U.S.A v. Alfaro-moncada

• Decision Date: 27 May 2010
• Docket Number: No. 08-16442.,08-16442.
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Hilario ALFARO-MONCADA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

607 F.3d 720

UNITED STATES of America, Plaintiff-Appellee,v.Hilario ALFARO-MONCADA, Defendant-Appellant.

No. 08-16442.

United States Court of Appeals Eleventh Circuit.

May 27, 2010.

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Margaret Y. Foldes, Asst. Fed. Pub. Def., Kathleen M. Williams, Fed. Pub. Def., Miami, FL, for Defendant-Appellant.

Suzan H. Ponzoli, Anne R. Schultz, Emily M. Smachetti, Miami, FL, for U.S.

Appeal from the United States District Court for the Southern District of Florida.

Before CARNES and HULL, Circuit Judges, and LAWSON,^* District Judge.

CARNES, Circuit Judge:

A lot of child pornography cases come through our court, and most of them present fairly routine issues. This one, however, brings in tow a Fourth Amendment issue with important implications for the national security of the United States. When a foreign cargo vessel enters this country and is subject to a border search, may the cabins of its crew members be searched for contraband without reasonable suspicion?

I.

On April 16, 2008, the MV RIO MIAMI, a foreign cargo ship, docked at the Antillean Marine inside Miami, Florida after traveling from the Dominican Republic. The Antillean Marine is located approximately three miles inland on the Miami River. It was the ship's first port of entry into the United States. A couple of hours after the ship came into this country, officials with United States Customs and Border Protection, which is part of the Department of Homeland Security, went on board the ship to conduct an agricultural re-boarding.¹ The purpose of an agricultural re-boarding, or at least the primary purpose of the one in this case, is to inspect a ship for prohibited agricultural materials, including seeds.²

The re-boarding of the RIO MIAMI was performed by a group of Customs and Border Protection officials called the Agricultural Enforcement Team. Among its seven members were five people trained in detecting threats to agriculture: three agricultural specialists, including Specialist Luis Meyer, plus a senior agricultural officer and a supervisor. The other two members were Customs and Border Protection officers, one of whom was Officer Ernesto Quiñones.³ The Team met with the captain of the RIO MIAMI and told him that they would be inspecting the ship from bow to stern. After the Team inspected the bridge, Specialist Meyer and Officer Quiñones went below to inspect the crew members' cabins. The captain, who was with them, had a master key that unlocked the cabins, which were arranged like hotel rooms-one right beside another. The captain went from cabin to cabin, unlocking and opening each door so that the cabins could be searched. The master key would not open the cabin of Hilario Alfaro-Moncada, a citizen of El Salvador, who was the ship's cook.

While Specialist Meyer and Officer Quiñones waited in the hall, the captain went and got Alfaro-Moncada who unlocked his cabin door with his key and opened it. Specialist Meyer asked Alfaro-Moncada if the cabin was his, if he owned everything in it, and if Meyer could inspect it. After Alfaro-Moncada answered “yes” to all three questions, Meyer entered the cabin and began inspecting it.⁴

Alfaro-Moncada's cabin was small and its only furniture was a couch, bed, and desk. Specialist Meyer started his inspection on the left side of the cabin where the couch was located. He searched some luggage and sifted through some clothes that were strewn on the couch. Finding nothing of interest, Meyer moved on to Alfaro- Moncada's bed, which was positioned in the center of the cabin. Meyer lifted the mattress and rummaged through some drawers running down the side of the bed. Again finding nothing of interest, he moved on.

Specialist Meyer's efforts then focused on Alfaro-Moncada's desk, which was located to the right of the bed and had a DVD player sitting on top of it. Meyer searched the top of the desk and then opened the desk's only drawer. Inside the drawer were cases for CDs and DVDs. Meyer took some of them out of the drawer and began examining them. He looked at the covers of the cases. One of the DVD covers caught his attention because on that cover were ten images of what appeared to be young girls engaging in a variety of sexual acts. Suspecting that the images were child pornography, Meyer called for Officer Quiñones who by that time had started searching another crew member's nearby cabin.

When Officer Quiñones arrived, Specialist Meyer handed him the DVD case and Quiñones examined it. Quiñones then asked Alfaro-Moncada whether it belonged to him and whether he knew what was on the DVD inside. Alfaro-Moncada admitted that it was his and that he knew there was pornography on the DVD and when asked what kind of pornography, he said “little girls.” Quiñones got Alfaro-Moncada's permission to watch the DVD, but then continued the search of the desk drawer that Meyer had begun. He found a second DVD case that depicted young girls engaging in sex acts. The title of that DVD was “Vacanales del Porno,” which translates to “Porno Parties.” The actual DVD inside the case had Alfaro-Moncada's initials-“H.A.M.”-on it, as well as “del X,” which translates to “triple X.”

After finding the second DVD, Officer Quiñones asked Alfaro-Moncada if it also belonged to him and if Quiñones could watch it. Alfaro-Moncada again answered “yes” to both questions. Quiñones then used Alfaro-Moncada's player to watch portions of both DVDs and confirmed that they contained child pornography. After that, Alfaro-Moncada's cabin was secured and he was taken into custody.

II.

A grand jury sitting in the Southern District of Florida returned an indictment charging Alfaro-Moncada with possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). Two weeks after being indicted, he filed a motion to suppress the DVDs and his statements about them, contending that the search of his cabin had violated his Fourth Amendment rights. After conducting an evidentiary hearing, a magistrate judge reported that the search of Alfaro-Moncada's cabin was a routine border search requiring no level of suspicion and recommended that the suppression motion be denied. The district court adopted the magistrate judge's report and recommendation and denied the motion.

III.

Alfaro-Moncada's trial took only a day. The government presented the testimony of Specialist Meyer and Officer Quiñones and introduced into evidence, among other things, five still images taken from the DVDs. Alfaro-Moncada objected to the images' admission, protesting that he had stipulated that the DVDs contained child pornography.

Alfaro-Moncada took the stand and testified that he bought both DVDs at a flea market in Colombia. An apparently indiscriminate shopper, Alfaro-Moncada claimed that he purchased the DVDs without knowing what they were or really looking at them. He said that it was not until he got back to the ship and watched parts of them that he realized that they contained child pornography. Once he realized what they were, he tossed them in his desk drawer planning to throw them overboard later. He testified that the reason he never got rid of the DVDs was that he had gotten busy, rough seas had made him ill, and he had forgotten about them. Rejecting Alfaro-Moncada's story, the jury found him guilty as charged of possession of child pornography.

At sentencing, the district court determined that Alfaro-Moncada's base offense level was 18. See U.S.S.G. § 2G2.2(a)(1). That was enhanced two points because the DVDs depicted children under the age of twelve see § 2G2.2(b)(2), four points because the DVDs portrayed “sadistic or masochistic conduct or other depictions of violence,” see § 2G2.2(b)(4), and five more points because the DVDs contained more than 600 images of child pornography see § 2G2.2(b)(7)(D). The result was a total offense level of 29. Because he had no criminal record, Alfaro-Moncada had a criminal history category of I. See U.S.S.G. Ch. 5 Pt. A. The resulting guidelines range was 87 to 108 months imprisonment. See id. The district court imposed a sentence of 87 months in prison and 10 years of supervised release.

IV.

Alfaro-Moncada contends that: (1) his motion to suppress should have been granted because the search of his cabin violated his Fourth Amendment rights; (2) there was insufficient evidence to support his conviction; (3) the district court erred in allowing the government to show five still images from the DVDs to the jury after he had stipulated that they contained child pornography; and (4) his 87-month sentence is unreasonable.

A.

Searches conducted at the border are analyzed in two steps. See United States v. Ramsey, 431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977). The first step is to determine if the search was authorized by statute see id. at 611-15, 97 S.Ct. at 1976-78, and, if so, the second step is to decide if the search was reasonable under the Fourth Amendment see id. at 615-16, 97 S.Ct. at 1978.

The government contends that the Agricultural Enforcement Team was authorized by 19 U.S.C. § 1581(a) to search Alfaro-Moncada's cabin. That statute provides that any “officer of the customs” may “at any time go on board of any vessel ... at any place in the United States” and “search the vessel ... and every part thereof.” 19 U.S.C. § 1581(a). An “officer of the customs” includes “any officer of the United States Customs Service ... or any agent or other person ... authorized by law ... to perform any duties of an officer of the Customs Service.” Id. § 1401. The Homeland Security Act of 2002 transferred all customs functions, with the exception of certain revenue-related ones, to the Department of Homeland Security. See 6 U.S.C. §§ 203(1), 212(a)(1). Customs border activities are now performed by United States Customs and Border Protection, which is part of the Department of Homeland Security. See Ruth Ellen Wasem, Cong. Research Serv Border Security: Inspections Practices, Policies,...