U.S. v. Vanvliet

• Decision Date: 17 September 2008
• Docket Number: No. 07-1578.,07-1578.
• Citation: 542 F.3d 259
• Parties: UNITED STATES of America, Appellee, v. Martin Rob VANVLIET, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

542 F.3d 259

UNITED STATES of America, Appellee, v. Martin Rob VANVLIET, Defendant, Appellant.

No. 07-1578.

United States Court of Appeals, First Circuit.

Heard March 5, 2008.

Decided September 17, 2008.

Michael J. Traft, with whom Carney & Bassil, P.C. was on brief, for appellant.

Cam Barker, Appellate Section, Criminal Division, United States Department of Justice, for appellee.

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

LIPEZ, Circuit Judge.

Martin Rob Vanvliet appeals from his conviction and sentence for interstate travel with the intent to engage in an illicit sexual act, 18 U.S.C. § 2423(b). We affirm his conviction, but remand for resentencing in light of Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), which was issued subsequent to the sentencing in this case.

I.

In October 2001, Waltham, Massachusetts police detective Timothy King conducted an undercover sting operation that targeted persons using the internet to arrange sexual acts with minors. On October 26, while posing in several internet chat rooms as a fifteen-year-old girl named "Michelle" from Waltham, Detective King was contacted by Vanvliet, who identified himself as "Rob" from New Jersey. During this online conversation, Vanvliet inquired whether "Michelle" was interested in older men, stated that he "love[d] younger girls," that he was "horney (sic)," and that he would like "to plan some fun activities," a "good time together," and "some sexy fun," which he described as "hugging, kissing ... and more." He asked "Michelle" to describe her breasts, and stated that he "would love to turn you on" and "love to feel you." Vanvliet offered to drive from New Jersey to Massachusetts in the near future to meet "Michelle." The two exchanged email addresses and agreed to talk again. Near the end of their online conversation, Vanvliet wrote: "kisses ... all over ... your body."

Over the next three weeks, Vanvliet and "Michelle" continued their online and email conversations, twice trying unsuccessfully to arrange trysts, and finally agreeing that Vanvliet would drive from New Jersey to meet "Michelle" at 5:00 p.m. on November 19 at a Dunkin' Donuts located in a Waltham strip mall. During these communications, Vanvliet assured "Michelle" that he would not force her to do anything that she did not want to do, but if they did anything, it would be "safe."

Before the appointed time on November 19, Detective King and his colleagues set up undercover police surveillance near the Dunkin' Donuts parking lot. At some time between 4:30 and 5:00 p.m., Vanvliet was observed driving slowly past the Dunkin' Donuts and scrutinizing the nearby area. Vanvliet continued driving down the road past the Dunkin' Donuts, but a minute or two later, he returned in the opposite direction, again canvassing the area near the Dunkin' Donuts. Detective King, who was following Vanvliet in an unmarked police vehicle, saw Vanvliet look in his rear-view mirror, then proceed to drive away from the area at a high speed. At the next intersection, Vanvliet put on his right turn signal, but abruptly made a left turn.

Detective King immediately pulled Vanvliet over for speeding and inquired whether Vanvliet had come to Waltham to meet a fifteen-year-old girl. Vanvliet responded: "I wasn't going to do anything. I was just curious." Vanvliet consented to a search of his vehicle's trunk and told Detective King that he had used the laptop in his trunk to communicate with "Michelle" online. Detective King asked Vanvliet if he could take the laptop into police custody. Vanvliet expressed concern because the laptop contained important work files, but when Detective King assured Vanvliet that he could make arrangements to return the work materials to him, Vanvliet agreed to the seizure. Detective King let Vanvliet go with a speeding citation.

Subsequent police searches of Vanvliet's laptop revealed remnants of Vanvliet's prior online and email communications with "Michelle," pornographic photographs of prepubescent girls, and several unused condoms in the laptop case's side-pockets. On November 22, Vanvliet contacted Detective King to obtain his work files, and King responded that he would email them. Two days later, Vanvliet sent Detective King the list of the work files he needed. Detective King attempted to email Vanvliet the work files, but repeatedly received error messages that the files were too large to transmit. After several such attempts, Vanvliet instructed Detective King to cease his transmission efforts, claiming that he since had produced duplicates of the requested work files. On December 27, Vanvliet informed Detective King of his opinion that he had never voluntarily consented on November 19 to the search and seizure of his laptop.

In October 2002, Vanvliet was indicted on one count of interstate travel with the intent to engage in an illicit sexual act with a minor, 18 U.S.C. § 2423(b), and one count of possession of child pornography, id. § 2252A(a)(5)(B). The government eventually dismissed the child pornography charge. Before trial, Vanvliet moved to suppress all evidence seized from his laptop on the alternative grounds that he had never given consent to the search, or if he had, that Detective King had coerced his consent. After a four day evidentiary hearing, the district court denied the suppression motion.

After the government presented three days of evidence at the trial, the jury retired to deliberate on January 31, 2006 at around 2:30 p.m. The court recessed for the day at 4:30 p.m. without a verdict. The jury resumed deliberations the next morning at 9:00 a.m. At 11:30 a.m., it asked the district court for a clarification concerning the intent element of § 2423(b), viz., whether the government was required to prove that Vanvliet had intended to engage in sexual acts with "Michelle" on November 19, or only that he had intended to do so at some point in time. The court instructed the jury that the government must prove the former fact. At 1:30 p.m., the jury asked the court for a copy of Detective King's police report and a transcript of his trial testimony concerning his November 19 traffic stop of Vanvliet. Shortly thereafter, before the court had answered this jury request, the jury notified the court that "[f]ollowing extensive deliberations, the eleven of us are split 6-5. How do we proceed from here?"¹

The district court consulted with government and defense counsel, and defense counsel asked for a mistrial because "we know the count." The court denied this defense motion. Instead, it said it would give a so-called modified Allen charge, to which neither side objected. See Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528 (1896). The delivered charge read:

I have two questions from you and let me first answer the second one. While you have disclosed your vote, I want to direct you should it change, direct you not to let us know again what your vote is. It's really part of your deliberations that we don't want to know, but you had indicated following extensive deliberations, the eleven of us, I won't disclose the split, how do we proceed from here?

I'd like you to try again to deliberate. Those of you who believe that the government has proved the defendant guilty beyond a reasonable doubt should stop and ask yourself if the evidence is really convincing enough given that other members of the jury are not so convinced, and those of you who believe that the government has not proved the defendant guilty beyond a reasonable doubt should stop and ask yourself if the doubt you have is a reasonable one given that other members of the jury do not share it.

None of you should hesitate to change your mind if after reconsidering things you're convinced that other jurors are right and that your original position was wrong, but remember this, do not ever change your mind just to get the case over. In the end, your vote must be exactly that, your vote. As important as it is for you to reach a unanimous agreement, it is also important that you do so honestly and in good conscience. Bear in mind that the failure to come to a unanimous decision is itself a decision. It means that the government has not proved the case beyond a reasonable doubt to a jury unanimously. So, I'm asking you to go back and try again under those circumstances.

With respect to the jury's other question, the court noted that Detective King's police report was never admitted in evidence at trial, and that a redacted transcript of King's testimony concerning the traffic stop would not be available "by the end of today." At approximately 4:30 p.m., the re-instructed jury reached a unanimous verdict of guilt beyond a reasonable doubt.

During Vanvliet's sentencing, the district court expressed disagreement with the Guidelines' policy of imposing a two-level enhancement for Vanvliet's use of a computer, noting that computers routinely are used to commit most § 2423(b) offenses. It imposed a 46-month Guideline sentence, however, observing that a district court's disagreement with Guidelines policy would not support a decision to impose a below-Guidelines sentence. Vanvliet now appeals from both his judgment of conviction and his sentence.

II.

A. Suppression Motion

Vanvliet first contends that the district court erroneously determined that he voluntarily consented to his computer's confiscation because it was only Detective King's false promise to arrange a prompt return of critical work-related material on the computer that induced his consent.

Consensual searches are a recognized exception to the Fourth Amendment's warrant requirement, United States v. Vilches-Navarrete, 523 F.3d 1, 15 (1st Cir.2008), but the government bears the burden to prove by a preponderance of the evidence that defendant or an authorized third party gave the consent voluntarily, United States v. Diaz, 494 F.3d 221, 225 (1st Cir....