United States v. Grimmett

439 F.3d 1263, 2006 U.S. App. LEXIS 5982, 2006 WL 574420
CourtCourt of Appeals for the Tenth Circuit
DecidedMarch 10, 2006
Docket05-3030
StatusPublished
Cited by85 cases

This text of 439 F.3d 1263 (United States v. Grimmett) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Grimmett, 439 F.3d 1263, 2006 U.S. App. LEXIS 5982, 2006 WL 574420 (10th Cir. 2006).

Opinion

HENRY, Circuit Judge.

Stephen Grimmett appeals the district court’s denial of his motion to suppress evidence retrieved pursuant to a warrant to search his home based on information that he possessed and produced child pornography. Mr. Grimmett also challenges the constitutionality of one statute under which he was convicted, 18 U.S.C. § 2251, which criminalized that production of child pornography. We affirm Mr. Grimmett’s conviction and hold that § 2251 is a valid exercise of Congress’s power, and is also constitutional as applied to Mr. Grimmett.

I. FACTUAL BACKGROUND

On June 29, 2002, Mr. Grimmett invited a six-year old boy to his house after giving him a Mountain Dew drink. Mr. Grim-mett undressed, lay down on a bed, then instructed the child how to masturbate him and how to perform fellatio on him. Mr. Grimmett instructed the child by telling him what to do, showing him what to do, and by having the child emulate what was occurring on a video playing in the bedroom.

Mr. Grimmett taped the sodomy with an 8mm video camera, copied the 8mm tape onto a VHS tape, and loaded eight still pictures from the videotape onto his computer. Mr. Grimmett has admitted that he showed the tape to at least one other person. The forensic analysis of the defendant’s computer indicated that he received over 1,500 images and 142 movies of child pornography over the Internet.

On September 25, 2002, Detective Scott Askew, a detective with the Shawnee County, Kansas, Sheriffs Office, presented an affidavit in support of a seaich 'and seizure warrant to Shawnee County District Court Judge Thomas Conklin. The affidavit stated in its third paragraph:

This affidavit is made in support of an application for a warrant to search the entire premises located at 920 SE 33rd Street, Topeka, Shawnee County, Kansas. Additionally, this application is to search any computer media found therein.

Aplt’s App. at 488 (Aff. in Support of a Warrant, Det. Scott B. Askew, dated Sept. 25, 2002) (emphasis added). The affidavit further stated: “It is only with careful laboratory examination of electronic storage devices that it is possible to recreate the evidence trail.” Id. at 491.

The affidavit indicated that

• A woman who, unbeknownst to the defendant, served as a confidential informant for the Shawnee County Sheriffs Office on drug cases was at the defendant’s residence on September 21, 2002, performing oral sex for money.
• During this sexual encounter, the defendant was playing an adult pornographic video on his television.
• The defendant could not get sexual gratification from the adult pornography.
• Therefore, the defendant switched to playing a video on his computer, which depicted child pornography.
• The child pornography involved a female child, approximately nine or ten years old, performing oral sex on an adult male.
• Following the sexual encounter, the defendant asked the woman whether she would be interested in having sex with him and a ten-year-old girl.
*1267 • The defendant offered to pay the woman hundreds of dollars if she could provide him with young girls.
• The defendant also asked the woman whether she would be interested in bringing her minor children, a male and a female, to the defendant’s house for sex.
• The defendant offered to pay the woman well if she would agree to bring her own children to him for sex.
• On September 24, 2002, the woman reported what had occurred at the defendant’s house to Sheriffs Deputy. Phil Higdon.

The state court judge signed the warrant, indicating his conclusion that probable cause existed that evidence of the sexual exploitation of a child, in violation of Kan. Stat. Ann. § 21-3516, would be found in defendant’s residence.

The warrant authorized, among other things, the search and seizure of “[a]ny and all computer hardware,” and “[ajny and all computer software.” Aplt’s App. at 494 (Search Warrant, dated Sept. 25, 2002). The warrant further directed law enforcement officers to seize computer equipment, computer storage devices, and various items related to the use of the computer equipment, as well as a variety of other media that contained depictions of minors engaged in sexually explicit conduct, i.e., child pornography, ' including books, magazines, originals, copies and negatives, motion picture films, and videocassettes.

Detective Askew removed the hard disk drive from a computer in Mr. Grimmett’s home and viewed it on a laptop computer he had brought with him. After Detective Askew viewed various items, he returned the search warrant to the judge and requested the assistance of Immigration and Customs Enforcement in the investigation and examination of the computer’s contents.

The Shawnee County Kansas Sheriffs Department delivered to Agent James Ka-natzar the computer hard drive seized from the defendant’s residence. Agent Kanatzar had over four years of experience investigating child pornography and has been trained in computer forensics since 1998.

On October 1, 2002, Agent Kanatzar made a bit-by-bit copy of the hard drive to perform his forensic analysis. Thereafter, Agent Kanatzar examined the directories and subdirectories for images of child pornography. Although Agent Kanatzar opened every folder, he did not open every file, instead concentrating on those files most likely to contain child pornography images — files containing extensions indicating pictures (.jpg, .gif) and movies (•avi, .mpg).

Agent Kanatzar’s examination of the defendant’s computer revealed over 1,500 images containing child pornography, and 142 movies of child pornography, with creation dates ranging from February 2001 through September 2002. Agent Kanatzar found no evidence of distribution.

II. PROCEDURAL HISTORY

On January 28, 2004, a grand jury returned an indictment against the defendant, charging him with Count 1, producing child pornography, in violation of 18 U.S.C. § 2251(a); and Count 2, possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B); and Count 3, forfeiture, 18 U.S.C. § 2253. Mr. Grimmett entered a conditional plea of guilty to all counts, reserving the right to appeal the district court’s denials of his (1) motion to suppress evidence and (2) motion to dismiss Count 1. The district court sentenced the defendant on Counts 1 and 2 to concurrent ten-year terms of imprisonment and concurrent three-year terms of supervised release.

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Bluebook (online)
439 F.3d 1263, 2006 U.S. App. LEXIS 5982, 2006 WL 574420, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-grimmett-ca10-2006.