U.S. v. Ellyson
| Decision Date | 17 March 2003 |
| Docket Number | No. 00-4600.,00-4600. |
| Citation | 326 F.3d 522 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Ronald David ELLYSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Stephen Clayton Gordon, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. Dennis M. Duffy, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.
ON BRIEF:
Thomas P. McNamara, Federal Public Defender, Raleigh, North Carolina, for Appellant. John Stuart Bruce, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.
Before LUTTIG, MICHAEL, and TRAXLER, Circuit Judges.
Vacated and remanded by published opinion. Judge TRAXLER wrote the opinion, in which Judge LUTTIG and Judge MICHAEL joined.
Ronald Ellyson was convicted of possessing child pornography in violation of 18 U.S.C.A. § 2252A(a)(5)(B), (b)(2) (West 2000). Ellyson argues that law enforcement officers obtained the illicit pornographic material at issue through a constitutionally defective search of his residence. Ellyson also contends that the district court's jury instructions failed to comply with Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), thereby permitting the jury to convict him on unconstitutional grounds. Because the court's instructions were erroneous under Free Speech Coalition, we must set aside the verdict and remand the matter for further proceedings.
On September 11, 1998, officers from the Boiling Springs Lake Police Department in North Carolina received information that two larceny suspects were guests at a trailer owned by Ellyson. Officers knocked and then entered the trailer in hopes of arresting Nathan Rudolphsky, one of the suspects. According to Chief White, he asked Ellyson if the police could search the trailer for Rudolphsky and Ellyson agreed. Police found Rudolphsky asleep in a back bedroom with Angela Burr, a woman who was living in Ellyson's trailer at the time.
During the time that officers were in the trailer, they observed a marijuana bong in plain view in the living room. When asked if the trailer contained any drugs or more drug paraphernalia, Ellyson responded that it did not. According to the officers, Ellyson did not object to a search of the trailer for additional illegal drugs or items associated with such drugs. During a search of Ellyson's bedroom, officers located a binder notebook containing images of children engaged in sexual activity. Ellyson was arrested for possessing child pornography. At the request of police, Ellyson then directed officers to a closet where he kept a second notebook containing similar images. Officers also seized Ellyson's computer, as well as various videotapes, magazines, photographs, letters, and newspaper clippings belonging to Ellyson.
After Ellyson's arrest, Angela Burr continued to live in the trailer. For nearly two weeks after the September 11 search, Burr remained in contact with officers from the Boiling Springs Lake Police Department. Burr testified that various officers told her that if law enforcement officers searched the trailer again and J.A. 116, and if she "came across [anything illegal] that it would be" in her best "interest to turn it in or else [she] could be liable for it." J.A. 176.
On September 18, 1998, Burr visited Ellyson in jail. According to Burr, the purpose for her visit was to ask permission to continue living in the trailer while Ellyson was incarcerated. During their conversation, Ellyson inquired whether police officers had returned to conduct another search. When Burr responded that they had not done so, Ellyson told her that he had some computer diskettes that he wanted Burr to dispose of as soon as she returned to the trailer. Burr testified that she visited Ellyson of her own accord and that she was never asked to meet Ellyson or elicit any information from him on behalf of the police. The following day, Burr located a box containing several diskettes, letters, and more photographs; she also found a few computer diskettes in a night stand. On September 20, 1998, in light of what she had been told about any such material remaining in the trailer, Burr contacted police and turned over the materials.
Ellyson successfully moved to suppress the items obtained by police in their initial search on September 11. After an extensive evidentiary hearing, the district court granted Ellyson's motion as to the evidence obtained during the initial search. The court concluded that the officers' "opening of the door of Ellyson's trailer constituted a warrantless, nonconsensual entry into the residence" in violation of Ellyson's Fourth Amendment rights; that "[e]xigent circumstances did not justify the illegal entry into the home"; and "that Ellyson's consent to search subsequent to the illegal entry" did not purge "the taint of the original illegality." J.A. 614.
Ellyson also moved to suppress the evidence that Burr subsequently located and then turned over to authorities on September 20. There was evidence in the record before the district court that cast doubt on whether Burr was acting independently when she learned of and recovered the evidence that she eventually gave to police officers and that ultimately led to Ellyson's conviction. The district court, however, rejected Ellyson's argument that Burr was acting as an agent of the government and thus conducted an impermissible search when she located the computer disks and other items that she relinquished to the police. The court made a factual finding "that the police did not participate directly in obtaining the September 20 evidence," J.A. 626, and that "Burr's decision to turn over the items she found was motivated primarily by her desire to protect herself," J.A. 624. Thus, the court concluded that Ellyson failed to carry his burden of showing that Burr was acting as an agent of the government.
The case went to trial based on the evidence Burr gave police on September 20, 1998. This evidence included multiple images of an actual, identifiable minor engaged in explicit sexual conduct; however, there were many other images introduced for which there was no testimony that the minors depicted were actual children. The district court instructed the jury that the government was required to prove that Ellyson "knowingly possessed at least one visual depiction of an image ... he knew to be child pornography." J.A. 1568. In accordance with the Child Pornography Prevention Act of 1996 ("CPPA"), see 18 U.S.C.A. § 2256(8) (West 2000), the district court instructed the jury that "child pornography" was defined as "any visual depiction, including any photograph, film, video, picture, or ... computer-generated image ... of sexually explicit conduct, where the production of such visual depiction involves the use of a minor ... engaging in sexually explicit conduct; or such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct." J.A. 1570 (emphasis added). The court further instructed the jury that the government was required to prove that the images possessed by Ellyson "either had been mailed or shipped or transported in interstate or foreign commerce by any means, including computer." J.A. 1572. The jury returned a guilty verdict. At sentencing, the district court imposed a 78-month term of imprisonment, departing upward on the basis that Ellyson's criminal history category did not adequately reflect the likelihood that Ellyson would continue to commit crimes involving sexually deviant conduct with minors.
Ellyson filed this appeal, arguing that the district court erroneously concluded that law enforcement agents were not acting through Burr to conduct a search for additional evidence of child pornography and that the items turned over to police on September 20 should have been suppressed. Initially, Ellyson contended that the government failed to establish an interstate commerce nexus to his possession of the images involving actual minors. Ellyson claimed that his possession of the remaining images, which did not definitively involve the use of actual children, could not be constitutionally prohibited. Although Ellyson acknowledged that his argument was contrary to circuit precedent at the time he filed his appeal, see United States v. Mento, 231 F.3d 912 (4th Cir. 2000), vacated, 535 U.S. 1014, 122 S.Ct. 1602, 152 L.Ed.2d 617 (2002), he urged us to follow the view of the Ninth Circuit in Free Speech Coalition v. Reno, 198 F.3d 1083, 1097 (9th Cir.1999), which the Supreme Court affirmed, that the definition of "child pornography" under § 2256(8)(B) was unconstitutional to the extent that it proscribed possession of an image that "appears to be[] of a minor engaging in sexually explicit conduct." 18 U.S.C.A. § 2256(8)(B). Because the Supreme Court had already granted certiorari to address this issue, we held this appeal in abeyance pending the Court's decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002).
First, we consider Ellyson's argument that the district court was in error when it concluded that no agency relationship existed between Burr and the government for Fourth Amendment purposes and denied his motion to suppress the evidence given to police by Burr. We review the factual findings underlying the district court's denial of a pretrial motion to suppress for clear error, and the court's legal determinations de novo. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); United States v. Seidman, 156 F.3d 542, 547 (4th Cir.1998). We review the evidence in the light most favorable to the government. See Seidman, 156 F.3d at 547.
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