United States v. Richter

• Decision Date: 30 December 2021
• Docket Number: 1:21-cr-355
• Court: U.S. District Court — Northern District of Ohio
• Parties: UNITED STATES OF AMERICA, PLAINTIFF, v. DANIEL RICHTER, DEFENDANT.

UNITED STATES OF AMERICA, PLAINTIFF, v. DANIEL RICHTER, DEFENDANT.

No. 1:21-cr-355

United States District Court, N.D. Ohio, Eastern Division

December 30, 2021

MEMORANDUM OPINION

HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE

Defendant Daniel Richter (“Richter”) seeks suppression of all evidence seized from his residence pursuant to a search warrant by law enforcement on April 13, 2021. (Doc. No. 24 (Motion).) By the same motion, Richter seeks a ruling from the Court in limine to prevent his therapist from testifying at trial. (Id.) Plaintiff United States of America (the “governmenf) opposes exclusion of the fruits of the search of Richter's residence and further opposes any limitation on its ability to call Richter's therapist in its case-in-chief (Doc. No. 29 (Opposition); seeDoc. No. 31 (Reply).)

On October 15, 2021, the Court conducted a hearing on the motion. At the conclusion of the hearing, the Court took the matter under advisement and permitted the parties to submit post-hearing briefs. (Doc. No. 35 (Richter's Post-Hearing Brief); Doc. No. 36 (Government's Post-Hearing Brief).) Having fully afforded the parties an opportunity to be heard on the matter, the Court is prepared to issue its ruling.

I. Background

The facts leading up to the execution of the search warrant, and ultimately the filing of federal charges against Richter, are not in dispute. On November 30, 2010, Richter was convicted in state court, following his guilty plea, of multiple counts of pandering sexually explicit material involving a minor and was sentenced to five years of community control. (Doc. No 1-1, Complaint Affidavit at 31.) During this period of supervised release, Richter received therapeutic treatment from Silke Pagendarm, ^[1]a licensed professional clinical and chemical dependency counselor who, according to Richter, “specializes in counseling clients with problematic sexual behaviors.” (Doc. No. 24 at 7.) In 2015, Richter finished his period of community control and at some point also discontinued his therapy with Ms. Pagendarm.

Richter reports that, in September 2020, he began “having difficulty coping with feelings of isolation and depression during the pandemic, ” and “voluntarily resumed treatment with Ms. Pagendarm[.]” (Id.) It is alleged that in one of the counseling sessions, Richter advised his therapist that he was viewing child pornography on his computer. After consulting with the Counselor and Social Worker Board, the therapist determined that she was required under Ohio law to report this communication. She ultimately contacted law enforcement and a criminal investigation ensued.

On April 9, 2021, Federal Bureau of Investigation (“FBI”) Special Agent Lisa Hack (“S.A. Hack”) filed an application for a warrant to search Richter's residence in South Euclid, Ohio. The supporting affidavit provided, in relevant part:

12. On March 18, 2021, the National Threat Operations Center received a complaint from a therapist working for Humanistic Counseling Center, 26250 Euclid Avenue, Suite 527, Euclid, Ohio. The therapist[] reported a self-referred client of the center, who is already a registered sex offender, admitted to still viewing child pornography on the computer. The therapist consulted with the Counselor and Social Worker Board who advised the therapist this information is not protected and should be reported to law enforcement.

13. On March 23, 2021, your Affiant received additional information from the aforementioned therapist[] who reported that DANIEL RICHTER was originally a client with the counseling center about five years ago after being charged with pandering sexually exploited [sic] material involving a minor. According to [the] therapist, DANIEL RICHTER stopped coming after six months because he did not want to do the work required by the therapist.

14. Your Affiant searched the Cuyahoga County Court docket on-line and confirmed DANIEL RICHTER was indicted on April 7, 2010 of twenty two (22) counts of pandering sexually oriented material involving a minor and one count of possession of criminal tools in case CR-08-517174-A, The State Of Ohio v. Daniel Richter. According to the court docket, DANIEL RICHTER plead [sic] guilty to 22 counts of sexually pandering sexually oriented material involving a minor and one count of possession of criminal tools on November 30, 2010, and was sentenced to five years of community control. This sentence of community control terminated on November 30, 2015.

15. According to the therapist, DANIEL RICHTER re-initiated counseling as a self-referral on September 9, 2020. On March 16, 2021, DANIEL RICHTER admitted to his therapist that RICHTER still views child pornography. The therapist advised that RICHTER described the images he views as pre-pubescent and pubescent images involving oral sexual stimulation, masturbation, as well as images of adults and minor children together engaged in sexual activity. The therapist stated DANIEL RICHTER eluded [sic] to storing the aforementioned material on a “jump drive” or memory stick. DANIEL RICHTER has told the therapist that RICHTER began looking at child pornography when he was approximately 12 or 13 years of age and has been recently viewing child pornography several times a week.

16. The therapist further reported that RICHTER has been known to have a desktop computer, as he bought the computer in [order] to add parental control software, as well as an IPad and a smart phone.

(Doc. No. 24-1, Warrant Application and Supporting Affidavit at 15-17.)^[2]

The warrant application was approved by Magistrate Judge Jonathan D. Greenburg on April 9, 2021, and the warrant was executed four days later on April 13, 2021. (See Id. at 25.) Richter was present during the search and spoke with agents on the scene, during which he purportedly admitted that he had viewed child pornography in the past and that he had recently “relapsed” and was once again viewing child pornography. Agents also recovered a black 4 GB Toshiba thumb drive from Richter's residence that allegedly contained numerous images/videos of child pornography. (Doc. No. 20 at 3-4.)

A complaint issued on April 13, 2021, and, on May 13, 2021, an indictment was filed charging Richter with one count of receipt of visual depictions of real minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2), and one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). (Doc. No. 10 (Indictment).)

II. Motion to Suppress

As an initial matter, the Court observes that much of Richter's motion and briefing is devoted to the argument that Richter's therapist erred in her assessment that she was required under Ohio law to report her communications with Richter regarding his viewing of child pornography. Under Ohio Rev. Code § 2151.421(a), certain professionals, including therapists, are required to make a report to authorities whenever they know or reasonably suspect that a child “has suffered or faces a threat of suffering” a serious injury, neglect, or abuse.

Additionally, under Ohio Rev. Code § 2305.51(B), a mental health professional can be liable for damages for serious injury or death resulting from “failing to predict, warn of, or take precautions” to provide potential victims with protection from the violent behavior of a mental health patient.

Without citing any case law, Richter argues that the reporting requirement in § 2151.421(a) is only triggered when an identifiable child is in jeopardy. Because no specific child victim could be identified as facing danger from Richter's online activities, Richter argues that there was no obligation to report. (Doc. No. 35 at 2-3, emphasis in original.) The government, relying entirely on federal law, argues that there is no need to identify a specific child victim because any time an individual views child pornography there are countless victims that suffer real and lasting physical and emotional injuries from the perpetuation of the child pornography market. (Doc. No. 36 at 4.) See New York v. Ferber, 458 U.S. 747, 759, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) (recognizing that the distribution of pornography is harmful to children as it provides a record of a child's involvement therein and sustains the market for such illicit material); Doe v. Boland, 698 F.3d 877, 880 (6th Cir. 2012) (“pornography injures a child's ‘reputation and emotional well-being'”) (quoting Ashcroft v. Free Speech Coal, 535 U.S. 234, 249, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002)); United States v. Mathis, 377 F.Supp.2d 640, 646 (M.D. Tenn. 2005) (finding that a therapist was required under a similar Tennessee statute to report that defendant was viewing pornography to “prevent serious harm to the children depicted in the images or other potential child sexual abuse victims”)^[3]. The Court need not resolve this debate over state law reporting obligations. As discussed below, regardless of whether Ms. Pagendarm was required under Ohio law to report Richter's online activities, law enforcement officers were entitled to rely on the volunteered information in seeking a warrant.

A The Psychotherapist-Patient Privilege

Richter bases his right to exclusion on the psychotherapist-patient privilege as established by Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996) and revisited by the Sixth Circuit in United States v. Hayes, 227 F.3d 578 (6th Cir. 2000). Because he believes that his therapist violated this privilege when she voluntarily revealed the contents of his confidential communications to the authorities, he argues that any statements made by him to the police and any evidence obtained by means of the search warrant that relied on these confidential communications must be suppressed. (Doc. No. 24 ...