United States v. Freddie Wallace , 713 F.3d 422 ( 2013 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-2172
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Freddie Wallace
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: March 15, 2013
Filed: April 25, 2013
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Before MURPHY, SMITH, and GRUENDER, Circuit Judges.
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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
pornography in violation of 18 U.S.C. § 2252(a)(4)(B). The district court1 sentenced
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The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
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.
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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.
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II. Discussion
A. 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
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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.-5-
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. Admission of Berber’s Testimony
Wallace argues for the first time on appeal that the district court erred in
admitting Berber’s testimony because Berber acted as a government informant and
was unreliable based on his criminal history. Because this argument was not properly
preserved before the district court, we review for plain error and will reverse only if
Wallace can show that the district court committed a clear and obvious error that
affected both his substantial rights and the fairness, integrity, or public reputation of
the judicial process. See United States v. Ali, 616 F.3d 745, 751-52 (8th Cir. 2010).
To demonstrate an effect on his substantial rights, a defendant is generally required
to show “a reasonable probability that the outcome would have been different absent
the alleged error.” United States v. Yielding, 657 F.3d 688, 707-08 (8th Cir. 2011),
cert. denied, 565 U.S. ---, 132 S. Ct. 1777 (2012).
Wallace does not offer any evidence in support of his assertion that Berber
acted as a government informant. Berber testified that he was not promised anything
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in exchange for his testimony. In fact, Berber already had received a sentence
reduction for his cooperation in a prior case and was told any further reduction would
be unlikely. Wallace simply points to Berber’s “continuing relationship” with the
government to speculate that Berber acted as a government informant. Berber was
otherwise competent to testify under Federal Rule of Evidence 601.2 With respect to
Wallace’s argument that Berber’s credibility was in doubt based on his criminal
history, we note that credibility determinations are left to the jury. See United States
v. Reddest, 512 F.3d 1067, 1071 (8th Cir. 2008).
Moreover, even if the testimony should have been excluded, Wallace has not
shown that admission of the testimony affected his substantial rights. Apart from
Berber’s testimony, the Government presented substantial evidence that Wallace
recorded and possessed sexually explicit material involving minors, including the
videotape itself, testimony from M.J., and Wallace’s signed confession. Wallace has
failed to show a “reasonable probability that the outcome would have been different
absent the alleged error.” Yielding, 657 F.3d at 707-08. We therefore find that there
was no plain error entitling Wallace to relief.
D. Sufficiency of the Evidence
Wallace challenges the sufficiency of the evidence for his production of child
pornography conviction. “We review the sufficiency of the evidence de novo,
viewing evidence in the light most favorable to the government, resolving conflicts
in the government’s favor, and accepting all reasonable inferences that support the
verdict.” United States v. Yarrington, 634 F.3d 440, 449 (8th Cir. 2011) (quoting
United States v. Scofield, 433 F.3d 580, 584-85 (8th Cir. 2006)). In order to convict
a defendant under 18 U.S.C. § 2251(a), the Government must prove, inter alia, that
2
Rule 601 of the Federal Rules of Evidence provides that “[e]very person is
competent to be a witness unless these rules provide otherwise.”
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the child named in the indictment was under the age of eighteen during the time
period alleged in the indictment, that the defendant acted with the purpose of
producing a visual depiction of the conduct, and that the materials used to produce
the visual depiction were mailed, shipped, or transported, including by computer, in
interstate or foreign commerce. See United States v. Pierson, 544 F.3d 933, 938 (8th
Cir. 2008). Wallace argues that the Government failed to present sufficient evidence
that (1) the video was produced on the date specified in the indictment; (2) the
materials used to produce the video traveled in interstate commerce; and (3) Wallace
acted with the purpose of producing the video.
The indictment charges the production occurred “[f]rom in or about March 18,
2006 through in or about March 18, 2009.” At trial, Wallace’s nephew, who was
present during the recording, testified that he was nineteen at the time of trial,
September 2011, and that he was sixteen or seventeen at the time of the recording.
M.J. testified that she was sixteen at the time of the trial, and that she was twelve or
thirteen at the time of the recording. The district court gave “on or about” jury
instructions, which permitted the jury to find that the crime occurred reasonably near
the dates alleged in the indictment. See United States v. Brody, 486 F.2d 291, 292
(8th Cir. 1973). This constitutes sufficient evidence to support the jury’s finding on
this element.
There also was sufficient evidence that the sexually explicit video of M.J. was
produced using materials that traveled in interstate commerce. The Government
introduced testimony from Steven Tice, senior manager of quality assurance
engineering at Sony, the manufacturer of the videotape. Based on Sony’s business
records for the production code on the videotape, Tice testified that the videotape was
assembled in China and then shipped to the Los Angeles area before arriving in
Arkansas. This testimony sufficiently supports the jury’s finding on the interstate
commerce element. We reject Wallace’s argument that there must be evidence that
both the film and camera were transported through interstate commerce. See United
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States v. Hampton, 260 F.3d 832, 834-35 (8th Cir. 2001) (upholding a conviction
under § 2251(a) based on proof that the videotape alone traveled in interstate
commerce prior to its use in the recording of a sexually explicit video involving a
minor).3
Finally, the Government presented sufficient evidence that Wallace acted with
the purpose of producing the video. The testimony of both Wallace’s nephew and
M.J., along with Wallace’s signed confession and the videotape itself, were more than
sufficient to establish that Wallace intended to produce a video recording of the
incident.
Accordingly, the evidence presented at trial was sufficient to support the jury’s
verdict.
III. Conclusion
For the foregoing reasons, we affirm.
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Wallace cites United States v. Hoggard, 254 F.3d 744, 746 (8th Cir. 2001), in
which we stated that to convict a defendant under 18 U.S.C. § 2251(b), “[t]he
government must also show that the picture was produced using materials (here, film
and a camera) that had been transported in interstate commerce.” However, we made
this statement in the context of affirming the constitutionality of the statute under the
commerce clause, not in determining the sufficiency of the evidence. Id. The cited
statement did not suggest proof that both the film and camera traveled in interstate
commerce is required in every case, but rather it merely noted that both the film and
camera had been transported in interstate commerce in that case.
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