United States v. Benoit
| Decision Date | 02 April 2013 |
| Docket Number | No. 12–5013.,12–5013. |
| Citation | 713 F.3d 1 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Joseph Eddy BENOIT, Defendant–Appellant. Vicky, Amicus Curiae. |
| Court | U.S. Court of Appeals — Tenth Circuit |
OPINION TEXT STARTS HERE
Art Fleak, Tulsa, OK, for the Defendant–Appellant.
Richard A. Friedman (Thomas Scott Woodward, United States Attorney, and Jeffrey A. Gallant, Assistant United States Attorney, Lanny A. Breuer, Assistant Attorney General, and John D. Buretta, Acting Deputy Assistant Attorney General, with him on the briefs), United States Department of Justice, Washington, D.C., for the Plaintiff–Appellee.
Paul G. Cassell, S.J. Quinney College of Law at the University of Utah (James R. Marsh, Marsh Law Firm PLLC, White Plains, NY, and Carol L. Hepburn, Carol L. Hepburn PS, Seattle, WA, with him on the briefs), Salt Lake City, UT, for Amicus Curiae.
Before LUCERO and BALDOCK, Circuit Judges, and SKAVDAHL, District Judge *.
Joseph Benoit was convicted of receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2) and (b)(1), and possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). He was sentenced to concurrent terms of 125 and 120 months' imprisonment and ordered to pay $11,466 in restitution. He challenges his conviction and sentence on several grounds.
Benoit contends that the district court erred in denying his motion to suppress evidence obtained from a search of his computer. We reject this claim. Law enforcement officials seized Benoit's computer after his girlfriend discovered child pornography on it. The Fourth Amendment is “wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (quotation omitted). On the record before us, it is clear that the officer called to Benoit's residence acted as a mere witness while private individuals showed the officer child pornography. Without any indication that the officer instigated or encouraged the private search, we conclude that the officer did not search Benoit's computer within the meaning of the Fourth Amendment. We also conclude that the officer properly seized Benoit's computer given the plainly evident incriminating character of the child pornography.
Benoit also challenges his convictions for both receipt and possession of child pornography under the Double Jeopardy Clause. We agree with Benoit that possessionis a lesser included offense of receipt in cases in which the same child pornography forms the basis of each charge. We join several of our sibling circuits in so holding. See United States v. Muhlenbruch, 634 F.3d 987, 1003 (8th Cir.2011) (collecting cases). And we reject the government's assertion that the convictions in this case are related to separate depictions. Absent a clear indication that Congress intended multiplicitous punishments for receipt and possession, both convictions cannot stand.
Finally, Benoit argues that the district court's restitution order was improper. In accord with the majority of circuits to have considered the issue, we hold that 18 U.S.C. § 2259 requires a showing that a victim's losses are proximately caused by the defendant's conduct. See United States v. Aumais, 656 F.3d 147, 153 (2nd Cir.2011). Because the district court did not explain whether specific losses suffered by the victim were proximately caused by Benoit's actions, we remand for a redetermination of the portion of damages allocable to Benoit.
We affirm as to Benoit's numerous remaining claims. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part, reverse in part, and remand for further proceedings.
Benoit and his girlfriend, Rose DeGraffenreid, resided in Tulsa, Oklahoma, in a home rented by DeGraffenreid. On the morning of July 15, 2010, Officer Mark Moore of the Tulsa Police Department (“TPD”) responded to a call from DeGraffenreid's residence relating to child pornography. When Moore arrived at the residence, he was greeted by DeGraffenreid, who invited him in and explained that while she was using Benoit's computer to pay bills, she had found what appeared to be child pornography on his computer.
DeGraffenreid and Nicole Kidd, a relative of DeGraffenreid's residing with her at the time, led Moore to a room used as an office that had two computers. The office was unlocked. Benoit's computer was on and open to the main desktop page. Because DeGraffenreid was not “computer-savvy,” she had Kidd open a child pornography video they had found. Kidd said “I can show it to you,” to which Moore responded “Okay.” Kidd then “clicked on an icon and opened up” the video. Kidd offered to open additional files, but Moore told her that was not necessary.
Moore then called Detective Scott Gibson with the TPD's cybercrimes unit. Gibson instructed Moore to seize the computer and obtain witness statements from DeGraffenreid and Kidd. DeGraffenreid did not object to Moore taking possession of the computer. Moore testified at a later suppression hearing that the computer was “in a common area,” that it appeared “both Ms. DeGraffenreid and Ms. Kidd had joint use and free access to the computer,” and that he never “direct[ed] Ms. DeGraffenreid or Ms. Kidd to do anything ... [a]ll their actions were voluntary.”
On July 23, 2010, a magistrate judge issued a search warrant authorizing the search of Benoit's computer. Sergeant Malcolm Williams of the TPD cybercrimes unit found over 320 images and approximately eighty videos of child pornography. A few days later, Benoit called Sergeant Williams and asked for a meeting. Sergeant Williams and Detective Gibson met and interviewed Benoit at a truck stop, during which Benoit admitted to having downloaded child pornography over a period of several years. Benoit wrote and signed a statement to that effect.
In June 2011, Benoit was charged in a two-count indictment with receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2) and (b)(1) ( “Count One”) and possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2) (“Count Two”). He moved to suppress the evidence taken from his computer and to dismiss the indictment for lack of an interstate commerce nexus. The assigned magistrate judge recommended denial of both motions. Over Benoit's objections, the district court adopted the magistrate judge's recommendations. Benoit's motion for a bill of particulars seeking to differentiate the count of receipt and count of possession based on potential double jeopardy issues was also denied.
At trial, a jury found Benoit guilty on both counts. Benoit filed various post-trial motions, including a motion for a new trial. All post-verdict motions were denied. Benoit was sentenced to concurrent terms of 125 and 120 months' imprisonment and was ordered to pay $11,466 in restitution to one of the victims who appeared in a depiction of child pornography possessed by Benoit. Benoit appeals.
We first consider Benoit's Fourth Amendment claim. A denial of a motion to suppress is reviewed de novo. United States v. McGehee, 672 F.3d 860, 866 (10th Cir.2012). We accept the district court's factual findings unless they are clearly erroneous and view the evidence in the light most favorable to the government. Id. “The ultimate question of reasonableness under the Fourth Amendment is a legal conclusion that we review de novo.” United States v. Burgess, 576 F.3d 1078, 1087 (10th Cir.2009).
Benoit argues that Officer Moore's inspection and seizure of his computer without first having obtained a search warrant violated his Fourth Amendment rights. He claims that DeGraffenreid lacked actual or apparent authority to consent to Officer Moore's search of his computer because she had informed Moore that the computer did not belong to her.
Subject to limited exceptions, the Fourth Amendment prohibits warrantless searches. Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). Voluntary consent by a third party with actual or apparent authority is a well-established exception to the warrant requirement. United States v. Andrus, 483 F.3d 711, 716 (10th Cir.2007). “A third party has actual authority to consent to a search if that third party has either (1) mutual use of the property by virtue of joint access, or (2) control for most purposes.” Id. (quotation omitted). Apparent authority may be found if “the facts available to the officer” at the time of the search would lead a person “of reasonable caution” to believe “that the consenting party had authority over the premises.” Rodriguez, 497 U.S. at 188, 110 S.Ct. 2793 (quotation omitted). On this basis, “a third party has apparent authority to consent to a search when an officer reasonably, even if erroneously, believes the third party possesses authority to consent.” Andrus, 483 F.3d at 716.
A
Before addressing the question of consent, we first determine whether Officer Moore's viewing of the child pornography video prior to seizing Benoit's computer constitutes a search covered by the Fourth Amendment. In deciding the issue, we consider Officer Moore's testimony that he was dispatched to DeGraffenreid's residence to investigate a possible child pornography matter. Moore testified that on arriving at the residence:
A. [DeGraffenreid] told me she had found that stuff on her boyfriend's computer, and she said that I could look at the—that she would show me some of the stuff on the computer. She had [Kidd] take me back and open up a file on the computer.
...
Q. And where did they take you?
A. Took me to a room they're using as an office.
...
Q. Was the computer turned on, one of them?
A. Yes.
Q. What, if anything, happened next?
A. Well, we sat down, [Kidd] sat next to me, and she opened up—she clicked on an icon and opened up a video and showed me the...
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