United States v. Caudle

• Decision Date: 28 June 2019
• Docket Number: CR 118-072
• Parties: UNITED STATES OF AMERICA v. COLTEN CAUDLE
• Court: U.S. District Court — Southern District of Georgia

UNITED STATES OF AMERICA v. COLTEN CAUDLE

CR 118-072

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION

June 28, 2019

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Before the Court are Defendant's motion to dismiss, (doc. no. 39), motion to suppress, (doc. no. 38), and supplemental motion to suppress, (doc. no. 58). Upon consideration of the briefs and hearing testimony on March 5, May 24, and June 14, 2019, the Court REPORTS and RECOMMENDS Defendant's motions be DENIED.

I. THE COURT SHOULD DENY DEFENDANT'S MOTION TO DISMISS THE INDICTMENT AND FOR A BILL OF PARTICULARS

The indictment charges Defendant with one count of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Defendant moves to dismiss the indictment, arguing the mandatory minimum sentence in 18 U.S.C. § 2252A(a)(2) and related Sentencing Guidelines violate the U.S. Constitution, the indictment is unconstitutionally vague because it does not specify the images alleged to be child pornography, and he is entitled to a bill of particulars. (See doc. no. 39.) The government responds there is no mandatory minimum sentence, the indictment sufficiently alleges the essential elements of the crime, and a bill of particulars is unnecessary considering information provided in the indictment and discovery. (Doc. no. 42.) The government is correct as to all three issues.

First, there is no mandatory minimum sentence. Defendant challenges the mandatory minimum sentence in 18 U.S.C. § 2522A(a)(2), but it does not apply because Defendant is charged with possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Section 2252A(b)(2) specifies the maximum penalties for possession of child pornography, and while this code section does contain a mandatory minimum sentence, its application is limited to defendants with enumerated prior convictions, of which Defendant has none according to his bail report. Indeed, the penalty certification does not mention a mandatory minimum sentence, and the government confirmed in its response brief there is no mandatory minimum sentence. (Doc. nos. 4, 42.) Defendant's challenge to U.S.S.G. § 2G2.2 is premature because he has not stood trial. See United States v. Woods, 730 F. Supp. 2d 1354, 1370 n.13 (S.D. Ga. 2010) (declining to address challenge to Sentencing Guidelines prior to trial) (citing United States v. Witherspoon, 51 F.3d 1041 (5th Cir. 1995) (Table) (approving district court's rejection as premature of Guidelines challenge raised in motion to dismiss indictment)).

Second, the indictment is not unconstitutionally vague by not specifying each image the government contends to be child pornography. (Doc. no. 39, pp. 2-5.) An indictment is sufficient if it (1) presents the essential elements of the charged offense, (2) notifies the accused of the charges, and (3) enables the accused to rely upon a judgment as a bar against double jeopardy. United States v. Walker, 490 F.3d 1282, 1296 (11th Cir. 2007); United States v. Cole, 755 F.2d 748, 759 (11th Cir. 1985). The sufficiency of a criminal indictment is determined from its face. United States v. Sharpe, 438 F.3d 1257, 1263 (11th Cir. 2006). "'Facial sufficiency is not a high hurdle.'" Woods, 730 F. Supp. 2d at 1372 (citing United States v. Bates, 96 F.3d 964, 970 (7th Cir. 1996)). "An indictment that tracks the languageof the relevant statute is sufficient, as long as it also provides a statement of facts and circumstances that give notice of the offense to the accused." Walker, 490 F.3d at 1296 (citation omitted); see also United States v. Silverman, 745 F.2d 1386, 1392 (11th Cir. 1984) ("The accusation must be legally sufficient, i.e., it must assert facts which in law amount to an offense and which, if proved, would establish prima facie the accused's commission of that offense." (citations omitted)). Ultimately, "'the appropriate test is not whether the indictment might have been drafted with more clarity, but whether it conforms to minimal constitutional standards.'" United States v. McGarity, 669 F.3d 1218, 1235-36 (11th Cir. 2012) (quoting United States v. Varkonyi, 645 F.2d 453, 456 (5th Cir. 1981)), abrogated on other grounds, Paroline v. United States, 572 U.S. 434 (2014), as recognized in United States v. Rothenberg, 923 F.3d 1309, 1335-37 (11th Cir. 2019).

The one-count indictment alleges the following:

Beginning at a time unknown to the Grand Jury but at least on or about October 17, 2017, in Richmond County, within the Southern District of Georgia, the defendant, COLTEN CAUDLE, did knowingly possess material which contained one or more images of child pornography as defined in Title 18, United States Code, Section 2256(8)(A), that is, any visual depiction of a minor, any person under 18 years old, engaged in sexually explicit conduct, one or more of such images depicting a prepubescent minor or any person under 12 years old engaged in sexually explicit conduct, said images having been shipped or transported in or affecting interstate or foreign commerce by any means, including by computer. All in violation of Title 18, United States Code, Section 2252A(a)(5)(B).

(Doc. no. 3, p. 1.) The indictment sufficiently notifies Defendant of the charge, presents the essential elements by tracking the language of § 2252A(a)(5)(B), specifies a time frame for the offense conduct of on or about October 17, 2017, and states the location where Defendant allegedly possessed the images as Richmond County, Georgia. (Id. at 1.)

Defendant will be able to rely upon a judgment under the indictment as a bar againstdouble jeopardy for any subsequent prosecution for the same offense because any future court "'may refer to the entire record of the prior proceeding and [will] not be bound by the indictment alone.'" United States v. Steele, 178 F.3d 1230, 1235 (11th Cir. 1999) (quoting United States v. Jaswal, 47 F.3d 539, 542-43 (2d Cir. 1995)). Here, the government has specified 662 images found on Defendant's digital devices that it contends constitute child pornography, committed to specifying which of the 662 images it will present to the jury at trial no later than thirty days in advance of the trial date, produced its forensic analyses of the devices, and made the images and devices available for inspection by Defendant's attorney and IT expert.

An indictment charging possession of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B) need not describe nor list the images at issue to pass constitutional muster. Many courts to consider this same defense argument have resoundingly rejected it,¹ and these decisions are entirely consistent with longstanding Eleventh Circuit precedent that an indictment need not "'allege in detail the factual proof that will be relied upon to support the charges.'" Sharpe, 438 F.3d at 1263 n.3 (quoting United States v. Crippen, 579 F.2d 340,342 (5th Cir. 1978)²); see also Bates, 96 F.3d at 970 ("Indictments need not exhaustively describe the facts surrounding a crime's commission nor provide lengthy explanations of the elements of the offense."). Indeed, in Bailey, the Eleventh Circuit rejected the defendant's argument a child pornography indictment was fatally deficient because it did not identify the specific images at issue, explaining the defendant could invoke double jeopardy in future proceedings based on the images produced in discovery and introduced into evidence at trial. 778 F.3d at 1201.

Defendant cites no authority supporting a contrary conclusion, and instead only offers United States v. Cain, No. 0:08-CR-0026 (PJS/JSM), 2008 WL 5382005 (D. Minn. Nov. 18, 2008), as an example of the government specifying the offending computer files. (Doc. no. 39, p. 3). Cain discusses specific images in the context of calculating the defendant's sentence, and nothing in Cain suggests an indictment is constitutionally inadequate absent specification of the images. See generally Cain, 2008 WL 5382005.

The forfeiture allegation is also sufficient and not subject to dismissal. Defendant argues it is "bereft of adequate facts and provides insufficient notice as to what personal property . . . the government contends contained the contraband." (Doc. no. 39, p. 4.) In addition to tracking the language of the controlling statute, 18 U.S.C. § 2253, the forfeiture allegation specifically lists six items to be forfeited upon conviction and includes the serial numbers of all but one of the items listed. (Doc. no. 3, p. 2.) Defendant does not indicate what, if any, additional information the government could have included.

Finally, Defendant is not entitled to a bill of particulars. "The purpose of such a billis 'to inform the defendant of the charge against him with sufficient precision to allow him to prepare his defense, to minimize surprise at trial, and to enable him to plead double jeopardy in the event of a later prosecution for the same offense.'" United States v. Roberts, 174 F. App'x 475, 477 (11th Cir. 2006) (quoting United States v. Anderson, 799 F.2d 1438, 1441 (11th Cir. 1986)). A bill of particulars is not required where the information sought has already been provided by other sources, such as the indictment and discovery. Id. (citing United States v. Martell, 906 F.2d 555, 558 (11th Cir. 1990)). Here, the detailed information provided by the government in its discovery regarding the specific child pornography images purportedly found on Defendant's digital devices is more than sufficient. When considering an analogous indictment and discovery in Tillotson, the Sixth Circuit affirmed denial of a motion for bill of particulars because, as here, "the indictment—coupled with these discovery materials—adequately notified [Defendant] of the case against him and provided ample opportunity to prepare a defense." 490 F. App'x at 778.

For these reasons, Defendant's motion to dismiss should be DENIED. (Doc. no. 39.)

II. THE COURT SHOULD DENY DEFENDANT'S MOTIONS TO SUPPRESS

Defendant argues...