United States v. England
| Decision Date | 06 February 2023 |
| Docket Number | 21-5273 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROBERT CHRISTOPHER ENGLAND, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
NOT RECOMMENDED FOR PUBLICATION
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY
Before: BATCHELDER, WHITE, and MURPHY, Circuit Judges.
Defendant-Appellant Robert England appeals the denial of his motions to suppress the fruits of a search of his work-issued laptop and to dismiss a count of the superseding indictment charging him with possession of child pornography. He also challenges his sentence, arguing that various Sentencing Guideline provisions were improperly scored and that his sentence is substantively unreasonable. We AFFIRM.
Robert Chris England ("England") was employed as a firefighter by the Middlesboro Fire Department. His father, Robert England ("Chief England"), was the chief officer of the fire department at times relevant to this appeal. In early 2017, Chief England promoted England and two other firefighters, Troy Perry and Rick Evans, to the rank of lieutenant, and assigned each a laptop labeled with the name of the lieutenant to whom it was assigned. However, the lieutenants were told that all firefighters could use the laptops for continuing education, fire training, and other uses.
By all accounts, England treated his laptop somewhat differently than did the other lieutenants. For example, Lieutenant Evans took his laptop home with him and brought it back the next work day. When at work, he left it on his desk the entire day and let others use it as needed. Lieutenant Perry mostly left his laptop sitting out in the office reserved for lieutenants. Like Lieutenant Evans, England took his laptop home with him and brought it back the next work day. However, colleagues of England recalled that he was "usually always in the office on the computer," R.288, PID 3045, and that R.289, PID 3405-06. Additionally, unlike the laptops assigned to the other lieutenants, England's laptop was not made generally available for use by others. England was also the only lieutenant who kept his laptop password-protected. England was occasionally seen plugging an external hard drive into his laptop.
In June 2018, local law-enforcement officials began an investigation into allegations that England exposed himself to a minor ("Minor A") at a Walmart store in Middlesboro. On the morning of June 23, 2018, at the police station located across the street from the fire station, Floyd Patterson, an officer with the Middlesboro Police Department, interviewed England about the allegations. The interview lasted approximately ten minutes and ended around 9:48 a.m. When the interview ended, England returned to the fire department, where Jonathan Farmer, a colleague of England's, observed him walk directly to the lieutenant's office, where he R.287, PID 2976.
Farmer observed England for approximately 30 to 45 seconds, after which England loaded the laptop into a black bag and went home, where he lived with Chief England.
Believing that England was deleting incriminating materials from his laptop, Farmer sent a text message to his friend, State Trooper George Howard, informing him of what he had seen. After receiving the text message from Farmer, and approximately twenty minutes after England left the interview with Patterson, Howard called Patterson and advised him that England was visibly nervous after leaving the police department and appeared to be deleting materials from his laptop. In response to Howard's phone call, Patterson called Officer Jeremiah Johnson and asked him to call Chief England. When Patterson learned that the laptop belonged to the city, he directed Johnson to ask Chief England to bring the laptop to the police station.
Johnson called Chief England at approximately 10:30 a.m. Chief England agreed to bring the laptop and arrived at the police station at approximately 12:30 p.m. Patterson informed Chief England about the allegations against England and asked for Chief England's consent to search the laptop, noting that the laptop belonged to the city. Chief England agreed and signed a consent form. The mayor of Middlesboro subsequently signed a form consenting to the search of the laptop as well, but the date on which he did so is unclear. Patterson and Johnson never asked England for his consent. The laptop was sent to the Kentucky State Police for a forensic examination.
The forensic examination revealed that England's laptop contained 630 images of child pornography, including depictions of sadistic or masochistic conduct, such as the anal penetration of a toddler. The examination also revealed that an external hard drive containing folders with names indicating that they contained child pornography had been connected to the laptop; that the laptop had been used to access the Tor Browser, which allows the user to browse the internet anonymously, including "dark web" sites that are not indexed by regular search engines; and that CCleaner, a data-cleaning software found on the laptop, was manually run 333 times, including at 9:48 a.m. on June 23, 2018. All of the settings on CCleaner were set to default except the "Autocomplete Form History" option, and it was not set to run automatically.
By the time the Kentucky State Police received the laptop, many images were in deleted or "unallocated space" on the computer and their data "carved," or removed. Some images, however, were in "allocated space" in the cache of a program called ManyCam that enhances the functionality of videoconferencing tools.
B.
A federal grand jury returned an indictment charging England with three counts of receiving a visual depiction of a minor engaged in sexually explicit conduct, on May 13, 2018, May 27, 2018, and June 11, 2018, respectively, in violation of 18 U.S.C. § 2252(a)(2). Each count contained a description of the image of child pornography underlying the count. A federal grand jury later issued a superseding indictment charging England with an additional count of possessing a laptop containing visual depictions of a minor engaged in sexually explicit conduct from approximately April 2017 to June 23, 2018, in violation of 18 U.S.C. § 2252(a)(4)(B).
England filed a motion to suppress the images discovered on the laptop, arguing that the seizure and search of his laptop without a warrant was not supported by any valid exception to the Fourth Amendment's warrant requirement. As relevant here, England argued that neither Chief England nor the mayor had actual authority to consent to the search because they did not have mutual use or joint access or control of the laptop. England also argued that Chief England and the mayor lacked apparent authority to consent to the search and that no reasonable officer could rely on the fact that the city owned the laptop in seeking their consent to the search. At the very least, England contended, the circumstances confronting the officers were sufficiently ambiguous that they were required to inquire further before seizing and searching the laptop.
The government opposed the motion, and the magistrate judge held an evidentiary hearing and issued a recommendation that the motion be denied. England objected, and the district court overruled his objections and adopted the magistrate judge's recommended disposition as its own. The district court found that Chief England had both actual and apparent authority to consent to the search of the laptop.
Before trial, the government filed a notice of its intent to introduce evidence, pursuant to Rule 414 of the Federal Rules of Evidence, that England had committed acts of child molestation during the period in which the charged offenses were alleged to have occurred. In particular, the government advised of its intent to introduce evidence that England: (1) masturbated in front of a 10-year-old boy ("Minor A") in a public restroom at a Walmart store; (2) sexually abused a 6- or 7-year-old boy ("Minor B") approximately twenty times; and (3) took photographs of two or three boys who were around twelve years of age in their underwear ("Minors C"). England filed separate motions in limine to exclude all evidence concerning Minors A, B, and C, and the district court held a hearing on the motions.
The district court granted the motion in part and denied it in part as to Minor A, ruling that the government could only introduce evidence "of the fact that Defendant was briefly interviewed on June 23, 2018 at 9:38 a.m. by an officer of the Middlesboro Police Department regarding an unrelated incident involving allegations against Defendant involving a minor male." R.200, PID 1624-25. The district court denied England's motion in limine as to Minor B, allowing the introduction of testimony from Minor B himself but excluding testimony from England's colleagues supporting Minor B's allegations. Finally, the district court granted the motion in limine as to Minors C.
After a five-day trial, the jury returned guilty verdicts on all four counts. England then filed a motion to dismiss Count 4 of the superseding indictment-charging possession of a laptop containing visual depictions of a minor engaged in sexually explicit conduct-arguing that punishing him for that offense would violate the Double Jeopardy Clause of the Fifth Amendment. Specifically, he argued that he could not be convicted of both possessing and receiving child pornography that the...
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