United States v. Ramos
| Decision Date | 02 July 2012 |
| Docket Number | Docket No. 10–4802–cr. |
| Citation | 685 F.3d 120 |
| Parties | UNITED STATES of America, Appellee, v. James RAMOS, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
OPINION TEXT STARTS HERE
Brenda K. Sannes, Assistant United States Attorney, of counsel, for Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse, NY, for Appellee.
Vivian Shevitz, Brooklyn, NY, for Defendant–Appellant.
Before: WINTER, RAGGI, and CHIN, Circuit Judges.
Defendant-appellant James Ramos appeals a judgment of the United States District Court for the Northern District of New York convicting him of receiving and possessing child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A), 2252A(a)(5)(B), 2256(8)(A), and 2256(8)(C). He argues, inter alia, that (1) his Fifth Amendment right against self-incrimination was violated because he was compelled as a parolee to make self-incriminating statements during a mandatory polygraph examination, and (2) the government failed to present sufficient evidence to prove he received or possessed child pornography in violation of federal law.
We AFFIRM.
Except as indicated, the following facts, drawn primarily from the evidence presented at the suppression hearing and the trial below, are not in dispute.
In 1990, Ramos was convicted in state court in Saratoga Springs, New York, of sexually abusing two sisters, ages ten and thirteen. After serving approximately fourteen years in prison, he applied in February 2003 for release on parole. In his application, he agreed to certain conditions of supervision, including permitting his parole officer to visit and search his residence and person, replying “promptly, fully and truthfully” to any inquiries from his parole officer, and “fully” complying with any instructions from his parole officer. He also agreed to refrain from “possess[ing], seek [ing] access to or remain[ing] near any pornographic materials.” The application was granted, and Ramos was released from custody to the supervision of the New York State Division of Parole in May 2003.
On March 5, 2008, Ramos's parole officer told him that two new conditions—polygraph testing and GPS monitoring—were being added to his conditions of supervision because of changes in the procedures for sex offenders on parole. Ramos complained to his parole officer that the addition of the conditions “violated his rights.” Ramos spoke with his parole officer several more times after March 5, 2008, and eventually agreed to participate in the polygraph examination, despite his initial reservations.
On April 4, 2008, Ramos went to the Probation Office for a polygraph test. He first signed several forms. In one, he agreed that “failure to answer questions regarding my conformance to parole ... conditions, in the discretion of the Parole Office and Polygraph Examiner, may be deemed as a failure to participate in a meaningful way and be submitted ... as a parole ... violation.” In another, he stated: In yet a third he acknowledged that:
5. Failure to fully cooperate and participate in any aspect of the polygraph examination session, including refusal to answer questions during the examination, may be grounds for violations of my parole.
6. Answers to questions during the polygraph examination session may be used in determining appropriate sanctions to be implemented by the Division of Parole, including a parole violation hearing. Additionally, admissions to criminal behavior will result in referral to appropriate law enforcement authorities for investigation and possible prosecution.
7. Any admission to criminal behavior during the polygraph session may be used against me in a court of law.
(Appellee's App. at 137 (emphases omitted)).
In an interview before the test was administered, Ramos told the polygraph examiner that he had viewed both pornography and child pornography on his computer via the internet, “at least somewhere between twelve and eighteen times since his release to parole supervision.” Ramos took the test, and the results were inconclusive. Afterwards, Ramos signed an “Admissions Form” in which he confirmed that he had viewed pornography and child pornography “on at least 12 to 18 different occasions,” on the internet in his home. Ramos's parole officer immediately imposed a new condition of parole forbidding Ramos from owning or operating a computer and using the internet.
After Ramos left, the parole officer reported Ramos's admissions to U.S. Immigration and Customs Enforcement (“ICE”) agents. The same day, April 4, 2008, two ICE agents went to Ramos's residence, a trailer home. They found him outside the trailer. They introduced themselves and said that they had information there might be child pornography on his computer. Ramos agreed to talk to them inside. The agents did not place Ramos under arrest, nor did they handcuff him. They asked him questions, and he admitted that he had a computer in his residence, he used the computer to access the Internet, he had searched for and viewed child pornography on the computer, and thus they would probably find child pornography on the computer.
At some point during the interview, the agents read Ramos his Miranda rights. 1 He signed two consent forms, one to a search of his residence and one to a search of his computer equipment. He refused to sign a third document. The agents then conducted a search and seized a desktop computer. As a forensic examination would later reveal, Ramos had used the computer to visit child pornography websites and view images of child pornography. One of the hard drives had deleted “cookie” files from websites with names indicative of sexual interest in minors. There were two deleted web pages with images that were not recoverable, but that bore the names “Lolita Photos” and “9–12yr Pics.” The hard drive had been used to conduct a Google search using words such as “twink,” which suggested a search for child pornography. One of the hard drives contained software called “Smart Protector Pro” that enabled a user to delete his browser history. There were some 140 images of child pornography in deleted space; the file names indicated these had been temporary internet files that had been deleted.
On November 20, 2008, a grand jury in the Northern District of New York indicted Ramos for knowingly receiving and possessing child pornography. The next day, ICE agents and two parole officers returned to Ramos's residence to arrest him. Again, he was outside the trailer. The officers asked him to step inside so that they could talk to him, and he agreed. Inside, the officers advised Ramos he was being arrested and handcuffed him. The parole officers conducted a sweep of the trailer to determine whether anyone else was present and to look for evidence of any parole violation. They saw computer equipment lying in plain view and discovered beneath the sheet of Ramos's bed a laptop computer that was halfway open. The parole officers opened the laptop, clicked on an icon, and found images of what appeared to be child pornography. The officers seized the laptop and obtained a warrant to search it further.
The laptop was manufactured in Korea and its hard drive was manufactured in Thailand. The hard drive had on it computer software called “Microsoft Picture It,” which permitted a user to alter images. The laptop contained images modified to appear as if children were engaged in sexually explicit acts. The original, unaltered images of two young girls, panties, and a penis—which had been used to create the altered image—were also found on the computer.
On March 13, 2009, a grand jury in the Northern District of New York returned a superseding indictment against Ramos charging him with two counts of receiving child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2256(8)(A), and two counts of possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B), 2256(8)(A), and 2256(8)(C). The two sets of possession and receipt charges referred, respectively, to the two computers seized on April 4 and November 21, 2008.
In September 2009, Ramos moved to suppress his statements to parole officers and the evidence seized during the searches resulting from his statements. The district court denied the motions from the bench on April 5, 2010, following an evidentiary hearing. With respect to Ramos's statements made during the polygraph examination, the district court held that the statements were admissible because Ramos was not in custody.2
Ramos proceeded to trial pro se, with advisory counsel. Following a three-day trial, the jury convicted Ramos on three counts of receiving and possessing child pornography.3
Ramos was sentenced on November 23, 2010. Because Ramos had previously been convicted of sexually abusing children, he was subject to a mandatory minimum sentence of imprisonment of fifteen years. See18 U.S.C. § 2252A(b)(1). The district court sentenced Ramos to the statutory minimum: a term of 180 months' imprisonment on each of the three counts, to be served concurrently.
This appeal followed.
Two principal issues are presented: (1) whether Ramos was compelled to incriminate himself during the polygraph examination in violation of his rights under the Fifth Amendment, and (2) whether the government presented sufficient evidence at trial to support Ramos's convictions for knowing receipt and possession of child pornography.
I. The Right Against Self-IncriminationA. Applicable Law
The Fifth Amendment provides that no person “shall be compelled in any criminal...
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