Argued April 8, 2013.
Appeals from the United States District Court for the Central District of Illinois. No. 09-cr-30107--Sue E. Myerscough, Judge.
For United States of America, Plaintiff - Appellee (12-1630): Joseph H. Hartzler, Attorney, Office of The United States Attorney, Springfield, IL.
For Jeffrey Price, Defendant - Appellant (12-1630): Jennifer Madden, Attorney, Skadden, Arps, Slate, Meagher & Flom Llp, Chicago, IL.
For United States of America, Plaintiff - Appellant (12-1880): Joseph H. Hartzler, Attorney, Office of The United States Attorney, Springfield, IL.
For Jeffrey Price, Defendant - Appellee (12-1880): Jennifer Madden, Attorney, Skadden, Arps, Slate, Meagher & Flom Llp, Chicago, IL.
Before BAUER, EASTERBROOK, and SYKES, Circuit Judges.
Sykes, Circuit Judge.
Jeffrey Price took numerous sexually explicit photographs of his daughter R.P. when she was between the ages of 10 and 12. He put some of them on the Internet, and they have been implicated in at least 160 child-pornography investigations across the country. Price also kept a large stash of child pornography depicting other children, which he stored on two computers.
For this conduct Price was indicted on charges of producing child pornography in violation of 18 U.S.C. § 2251(a) and possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). A jury convicted him as charged.
Price is more dangerous than the average child-pornography offender because he also has a history of sexually abusing children. He molested R.P. on multiple occasions, and he sexually abused his sister on a regular basis when she was between the ages of 8 and 14. Despite this history, the district judge imposed a sentence well below the 40-year term recommended by the sentencing guidelines: 18 years on the production count and a concurrent 6-year term on the possession count.
On appeal Price challenges the search that led to the discovery of child pornography on one of his computers. He also raises a claim of instructional error, arguing that the district court's definition of the term " sexually explicit conduct" --an element of the statutory definition of child pornography--was wrong on the law, unconstitutionally overbroad, and improperly incorporated the so-called Dost factors. See United States v. Dost, 636 F.Supp. 828 (S.D. Cal. 1986), aff'd sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987). The government cross-appeals, challenging the below-guidelines sentence as substantively unreasonable.
We affirm. Price's current attacks on the search and the jury instruction are new on appeal, so we review for plain error only. There was no error. Price consented to the search, and the jury instruction defining " sexually explicit conduct" was neither legally improper nor unconstitutionally overbroad. We take this opportunity, however, to discourage the use of the Dost factors; they are unnecessary in light of the clear statutory definition of the term " sexually explicit conduct."
We also reject the government's challenge to Price's 18-year sentence. The judge expressed disagreement with the child pornography guidelines as a policy matter, as she is permitted to do, and she adequately explained her reasons for finding the 40-year guidelines recommendation too high. Reasonable people can certainly disagree with that decision--especially in light of the aggravated facts of Price's case and his history of sexually assaulting children--but we cannot call it an abuse of discretion.
The sordid facts of this case came to light when the child advocacy agency in Springfield, Illinois, received a report that Price had beaten his daughter R.P. with a belt. When an investigator interviewed R.P. about the beating, she revealed that Price had taken numerous sexually explicit photos of her when she was between the ages of 10 and 12 years old. This information was relayed to the Springfield Police Department, and on September 11, 2009, Detective Paula Morrow obtained a warrant from a state judge to search Price's residence. The warrant authorized the seizure of, among other things, any electronic computer media that could be related to the offenses of criminal sexual abuse of a child or the receipt, distribution, or possession of child pornography.
Price was not at home on the day the warrant was issued, but Detective Morrow located and interviewed him at his stepdaughter's home where he was babysitting. Price told Morrow that he had taken photographs of R.P. for a modeling portfolio and had stored them on his computer, but the hard drive had crashed and they were lost. Price also said that he had just discovered--that very day--that child pornography was on his laptop computer. He claimed not to know how the pornographic files got there and said he immediately deleted them.
The laptop was sitting next to Price during the interview. Detective Morrow asked him if he would consent to a search of it. Price turned the computer toward her and said she could look at it. Morrow explained that she lacked training in computer forensics and that other law-enforcement agents would have to conduct the search. Price agreed to the search and signed a standard " Consent to Search" form used by the Springfield Police Department.
Price's name appears on the form, as does Detective Morrow's, and the text authorizes the officer " to conduct a complete
search at this time of the premises/vehicle under my lawful control" --except that the phrase " premises/vehicle" is crossed out and the word " laptop" is substituted. The consent form more specifically describes the item to be searched as a " Dell Inspiron laptop service tag 36WY0D1" and authorizes the officer " to obtain and remove from the searched premises/vehicle any materials, documents, or other items that may be used in connection with a legitimate law enforcement purpose." Finally, the form certifies that " this consent to search is being given by me to the above named officers knowingly, voluntarily, and without having received any threats, promises or duress of any kind."
After Price signed the consent form, Morrow took the laptop and went to Price's home to execute the search warrant. She and other officers seized several items, including a desktop computer.
In early October two Springfield detectives conducted a preliminary search of the laptop and discovered suspected child pornography in the recycle bin. Detective Morrow then turned the laptop over to Special Agent Mike Mitchell, a forensic specialist at Immigration and Customs Enforcement, and on October 15 he obtained a federal warrant authorizing a forensic examination of both the laptop and the desktop computer. Agent Mitchell did not find child pornography on the desktop, but he found 934 images and 17 videos of child pornography on the laptop. He made copies of the computers' hard drives and gave them to Detective Bill Lynn, an expert in electronic forensics at the Bloomington Police Department. Detective Lynn found child pornography on both hard drives.
Price was charged with one count of producing child pornography, see 18 U.S.C. § 2251(a), and one count of possessing child pornography, see id. § 2252A(a)(5)(B). He moved to suppress the evidence obtained from his computers, arguing that he had consented only to the seizure of his laptop, not a search, and that an independent, untainted warrant was needed to search any of his computers. At the suppression hearing, he raised an additional argument, claiming that he had withdrawn his consent by leaving two phone messages for Detective Morrow asking that his laptop be returned. The district court rejected these arguments and denied the suppression motion. The judge also credited the government's alternative arguments that the federal warrant was supported by independent, untainted probable cause and the child-pornography evidence would have been inevitably discovered.
At trial the government's main witnesses were R.P. and the law-enforcement officers involved in the investigation. Prosecutors also introduced some of the child pornography found on Price's computers. In brief, the record establishes the following: When Price was 13 years old, he began sexually abusing his sister J.P., who was then 8 years old. This abuse continued until J.P. was 14, ending when Price got married at age 19. Years later, in 1992, Price's third wife gave birth to R.P., his third child but first daughter.
When R.P. was 8 years old, Price took her to a presentation about modeling, where she learned she needed a portfolio of photographs if she wanted to become a model. Price told her he could take the necessary photos, but she needed to be naked or wearing lingerie in the photos. Price showed her some online photographs of other young girls, nude and with their legs spread, and told her she would need to pose in a similar fashion. When R.P. was between the ages of 10 and 12, Price took more than 100 photos of her naked or wearing little clothing.
Price also sexually molested R.P. during this time. Among other things, he touched her genitals as part of an " anatomy lesson" ; he inserted his finger into her vagina, pretending to show her how to use a tampon; he applied yeast-infection medication to her; and he fondled her breasts, pretending to perform a breast exam. Price also offered to teach R.P. how to masturbate and tried to persuade her to have sex with him. He asked if she would resist if he tried to have sex with her in her bedroom at night. He told her she could pretend to sleep through it.
An intercepted phone conversation between Price and his wife during this time revealed that he intended to make money by putting nude photos of R.P. on the Internet. Price did indeed create a website and put the photos online, and they have been seized in at least 160 child-pornography investigations in 36 states. For example, 17 images of R.P. were seized in a search of a computer in a child-pornography investigation in Nashville, Tennessee. Seven of the photos found on the Nashville suspect's computer matched photos of R.P. found on Price's laptop, and nine of them matched photos of her found on his desktop computer.
At trial the government introduced seven of the photographs of R.P. found on Price's computers. As the district court described them, the photos " depict R.P. posing in the nude or wearing her mother's lingerie, and many of the photographs focus on the genital area." The government also introduced 36 of the hundreds of other images of child ...