U.S. v. Roberts

• Citation: 86 F.Supp.2d 678
• Decision Date: 24 February 2000
• Docket Number: No. H-99-471.,H-99-471.
• Parties: UNITED STATES of America, v. William Douglas ROBERTS, Defendant.
• Court: U.S. District Court — Southern District of Texas

Page 678

86 F.Supp.2d 678

UNITED STATES of America, v. William Douglas ROBERTS, Defendant.

No. H-99-471.

United States District Court, S.D. Texas, Houston Division.

February 24, 2000.

Kent A. Schaffer, Bires and Schaffer, Houston, TX, Steven J. Lieberman, Attorney at Law, Houston, TX, William D. Roberts, Natchitoches, La, for William Douglas Roberts, defendant.

Daniel Rodriguez, U.S. Atty's Office, Houston, TX, for U.S.

MEMORANDUM AND OPINION

ROSENTHAL, District Judge.

Defendant, William Douglas Roberts, is charged with two counts of possession of child pornography, in violation of 18 U.S.C. §§ 2252 and 2256. Pending before this court is defendant's motion to suppress evidence seized and statements made during an August 25, 1998 search of his person and personal effects. (Docket Entry No. 15). Based on the motion, the evidence, the briefs and arguments of counsel, and the applicable law, this court DENIES the motion to suppress. The reasons for this decision are stated below.

I. BACKGROUND

On July 7, 1998, Customs Senior Special Agent Steve Coffman "received information from the [United States Customs Service] Resident Agent in Charge, Lake Charles, that a man by the name of William Roberts would be traveling, leaving the country from Houston [Intercontinental Airport that day] ... on a non-stop flight to Paris." (Tr. 67).¹ The Resident Agent in Charge, Lake Charles ("RAC— Lake Charles") told Agent Coffman that Roberts usually carried his computer and diskettes containing child pornography with him when he traveled, and typically packed the diskettes inside his shaving kit. (Tr. 88, 97). Agent Coffman told Customs Special Agent Hernan Rios the information about Roberts. (Tr. 67). Agents Coffman and Rios went to the Houston Intercontinental Airport ("IAH"), but a computer check of the passenger list showed that Roberts was not on a flight from Louisiana to Houston, as expected. (Tr. 68). The agents stayed at IAH to make sure that Roberts did not board a flight from Houston to Paris; he did not. (Id.). Agent Rios told the RAC—Lake Charles that Roberts had not traveled from Houston to Paris as scheduled. (Id.).

On August 24, 1998, Agent Rios received information from Agent Gene Steech with the RAC—Lake Charles that on the following day, Roberts would be traveling from Louisiana to Houston and then continuing from Houston to a point outside the country. (Tr. 69). The RAC—Lake Charles also provided a photograph of Roberts. (Tr. 73). On August 25, 1998, Lawni Shivers, an officer with the Nachitoches Parish Sheriff's Office in Louisiana, told Agent Rios that Roberts "was suspected of traveling with child pornography, would be in possession of child pornography." Shivers told Agent Rios that the "child pornography would be contained in diskettes, and the diskettes would be in a shaving kit bag." (Tr. 70-72).² After receiving this information, Agent Rios and Special Agent Harry Stewart went to IAH to meet with Agent Coffman.

Agent Rios told Agent Coffman that Roberts "was going to be leaving the country and they suspected that he had child pornography." (Tr. 30). The agents checked their computer database, verifying that Roberts was scheduled to depart that day on Air France Flight 33, a nonstop flight from IAH to Paris, France. (Tr. 72). Agent Rios showed Agent Coffman the photograph of Roberts and told him that Roberts would be arriving in Houston on a flight from Louisiana at 12:18 p.m. (Tr. 31). Agent Coffman went to watch the passengers disembarking that flight. Using the photograph provided by Agent Rios, Agent Coffman identified Roberts and noted the clothing he was wearing. (Tr. 31).

At about 2:30 p.m. on August 25, 1998, Agent Coffman went to the Customs area to organize an outbound inspection for Air France Flight 33. Agent Coffman told the inspectors on the outbound enforcement inspection team that "an individual would be passing through Houston on his way outbound on Air France Flight 33 to Paris, France" who "would be in possession of a shaving kit containing zip disks which had child pornography on them." (Tr. 7-8, 10). Agent Coffman gave the inspectors a description of the clothing Roberts was wearing. (Tr. 32).

At about 3:20 p.m., the agents planned and set up an outbound enforcement inspection area in the jetway to Air France Flight 33. Agent Coffman identified Roberts when he came through the jetway and referred him to the search table. (Tr. 9).³ Agent Coffman signaled the agents conducting the search that this was the individual they were awaiting. (Tr. 10). When Roberts arrived at the search table, Customs Inspector Keith Hanson asked him if he possessed more than $10,000 in currency that he wanted to declare and asked him to open his bags. (Tr. 10). Roberts opened his luggage. Inspector Hanson found a shaving kit inside and opened it. The contents fit the agents' information; the shaving kit contained six Zip computer diskettes. (Tr. 11). Agent Hanson asked Roberts what the diskettes contained. Roberts gave no specific response. Agent Coffman then identified himself and took over the interview. (Tr. 34). Agent Coffman told Roberts he was with United States Customs and explained that they were "looking for currency" and "looking for the exportation of high technology or other data that was prohibited by law." (Tr. 34). Agent Coffman asked Roberts if he had anything that did not belong to him. Roberts "indicated it was all his property" (Tr. 34).

Agent Coffman told Roberts that the agents would have to search the diskettes to determine whether they could legally be taken out of the country. Agent Coffman told Roberts that he could either continue on his scheduled flight, leaving the diskettes with the agents to be searched and mailed back to him later, or that he could stay with the diskettes and fly to Paris on a later flight, at no additional charge. (Tr. 35-36). Roberts "indicated he wanted to wait." (Tr. 36).

Agents Coffman, Hanson, Rios, and Stewart escorted Roberts to a secondary inspection area. (Tr. 12). Agent Coffman opened Roberts' laptop computer. Agent Coffman told Roberts he "needed to scan the material on it" and asked if there was "anything [Roberts] could tell [him] about what was on the different diskettes, like a list of what's on it, any passwords or anything like that." (Tr. 39). Roberts said that he wished to cooperate, but wanted to talk to Agent Coffman privately. Agent Coffman escorted Roberts into an interview room.

In the interview room, Roberts told Agent Coffman that "he was embarrassed that there was some child pornography on the diskettes and he didn't want everybody to see it." (Tr. 39). Agent Coffman said, "What do you mean child pornography, like the teen stuff on the Internet ...?" (Tr. 39). Roberts responded, "No, young kids," indicating that the images on the diskettes depicted six-year-old children. (Tr. 39).

Agent Coffman then left the interview room and told Agent Rios that Roberts had said that the diskettes contained child pornography. (Tr. 79). Agents Coffman and Rios decided to advise Roberts of his Miranda rights and to attempt to interview him about the diskettes. (Tr. 79). They presented Roberts with a waiver form setting out the Miranda rights. (Tr. 40). Roberts placed his initials after the statement of each right and signed the waiver portion of the form. (G.Ex. 11; Tr. 40). An entry on the form shows Roberts signed it at 4:58 p.m. (G.Ex. 11; Tr. 46). After Roberts signed the waiver form, Agent Coffman told him it was illegal "to have child pornography and take it out of the country." (Tr. 41). Agent Coffman asked Roberts where he had obtained the pornography; Roberts responded that he had downloaded it from "various Internet sites, chat rooms, that sort of thing." (Tr. 41). Roberts said that he did not pay for the pornography and that it was for his personal use, not for resale. (Tr. 42).

Sometime after 5:00 p.m., Agent Coffman presented Roberts with a Consent to Search form, which he signed. (G.Ex. 12; Tr. 43, 46). The form authorized a complete search of Roberts' luggage, computer, and diskettes. (Tr. 43). The form also provided: "[Customs] Agents are authorized by me to take any letters, papers, materials, or other property which they may desire to examine." (G.Ex.12). The agents signed a "Custody Receipt for Retained or Seized Property," containing a list of the articles seized from Roberts. (G.Ex.13). Roberts signed the portion of the form headed "Notice of Abandonment and Assent to Forfeiture," which stated that he "hereby abandon[ed] all claim to the above described articles." (Id.).

Following routine Customs procedure, Agent Coffman presented Roberts with a blank form and told him he could record a written statement on the form if he wished to do so. (Tr. 44, 80). The agents left Roberts alone to decide whether to provide a statement. (Tr. 44). Roberts provided a four-page handwritten statement. (G.Ex.14, Tr. 43).

Agent Coffman then let Agent Rios and a coworker finish the interview. (Tr. 45). Agent Coffman testified that the agents seized the disks and took an inventory of them. After the interview ended, Roberts left without "his diskettes and stuff." (Tr. 47). Agent Coffman testified that he believed that another agent turned on Roberts' laptop computer that same day and confirmed that there were "pornographic-type photographs" on it. (Tr. 46).

The diskettes were not searched that day. (Tr. 45). Agent Rios testified that the computer and diskettes were sent to a computer forensics agent. (Tr. 101-02). The forensic examination of the diskettes began in September 1998. (Tr. 107). The forensic examination produced over 5,000 graphic images, "the majority of which depicted teen or pre-teen children engaged in sexually explicit conduct." (Docket Entry No. 1, Attachment A).

The agents executed an arrest warrant at IAH in the afternoon on June 20, 1999. (Tr. 19, 84-85). Agent Rios advised Roberts of his Miranda rights,...