United States v. Valerio, 032219 FED2, 17-2371-cr
| Party Name | United States of America, Appellee, v. Joseph Valerio, Defendant-Appellant. |
| Attorney | FOR APPELLANT: Louis M. Freeman, Freeman, Nooter & Ginsberg, New York, NY. FOR APPELLEE: Allen L. Bode (David C. James, Ameet B. Kabrawala, on the brief) Assistant U.S. Attorneys, for Richard P. Donoghue, United States Attorney, Eastern District of New York, Brooklyn, NY. |
| Judge Panel | PRESENT Robert D. Sack, Reena Raggi, Susan L. Carney, Circuit Judges. |
| Case Date | March 22, 2019 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Second Circuit |
UNPUBLISHED OPINION
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 22nd day of March, two thousand nineteen.
Appeal from a judgment of the United States District Court for the Eastern District of New York (Bianco, J.).
FOR APPELLANT: Louis M. Freeman, Freeman, Nooter & Ginsberg, New York, NY.
FOR APPELLEE: Allen L. Bode (David C. James, Ameet B. Kabrawala, on the brief) Assistant U.S. Attorneys, for Richard P. Donoghue, United States Attorney, Eastern District of New York, Brooklyn, NY.
PRESENT Robert D. Sack, Reena Raggi, Susan L. Carney, Circuit Judges.
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment entered on August 1, 2017, is AFFIRMED.
Defendant-appellant Joseph Valerio appeals from a judgment sentencing him principally to 60 years' imprisonment on ten counts of conviction relating to the sexual exploitation of two minor children and the transportation, receipt, and possession of child pornography. Valerio challenges the denial of his motion to suppress inculpatory statements made during the execution of a search warrant at his home, raises procedural and substantive reasonableness challenges to his de facto life sentence, and contends that several of his convictions violate the constitutional prohibition against double jeopardy. We assume the parties' familiarity with the underlying facts, procedural history, and arguments on appeal, to which we refer only as necessary to explain our decision to affirm.
I.
Valerio urges that the District Court erred in denying his motion to suppress statements made by him in response to questioning during the search of his home, executed pursuant to a valid warrant. On appeal from a suppression ruling, we review factual findings for clear error and questions of law de novo. United States v. Faux, 828 F.3d 130, 134 (2d Cir. 2016). The determination of whether Valerio was "in custody" during that questioning and therefore entitled to warnings under Miranda v. Arizona, 384 U.S. 436 (1966), is a question of law, and is thus subject to de novo review. United States v. Newton, 369 F.3d 659, 668 (2d Cir. 2004).
Consistent with the Fifth Amendment privilege against self-incrimination, statements made during a custodial interrogation are generally inadmissible unless a suspect has first been advised of his right to remain silent and to have counsel present. Miranda, 384 U.S. at 444. These warning requirements, however, apply only to "'custodial interrogation[s].'" Georgison v. Donelli, 588 F.3d 145, 155 (2d Cir. 2009). To determine whether an individual was "in custody" when he was interrogated, we evaluate "how a reasonable man in the suspect's position would have understood his situation." Berkemer v. McCarty, 468 U.S. 420, 442 (1984). This evaluation requires us to answer two questions. First, whether a Fourth Amendment seizure of the person occurred: that is, "whether a reasonable person would have thought he was free to leave the police encounter at issue." Newton, 369 F.3d at 672. If we conclude that a reasonable person would not have considered himself free to leave the encounter, we turn to the second question: "[whether] a reasonable person would have understood his freedom of action to have been curtailed to a degree associated with formal arrest." Id. In considering the latter question, we examine a range of circumstances, including: (1) "the interrogation's duration"; (2) "its location (e.g., at the suspect's home, in public, in a police station, or at the border)"; (3) "whether the suspect volunteered for the interview"; (4) "whether the officers used restraints"; (5) "whether weapons were present and especially whether they were drawn"; and (6) "whether officers told the suspect he was free to leave or under suspicion." United States v. FNU LNU, 653 F.3d 144, 153 (2d Cir. 2011). If, after weighing these factors, we conclude that a reasonable person in the defendant's situation would have considered his freedom curtailed to a degree associated with formal arrest, the defendant is then entitled to the whole range of protections recognized by Miranda.
At a suppression hearing conducted by the District Court, the Government relied on the testimony of a sole witness-FBI Special Agent Steven Troyd-to establish the relevant circumstances. Troyd testified that the search occurred at 6:00 am on a cold winter's day and was executed by him and a team of eleven other officers. Valerio allowed the officers entrance into his home without resistance. After the officers carried out a ten-minute protective sweep of the home, Troyd asked Valerio to sit at the dining room table to speak with him, and informed Valerio that they were searching for evidence of child pornography. During their dining room colloquy, Troyd was seated across the table from Valerio, and was accompanied at the table by two other officers, with a third officer standing in the corner of the room.
Troyd testified further that, during the interview, Valerio was not restrained or touched in any way. He was provided with a cup of water upon request. Troyd confronted Valerio with copies of incriminating emails that the Government had received in Ukraine from Valerio's co-conspirator, Olena Kalichenko. In response, Valerio admitted that he directed Kalichenko to produce child pornography and that he had received it by email.
At this point, Troyd said he conferred with another officer and decided to call the U.S. Attorney's Office for authorization of a criminal complaint against Valerio. After the complaint was authorized, Troyd advised Valerio of his Miranda rights. Valerio then made several additional admissions but requested to speak to his attorney when the agents asked him to sign a written statement. At that point, all further questioning ceased. The interview had lasted approximately 90 minutes when Troyd administered the Miranda warning.
We discern no error in the District Court's determination that Valerio was not "in custody" at the time of the interview and in its denial of Valerio's motion to suppress. Valerio argues that a reasonable person would not have felt free to leave under the conditions presented here, where a dozen officers in all were executing a search warrant in his home and his freedom of movement within the home was limited. After all, "'[i]f a reasonable person is interrogated inside his own home and is told he is "free to leave," where will he go? The library? The police station?'" Faux, 828 F.3d at 137 (quoting United States v. Craighead, 539 F.3d 1073, 1083 (9th Cir. 2008)). Under our precedent, however, Valerio's argument fails because he cannot show that the restrictions the agents placed upon him curtailed his freedom of action to the degree associated with a formal arrest.
In this case, the District Court found that: (1) Valerio was asked, not directed, to sit for an interview in the dining room; (2) he was not ordered to remain in the dining room or to answer any questions, nor was he threatened during the interview; (3) he was never told that he was not free to leave or would be arrested after the interview; (4) he was never handcuffed or restrained at any time; and (5) he was cooperative with the agents and remained calm throughout the interview. Furthermore, the District Court found that the agents did not brandish or draw their weapons at any time while executing the search warrant or interviewing Valerio. We have repeatedly found that, under such circumstances, a suspect is not "in custody" and therefore is not entitled to Miranda warnings. See, e.g., United States v. Familetti, 878 F.3d 53, 60-61 (2d Cir. 2017) (defendant not in custody when interrogated in bedroom, even when he was initially restrained during a panic attack); Faux, 828 F.3d at 138-39 (despite presence of over a dozen agents, defendant not in custody when "questioned in the familiar surroundings of her home . . . seated at her own dining room table" and agents did not display weapons or threaten any use of force).
Accordingly, because Valerio was not "in custody" for purposes of Miranda when he was interviewed by Troyd, we affirm the District Court's denial of his motion to suppress.1
II.
Valerio raises various procedural and substantive challenges to his 60-year prison sentence. As to his procedural challenges, Valerio argues (1) that, in imposing this sentence, the District Court impermissibly relied on uncharged conduct alleged by the Government after trial and (2) that it specifically erred by sua sponte inviting Valerio's co-conspirator Kalichenko to testify at an evidentiary hearing held pursuant to United States v. Fatico, 603 F.2d 1053 (2d Cir. 1979). He also contends (3) that the District Court used an erroneous benchmark in calculating the sentence.
We reject these challenges. First, "a sentence...
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