United States v. Yong Wang
| Decision Date | 05 February 2013 |
| Docket Number | 11 Cr. 730 (PGG) |
| Parties | UNITED STATES OF AMERICA, v. YONG WANG, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Defendant Yong Wang is charged with advertising child pornography in violation of 18 U.S.C. § 2251(d)(1), with receiving and distributing child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B), and with reproducing child pornography for distribution in violation of 18 U.S.C. § 2252A(a)(3)(A).
Wang has moved to suppress (1) his post-arrest statements and (2) evidence obtained as a result of his consent to agents assuming his online identity. Wang claims that his post-arrest statements were obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and that his consent was not voluntary.
Wang has also moved to dismiss Count One of the Indictment on the grounds that (1) it fails to state an offense; (2) Section 2251(d)(1) is "void for vagueness"; and (3) Section 2251(d)(1) is ambiguous as to the definition of "advertisement," and under the "rule of lenity," a charge brought under Section 2251(d)(1) must be dismissed.
For the reasons stated below, Wang's motion to suppress will be granted as to post-arrest statements he made prior to the administration of Miranda warnings, but will otherwise be denied. Wang's motion to dismiss Count One will be denied.
Count One of the Indictment charges Wang with advertising child pornography in violation of 18 U.S.C. § 2251(d)(1). Count One's factual allegations include the following:
Between 2007 and June 2011, Wang "managed and operated at least 18 websites containing child pornography ('the Websites')." (Indictment ¶ 1) Wang "sold 'memberships' to the Websites to individuals who paid to view, post, and download graphic images of child pornography." (Id.) The Websites were in Chinese. (Id.)
In order to access child pornography on the Websites, it was necessary "to (i) purchase a 'V.I.P. membership,' or (ii) acquire 'points' either by making monetary payments or by posting pornography, including child pornography, to the Websites." (Id. ¶ 2) Wang "oversaw memberships for the Websites and collected payments either directly or indirectly through associates who established accounts at banks in China, at Wang's behest." (Id.)
One of Wang's websites - http://uudiguo.info - is entitled "'Empire of the Young and Innocent Fragrances,'" as translated from Chinese. (Id. ¶ 3) Links on the Websites "advertised and offered access to child pornography collected under descriptive titles, such as 'Young Young Empire,' 'Young Girl Beauty Photos Military Region,' 'Young Boy Movie Zone,' and 'Exclusive Quality Young Girl Photos Set.'" (Indictment ¶ 3)
The "to wit" clause of Count One states that Wang "maintained and operated websites that contained advertisements for the display and reproduction of images of child pornography over the Internet." (Indictment ¶ 5)
Counts Two and Three of the Indictment charge Wang with receipt and distribution of child pornography and reproduction of child pornography for distribution, respectively.
In support of his motion to suppress, Wang submitted an affidavit alleging the following facts: At 6:30 a.m. on June 23, 2011, federal agents entered his home. (Wang Aff. ¶ 3) Because he "did not know who they were," he hid in a closet. (Id.) "[W]ith guns drawn," the agents removed Wang from his closet and brought him to the living room. (Id. ¶ 4) One of the agents then told Wang, "we are not here for you, but want you to cooperate and tell us who is making the pictures and posting [them] on [the] web." (Id. ¶ 5)
Wang asserts that "[t]he Federal Agents led [him] to believe that if [he] cooperated with the agents and gave them the information they requested[, he] would be released" and would not be arrested. (Id. ¶ 6) Accordingly, Wang provided a statement to the agents and consented to the agents assuming his online identity. (Id.)
The Court conducted an evidentiary hearing concerning Wang's suppression motion on June 21, 2012 and October 25, 2012. The Government called Special Agent Thomas Thompson of the Federal Bureau of Investigation's ("FBI") Internet Crimes Against Children Unit, who was involved in Wang's arrest and post-arrest questioning. Wang did not testify and did not call any witnesses. Agent Thompson testified to the following:
At approximately 6:05 a.m. on June 23, 2011, Agent Thompson, other FBI agents, and a translator arrived at Wang's residence in Flushing, Queens. Agents had an arrest warrant for Wang and asearch warrant for his residence. (Id. at 8) Each agent was wearing either a vest or jacket bearing the FBI logo printed in large letters. (Id. at 9, 19) One of the agents knocked on the door of Wang's residence and "yelled out 'FBI, search warrant, open the door, 5H.'" (Id. at 9) Another agent repeated this statement in Chinese. (Id.) Someone opened the door to Wang's residence, and his parents, wife, and brother then left the apartment. (Id.)
After Wang's family exited the apartment, a number of the agents entered the residence in order to conduct a "safety sweep" - i.e., to look for weapons and to make sure that no one else was in the apartment. (Id. at 9-10, 22) After Agent Thompson entered the living room, he heard a "commotion" coming from Wang's bedroom. (Id. at 10) A short time later, two agents walked into the living room with Wang. (Id. at 10, 23-25) One of the agents advised Agent Thompson that Wang had been "hiding in his bedroom closet on a shelf approximately eight feet high, with clothes over him." (Id. at 10) The agent had been searching Wang's closet when he saw a foot, became startled, drew his gun, and yelled "[s]how me your hands." (Id. at 25)
Agent Thompson then asked Wang "[w]hat were you doing, why were you hiding?" (Id. at 10-11, 26-28) Wang responded, "[w]hen I heard agents outside yell FBI, I knew I was in a lot of trouble, so I hid." (Id. at 11) This conversation took place in English. (Id. at 11)
At approximately 6:15 a.m., Agent Thompson and Agent Linh Phung took Wang to his bedroom and began questioning him. (Id. at 8, 11, 28-29, 31) The questioning took place in English. (Id. at 11) Agent Thompson testified that he asked Wang if he spoke English and Wang stated that he did. (Id.) Agent Thompson advised Wang that a translator was present in the apartment, but Wang stated that he did not need a translator. (Id. at 11, 32-33) Wang spokeEnglish clearly and never indicated that he was having any difficulty understanding the agents. (Id. at 11, 32, 47, 52) Wang had a Facebook page that contained English, and a number of his emails were in English. (Id. at 49-50) Moreover, Wang had lived in the United States since 1999 and had attended Queens College. (Id. at 49-50, 52)
Agent Thompson told Wang that the agents had a warrant for his arrest and a search warrant for the apartment, and that Wang faced child pornography charges. (Id. at 11, 33) Agent Thompson told Wang that he knew Wang was operating a child pornography website, and that "[o]ne of our goals is to find out who is making these child pornography videos, and [that agents] would appreciate his cooperation." (Id. at 33-34) Agent Thompson told Wang that although the agents could not "make him any promises" as to whether "his cooperation will help or not help his case," agents would prepare a report that would be given to the prosecutor and the judge. (Id. at 11-12, 35) Agent Thompson also told Wang that cooperating "could help him down the line." (Id. at 11, 35-37)
Shortly after entering Wang's bedroom, Agent Thompson verbally administered Miranda warnings to Wang. At approximately 6:20 a.m., Thompson gave Wang a written FBI advice-of-rights form. (Gx. 1; June 21, 2012 Tr. 12, 38-39, 43-45) After Wang read the advice-of-rights form, Agent Thompson asked him if he understood it, and Wang responded that he did. (June 21, 2012 Tr. 12, 38-39, 43-45) Agent Thompson then asked Wang if he was willing to sign the form and speak with agents. Wang stated that he was willing to answer questions, and he signed the waiver form at approximately 6:21 a.m. (Gx. 1; June 21, 2012 Tr. 12, 38-39, 43-45)
After Wang signed the advice-of-rights form, Agents Thompson and Phung began to interview Wang. (June 21, 2012 Tr. 13) Wang was not handcuffed during this interrogation.(Id. at 14, 31, 41) Agent Thompson again asked Wang, "[w]hat were you doing, why were you hiding[?]" (Id. at 13) Wang repeated that he "hid in the closet because when [he] heard the agents out[side] the door yell FBI, [he] knew [that he] was in a lot of trouble." (Id.) Agent Thompson again advised Wang that he knew Wang was operating a child pornography website, and told him that he was being arrested for distributing child pornography. (Id.)
After Wang signed the advice-of-rights form, he told the agents that he could go online and show them the "uudiguo" website. Agent Thompson then told Wang that the agents wanted to take over his online accounts and asked Wang to sign a form entitled "Consent to Assume Online Presence." (Gx. 2; Oct. 25, 2012 Tr. 7-8) This form states, in part:
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