U.S. v. Paull

• Citation: 551 F.3d 516
• Decision Date: 09 January 2009
• Docket Number: No. 07-3482.,07-3482.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jerry PAULL, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

551 F.3d 516

UNITED STATES of America, Plaintiff-Appellee, v. Jerry PAULL, Defendant-Appellant.

No. 07-3482.

United States Court of Appeals, Sixth Circuit.

Argued: October 23, 2008.

Decided and Filed: January 9, 2009.

ARGUED: Dean Boland, Lakewood, Ohio, for Appellant. Michael A. Sullivan, Assistant United States Attorney, Cleveland, Ohio, for Appellee. ON BRIEF: Dean Boland, Lakewood, Ohio, Kevin M. Cafferkey, Law Offices, Cleveland, Ohio, for Appellant. Dean M. Valore, Assistant United States Attorney, Cleveland, Ohio, for Appellee.

Before: BOGGS, Chief Judge; and MERRITT and GRIFFIN, Circuit Judges.

BOGGS, C.J., delivered the opinion of the court. GRIFFIN, J. (pp. 530-33), delivered a separate opinion concurring in part and dissenting in part. MERRITT, J. (pp. 533-35), delivered a separate dissenting opinion.

OPINION

BOGGS, Chief Judge.

Jerry Paull was convicted pursuant to a conditional plea agreement on four counts of knowing possession of child pornography under the Child Pornography Protection Act, 18 U.S.C. § 2252 et seq. and sentenced to imprisonment for 210 months. He now appeals both his conviction and sentence. He claims that the district court ruled improperly on a variety of pre-trial motions, including his motions to suppress for violations of his Fourth Amendment and Miranda rights, and his motions to dismiss the indictment because the statute is void for vagueness and because it deprived him of a fair trial. He also appeals his sentence, claiming that the district court incorrectly calculated his guideline range and abused its discretion in failing to vary downward in light of his efforts at rehabilitation and his poor health. For the reasons discussed below we affirm Paull's conviction and his sentence.

I. Factual & Procedural History

In 2004, Special Agent Hagan of Immigration and Customs Enforcement (ICE) became aware, through multiple investigations of websites known to traffic in images of child pornography, of Jerry Paull's online activity involving child pornography. In June of that year, Hagan obtained a search warrant for Paull's Amherst, Ohio residence based on an affidavit detailing Paull's subscriptions to websites containing advertising with images of child pornography and her experience as an investigator of child pornography. While executing the warrant, Agent Hagan informed Paull that he was not under arrest and that the officers were there only to execute the warrant. She asked whether he was willing to explain his "side of the story" but Paull declined to speak with her. She thereafter left him under supervision of a local officer and joined the search. Conversation in passing between Paull and the searching officers continued but there was no subsequent discussion regarding the search or the suspected crime.

In the course of the search, officers found a garbage can in the garage with "a number of double and triple bagged bundles" in it. In those bundles "there were printed images of child pornography" and "a number of floppy disks, a number of CDs, videotapes, as well as a number of computer printouts of Mr. Paull's." The collection of child pornography totaled over 3,700 images, not including the video tapes. Agent Hagan took this evidence from the garage into the kitchen and laid it on the table in front of Paull, telling him that she no longer needed "to talk with [him] because ... [she] had the evidence there" and then left the kitchen. Paull immediately requested to speak with her and she returned to the kitchen.

Before Paull made any statement, Agent Hagan advised him again that he was not under arrest. She nevertheless informed him of his Miranda rights and gave Paull a statement and waiver of those rights, which he read and signed. He proceeded to give an oral statement taking responsibility for "all the items that were in the garage [and admitting] that they contained child pornography." He subsequently provided a written statement that memorialized his confession and explained his history of involvement with child pornography.

Paull was ultimately indicted on four counts of possession of child pornography under § 2252A(a)(2). Paull made a number of pre-trial motions, all of which the district court denied. First, he moved to suppress the evidence found under the Fourth Amendment. Paull argued that the search violated his Fourth Amendment rights because the warrant was based on an insufficient affidavit, and was overbroad. The court held that there was probable cause to search the entire premises based on the type of evidence and crime involved even considering the delay between the gathering of the warrant evidence and the search. In the alternative, the court held that there was "a good faith basis that the officers believe[d] that the magistrate was correct" and, therefore, the search fit within the exception of United States v. Leon.

Second, Paull argued that his confessions were obtained in violation of the Miranda rule. Both Paull and Mrs. Paull had testified that, after the initial conversation with Hagan, Paull was interrogated by multiple officers throughout the two-hour search, and that in response repeatedly requested legal counsel. The executing police officers testified to the contrary, claiming that there was no repeated interrogation and Paull never asked for counsel. The district court decided the credibility issue in favor of the officers, describing Paull's testimony as "completely not believable" and Mrs. Paull's testimony as "completely unbelievable." Even if the credibility issue came out the other way, the court held that the interaction was non-custodial because the police tactics were merely reasonable measures to ensure officer safety and did not rebut the presumption that conversations in the home are non-custodial.

Paull also moved to dismiss the indictment based on a vagueness challenge to § 2552 and his allegations that his right to a fair trial was violated. The district court rejected both as meritless.

Having failed to obtain suppression of the evidence against him or a dismissal of the charges, Paull entered a conditional plea of guilty on all four counts of the indictment, reserving his right to appeal any rulings on pre-trial motions and his eventual sentence. The agreement stipulated to an applicable offense level of 30, which included several enhancements based on the circumstances of the crime (enhancements of two levels for images containing a prepubescent minor, four levels for images portraying sadistic/masochistic conduct; two levels for the use of computer; and five levels for the possession of over 600 illegal images). The agreement also left open the possibility of additional reductions or enhancements to this agreed-upon offense level. To that end, the Pre-Sentence Investigation Report recommended two additional enhancements: two levels for obstruction of justice under U.S.S.G. § 3C1.1 and five levels for a pattern of activity involving the sexual abuse of a minor under U.S.S.G. § 2G2.2(b)(5). The report also recommended against a downward adjustment for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a) because of Paull's obstruction of justice. The addition of these adjustments yielded an offense level of 37 and a guideline range of 210 to 262 months of imprisonment.

At the sentencing hearing, the district court made findings of fact and adopted the report's recommendations. First, the court held that Paull had not demonstrated sufficient acceptance of responsibility to support a reduction because he only cooperated when it was in his best interest and because his behavior supported an obstruction of justice enhancement.

Indeed, the court held that two courses of behavior supported the upward adjustment for obstruction of justice. The court's credibility determination at the suppression hearing supported a finding that Paull perjured himself in giving his version of events. The court concluded that "it's pretty clear to me based on my observation of his demeanor and other testimony that was given at that hearing that he testified falsely." The court also found Paull had consistently "wiped the computer for the reason ... that he could be caught possessing this material...."

Third, the court held that the evidence supported the adjustment for a pattern of activity involving the sexual abuse of a minor. The court based this enhancement on allegations from Andrew Barry, a friend of Paull's son, that during the early and mid-80s, Paull molested him. The court relied on a letter sent from Barry to the United States Attorney's office and testimony from the probation officer assigned to the case that recounted telephone interviews with Barry and several of his family members and concluded the allegations were credible. The court rejected Paull's argument that only "live testimony from Andrew Barry" should be used.

The district court then sentenced Paull to 210 months in prison, the bottom of the guideline range for an offense level of 37. In doing so, the court rejected Paull's argument for downward variances based on his poor health, his on-going rehabilitation, and his own history of child sexual abuse. The court explained that "your age, your health, your lack of a criminal history under [18 U.S.C. §] 3553 are factors that the Court must and I have considered. I also consider the fact that there's mandatory minimum sentences in this case that are required." But in addition, § 3553 requires "taking into consideration the information ... about what happens to the victims...." The court emphasized that Paull demonstrated no "empathy, emotion, sorrow, compassion for those children, those thousands of children that are put in this position by people in a place of trust." The court concluded that because the § 3553(a) factors point in opposite directions, "the only fair thing to do is to sentence you within the guidelines."

II. Pre-Trial Motions¹

A

Paull advances two Fourth Amendment theories...