U.S. v. Wilson

• Decision Date: 14 May 2009
• Docket Number: No. 08-2579.,08-2579.
• Citation: 565 F.3d 1059
• Parties: UNITED STATES of America, Appellee, v. Devin C. WILSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

565 F.3d 1059

UNITED STATES of America, Appellee, v. Devin C. WILSON, Appellant.

No. 08-2579.

United States Court of Appeals, Eighth Circuit.

Submitted: January 15, 2009.

Filed: May 14, 2009.

Patrick McMenamin, argued, Cape Girardeau, MO, for appellant.

Abbie Crites-Leoni, AUSA, argued, Cape Girardeau, MO, for appellee.

Before LOKEN, Chief Judge, WOLLMAN and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Devin C. Wilson was convicted on one count of transporting a minor across state lines for prostitution in violation of 18 U.S.C. § 2423(a), two counts of producing child pornography in violation of 18 U.S.C. § 2251(a), and one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The district court¹ sentenced him to a total term of 440 months imprisonment. He appeals on various grounds. First, he challenges the denial of his motion to suppress arguing that evidence was improperly seized. Second, he contends that the district court abused its discretion by not instructing the jury that (1) the government was required to prove scienter as to the victim's age and (2) he was entitled to present a reasonable mistake-of-age defense. In addition, he argues that the indictment was procured through perjured testimony, that problems during voir dire should have resulted in a mistrial, and that the evidence was insufficient to support his conviction. We affirm.

I.

On the evening of September 2, 2006, members of the Caruthersville Police Department received a 911 emergency dispatch to 801 West Eighth Street in Caruthersville, Missouri to investigate a possible kidnapping. When the officers arrived at the residence, a 16-year old female ("the Victim") was standing outside and got into the officers' police car. She told the officers that she had been kidnapped in Oklahoma City, Oklahoma. While the Victim was in the police car Wilson drove up in his vehicle and the Victim told the officers that he was the person who had kidnapped her. She said that Wilson had forced her to work as a prostitute and exotic dancer and that he had ecstasy pills and crack cocaine in the house. She also said that her bags and clothing were still in the house. Based on this information, the officers arrested Wilson.

One of the arresting officers, Assistant Chief Tony Jones ("Officer Jones"), then went to the prosecuting attorney's office to prepare an application and affidavit for a warrant to search Wilson's residence and vehicle. Officer Jones also directed Officer Tina Cook ("Officer Cook") to interview the Victim. During this interview, the Victim told Officer Cook that Wilson had videotaped her engaging in various sexual acts using a video camera and his cellular phone. The Victim told Officer Cook that Wilson kept the video camera on the floor of the front room of his residence. She also told Officer Cook that Wilson kept drugs and a handgun in a closet on the first floor.

While Officer Cook was interviewing the Victim, Officer Jones was at the prosecuting attorney's office working on the warrant application. After the application and affidavit were typed, but before they were sworn to by Officer Jones, Officer Cook called prosecuting attorney Mike Hazel and informed him of what the Victim had said during her interview. Hazel added this information in handwriting to the warrant application.

Based on this additional information, Officer Jones obtained a warrant to search Wilson's residence and vehicle for controlled substances and the Victim's personal belongings. Immediately prior to executing the warrant, Officer Cook briefed the other officers about her interview with the Victim. During the search, Officer Cook found a video camera on the floor of Wilson's front room, precisely where the Victim said it would be. Officer Cook removed the video tape and left the camera at Wilson's residence. Another officer seized a handgun found in a downstairs closet. While searching Wilson's Cadillac, Officer Jones found a cellular phone with a built-in camera. Although there is some ambiguity in the record about what happened next, Officer Jones eventually opened the phone and observed pornographic photographs stored on it.

At this point, the facts take an odd turn. Officer Jones had fathered two children with a woman named Jennifer Selvege. At the time of the search, Selvege was romantically involved with Wilson, apparently to Officer Jones's disapproval. Officer Jones had previously asked Selvege not to allow their children to be around Wilson. After finding the phone in Wilson's vehicle, Officer Jones called Selvege to tell her about the photographs and reiterate his request that she not permit their children to be around Wilson. At the suppression hearing, Selvege testified that, when she was at the Caruthersville police station on a date sometime after the execution of the search warrant, Officer Jones showed her the images stored on the phone. Officer Jones denied that he ever showed Selvege the phone.

Several months after the execution of the search warrant, Federal Bureau of Investigation Agent Herbert Stapleton ("Agent Stapleton") went to Wilson's residence to execute a federal arrest warrant for the crime of being a felon in possession of a firearm. Agent Stapleton was aware of the Victim's child pornography allegations against Wilson. While executing the arrest, he recognized the video camera from photographs he had seen of the prior search. Because of his belief that the camera might be relevant to the child pornography accusations, Agent Stapleton seized the video camera. Federal agents later sought and obtained a search warrant to search the data stored on the cellular phone and videotape.

Wilson was subsequently indicted on several charges: one count of transporting a minor across state lines for criminal sexual activity in violation of 18 U.S.C. § 2423(a), two counts of producing child pornography in violation of 18 U.S.C. § 2251(a), one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), and two counts of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Wilson did not challenge the indictment before the district court. He now alleges for the first time that his indictment was procured through the Victim's perjured testimony.

Wilson filed a motion to suppress the videotape, video camera, cellular phone, and firearm on the theory that the seizure of these items was unlawful because they were not listed with particularity in the search warrant. The district court denied the motion to suppress, explaining that all of these items were in "plain view" and therefore a warrant was not required for their seizure. Wilson now contends that the criminal character of these items was not "immediately apparent" as required by the plain view doctrine. See, e.g., United States v. Khabeer, 410 F.3d 477, 482 (8th Cir.2005); United States v. Weinbender, 109 F.3d 1327, 1330 (8th Cir.1997). Wilson does not appeal the seizure of the firearm.

During the pre-trial conference, the government moved to dismiss the possession of child pornography charges. As the government acknowledges, this was done to relieve the prosecution of the need to prove that Wilson knew that the Victim was a minor.² The district court granted the motion and dismissed the possession of child pornography charges. The government also sought an order prohibiting Wilson from presenting to the jury any evidence suggesting that he mistakenly believed the Victim to be 18 or older. The district court granted this request as well and approved the government's proposed jury instruction, which omitted any reference to scienter or a reasonable-mistake-of-age defense.

During voir dire, Wilson moved for a mistrial based on his allegation that the jury pool was biased against him. One of the prospective jurors had related a story about her daughter who had been kidnapped and forced into prostitution. Wilson claims that several jurors were crying in response to this story, and that this display of emotion compromised the jury's objectivity. The district court denied the request for a mistrial. Finally, at the close of the government's evidence, Wilson requested a judgment of acquittal arguing that the evidence was legally insufficient to support a conviction. The district court denied his request.

II.

Wilson seeks suppression of the videotape, camera, and cellular phone on the grounds that they were not lawfully seized under the "plain view" exception to the warrant requirement. "The plain view doctrine allows a police officer to seize evidence without a warrant when (1) the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed, (2) the object's incriminating character is immediately apparent, and (3) the officer has a lawful right of access to the object itself." United States v. Abumayyaleh, 530 F.3d 641, 648-49 (8th Cir.2008) (quotation omitted); see also Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). "We review the district court's findings of fact for clear error and review Fourth Amendment seizures de novo." Abumayyaleh, 530 F.3d at 648 (citation omitted).

Wilson limits his appeal to whether the incriminating character of the seized items was immediately apparent. "Evidence is immediately apparent if there is probable cause to associate the property [seized] with criminal activity." United States v. Armstrong, 554 F.3d 1159, 1163 (8th Cir.2009) (quotation omitted). "Probable cause demands not that an officer be sure or certain but only that the facts available to a reasonably cautious man would warrant a belief that certain items may be contraband or stolen property or useful as evidence of a crime." United States v. Weinbender, 109 F.3d 1327, 1330 (8th Cir.1997) (quotation omitted). "In determining whether this requirement is met, we may consider the collective knowledge of the...