United States v. Michalik ( 2021 )

Case: 20-50244 Document: 00515940065 Page: 1 Date Filed: 07/15/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 15, 2021
No. 20-50244
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jeffrey Clinton Michalik,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
No. 5:17-CR-347-1
Before Smith, Stewart, and Ho, Circuit Judges.
Jerry E. Smith, Circuit Judge:
A jury convicted Jeffrey Michalik of possessing child pornography.
Michalik contends that the district court erred in denying his motion to sup-
press evidence and by admitting various pieces of evidence and testimony at
trial, and he also asserts that the evidence was insufficient to sustain his
conviction. Finding no reversible error, we affirm.
I.
Agents from the Department of Homeland Security, Homeland
Security Investigations (“HSI”), executed a warrant at Michalik’s house.
Case: 20-50244 Document: 00515940065 Page: 2 Date Filed: 07/15/2021
No. 20-50244
They did so because someone using an IP address associated with the house
had accessed and downloaded child pornography from a website called
“Amateur Lovers.”
The HSI agents testified that they arrived early in the morning as
Michalik was leaving for work. 1 They approached Michalik as he was getting
into his car, informed him that he was not under arrest, and asked for his
assistance entering the house pursuant to their warrant. The agents say that
they swept the house and informed Michalik and his family that they were
free to leave.
The agents then interviewed Michalik in one of their cars on the street
near his house. During the interview, the agents asked Michalik whether he
had viewed child pornography, and they assert that he admitted to having
done so on his work laptop and that he said he used the same laptop to view
pornography at home. The agents showed him images of child pornography,
and he conceded that he recognized some of them. The agents testified that
Michalik then drove to his office in his own car with agents in tow, stopping
along the way at a McDonalds so an agent could use the restroom. At the
office, Michalik led the agents to his laptop and signed a form consenting to
its search. On the laptop, agents found child pornography.
Michalik’s version of the events differs. He asserts that the agents
gave him the ultimatum that either he lead them to the office and retrieve the
laptop, or they would take him to jail. Michalik also contends the agents told
him that they already had a warrant to search his laptop. Michalik doesn’t
contest that he signed the consent form but avers that the agents failed to tell
1
Many of the following facts are disputed, with Michalik’s and the agents’ ac-
counts conflicting on material points. The district court repeatedly and consistently deter-
mined that the agents’ version was credible.
2
Case: 20-50244 Document: 00515940065 Page: 3 Date Filed: 07/15/2021
No. 20-50244
him what he was signing or give him a choice whether to do so.
Michalik moved to suppress the evidence from his interview with the
agents and the evidence from his laptop; the district court denied the motion.
The jury convicted Michalik of possessing child pornography under
18 U.S.C. § 2252A(a)(5)(B). He appeals the denial of his motion to suppress,
several admissions of evidence at trial, and the sufficiency of the evidence in
support of his conviction.
II.
Michalik appeals the denial of his motion to suppress the evidence of
his statements to HSI agents and the evidence from his laptop. He contends
that the government’s failure to recite his Miranda rights necessitates the
exclusion of his statements to the agents, and he avers that his consent to
search his office laptop was not voluntary.
A.
In reviewing the denial of a motion to suppress, we review findings of
fact for clear error and legal conclusions de novo. See United States v. Nelson,
990 F.3d 947, 952 (5th Cir. 2021). We view “the evidence in the light most
favorable to the party that prevailed in the district court,” United States v.
Chavez, 281 F.3d 479, 483 (5th Cir. 2002), and we will uphold the district
court’s ruling on the motion “if there is any reasonable view of the evidence
to support it,” see, e.g., United States v. Michelletti, 13 F.3d 838, 841 (5th Cir.
1994) (en banc) (quotation marks and citation omitted). “Our review is par-
ticularly deferential where denial of the suppression motion is based on live
oral testimony because the judge had the opportunity to observe the de-
meanor of the witnesses.” United States v. Aguirre, 664 F.3d 606, 612 (5th
Cir. 2011) (cleaned up).
In general, “a suspect’s incriminating statements during a custodial
3
Case: 20-50244 Document: 00515940065 Page: 4 Date Filed: 07/15/2021
No. 20-50244
interrogation are inadmissible if he has not first received Miranda warnings.”
Nelson, 990 F.3d at 955. A suspect is in custody “when placed under formal
arrest or when a reasonable person in the suspect’s position would have
understood the situation to constitute a restraint on freedom of movement of
the degree which the law associates with formal arrest.” United States v.
Wright, 777 F.3d 769, 774 (5th Cir. 2015) (quoting United States v. Bengivenga,
845 F.2d 593, 596 (5th Cir. 1988) (en banc)). A suspect’s custodial status “is
an objective inquiry . . . that depends on the totality of the circumstances.”
Id. (cleaned up). Five factors are relevant: “(1) the length of the questioning;
(2) the location of the questioning; (3) the accusatory, or non-accusatory,
nature of the questioning; (4) the amount of restraint on the individual’s
physical movement; and (5) statements made by officers regarding the
individual’s freedom to move or leave.” Nelson, 990 F.3d at 955.
B.
Regarding the first factor, the length of questioning, the HSI agents
testified that Michalik’s interview lasted from forty-five minutes to just over
an hour. That’s roughly consistent with Michalik’s contention that the inter-
view lasted “at least an hour.” Although an interview length of one hour
“weighs in favor of finding that it was custodial,” Wright, 777 F.3d at 777, an
hour-long interview, alone, doesn’t render the questioning custodial. In-
deed, “[w]e have previously rejected the broad proposition that an hour-long
interview constitutes a per se custodial interrogation.” United States v. Gon-
zalez, 814 F. App’x 838, 844 (5th Cir. 2020) (per curiam) (cleaned up).
The second factor—the location of the questioning—suggests that
the interview was not custodial. Michalik sat in the passenger-side front seat
of a police car on the street near his house. As in Wright, 777 F.3d at 777, the
interview “took place close to the [suspect’s] home, in a car subject to public
scrutiny.”
4
Case: 20-50244 Document: 00515940065 Page: 5 Date Filed: 07/15/2021
No. 20-50244
The third factor—whether the questioning was accusatory—indicates
that the interview was not custodial. The district court found HSI agents
DePaola and Juarez credible when they testified that the conversation was
“cordial” and Michalik was “cooperative.” As the district court noted,
Michalik contested those characterizations, asserting that the agents called
him a liar and made “disparaging and accusatory statements” about his
family. The district court did not clearly err in its credibility determination
in favor of the agents, and the third factor thus indicates that the interview
was not custodial.
The fourth factor—the amount of restraint on the suspect’s physical
movement—also suggests that the interview was not custodial. Michalik
contends that the presence of six to eight armed agents indicates that he was
physically restrained. He also notes that agents escorted him outside to the
car. The presence of armed agents, however, does not necessarily render an
interview custodial. 2 The agents never handcuffed or otherwise physically
restrained Michalik’s movement. 3 Indeed, the district court found that the
interview ended when Michalik “became frustrated with the agents’ ques-
tioning.” Moreover, the fact that Michalik’s mother-in-law left to take his
stepdaughter to school while agents were searching the house suggests that a
reasonable person would have felt free to leave.
The fifth factor—whether officers informed the suspect of his free-
dom to leave—also supports a finding that Michalik was not in custody.
2
See, e.g., Wright, 777 F.3d at 771, 777 (determining that an interview was not
custodial despite the presence of more than a dozen armed officers wearing bulletproof
vests, several of whom had their guns drawn).
3
Cf. United States v. Ortiz, 781 F.3d 221, 231–33 (5th Cir. 2015) (observing that
singling out and handcuffing a suspect may “suggest to a reasonable person that he was not
free to leave,” but determining that the brief handcuffing of a suspect does not render an
interview custodial per se).
5
Case: 20-50244 Document: 00515940065 Page: 6 Date Filed: 07/15/2021
No. 20-50244
Michalik contends now, as at his suppression hearing, that the agents failed
to tell him he was free to leave. He also asserts that the other occupants of
his house confirmed that the agents didn’t inform Michalik that he could
leave. On that contention, there is a dispute of fact. Agents DePaola and
Juarez testified that they told Michalik “repeatedly” that he was not under
arrest and was free to leave before the interview. The agents testified that
both Michalik and his family appeared to understand what they were saying.
Considering the divergent accounts, the district court made an explicit credi-
bility determination that the agents’ testimony was credible and reliable. The
district court did not clearly err in its determination; thus, the fifth factor
indicates that the interview was not custodial. Weighing the totality of the
circumstances, the district court did not err in concluding that Michalik was
not in custody.
C.
Michalik also appeals the admission of evidence from his office laptop,
averring that he did not voluntarily consent to its search. “A search con-
ducted pursuant to consent . . . remains one of the well-settled exceptions to
the Fourth Amendment’s warrant and probable-cause requirements.”
United States v. Rounds, 749 F.3d 326, 338 (5th Cir. 2014). The government
must show by a preponderance of the evidence that the suspect voluntarily
consented to the search, and whether the consent was voluntary is a factual
finding, reviewed for clear error. Id.To determine the voluntariness of consent, the court assesses six
factors: “(1) the voluntariness of the defendant’s custodial status; (2) the
presence of coercive police procedures; (3) the extent and level of the defen-
dant’s cooperation with the police; (4) the defendant’s awareness of his right
to refuse consent; (5) the defendant’s education and intelligence; and (6) the
defendant’s belief that no incriminating evidence will be found.” United
6
Case: 20-50244 Document: 00515940065 Page: 7 Date Filed: 07/15/2021
No. 20-50244
States v. Glenn, 931 F.3d 424, 430 (5th Cir.) (cleaned up), cert. denied,
140 S. Ct. 563 (2019).
D.
The first factor for determining whether consent to a search was
voluntary—the voluntariness of the suspect’s custodial status—favors the
government. As previously discussed, the district court did not err in deter-
mining Michalik was not in custody and was informed that he was free to
leave. 4
The second factor—the presence of coercive police procedures—
favors the government. Michalik avers that the agents used “coercive and
misleading statements . . . to obtain the written consent” to access his laptop.
Specifically, he asserts that he asked the agents whether they needed a war-
rant before searching his laptop and that they told him they already had a
warrant. Agent DePaola, on the other hand, testified that that claim was
“totally false.” Michalik also contends that the agents threatened to take
him to jail if he did not consent to the search of his laptop. Agent DePaola
flatly disputed that claim too. The district court determined that the govern-
ment agents were credible, and it did not clearly err in that finding.
The third factor—the extent and level of the defendant’s cooperation
with police—also supports the government. The district court determined
that the “record in the case demonstrates that [Michalik] was cooperative
with the agents during the drive to his work as well as in his office,” and
Michalik does not contest that characterization.
The fourth factor—the defendant’s awareness of his right to refuse
4
See United States v. Soriano, 976 F.3d 450, 455 (5th Cir. 2020) (“Voluntariness of
custodial status turns on whether a reasonable person in the defendant’s position would
feel free to terminate the encounter.”).
7
Case: 20-50244 Document: 00515940065 Page: 8 Date Filed: 07/15/2021
No. 20-50244
consent—favors the government, as well. Agent DePaola testified that
Michalik’s leading the agents to his office to retrieve the laptop was “com-
pletely up to him,” and that on “multiple occasions [DePaola] said it was
voluntary and [she] thanked him for his cooperation.” She also testified that
the agents told Michalik that “he could say no” to cooperating. Michalik
challenges the veracity of Agent DePaola’s testimony, contending that there
are discrepancies in her account, but a review of the record shows no material
discrepancies; instead, it reveals only that DePaola had trouble recalling
some details of her interaction with Michalik. The district court determined
that Agent DePaola’s testimony was credible and also noted that the consent
form Michalik signed included clear language informing him that he could
withhold his permission.
The fifth factor—the defendant’s education and intelligence—is
undisputed and also favors the government. Michalik was forty years old,
had a high school education, and operated a small business, demonstrating
that he had sufficient education and intelligence to consent voluntarily to the
search.
The sixth and final factor—the defendant’s belief that no incrimin-
ating evidence will be found—favors the government. Indeed, Michalik told
agents that, although he had viewed pornography on his laptop, he did not
believe there was any such material stored on it. With all six factors favoring
the government, the district court did not err in determining that Michalik’s
consent to the search of his laptop was voluntary.
III.
A.
Michalik appeals the admission of several pieces of evidence and wit-
ness testimony. We review evidentiary rulings for abuse of discretion,
subject to harmless-error review. United States v. Jackson, 636 F.3d 687, 692
8
Case: 20-50244 Document: 00515940065 Page: 9 Date Filed: 07/15/2021
No. 20-50244
(5th Cir. 2011). A district court “abuses its discretion when its ruling is based
on an erroneous view of the law or a clearly erroneous assessment of the evi-
dence.” Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003).
Michalik asserts that the district court erred by admitting
Exhibit 6B—a report showing that child pornography files on his laptop were
actually accessed—because the government submitted it after the discovery
deadline. In assessing discovery violations, the “district court commands
broad discretion when deciding whether to impose sanctions.” United States
v. Swenson, 894 F.3d 677, 684 (5th Cir. 2018) (internal quotation marks and
citation omitted). In determining whether to impose sanctions, a district
court considers “1) the reasons why disclosure was not made; 2) the amount
of prejudice to the opposing party; 3) the feasibility of curing such prejudice
with a continuance of the trial; and 4) any other relevant circumstances.”
United States v. Garrett, 238 F.3d 293, 298 (5th Cir. 2000).
The district court did not abuse its discretion in admitting Exhibit 6B
after the discovery deadline. The report was not disclosed earlier because
the government created it in response to an argument that Michalik raised on
the first day of trial—that the government could not prove that the contra-
band files on the laptop had ever been opened. Moreover, the court recessed
for two days to give Michalik and his computer forensic analyst time to review
the report and adjust his defense strategy; thus, the court took steps to reduce
the prejudice of the late admission. At the same time, the court determined
that a continuance was untenable because it would inhibit the government’s
ability to call out-of-town witnesses who had already arrived for trial.
The government did not act in bad faith in seeking the report’s late
admission, and, where a party did not act with “an improper motive, it is rare
to sanction a party in a method as draconian as suppressing the evidence.”
United States v. Ortiz, 213 F. App’x 312, 315 (5th Cir. 2007) (per curiam).
9
Case: 20-50244 Document: 00515940065 Page: 10 Date Filed: 07/15/2021
No. 20-50244
The court did not abuse its discretion by admitting Exhibit 6B into evidence.
B.
Michalik asserts that admission of Exhibit 6B was an abuse of discre-
tion, contending that it is a summary under Federal Rule of Evidence 1006
and thus must have been made available for examination at a reasonable time
and place. The government contests that characterization, averring that
Exhibit 6B is a forensic report, not a summary. Reviewing the exhibit, it
includes raw metadata, not anything amounting to a summary or chart. We
thus conclude that it is not a summary but instead a forensic report.
C.
Michalik asserts that the district court abused its discretion by allow-
ing Adrian Linares, the government analyst who created the report in
Exhibit 6B, to testify about its contents without being qualified as an expert
witness under Federal Rule of Evidence 701(c). Reviewing the record, it
appears that Michalik consented to the government’s calling of Linares as a
lay witness as part of an agreement also to allow Michalik to call his own com-
puter analyst as a lay witness to discuss what he saw on the government’s
report.
Even if the district court did err in failing to qualify Linares as an
expert, any error was harmless. “A nonconstitutional trial error is harmless
unless it had substantial and injurious effect or influence in determining the
jury’s verdict.” United States v. Lowery, 135 F.3d 957, 959 (5th Cir. 1998)
(quotation marks and citation omitted). Where other testimony confirms
wrongly admitted testimony, “the cumulative nature of the evidence mili-
tates toward the harmless error conclusion.” United States v. El-Mezain,
664 F.3d 467, 513 (5th Cir. 2011).
In addition to Linares, Special Agent Steve Nutt was admitted as an
10
Case: 20-50244 Document: 00515940065 Page: 11 Date Filed: 07/15/2021
No. 20-50244
expert witness. Nutt clarified and expounded on technical aspects of the for-
ensic report on rebuttal that Linares had previously discussed. Because Nutt
provided cumulative evidence, even if admitting Linares’s testimony on
technical aspects of the report was error, it was harmless. See id. Moreover,
as we will discuss in our review of the sufficiency of the evidence, even were
Linares’s testimony excluded, the “evidence of guilt [is] overwhelming,” so
any potential error in admitting his testimony was harmless. United States v.
Gutierrez-Mendez, 752 F.3d 418, 426 (5th Cir. 2014).
D.
Michalik contends that Nutt’s testimony about Exhibits 6 and 6B was
improper rebuttal. 5 Michalik asserts that, through Nutt’s testimony, the
government was “improperly impeaching or explaining [its] own reports.”
The government avers that Nutt’s rebuttal testimony was proper because
Michalik discussed Exhibit 6B during his defense; specifically, Michalik’s
brother testified that Michalik’s laptop sometimes played music when it was
closed, suggesting that there could have been remote access that was actually
responsible for the presence of the child pornography files. Because the files
listed in Exhibit 6B were in the music folder, the government contends that
Michalik opened the door to further discussion of the report on rebuttal.
“Whether to allow evidence in rebuttal is a matter within the trial
court’s discretion, reviewable only for an abuse.” Cates v. Sears, Roebuck &
Co., 928 F.2d 679, 685 (5th Cir. 1991). Although rebuttal “is not to be used
as a continuation of the case-in-chief,” id., the district court has wide discre-
tion and “may admit in rebuttal evidence which could have been received as
part of the case-in-chief,” United States v. Brock, 833 F.2d 519, 522 (5th Cir.
5
Exhibit 6 is a report listing all child pornography files discovered on Michalik’s
laptop.
11
Case: 20-50244 Document: 00515940065 Page: 12 Date Filed: 07/15/2021
No. 20-50244
1987). There is no abuse of that wide discretion here.
IV.
A.
Michalik asserts that the evidence was insufficient to convict him of
knowing possession of child pornography. “We review sufficiency of the evi-
dence de novo.” United States v. Smith, 739 F.3d 843, 845 (5th Cir. 2014).
We “examine all evidence in the light most favorable to the verdict, and con-
sider whether a rational trier of fact could have found that the evidence estab-
lished the essential elements of the offense beyond a reasonable doubt.” Id.(internal quotation marks and citation omitted). Moreover, the “assessment
of the weight of the evidence and the determination of the credibility of the
witnesses is solely within the province of the jury.” United States v. Sanchez,
961 F.2d 1169, 1173 (5th Cir. 1992).
The jury convicted Michalik of possessing child pornography in viola-
tion of 18 U.S.C. § 2252A(a)(5)(B). The evidence is sufficient to sustain a
conviction under § 2252A(a)(5)(B) where “a rational juror could find beyond
a reasonable doubt that [the defendant] (1) knowingly (2) possessed
(3) material containing an image of child pornography (4) that was trans-
ported in interstate or foreign commerce by any means.” Smith, 739 F.3d
at 845–46. Michalik contests only the first element—knowledge. “The
knowledge requirement extends both to the age of the performers and to the
pornographic nature of the material.” Id. at 848.
B.
Michalik makes a number of contentions in his argument that the evi-
dence was insufficient to prove that he knowingly possessed child pornogra-
phy. His central assertion is that, because others had access to his laptop at
his place of work—coworkers, customers, and other business associates—
the evidence was insufficient to prove that he knew there was child pornog-
12
Case: 20-50244 Document: 00515940065 Page: 13 Date Filed: 07/15/2021
No. 20-50244
raphy on his computer. A reasonable jury could easily conclude that Michalik
had knowing possession because the origins of the investigation undercut his
explanation: Agents initially searched his house because someone had ac-
cessed a child pornography website from an IP address associated with
Michalik’s house, not his office.
Michalik points out that there were other people living there who
could have used his laptop. A reasonable jury could still conclude that it was
Michalik who accessed the contraband because the HSI agents testified that
he confessed to viewing and searching for child pornography and also admit-
ted that he recognized some of the child pornography images that the agents
showed him from the website in question. The jury was entitled to credit the
agents’ testimony over Michalik’s denials. Indeed, the “jury retains the sole
authority to . . . evaluate the credibility of the witnesses.” United States v.
Grant, 683 F.3d 639, 642 (5th Cir. 2012) (cleaned up). Given that evidence,
a reasonable jury could easily find that Michalik knowingly possessed the
child pornography on his laptop.
AFFIRMED.
13