US v. Zygarowski, Crim. No. 88-0224-F.

• Decision Date: 27 October 1989
• Docket Number: Crim. No. 88-0224-F.
• Citation: 724 F. Supp. 1052
• Court: U.S. District Court — District of Massachusetts
• Parties: UNITED STATES of America v. Robert ZYGAROWSKI, Defendant.

724 F. Supp. 1052

UNITED STATES of America v. Robert ZYGAROWSKI, Defendant.

Crim. No. 88-0224-F.

United States District Court, D. Massachusetts.

October 16, 1989.

On Motion for Reconsideration October 27, 1989.

Susan Via, Asst. U.S. Atty., U.S. Attys. Office, Boston, Mass., for U.S.

Daniel Kelly, Springfield, Mass., for defendant.

MEMORANDUM AND ORDER

FREEDMAN, Chief Justice.

I. INTRODUCTION

Before the Court are defendant Robert Zygarowski's ("Zygarowski") two separate objections to a Report and Recommendation by United States Magistrate Michael A. Ponsor ("Magistrate's Report") that the defendant's motions for specific performance by the government and for suppression of evidence be denied. The United States has responded to Zygarowski's objections, and urges this Court to affirm the Magistrate's recommendation.

II. BACKGROUND

The defendant Zygarowski was indicted on August 4, 1988 under 18 U.S.C. § 2252(a)(2)¹ for knowingly receiving visual depictions, the production of which involved the use of minors engaging in sexually explicit conduct.² Specifically, the United States alleges that the defendant sent away for and received a VHS video-cassette entitled "Pre-Teen Trio," containing scenes of persons under the age of 18 engaged in conduct covered by the statute.

With the agreement of the parties, Magistrate Ponsor waived the usual evidentiary hearing with respect to the motion for specific performance, and assessed the defendant's claim on the basis of the defendant's version of the facts. Magistrate Ponsor specifically noted, however, that the facts were disputed in several material respects. Upon review of Zygarowski's objections to the Magistrate's Report and the government's response thereto, the Court concluded that a factual hearing was necessary to resolve the dispute between the parties. A two hour hearing was held on October 18, 1989, at which both Daniel Kelly, the defendant's attorney, and Susan Via, the Assistant United States Attorney in charge of this case, were themselves represented by counsel. Accordingly, the Court's discussion of that motion will be based on the facts as it found them at that hearing. With respect to the motion to suppress, however, the Court is aided by the fact that Magistrate Ponsor heard five days of testimony from a variety of witnesses.

Having reviewed the facts as found by this Court and the Magistrate, and having weighed the legal arguments, the Court concludes in both instances that the Report and Recommendation of the Magistrate should be adopted.

III. DISCUSSION

A. Standard of Review

This matter was referred to the Magistrate for a report and recommendation pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B).³ That section further provides that "a judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1).

In construing the terms of section 636(b)(1), the First Circuit has held that a district court need not hold a brand new hearing to satisfy the de novo standard of review. Gioiosa v. United States, 684 F.2d 176, 178-79 (1st Cir.1982). Instead, it is sufficient that the district court review the transcript or tape of the suppression hearing in sufficient detail to make its own determination with regard to each disputed factual finding. See generally Gioiosa, 684 F.2d at 178, and cases cited; see also LoConte v. Dugger, 847 F.2d 745, 750 (11th Cir.), cert. denied ___ U.S. ___, 109 S.Ct. 397, 102 L.Ed.2d 386 (1988) ("To the extent that the magistrate has made findings of fact based upon the testimony of the witnesses heard before the magistrate, the district court is obligated to review the transcript or listen to the tape-recording of those proceedings"). As there are no substantial objections to the Magistrate's finding of facts with respect to the motion to suppress, the Court's obligation to review the record of the hearing is alleviated and, in the subsequent discussion, the Court will rely in large part on those conclusions.

The First Circuit has noted that the requirement of a "de novo determination" only applies to the Magistrate's factual findings; "issues of a `technical, legal' nature presented to a magistrate are `certainly ... amenable to disposition by the district court by appellate type briefing and argument.'" Gioiosa, 684 F.2d at 179, quoting United States v. Southern Tanks, Inc., 619 F.2d 54, 56 (10th Cir.1980). Accordingly, where the parties have disputed legal issues, the Court will weigh and evaluate the arguments of the parties in standard fashion.

B. Motion to Suppress

1. The Relevant Facts

In the spring of 1986, Zygarowski received a letter from the Far Eastern Trading Co. ("Far Eastern"), which stated that Far Eastern could send "youthful material" to the defendant without detection by government authorities. Unbeknownst to the defendant at the time, the Eastern Trading Co. was a front for the United States Postal Service as part of its National Child Pornography Reverse Sting Project known as "Operation Looking Glass," the Postal Service's effort to identify and apprehend purchasers of child pornography.⁴ Some time thereafter, the defendant requested a copy of the company's brochure, in which were detailed descriptions of various films depicting children in sexual acts. In January 1987, the defendant submitted an order to Far Eastern for two of the films advertised in the company's brochure.

Approximately six months later, Zygarowski received a postcard from Far Eastern stating that his order would be mailed on June 6, 1987. On June 8, 1987, Postal Inspector John G. Dunn, Jr. submitted an application for a search warrant to Magistrate Patti B. Saris in Boston, Massachusetts. The application was based on a lengthy affidavit signed by Inspector Dunn, and was approved later that afternoon.

In the affidavit, Inspector Dunn stated that at some time between June 10 and June 12, 1987, "a parcel containing the pornographic video tape `Pre-Teen Trio' would be `placed for delivery' to the defendant at his home address." Magistrate's Report at 15, citing Affidavit of Postal Inspector John G. Dunn, Jr., ¶ 18. The parcel was marked both C.O.D. and "restricted delivery," which meant not only that the package had to be paid for upon delivery, but also that it could only be received by the addressee himself. Magistrate's Report at 17.

Based on the testimony of the postal inspectors, Magistrate Ponsor found that they were aware that Zygarowski's normal working hours were between 6:30 a.m. and 3:30 p.m., and that he did not usually come home during that time. The inspectors also knew that the normal delivery time for the defendant's residence was approximately 11:00 a.m. Magistrate's Report at 16. The defendant alleges, and the Court finds no evidence to the contrary, that this information was not contained in Inspector Dunn's affidavit. In addition, Magistrate Ponsor noted that the affidavit did not contain any description of the process by which Inspector Dunn expected that the parcel would be brought into the residence. Magistrate's Report at 15.

Clearly, however, the arrival of the package into Zygarowski's house was important to the government agents, since Magistrate Ponsor concluded that "the information contained in the affidavit would be insufficient to justify a search of the 159 Casey Drive residence unless and until the package containing the video tape cassette ... entered the residence." Id. In light of the defendant's specific challenges to the search as a whole, and specifically to its scope, the means by which the package did enter the house are worth examining closely.

On June 10, 1987, the normal mail carrier for Casey Drive attempted delivery of the parcel at approximately 11:00 a.m. Magistrate's Report at 17. Since the defendant was not home, the mail carrier left Postal Service Form 3849-A at Zygarowski's residence to inform him that he could pick up his package at the Chicopee Post Office after 3:30 p.m. Id.

The defendant, under observation by the postal authority, was seen leaving work and returning to 159 Casey Drive at about 3:30 p.m. After ten to fifteen minutes in the house, the defendant left for the Chicopee Post Office, arriving there at about 3:50 p.m. Magistrate's Report at 18. At the post office, the defendant paid the $94.45 C.O.D. charge and received the parcel containing the videocassette. Id.

The defendant was then observed leaving the post office and returning home at about 4:00 p.m. or shortly thereafter. The inspectors watched the plaintiff enter the house, and initiated the search approximately thirty minutes later. As the inspectors passed the Ford Bronco which the defendant had driven to the post office, they observed a brown paper parcel, now empty, in which the videocassette had been mailed. Id.

When the postal inspectors knocked on the door, the defendant's mother answered. Informed of the search warrant, she called to her son, who was in his room in the basement at the time. While one inspector remained upstairs to talk to the defendant's mother, the remaining four inspectors went downstairs to Zygarowski's room. Magistrate's Report at 19. The search, which was limited to Zygarowski's room, took approximately two and one-half hours, concluding at about 7:00 p.m. Id.

Postal Inspector John N. Cinotti, in charge of the search, approached Zygarowski upon entering the room, showed him the search warrant, and said that he'd like to discuss it with him. Id. The plaintiff was apparently stunned by the warrant, but after five or six minutes, grew more composed. The Magistrate determined that much of Zygarowski's apprehension arose out of the fact that he had just finished a period of probation for mail fraud. Magistrate's Report at 20.

During the search, Zygarowski was never told that he was under arrest or that he had any obligation to cooperate with...