United States v. Pece
| Decision Date | 20 October 2021 |
| Docket Number | 1:20-CR-186-1 |
| Parties | UNITED STATES OF AMERICA, PLAINTIFF, v. DAVID A. PECE, DEFENDANT. |
| Court | U.S. District Court — Northern District of Ohio |
On March 12, 2020, an indictment was filed charging defendant David A. Pece (“Pece”) and four other individuals with the following: Count One-conspiracy to engage in sexual exploitation of children, in violation of 18 U.S.C §§ 2251(a) and (e); Count Two-sexual exploitation of children, in violation of 18 U.S.C. §§ 2251(a) and 2; Count Three-conspiracy to receive visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. §§ 2252(a)(2) and (b)(1); and Count Four-conspiracy to access with intent to view child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2). (Doc. No. 1.)
Now before the Court are two motions filed by Pece: a motion to suppress (Doc. No. 98), and a motion to reopen the detention hearing (Doc. No. 86). Plaintiff United States of America (the “government”) opposes these motions. (Doc No. 102 (Opposition to Motion to Suppress); Doc. No. 88 (Opposition to Motion to Reopen Detention Hearing).) On August 13, 2021, and continuing on August 16, 2021, the Court held an evidentiary hearing on the suppression motion.
At the conclusion of the hearing on August 16, 2021, the Court took the pending motions under advisement and permitted the parties to file post-hearing briefs addressing the issues raised during the suppression hearing. (Doc. No. 109 (Pece's Post-Hearing Brief); Doc. No. 110 (Government's Post-Hearing Brief).) For the reasons that follow, the motions are denied.
Pece seeks to suppress all evidence obtained from a search of his Dell laptop computer, which he turned overed to the FBI on May 11, 2018, and all statements he made to law enforcement on May 11, 2018 and May 12, 2018, on grounds that the search was conducted without valid consent and the statements were made involuntarily. At the evidentiary hearing, FBI Special Agent (“S.A.”) David Desy (“Desy”) and FBI SA. Adam Christensen testified on behalf of the government. Pece's father, David M. Pece (“Dave”), Pece's mother, Laurette Keider, and Dr. Mark Lovinger were called as witnesses by the defense. Pece also testified on his own behalf.
On May 11, 2018, FBI agents executed a search warrant at Pece's home in Highland Heights, Ohio where he lived with his father. The search warrant was linked to an investigation in which Pece, then 28 years of age, was believed to be involved in a group using one or more websites to unlawfully interact with underaged girls. Specifically, SA. Christensen testified that he had been investigating criminal activity relating to a website called “chateen.com” for several years. By assuming the online persona of an informant with whom law enforcement was working, he learned how Pece and the other members of his group worked collectively to lure underaged girls into private secure chatrooms for the purpose of convincing them to engage in sexually explicit conduct on web camera for the gratification of the group.[1]
Pece and his father were in Virginia Beach, VA vacationing at the time of the search of the residence. At approximately 6:45 a.m. on May 11, 2018, SA. Christensen contacted Dave on his cell phone and advised him of the search. During the phone call, Dave consented to have an agent meet him and Pece in Virginia Beach to turn over his son's laptop, which Pece had brought with him on vacation. SA. Christensen testified that, at some point during the phone call, Dave handed the phone to his son, Pece. According to SA. Christensen, he and Pece were able to communicate effectively and Pece never asked him to repeat any questions or otherwise gave any indication that he was unable to comprehend or follow the thread of the conversation. Moreover, SA. Christensen testified that Pece's answers to his general inquiries regarding Pece's online activities were responsive.[2]
Later that day, Pece and his father met with FBI SA. Desy in a Virginia Beach grocery store parking lot. The parties exited their respective vehicles and spoke while standing in the parking lot. During the encounter, Pece and the agent executed two documents: (1) Form FD-941, Consent to Search Computers) (Gov. Ex. 1), and (2) Form FD-597, Receipt for Property Received/Returned/Released/Seized (Gov. Ex. 2). S.A. Desy testified that, in accordance with his general practice, he verbally reviewed the forms with Pece as he and Pece filled out the forms together. At no time did Pece advise that he could not hear the agent or need anything repeated. According to S.A. Desy, Dave was standing near his son as the agent and Pece spoke. Upon being prompted by the agent, Pece supplied the password for the computer and wrote it on the form. (See Gov. Ex. 1.) Before David signed the form, S.A. Desy read aloud the portion that provided:
S.A. Desy indicated that neither Pece nor his father had any questions regarding the form or the process by which the computer would be searched. He further testified that Pece's responses to his questions were appropriate and demonstrated that he comprehended and followed the flow of the conversation. S.A. Desy testified that he followed the same procedure with the property receipt form, reading it aloud to Pece as the two filled out the form, and Pece signed it indicating that he understood that the laptop was being taken into federal custody. (See Gov. Ex. 2.) Because his role in the investigation was limited to securing the laptop for analysis, S.A. Desy explained that he did not ask Pece any questions relative to his online activities.
Dave and Pece also offered testimony regarding the encounter in the parking lot. Dave testified that he did not recall ever seeing either the consent form or the property receipt form, and he did not remember S.A. Desy reading any portion of either form to Pece. In fact, he testified that he only remembered his son verbally giving the agent the password to his computer.
Further, while he did not remember Pece filling out any part of the forms, he conceded that his son's handwriting appears on the consent form. Pece likewise testified that he did not remember the agent reading either form to him though he, too, conceded that his handwriting appeared on the forms. To the extent that Dave and Pece's testimony regarding how the meeting in the parking lot unfolded conflicts with that of S.A. Desy, the Court credits the agent's account. Understandably, Dave was emotional when he discovered the nature of the FBI's investigation into his son's online activities. Nevertheless, his answers during the hearing were generally evasive and lacking in complete candor, especially when the questioning was directed to subject matters that either implicated his son or could negatively impact the outcome of the present motions.[3] Pece's testimony during the hearing was equally equivocal and vague, and, like his father, his answers became increasingly ambiguous as the hearing progressed.[4]
That same evening (May 11, 2018), S.A. Christensen called Dave again and the two made arrangements for him and Pece to meet with agents in Cleveland the following day (May 12, 2018). On May 12, 2018, S.A. Christensen and FBI S.A. Lisa Hack met with Dave and Pece at the FBI Cleveland field office to conduct the interviews. It was a Saturday, and the building was closed to the public, but the agents arranged for Pece and his father to park in the FBI parking garage. Before entering the building, Pece and Dave were searched by the agents. S.A. Christensen did not believe that he was wearing his firearm at the time of the meeting, and Dave did not remember seeing either agent with a weapon.
Once inside the building, Pece and Dave were placed in separate interview rooms. Neither man was restrained, and there is no evidence that the interview room doors were locked. The interviews were recorded, and clips from each interview were played at the hearing. (Gov. Ex. 4 (Dave Interview); Gov. Ex. 5 (Pece Interview).)[5] The agents met first with Dave. At the start of Dave's interview, S.A. Christensen explained why he wanted to speak with his son and the illegal acts he believed Pece had committed. While he explained that Pece did not have to speak with him, he recommended that Pece do so, noting that it could help his case if he cooperated. Responding to Dave's inquiries, the recording reflects that S.A. Christensen advised that the serious charges Pece was facing generally resulted in sentences of imprisonment of ten to fifteen years.
From the intonation in his voice, it was evident that Dave was upset with his son and overwhelmed by the news that his son was facing serious criminal charges. Naturally, he also expressed concern for his son. He questioned out loud whether he should retain a lawyer and indicated that he was not sure whether his son should speak with the agents. S.A. Christensen confirmed that it was Pece's right not to speak with them and that not cooperating was “certainly a way to go, ” but he explained that it would be perceived as more helpful if Pece cooperated. Still, the agent repeated that Pece was facing serious charges, and he added that he would be charged federally whether or not he chose to speak with the agents.
Dave expressed his belief that his son would...
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