United States v. Wallace

• Decision Date: 25 April 2013
• Docket Number: No. 12–2172.,12–2172.
• Citation: 713 F.3d 422
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Freddie WALLACE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

713 F.3d 422

UNITED STATES of America, Plaintiff–Appellee

v.Freddie WALLACE, Defendant–Appellant.

No. 12–2172.

United States Court of Appeals,

Eighth Circuit.

Submitted: March 15, 2013.

Filed: April 25, 2013.

Alvin L. Simes, Forrest City, AR, for appellant.

Marsha Wardlaw Clevenger, AUSA, Little Rock, AR, for appellee.

Before MURPHY, SMITH, and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

A jury found Freddie Wallace guilty of one count of production of child pornography in violation of 18 U.S.C. § 2251(a) and one count of possession of child pornographyin violation of 18 U.S.C. § 2252(a)(4)(B). The district court ¹ sentenced Wallace to 265 months' imprisonment on the production of child pornography count and a concurrent 120 months' imprisonment on the possession of child pornography count. Wallace appeals his convictions, challenging the admission into evidence of his written confession, a videotape seized from his home, and testimony of a former cellmate. He also challenges the sufficiency of the evidence to support his conviction for the production charge. We affirm.

I. Background

In February 2009, a confidential informant contacted the Wynne, Arkansas police department to allege sexual misconduct by Wallace towards her infant daughter. The informant also alleged that Wallace possessed a videotape recording of himself molesting another underage female. After a medical examination of the infant daughter proved inconclusive, the officers decided not to pursue the complaint at that time. On September 25, 2009, the informant brought the officers a videotape she claimed to have removed from Wallace's home. The videotape depicted Wallace moving the clothes of sleeping minor females to expose their breasts and genital areas. One segment showed Wallace fondling one of the minor females. The officers were able to match the face in the video to a copy of Wallace's driver's license photograph, and voices in the background can be heard calling Wallace's name. The informant also told the officers that a maroon-colored suitcase in Wallace's spare bedroom contained additional sexually explicit material involving minors.

Based on this information, the officers obtained a search warrant for Wallace's home. In the course of executing the warrant on September 28, 2009, the officers seized a maroon-colored suitcase containing numerous sexually explicit images and videotape recordings of minors. One of the videotapes showed an adult male touching a naked minor female, later identified as M.J., in the genital area. The officers interviewed M.J., who confirmed that Wallace filmed the video and touched her in the video.

Following the interview with M.J., the officers arrested Wallace. Wallace agreed in writing to waive his Miranda rights and agreed to be interviewed by Detective Howard Smith and Secret Service Agent Bryan Perugini. Wallace accurately told the officers where he lived and stated that he was a certified nursing assistant. Based on these statements and Wallace's demeanor, the officers believed Wallace to be competent. Detective Smith testified that Wallace was very cooperative and apologetic throughout the interview and that the officers made no use of threats, coercive tactics, or promises of leniency. Wallace admitted to the detectives that he had filmed the videos, identified himself as the individual touching the underage females, and prepared a handwritten statement in confirmation. The district court denied Wallace's motion to suppress his confession as involuntary.

At trial, the Government introduced testimony from Sergio Berber, Wallace's former cellmate. Berber testified that Wallace told him details about the sexually explicit videos he made with underage females. At the time of trial, Berber was incarcerated for a conviction arising from a 2008 methamphetamine conspiracy. Berber had contacted his attorney to see if he could cooperate in the case against Wallace and was told that, due to a prior sentence reduction for his cooperation in the methamphetamine case, he would be unlikely to receive a sentence reduction for cooperating against Wallace. Berber testified that he did not receive anything in exchange for his testimony. Wallace did not object to Berber's testimony at trial.

On appeal, Wallace argues that the district court erred in (1) denying the motion to suppress his confession, (2) admitting into evidence the videotapes seized from Wallace's house because there was no probable cause for the search warrant, and (3) admitting the testimony of Berber because he was not reliable. Wallace also argues that (4) there was insufficient evidence to support his conviction for production of child pornography.

II. DiscussionA. Admission of Wallace's Confession

Wallace argues that his confession was involuntary. “We affirm a denial of a motion to suppress unless the district court's decision ‘is unsupported by substantial evidence, based on an erroneous interpretation of applicable law, or, based on the entire record, it is clear a mistake was made.’ ” United States v. Bay, 662 F.3d 1033, 1035 (8th Cir.2011) (quoting United States v. Annis, 446 F.3d 852, 855 (8th Cir.2006)). We review the district court's findings of fact for clear error and its legal conclusions de novo. Id. “To determine whether a confession is voluntary, we look at ‘the totality of the circumstances, examining both the conduct of the officers and the characteristics of the accused.’ ” United States v. Vega, 676 F.3d 708, 718 (8th Cir.2012) (quoting United States v. Boslau, 632 F.3d 422, 428 (8th Cir.2011)). We will consider, among other things, “the degree of police coercion, the length of the interrogation, its location, its continuity, and the defendant's maturity, education, physical condition, and mental condition.” Id. (quoting Boslau, 632 F.3d at 428).

Wallace now claims that he wanted to ask for an attorney but was pressured into signing the confession. He argues that neither officer present during the confession inquired into Wallace's background, intelligence, or mental state, and that because there is no video or audio recording of the confession, the officers' testimony regarding his competency is mere speculation.

The district court based its denial of Wallace's motion to suppress on the following facts. Wallace testified at the suppression hearing that he knew he had the right to counsel throughout his interview. After being read a waiver of Miranda rights form, Wallace signed the form, which explicitly stated that he was influenced by no promises, threats, or coercion of any kind. He then wrote a detailed confession. Wallace also accurately told the detectives where he lived and that he worked as a certified nursing assistant, indicating that he was competent to respond to questions. Detective Smith testified that there were no threats or promises made to Wallace at any time and that Wallace was very cooperative, responsive, and apologetic, while Agent Perugini corroborated Detective Smith's testimony. See United States v. Carothers, 337 F.3d 1017, 1019 (8th Cir.2003) (noting that a district court's “credibility determinations are ‘virtually unreviewable on appeal’ ”) (quoting United States v. Hernandez, 281 F.3d 746, 748 (8th Cir.2002)).

The district court carefully considered the totality of the circumstances in finding that Wallace's confession was made knowingly, intelligently, and voluntarily, and we discern no error. We therefore affirm the denial of Wallace's motion to suppress his confession.

B. Admission of the Videotape

Wallace argues that the district court erred in admitting the videotape seized from his home because the Government lacked probable cause to search his home. “A search warrant is valid under the Fourth Amendment if it is supported by probable cause.” United States v. Stevens, 530 F.3d 714, 717–18 (8th Cir.2008). A district court's finding of probable cause to support a search warrant is “afforded great deference on review.” United States v. Montgomery, 527 F.3d 682, 686 (8th Cir.2008). We will not upset a district court's finding of probable cause “unless there was no substantial basis for that finding.” Id. When assessing probable cause based on information supplied by an informant, “[t]he core question ... is whether the information is reliable.” United States v. Williams, 10 F.3d 590, 593 (8th Cir.1993). “Information may be sufficiently reliable to support a probable cause finding if ... it is corroborated by independent evidence.” Id. “If information from an informant is shown to be reliable because of independent corroboration, then it is a permissible inference that the informant is reliable and that therefore other information that the informant provides, though uncorroborated, is also reliable.” Id.

Wallace claims that the informant was unreliable based on her criminal history, the fact that he had thrown her out of his house for failing to pay bills, and the fact that she never previously had provided the government with reliable information leading to a conviction. However, most of the informant's information was corroborated through independent evidence. For example, the informant first claimed that a videotape existed that would show Wallace engaging in sexually explicit conduct with an underage female and then was able to deliver such a videotape. Moreover, the officers matched the face in the videotape to an independent copy of Wallace's driver's license photograph. Because there was independent corroboration of the videotape contents, it was permissible to infer that other information provided by the informant, including the location of additional material in the maroon-colored suitcase, was reliable, establishing probable cause for the warrant. The district court therefore did not err in admitting the videotape seized from Wallace's home.

C. ...