669 F.3d 645 (6th Cir. 2012), 08-5774, United States v. Evers

Docket Nº:08-5774.
Citation:669 F.3d 645
Opinion Judge:GRIFFIN, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ovell EVERS, Sr., Defendant-Appellant.
Attorney:Randolph W. Alden, Office of the Federal Public Defender, Memphis, Tennessee, for Appellant. Dan L. Newsom, Assistant United States Attorney, Memphis, Tennessee, for Appellee. Randolph W. Alden, Office of the Federal Public Defender, Memphis, Tennessee, for Appellant. Dan L. Newsom, Assistant Uni...
Judge Panel:Before: GRIFFIN and WHITE, Circuit Judges; WATSON, District Judge. [*]
Case Date:February 10, 2012
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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669 F.3d 645 (6th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ovell EVERS, Sr., Defendant-Appellant.

No. 08-5774.

United States Court of Appeals, Sixth Circuit.

February 10, 2012

Argued: July 28, 2011.

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ARGUED:

Randolph W. Alden, Office of the Federal Public Defender, Memphis, Tennessee, for Appellant.

Dan L. Newsom, Assistant United States Attorney, Memphis, Tennessee, for Appellee.

ON BRIEF:

Randolph W. Alden, Office of the Federal Public Defender, Memphis, Tennessee, for Appellant.

Dan L. Newsom, Assistant United States Attorney, Memphis, Tennessee, for Appellee.

Before: GRIFFIN and WHITE, Circuit Judges; WATSON, District Judge. [*]

OPINION

GRIFFIN, Circuit Judge.

Defendant Ovell Evers, Sr., appeals his jury convictions and sentence on two counts of production of child pornography, in violation of 18 U.S.C. § 2251(a); one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B); and one forfeiture count under 18 U.S.C. § 2253. The convictions stem from Evers' sexual assault and exploitation of his thirteen-year-old niece.

Evers challenges (1) the district court's denial of his motions to suppress evidence; (2) the district court's award of restitution to the victim's legal guardian for lost income and child care expenses; (3) the forfeiture of one of two seized computers; (4) the substantive and procedural reasonableness of his within-Guidelines sentence of 235 months of imprisonment; and (5) certain special conditions of supervised release.

For the reasons set forth below, we vacate in part the judgment of the district court insofar as it ordered the forfeiture of a beige computer and the payment of $140 in restitution for child care expenses to the victim's legal guardian. We decline to consider, as premature, Evers' challenge to the special conditions of his supervised release. In all other respects, we affirm Evers' conviction and sentence, and remand the case to the district court for further proceedings consistent with this opinion.

I.

On January 14, 2007, defendant's son, Ovell Evers, Jr. (" Junior" ), notified the Memphis, Tennessee, Police Department that his thirteen-year-old female cousin, M.E., reported to him that defendant Evers performed oral sex on her on two occasions in December 2006 and took photographs of her private parts while she posed in sexual positions wearing bikini underwear. M.E. advised Junior, her legal guardian, that the photos were taken with a silver Kodak camera and stored on Evers' computer. Evers told Junior about some still photos of M.E. and her siblings that Evers had downloaded on his computer, and when Junior opened the file with the pictures, he saw a movie of M.E. that was sexually suggestive in nature. Evers babysat on a regular basis for M.E., her minor brother, and Junior's son, while Junior was at work.

On January 19, 2007, police officers obtained a search warrant, which authorized a search of Evers' Memphis residence for

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a digital camera, photos, personal computer, and computer accessories. With the assistance of agents from the Federal Bureau of Investigation, the officers executed the warrant in the presence of Evers, who signed a consent-to-search form giving the officers permission to search the premises.

Evers told the officers that he owned two computers— a beige Ultra 52X Max and a black Ultra DO206— which he purportedly used for his pest-control business, to pay bills, and to save family photos taken on his Kodak digital camera. Officers found the computers in Evers' bedroom, and a cursory on-site view of the contents of the black computer indicated that Evers had deleted images prior to the search. However, in the " my document" folder, there was a photograph of a minor female wearing a t-shirt and pink pajamas posing with her back to the camera. Evers identified the girl as M.E. and told the officers that he took the photograph in order to show the length of M.E.'s hair to other people. Evers claimed that the only other photograph he ever took of M.E. was with her family. Evers also told the officers that he used his Kodak digital camera to videotape M.E. sitting at the computer and dancing at Junior's house. Evers denied that he had images of M.E. dressed in bikini underwear on his computer or in his house, and he insisted that M.E. and Junior were making false allegations against him.

The officers asked Evers several times if he wanted to cooperate with the investigators; however, he responded that he had no additional information and requested a lawyer. The officers confiscated Evers' two computers, a silver Kodak digital camera and docking station, and several DVDs. A subsequent off-site search of the black computer by a computer forensics agent revealed eighty-two images of M.E., of which approximately forty were sexually explicit images of M.E. in her underwear.

In February 2007, following a federal grand-jury investigation, Evers was charged with two counts of production of child pornography, one count of possession of child pornography, and one forfeiture count, pursuant to 18 U.S.C. §§ 2251(a), 2252(a)(4)(B), and 2253, respectively.1 Evers moved to suppress all evidence obtained during the search of his residence. Following a suppression hearing, the district court found Evers' written consent to search to be invalid because, as conceded by the government, Evers' made a contemporaneous request for an attorney at the time he signed the consent. However, the court denied Evers' motions to suppress in all other respects, holding that there was probable cause to issue the warrant, the warrant was sufficiently particular in its description of the items to be seized, and the search was reasonable and not unlawfully overbroad. The case proceeded to trial, culminating in a jury verdict of guilty on all counts.

On June 9, 2008, the district court sentenced Evers to 235 months of imprisonment, at the bottom of the recommended Guidelines range of 235 to 293 months' incarceration. In addition to the standard conditions of a ten-year period of supervised release, the court also set thirteen special conditions, assessed a $300 fine, required the forfeiture of the property listed in the indictment, and ordered restitution in the amount of $1,640 for Junior's lost wages and child care expenses incurred in his role as the legal guardian of M.E. Evers now timely appeals.

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II.

Evers first challenges the district court's denial of his motions to suppress the evidence. " When reviewing the denial of a motion to suppress, we review the district court's findings of fact for clear error and its conclusions of law de novo, considering the evidence in the light most favorable to the government." United States v. Richards, 659 F.3d 527, 536 (6th Cir.2011). " We review de novo a district court's determination of particularity." Id. " ‘ The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure.’ " Id. (quoting Rakas v. Illinois, 439 U.S. 128, 130 n. 1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)).

The Tennessee state court issued the search warrant on the basis of an affidavit submitted by Sergeant I.L. Beck, Sr., a veteran Memphis police officer. In his affidavit, Beck recounted in detail the information provided by Junior about Evers' alleged sexual and pornographic acts with M.E. using his camera and computer, and requested " that a warrant issue to search the person and premises of the said 3014 Johnson Ave ... where he ... believes said Digital Camera, Photo's [ sic ], Personal Computer and accessories ... are now possessed, contrary to the Laws of the State of Tennessee." (Emphasis removed.) The resultant search warrant stated:

Proof by affidavit having been made before me ... [t]hat there is probable cause for believing that the Laws of the State of Tennessee have been and are being violated by Ovell Evers by having in his/her possession Digital Camera, Photo's [ sic ], Personal Computer and accessories. Contrary to the Laws of the State of Tennessee, upon the following described property, to-wit: 3014 Johnson Ave.... [s]ituated in Shelby County, Tennessee; you are therefore commanded to make immediate search of the person and premises herein described for the following property: Digital Camera, Photo's [ sic ], Personal Computer and accessories. And if you find the same, or any part thereof, to bring it forthwith before me, at my office, in Memphis, of said County and State.

(Emphasis removed.)

The Fourth Amendment protects the " right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" and provides that " no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. CONST. amend. IV. " The warrant process is primarily concerned with identifying what may be searched or seized— not how— and whether there is sufficient cause for the invasion of privacy thus entailed." United States v. Upham, 168 F.3d 532, 537 (1st Cir.1999). Therefore, " items to be seized pursuant to a search warrant must be described with particularity to prevent the seizure of one thing under a warrant describing another in violation of the Fourth Amendment," the purpose being " to prevent general searches by requiring a neutral judicial officer to cabin the scope of the search to those areas and items for which there exists probable...

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