United States v. Sensi

542 F. App'x 8
Court of Appeals for the Second Circuit·Decided September 20, 2013·No. 12-565·Published·Cited by 1 cases

Opinion

SUMMARY ORDER

Edgardo Sensi (“Sensi”) pleaded guilty to conspiracy to produce child pornography in violation of 18 U.S.C. § 371; the production of child pornography, both in the United States and outside it, in violation of 18 U.S.C. § 2251(a) and (c)(3) respectively; and illicit sexual conduct in foreign places in violation of 18 U.S.C. § 2423(c). The district court sentenced Sensi to 85 years’ imprisonment to be followed by a life term of supervised release. Sensi’s conditional plea agreement reserved his right to appeal the district court’s order dated June 9, 2010 denying his motion to suppress evidence seized pursuant to a warrant. Sensi contends that, because his plea agreement is void for lack of consideration, he may also challenge the judgment of conviction and his sentence on other grounds, and despite his plea agreement promise not to appeal on any other issue. Sensi urges that the [10] judgment of conviction should be vacated because the plea agreement is void and that, in any event, his sentence is substantively unreasonable. We assume the parties’ familiarity with the underlying facts and procedural history of the case, and with the issues on appeal.

1. Motion to Suppress

Sensi asserts that the district court erred in concluding that the officers’ seizure and subsequent search of a locked black duffle bag found in Sensi’s master bedroom closet was lawful pursuant to a Florida state search warrant for the search of Sensi’s home. We review a “district court’s ruling on a suppression motion ... de novo as to questions of law.” United States v. Voustianiouk, 685 F.3d 206, 210 (2d Cir.2012). “The scope of a search pursuant to a valid warrant is defined by the warrant’s description of the premises and the objects of the search, and by the places in which the officers have probable cause to believe those objects may be found.” United States v. Kyles, 40 F.3d 519, 523 (2d Cir.1994).

Here, the search warrant, in pertinent part, authorized the officers to search for and seize “[ijmages, movies of visual depictions of sexual conduct or sexual performance by a child or children,” as well as “[cjomputer storage media and the digital content to include but not limited to ... tapes[,] ... CD-ROM disks or other magnetic, optical or mechanical storage which can be accessed by computers to store or retrieve data or images of child pornography.” Officers executing the search at Sensi’s home located the locked black duf-fle bag in a large closet in the master bedroom. The closet contained, inter alia, men’s clothing, several boxes, a red duffle bag, and a locked black duffle bag. During the search of the red duffle bag, the officers found Hi8 videotapes that “appeared to be homemade” as they also had handwritten labels marked with female names and “XXX.” Next to the red duffle bag, the officers found the black duffle bag and a box that contained, inter alia, a variety of sexual devices and additional Hi8 videotapes.

The officers seized the locked black duf-fle bag and took it to the sheriffs office where, later that day, they cut the lock off and reviewed the bag’s contents. Inside, they found, among other things, several more Hi8 videotapes depicting Sensi engaged in sex acts with a girl who appeared to be under the age of 12. Sensi asserts that the seizure and search of the black duffle bag was improper because a separate search warrant was required. We disagree.

Here, the search warrant plainly authorized the officers to search the black duffle bag in Sensi’s closet, as it was a container in Sensi’s home that was capable of holding the items for which the search warrant authorized them to look. See United States v. Ross, 456 U.S. 798, 820-21, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) (noting that a legitimate search “is not limited by the possibility that separate acts of entry or opening may be required to complete the search”). The affidavit in support of this warrant, moreover, specifically discussed removing evidence from the residence so that it could be forensically searched off-site. In addition, given the uncontested probable cause to believe that child pornography would be found in Sen-si’s home and the proximity of the black duffle bag to the sexual devices and Hi8 tapes which appeared to be homemade pornography, the police had probable cause to believe that the black duffle bag contained items that were enumerated in the warrant at the moment they seized it. See Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (proba[11] ble cause to search exists where the circumstances indicate a “fair probability that contraband or evidence of a crime will be found in a particular place”). And because the search was authorized by the warrant, the officers did not need to obtain a separate search warrant in order to search the duffle bag solely because it was locked. See Ross, 456 U.S. at 820-21, 102 S.Ct. 2157 (“When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home ... must give way to the interest in the prompt and efficient completion of the task at hand.”). Sensi’s arguments to the contrary are without merit.

2. Validity of the Plea Agreement

Pursuant to his plea agreement, Sensi agreed, in consideration for the Government consenting to his reservation of a right to appeal as to the Fourth Amendment issue, that he would not appeal any other issue. He argues now that he was not bound by this agreement because his plea agreement is void for lack of consideration. We apply contract law principles in considering plea agreements. See United States v. Salcido-Contreras, 990 F.2d 51, 52 (2d Cir.1993) (per curiam). We disagree with Sensi’s contentions.

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