U.S. v. Summage

• Decision Date: 31 July 2009
• Docket Number: No. 08-3763.,08-3763.
• Citation: 575 F.3d 864
• Parties: UNITED STATES of America, Appellee, v. Kerwin Lamont SUMMAGE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

575 F.3d 864

UNITED STATES of America, Appellee, v. Kerwin Lamont SUMMAGE, Appellant.

No. 08-3763.

United States Court of Appeals, Eighth Circuit.

Submitted: June 12, 2009.

Filed: July 31, 2009.

Anne M. Laverty, argued, Cedar Rapids, IA, for appellant.

Clifford R. Cronk, III, AUSA, argued, Davenport, IA, for appellee.

Before LOKEN, Chief Judge, JOHN R. GIBSON and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Following a jury trial, Kerwin Lamont Summage was convicted of two counts of production of child pornography, in violation of 18 U.S.C. § 2251(a) and (e), and one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). The district court¹ sentenced Summage to 720 months' imprisonment. Summage appeals his conviction. For the following reasons, we affirm.

I. BACKGROUND

In July 2004, J.W., Summage's mentally handicapped cousin, went to the police in Davenport, Iowa, along with his sister and mother to report a crime. They told Detective Brandon Noonan that Summage, whom J.W. feared, took J.W. to Summage's apartment and offered J.W. money if he would have sex with a woman who was waiting naked in Summage's bedroom. The woman undressed J.W., had him lay on the bed, and then performed oral sex on him while Summage filmed and took photographs of the encounter.

In response to J.W.'s report, Julie Walton, who worked part-time as an assistant county attorney and who also worked at a private law firm that had previously represented Summage in a child custody matter, presented an application for a search warrant to search Summage's residence to an Iowa state magistrate judge. The judge issued the search warrant based on an affidavit executed by Detective Noonan. The warrant authorized police to seize the following items: videotapes and DVDs, pornographic pictures, video or digital recording devices and equipment, equipment used to develop or upload or download photographs or movies, and computers.

Police executed the search warrant the next day, finding and seizing camera equipment, computer equipment, films and other evidence. On Summage's computer, police found images of children engaged in sexually explicit conduct. Police also discovered homemade 8-millimeter films with sexually explicit content. Summage appeared to be directing or recording portions of some of the films. On most of the films, Summage's voice is heard, and on some of the films he appears in a mirror while holding or operating the camera. One of the films depicts Melissa Brown, Summage's girlfriend and the mother of two of his children, performing oral sex on her infant son, X.B. Another film contains a clip of Summage standing over a three-year-old girl, later identified as Brown's daughter, J.T., masturbating while his penis is next to her exposed vagina.

On October 14, 2005, a federal grand jury returned an indictment charging Summage with producing and possessing child pornography. Summage moved to suppress the evidence found during the search of his residence, arguing that the affidavit filed with the search warrant application failed to establish probable cause and that the warrant lacked particularity. The district court granted the motion, but we reversed, concluding that the affidavit was sufficient to establish probable cause because

[a]lthough the affidavit did not specifically name the crime that had been committed, the alleged facts support a finding of probable cause to believe that Summage's actions constituted criminal conduct—specifically the solicitation of prostitution or pandering—given the fact that Summage had offered money in exchange for [J.W.'s] services in a sex act.

United States v. Summage (Summage I), 481 F.3d 1075, 1079 (8th Cir.2007) (footnotes omitted), cert. denied, 552 U.S. ___, 128 S.Ct. 875, 169 L.Ed.2d 737 (2008). We also determined that the warrant was not overbroad or lacking in particularity because "no indication was given regarding the nature of the format in which the sought-for video and photographs were created or stored, [so] it was necessary to search a broad array of items for the relevant materials." Id. at 1079-80.

Following our decision and the issuance of our mandate on June 19, 2007, Summage filed a petition for a writ of certiorari on September 6, 2007. The district court scheduled Summage's trial to start on October 29, 2007, but, for unexplained reasons, the trial was not held then. The Supreme Court denied Summage's petition for a writ of certiorari on January 7, 2008. Summage v. United States, ___ U.S. ___, 128 S.Ct. 875, 169 L.Ed.2d 737 (2008). On February 26, 2008, Summage filed a motion to dismiss the indictment based on the Speedy Trial Act and the Sixth Amendment. On March 26, 2008, the district court received notice of the denial of Summage's petition for a writ of certiorari. After a hearing, the district court granted Summage's motion based on the Speedy Trial Act and dismissed the indictment without prejudice.

The Government presented the matter to another grand jury, which returned a substantially similar indictment on May 13, 2008. On June 11, 2008, Summage filed a motion to suppress and requested a Franks² hearing. The district court denied the motion. On June 18, 2008, Summage filed a motion for a continuance of the trial setting, claiming that he and his counsel were "not yet fully prepared for trial." The district court denied Summage's motion. On June 20, 2008, Summage filed a motion to proceed pro se at trial. Before the trial began on June 23, 2008, the district court thoroughly warned Summage of the dangers and risks of proceeding pro se. After hearing the warning, Summage confirmed that he knowingly and voluntarily gave up his constitutional right to representation. However, Summage requested that standby counsel be present at the table with him to assist with technical aspects of the trial, such as objections, jury selection, his opening statement and the examination of witnesses. The district court denied Summage's request for "hybrid" representation because "[e]ither [Summage] has a lawyer or he doesn't have a lawyer." When Summage stated that he might not be "familiar with" the "little minute ... procedural matters," the district court warned him that those matters "might seem minute, but ... those little minute things could turn out to be major things, and if you don't know them like a lawyer, you can suffer greatly because of that." Even after acknowledging that warning and the district court's statement that it would not permit hybrid representation, Summage continued to express his desire to represent himself.

Following the trial, the jury found Summage guilty on all counts. Summage appeals his conviction, arguing that the district court erred in denying his motion to suppress, in failing to dismiss the initial indictment with prejudice under the Speedy Trial Act and the Sixth Amendment, in denying his request for hybrid representation, in denying his motion for a continuance, and in multiple evidentiary rulings.

II. DISCUSSION

A. Motion to Suppress

In reviewing a denial of a motion to suppress, we review the district court's factual determinations for clear error and its legal conclusions de novo. United States v. Clarke, 564 F.3d 949, 958 (8th Cir.2009).

Initially, Summage renews the following arguments from his previous appeal concerning the search warrant: that the application and affidavit were insufficient to support a finding of probable cause; that the application and affidavit were unclear about what type of criminal activity was alleged to have occurred; that the application was vague; that there was an insufficient nexus between the place to be searched and the evidence sought; and that the search warrant was overbroad and lacked particularity under the Fourth Amendment. Because we resolved all of those issues in Summage's previous appeal, see Summage I, 481 F.3d at 1077-80, we will not review any of them now, see United States v. Stuart, 689 F.2d 759, 762 (8th Cir.1982) ("This is a classic case of a litigant impermissibly attempting to relitigate the same claim ... in violation of well established principles of res judicata. ...").

In addition to those arguments, Summage raises three new arguments regarding the search warrant: (1) that the search warrant was overbroad and lacked particularity because it sought materials protected under the First Amendment; (2) that his due process rights were violated because the assistant county attorney who presented the search warrant application was employed by a law firm Summage had previously retained; and (3) that Summage should have been allowed to present evidence at a Franks hearing.

1. Breadth and Particularity

Summage first argues that the search warrant was overbroad and lacked particularity because it allowed police to seize materials protected by the First Amendment; namely, non-obscene pornography. We have previously explained that "where [a search] warrant authorizes seizure of materials protected by the [F]irst [A]mendment, the requirements of the Fourth Amendment must be applied with scrupulous exactitude." United States v. Frederickson, 846 F.2d 517, 519 (8th Cir. 1988) (internal quotation omitted). Here, those Fourth Amendment requirements were applied with scrupulous exactitude. In Summage I, we considered Summage's Fourth Amendment arguments and explicitly found that the search warrant was not overbroad or lacking in particularity. Summage I, 481 F.3d at 1080. As we explained, because there was no indication of the "nature of the format in which the sought-for video and photographs were created or stored, it was necessary to search a broad array of items for the relevant materials." Id. at 1079-80. "The requirement of particularity must be assessed in terms of practicality." Id. at 1079. As a practical matter, it was reasonable to allow police to seize the items potentially containing the relevant materials even though...