U.S. v. Winningham

• Decision Date: 20 December 1996
• Docket Number: Crim. No. 4-96-134.
• Parties: UNITED STATES of America, Plaintiff, v. James G. WINNINGHAM, Defendant.
• Court: U.S. District Court — District of Minnesota

953 F.Supp. 1068

UNITED STATES of America, Plaintiff, v. James G. WINNINGHAM, Defendant.

Crim. No. 4-96-134.

United States District Court, D. Minnesota, Fourth Division.

December 20, 1996.

COPYRIGHT MATERIAL OMITTED

D. Gerald Wilhelm, Assistant United States Attorney, for Plaintiff.

Robert Richman, Assistant Federal Public Defender, for Defendant.

ORDER

MONTGOMERY, District Judge.

INTRODUCTION

This matter is before the Court pursuant to both parties objections to the December 5, 1996 Report and Recommendation ("R & R") of Magistrate Judge Raymond L. Erickson. In the R & R, Judge Erickson recommended this Court deny Defendant's motion to dismiss, but grant in part¹ Defendant's motion to suppress evidence. After conferring with the parties on December 20, 1996, the Court has decided to adopt Judge Erickson's R & R.

BACKGROUND

The factual background for this matter is clearly and concisely set forth in the R & R. The Court incorporates those facts by reference for purposes of the present objections.

DISCUSSION

A district court must make an independent, de novo determination of those portions of a report and recommendation to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendation made by the magistrate judge. See 28 U.S.C. § 636(b)(1)(C) and Local Rule 72.1(c)(2).

The Court has made a de novo review of the record as well as the applicable case law. For the same reasons stated in Judge Erickson's thorough discussion on the motions, the Court will adopt the recommendations detailed in the R & R.

CONCLUSION

Based upon the foregoing, and all of the files, records, and proceedings herein, the Court ADOPTS the Report and Recommendation of Magistrate Judge Erickson.

Accordingly, IT IS HEREBY ORDERED that:

1. Defendant's Motion to Dismiss Indictment (Doc. No. 10) is DENIED;

2. Defendant's Motion to Suppress Evidence Obtained by Search and Seizure (Doc. No. 16) is GRANTED, except as to that evidence which was seized pursuant to that portion of the Warrant which authorized the search and seizure of "visual materials in all forms depicting minor[']s genitalia and * * * sexual contact involving minors"; and,

3. Defendant's Motion to Suppress Statements, Admissions and Answers (Doc. No. 17) is DENIED as MOOT.

FINDINGS AND RECOMMENDATION

[December 5, 1996]

ERICKSON, United States Magistrate Judge.

I. Introduction

This matter came before the undersigned United States Magistrate Judge pursuant to a general assignment, made in accordance with the provisions of Title 28 U.S.C. § 636(b)(1)(A) and (B), upon the following Motions of the Defendant:

1. Motion for Disclosure of 404 Evidence.¹

2. Motion to Compel Attorney for the Government to Disclose Evidence Favorable to the Defendant.²

3. Motion for Discovery.³

4. Motion for Early Disclosure of Jencks Act Material.⁴

5. Motion for Government Agents to Retain Rough Notes.⁵

6. Motion for Bill of Particulars.⁶

7. Motion to Suppress Evidence Obtained by Search and Seizure.

8. Motion to Suppress Statements, Admissions and Answers.⁷

9. Motion to Dismiss Indictment.

A Hearing on these Motions was conducted on November 8, 1996,⁸ at which time the Defendant appeared personally, and by Robert D. Richman, Assistant Federal Defender, and the Government appeared by D. Gerald Wilhelm, Assistant United States Attorney.

As to those Motions which remain unresolved, we recommend that the Motion to Dismiss be denied, and that the Motion to Suppress be denied, in part, and granted, in part.

II. Findings of Fact

In an Indictment, that was filed on October 16, 1996, the Defendant was charged with a single Count of knowingly possessing "3 or more books, magazines, periodicals, film, video tapes and other matter, which contained visual depictions that had been mailed, and had been shipped or transported in interstate or foreign commerce, and which were produced using materials which had been mailed and so shipped and transported, which visual depictions were of minors engaging in sexually explicit conduct, all in violation of Title 18, United States Code Section 2252(a)(4)(B)." The alleged offense is said to have occurred on December 26, 1995. As pertinent to these charges, and to the pending Motions to Dismiss and to Suppress, the relevant facts may be briefly summarized.⁹

On November 10, 1995, a social worker in the Defendant's apartment complex, who had both the responsibility and the authority to inspect the individual apartment residences, in order to assure that the premises and furnishings were being properly maintained, surveyed the Defendant's apartment. In the course of that inspection, the social worker uncovered a "pile of polaroid photos of nude girls" in a dresser drawer. According to the social worker's description, "[s]ome of the girls appeared to be anywhere from four years on up to eleven and fourteen years old," and "some of the girls appeared to be beaten and spanked, indicating in one photo the girl had a red buttock and a wooden stick was laying in the background." In addition, the social worker reviewed a "stack of letters" that had been intermingled with the photographs. Some of these letters were from out-of-state, and appeared to have been written to young girls and, in one, the Defendant is purported to have written that "Infantilism is my thing."

Believing that, as a social worker, he had a legal and moral obligation to report his discovery to the authorities, on December 20, 1995, the social worker brought the matter to the attention of Sergeant Eugene Polyak ("Polyak"), an 11-year veteran of the St. Paul Police Department, who was then assigned to the Vice Unit. On December 26, 1995, Polyak applied to a State District Court for a Warrant to search the Defendant's apartment. In addition to the observations of the social worker, which we have previously detailed, Polyak advised that the Defendant had prior convictions, in 1985, for "Use of Minors in Sexual Performance, and [for] Possession of photographs of minors-sexual conduct."¹⁰ In particular, Polyak sought the Court's permission to search the Defendant's apartment for the following evidence:

1) Visual materials in all forms depicting minors [sic] genitalia and or sexual contact involving minors.

2) Any and all forms of communications with or about sexual performance by minors or concerning pedophile activity.

During the search which ensued on that same day, police officers seized certain items of mail, that were addressed to Post Office Box 2273, which was listed to the Defendant; a large quantity of sexual letters written to young females; a large quantity of pictures involving nude minors; eight video tapes; four books;¹¹ an audio tape; four notebooks; and a small file box which contained letters to minors and pictures of minors.

Subsequently, in June of 1996, Ronald H. Miller ("Miller"), a Postal Inspector with the United States Postal Service, applied for a Warrant to search a first-class letter, that was described as follows:

A letter with a return address of "Becky", P.O. Box 3301, Auburn, ME 04210. The postmark on the envelope is from Portland, Maine[,] with a date of 11 Jun 996. The envelope contains first-class postage in the form of a preprinted Liberty Bell Stamp. The envelope is addressed to "Jim", P.O. Box 2273, St. Paul, MN 55102. The envelope measures approximately 9-½" × 4" and on the reverse is a childlike drawing of a girl with a balloon and a swing set.

In support of the Warrant, Miller advised that, in October of 1995, he had been contacted by a law enforcement officer, in Winnipeg, Manitoba, concerning an advertisement in a sexually-oriented magazine that had been placed by a correspondent in St. Paul. On December 28, 1995, Miller responded to the advertisement, in an undercover capacity, by using the pseudonym "Ronnie." The Defendant replied to that letter, in early January of 1996, and Miller continued to correspond with the Defendant, still undercover, through March of that year. The Defendant's letters contained graphic references to sexual acts involving minor females. Given the foregoing, and the Defendant's prior criminal history as a pedophile, Miller expressed his belief that the "Becky" letter contained evidence of a violation of Title 18 U.S.C. § 2252(a)(1). On June 18, 1996, based upon Miller's application, United States Magistrate Judge J. Earl Cudd issued a Warrant to search the "Becky" letter, and that search was completed on that same date.¹²

In his Motion to Dismiss, the Defendant contends that we are without jurisdiction to address the charges against the Defendant, because the prohibitions of Title 18 U.S.C. § 2252(a)(4)(B), under which he was charged, are beyond Congress's power to legislate under the Constitution's commerce clause. See, e.g., United States v. Lopez, ___ U.S. ___, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). As for his Motion to Suppress the Warrant issued by the State District Court on December 26, 1995, the Defendant urges that the Warrant was issued without probable cause, that the Warrant was unconstitutionally overbroad, and that the search, which was authorized by that Warrant, exceeded the scope of the authorization given. Since the Defendant's Motion to Dismiss questions our jurisdiction to hear any aspect of this matter, we address that Motion first.

III. Discussion

A. The Defendant's Motion to Dismiss. Recently, in United States v. McMasters, 90 F.3d 1394, 1397 (8th Cir.1996), our Court of Appeals explained the Supreme Court's decision, in Lopez, as follows:

In Lopez, the Supreme Court held that the Gun Free School Zones Act, 18 U.S.C. § 922(q), exceeded Congress's authority under the Commerce Clause. The Court noted that, under its commerce power, Congress may: (1) regulate the use of the channels of interstate commerce; (2) regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though a threat may...