The following appellate brief directed to the Sixth Circuit Court of Appeals, is provided by On-Point Paralegal Services, LLC, as a writing sample. This is not intended nor should it be construed or relied upon as being legal advice. We have made every effort to maintain proper format while converting this document to .html code for display on the Internet. It may be displayed different in different browsers.

TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT …………………..… 4

CERTIFICATE OF TYPE SIZE AND STYLE ……….……. 4

STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION 4

STATEMENT OF RELATED CASES …………………………… 4

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CORPORATE DISCLOSURE STATEMENT ………….……….… 5

STATEMENT OF ISSUES PRESENTED FOR REVIEW ……... 5

STATEMENT OF THE CASE ………………………………….… 6

STATEMENT OF THE ARGUMENT ………………..………….… 8

STATEMENT OF STANDARD OF REVIEW …………………….… 9

LEGAL ARGUMENT

I. THE IMAGE FILES IN QUESTION WERE NOT OBTAINED ILLEGALLY BECAUSE THEY WERE OBTAINED DURING THE COURSE OF A LEGAL SEARCH PURSUANT TO A SEARCH WARRANT

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II. DEFENDANT'S FIFTH AMENDMENT RIGHTS WERE NOT VIOLATED

CONCLUSION …………………………………………………………… 17

CERTIFICATION OF SERVICE ……………………………………….. 17

TABLE OF AUTHORITIES

Caselaws:

Allen vs. United States,
129 U.S. App. D.C. 61, modified,
131 U.S. App. D.C. 358 (1968) ……………………………………….… 15

Coolidge vs. New Hampshire,
403 U.S. 443 (1971) ….……………………………………..…………… 13

Ellis v. Diffie,
177 F.3d 503 (6th Cir. 1999) ……………………………………………… 10

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Malloy vs. Hogan,
378 U.S. 1 (1964) ..……………………………………………………… 15

Miranda v. Arizona,
384 U.S. 436 (1966) …………………………………….……………… 15

Russell v. Harms,
397 F.3d 458 (7th Cir. 2005) ………….………………………………… 13

State v. Hopkins,
799 So.2d 1234 (La. App. 2nd Cir. 2001) ……………….………………… 16

State v. Pink,
20 P.3d 31 (Kan. 2001) …………………………..……………………… 16

U.S. v. Canestri,
518 F.2d 269 (2nd Cir. 1975) …………………………………………..… 13

U.S. v. Gray,
78 F.Supp.2d 524 (E.D. Va. 1999) …………………………….……….… 11

U.S. v. Martin,
369 F.3d 1046 (8th Cir. 2004) ………………………………………….… 16

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U.S. v. Robinson,
139 Fed. Appx. 654 (6th Cir. 2005) ……………………………….……… 10

U.S. v. Sablotny,
21 F.3d 747 (7th Cir. 1994) ……………………………………….……… 16

U.S. v. Wong,
334 F.3d 831 (9th Cir. 2003) …………..………………………………… 13

United States vs. Couch,
367 F.3d 557 (6th Cir. 2004) ……………………….…………….……… 10

United States vs. Freeman,
209 F.3d 464 (6th Cir. 2000) ………………………..…………………… 10

United States vs. United States Gypsum Co.
333 U.S. at 395 ……………………………………..…………………… 10

United States vs. Pacelli,
470 F.2d 67 (2nd Cir. 1972), cert. denied,
410 U.S. 983 (1973) ……………………………………………………… 13

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Statutes:

18 U.S.C. §2252 ..……………………………………………………… 5, 6

18 U.S.C. §3231 ….…………………………………………….………… 5

26 U.S.C. §7206 ….…………………………………………….………… 5

28 U.S.C. §1291 ….…………………………………………….………… 7

U.S. Constitutional Amendments:

U.S. Const., Amend. XV ………………………………………………… 14

Federal Rules of Appellate Procedure:

F.R.A.P. 26.1 ……………………………………………………………… 6

F.R.A.P. 28(a)(1) ………………………………………………….………. 6

F.R.A.P. 32(a)(7)(B) ………………………………………….…………… 4

F.R.A.P. 32(a)(7)(B)(iii) ………………………………………………...… 4

F.R.A.P. 32(a)(6) …………………………………………………….……. 4

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STATEMENT REGARDING TYPE SIZE AND STYLE

I certify that this brief complies with the type volume limitation set forth in F.R.App.P. 32(a)(7)(B) because it contains less than 16,000 words, not including parts of the brief exempted by F.R.App.P. 32(a)(7)(B)(iii). This brief also complies with the typeface requirements of F.R.App.P. 32(a)(6), because this brief has been prepared in a proportionally spaced typeface using Microsoft Word in 14 point Times New Roman

STATEMENT REGARDING ORAL ARGUMENT

Defendant respectfully requests oral argument.

STATEMENT OF RELATED CASES

No related cases are pending and there have been no previous appeals concerning this matter.

STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION

The court below had jurisdiction to entertain this matter pursuant to 18 U.S.C. §3231 in that the action pertained to an alleged violation of 18 U.S.C. §2252 (possession of child pornography). This statute provides that, "The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States." 18 U.S.C. §3231.

The Sixth Circuit Court of Appeals has jurisdiction to entertain this appeal pursuant to 28 U.S.C. §1291. Final Judgment was entered on July 29, 2005 [App14] and a Notice of Appeal was filed four days later on August 2, 2005. [App15]

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CORPORATE DISCLOSURE STATEMENT

Pursuant to F.R.A.P. 26.1 and 28(a)(1), the following persons and entities have an interest, financial or otherwise, in the outcome of this litigation: The United States of America, defendant's attorneys, Defendant XXXXX and the alleged and unidentified victims depicted in the images allegedly found on defendant's computer.

STATEMENT OF ISSUES PRESENTED FOR REVIEW

1. If a law enforcement officer inadvertently discovers images of child pornography while executing a valid search warrant to search for evidence of violations of tax laws, did the trial court err by denying defendant's motion to suppress the evidence for an alleged Fourth Amendment violation?

2. Did the law enforcement officers at issue violate the Fourth Amendment by opening .jpg files on defendant's computer under circumstances where the search warrant gave them the authority to search defendant's computer for tax related documents and evidence of violations of tax laws?

3. Did the law enforcement officers violate the Fifth Amendment by detaining defendant for no more than one hour to question him about the images of child pornography contained on his computer? Were they required to read him his Miranda rights prior to questioning him?

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STATEMENT OF THE CASE

Defendant, a tax preparer by trade, has been charged in this case with one count of possession of child pornography, contrary to 18 U.S.C. §2252. The instant appeal concerns the denial of his motion to suppress evidence that he contends was obtained during an illegal search. The court below made the following findings of fact regarding defendant's motion.

In short, defendant was investigated by the Internal Revenue Service from 2003 through 2005. [App1] A search warrant was obtained for the search of his home. [App1] The Affidavit of Lacey Grimes submitted in support of the application for the warrant set forth, inter alia, 12 instances where defendant filed allegedly fraudulent tax returns on behalf of himself and his clients. [App1] The said Affidavit also submitted that defendant's business records maintained at his office more than likely contained evidence of these income tax violations that contravene 26 U.S.C. §7206. [App1] A warrant was issued based upon the said Affidavit. The warrant provides that,

Certain property, namely all documents, books, ledgers, accounts, tax preparation materials, federal income tax forms, correspondence, client lists, invoices, billings, records relating to the preparation of federal income tax returns for the years 1999 through present, and all computer software, hardware, and related equipment, which are evidence of violations of 26 U.S.C. §7206, and which may constitute evidence of the commission of a criminal offense.

[App2, fn. 1]

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Agent XXXXX testified during an evidentiary hearing regarding the motion to suppress that he thought that the .jpg files might have contained tax related forms since they had numbers in their names. [App8] He explicitly testified that he did not expect to see pornography when he opened the files. [App8] He then contacted the Agent XXXXX of the FBI. [App8]

On April 4, 2005, defendant visited a local IRS office to meet with Special Agent XXXXX to discuss the return of the computer. [App2] He was greeted by Agent XXXXX, brought to a meeting room where he waited for 10 minutes and then he was interviewed by both Agents XXXXX and XXXXX. [App2; App9-10] Defendant was confronted about the .jpg files and admitted to possessing them. [App2-3; App11] He was thereupon placed under arrest for possession of child pornography in violation of 18 U.S.C. §2252. [App3]

Defendant filed a motion contending that the search of his computer was illegal and that the accumulated evidence should be suppressed. [App3] Defendant also contended that his confession was obtained in violation of the Fifth Amendment to the United States Constitution. Defendant's motion was denied and now he appeals. [App14]

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STATEMENT OF THE ARGUMENT

The law enforcement officers in this case executed a valid search warrant that included the search of defendant's computer files. The officers found .jpg files that had ambiguous file names. Although .jpg files are image files, they may also be image files of documents and other items relevant to the search. In addition, defendant on his own volition commingled his business files with his personal files in this fashion. The law is very clear that a defendant may be prosecuted for evidence of criminal activity accidentally discovered during a search. A prosecution is not limited to just the type of activity set forth in the search warrant.

In addition, defendant's Fifth Amendment rights were not violated. Although he was not read his Miranda rights, defendant was not under arrest, did not request the assistance of an attorney prior to making a confession and was detained for a maximum of one hour before he made the confession. There is no evidence that the officers made threats of intimidation, promises or coercion of any kind. As such, defendant's Fifth Amendment rights were not violated.

STATEMENT OF THE STANDARD OF REVIEW

The Sixth Circuit Court of Appeals "reviews a district court's denial of a motion to suppress evidence under a two-fold standard of review. [W]e uphold the district court's factual determinations unless clearly erroneous, but we review the district court's legal conclusions, such as the existence or absence of probable cause, de novo … We view the evidence in the light most favorable to the United States when reviewing a denial of a motion to suppress …" U.S. v. Robinson, 139 Fed. Appx. 654, 656 (6th Cir. 2005), quoting United States vs. Couch, 367 F.3d 557, 560 (6th Cir. 2004), and United States vs. Freeman, 209 F.3d 464, 466 (6th Cir. 2000).

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"'Clear error' is defined most famously in United States vs. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948): A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Ellis v. Diffie, 177 F.3d 503, 505-06 (6th Cir. 1999), quoting United States Gypsum Co., supra, 333 U.S. at 395.

LEGAL ARGUMENT

I. THE IMAGE FILES IN QUESTION WERE NOT OBTAINED ILLEGALLY BECAUSE THEY WERE OBTAINED DURING THE COURSE OF A LEGAL SEARCH PURSUANT TO A SEARCH WARRANT

The warrant in question specifically listed defendant's computer as a subject of the search. [App2, fn. 1] Defendant commingled his child pornography images on that computer along with his business records. [App2] The warrant authorizes the search of that computer for, inter alia, income tax related materials. [App2, fn. 1]

The agents who discovered the files could not have determined whether the image files in question were relevant to the warrant unless they reviewed them, just like they could not know the contents of a cabinet without having opened it. The law is very clear that a defendant may be charged and prosecuted not only for evidence obtained during a lawful search that pertains to the subject matter of the search, but also for evidence of other criminal activity that is inadvertently obtained or stumbled upon during the search. Neither law enforcement or the courts are required to turn a blind eye to evidence of criminal activity that happens to "fall on the lap" of the searching officers.

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An analogous case is U.S. v. Gray, 78 F.Supp.2d 524, 528-29 (E.D. Va. 1999). In that case the defendant's computer was searched at his home in Arlington, Virginia, in connection with an investigation of unauthorized computer intrusions at the National Institute of Health's National Library of Medicine ("NLM"). Id. at 526. The agents discovered child pornography on the defendant's computer during this search. Id. at 527. Once seeing these pictures, the agent applied for a search warrant, searched the computer again and found additional images of child pornography. Id. at 527-28. In rebuffing defendant's motion to suppress this evidence, the Eastern District of Virginia said,

[R]ecords searches require that many, and often all, documents in the targeted location be searched because few people keep documents of their criminal transactions in a folder marked 'crime records'. Thus, agents authorized by warrant to search a home or office for documents containing certain specific information are entitled to examine all files located at the site to look for the specified information. So it is not surprising, then, that in the course of conducting a lawful search pursuant to a search warrant, law enforcement agents often discover evidence of criminal activity other than that which is the subject of the warrant. If an agent sees, in plain view, evidence of criminal activity other than that for which she is searching, this does not constitute an unreasonable search under the Fourth Amendment, for [v]iewing an article that is already in plain view does not involve an invasion of privacy. Further, such evidence may be seized under the plain view exception to the warrant requirement, provided that "(1) the officer is lawfully in a place from which the object may be plainly viewed; (2) the officer has a lawful right of access to the object itself; and (3) the object's incriminating character is immediately apparent. These principles applied in the context of a document or record search means that, if an agent searching files pursuant to a search warrant discovers a document that contains evidence of another crime, that document can be seized under the "plain view" exception to the warrant requirement.

Id. at 528-29 (Emp. Supp.).

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Pursuant to a valid search warrant, Van Alst determined that the items listed in the search warrant which could be located on computer files could be found in plain text, special text, or graphic files. While searching the graphics files for evidence of murder, as allowed by the warrant, Van Alst discovered pictures of children as young as age three engaged in sexual acts. The incriminating nature of the files was immediately apparent to Van Alst. Since the police were lawfully searching for evidence of murder in the graphics files, that they had legitimately accessed and where the incriminating child pornography was located, the evidence was properly admitted under the plain view doctrine.

Id. at 838.

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The agents in this matter had no knowledge that they were about to view images of pornography, child or otherwise. The file names were a vague "242.jpg", "241.jpg" and "24U.jpg". Those .jpg files could have contained photographs, rather than scanned pages, of tax records, or they could have been document files that, for example, were altered from .doc to .jpg just to make them look like they were really photographs. The file names could easily be changed back to .doc at anytime the reader wants to open them.

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There is no evidence that the searching officers intentionally exceeded the scope of the search warrant in question. The found by accident the evidence of defendant's possession of child pornography while searching a computer that they were legally authorized to do. [App8] The trial court's Order denying defendant's motion to suppress should be affirmed.

II. DEFENDANT'S FIFTH AMENDMENT RIGHTS WERE NOT VIOLATED

The Fifth Amendment provides: "No person … shall be compelled in any criminal case to be a witness against himself …" U.S. Const., Amend. V. It is settled that this provision governs state as well as federal criminal proceedings. Malloy vs. Hogan, 378 U.S. 1, 8 (1964).

In Miranda v. Arizona, 384 U.S. 436 (1966), our Supreme Court held that confessions made during a lengthy detention may lead one to believe that it was not made voluntarily. Id. at 476. The Miranda Court also held that threats, intimidation and promises may render the confession to be considered involuntary as a matter of law. Id. That, however, is not what we are dealing with here. Here, there is no allegation of threats, intimidation or promises, and defendant was only detained for a little over an hour. [App9] That is hardly the situation contemplated by the Miranda Court.

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Defendant was not read his Miranda rights when he arrived at the local IRS office because he was not yet under arrest. There was no intent to arrest him at that time. The agents at the time that defendant arrived at the office had only the intention of questioning defendant. See Allen vs. United States, 129 U.S. App. D.C. 61, 63-64 ("[S]ome inquiry can be made [without giving Miranda warnings] as part of an investigation notwithstanding limited and brief restraints by the police in their effort to screen crimes from relatively routine mishaps"), modified, 131 U.S. App. D.C. 358 (1968).
In addition to this, defendant never asked for the assistance of counsel. He never asked for permission to make a phone call, to have his attorney present or the like. All Circuits agree that the circumstances described here do not infer that the confession was obtained involuntarily.

Biernat also argues that the exclusion of his brother, Leonard [(an attorney)], from the meeting on March 8 weighs against the voluntariness of his statement of that date. However, the Biernats never requested the assistance of counsel, and never informed agents that they were represented by Leonard Biernat. The fact that Leonard was not present does not tip the scales and render Biernat's statements involuntary.

U.S. v. Martin,
369 F.3d 1046, 1056 (8th Cir. 2004).

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Ms. Sablotny testified that she was not under the influence of any drugs or alcohol during the interview. She testified several times that she was scared and confused. Mitchell, however, stated that Ms. Sablotny was very cooperative in answering questions and did not ask that an attorney or her son be present. In light of these circumstances, Mitchell and Nevitt were reasonable in assuming that Ms. Sablotny possessed normal mental competence. Thus, absent some incapacity that the interrogators could reasonably perceive, Ms. Sablotny's age, without more, does not render her confession involuntary.

U.S. v. Sablotny,
21 F.3d 747, 752 (7th Cir. 1994).

See also State v. Hopkins, 799 So.2d 1234, 1236-37 (La. App. 2nd Cir. 2001) (defendant did not ask for an attorney, motion to suppress denied); State v. Pink, 20 P.3d 31, 36 (Kan. 2001) (same).

Hence, the court should affirm the trial court's holding that defendant's confession was voluntary.

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CONCLUSION

The court should affirm the trial court's Order denying defendant's motion to suppress.

Respectfully Submitted,

__________________________________
XXXXXXXXXXXXXXXXX.
Attorney for Defendant

Dated:

CERTIFICATION OF SERVICE

This is to certify that I, XXXXXXXXXXXXXXXX, served defendant's brief and appendix upon the Clerk of the United States Court of Appeals for the Sixth Circuit and the Plaintiff United States of America on XXXXXXXXXXXXXXXXXX, at XXXXXXXXXXXXXXXXXXXXXXXX via Certified Mail Return Receipt Requested.

__________________________________
XXXXXXXXXXXXXXXXXXXXX
Attorney for Defendant

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