625 F.3d 170 (4th Cir. 2010), 08-5223, United States v. Hargrove

Docket Nº:08-5223.
Citation:625 F.3d 170
Opinion Judge:AGEE, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John E. HARGROVE, Defendant-Appellant.
Attorney:Tracy Weese, Shepherdstown, West Virginia, for Appellant. David J. Perri, Office of the United States Attorney, Wheeling, West Virginia, for Appellee. Sharon L. Potter, United States Attorney, Robert H. McWilliams, Jr., Assistant United States Attorney, Office of the United States Attorney, Wheel...
Judge Panel:Before TRAXLER, Chief Judge, and MOTZ and AGEE, Circuit Judges. Judge AGEE wrote the opinion, in which Chief Judge TRAXLER and Judge MOTZ concurred.
Case Date:November 19, 2010
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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625 F.3d 170 (4th Cir. 2010)

UNITED STATES of America, Plaintiff-Appellee,


John E. HARGROVE, Defendant-Appellant.

No. 08-5223.

United States Court of Appeals, Fourth Circuit.

November 19, 2010

Argued: Sept. 21, 2010.

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[Copyrighted Material Omitted]

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Tracy Weese, Shepherdstown, West Virginia, for Appellant.

David J. Perri, Office of the United States Attorney, Wheeling, West Virginia, for Appellee.


Sharon L. Potter, United States Attorney, Robert H. McWilliams, Jr., Assistant United States Attorney, Office of the United States Attorney, Wheeling, West Virginia, for Appellee.

Before TRAXLER, Chief Judge, and MOTZ and AGEE, Circuit Judges.

Affirmed by published opinion.

Judge AGEE wrote the opinion, in which Chief Judge TRAXLER and Judge MOTZ concurred.


AGEE, Circuit Judge:

John E. Hargrove appeals his convictions for attempted transfer of obscenity to a minor, in violation of 18 U.S. C. § 1470 (" Count I" ), transfer of child pornography, in violation of 18 U.S. C. § 2252A(a)(1) (" Count II" ), and attempted enticement of a minor, in violation of 18 U.S. C. § 2422(b) ( " Count III" ). Specifically, Hargrove asserts the district court should have suppressed statements he made to law enforcement officers because at the time he made them he was subject to a custodial interrogation and had not been informed of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Hargrove also contends his sentence is substantively unreasonable because the district court erred by considering that Hargrove exercised his right to a jury trial as a basis for the sentence imposed. For the reasons set forth below, we affirm the judgment of the district court.


For a period of several months, Hargrove communicated in internet chat rooms with two undercover law enforcement officers posing as underage females. During the same period, Hargrove also communicated with two actual underage females.1 The online conversations with the two undercover officers and one of the actual minors (" S.M." ) (collectively " the three minors" ) contained graphic sexual talk as Hargrove described in explicit detail how the three minors should prepare for their chats, how to behave throughout daily life, and how to " be ready for" their eventual meeting when the three minors would serve as Hargrove's sexual slaves. Hargrove asked the three minors to send him photos of each of them engaged in sexual acts and also sent them images depicting child pornography and various sexual activities involving bondage. As the discussions progressed, Hargrove made extensive plans with the three minors to coordinate how they would come live with him as " slave sisters," including coordinating financial and travel arrangements and asking them to each obtain the signature of her mother so that he could create false emancipation papers.

As the communications reached the point where Hargrove was attempting to arrange meeting the three minors in person, the Federal Bureau of Investigation (" FBI" ) obtained and executed a search

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warrant on Hargrove's residence in Bristol, Connecticut. Michael Chance, a computer crimes task force officer, was the lead investigating officer present during the January 5, 2007, execution of the search warrant. FBI Special Agent Cathy Shumaker was the senior officer assisting with the case, and was also present during the execution of the search warrant. In addition to overseeing the search, Agent Chance interviewed Hargrove, during which time Hargrove made a number of incriminating statements.

In July 2007, a federal grand jury in the Northern District of West Virginia indicted Hargrove on Counts I, II, and III.2 Hargrove initially negotiated a " binding" plea agreement with the Government. The agreement was structured so that Hargrove would plead guilty to Count III, the Government would dismiss the remaining charges, and the district court would impose the negotiated maximum sentence of 240 months' imprisonment. In the event the district court rejected the plea agreement, Hargrove was free to withdraw his guilty plea. Based on this plea agreement, Hargrove entered a guilty plea to Count III. The magistrate judge conducted a hearing pursuant to Rule 11 of the Federal Rules of Criminal Procedure and determined that Hargrove's plea was voluntarily and competently made.

After the preparation of a pre-sentence report (" PSR" ), but before the district court accepted the plea and sentenced him, Hargrove moved to withdraw the guilty plea.3 At the hearing on that motion, the district court granted Hargrove's request, explaining:

Normally under these circumstances I would not permit the defendant to withdraw the plea, but in this case the plea agreement that was entered into and tendered to the Court is a binding plea agreement with a binding sentence that is well below the Guideline sentence in this case. At the time I reviewed the [PSR], and assuming that those things in it are true, which, of course, if we have a trial will be up to the jury to determine, but if in fact those things are true, I had a real concern that the plea agreement as set forth did not provide for a-for a sufficient level of punishment.

Mr. Hargrove has now asked to withdraw his plea, which I would have to let him do if I refused to follow the plea agreement anyway since it is a binding plea. So, I will permit Mr. Hargrove to withdraw his plea of guilty.

(J.A. 77-78.) Prior to trial, Hargrove moved to suppress the statements he made during the January 5, 2007 search of his home, arguing that because the statements were obtained during a custodial interrogation and yet without the benefit of Miranda warnings, they should be excluded. A magistrate judge conducted a suppression motion hearing, at which Special Agents Chance and Shumaker, as well as Hargrove, testified.

Agent Chance testified that he and a team of between ten and fifteen law enforcement officers executed the search warrant on Hargrove's Connecticut residence shortly after 6:00 a.m. Approximately

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five of the officers were part of the entry team, and the rest-including Agent Shumaker-were located around the perimeter of the residence. Agent Chance could not recall who answered the door, but upon entering, the officers " cleared the residence making sure there was [sic] no officer safety issues, no weapons, making sure [they] identified all people on-scene and that ... [they] were safe." 4 (Supp. J.A. 20.) Agent Chance testified that he could not recall whether his service firearm was drawn or pointed at Hargrove upon entering the house, but he averred that some officers did have their firearms drawn during the initial entry and security sweep, consistent with standard protocol. 5

Agent Chance testified that he told Hargrove that he was not under arrest and was free to leave the house at any time. He then asked if Hargrove would speak with them and Hargrove agreed.6 Agent Chance and Hargrove then sat around Hargrove's kitchen table during the subsequent interview, with Hargrove dressed in his pajamas. Agent Shumaker was also present, standing in the doorway of the kitchen, but she did not question Hargrove. Neither Agent had an arrest warrant for Hargrove or had any intention of arresting him. According to both Agents (and Hargrove's own testimony), Hargrove was not in handcuffs, he was permitted to smoke cigarettes, and at no time did Hargrove ask for the interview to end or protest about any of the questions. Instead, the Agents testified Hargrove was " polite and cooperative," answering questions " at length," and indicating he was willing to talk further when the interview was finished. (Supp. J.A. 24-25.) Agent Shumaker also testified that " it was [a] relaxed" setting and Hargrove was cooperative throughout. (Supp. J.A. 49.) According to the Agents, Hargrove was not instructed to remain seated or forbidden from leaving the room and that he was " freely moving around" at times during the interview. (Supp. J.A. 51.) At one point in particular, Agent Shumaker observed him getting up to " deal[ ] with the cat, going back and forth from the door or something." (Supp. J.A. 51.) During the interview, Hargrove expressed interest in working with the police " undercover to help identify people that were pursuing children." (Supp. J.A. 26.) Hargrove was not read Miranda rights before or during the interview. 7

Hargrove's version of the search and subsequent interview differed in some respects from the Agents'. He testified that his daughter answered the door after the entire household was awakened by the officers banging on his front door. When he entered the living room, " an officer [was] standing there with what looked like an M-16, and there was a laser scope on it and it was pointed straight at me. I immediately

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threw my hands up in the air and said, ‘ I'm not armed.’ " (Supp. J.A. 75.) Hargrove testified he was directed to the kitchen, patted down, and told that Agent Chance had some questions to ask him. Hargrove claimed that his movement was restricted and he was not allowed to get cigarettes from the computer desk in his bedroom. He also testified he did not feel that he could leave the kitchen because Agent Shumaker " was actually standing in the doorway between the kitchen and the dining room" " blocking" the exit. (Supp. J.A. 76.) In addition, he claimed that at one point he asked to " get up and get [his minor] daughter and go out on the porch" to smoke, but he was not allowed to do so because his daughter was being interviewed by officers in another room. (Supp. J.A. 81.) Hargrove admitted that the officers' guns were not drawn while they were...

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