U.S. v. Simpson

• Decision Date: 27 June 1990
• Docket Number: No. 89-8000,89-8000
• Citation: 904 F.2d 607
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Thomas SIMPSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 607

904 F.2d 607

UNITED STATES of America, Plaintiff-Appellee, v. Charles Thomas SIMPSON, Defendant-Appellant.

No. 89-8000.

United States Court of Appeals Eleventh Circuit.

June 27, 1990.

Gregory Z. Schroeder, Atlanta, Ga., for defendant-appellant.

Robert L. Barr, Jr., U.S. Atty., N.D. Ga., William R. Toliver, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before TJOFLAT, Chief Judge, TUTTLE and RONEY ^*, Senior Circuit Judges.

RONEY, Senior Circuit Judge:

Defendant Charles Thomas Simpson was convicted of causing to be shipped through interstate commerce, and of receiving, materials containing depictions of minors engaged in sexually explicit activity. 18 U.S.C.A. Sec. 2252. On his appeal, we hold that:

(1) the search that revealed the pornographic materials was not unconstitutional;

(2) the evidence was sufficient to support the convictions;

(3) neither the district court nor the probation officer was required to inform defendant of the favorable sentencing guideline consequences of acceptance of responsibility; and

(4) Simpson waived his right to assert a Sixth Amendment claim that he was entitled to have an attorney present during his presentence interview with a probation officer.

We thus affirm Simpson's conviction and sentence.

(1) The Search

Simpson moved to suppress the magazines and videotapes for which he was convicted on Fourth Amendment grounds. The boxed materials were first discovered by Federal Express employees, who turned them over to federal law enforcement agents. Recognizing that a search or seizure conducted by a private party does not violate the Fourth Amendment, Simpson argues that the Federal Express employees acted as instruments or agents of the Government in their searches of the box. See Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 2048, 29 L.Ed.2d 564 (1971). Simpson further argues that the scope of the subsequent governmental intrusions on his privacy interests in the box exceeded the scope of the earlier intrusion by Federal Express employees. A brief recital of the facts refutes these arguments.

A Federal Express office in Atlanta, Georgia received through its shipping system a cardboard box that was missing an airbill, or address label. Unable to deliver the box without the airbill, the Federal Express employees in Atlanta forwarded the box to the company's lost and found department in Memphis, Tennessee. There, following standard company policy, a Federal Express employee opened the box to look for information that might reveal a destination for the parcel. Seeing magazines and a loose-leaf folder that contained pictures of nude children, the employee then taped the box shut and turned it over to a Federal Express Security Officer.

The officer determined that the magazines contained depictions of minors that could constitute child pornography and that a number of videotapes were in the box. Federal Express Security Officer Raymond Priddy later viewed four of these tapes, using a company-owned videocassette recorder located in the security office. Priddy determined that the tapes contained sexually explicit material, and that some of the actors appeared to be minors. He then called the United States Attorney's office in Memphis to inform it of the suspected contraband.

An Assistant United States Attorney, using Federal Express's videocassette recorder, later viewed the same four tapes and called an F.B.I. Agent, who inventoried the materials and viewed these same tapes on the company's recorder.

In the meantime, Priddy determined from information in the company's computer system that the box should have been delivered to defendant Simpson at his workplace address in Atlanta. Earlier that day, a person identifying himself as Chuck Simpson had called both the Atlanta Federal Express office and the Memphis lost and found department to report that a package he was expecting in Atlanta had not arrived from Orlando, Florida. The caller left an Atlanta address where the box could be delivered if located. He also warned the company employees that the box contained sexually explicit materials and should not be opened. This information was entered into the company's computer system. Priddy later determined that the box in his office matched the caller's description of his lost parcel, and informed the F.B.I.

The F.B.I. arranged for a controlled delivery of the box to Simpson, by requesting Priddy to reseal the box and send it through the Federal Express system back to the Atlanta Federal Express office. Federal Express lent company uniforms and a delivery truck to F.B.I. agents, who took possession of the box. The agents took the box to the address left by the caller, and asked for Charles Simpson. The defendant identified himself, acknowledged that the package was his, and signed a receipt for it. The agents asked Simpson to open the box and identify the contents, but Simpson declined, saying that he recognized the parcel. The agents then placed Simpson under arrest.

Simpson focuses his first argument on the fact that prior to his employment by Federal Express, Priddy had served as an officer in the Memphis Police Department, and that Priddy was familiar with members of the United States Attorney's office in Memphis. We have previously held that such facts, without more, do not establish that the private party acted as an agent of the Government at the time of the search. See United States v. Bomengo, 580 F.2d 173, 175 (5th Cir.1978), cert. denied, 439 U.S. 1117, 99 S.Ct. 1022, 59 L.Ed.2d 75 (1979); see also United States v. Bazan, 807 F.2d 1200, 1203 (5th Cir.1986), cert. denied, 481 U.S. 1038, 107 S.Ct. 1976, 95 L.Ed.2d 816 (1987). Although Federal Express employees received training by Government law enforcement officers on when to contact Government agents after contraband had been discovered, there is nothing in the record to show that Government agents advised Federal Express employees when, or under what circumstances, to conduct searches. No Government agent instructed the Federal Express employees to open and inspect the box in this case, and no Government agent knew of its existence until after the searches by various Federal Express employees had occurred. The searches were initiated by Federal Express in the normal course of business, with the sole purpose of determining where to deliver the parcel. See United States v. Miller, 688 F.2d 652, 657 (9th Cir.1982) (two critical factors of analysis are whether the Government knew of intrusive conduct, and whether private actor's purpose was to assist law enforcement or to further other ends). These initial searches did not violate the Fourth Amendment.

As to Simpson's second argument, the Government agents' conduct did not exceed the scope of the earlier private searches. See United States v. Jacobsen, 466 U.S. 109, 115, 104 S.Ct. 1652, 1657, 80 L.Ed.2d 85 (1984). The box's contents had already been examined, their...