U.S. v. Fisk

• Decision Date: 27 March 2003
• Docket Number: No. 00-20044-BC.,00-20044-BC.
• Citation: 255 F.Supp.2d 694
• Parties: UNITED STATES of America, Plaintiff, v. Clarence Daniel FISK, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

255 F.Supp.2d 694

UNITED STATES of America, Plaintiff, v. Clarence Daniel FISK, Defendant.

No. 00-20044-BC.

United States District Court, E.D. Michigan, Northern Division.

March 27, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert A. Betts, Caro, MI, for Defendant.

Janet L. Parker, U.S. Attorneys Office, Bay City, MI, for U.S.

ORDER DENYING DEFENDANT'S MOTIONS TO QUASH SEARCH WARRANT AND SUPPRESS EVIDENCE

LAWSON, District Judge.

This matter is before the Court on the defendant's motions to dismiss the superseding indictment ("indictment"), and to quash a search warrant and to suppress evidence obtained pursuant to the search warrant. The indictment charges the defendant with various counts of violating federal statutes prohibiting the receipt and possession of child pornography; the government also seeks to forfeit property in connection with this activity. The defendant contends that counts 1 and 2 of the indictment are insufficient because they charge offenses defined by a portion of a federal statute that has been declared unconstitutional, charging both receiving and possession of the same material in separate counts is either duplicitous or multiplicitous, the statute forming the basis of the charge in court 4 is overbroad and therefore unconstitutional, and the forfeiture count is defective because it does not allege that the defendant has an interest in the property to be forfeited and it relies on an unconstitutional statute. The defendant also argues that the search warrant is overbroad and violates the Fourth Amendment. The Court disagrees with all of the defendant's contentions and will deny all of the motions.

I.

In 1999 and 2000, Mark Langenderfer, an agent with the United States Custom Service, along with other U.S. Customs agents, conducted an undercover investigation involving child pornography over the Internet and discovered a web site operated by Sergey Shibaev in Moscow, Russia that sold "hard core" and "soft core" child pornography. The pornography could be purchased by wiring $100 to Shibaev via Western Union. The United States Customs Service served a subpoena upon Western Union and obtained a detailed transaction report showing the names of individuals who were wiring money to Shibaev. The report showed that the defendant, Clarence Daniel Fisk of 504 Cass Avenue in Bay City, Michigan, had wired $100 to Shibaev on February 5,1999.

Langenderfer conveyed this information to Jane F. Smith, a child protective services worker working for the Michigan Department of Social Services in Bay County, Michigan. Ms. Smith learned that the defendant previously had been convicted of second-degree criminal sexual conduct arising from an incident involving a six-year-old boy. Together with agent Langenderfer, Smith prepared an affidavit in support of a request for a search warrant to search the defendant's home. In her affidavit, Smith stated that she has experience and training in criminal deviant sexual behavior and has been qualified as a child sexual abuse expert. Ms. Smith included a lengthy list of property in her affidavit that she believed constituted evidence of criminal conduct, including "literature or images depicting naked men and naked women; literature or images depicting naked or clothed children; ... whips, or other items used for discipline; handcuffs, leg restraints, or other fetters, ... computers, storage disks, ... and visual depictions of children engaged in sexually explicit conduct via [sic ] videos, books, magazines and photographs." See Aff. of Jane Smith at 1, ¶ 1. Ms. Smith also averred that, based upon her experience and training, individuals who are sexually attracted to children often seek out and collect sexually explicit materials involving children, including material on a computer. Mr. Langenderfer informed Ms. Smith that the defendant had transferred $100 via Western Union to Shibaev for the alleged purpose of purchasing child pornography. See id. at 4. Ms. Smith and Mr. Langenderfer presented their search warrant request to a state magistrate to obtain authority to seize the items which Smith had listed as "evidence of criminal conduct," located at the residence of the defendant. Magistrate P.L. Boes of the 74th Judicial District in Bay County, Michigan, signed the search warrant on February 3, 2000.

On that same date, police officers executed a search warrant at the defendant's residence and found alleged child pornography stored on a computer there.

The grand jury returned a four-count indictment against the defendant, and later a four-count superseding indictment on May 8, 2002. The superseding indictment charges in count 1:

From approximately February 26, 1998, the precise time unknown, until on or about February 3, 2000, in the Eastern District of Michigan, Northern Division, Clarence Daniel Fisk, defendant herein, did knowingly receive material that contained child pornography as defined in 18 U.S.C. § 2256(8), that is depictions of a minor engaging in sexually explicit conduct, that had been transported in interstate and foreign commerce by computer, in violation of Title 18, United States Code, section 2252A(a)(2)(B).

The grand jury further alleges that Clarence Daniel Fisk was convicted on October 22, 1984 of a crime relating to abusive sexual conduct involving a minor in Circuit Court in Bay County, Michigan.

Count 2 of the Indictment states:

From approximately February 26, 1998, the precise time unknown, until on or about February 3, 2000, in the Eastern District of Michigan, Northern Division, Clarence Daniel Fisk, defendant herein, did knowingly possess material that contained an image or images of child pornography as defined in 18 U.S.C. § 2256(8), that is depictions of a minor engaging in sexually explicit conduct, that had been transported in interstate and foreign commerce by computer, in violation of Title 18, United States Code, section 2252A(a)(5)(B).

The grand jury further alleges that Clarence Daniel Fisk was convicted on October 22, 1984 of a crime relating to abusive sexual conduct involving a minor in Circuit Court in Bay County, Michigan.

Count 3 of the Indictment states:

The allegations contained in Counts 1 and 2 are realleged and are incorporated herein by reference for the purpose of alleging forfeiture pursuant to the provisions of 18 U.S.C. § 2253(a)(3).

As a result of the enumerated violations of 18 U.S.C. § 2252A, the defendant shall forfeit to the United States, pursuant to 18 U.S.C. § 2253(a)(3) "any property, real or personal, used or intended to be used to commit or to promote the commission of such offense," including

1) All computer and computer-related equipment seized on or before February 3, 2000, and

2) real property located at 504 Cass Street, Bay City, Michigan, tax identification number 9-16-04-101-002.

If the property described above as being subject to forfeiture, as a result of the act or omission of defendant

a. cannot be located upon the exercise of due diligence;

b. has been transferred or sold to, or deposited with, a third party;

c. has been placed beyond the jurisdiction of the court;

d. has been substantially diminished in value; or

e. has been commingled with other property which cannot subdivide without difficulty;

it is the intent of the United States to seek to forfeit any other property of the defendant up to the value of the property listed above.

All in violation of Title 18, United States Code, section 2252A.

Count 4 of the Indictment states:

From approximately February 26, 1998, the precise time unknown, until on or about February 3, 2000, in the Eastern District of Michigan, Northern Division, Clarence Daniel Fisk, defendant herein, did knowingly take and receive from an interactive computer service, that is a service or system that provides access to the Internet, a matter or thing, the carriage and importation of which is made unlawful because the matter or thing contained obscene, lewd and lascivious picture, motion-picture film, and print matter, and other matter of indecent character, in violation of Title 18, United States Code, section 1462.

First Superseding Indictment, May 8, 2002.

The defendant has pleaded not guilty to the charges, and advances the challenges outlined above.

II.

A.

The defendant first contends that counts 1 and 2 of the indictment do not contain an adequate statement of the offenses, or a precise statutory reference, as required by Federal Rule Criminal Procedure 7(c), and therefore may charge offenses under a portion of a statute, 18 U.S.C. § 2256(8)(B) and (D), that has been declared unconstitutional.

"An indictment adequately charges an offense if it (1) includes the elements of the offense intended to be charged, (2) notifies the defendant of `what he must be prepared to meet,' and (3) allows the defendant to invoke a former conviction or acquittal in the event of a subsequent prosecution." United States v. Car-Bon Custom Bullet Co., 287 F.3d 576, 579 (6th Cir.2002) (citing Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962)). Further, the focus of the inquiry is on the words of the indictment themselves; "courts evaluating motions to dismiss do not evaluate the evidence upon which the indictment is based." United States v. Landham, 251 F.3d 1072, 1080 (6th Cir.2001) (citing Costello v. United States, 350 U.S. 359, 362-63, 76 S.Ct. 406,100 L.Ed. 397 (1956)).

Count 1 of the indictment in this case charges that the defendant "knowingly receive^] material that contained child pornography as defined in 18 U.S.C. § 2256(8), that is depictions of a minor engaging in sexually explicit conduct," through commerce in violation of 18 U.S.C. § 2252A(a)(2)(B). Using similar language, count 2 charges that the defendant knowingly possessed the same child pornography. These statutory citations refer to the Child Pornography Prevention Act of 1996 (CPPA), a portion of...