United States v. McVicker

• Decision Date: 23 October 2013
• Docket Number: Case No. 3:11–cr–00101–SI.
• Citation: 979 F.Supp.2d 1154
• Parties: UNITED STATES of America, v. Kenneth Robert McVICKER III, Defendant.
• Court: U.S. District Court — District of Oregon

979 F.Supp.2d 1154

UNITED STATES of America,

v.Kenneth Robert McVICKER III, Defendant.

Case No. 3:11–cr–00101–SI.

United States District Court, D. Oregon.

Oct. 23, 2013.

S. Amanda Marshall, U.S. Attorney, and Gary Y. Sussman and Kelly Alexandre Zusman, Assistant U.S. Attorneys, Portland, OR, for United States.

Krista M. Shipsey, Lynne B. Morgan, Pacific Northwest Law LLP, Portland, OR, for Defendant.

OPINION AND ORDER

MICHAEL H. SIMON, District Judge.

Kenneth R. McVicker III (“McVicker” or “Defendant”), a United States citizen, challenges his indictment for producing and transporting child pornography while living abroad. He argues that the statutes for which he has been indicted do not reach conduct that occurs outside the territory of the United States; that venue in the District of Oregon is improper because his conduct was not directed at the district; that his case should be dismissed because the government lacks jurisdiction to prosecute him under the Rule of Specialty; and that statements he made to U.S. officials in Belize after he was arrested by local authorities should be suppressed because they were obtained in violation of his rights under the United States Constitution. The Court held an evidentiary hearing on October 22–23, 2013. For the reasons that follow, the Court denies McVicker's motions.

FINDINGS OF FACT

The superseding indictment charges that on or about February 6, 2011, McVicker “having previously been convicted of an offense involving the sexual abuse of a minor, knowingly transported or shipped child pornography ... using any means or facility of interstate or foreign commerce, or in or affecting interstate or foreign commerce by any means, including by computer, which images of child pornography were accessed and downloaded in the District of Oregon,” in violation of 18 U.S.C. § 2252A(a)(1) (the “transporting” charge). Dkt. 19 (Count One). It also charges that McVicker, on or about November 24, 2010, “knowingly and unlawfully employed, used, persuaded, induced, enticed, or coerced” a minor “to engage in sexually explicit conduct ... for the purpose of producing visual depictions of such conduct” that were then “mailed, shipped, or transported using any means or facility of interstate or foreign commerce, or in or affecting interstate or foreign commerce, and were accessed and downloaded in the District of Oregon,” in violation of 18 U.S.C. § 2251(a) (the “producing” charge). Id. (Count Two).

Based on the evidentiary hearing held on October 22–23, 2013, the Court makes the following findings of fact:

1. The investigation of McVicker began in December 2010, when Immigration and Customs Enforcement (“ICE”) agents executed a warrant in Vancouver, Washington to search the residence of Rick Carr (“Carr”). The ICE agents found that Carr was trading large volumes of child pornography. Because Carr's computer was up and running while the agents executed the search, they discovered that Carr was using a file-sharing program to distribute images of child pornography. ICE agents used the file-sharing program to investigate electronic correspondence and exchanges with another U.S. Citizen, Seth Bekenstein.

2. The federal agents, with Carr's permission, assumed his identity and communicated with Bekenstein. Bekenstein repeatedly sent to an undercover ICE agent in Portland, Oregon links to images that he claimed were child pornography, including images allegedly produced by McVicker. Bekenstein provided passwords to open the encrypted links. Department of Homeland Security (“DHS”) Special Agent James Mooney accessed and downloaded those images in the District of Oregon.

3. In his communications with the federal agents posing as Carr, Bekenstein identified a man named “Kenny” as one of the producing sources of child pornography, and explained that Kenny lived on the coast in Ecuador, was trusted by the community, taught at a local school, and had relocated to Ecuador after serving time in prison for child molestation charges in Maryland.

4. On one occasion when Bekenstein arrived in Portland, Oregon, he was arrested by ICE agents on charges of transporting and distributing child pornography. Afterwards, with Bekenstein's consent, Agent Mooney assumed Bekenstein's online identity “Seth Laver.” Agent Mooney accessed Bekenstein's email accounts, reviewed emails allegedly sent from McVicker, and downloadedand discovered in the District of Oregon images of an Ecuadorean boy, approximately five years of age, that depicted child sexual abuse.

5. On February 6, 2011, a contact of Bekenstein's known as “Padrino Padrino” or “Kenny” sent an email to Bekenstein, who was then living in Mexico. Federal agents identified “Padrino Padrino” as the online identity of McVicker. The email contained a link to an internet-based file-storage site, the server for which is located in the Netherlands. In a separate email, McVicker sent Bekenstein the password needed to access those files. The files contained images of child pornography, allegedly produced by McVicker in Ecuador.

6. Bekenstein used an email account through Microsoft Live.com, which is based in Redmond, Washington. His email account is stored on servers in the United States and his emails traveled through servers in the United States, even while Bekenstein was in Mexico.

7. Agent Mooney used emails sent between Bekenstein and McVicker to investigate the location from which the messages from McVicker were sent. In particular, Agent Mooney identified the originating internet protocol (“IP”) address of an email from McVicker to Bekenstein on February 6, 2011. Thereafter, he used an online tool to “geolocate” the IP address. Agent Mooney discovered that Mcvicker's IP address was assigned to an internet service provider located in Ecuador, but not to a named individual. McVicker's emails were sent through a server located in Israel, which then traveled through several intermediary internet “hops,” including servers, routers, and switches, and then eventually to a Microsoft-owned server located in the state of Washington.

8. Agent Mooney separately analyzed the metadata in the photographs allegedly transferred from McVicker to Bekenstein. The metadata within the images provided forensic, such as the type of camera used and the dates and times that the photographs were taken (according to the camera's internal clock). Agent Mooney's analysis established that the photographs were taken with the camera that was later seized from McVicker in Belize.

9. Agent Mooney identified emails in Bekenstein's account containing links to images depicting child sexual abuse. In some of these emails, Bekenstein asked McVicker to identify the name of the child depicted in the images. McVicker identified the male child depicted as “Kevin.” In the District of Oregon, Agent Mooney downloaded images from the relevant emails containing hyperlinks to confirm their content and that they contained child pornography.

10. Agent Mooney communicated, using Bekenstein's email account with Bekenstein's consent, with McVicker for several days. During one of these communications, McVicker told Agent Mooney that McVicker was planning to leave Ecuador for Belize to work on a commissioned art project.

11. During the course of McVicker's email communications with Bekenstein and Carr, there is no evidence that McVicker attached to any email any computer files that actuallycontained child pornography. Instead, McVicker appears to have encrypted images of child pornography and downloaded or uploaded those images to a server outside of the United States. McVicker then sent emails containing hyperlinks to that server or those servers, and he sent in separate emails the password or passwords needed to open the encrypted files.

12. A grand jury indicted McVicker on March 2, 2011, and an arrest warrant for McVicker was issued. Thereafter and through INTERPOL, the United States issued a “Red Notice” to seek the location and arrest of McVicker with a view toward obtaining extradition or similar lawful action.

13. On March 17, 2011, McVicker was arrested in Belize both on the United States warrant and on local immigration charges. McVicker had traveled to Belize on a U.S. passport to assist a friend in painting a mural at a lodge on Long Caye, an island off the cost of Belize, approximately 40 miles from Belize City, Belize. Agent Paul Trachtenberg of the State Department's Diplomatic Security Service, who was associated with the U.S. Embassy in Belize at the time, arrived at the lodge with local police officers. Agent Trachtenberg approached McVicker and asked him if he was “Kenny.” When McVicker confirmed that he was, Agent Trachtenberg told McVicker to put down his paint brush and stand up. According to Agent Trachtenberg, the Belize authorities informed McVicker that he was under arrest, placed him in handcuffs, and searched him. McVicker testified, however, that it was Agent Trachtenberg who placed McVicker in handcuffs. This is one of the few factual discrepancies, if not the only one, arising out of the evidentiary hearing, and the Court accepts Agent Trachtenberg's testimony on this point.

14. Agent Trachtenberg asked McVicker where he was staying, and McVicker replied that he was staying in a room at the lodge. Agent Trachtenberg accompanied McVicker while the Belize police officers searched McVicker's room and seized his passport, camera, and computer data memory stick. In the continuous presence of Agent Trachtenberg, McVicker was transported by boat by Belize law enforcement authorities to the Belize City Jail.

15. Agent Trachtenberg did not read McVicker his Miranda rights. The Court finds that Trachtenberg did not ask McVicker any questions of substance other than those already noted, although he provided McVicker with an opportunity to make a “voluntary statement,” which McVicker declined. After McVicker arrived at the Belize City Jail, he was questioned for approximately one...