U.S. v. Thoma, 83-1151

• Decision Date: 20 January 1984
• Docket Number: No. 83-1151,83-1151
• Citation: 726 F.2d 1191
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William L. THOMA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1191

726 F.2d 1191

UNITED STATES of America, Plaintiff-Appellee, v. William L. THOMA, Defendant-Appellant.

No. 83-1151.

United States Court of Appeals Seventh Circuit.

Argued Sept. 22, 1983.

Decided Jan. 20, 1984.

Terence E. Flynn, Chicago, Ill., for defendant-appellant.

James P. White, Asst. U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before PELL, COFFEY and FLAUM, Circuit Judges.

PELL, Circuit Judge.

Defendant Thoma was indicted on three counts of mailing obscene material for the purpose of sale, the production of which involved the use of a minor engaged in sexually explicit conduct, in violation of 18 U.S.C. Sec. 2252(a)(1). After an unsuccessful motion to suppress statements made during a search of defendant's home, defendant waived jury trial and presented defenses based on entrapment, outrageous Government conduct, and the Government's failure to prove all of the elements of a section 2252(a)(1) violation. The court rejected these claims, found defendant guilty and sentenced him to four years imprisonment and four years of probation. On appeal defendant again argues that his statements should have been suppressed, that he was entrapped into committing the crime, that he was the victim of outrageous Government conduct, and that the Government did not meet its burden of proof. We will deal with each of these claims in turn.

I Facts

During September of 1981, Postal Inspector John Ruberti created an undercover organization known as the "Crusaders for Sexual Freedom" (CSF), which he intended to use in investigating prohibited mailings of child pornography. CSF purported to be a clandestine organization made up of people who "believe we have the right to read what we desire and the right to be true hedonists." CSF's main function, however, was not philosophical, but rather involved printing and distributing coded advertisements through which its members could find means of gratifying their sexual desires, regardless of how bizarre.

On November 2, 1981, Ruberti sent a CSF test survey to defendant. The survey was preceded by a short text that expounded upon the group's philosophy and explained that CSF had received defendant's name from a mailing list. Defendant was instructed to disregard the letter if there had been a mistake in mailing it to him. Defendant had the option of returning the survey anonymously or of indicating his desire to join CSF by providing his name and address. Defendant did neither, and instead threw the survey away. The torn survey, parts of which had been filled out by someone, was found in defendant's garbage by the Downer's Grove Police Department, which was conducting a "trash cover" of defendant's residence.

Ruberti testified that he designed the survey to detect pedophiles, those who have an interest in minor-oriented, sexually-explicit material. Ruberti also intended the survey to reveal whether the pedophile used the mails to purchase material and whether he was a collector of this type of material. Ruberti sent the survey to defendant after receiving information that defendant was purchasing pedophilia through the mail and might be involved in producing pedophilia. Ruberti did not have any information indicating that defendant was involved in any prior prohibited mailings.

On November 24, 1981, Ruberti sent a copy of "CSF Friends" to defendant. This 8-page pamphlet contained questions from fictitious members, responses from the editorial staff, and ninety advertisements that covered a wide variety of sexual tastes. All of the material in "CSF Friends" had been authored by Ruberti. The pamphlet also contained a form for placing advertisements and instructions on how to answer an advertisement. Either to place or respond to the advertisements one needed a CSF code number, which defendant--as a nonmember--did not have. Ruberti received no response from defendant after this mailing.

On December 9, 1981, Ruberti mailed defendant a letter informing him that he had been sponsored for a free membership in CSF. Defendant filled out the accompanying membership form and returned it to Ruberti via the CSF post box. On December 21, Ruberti sent defendant a letter welcoming him to CSF and assigning him a code number. Defendant did not wait long to take advantage of his membership and soon submitted an advertisement seeking a photo session with "young pre-teen and early teenage boys and girls." Ruberti informed defendant that his advertisement would appear in a few weeks, and that he knew a young lady who might be of use to defendant in the meantime. Defendant did not respond to this suggestion.

Ruberti did not contact defendant again until March 16, 1982, when he sent out the next CSF newsletter. This pamphlet contained messages from "John, Editor of CSF Friends," "Kim, CSF Membership Director," and other nonexistent editors, as well as ninety advertisements, all authored by Ruberti. Defendant's advertisement, the only one not written by Ruberti, also appeared. Defendant responded to seven advertisements, placed two more advertisements seeking a relationship with a mother and children, and sent a letter to "Kim" asking how members were to know whether an advertisement had been placed by the police or if this would amount to entrapment.

Ruberti, writing as "Kim," responded to defendant's concerns about police involvement by stating that CSF was particular about who became a member and had not yet received any complaints. The day Ruberti mailed this letter to defendant, he received defendant's responses to six more advertisements. The following month defendant responded to 21 more advertisements.

Among the advertisements that defendant responded to was one that stated: "Collector would like to buy photos of teen and pre-teen girls." Defendant responded by offering to sell a video tape consisting of 500 photographs of teens and pre-teens. Defendant also expressed an interest in meeting the buyer and mentioned that he had "other material to trade or what have you." Ruberti asked Postal Inspector Truitt in St. Louis to respond to defendant's offer. Truitt sent defendant's asking price, $100, and defendant mailed the video tape. Following a similar scenario, defendant sent video tapes of children engaged in sexually explicit conduct to postal inspectors in Cleveland and Detroit. By June of 1982, Ruberti had been given a new assignment and Inspector Hagedorn had taken over the investigation. Hagedorn arrested defendant and executed a search warrant on June 25. During the search of defendant's house the police found a large amount of video equipment and a photo album containing photographs of minors engaged in sexually explicit conduct. Some of these photographs appeared in the video tapes sold by defendant.

II Suppression of Defendant's Statements

During the search of defendant's home a Detective Harrison entered the living room in which defendant was seated. Defendant asked Harrison if he had been involved in defendant's prior arrest for pornography. The detective replied that he had not, but defendant went on to explain that the "only reason he had gotten involved again was that money was tight." Defendant's house-mate then warned defendant not to say anything, and Harrison told defendant that this statement would be used against him. Defendant ignored these warnings and stated that he hoped that he would "get his video equipment returned so he could sell it and get out of the business." Defendant unsuccessfully moved to suppress these statements prior to trial, and now argues that the court erred in admitting them into evidence.

Defendant urges that these statements were the result of an illegal interrogation. Defendant claims that the officers followed a course of conduct designed to force defendant to speak despite his assertion of his right to remain silent. The factual predicate of this argument is as follows: Defendant was arrested at 7:00 a.m., and advised of his Miranda rights; defendant stated that he did not wish to make any statements; Inspector Sack nonetheless elicited background information from defendant; defendant spent the next four hours sitting in the living room with Sack and Inspector Schauber engaged in "small talk" about cameras and defendant's van; Detective Harrison entered the room and defendant began the conversation that led to the incriminating statements. These acts, claims defendant, were a subtle, sophisticated and successful attempt to establish a rapport with him that would induce him to make a statement.

It is clear that the inspectors could not interrogate defendant after he exercised his right to remain silent. Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694 (1966). It is equally clear that "interrogation" is not limited to direct questioning, but also encompasses "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980). Nonetheless, not all statements made by an accused who has announced his intention to remain silent are inadmissible; the accused is still free to change his mind and volunteer whatever information he chooses. Miranda 84 U.S. at 478, 86 S.Ct. at 1629. We agree with the district court that defendant's statements to Detective Harrison were volunteered rather than the product of interrogation.

Defendant would have us believe that the officers engaged in a sophisticated campaign to break down his will, the culmination of which was Harrison's entrance. We find this an unrealistic view of the events. There is no evidence that defendant's statements were triggered by Sack's questions regarding defendant's background, or by anything other than the entrance of Harrison, whom defendant thought he recognized from a previous encounter. It strains...