U.S. v. Seljan

Decision Date14 August 2007
Docket NumberNo. 05-50236.,05-50236.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. John W. SELJAN, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Jerald Brainin, Los Angeles, CA, for defendant-appellant John W. Seljan.

Richard Y. Lee, Assistant United States Attorney, Santa Ana, CA, for plaintiff-appellee United States.

Appeal from the United States District Court for the Central District of California; Alicemarie H. Stotler, District Judge, Presiding. D.C. No. CR-03-00232-AHS.

Before: HARRY PREGERSON, RONALD M. GOULD, and RICHARD R. CLIFTON, Circuit Judges.

PER CURIAM:

Defendant-Appellant John Seljan appeals his conviction and sentence for multiple counts of attempting to travel in interstate commerce to engage in illicit sexual conduct, using interstate facilities to entice a minor into engaging in criminal sexual activity, and possessing and producing child pornography. Federal agents arrested Seljan after customs inspectors, conducting routine searches at a regional hub for FedEx, discovered sexually suggestive letters in internationally bound packages sent by Seljan. Seljan appeals the district court's denial of his motion to suppress all evidence resulting from those searches.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I. FACTS AND PROCEDURAL HISTORY

FedEx routes international packages sent from Southern California through the company's regional hub in Oakland, California. The Oakland facility is one of four FedEx regional sorting facilities in the United States. At the facility, FedEx sorts packages by destination and places all document-sized packages bound for a particular country into locked containers. United States v. Seljan, 328 F.Supp.2d 1077, 1079 (C.D.Cal.2004) (order denying motion to suppress). Next, FedEx loads some containers bound for the Philippines directly on a plane that departs from Oakland International Airport and then lands across the bay at San Francisco International Airport. Id. Due to weight restrictions, FedEx transports other Philippines-bound containers by land to San Francisco International Airport. Id. Employees then load those containers onto the same plane that arrived from Oakland. Id. The plane then departs for Narita International Airport in Japan, with a possible refueling stop in Anchorage, Alaska. Id.

Seljan sent at least three FedEx packages to the Philippines between November 20, 2002, and September 26, 2003. Id. at 1078. Affixed to each package was an international air way-bill completed and signed by Seljan. Id. at 1079. A portion of the form labeled "Required Signature" stated, "Use of this Air Waybill constitutes your agreement to the Conditions of Contract on the back of this Air Waybill." These conditions included the following provision: "Right to Inspect. Your shipment may, at our option or at the request of governmental authorities, be opened and inspected by us or such authorities at any time." Id. Seljan understood that the packages had to "clear customs" before leaving the United States. Id.

On November 21, 2002, U.S. Customs Service1 inspectors searched packages bound for the Philippines as part of a currency interdiction operation2 at the FedEx regional sorting facility in Oakland, California. Id. at 1079-80. Customs Inspector Phil Oliva opened a package sent by Seljan. Inside were return address labels for Seljan's post office box and two envelopes, the first of which contained a $100 bill in U.S. currency and a pamphlet for a hotel in Bangkok, and the second of which contained a one-page letter and a 500 peso note in Philippine currency. See id.; Rep.'s Tr. of Trial Proceedings 23 (Nov. 16, 2004). The letter contained sexually suggestive language and appeared to be addressed to an eight-year-old girl.3 See Seljan, 328 F.Supp.2d at 1079-80. After Inspector Oliva notified his superiors, customs officials photocopied the package's contents and allowed FedEx to deliver it. Id. at 1080.

Customs inspectors at the Oakland facility intercepted a second package from Seljan on August 3, 2003. Id. This package contained approximately $200 in U.S. currency, adult pornography, and two letters. This time, the two letters were more sexually explicit than the November 2002 letter. One letter appeared to be addressed to the same eight-year-old girl as the previous letter, while the other letter was addressed to another girl's mother. Id. After opening the package and seeing the pornography and letters, Customs Inspector Shawn Mohr alerted his supervisor, Inspector Tom LeBlanc, who recognized Seljan's name from the November 2002 search. Again, the inspectors copied the contents and allowed FedEx to deliver the package. Id.

Andrew Vincik, a Special Agent of the Bureau of Immigration and Customs Enforcement ("ICE"), then began to investigate Seljan. Id. After interviewing the property manager for Seljan's former residence as well as one of Seljan's former neighbors, Agent Vincik learned that Seljan had spoken of traveling to the Philippines to "have sex with kids." Id. Agent Vincik determined that Seljan had traveled to the Philippines forty-three times between 1992 and 2003. Id.

On September 27, 2003, customs inspectors at the Oakland facility searched a third FedEx package sent by Seljan and addressed to someone in the Philippines. Id. This package contained nine photocopied letters, $100 in U.S. currency, nonpornographic photos of Seljan with minors, and adult pornography. Id. at 1080-81. The letters described Seljan's desire to engage in sex acts with the children to whom the letters were addressed. Id. Seljan had addressed one letter to the recipient of the November 2002 letter. Id. This time, inspectors copied the contents but withheld the package from delivery. Id. at 1081.

On October 3, 2003, Seljan arrived at Los Angeles International Airport and checked baggage for Philippines Air Flight 103, traveling to Manila. Id. ICE agents stopped Seljan before he boarded the plane. Id. The agents searched his luggage, discovering adult pornographic magazines, a child pornographic book, letters written by Seljan, and fifty-two photographs of Seljan engaged in sex acts with Filipino children. Id.

Seljan signed a Miranda waiver and made several incriminating statements. Id. According to the agents, he said he had been "sexually educating" children for about twenty years. He also said the children's ages ranged from eight to thirteen, and that he intended to "sexually educate" children on the present trip as well. After his arrest, customs agents executed a search warrant at his residence and discovered adult pornography, a fiction book about pedophilia and incest, a typewriter, and various business and travel documents. Id.

On July 28, 2004, a federal grand jury in the Central District of California returned a third superseding indictment charging Seljan with one count of attempted travel with intent to engage in illicit sexual conduct, a violation of 18 U.S.C. §§ 2423(b) and (e); two counts of use of an interstate facility to entice a minor to engage in criminal sexual acts, a violation of 18 U.S.C. § 2422(b); two counts of production of child pornography, a violation of 18 U.S.C. § 2251(a); and two counts of possession of child pornography, a violation of 18 U.S.C. § 2252A(a)(5)(B).

On February 2, 2004, Seljan filed a motion to suppress all evidence discovered as a result of the searches of his FedEx packages. He argued that the warrantless search of these packages did not fall under any exception to the Fourth Amendment warrant requirement. At a minimum, he asserted, these were "extended border searches" that must be supported by reasonable suspicion. Seljan also contended that the scope of the package searches was unreasonable.

Following an evidentiary hearing, the district court denied Seljan's motion to suppress. The district court held that inspections at the Oakland facility were "tantamount to an inspection at the international border." Seljan, 328 F.Supp.2d at 1083. In the alternative, the district court held that Seljan had consented to these searches by agreeing to the conditions on the air waybills, and that the scope and conduct of the searches were reasonable. Id. at 1085

At the conclusion of a three-day bench trial, the district court found Seljan guilty of all counts except one child pornography production charge. On March 28, 2005, the district court imposed sentence. Citing the defendant's age, the district court gave sentence of 240 months-22 months lower than the bottom of the applicable Guidelines range. The district court also sentenced Seljan to a life term of supervised release and a $600 assessment. When the district court imposed sentence, Seljan was eighty-seven years old.

This timely appeal followed.

II. MOTION TO SUPPRESS

Seljan challenges the district court's denial of his motion to suppress all evidence discovered as a result of customs inspections of the Philippines-bound packages he sent through FedEx. Seljan focuses on the first search, which occurred on November 21, 2002. He contends that the customs inspectors violated his Fourth Amendment rights when they opened the package and read the enclosed letter without reasonable suspicion that opening the package or reading the letter would reveal contraband or uncover evidence of criminal activity. Seljan challenges the later searches as tainted fruits of this initial allegedly unlawful inspection.

The government offers two justifications for the November 2002 search. First, it defends the search as one occurring at the functional equivalent of the international border, contending that the search was reasonable in scope and manner.4 Second, the government claims that Seljan consented to the search by signing the FedEx air waybill.5

We follow our holding in United States v. Abbouchi, No. 05-50962, ___ F.3d ___ 2007 WL 2493507 (9th Cir.2007), that customs searches at hubs like...

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