United States v. Johnson, Charles M. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3968
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHARLES M. JOHNSON, JR.,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 06 CR 9—John Daniel Tinder, Judge.
____________
ARGUED APRIL 10, 2007—DECIDED JULY 30, 2007
____________
Before BAUER, POSNER and RIPPLE, Circuit Judges.
RIPPLE, Circuit Judge. Charles Johnson was charged in a
two-count indictment with production of child pornogra-
phy in violation of 18 U.S.C. § 2251(a)1 and (e).2 Mr. John
1
18 U.S.C. § 2251 (a) provides:
(a) Any person who employs, uses, persuades, induces,
entices, or coerces any minor to engage in, or who has a
minor assist any other person to engage in, or who trans-
ports any minor in interstate or foreign commerce, or in any
(continued...)
2 No. 06-3968
1
(...continued)
Territory or Possession of the United States, with the intent
that such minor engage in, any sexually explicit conduct for
the purpose of producing any visual depiction of such
conduct, shall be punished as provided under subsection
(e), if such person knows or has reason to know that such
visual depiction will be transported in interstate or foreign
commerce or mailed, if that visual depiction was produced
using materials that have been mailed, shipped, or trans-
ported in interstate or foreign commerce by any means,
including by computer, or if such visual depiction has
actually been transported in interstate or foreign commerce
or mailed.
2
18 U.S.C. § 2251 (e) provides:
(e) Any individual who violates, or attempts or conspires to
violate, this section shall be fined under this title and
imprisoned not less than 15 years nor more than 30 years,
but if such person has one prior conviction under this
chapter, section 1591, chapter 71, chapter 109A, or chapter
117, or under section 920 of title 10 (article 120 of the
Uniform Code of Military Justice), or under the laws of any
State relating to aggravated sexual abuse, sexual abuse,
abusive sexual contact involving a minor or ward, or sex
trafficking of children, or the production, possession,
receipt, mailing, sale, distribution, shipment, or transporta-
tion of child pornography, such person shall be fined under
this title and imprisoned for not less than 25 years nor more
than 50 years, but if such person has 2 or more prior
convictions under this chapter, chapter 71, chapter 109A, or
chapter 117, or under section 920 of title 10 (article 120 of the
Uniform Code of Military Justice), or under the laws of any
State relating to the sexual exploitation of children, such
person shall be fined under this title and imprisoned not
less than 35 years nor more than life. Any organization that
violates, or attempts or conspires to violate, this section
(continued...)
No. 06-3968 3
son filed a motion to suppress certain evidence on the
ground that his consent to the search was involuntary. He
also claimed that his waiver of his Miranda rights was
involuntary. The district court conducted an evidentiary
hearing and denied Mr. Johnson’s motion to suppress.
Mr. Johnson pleaded guilty but preserved his right to
appeal the denial of his motion to suppress. The district
court accepted his plea. After a sentencing hearing,
Mr. Johnson was sentenced to concurrent terms of life
imprisonment. He timely filed this appeal. For the reasons
set forth in the following opinion, we affirm the judgment
of the district court.
I
BACKGROUND
A.
The National Center for Missing and Exploited Children
(“NCMEC”) conducted an investigation into sexually
explicit images of a prepubescent female known as Jane
Doe. Images of this young girl had been found on several
individuals’ computers and were labeled with Jane Doe’s
actual name. NCMEC analysts used this information to
locate the girl in Indianapolis, Indiana.
Law enforcement officials interviewed Jane Doe. She
stated that a man she called “Charlie” had been a live-in
2
(...continued)
shall be fined under this title. Whoever, in the course of an
offense under this section, engages in conduct that results
in the death of a person, shall be punished by death or
imprisoned for not less than 30 years or for life.
4 No. 06-3968
babysitter for her neighbor’s family. She stated that
“Charlie” had taken nude photos of her since she was
six or seven years old and that he had molested her and
two of the children living with him at the time. She also
stated that the photos had been taken with a silver digital
camera and that she had seen him transfer the photos to
a black Dell-brand computer.
“Charlie” was identified as Mr. Johnson, and a warrant
for his arrest issued on December 15, 2005. Law enforce-
ment officials executed this arrest warrant the following
day at a home in Cincinnati, Ohio. Mr. Johnson resided
there as a live-in babysitter for the same family with
whom he had lived in Indianapolis.
The law enforcement officials who went to arrest Mr.
Johnson included Agent Tim Rothrock and Sergeant Chris
Hunt. The officers knocked on the door of the home, and
the owner allowed them inside. The officers proceeded to
the basement where the owner told them Mr. Johnson
could be found. Sgt. Hunt had left his firearm in the
car, and, although Agent Rothrock had his firearm in his
hand, he carried it behind his back. The agents identified
themselves to Mr. Johnson, who was in the basement
with a toddler. The toddler was removed from the room.
Agent Rothrock then put away his firearm and did not
take it out again during the interview with Mr. Johnson.3
The law enforcement officers told Mr. Johnson his name
had come up during an investigation and read him his
Miranda rights. Mr. Johnson and the officers each signed a
form indicating Mr. Johnson’s waiver of his Miranda rights.
3
Mr. Johnson later testified that he never saw the firearm.
No. 06-3968 5
The two officers then proceeded to a small bedroom
where they interviewed Mr. Johnson. The tone was conver-
sational and, although there were other officers in the
home, only Sgt. Hunt and Agent Rothrock remained in the
room with Mr. Johnson. Mr. Johnson stated that he had
lived with the children who had been depicted in the
photographs and that he had a computer in his bed-
room area. Agent Rothrock asked if Mr. Johnson would
consent to a search of his bedroom area and his computer,
and Mr. Johnson calmly replied that he would not. Agent
Rothrock then asked Mr. Johnson if he would continue
talking; Mr. Johnson replied that he would. Mr. Johnson
then confirmed that he owned a black Dell computer and
that he likewise owned a silver digital camera. At this point
in the conversation, Agent Rothrock gave Mr. Johnson
more information about the investigation including the
fact that a victim had stated that he had taken photos of
her and that he had used a specific digital camera and
computer. Further, Agent Rothrock told Mr. Johnson that
some of these photos had been found on the internet. He
then told Mr. Johnson that he believed he had probable
cause to obtain a search warrant which would allow him to
search Mr. Johnson’s computer and living area. He ex-
plained that the statement about the warrant was not
meant as a threat and that a magistrate judge, and not he,
would make the decision as to whether to issue a warrant.
Agent Rothrock then told Mr. Johnson he would have to
secure the residence until the magistrate judge could be
contacted, which would involve limiting the residents’
ability to enter and exit the house.
The officers then left and Agent Rothrock contacted an
Assistant United States Attorney (“AUSA”) in Indianapo-
lis. He described the house and the property inside the
6 No. 06-3968
house, including the computer and the camera, in which
Mr. Johnson retained a privacy interest. He also discussed
the factors that supported probable cause, at which point
the AUSA agreed to start the process of obtaining a search
warrant. Agent Rothrock then returned to the home, told
Mr. Johnson that the process of obtaining a warrant had
been started and that the AUSA believed that probable
cause existed. Agent Rothrock again asked Mr. Johnson
if he would consent to a search. Sgt. Hunt recalled Agent
Rothrock stating that Mr. Johnson’s consent “could possi-
bly save time for us.” R.53 at 105-06.
Mr. Johnson was read forms acknowledging his con-
sent to the search of his computer and his living area, and
he was reread his Miranda warnings. Mr. Johnson signed
both forms. Mr. Johnson stated that the police might find
child pornography on the computer. The officers continued
to question Mr. Johnson about the child pornography on
his computer. Mr. Johnson then acknowledged that he
had taken the photos. He declined to answer any ques-
tions as to the identity of the children in the photos and
was then asked if he wished to speak to an attorney
regarding that particular question; he replied that he
would.
Mr. Johnson identified Jane Doe in one photograph in
which she was fully clothed and stated that the photo had
been taken in his Indianapolis bedroom. He declined to
answer questions about whether he had any knowledge
as to how the photo had become available on the internet
and stated that he wished to speak to an attorney as to that
question as well. When Agent Rothrock sought confirma-
tion that Mr. Johnson wished to speak to an attorney
regarding that question only, Mr. Johnson declined to
answer any further questions. At that point, Mr. Johnson’s
computer was removed, and he was arrested.
No. 06-3968 7
On July 6, 2006, the district court held a suppression
hearing. Mr. Johnson testified that he had not seen Agent
Rothrock’s weapon when he came down the stairs. He
stated that the officers were not harsh or mean to him. He
also said that he understood that he was suspected of a
crime and that he had signed the Miranda waiver. He
agreed that he never felt threatened or coerced into answer-
ing questions. He further stated that he was concerned
for the other residents of the home because Agent Roth-
rock had mentioned his intent to secure the home until the
search warrant was issued. He claimed that his consent to
the search was involuntary because he perceived that
hardship would befall other members of the household
if he persisted in declining consent. When he invoked his
right to counsel as to certain questions, he indicated that he
did not believe he had to answer questions on those topics.
He stated that he had read and understood the consent
to search forms and the Miranda waiver at the time he
signed it.
Mr. Johnson’s computer was found to contain approxi-
mately 3,700 images of child pornography and child
erotica. The nine images of Jane Doe found by the NCMEC
were on the computer, and the computer allowed file
sharing.
B.
The district court found that Mr. Johnson’s consent to
search his living area and computer was voluntary. The
court did not believe that Agent Rothrock’s statements that
he would secure the home while a search warrant was
obtained had overborne Mr. Johnson’s free will. The
district court found this consent to be voluntary because
8 No. 06-3968
Mr. Johnson (1) was approximately 48 years old, had two
years of college and had his associate’s degree, (2) had
demonstrated computer savvy, (3) had gained and used
managerial experience in his employment, (4) had de-
clined consent earlier in the encounter and stated that he
did not feel threatened, (5) had consented after he was
told that the process of obtaining a warrant had com-
menced, (6) had been read his Miranda warnings a second
time, (7) had consented after one hour and five minutes
which was not an overly long period of detention, (8) was
not barraged with requests for consent, and (9) was not
subject to a threatening atmosphere. The district court also
found that Mr. Johnson selectively had waived his Miranda
rights, only requesting counsel as to two specific ques-
tions which was an ambiguous assertion of his right to
counsel as to all questions. Finally, the district court
found that, even if his consent were not voluntary, the
evidence would not be suppressed because it would be
admissible under the inevitable discovery doctrine.
At sentencing, the district court computed, without
objection, the sentencing guidelines range. The applicable
guidelines range of 188-235 months was trumped by 18
U.S.C. § 3559(e),4 which requires mandatory life imprison-
ment for repeated sex offenses against children. Mr.
4
18 U.S.C. § 3559(e) provides:
(e) Mandatory life imprisonment for repeated sex offenses
against children.—
(1) In general.—A person who is convicted of a Federal
sex offense in which a minor is the victim shall be
sentenced to life imprisonment if the person has a prior
sex conviction in which a minor was the victim, unless
the sentence of death is imposed.
No. 06-3968 9
Johnson qualified as a repeat sex offender against minors
on the basis of convictions in 1989 for second degree rape,
second degree sodomy and sexual abuse offenses for
victimizing two children under the age of twelve. Mr.
Johnson preserved Fifth, Sixth and Eighth Amendment
objections to the invocation of the recidivist statutes. The
district court sentenced Mr. Johnson to concurrent terms
of life imprisonment.
II
DISCUSSION
A.
Mr. Johnson submits on appeal that his consent to the
search of his bedroom area and computer was involuntary
and, therefore, that his motion to suppress evidence
should have been granted.5 We review a district court’s
ruling on a motion to suppress de novo. However, we
review the district court’s factual findings for clear error.
United States v. Lawshea, 461 F.3d 857, 859 (7th Cir. 2006).
Because the voluntariness of a defendant’s consent to
search is a factual determination, we review a district
court’s resolution of this question for clear error. United
States v. Raibley, 243 F.3d 1069, 1076 (7th Cir. 2001).
The Fourth Amendment’s prohibition against warrant-
less searches does not apply when the defendant consents
5
Mr. Johnson does not appeal the district court’s denial of his
motion to suppress statements to law enforcement officials. He
recognizes that he selectively waived his Miranda rights, see
United States v. Amaro, 816 F.2d 284, 286 (7th Cir. 1987), and that
suppression of his statements would have left the Government’s
case largely unchanged. See Appellant’s Br. at 11.
10 No. 06-3968
voluntarily to the search. United States v. Sandoval-Vasquez,
435 F.3d 739, 744 (7th Cir. 2006). The Government bears the
burden of proving that consent freely and voluntarily
was given. Id. Whether a defendant voluntarily consented
to a search is a factual assessment which turns on the
totality of the circumstances. Schneckloth v. Bustamonte, 412
U.S. 218, 227 (1973). We must keep in mind that “a deter-
mination of voluntariness does not ride on the presence or
absence of a single controlling factor.” United States v.
LaGrone, 43 F.3d 332, 334 (7th Cir. 1994) (internal citations
and quotation marks omitted). Rather, we must undertake
a “careful scrutiny of all the surrounding circumstances.”
Id. (citing Schneckloth, 412 U.S. at 226). Among the factors
we consider are: “(1) the person’s age, intelligence, and
education, (2) whether he was advised of his constitu-
tional rights, (3) how long he was detained before he gave
his consent, (4) whether his consent was immediate, or
was prompted by repeated requests by the authorities,
(5) whether any physical coercion was used, and (6)
whether the individual was in police custody when he gave
his consent.” Sandoval-Vasquez, 435 F.3d at 744.
Mr. Johnson contends that his consent was given invol-
untarily because of two occurrences in the course of the
police requests for consent: (1) Agent Rothrock requested
more than once that Mr. Johnson consent to a search;
(2) Agent Rothrock said that he would need to secure the
residence until the warrant issued, thereby causing his
free will to be overborne. Mr. Johnson was concerned that
the other residents of the home would be unable freely to
come and go. We shall examine each of these contentions.
With respect to Mr. Johnson’s first submission, our
opinion in United States v. LaGrone, 43 F.3d 332, 333 (7th
Cir. 1994), is helpful. In LaGrone, as in this case, the defen-
No. 06-3968 11
dant was asked more than once whether he would consent
to a search. We stated that “[w]hile it is true that the
officers asked LaGrone more than once whether he
would consent to the search, we do not believe this consti-
tutes the sort of repetitive psychological harassment that
should tip the balance in favor of LaGrone.” Id. at 334.
Here, Agent Rothrock asked Mr. Johnson to consent on
more than one occasion. However, Mr. Johnson himself
stated that at no time did he feel threatened or coerced.
With respect to the second submission, in United States v.
Santiago, 428 F.3d 699, 705 (7th Cir. 2005), we determined
that a defendant had consented freely and voluntarily to
a search despite his claim that officers had threatened to
arrest his fiancée and to have their children taken into
protective custody. The district court, however, con-
cluded that no actual threat had been issued. Rather, the
district court determined that, when his home address had
been discovered and he realized that a search of his home
was therefore likely, Santiago became “rightful[ly]
concern[ed]” for his family. Id. The district court further
found that this “rightful concern” did not amount to
“psychological pressure.” Id. In reaching this conclusion,
the district court found it important that the authorities
had behaved professionally, that the entire incident took
only twenty minutes and that the encounter was “devoid
of any badgering or harassment.” Id. Looking to the
totality of the circumstances considered by the district
court, we concluded, in Santiago, that the district court’s
voluntariness finding was not clearly erroneous. Id.Similarly, we must conclude that Mr. Johnson’s concern
that he might inconvenience the other residents of the
home was a “rightful concern,” but not one that caused
“psychological pressure.”
12 No. 06-3968
Mr. Johnson is 48 years of age and of at least average
intelligence. He testified at the suppression hearing that
he understood the consent form, that he never felt coerced
or threatened and that he understood he was waiving his
Fourth Amendment rights. The interview was calm and
professional at all times. Considering the totality of the
factors surrounding Mr. Johnson’s consent, we certainly
cannot say the district court clearly erred in finding that
consent was voluntarily and freely given.
B.
Even if Mr. Johnson did not consent, the evidence
would have been otherwise admissible under the inevitable
discovery doctrine. See Nix v. Williams, 467 U.S. 431, 444
(1984). This doctrine provides that, when the Government
can establish by a preponderance of the evidence that the
information obtained would have been discovered ulti-
mately or inevitably by lawful means, the deterrence
rationale of the exclusionary rule no longer applies and the
evidence should be admitted. Id. “The prosecution must
establish that it had probable cause and prove the ex-
istence of a chain of events that would have led to a
warrant [] independent of the search.” United States v.
Brown, 328 F.3d 352, 357 (7th Cir. 2003) (internal citations
and quotation marks omitted).
The facts of this case clearly demonstrate that probable
cause existed for the search. See Illinois v. Gates, 462 U.S. 213(1983) (establishing a totality of the circumstances test by
which to determine whether probable cause exists). The
officers had acquired detailed information from Jane Doe
that Mr. Johnson had taken the photos, that she was the
child depicted in the photos and that Mr. Johnson had used
No. 06-3968 13
a silver digital camera. She also mentioned that he pos-
sessed a black Dell computer. R.53 at 15-16. Indeed, based
on this information, Agent Rothrock obtained a warrant
for Mr. Johnson’s arrest before his encounter with Mr.
Johnson. Moreover, before Mr. Johnson consented to the
search, he had a conversation with the officers. During
the course of that conversation, he stated that he owned a
black Dell computer and a silver digital camera. He
confirmed that he previously had lived in Indianapolis.
This information would more than suffice to establish
probable cause upon which to issue a search warrant.
Therefore, the deterrence rationale of the exclusionary
rule would not apply, and the evidence would be ad-
missible under the inevitable discovery doctrine.
C.
Mr. Johnson also submits that the district court violated
his Fifth and Sixth Amendment rights by imposing the
mandatory minimum life sentence, required by 18 U.S.C.
§ 3559(e) and 18 U.S.C. § 2251(e), because the underlying
fact of a prior conviction had not been charged in the
indictment or proven beyond a reasonable doubt to a jury.
Mr. Johnson acknowledges that this court is without
power to decide this issue in his favor. The governing law
of the Supreme Court unequivocally states that the fact of
a prior conviction need not be found by a jury beyond a
reasonable doubt, nor must it be alleged in the indictment.
Almendarez-Torres v. United States, 523 U.S. 224, 246-47
(1998). Apprendi v. New Jersey, 530 U.S. 466 (2000), explicitly
preserved Almendarez-Torres, see 530 U.S. at 490 (“Other than
the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory
14 No. 06-3968
maximum must be submitted to a jury, and proved be-
yond a reasonable doubt) (emphasis added), although left
open the possibility that future cases might revisit its
holding, see id. at 489-90. Later cases, including Blakely v.
Washington, 542 U.S. 296 (2004), United States v. Booker,
543 U.S. 220 (2005), and Shepard v. United States, 544 U.S. 13(2005), each have confirmed Almendarez-Torres’ continuing
vitality. See United States v. Sachsenmaier, ___ F.3d ___, 2007
WL 1839282, at *4 (7th Cir. June 28, 2007) (confirming that
Almendarez-Torres remains the governing law but noting
that the defendant had preserved the argument for con-
sideration by the Supreme Court). Therefore, we cannot
accept Mr. Johnson’s claim that the district court’s failure
to submit this issue to the jury constitutes reversible error.
Conclusion
For these reasons, the judgment of the district court is
affirmed.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-30-07