U.S. v. Irving

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: Cardamone
• Citation: U.S. v. Irving, 452 F.3d 110 (2nd Cir. 2005)
• Decision Date: 23 December 2005
• Docket Number: Docket No. 04-0971-cr.
• Parties: UNITED STATES of America, Appellee, v. Stefan IRVING, Defendant-Appellant.

Page 110

452 F.3d 110

UNITED STATES of America, Appellee, v. Stefan IRVING, Defendant-Appellant.

Docket No. 04-0971-cr.

United States Court of Appeals, Second Circuit.

Argued: December 8, 2004.

Decided: December 23, 2005.

Petition for Rehearing Filed: February 6, 2006.

Decided: June 23, 2006.

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Cheryl J. Sturm, Chadds Ford, PA, for Defendant-Appellant.

Michael Y. Scudder, Jr., Assistant United States Attorney, New York, N.Y. (David N. Kelley, United States Attorney, Karl Metzner, Assistant United States Attorney, Southern District of New York, New York, NY, of counsel), for Appellee.

Before: CARDAMONE, JACOBS, and CABRANES, Circuit Judges.

REVISED OPINION

CARDAMONE, Circuit Judge.

The United States petitions for rehearing following our decision in United States v. Irving, 432 F.3d 401 (2d Cir.2005), that vacated two counts upon which defendant Stefan Irving was convicted. Upon consideration of the petition for rehearing, it is granted. We withdraw the majority opinion along with the concurring and dissenting opinion filed December 23, 2005, and Irving's convictions on counts two and three previously vacated are now affirmed in the revised opinion that follows.

Defendant Stefan Irving (defendant or appellant) appeals from a judgment entered on February 23, 2004 in the United States District Court for the Southern District of New York (Kaplan, J.) convicting him, following a jury trial, of two counts of traveling outside the United States for the purpose of engaging in sexual acts with children under the age of 18, in violation of 18 U.S.C. § 2423(b); one count of traveling outside the United States for the purpose of engaging in sexual acts with children under the age of 12, in violation of 18 U.S.C. § 2241(c); one count of receiving images of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B); and one count of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Following his conviction on all counts, Irving received a sentence of 262 months of imprisonment followed by 60 months of supervised release, a $200,000 fine, and a $500 special assessment. He appeals from his judgment of conviction and his sentence.

For the reasons stated below, we affirm defendant's convictions on all counts— count one, traveling to Mexico in violation of 18 U.S.C. § 2423(b), count two, traveling to Honduras in violation of 18 U.S.C. § 2423(b), count three, traveling to Honduras in violation of 18 U.S.C. § 2241(c), and counts four and five, receiving and possessing images of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B) and (a)(5)(B). But, because the district court treated the Sentencing Guidelines as mandatory, we remand for consideration of whether resentencing is warranted under United States v. Crosby, 397 F.3d 103 (2d Cir.2005).

BACKGROUND

Defendant is a former chief pediatrician for the Middletown, New York school district. On April 29, 1983 while employed as school physician, he was convicted of attempted sexual abuse in the first degree of a seven-year-old boy that resulted in the revocation of his license to practice medicine in New York, and a sentence of 16 to 48 months imprisonment. Thirteen years later in 1996, the federal government initiated a nationwide investigation of individuals suspected of traveling to Mexico for the purpose of engaging in sexual acts with children. Defendant became a target of that investigation which ultimately led to the criminal proceedings before us on this appeal.

A. 1998 Mexico Trip

In May 1998 Irving traveled to Acapulco, Mexico to visit Castillo Vista del Mar, a guest house that served as a place where men from the United States could have sexual relations with Mexican boys. When defendant visited, seven or eight boys ranging in age from eight to 20 years old were residing there. Irving learned of Castillo Vista del Mar from Robert Decker—its then manager, and a friend from the 1970s.

Decker testified that prior to visiting, Irving asked if specific boys—whom he knew from previous visits—would be there. Decker said Irving specifically asked about an eight-year-old boy. Decker testified further that he saw Irving fondle some of the boys who lived at the guest house while swimming with them. He also stated he saw defendant go upstairs to his bedroom at various times with different boys. Decker said that during Irving's visit the two of them discussed a previous trip to Honduras that Irving had taken, trips to the beaches he took while there, and the boys he met. One of the boys at the guest house when Irving visited, Jesus Santiago Percastegui, corroborated relevant portions of Decker's testimony. Although unable to identify Irving in court, this witness stated that he saw "Esteban" (the name by which he knew Irving) at the beach caressing two other boys that lived at the guest house and twice go upstairs to his room with them.

Decker admitted while he was in Mexico he experienced financial difficulties, and that Irving gave him ATM cards, connected to an account he funded, up until Decker's September 2000 arrest. Irving gave Decker over $5,000 in support over the years. The two men also communicated regularly. Irving provided Decker with Internet web addresses of sites containing child pornography and on one occasion gave him images of boys engaged in sex acts with each other, with men, or by themselves. Irving told Decker he preferred prepubescent boys, under the age of 11, and that he preferred oral sex or fondling.

Upon returning to the United States from Mexico on May 27, 1998 through the Dallas-Fort Worth Airport, defendant was stopped by United States Customs inspectors. This search was prompted by Special Agent Robert Casey who was in California investigating Irving. Special Agent Casey directed Special Agent Edwin B. Rehkopf, stationed at the Dallas-Fort Worth Airport, to search and interview Irving upon his arrival there.

The initial search of Irving's luggage revealed children's books and drawings that appeared to be drawn by children, but nothing necessarily incriminating. Nonetheless, the Customs agents questioned defendant further. Defendant admitted he was a convicted pedophile, but denied having visited Decker. Instead, he told the agents he had visited another friend. A second search of Irving's luggage revealed a disposable camera and two 3.5 inch computer diskettes, which the agents said they would need to examine. Irving denied having any child pornography on either the diskettes or the camera and refused to sign a Customs form consenting to their seizure. The film Irving was carrying turned out to have pictures taken at Castillo Vista del Mar of the defendant with Decker and with boys. Images of child erotica were found on the diskettes.

B. Arrest and Search of Defendant's Home

Jerome A. Coleman, a special agent of the United States Bureau of Immigration and Customs Enforcement (BICE), and other BICE agents arrested Irving five years later at his apartment in Brooklyn on May 6, 2003. While executing the arrest warrant at the apartment, Agent Coleman observed a personal computer and monitor. Based upon his 15 years of experience and formal training concerning the importation and distribution of child pornography, Agent Coleman knew that pedophiles often use computers to communicate and to exploit children, by making travel arrangements on the Internet to facilitate travel with the intention of engaging in sex acts with children or sharing data with other pedophiles that involves the exploitation of children.

Existence of the computer and other information led him to apply for a search warrant for defendant's apartment. In a supporting affidavit, Agent Coleman listed a number of reasons for his suspicion that Irving's apartment and specifically his computer might contain evidence of child exploitation. First, he relied on Decker's statements, which indicated that: (1) Irving used his home and office computers to communicate with fellow boy lovers and to send and receive pornographic pictures depicting children engaged in sexual acts; (2) Irving's purpose in visiting Mexico, and specifically Castillo Vista del Mar, was to engage in sex with boys; and (3) Irving photographed boys he found attractive in Mexico, but was careful to destroy incriminating pictures before returning to the United States. Second, Coleman explained that pedophiles often use their computers to facilitate the exploitation of children. Third, he noted that Irving's work computer did not contain any incriminating material, thus suggesting, on the basis of Decker's statements, that such materials would be found on Irving's home computer. Fourth, he enumerated the items found in Irving's luggage at the Dallas-Fort Worth Airport in 1998, and noted defendant's prior conviction for attempted sexual abuse in 1983. Fifth, Agent Coleman stated that three children who had spent time at Castillo Vista del Mar identified Irving (from a photograph) as one of the men at the guest house who had sexually abused boys while there. Sixth, he described the contents of various letters Irving wrote discussing exploitation of children that had allegedly already occurred, or that Irving hoped would occur, one of which was dated as recent as 2001. Based on this affidavit a magistrate judge in the Eastern District of New York issued a search warrant two days later on May 8, 2003 for Irving's apartment.

Armed with the warrant, BICE agents searched and seized there, among other things, Irving's home computer, which contained 76 video files, or MPEG files. The trial judge allowed, over defendant's objection, two of these video files to be played for the jury for a minute or less each. Agent Coleman explained they revealed "prepubescent boys engaging in various sexual acts with each other and in other cases of sexual acts by themselves." The agent further testified that all 76 files contained essentially the...