United States v. Killen
| Decision Date | 29 March 2018 |
| Docket Number | No. 15-15001,15-15001 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. PATRICK KILLEN, JR., a.k.a. rebeccatill05, a.k.a. beverlyhills05, a.k.a. chanelizzabel, Defendant - Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
D.C. Docket No. 1:15-cr-20106-KMM-1
Appeal from the United States District Court for the Southern District of Florida Before MARTIN, JORDAN, and WALKER,* Circuit Judges.
Patrick Killen, Jr. appeals his convictions and 139-year sentence relating to his possession, production, and distribution of child pornography. After careful consideration, and with the benefit of oral argument, we affirm Mr. Killen's convictions but vacate his sentence and remand for resentencing.
In 2013, when Mr. Killen was nineteen, he began posing as a young girl on Kik, which is a messaging-based mobile-phone application. Using the names "Rebecca Till" or "Chanel Izzabel," Mr. Killen began online conversations with teenage boys. He sent the boys images of a partially dressed young girl and asked the boys to send him nude photos of themselves in return. The boys agreed and sent photos of themselves, standing naked before a mirror, with their faces and genitalia visible. After agreeing to the initial requests, some of the boys tried to end their contact with Mr. Killen. Mr. Killen in turn threatened these boys that he would post their nude photos on social media platforms, like Instagram, unless they continued to send him more nude photos. The threatened boys complied. Sometimes, Mr. Killen directed the boys to assume particular poses. Mr. Killendistributed these photos to another Kik user, "Vanyher." He also came to possess a lot of child pornography—over 2,000 images and 100 videos—on his personal electronic devices.
Law-enforcement offices, including the Federal Bureau of Investigation, began getting complaints about someone using Mr. Killen's usernames in 2013. One of these complaints led the FBI to Mr. Killen's residence in Hialeah, Florida. On February 11, 2014, Special Agents Laura Schwartzenberger and Jason Ginther interviewed Mr. Killen at his home. During the interview, Mr. Killen admitted to being "Rebecca Till" and asking boys ages fourteen or fifteen to send him nude images. He also consented to the search of his electronic devices.
Mr. Killen was arrested over a year later. A superseding indictment charged him with the following: coercing or employing a minor for the purpose of producing child pornography, in violation of 18 U.S.C. § 2251(a) and (e) (Counts 1, 3, 5); distribution and receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1) (Counts 2, 7-11); extortion by interstate threats, in violation of 18 U.S.C. § 875(d) (Counts 4, 6); possession of child pornography involving a visual depiction of a prepubescent minor younger than 12, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2) (Counts 12, 15); possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2) (Counts 13, 16); and destruction of evidence, in violation of 18 U.S.C. § 1519 (Count 14).
Before trial, Mr. Killen filed a motion to suppress his February 2014 confession as well as the search of his electronic devices. After a suppression hearing, the Magistrate Judge issued a report and recommendation ("R&R") recommending the motion be denied. The R&R was then adopted in full by the District Court. After a 5-day trial, a jury convicted Mr. Killen on all counts except for Count 14, which related to the destruction of evidence. The District Court sentenced Mr. Killen to 139-years imprisonment.
On appeal Mr. Killen challenges the District Court's denial of his suppression motion, the sufficiency of the superseding indictment, the admission and exclusion of certain evidence, and the sufficiency of the evidence to sustain his conviction on certain counts. He also argues that his sentence is procedurally and substantively unreasonable, and that it violates the Eighth Amendment.
Mr. Killen argues that his February 2014 interview was custodial in nature, so he should have been informed of his constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 492, 86 S. Ct. 1602, 1637 (1966). He also argues that even if the interview was noncustodial, his confession was not voluntary. Finally, as to the search, he argues that his consent to the search of his electronic devices was not voluntary. For purposes of the appeal, Mr. Killen does not challenge the factsfound by the Magistrate Judge and adopted by the District Court, but rather questions the legal conclusions. We briefly recount the facts here.
The Magistrate Judge found the FBI agents went to the house, where Mr. Killen lived with his parents and younger sister, with the specific purpose of conducting a consensual interview and search. The agents suspected that, of the household residents, Mr. Killen was the most likely user of Kik. The agents first told Mr. Killen that they were investigating a North Carolina complaint about internet crimes, but did not reveal that he was a suspect. After asking some background questions, the agents asked Mr. Killen if he was "Rebecca Till," which he denied. Mr. Killen then told the agents they could search his electronic devices, and he left the room by himself to get the devices from his bedroom. Mr. Killen returned with his iPad and laptop computer. He told the agents his iPhone needed to be charged and went back to his bedroom at least twice, unaccompanied, to check on its battery level. On his second or third visit to his room, Mr. Killen returned with his phone and Agent Schwartzenberger confirmed that the battery level was indeed low.
Around the same time, Mr. Killen's mother asked the agents why they were there, and the agents gave her the same general explanation they initially gave Mr. Killen. When speaking with Mr. Killen's mother, however, Agent Schwartzenberger added that the FBI sometimes conducts investigations like theseusing SWAT teams "and the whole neighborhood knows about it," but that she and Agent Ginther "were trying to be low-key." Mr. Killen's mother then told Mr. Killen "to give the agents what they want." Agent Schwartzenberger next asked Mr. Killen to fill out a consent form regarding his electronic devices. Among the other findings of the Magistrate Judge were that Mr. Killen was "very immature for his age" and that "he may experience some social or interpersonal deficits"1; that no one read the form to Mr. Killen; that Mr. Killen had time to read it; and that Mr. Killen signed the form.
While Agent Ginther examined Mr. Killen's electronic devices, Agent Schwartzenberger asked Mr. Killen again if he was "Rebecca Till." Mr. Killen asked Agent Schwartzenberger to speak with him outside privately, where he confessed to being Rebecca Till and to asking for and receiving nude photos from teenage boys. During this conversation, in response to Mr. Killen's concern that his parents would kick him out and mindful of the risk of suicide in cases like these, Agent Schwartzenberger reassured Mr. Killen that "he would be okay" and that "they were not there to arrest him."
Once back inside the house, Mr. Killen turned over two electronic-storage devices (USB or thumb drives), the agents returned Mr. Killen's iPad to him, andthe agents and Mr. Killen amended the consent form accordingly. The agents then gave Mr. Killen a signed property receipt, which Mr. Killen also signed. Agent Ginther then accompanied Mr. Killen to his room to search for an old cell phone. While they were gone, Agent Schwartzenberger told Mr. Killen's parents about their son's criminal conduct and advised them to get psychological help for him because there was a risk for suicide in cases like this one. Agent Schwartzenberger gave the parents her business card, and the agents left. Later that afternoon, Agent Schwartzenberger got an email from Mr. Killen's father saying he had scheduled a psychologist appointment for his son later that week.
The Magistrate Judge found that, although Mr. Killen and his parents felt the FBI agents' presence in their home to be intimidating, "[i]t was clear from the testimony of Defendant and his parents that they wanted to cooperate with the agents that morning." The agents never displayed firearms or handcuffs. Neither did they touch Mr. Killen or anyone else in the home nor tell them they could not leave. Mr. Killen and his parents, in turn, never asked the agents to leave.
When reviewing the denial of a motion to suppress, United States v. Delancy, 502 F.3d 1297, 1304 (11th Cir. 2007) (citation omitted).
United States v. Muegge, 225 F.3d 1267, 1269-70 (11th Cir. 2000) (per curiam) (quotation and citations omitted). "In order for a court to conclude that a suspect is in custody, it must be evident that, under the totality of the circumstances, a reasonable [innocent] man in the suspect's position would feel a restraint on his freedom of movement fairly characterized as that degree associated with a formal arrest to such extent that he would not feel free to leave." Id. at 1270 (). A defendant's "status as a suspect, and the 'coercive environment' that exists in virtually every interview by a police officer of a crime suspect, [does] not automatically create a custodial...
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