U.S. v. Seljan

• Decision Date: 23 October 2008
• Docket Number: No. 05-50236.,05-50236.
• Citation: 547 F.3d 993
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John W. SELJAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

547 F.3d 993

UNITED STATES of America, Plaintiff-Appellee, v. John W. SELJAN, Defendant-Appellant.

No. 05-50236.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 27, 2008.

Filed October 23, 2008.

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

Michael J. Raphael (argued), Assistant United States Attorney, Los Angeles, CA, and Richard Y. Lee, Assistant United States Attorney, Santa Ana, CA, for plaintiff-appellee United States of America.

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: ALEX KOZINSKI, Chief Judge, and PAMELA A. RYMER, BARRY G. SILVERMAN, M. MARGARET McKEOWN, RAYMOND C. FISHER, JOHNNIE B. RAWLINSON, RICHARD R. CLIFTON, CONSUELO M. CALLAHAN, CARLOS T. BEA, MILAN D. SMITH, JR., and SANDRA S. IKUTA, Circuit Judges.

CLIFTON, Circuit Judge:

John Seljan appeals his conviction and sentence for multiple offenses primarily involving sexual misconduct with young children in the Philippines. Federal agents investigated Seljan after customs inspectors, conducting routine searches at a FedEx facility for unreported currency and other monetary instruments in packages being sent to foreign destinations, discovered sexually suggestive letters in packages sent by Seljan. Seljan appeals the district court's denial of his motion to suppress all evidence resulting from those searches, primarily contending that the Fourth Amendment prohibited the inspectors from examining personal correspondence without a warrant, or from doing so after they should have realized that the document being examined was not a monetary instrument. Seljan also challenges his sentence. We affirm.

I. Facts and Procedural History

Seljan sent packages from Southern California to the Philippines via FedEx on at least three separate dates: November 20, 2002, August 2, 2003, and September 26, 2003.¹ Seljan understood that the packages had to "clear customs" before leaving the United States. Affixed to each package was an international air waybill completed and signed by Seljan. 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."

FedEx routes international packages sent from Southern California through the company's regional hub in Oakland, California, one of four FedEx regional sorting facilities in the United States. At that facility, FedEx sorts packages by destination and places all document-sized packages bound for a particular country into locked containers. If a package is inspected by U.S. Customs,² its agents do the inspection prior to the placement of the packages into the container. Once loaded into a container, a package is not removed until it arrives in the destination country, in this case the Philippines.

When Seljan's first package passed through the FedEx facility in Oakland on November 21, 2002, customs inspectors were searching packages bound for the Philippines as part of an outbound currency interdiction operation. The operation was aimed at detecting violations of 31 U.S.C. § 5316, which prohibits export or import of undeclared currency or other monetary instruments worth more than $10,000. As will be discussed in more detail below, customs inspectors are authorized under 31 U.S.C. § 5317(b) to open and inspect packages at the border to enforce that statute.

The FedEx package sent by Seljan was opened and examined as part of that operation. It was found to contain two envelopes and return address labels for Seljan's post office box. The first envelope contained a $100 bill in U.S. currency and a pamphlet for a hotel in Bangkok. The second contained a 500 peso note in Philippine currency and a short letter. That letter was typed on one side of a single sheet of paper, at the top of which was a cartoon figure. The letter contained sexually suggestive language and appeared to be addressed to an eight-year-old girl.³ Customs officials photocopied the package's contents before returning it to FedEx for delivery.

The second package sent by Seljan was intercepted by customs inspectors at the Oakland facility on August 3, 2003, during another outbound currency operation. This package contained approximately $200 in U.S. currency, several pages of adult pornography, and two letters. One letter appeared to be addressed to the same eight-year-old girl. It was more sexually explicit than the November 2002 letter, as it expressed Seljan's desire to engage in sex acts with the girl. The other letter was addressed to another girl's mother and stated that Seljan would be "coming back in September .... know [redacted]'s b-Day is September 21th she'll be XXXX 9." [errors in original] After opening the package and seeing the pornography and letters, the customs agent alerted his supervisor, who recognized Seljan's name from the November 2002 search. Again, the inspectors copied the contents and allowed FedEx to deliver the package.

An agent of the Bureau of Immigration and Customs Enforcement began to investigate Seljan. The property manager for Seljan's former residence and one of Seljan's former neighbors both told the agent that Seljan spoke of traveling to the Philippines to "have sex with kids," that he showed child pornography, and that he had bragged about his video and scrapbook collection of similar materials. The agent determined that Seljan had traveled to the Philippines forty-three times between 1992 and 2003.

Customs inspectors at the Oakland facility stopped and searched Seljan's third FedEx package on September 27, 2003. This package contained nine photocopied letters, $100 in U.S. currency, non-pornographic photos of Seljan with minors, and adult pornography. The letters described Seljan's desire to engage in sex acts with the children to whom the letters were addressed. One letter was addressed to the recipient of the November 2002 letter. The inspectors copied the contents but, this time, withheld the package from delivery.

Seljan arrived at Los Angeles International Airport and checked baggage for a flight to Manila on October 3, 2003. Customs agents stopped him before he boarded the plane. The agents searched his luggage, discovering adult pornographic magazines, a book of child pornography, letters written by Seljan, and fifty-two photographs of Seljan engaged in sex acts with Filipino children.

Seljan signed a Miranda waiver and made several incriminating statements. He said he had been "sexually educating" children for about twenty years, that the children's ages ranged from eight to thirteen, and that he intended to "sexually educate" children on the trip he was there that day to take. He was not allowed to depart on that trip, however, and was placed under arrest. 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.

Seljan subsequently 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's 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 one count of attempted travel with intent to engage in illicit sexual conduct in 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 in violation of 18 U.S.C. § 2422(b); one count of production of child pornography in violation of 18 U.S.C. § 2251(a); and two counts of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).

The district court imposed sentence on March 28, 2005. Citing the defendant's age—at the time sentence was imposed, Seljan was 87 years old—the court sentenced him to 240 months (20 years) of imprisonment. That duration was 22 months shorter than the low end of the calculated Guidelines range.

Seljan filed a timely appeal. A three-judge panel of this court affirmed, with one judge dissenting in part, regarding the denial of the motion to suppress. United States v. Seljan, 497 F.3d 1035 (9th Cir. 2007). By a vote of a majority of nonrecused active judges, it was ordered that the case be reheard en banc and that the three-judge panel opinion not be cited as precedent. 512 F.3d 1203 (9th Cir.2008). Upon rehearing, we affirm the judgment of the district court.⁴

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 doing so...