U.S. v. Rogers

• Decision Date: 25 March 2008
• Docket Number: No. 06-2532.,06-2532.
• Citation: 521 F.3d 5
• Parties: UNITED STATES of America, Appellee, v. Roy Lewis ROGERS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

521 F.3d 5

UNITED STATES of America, Appellee, v. Roy Lewis ROGERS, Defendant, Appellant.

No. 06-2532.

United States Court of Appeals, First Circuit.

Heard October 5, 2007.

Decided March 25, 2008.

Wayne R. Foote with whom Law Offices of Wayne R. Foote, PA was on brief for appellant.

Margaret D. McGaughey, Assistant United States Attorney, with whom Paula D. Silsby, United States Attorney, was on brief for appellee.

Before LIPEZ and HOWARD, Circuit Judges, and OBERDORFER,^* Senior District Judge.

OBERDORFER, Senior District Judge.

Roy Lewis Rogers appeals his conviction and sentence for one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). He challenges the district court's denial of his motion to suppress evidence, arguing that the police exceeded the scope of their search warrant authorizing them to search for "photos of [a minor child]" when they seized and later viewed a videotape. He also contends that pursuant to § 5G1.3(b) of the federal Sentencing Guidelines, the district court should have ordered his entire federal sentence of imprisonment to run concurrently to his undischarged state sentence. Finding no error in the denial of Rogers' motion to suppress or at sentencing, we affirm.

I. BACKGROUND

A. Facts

In 2004, Detective James Skehan of the Houlton, Maine Police Department began investigating Rogers' relationship with a fourteen-year-old child ("DW"), whose mother was a friend of Rogers. Based on the information he learned during his investigation, Skehan believed that Rogers had subjected DW to unlawful sexual advances. Skehan also believed that Rogers had communicated with DW via e-mail and that DWs mother had given Rogers several photos of DW.

On July 21, 2004, based on a lengthy affidavit summarizing his investigation, Skehan requested a warrant to search Rogers' apartment. A state justice of the peace issued the warrant (the "first search warrant"). Although Skehan had sought permission to search for a variety of computer equipment and electronic-data-storage devices, the issued warrant simply authorized a search for a "Computer belonging to Roy Rogers. (Unk Brand, Color, Serial Numbers etc). Also any photos of [DW]." Appendix ("App.") at 26.

While executing the search warrant, the officers (including Skehan) saw in Rogers' bedroom two unlabeled videotapes lying on the table next to his computer. Also on the table, about a foot away from the videotapes, was a piece of paper with DW's name on it. The officers seized the videotapes and the computer. During the search the officers saw, but did not seize, other videotapes, a video camera, DVDs, computer floppy disks and other electronic-data-storage devices.

After Skehan returned to the police station, he and an Assistant District Attorney watched one of the videotapes. It showed Rogers having sexual intercourse with a nine-year-old relative (Child A) and also showed the child engaging in other sexually explicit conduct at Rogers' direction. Based on that evidence, on July 22, 2004, Skehan sought and obtained a search warrant (the "second search warrant") to search Rogers' apartment for:

1. Video recorders, videotapes, cameras, photographs, negatives, letters, and any recording media that could be used to record sexual encounters, or to duplicate or transmit or distribute recordings of sexual encounters, including but not limited to:

A) Any computers and electronic data storage or retrieval devices found at the residence as described in section 1, above;

B) Any computer records or data, whether in electronic or printed form, that are evidence of possession, ownership or control of the property/items to be seized, or that are evidence of the identity of any person(s) who possessed, owned or controlled such property/items;

All of which are evidence of the crimes of Gross Sexual Assault (17-A M.R.S.A. § 253), and which may also be evidence of the crimes of Dissemination of Sexually Explicit Materials (17 M.R.S.A. § 2923) and Sexual Exploitation of a Minor (17 M.R.S.A. § 2922), or other similar State or Federal Offense.

2. Bedding depicted in the video including a blue floral comforter.

3. Clothing depicted in the video including blue, po[l]kadotted underwear, slit on the sides.

App. 28-29. The police executed the second warrant immediately.

Later that same day, the police questioned Rogers. Confronted with the contents of the videotape of Child A, he made several incriminating statements, including that his computer contained child pornography downloaded from the Internet. The police then searched Rogers' computer and the other seized items. They discovered a videotape showing another minor child (Child B) engaged in sexually explicit conduct with Rogers present and recovered 57 images of child pornography from Rogers' computer.

B. Procedural History

On the basis of the above-described evidence, prosecutors indicted and convicted Rogers in both state and federal court. We describe the state proceedings only insofar as they are relevant to the issues raised by the pending federal appeal.

1. State Indictment and Conviction

On September 9, 2004, the State of Maine indicted Rogers in a six-count indictment, charging him with sexual offenses against Child A, Child B and DW (identified as Child C). Pursuant to a plea agreement, he pled guilty to, and was convicted of, four of the six counts: (1) "gross sexual assault" in violation of 17-A M.S.R.A. § 253(1)(B), based on his having engaged in a "sexual act" with Child A, a minor under the age of 14 (Count 1); (2) two counts of "sexual exploitation of a minor" in violation of 17 M.R.S.A. § 2922(1)(A) (now 17-A M.R.S.A, § 282), based on his having caused Child A and Child B to engage in "sexually explicit conduct" "knowing or intending that the conduct would be photographed" (Counts 2 and 4); and (3) "sexual abuse of a minor" in violation of 17-A M.R.S.A. § 254(1)(2), based on his having engaged in a "sexual act" with DW (Child C), a minor who was 14 or 15 and at least 10 years younger than he (Count 6). The State dismissed the remaining two counts.

On July 28, 2005, the state court sentenced Rogers as follows: (1) for Count 1, 15 years imprisonment, with all but six years suspended, followed by four years of probation; (2) for Count 2, nine years imprisonment, all suspended, with three years probation, all to be served consecutively to Count 1; (3) for Court 4, 364 days imprisonment, to be served concurrently with Count 1; (4) and for Count 6, 364 days imprisonment, to be served concurrently with Count 1.

2. Federal Court Indictment and Conviction

On July 12, 2005, a few weeks before the state court imposed its sentence, a federal grand jury indicted Rogers for one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The indictment charged that "on or about July 22, 2004, in the District of Maine," Rogers had "knowingly possessed a computer that contained an image of child pornography, specifically a computer graphic image the production of which involved the use of a minor engaging in sexually explicit conduct, that had been transported in interstate and foreign commerce, specifically by computer via the Internet."¹ App. 31. The federal charge was based solely on Rogers' possession of the images found on his computer, not on his sexual abuse and exploitation of the three minor children.

a. Federal Court Motion to Suppress

Rogers filed a motion to suppress all of the evidence discovered after the issuance of the first search warrant — the videotapes, the pornographic images discovered on his computer, and his incriminating statements. He argued that the first search warrant's authorization to search for and seize "photos of DW" encompassed solely developed print photographs and not images on a videotape or on a computer. He further argued that because the contents of the first videotape provided the basis for the second search warrant, everything discovered and seized pursuant to the second warrant should be suppressed as "fruit of the poisonous tree."

A magistrate judge recommended denying the motion to suppress. She concluded that "searching the computer hard drive and the videotape for photos of DW was well within the scope of the warrant" because both were "plausible repositories" for "photos of DW." App. 12. She reasoned that "[g]iven the current state of technology, looking at a computer's hard drive to find photos is no more inappropriate than opening a photo album" and that "[c]urrent technology also permits `photos' to be stored on homemade videotapes." Id. Over Rogers' objection, the district court adopted the magistrate's report and recommendation in its entirety. App. 14-15.

b. Guilty Plea and Sentencing

On June 13, 2006, pursuant to a plea agreement, Rogers pled guilty to one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). However, he reserved the right to appeal the denial of his motion to suppress. See Fed.R.Crim.P. 11(a)(2).

At the sentencing hearing, applying the 2003 version of the federal Sentencing Guidelines, the district court determined that Rogers had an offense level of 30, a criminal history category of I, and a sentencing guideline range of 97-120 months imprisonment. The court imposed the maximum sentence of 120 months imprisonment, but ordered that Rogers "receive credit for the state conduct used to enhance his federal guideline range," which the court "determine[d] ... to be 1 year, resulting in a sentence of 108 months, to be served consecutive to any undischarged term of imprisonment being served with the State of Maine Docket CR04-98." App. 2.

At the sentencing hearing, Rogers had contended that under Guideline § 5G1.3(b), his entire federal sentence should run concurrently to his undischarged state sentence. See U.S.S.G. § 5G1.3(b) (2003). The district court disagreed, ruling that § 5G1.3(c), not § 5G1.3(b), applied to Rogers' case....