United States v. Sullivan

• Citation: 797 F.3d 623
• Decision Date: 29 July 2015
• Docket Number: 12–10217.,Nos. 12–10196,s. 12–10196
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Edward Lee SULLIVAN, Defendant–Appellant. United States of America, Plaintiff–Appellant, v. Edward Lee Sullivan, Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

797 F.3d 623

UNITED STATES of America, Plaintiff–Appellee

v.Edward Lee SULLIVAN, Defendant–Appellant.

United States of America, Plaintiff–Appellant

v.Edward Lee Sullivan, Defendant–Appellee.

Nos. 12–10196

12–10217.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 14, 2014.

Filed July 29, 2015.

John J. Jordan, San Francisco, CA, for Defendant–Appellant/Cross–Appellee.

Anne Voigts (argued), Assistant United States Attorney; Melinda Haag, United States Attorney; Barbara J. Valliere, Assistant United States Attorney, Chief, Appellate Division, San Francisco, CA, for Plaintiff–Appellee/Cross–Appellant.

Sean Kennedy, Federal Public Defender; Koren Bell, Deputy Federal Public Defender, Los Angeles, CA, for Amicus Curiae Federal Public Defender for the Central District of California.

Appeal from the United States District Court for the Northern District of California, D. Lowell Jensen, Senior District Judge, Presiding. D.C. No. 4:09–cr–00167–DLJ–1.

Before: RICHARD C. TALLMAN and SANDRA S. IKUTA, Circuit Judges, and BEVERLY REID O'CONNELL, District Judge.^*

ORDER

The opinion filed on May 28, 2014, and appearing at 753 F.3d 845, is withdrawn. The superseding opinion will be filed concurrently with this order. The parties may file additional petitions for rehearing or rehearing en banc.

OPINION

IKUTA, Circuit Judge:

Edward Sullivan was convicted of violations under 18 U.S.C. §§ 2251(a) and 2252(a)(4)(B) for producing and possessing a sexually explicit video depicting a 14–year–old girl. He raises multiple challenges to these convictions, as well as to the mandatory minimum sentences imposed under 18 U.S.C. §§ 2251(e) and 2252(b)(2). The government cross appeals, arguing that the district court miscalculated Sullivan's Sentencing Guidelines range. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and affirm in part and reverse in part.¹

I

Sullivan's use of 14–year–old Erika Doe to produce the sexually explicit video at issue in this case was not the first time he engaged in sex-related conduct with a minor. In 2001, Sullivan was convicted in Nevada of conspiracy to commit pandering involving a 13–year–old girl. In 2002, Sullivan was convicted in California of four offenses involving a 14–year–old female victim: (1) unlawful sexual intercourse with a minor in violation of California Penal Code § 261.5(d) ; (2) oral copulation with a minor in violation of California Penal Code § 288a(b)(2) ; (3) pimping in violation of California Penal Code § 266h(a) ; and (4) pandering in violation of California Penal Code § 266i(a)(2). Sullivan was sentenced to 140 months imprisonment for the California convictions.

In November 2007, Sullivan was released on parole. As a parolee, Sullivan was subject to a range of standard and special parole conditions. Among the standard parole conditions was a consent to search, which stated: “You and your residence and any property under your control may be searched without a warrant by an agent of the Department of Corrections or any law enforcement officer.” In addition, Sullivan was subject to a number of special parole conditions, which (among other things) prohibited him from having any contact with females between the ages of 14 and 18 years, and provided that “[a]ny computer or mobile telecommunications device under your control, or [to] which you have access, is subject to search and seizure by your Parole Agent.” The California Department of Corrections gave Sullivan notice of these conditions, which Sullivan acknowledged by signing the notice form and initialing each of the special conditions.

Sullivan took up temporary residence at the Bay Breeze Inn located in Oakland, California. In March 2008, about four months after his release, Sullivan approached Erika, a 14–year–old girl who was standing on a street in Berkeley, California, with her friends after school. After Erika and Sullivan talked, she left with Sullivan in his car. Erika stayed with Sullivan for the next two weeks. On the first night, Sullivan took Erika to the house of Kimberlea Reed, a friend of his who lived in Vacaville, California. Reed knew that Sullivan was not allowed to have contact with minor girls, and when Erika failed to produce a license proving she was 18 years old, Reed told Sullivan not to bring Erika to her home. For the next two weeks, Sullivan and Erika stayed at the Bay Breeze Inn or in Sullivan's car, but returned at least once to the house in Vacaville. While at the Bay Breeze Inn, Sullivan had sex with Erika.

The district court found that during this period, Sullivan became the dominating force in Erika's life, and controlled all of her daily activities. Among other things, Sullivan replaced Erika's clothing with more adult and sophisticated outfits and paid to have her hair straightened and amplified with extensions. Erika testified that she was afraid of Sullivan, a large man in his forties, about six feet five inches tall and 250 pounds.

Over the course of the two weeks that Erika remained with Sullivan, he took numerous videos and still photographs of Erika in various poses. In several of the videos, Sullivan discussed prostitution with Erika. In one video, Sullivan discussed a past incident where he had “checked” or punished Erika because she had tried to leave him. Sullivan uploaded one of the still photographs of Erika onto an adult website, “Fungirlsplay,” using his name and e-mail address.

On March 9, 2008, Sullivan returned to the house in Vacaville where he made the sex video at issue in this case using a digital camera that had been manufactured in China and exported to the United States. According to the district court, the video, 100_0064.mov, showed Erika performing oral sex on Sullivan. Erika's face was clearly visible in the video, and a man's voice could be heard in the background, directing and describing the activities that were taking place. At trial, Erika testified that Sullivan had shot and narrated the video, and is also the man seen in the video. This sex video was later uploaded to Sullivan's laptop computer. After the video was produced, Sullivan recorded and narrated two other videos, one of which showed Erika naked from the waist up, and the other showed Sullivan questioning Erika regarding whether she wanted to be a porn star.

On March 17, 2008, an Oakland police officer saw Erika standing on the street in an area frequented by prostitutes. Suspecting she was engaging in prostitution, the officer stopped her for questioning. In response to a question about Sullivan, who was standing nearby, Erika denied he was her pimp. Although the Oakland police stopped and questioned Sullivan, they did not arrest him. The officer took Erika into custody, and after learning that she was the subject of a missing persons report, returned her to her mother. Once Erika was home, her mother took her to the hospital, where Erika made a statement to the police. Because the initial abduction occurred in Berkeley, jurisdiction over the investigation was transferred to the Berkeley Police Department.

About a week later, on March 24, 2008, Erika's mother contacted Sullivan's parole officer and reported that Sullivan had kidnaped, raped, and pimped her daughter. Based on this report, Sullivan's parole was revoked. On March 25, 2008, parole officers arrested Sullivan in his car outside of the Bay Breeze Inn. During a parole search of the car, the agents seized several items, including the laptop computer, digital camera, a book about pimping, and a cellular telephone. The parole officers took Sullivan into custody and charged him with eight parole violations, including that Sullivan forced Erika to engage in intercourse and had kept pornographic images on his cellular telephone, in violation of his parole conditions.² On April 2, 2008, the parole officers transferred custody of the evidence to the Berkeley Police Department because the California Department of Corrections did not have the technical ability to conduct a forensic search of the laptop.

On April 10, 2008, Detective Kaplan and Sergeant Ross of the Berkeley Police Department interviewed Sullivan at the jail where he was being held. Sullivan claimed that in one of the videos on his laptop, Erika stated that she was 19 years old. Sullivan agreed that the police should view the video to corroborate his belief about Erika's age. He stated, “Look in the computer. I give you consent.” Sullivan also signed a consent form.³ On April 15, 2008, Detective Kaplan also obtained a search warrant to search the laptop. A forensic search of Sullivan's laptop revealed the sex video at issue in this case.

The federal government filed a two-count indictment against Sullivan in the Northern District of California on February 18, 2009. Count 1 charged Sullivan with production of child pornography pursuant to 18 U.S.C. § 2251(a). Count 2 charged Sullivan with possession of child pornography pursuant to 18 U.S.C. § 2252(a)(4)(B). Sullivan entered a plea of not guilty, and later waived his right to a jury trial.

Before trial, Sullivan moved to suppress the evidence obtained from his laptop computer. Relevant to this appeal, he argued that the 21–day delay between March 25, 2008, the date the parole officers seized the laptop, and April 15, 2008, the date the police obtained a warrant, was unreasonable, and therefore the search and seizure of the laptop violated his Fourth Amendment rights. The district court denied the motion.

The bench trial commenced on December 14, 2010. At the close of the government's case-in-chief, Sullivan moved to dismiss Count 2 (possession of child pornography under § 2252(a)(4)(B) ) because the sex video was not sufficiently connected to interstate commerce, and moved to dismiss Count 1 (production of child pornography under § 2251(a) ) for lack of venue, because the video had been filmed in Vacaville (in the Eastern District of California), and the district court was in the Northern District of California. The...