U.S. v. Estey

• Citation: 595 F.3d 836
• Decision Date: 19 February 2010
• Docket Number: No. 09-1950.,09-1950.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jacob Benjamin ESTEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

595 F.3d 836

UNITED STATES of America, Plaintiff-Appellee, v. Jacob Benjamin ESTEY, Defendant-Appellant.

No. 09-1950.

United States Court of Appeals, Eighth Circuit.

Submitted: January 14, 2010.

Filed: February 19, 2010.

Bernard John Burns, III, argued, AFPD, Des Moines, IA, for appellant.

Craig Payton Gaumer, argued, AUSA, Des Moines, IA, for appellee.

Before MURPHY and BYE, Circuit Judges, and GOLDBERG,¹ Judge.

GOLDBERG, Judge.

Defendant-Appellant Jacob Estey ("Estey" or "defendant") was convicted of one count of receipt of visual depictions of minors engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2), and one count of possession of visual depictions of minors engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B). He was sentenced to 210 months imprisonment. On appeal, Estey argues the district court² erred in declining his motions to suppress, and abused its discretion in denying his motion for a new trial. He also contests the sentence imposed. We affirm.

I. Background

A computer crime investigation unit in Spain informed the Federal Bureau of Investigation ("FBI") of computer IP addresses in the United States that were sharing child pornography using eDonkey and eMule peer-to-peer file-sharing software. One of the addresses matched the Des Moines residence of Estey. FBI Special Agent David Larson ("Larson") was assigned to work the suspected child pornography investigation in Des Moines. Larson obtained and executed a search warrant of Estey's residence.

During questioning, Estey admitted to FBI agents that he had copied programs containing child pornography onto disks when he disposed of his brother's computer and loaded the contents of the disks onto his own computer. Larson testified that Estey also admitted to going online and using the file-sharing software to collect child pornography. Images were found in the shared folder of the file-sharing software, allowing others to access the images on the internet. Photographs on Estey's computer corresponded to images discovered by the Spanish investigation unit. Hard drives and computer disks seized during the search of the residence revealed images of child pornography.

II. Discussion

A. The district court did not err in denying the motions to suppress.

Estey moved to suppress evidence on two grounds. First, he argued that his confession was elicited in violation of the Fifth Amendment; and, second, that the probable cause for the search warrant for his residence was stale, in violation of the Fourth Amendment. The district court did not err in denying both motions to suppress.

Estey contends that his confession was involuntary because it was obtained by a promise of leniency from law enforcement officers. Whether a confession was voluntary is a question of law subject to de novo review, but factual findings underlying a district court's decision are reviewed under a clearly erroneous standard. United States v. Kilgore, 58 F.3d 350, 353 (8th Cir.1995). "The test for determining the voluntariness of a confession is whether the police extracted the confession by threats, violence, or direct or implied promises, such that the defendant's will was overborne and his capacity for self-determination critically impaired." United States v. Gannon, 531 F.3d 657, 661 (8th Cir.2008) (internal quotations omitted). Courts examine the totality of the circumstances in making this assessment. Id.

The record indicates that Estey's interview, including his confession, was voluntary. FBI agents appropriately advised Estey of his rights prior to a noncustodial interview. Estey was told that he did not have to speak with the FBI if he chose not to do so, that he had the right to refuse to answer all or any particular question, and that he was free to leave. The practice of agents providing such advice is a proper method to ensure that a noncustodial interview is not misinterpreted as a custodial interrogation and to avoid Miranda problems. See United States v. Bordeaux, 400 F.3d 548, 559-60 (8th Cir. 2005).

Estey's claim appears based on the notion that he misunderstood the assurance of FBI agents that he was not under arrest at that time, nor would he be under arrest at the end of the interview, to be an offer of total immunity. However, these statements were clearly not a promise of total immunity nor were they an assurance precluding future prosecution. In fact, during the interview, Estey asked the FBI how much prison time he could expect to serve, indicating that he did not understand the statement as a promise of total immunity. Estey does not cite to any other conduct, expressed or implied, suggesting his will was overborne and he was coerced to confess. In short, the totality of the circumstances do not indicate that Estey's will was overborne by the conduct of the law enforcement agents. Therefore, the district court properly denied the motion to suppress the confession.

Estey also challenges the district court's denial of his motion to suppress evidence seized during the search of his residence. In a suppression hearing, the district court ruled that the five-month delay prior to executing the warrant did not render the warrant invalid. The district court based its ruling on prior court decisions and FBI testimony explaining that child pornographers commonly retain pornography for a lengthy period of time. As further justification for its decision, the court added that individuals in a one-story house are unlikely to either move or replace computers within such a short span; there was, therefore, only a minuscule possibility that no illicit images would be found on the computer. On appeal, Estey argues that the district court erred because the search warrant was based on stale information and therefore lacked probable cause. "We examine the factual findings underlying the district court's denial of the motion to suppress for clear error and review de novo the ultimate question of whether the Fourth Amendment has been violated." United States v. Williams, 577 F.3d 878, 880 (8th Cir.2009), citing United States v. Walsh, 299 F.3d 729, 730 (8th Cir.2002).

Probable cause for a warrant search "exists if there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Hartje, 251 F.3d 771, 774 (8th Cir.2001). "A warrant becomes stale if the information supporting is not sufficiently close in time to the issuance of the warrant and the subsequent search conducted so that probable cause can be said to exist as of the time of the search." United States v. Brewer, 588 F.3d 1165, 1173 (8th Cir. 2009) (internal quotations omitted). "There is no bright-line test for determining when information is stale ... time factors must be examined in the context of a specific case and the nature of the crime under investigation." United States v. Summage, 481 F.3d 1075, 1078 (8th Cir. 2007). The factors in determining whether probable cause has dissipated, rendering the warrant fatally stale, "include the lapse of time since the warrant was issued, the nature of the criminal activity, and the kind of property subject to the search." United States v. Gibson, 123 F.3d 1121, 1124 (8th Cir.1997).

We agree with the district court's determination that the information in the search warrant was not stale. While Estey is correct to note there are outer limits to the use of such evidence, this case involves a search warrant issued five months after discovering information linking the defendant's residence with child pornography. This Court, and others, have held that evidence developed within several months of an application for a search warrant for a child pornography collection and related evidence is not stale. See, e.g., United States v. Horn, 187 F.3d 781, 786-787 (8th Cir.1999) (warrant not stale three or four months after child pornography information was developed); United States v. Davis, 313 Fed.Appx. 672, 674, (4th Cir. 2009) (holding that information a year old is not stale as a matter of law in child pornography cases); United States v. Hay, 231 F.3d 630, 636 (9th Cir.2000) (warrant not stale for child pornography based on six-month old information); United States v. Lacy, 119 F.3d 742, 745-46 (9th Cir.1997) (warrant upheld for child pornography based on ten month old information). Furthermore, in denying Estey's motion, the district court noted that this Court has acknowledged similar observations to the FBI agent's statements about the habits of child pornography collectors. See United States v. Chrobak, 289 F.3d 1043, 1046 (8th Cir.2002). Meanwhile, Estey does not offer evidence contrary to the FBI statements regarding the habits of child pornography collectors. Given the circumstances of the case and the nature of the crime, the execution of the warrant five months after the development of the information did not render the warrant deficient in any respect based on stale information. Estey's motion to suppress was properly denied.

B. The district court did not abuse its discretion in denying Estey's motion for a new trial.

Estey also contests the district court's denial of his motion for a new trial. Estey's motion relates to the conduct of a juror during voir dire. The juror in question was a frequent contributor to the website ratemybody.com. The website positions itself as a dating website and allows people to rate people's attractiveness. It does not mention or allude to pornography or obscenity. The website contains a public bulletin board where members can discuss a variety of topics of general interest.

To obtain a new trial due to juror dishonesty during voir dire, "a party must first demonstrate that a juror failed to answer honestly a material question on voir dire and then further show that a correct response would have provided a valid basis for challenge for cause." McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct....