evidence that Runyan refused to consent to the search of the desktop computer; and (5) the trial court erred in not grouping all the counts of his conviction in the sentencing determination.5 While that appeal was pending before this court, Runyan filed a motion for new trial based on newly-discovered evidence, alleging that Misty's boyfriend's computer contained exculpatory evidence that the Government withheld prior to trial. The district court denied this motion on September 7, 2001, and Runyan timely appealed to this court. We consolidated Runyan's two actions for the purposes of appeal on September 24, 2001.

II. Runyan's Fourth Amendment Claims

Runyan seeks to suppress evidence obtained as a result of the state and federal law enforcement officials' pre-warrant searches of the disks. Runyan argues that these searches violated the Fourth Amendment and that no exceptions to the exclusionary rule are applicable. Runyan also seeks to suppress...

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