U.S. v. Mason

• Decision Date: 24 September 2009
• Docket Number: No. 07-CR-141 A.,07-CR-141 A.
• Parties: UNITED STATES of America, v. Raymond MASON, Defendant.
• Court: U.S. District Court — Western District of New York

Page 479

660 F.Supp.2d 479

UNITED STATES of America, v. Raymond MASON, Defendant.

No. 07-CR-141 A.

United States District Court, W.D. New York.

September 24, 2009.

Marie P. Grisanti, U.S. Attorney's Office, Buffalo, NY, for United States of America.

Timothy W. Hoover, Federal Public Defender Office, Buffalo, NY, for Defendant.

ORDER

RICHARD J. ARCARA, Chief Judge.

This case was referred to Magistrate Judge Jeremiah J. McCarthy, pursuant to 28 U.S.C. § 636(b)(1)(A). Defendant filed a motion to suppress on March 4, 2008. On June 3, 2009, Magistrate Judge McCarthy filed a Corrected Report and Recommendation, recommending that the motion be denied.

Defendant filed objections to the Corrected Report and Recommendation on June 18, 2009 and the government filed a response thereto. Oral argument on the objections was held on August 25, 2009.

Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions and hearing argument from the parties, the Court adopts the proposed findings of the Corrected Report and Recommendation.

Accordingly, for the reasons set forth in Magistrate Judge McCarthy's Corrected Report and Recommendation, defendant's motion to suppress is denied. This case is referred back to Magistrate Judge McCarthy for further proceedings.

SO ORDERED.

CORRECTED REPORT, RECOMMENDATION AND ORDER

JEREMIAH J. McCARTHY, United States Magistrate Judge.

This case has been assigned to me by Hon. Richard J. Arcara for supervision of pretrial proceedings [31].¹ Before me are defendant's motion to suppress statements and evidence [36]² and the government's motion in limine to preclude the testimony of defendant's expert, Thomas J. Langan, M.D., concerning defendant's mental condition [62]. An evidentiary hearing was held on January 22, 23 and February 10, 2009 [68, 69, 76, 83], and oral argument was held before me on February 18 and April 30, 2009.

For the following reasons, the government's motion in limine is DENIED, and I recommend that defendant's motion to suppress likewise be DENIED.³

BACKGROUND

By indictment dated June 20, 2007[19], defendant is charged with possession and production of child pornography, in violation of 18 U.S.C. §§ 2251(a), 2252A(a)(5)(B) and 2252A(a)(2)(B). Defendant has moved to suppress statements and physical evidence, and an evidentiary hearing was conducted, at which the following witnesses testified: Postal Inspector Paul E. Blum, FBI Special Agent Michael A. Shaffer, City Of Ellicottville Police Detective Bradley Knight, and Thomas A. Langan, M.D. Except where otherwise indicated, I find their testimony to be credible, and adopt it as my findings of fact.

In June 2003 an investigation began into a global child pornography ring. A search warrant of a credit card processor in Florida yielded the names of 37,000 child pornography customers, including defendant [68/3, 4].⁴ Postal inspector Richard Irvine sent a letter to defendant to see if he was interested in obtaining child pornography [68/4-5]. The letter mentioned a company with access to private videos, including adult and child pornography, and asked him to specify his areas of interest [68/5]. Defendant responded by letter [Gov't. Ex. 1, Ex. A], indicating that he was interested in preteen girls and incest [68/8]. His response letter was sent in an envelope bearing his name and address, 9 South Chicago Street, Jamestown, N.Y. [68/8-9].

Irvine then sent a letter to defendant at that address [Gov't. Ex. 1, Ex. B] containing an order form and three pages of detailed descriptions of the videos offered for sale. Defendant completed and returned the order form, enclosing $85 in cash for three videos [Gov't. Ex. 1, Ex. C; 68/10-11]. At that point, Inspector Blum prepared an affidavit for an anticipatory search warrant for 9 South Chicago Street, which was submitted to and approved by Magistrate Judge Leslie Foschio [Gov't Ex. 1; 68/12]. Judge Foschio also approved the use of an electronic monitoring device, to be placed in the package of videotapes addressed to defendant, which would emit a signal when the package was opened. The warrant was not to be executed until the package was opened [68/12-13].

The package was delivered to 9 South Chicago Street on July 18, 2005 at 1:30 p.m. [68/15]. At 3:00 p.m., the package was taken inside the house by a woman [68/16]. At 7:00 p.m., Inspector Blum retrieved the package from the woman, Rhonda Vinton, who told him that defendant had recently moved out from 9 South Chicago, and was now residing at 16 Jefferson Street in Frewsburg [68/16-17]. Inspector Blum, accompanied by FBI agent Michael Shaffer, proceeded to 16 Jefferson Street and spoke with defendant's mother, who told them that he lived with her but was not home at the time. She accompanied them to 515 Crescent Street in Jamestown, where defendant was visiting his son [68/18].

They knocked on the door and spoke to Nancy Schoonover, who directed them to defendant, who was in the carport area, working on a car [68/19]. Inspector Blum showed defendant his credentials and badge, and gave him the package [68/21]. He asked defendant to open it, which he did, and asked whether he had ordered it. Defendant acknowledged that he had [68/22]. He appeared slightly reluctant to open the package, as though he didn't want to look inside [68/22].

Inspector Blum asked defendant to return with them to 16 Jefferson Street to talk further, but stated that he did not have to go with them. Defendant agreed to go with them [68/22]. Blum testified that if he had said no, they would have left [68/23]. Blum and Shaffer were both dressed in plain clothes [68/23]. Other officers were also dressed in plain clothes, 40-50 feet away [68/23].

Upon arriving back at 16 Jefferson, Blum suggested to defendant that they speak at a picnic table on patio outside the house at 16 Jefferson [68/25]. Defendant sat with his back to the house, and Blum and Shaffer sat across from him [68/26]. Immediately upon sitting down at the picnic table, Blum provided defendant with a "Warning and Waiver of Rights" form [Gov't. Ex. 2; 68/28]. He gave defendant a blank form, read him the warnings verbatim, and asked defendant to read along with him [68/28-29]. After reading the warnings, he asked defendant if he was willing to speak with them, and defendant said that he was [68/29]. Blum asked defendant to fill out the date and time, and sign his name [68/29]. He told defendant: "now that you know your rights, you also need to waive your rights . . . . now that you know what your rights are, I need you to waive your rights. And I read to him the paragraph underneath waiver and again asked him to sign" [68/31]. As Blum read defendant his rights, he asked him if he understood, and defendant said that he did [68/32]. According to Blum, defendant was free to leave if he decided to stop speaking [68/36].

Defendant admitted to visiting 50 child porn websites which he paid for with a credit card [68/38]. He admitted ordering the package from Tom's video [68/38]. He initialed Gov't. Ex. 3 (his order form) and Gov't. Ex. 4 (the envelope for the order form) [68/39]. He also executed a "Consent to Assume Online Identity" [Gov't. Ex. 5] and provided his e-mail address and password [68/39]. Blum explained to defendant that he did not need to give consent [68/40].

Blum then took a written statement from defendant, and told him that his cooperation would be brought to the attention of the. U.S. Attorney [68/41]. Defendant wrote the statement himself [Gov't. Ex. 6; 68/41]. He was given the opportunity to change what he had written [68/43]. In the statement, defendant indicated that "I ourder the videos not knowing what I was doing couse my brain is a mess couse I do not have all my brain do to my eleasp [epilepsy] and it takes part of my brain when I have one so I am all mest up in my head and don't know what to do at tims and yes I nead help couse my brain has a hard time of what is right and rong some times . . . I may have seeine about 50 sites witch girls in them witch out coules [clothes]." [Gov't. Ex. 6].

After defendant completed the written statement, Blum asked him whether he would consent to a search of his residence. He refused [68/44]. However, he did consent to a search of his computer [Gov't. Ex. 7; 68/45]. He told them that there would be no child pornography on the computer [68/45].

Blum also asked defendant whether he had ever touched a child, and defendant said no [68/46]. He asked if defendant would take a polygraph examination, but defendant refused [68/46]. Blum stated that his answers were appropriate to the questions asked, and were logical [68/46-47]. No physical force was used to obtain his consent, nor was he coerced in any way [68/47]. At no point did defendant request an attorney or to terminate the interview [68/47]. He was free to leave at all times on July 18, and was not arrested on that date [68/47-48].

During the interview, defendant also mentioned that he had seen two young girls naked at 9 South Chicago Street [68/48, 117]. Blum later asked Det. Knight to interview the girls, which he did on July 19 [69/5]. One of the girls told Knight that defendant had photographed her nude [68/48, 69/5-6]. Knight called Blum after he interviewed her, and told him that without defendant's confession, it would only be a misdemeanor [68/102, 69/26]. Blum told him that federal case would have more severe penalty [69/26-7].

Based upon that information, on July 21, 2005 Inspector Blum applied for second search warrant from Magistrate Judge Foschio for 16 Jefferson Street in Frewsburg [68/48]. That warrant [Gov't. Ex. 8] was executed on July 22, 2005 [68/49]. Blum arrived at that premises at approximately 6:15 a.m. on July 22, as defendant was preparing to leave for work [68/49]...