U.S. v. Schwarte

• Citation: 645 F.3d 1022
• Decision Date: 15 July 2011
• Docket Number: No. 09–3670.,09–3670.
• Parties: UNITED STATES of America, Appellee,v.Steven Jerome SCHWARTE, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

645 F.3d 1022

UNITED STATES of America, Appellee,

v.Steven Jerome SCHWARTE, Appellant.

No. 09–3670.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 10, 2011.Filed: July 15, 2011.

Gerald B. Feuerhelm, argued, Charles Kenville, on the brief, Des Moines, IA, for appellant.Craig Peyton Gaumer, AUSA, argued, Des Moines, IA, for appellee.Before BYE, BEAM, and SMITH, Circuit Judges.SMITH, Circuit Judge.

A jury convicted Steven Jerome Schwarte of one count of attempted sexual exploitation of children, in violation of 18 U.S.C. § 2251(a) and (c); one count of receipt of visual depictions of minors engaged in sexually explicit conduct, in violation of § 2252(a)(2); and one count of possession of visual depictions of minors engaged in sexually explicit conduct, in violation of § 2252(a)(4)(B). The district court ¹ sentenced Schwarte to 200 months' imprisonment on each of the first two counts and 120 months' imprisonment on the third count, with all sentences to run concurrently. On appeal, he challenges the district court's denial of his motion to suppress evidence, as well as the sufficiency of the evidence on each count. He also argues that his counsel provided ineffective assistance. We affirm.

I. Background

Between February and April 2007, Schwarte regularly communicated with a person whom he believed to be a 15–year–old girl named “Abby Smith” in a Yahoo! online chat room. In reality, “Abby” was an online alias for Naval Criminal Investigative Service (NCIS) Special Agent Megan Grafton, working undercover to find sexual predators online. Employing the username “jayschwarte,” Schwarte quickly turned the conversation to sexual topics.² On February 9, 2007, Agent Grafton enlisted the help of Virginia Delaney, who could change her voice to mimic a teenage girl. Delaney called Schwarte four times that day to confirm that Schwarte actually existed, was a male, and was the owner of the phone number provided to Abby during the online chat on February 6, 2007.

In most of their subsequent online conversations, Schwarte repeatedly requested Abby to send him sexually explicit images of herself. Initially, Schwarte simply asked Abby to send the pictures. Later, he offered to provide Abby with a sexually explicit photograph of himself in exchange for a sexually explicit photograph of her. In another conversation, when Abby explained that she would have to borrow a camera from a friend, Schwarte encouraged Abby to take explicit pictures with her friend. He then offered to provide Abby a camera and a laptop computer in exchange for the pictures. When Schwarte next chatted with Abby, he offered her a web camera and requested a video of a sexual encounter between Abby and her friend. Schwarte also asked Abby to send, among other things, a pair of her underwear.

In several of their online conversations, Schwarte also asked Abby to call him for sexual talk. On March 19, 2007, Schwarte sent Abby an offline instant message. He apologized for missing her phone call earlier in the night, indicating that he would not be home until approximately 11:00 p.m. He then gave Abby his mailing address in Dunlap, Iowa (“Dunlap address”). Agent Grafton received the message at 10:45 p.m. EST.

Around this time, NCIS informed the United States Postal Inspection Service (USPIS) of its investigation of Schwarte. With this information, on April 6, 2007, USPIS Inspector Nancy Harms–Werner filed an application and affidavit for an anticipatory search warrant for the residence at the Dunlap address. The affidavit described a proposed plan to make a controlled delivery of a package that Abby purportedly sent to the Dunlap address. The package contained a child-pornography videotape from the USPIS library and women's underwear. According to the affidavit, the controlled delivery of the package would serve as the triggering condition for the execution of the search warrant. The affidavit stated that, beginning April 9, 2007, the package would be “attempted to be delivered to Steven Schwarte or any other occupant” at the Dunlap address. If no one was at the Dunlap address to accept the package, delivery would be attempted again that day and subsequent days “up to the 10 days allowed by the requested search warrant.”

On April 9, 2007, at approximately 11:00 a.m., USPIS Inspector David Margritz went to the Dunlap address to make a controlled delivery of a package containing a child-pornography videotape and women's underwear, addressed to “Jay Schwarte.” Misty Frazier, Schwarte's adult niece, answered the door. ³ Inspector Margritz handed Frazier the package, and she told him that no one named “Jay Schwarte” lived at the address. Although there was conflicting testimony over whether Inspector Margritz asked Frazier if Jay Schwarte accepted mail at the Dunlap address, there was no dispute that Inspector Margritz placed the package in Frazier's hands and that Frazier extended her hands to take the package. After Inspector Margritz left, Frazier took the package inside and placed it on a desk.

Shortly thereafter, Inspector Margritz, Special Agent Robert Larsen, and other law-enforcement officials returned to the Dunlap address to execute the search warrant. Officers found Schwarte sleeping in an upstairs bedroom. They woke him and advised him of his Miranda rights, and Schwarte signed a Miranda waiver form. The officers asked Schwarte, in general terms, if he knew why they were at his residence, and Schwarte responded by asking if it “was about the 15–year–old girl from the Internet.” Inspector Margritz testified that Schwarte admitted to chatting online, using the screen name “jayschwarte” with a 15–year–old girl named Abby, and asking Abby to make and send sexually explicit images of herself.

Inspector Margritz also testified that when he opened the controlled-delivery package in front of Schwarte, Schwarte stated that the items in the package were the items he requested from Abby. Agent Larsen testified that Schwarte admitted that he had requested Abby to mail him her underwear and a sexually oriented video containing images of Abby and her friend. Agent Larsen also testified that Schwarte stated that he thought he was the only person at the Dunlap address who used Yahoo! or had access to “jayschwarte's” Yahoo! account. Upon the suggestion of Agent Larsen, Schwarte, still unaware of Abby's true identity, wrote an apology letter to Abby and her parents, apologizing and stating that he “should have told her it was just a joke” and that he “wasn't wanting her to go this far.”

A grand jury indicted Schwarte on one count of attempted sexual exploitation of children, in violation of 18 U.S.C. § 2251(a) and (e); one count of receiving visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2); and one count of possessing visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B). Before trial, Schwarte filed a motion to suppress, challenging the validity of the anticipatory search warrant and seeking to suppress all evidence obtained pursuant to the warrant and statements that he made on April 9, 2007.

After holding an evidentiary hearing, the district court denied Schwarte's motion to suppress. The court found that the anticipatory search warrant was valid because the triggering condition—the delivery of the package—had occurred. In making this finding, the court considered the testimony from Inspector Margritz, Frazier, and Alice. The court found “the routine and less confrontational version of events offered by Inspector Margritz to be more credible” than the versions offered by Frazier and Alice. The court also determined that, “[w]ithout force or trickery,” Inspector Margritz gave Frazier the package and Frazier took it. She did not “actively reject[ ]” the package. Because the delivery occurred, the anticipatory search warrant was valid.

At trial, Schwarte attempted to prove that he did not send some of the messages to Abby, including the message in which “jayschwarte” provided Abby with the Dunlap address. First, he called Sue Ator, an employee in charge of maintaining business records at CRT, Schwarte's place of employment. Ator testified that, based on Schwarte's payroll report, Schwarte was most likely working from 5:30 p.m. to 10:00 p.m. CST on March 19, 2007.⁴ Second, Schwarte called his niece, K.M., who testified that she had access to Schwarte's computer and Yahoo! account. She also testified that she asked Abby to send the sexually explicit videotape to the Dunlap address. K.M., however, admitted that she never spoke with Abby on the phone, and K.M. could not recall the details of her alleged conversations with Abby. Nevertheless, K.M. insisted that she specifically remembered providing the Dunlap address to Abby. Schwarte admitted that he initiated an online conversation with Abby but also testified that he chatted with her online only one time after his initial conversation with her.

At the close of the government's case and at the close of all evidence, Schwarte moved for a judgment of acquittal, which the district court denied. After the jury returned guilty verdicts on all three counts, Schwarte moved for a judgment of acquittal and for a new trial. The district court denied both motions.

Schwarte subsequently filed another motion for a new trial, under Federal Rule of Criminal Procedure 33(a) and (b)(1), based on newly discovered evidence. At an evidentiary hearing, Schwarte called two witnesses from CRT, a supervisor and an employee trainer, in an attempt to show that he did not have Internet access while at work on March 19, 2007—and thus could not have sent the offline message to Abby containing the Dunlap address. Both witnesses testified that CRT employees do not have Internet access on their work computers and are not allowed to use their cellular telephones while working. They both conceded, however, that...