U.S. v. Giles

• Decision Date: 16 June 1992
• Docket Number: No. 91-2218,91-2218
• Citation: 967 F.2d 382
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Elbert Glynn GILES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 382

967 F.2d 382

UNITED STATES of America, Plaintiff-Appellee, v. Elbert Glynn GILES, Defendant-Appellant.

No. 91-2218.

United States Court of Appeals Tenth Circuit.

June 16, 1992.

Charles L. Barth, Asst. U.S. Atty. (Don J. Svet, U.S. Atty., and Judith A. Patton, Asst. U.S. Atty., with him on the brief), Las Cruces, N.M., for plaintiff-appellee.

John B. Leyba, Las Cruces, N.M., for defendant-appellant.

Before BRORBY and EBEL, Circuit Judges, and VAN SICKLE, ^* District Judge.

BRORBY, Circuit Judge.

Elbert Glynn Giles appeals his conviction and sentence for using a person under the age of eighteen to engage in sexually explicit conduct and sending photographs depicting a person under the age of eighteen in sexually explicit conduct through the United States mail in violation of 18 U.S.C. § 2251(a) and (d), and 18 U.S.C. § 2252(a)(1) and (b). Specifically, Mr. Giles alleges the trial court erred by failing to suppress certain evidence and by failing to dismiss the indictment because of outrageous government conduct. Mr. Giles also asserts the trial court should have given him a two level downward adjustment for acceptance of responsibility.

Background

Mr. Giles responded to an advertisement in a "swinger's" magazine aimed at "anyone who is interested in family fun and the training of young girls." Walt Parsons, a detective for the City of Arvada, Colorado, placed the ad to attract pedophiles. Initially, Mr. Giles sent a very forthright letter identifying his interest in sexual activity with children. In fact, in this initial letter Mr. Giles, identified only as "G.G.," stated he was having sexual contact with an eleven-year-old girl even as he wrote the letter.

Detective Parsons responded using the name Lew Kreeger and sent Mr. Giles a letter expressing similar interests. The correspondence continued. Mr. Giles sent more graphic letters and requested Detective Parsons to send any pornographic materials he had. Mr. Giles then sent a letter with a detailed account of a sexual encounter he had with a twelve-year-old girl at the flea market. Mr. Giles also sent a list of techniques to seduce young girls. Detective Parsons, after conferring with Postal Inspectors, sent a photograph of a nude boy and girl from a magazine and a videotape entitled "Miss Teenage Nude." Detective Parsons testified he was alarmed by the likelihood a child was being molested and that Mr. Giles was soliciting girls in public places. He sent these materials in the hope of receiving some identification of the victims. In a letter postmarked March 30, 1990, Mr. Giles sent four Polaroid snapshots of a young girl identified as "Gina" in sexually explicit poses.

Detective Parsons contacted a detective dealing with sexual and child abuse investigations in El Paso County, Texas. Based on the return address of the letters and the Polaroid shots, the detective was able to identify the little girl in the photos. The investigation also revealed the young girl's uncle, Mr. Giles, resided at the same address.

United States Postal Service Inspectors obtained a warrant for Mr. Giles' arrest based on the information which the detective uncovered. On April 19, 1991, Mr. Giles was apprehended in his pick-up a few blocks from his residence. Once the officers placed Mr. Giles in custody, a detective sergeant with the El Paso County Sheriff's Department read Mr. Giles his Miranda ¹ rights. Mr. Giles asked the sergeant if this arrest was in connection with photographs taken of a child and asked when he would be given an opportunity to talk to an attorney. Sergeant Ryals told him he would be taken before a magistrate judge and if he could not afford an attorney to advise the judge so one could be appointed; otherwise he could call his own attorney at that time. Sergeant Ryals did not ask any further questions of Mr. Giles at that time. Once Mr. Giles arrived at the sheriff's office he was informed of his Miranda rights a second time. Inspector Ross obtained a waiver of rights from Mr. Giles. After that, the detectives obtained consent to search his vehicle. Mr. Giles asked what would happen if he refused consent. Inspector Ross indicated Mr. Giles would not be forced to consent but that they would try to obtain a search warrant.

Further questioning revealed Mr. Giles had a storage locker in Anthony, New Mexico. Mr. Giles consented to a search of the locker and gave police the key.

Inspector Ross then asked Mr. Giles if he would like to talk about the contents of the warrant. Mr. Giles agreed and told the Inspector he thought his ex-wife's husband was taking pictures of Mr. Giles' children and selling them. Mr. Giles stated he was trying to obtain those pictures so he could get custody of his children. He then agreed to provide a sworn written statement. Mr. Giles also filled out a standard handwriting form.

At this time, Mr. Giles' sister gave Inspector Wood consent to search her home, where Mr. Giles was staying. The officers seized evidence from a hall closet. Inspector Wood then proceeded to the impound lot and searched Mr. Giles' pick-up truck pursuant to Mr. Giles' consent and an inventory search. The agents seized further evidence from Mr. Giles' truck.

At the suppression hearing, the district court found: the residence was properly searched as a result of valid consent given by Mr. Giles' sister; Mr. Giles voluntarily consented to a search of his vehicle and the storage locker; Mr. Giles was informed and aware of his rights; and Mr. Giles did not indicate he wanted to speak to a lawyer after having been informed of his Miranda rights a second time. Consequently, the court denied Mr. Giles' motion to suppress.

At a bench trial, Mr. Giles moved to dismiss based on outrageous conduct of the government. The court found that the governmental conduct in this case did not amount to the type of egregious conduct to support such a dismissal under Tenth Circuit and Supreme Court case law. In fact, the court determined that the conduct in this case was "entirely proper in order to ferret out the ... sexual exploitation of children."

Finally, at the sentencing hearing, the district court refused to adjust Mr. Giles' offense level down by two levels for acceptance of responsibility. The court found Mr. Giles' alleged acceptance was not timely as it occurred after he stood trial on the merits of the case.

Mr. Giles appeals both his conviction and sentence. He contends the trial court committed three reversible errors by: (1) denying his pre-trial motion to suppress; (2) denying his pre-trial motion to dismiss based on outrageous government conduct; and (3) failing to accord him a two-level downward adjustment to his offense level for his acceptance of responsibility.

I. Motion to Suppress

Before trial, Mr. Giles moved to suppress statements and evidence obtained as a result of statements made during his post-arrest custodial interrogation on April 19, 1990. Mr. Giles argued he did not knowingly, intelligently and voluntarily waive his right to remain silent until assistance of counsel. At issue on appeal are Mr. Giles' post-arrest statements that led to a search of his vehicle, a search of a storage locker, a written confession, and handwriting samples.

The district court held a motion hearing on the matter. The district court found Mr. Giles was informed of his Miranda rights and questioning ceased when he asked about his right to an attorney. Next, the court found Mr. Giles was re-advised of his rights but did not at any time invoke his right to speak to an attorney. The district court found that Mr. Giles voluntarily consented to a search of his pick-up truck. Furthermore, the vehicle was properly inventoried at the scene as well as the impound lot. The court also found that after Mr. Giles was informed of his Miranda rights a third time, he voluntarily informed the officers about his storage locker and gave them consent to search it. The district court found that Mr. Giles was fully aware of his rights and he knowingly and voluntarily executed his consent to search and waiver of rights.

When reviewing a denial of a motion to suppress, we accept the district court's factual findings unless clearly erroneous. United States v. Comosona, 848 F.2d 1110, 1111 (10th Cir.1988).

The law in the area of custodial interrogations is well settled. The Supreme Court mandates an accused must be informed of his right to have counsel present during questioning. Miranda, 384 U.S. at 469-70, 86 S.Ct. at 1625-26. Once an individual invokes his right to an attorney, all questioning by law enforcement officers must cease until an attorney is present. Id. at 474, 86 S.Ct. at 1627. "[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights." Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981). Once the accused has invoked his right to counsel, only the accused may permissibly initiate further interrogation. Id. at 484-85, 101 S.Ct. at 1884-85.

The first step in this analysis is to determine whether the accused has invoked his Fifth Amendment right to have counsel present at questioning. Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 492, 83 L.Ed.2d 488 (1984). To invoke this right requires, "at a minimum, some statement that can reasonably be construed to be expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police." McNeil v. Wisconsin, --- U.S. ----, ----, 111 S.Ct. 2204, 2209, 115 L.Ed.2d 158 (1991).

In this case, after being advised of his rights, Mr. Giles asked when he would be given an opportunity to talk to an attorney. Although Mr. Giles did not expressly request an attorney, this statement could be reasonably construed to be such a request. In...