United States v. Joubert
| Decision Date | 11 February 2015 |
| Docket Number | No. 14–1259.,14–1259. |
| Citation | 778 F.3d 247 |
| Parties | UNITED STATES of America, Appellee, v. Robert JOUBERT, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
OPINION TEXT STARTS HERE
Judith H. Mizner, Assistant Federal Public Defender, for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom John P. Kacavas, United States Attorney, was on brief, for appellee.
Before TORRUELLA, HOWARD, and KAYATTA, Circuit Judges.
Robert Joubert was convicted of three counts of sexual exploitation of children, in violation of 18 U.S.C. § 2251(a), and one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). On appeal, Joubert raises four issues: (1) the search warrant failed to supply a nexus to the place being searched; (2) the district court abused its discretion in admitting testimony of uncharged child molestation; (3) the Commerce Clause cannot support application to him of the federal criminal statutes under which he was indicted; and (4) his 480–month sentence was substantively unreasonable. We affirm his conviction and sentence in all respects.
In March 2012, a mother in Concord, New Hampshire, e-mailed York, Maine, police to complain about Joubert, a baseball coach working in the area. Joubert used to coach and mentor the woman's son, KC. She called Joubert a pedophile, and said that New Hampshire police previously investigated him multiple times for similar allegations.
Over the course of the next four months, an investigation by local police and the Federal Bureau of Investigation (“FBI”) turned up a series of reports and complaints that Joubert molested or harassed various children, including the complainant. Authorities proceeded to interview many of the alleged victims, as well as their parents. They learned that Joubert engaged in a pattern of abuse, usually gaining trust within a victim's family, and then proceeding to exploit that position of trust. Law enforcement officials also learned that Joubert often photographed and videotaped his young charges. During the investigation, Joubert himself contacted police. Police and FBI interviewed him in late March, asking questions about his background, baseball pedigree, and previous employment. According to the affidavit, Joubert was “evasive” and “at times confrontational.”
Starting in June 2012, the FBI and York police worked with SJ, Joubert's 36–year–old non-biological son, who claimed that Joubert molested him on two occasions in the mid–1980's. SJ reported that Joubert lived at Joubert's parents' home, in Manchester, New Hampshire. In late May or early June, SJ helped Joubert move to that address. SJ also reported that, upon learning of the investigation, Joubert became “anxious” and “very concerned” about destroying his computer's hard drive. Joubert told SJ that he was concerned about protecting “client” information. While in SJ's presence, “Joubert tore apart the computer tower.” He removed components, threw away the computer tower, and then stacked the removed components inside his parents' home. SJ did not see Joubert discard the computer components.
In late June 2012, police applied for a warrant to search Joubert's parents' home. The warrant application sought permission to search for several categories of evidence including: “[a]ny and all computers or related storage devices and media”; “[a]ny and all cameras ... including cassette tapes, VCR/VHS tapes”; and “[a]ny and all photographs, electronic images, and videos of minors/ juveniles/ youth/ youth groups that Robert Joubert has or may have had contact with.” Appended to the application was a 14–page affidavit, detailing the joint FBI-police investigation into Joubert.
The affidavit chronicled the numerous complaints against Joubert, the reports of his photographing and videotaping youths, and the information conveyed by SJ, described above. In the final paragraphs of the affidavit, the officer-affiant stated that, “[b]ased on [his] training and experience, and supported by the actions of the suspect in this investigation, [he knows] that persons engaged in the molestation and exploitation of ... minors often maintain possession and/or control of physical or electronic documents pertaining to their victims and other juveniles.” The officer-affiant went on to state:
I believe that evidence of the crime(s) of Felonious Sexual Assault exists. I believe the aforementioned evidence exists in the possession, control, care and/or custody of Robert Joubert. I believe that the evidence exists in the form of, but not limited to; physical and electronic documents and other property. The evidence may confirm or dispel Robert Joubert's background (employment, resume claims, sport/coaching qualification and credentials), the allegation made against him involving juveniles, his travels, his relationship(s) with minors/juveniles and the victims mentioned in this affidavit, confirm his relationship with already identified victims, and identify other potential (yet unknown) victims.
Based on the affidavit, a New Hampshire judge issued a warrant to search Joubert's parents' home for “evidence of the crime(s) of Aggravated Felonious Sexual Assault ... and other Sexual crimes[.]” On June 28, 2012, police executed that search, seizing photographs, a laptop computer, computer drives, and VHS tapes, among other items. Of the items seized, most incriminating was a pornographic VHS recording of KC and Joubert.
Joubert coached KC's baseball team in Summer 2002, when KC was 9 or 10 years old. After the season ended Joubert sought to maintain a “big brother”-type relationship with KC. Joubert eventually moved into KC's home, where KC lived with his single mother. According to KC's mother, Joubert frequently videotaped her kids. After some time, Joubert started coercing KC into performing sexual favors in exchange for food or new sports equipment. Joubert became “obsessive with [KC]” and KC's mother ultimately kicked Joubert out in the summer of 2004. The seized VHS tape contained segments where Joubert places KC's hand on Joubert's penis.
On the basis of Joubert's possessing and producing a VHS tape containing child pornography, a grand jury indicted Joubert on three counts of sexual exploitation of a child to produce a visual depiction, in violation of 18 U.S.C. § 2251(a), and one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). Specifically, the indictment charged that on two unknown dates, between November 2002 and April 2003, and between September and August 2004, Joubert coerced KC to engage in sexually explicit conduct for the purpose of making “visual depiction[s] of such conduct, to wit, a video depicting masturbation.” The indictment also charged that on an unknown date between November 2002 and April 2003, Joubert coerced KC to engage in sexually explicit conduct for the purpose of making “a visual depiction of such conduct, to wit, a video recording depicting a lewd or lascivious exhibition of [KC's] genital or pubic area.”
During pre-trial, Joubert moved to suppress items seized pursuant to the search warrant—including the VHS tape—arguing that the affidavit did not supply a sufficient nexus between the alleged crimes and the location being searched. The district court denied his motion. At trial, and over objection, the court admitted uncharged sexual misconduct testimony from SJ and two other victims, MT and NT. KC also testified during trial, identifying himself and Joubert in the illicit VHS recording. After a three-day trial, Joubert was found guilty. The pre-sentence investigation report's Guidelines sentence was 960 months. The government recommended a 540–month sentence, but the district court varied further downward, sentencing Joubert to 480 months in prison.
The Fourth Amendment to the United States Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. Prior to executing a search, police officers, with some exceptions, must obtain a search warrant supported by probable cause to believe that (1) a crime has been committed, and (2) that “enumerated evidence of the [crime] will be found at the place to be searched-the so-called ‘nexus' element.” United States v. Hicks, 575 F.3d 130, 136 (1st Cir.2009).
Joubert challenges the district court's finding that the affidavit established probable cause to search his parents' house. When evaluating the nexus between the object and the location of the search, “a magistrate [judge] has to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” United States v. Rodrigue, 560 F.3d 29, 33 (1st Cir.2009) (citations and internal quotation marks omitted). “[T]he application must give someone of reasonable caution reason to believe that evidence of a crime will be found at the place to be searched.” Id. (citations and internal quotation marks omitted). The government does not need to show that the belief is “necessarily correct or more likely true than false.” United States v. Lyons, 740 F.3d 702, 723 (1st Cir.2014) (quoting United States v. Feliz, 182 F.3d 82, 87 (1st Cir.1999)); see also Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Nexus “can be inferred from the type of crime, the nature of the items sought, the extent of an opportunity for concealment[,] and normal inferences as to where a...
To continue reading
Request your trial