United States v. Johnson, Charles M.

In the

United States Court of Appeals

For the Seventh Circuit

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No. 06-3968

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHARLES M. JOHNSON, JR.,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 06 CR 9—John Daniel Tinder, Judge.

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ARGUED APRIL 10, 2007—DECIDED JULY 30, 2007

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Before BAUER, POSNER and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge. Charles Johnson was charged in a

two-count indictment with production of child pornogra-

phy in violation of 18 U.S.C. § 2251(a)1 and (e).2 Mr. John

1

18 U.S.C. § 2251 (a) provides:

(a) Any person who employs, uses, persuades, induces,

entices, or coerces any minor to engage in, or who has a

minor assist any other person to engage in, or who trans-

ports any minor in interstate or foreign commerce, or in any

(continued...)

2 No. 06-3968

1

(...continued)

Territory or Possession of the United States, with the intent

that such minor engage in, any sexually explicit conduct for

the purpose of producing any visual depiction of such

conduct, shall be punished as provided under subsection

(e), if such person knows or has reason to know that such

visual depiction will be transported in interstate or foreign

commerce or mailed, if that visual depiction was produced

using materials that have been mailed, shipped, or trans-

ported in interstate or foreign commerce by any means,

including by computer, or if such visual depiction has

actually been transported in interstate or foreign commerce

or mailed.

2

18 U.S.C. § 2251 (e) provides:

(e) Any individual who violates, or attempts or conspires to

violate, this section shall be fined under this title and

imprisoned not less than 15 years nor more than 30 years,

but if such person has one prior conviction under this

chapter, section 1591, chapter 71, chapter 109A, or chapter

117, or under section 920 of title 10 (article 120 of the

Uniform Code of Military Justice), or under the laws of any

State relating to aggravated sexual abuse, sexual abuse,

abusive sexual contact involving a minor or ward, or sex

trafficking of children, or the production, possession,

receipt, mailing, sale, distribution, shipment, or transporta-

tion of child pornography, such person shall be fined under

this title and imprisoned for not less than 25 years nor more

than 50 years, but if such person has 2 or more prior

convictions under this chapter, chapter 71, chapter 109A, or

chapter 117, or under section 920 of title 10 (article 120 of the

Uniform Code of Military Justice), or under the laws of any

State relating to the sexual exploitation of children, such

person shall be fined under this title and imprisoned not

less than 35 years nor more than life. Any organization that

violates, or attempts or conspires to violate, this section

(continued...)

No. 06-3968 3

son filed a motion to suppress certain evidence on the

ground that his consent to the search was involuntary. He

also claimed that his waiver of his Miranda rights was

involuntary. The district court conducted an evidentiary

hearing and denied Mr. Johnson’s motion to suppress.

Mr. Johnson pleaded guilty but preserved his right to

appeal the denial of his motion to suppress. The district

court accepted his plea. After a sentencing hearing,

Mr. Johnson was sentenced to concurrent terms of life

imprisonment. He timely filed this appeal. For the reasons

set forth in the following opinion, we affirm the judgment

of the district court.

I

BACKGROUND

A.

The National Center for Missing and Exploited Children

(“NCMEC”) conducted an investigation into sexually

explicit images of a prepubescent female known as Jane

Doe. Images of this young girl had been found on several

individuals’ computers and were labeled with Jane Doe’s

actual name. NCMEC analysts used this information to

locate the girl in Indianapolis, Indiana.

Law enforcement officials interviewed Jane Doe. She

stated that a man she called “Charlie” had been a live-in

2

(...continued)

shall be fined under this title. Whoever, in the course of an

offense under this section, engages in conduct that results

in the death of a person, shall be punished by death or

imprisoned for not less than 30 years or for life.

4 No. 06-3968

babysitter for her neighbor’s family. She stated that

“Charlie” had taken nude photos of her since she was

six or seven years old and that he had molested her and

two of the children living with him at the time. She also

stated that the photos had been taken with a silver digital

camera and that she had seen him transfer the photos to

a black Dell-brand computer.

“Charlie” was identified as Mr. Johnson, and a warrant

for his arrest issued on December 15, 2005. Law enforce-

ment officials executed this arrest warrant the following

day at a home in Cincinnati, Ohio. Mr. Johnson resided

there as a live-in babysitter for the same family with

whom he had lived in Indianapolis.

The law enforcement officials who went to arrest Mr.

Johnson included Agent Tim Rothrock and Sergeant Chris

Hunt. The officers knocked on the door of the home, and

the owner allowed them inside. The officers proceeded to

the basement where the owner told them Mr. Johnson

could be found. Sgt. Hunt had left his firearm in the

car, and, although Agent Rothrock had his firearm in his

hand, he carried it behind his back. The agents identified

themselves to Mr. Johnson, who was in the basement

with a toddler. The toddler was removed from the room.

Agent Rothrock then put away his firearm and did not

take it out again during the interview with Mr. Johnson.3

The law enforcement officers told Mr. Johnson his name

had come up during an investigation and read him his

Miranda rights. Mr. Johnson and the officers each signed a

form indicating Mr. Johnson’s waiver of his Miranda rights.

3

Mr. Johnson later testified that he never saw the firearm.

No. 06-3968 5

The two officers then proceeded to a small bedroom

where they interviewed Mr. Johnson. The tone was conver-

sational and, although there were other officers in the

home, only Sgt. Hunt and Agent Rothrock remained in the

room with Mr. Johnson. Mr. Johnson stated that he had

lived with the children who had been depicted in the

photographs and that he had a computer in his bed-

room area. Agent Rothrock asked if Mr. Johnson would

consent to a search of his bedroom area and his computer,

and Mr. Johnson calmly replied that he would not. Agent

Rothrock then asked Mr. Johnson if he would continue

talking; Mr. Johnson replied that he would. Mr. Johnson

then confirmed that he owned a black Dell computer and

that he likewise owned a silver digital camera. At this point

in the conversation, Agent Rothrock gave Mr. Johnson

more information about the investigation including the

fact that a victim had stated that he had taken photos of

her and that he had used a specific digital camera and

computer. Further, Agent Rothrock told Mr. Johnson that

some of these photos had been found on the internet. He

then told Mr. Johnson that he believed he had probable

cause to obtain a search warrant which would allow him to

search Mr. Johnson’s computer and living area. He ex-

plained that the statement about the warrant was not

meant as a threat and that a magistrate judge, and not he,

would make the decision as to whether to issue a warrant.

Agent Rothrock then told Mr. Johnson he would have to

secure the residence until the magistrate judge could be

contacted, which would involve limiting the residents’

ability to enter and exit the house.

The officers then left and Agent Rothrock contacted an

Assistant United States Attorney (“AUSA”) in Indianapo-

lis. He described the house and the property inside the

6 No. 06-3968

house, including the computer and the camera, in which

Mr. Johnson retained a privacy interest. He also discussed

the factors that supported probable cause, at which point

the AUSA agreed to start the process of obtaining a search

warrant. Agent Rothrock then returned to the home, told

Mr. Johnson that the process of obtaining a warrant had

been started and that the AUSA believed that probable

cause existed. Agent Rothrock again asked Mr. Johnson

if he would consent to a search. Sgt. Hunt recalled Agent

Rothrock stating that Mr. Johnson’s consent “could possi-

bly save time for us.” R.53 at 105-06.

Mr. Johnson was read forms acknowledging his con-

sent to the search of his computer and his living area, and

he was reread his Miranda warnings. Mr. Johnson signed

both forms. Mr. Johnson stated that the police might find

child pornography on the computer. The officers continued

to question Mr. Johnson about the child pornography on

his computer. Mr. Johnson then acknowledged that he

had taken the photos. He declined to answer any ques-

tions as to the identity of the children in the photos and

was then asked if he wished to speak to an attorney

regarding that particular question; he replied that he

would.

Mr. Johnson identified Jane Doe in one photograph in

which she was fully clothed and stated that the photo had

been taken in his Indianapolis bedroom. He declined to

answer questions about whether he had any knowledge

as to how the photo had become available on the internet

and stated that he wished to speak to an attorney as to that

question as well. When Agent Rothrock sought confirma-

tion that Mr. Johnson wished to speak to an attorney

regarding that question only, Mr. Johnson declined to

answer any further questions. At that point, Mr. Johnson’s

computer was removed, and he was arrested.

No. 06-3968 7

On July 6, 2006, the district court held a suppression

hearing. Mr. Johnson testified that he had not seen Agent

Rothrock’s weapon when he came down the stairs. He

stated that the officers were not harsh or mean to him. He

also said that he understood that he was suspected of a

crime and that he had signed the Miranda waiver. He

agreed that he never felt threatened or coerced into answer-

ing questions. He further stated that he was concerned

for the other residents of the home because Agent Roth-

rock had mentioned his intent to secure the home until the

search warrant was issued. He claimed that his consent to

the search was involuntary because he perceived that

hardship would befall other members of the household

if he persisted in declining consent. When he invoked his

right to counsel as to certain questions, he indicated that he

did not believe he had to answer questions on those topics.

He stated that he had read and understood the consent

to search forms and the Miranda waiver at the time he

signed it.

Mr. Johnson’s computer was found to contain approxi-

mately 3,700 images of child pornography and child

erotica. The nine images of Jane Doe found by the NCMEC

were on the computer, and the computer allowed file

sharing.

B.

The district court found that Mr. Johnson’s consent to

search his living area and computer was voluntary. The

court did not believe that Agent Rothrock’s statements that

he would secure the home while a search warrant was

obtained had overborne Mr. Johnson’s free will. The

district court found this consent to be voluntary because

8 No. 06-3968

Mr. Johnson (1) was approximately 48 years old, had two

years of college and had his associate’s degree, (2) had

demonstrated computer savvy, (3) had gained and used

managerial experience in his employment, (4) had de-

clined consent earlier in the encounter and stated that he

did not feel threatened, (5) had consented after he was

told that the process of obtaining a warrant had com-

menced, (6) had been read his Miranda warnings a second

time, (7) had consented after one hour and five minutes

which was not an overly long period of detention, (8) was

not barraged with requests for consent, and (9) was not

subject to a threatening atmosphere. The district court also

found that Mr. Johnson selectively had waived his Miranda

rights, only requesting counsel as to two specific ques-

tions which was an ambiguous assertion of his right to

counsel as to all questions. Finally, the district court

found that, even if his consent were not voluntary, the

evidence would not be suppressed because it would be

admissible under the inevitable discovery doctrine.

At sentencing, the district court computed, without

objection, the sentencing guidelines range. The applicable

guidelines range of 188-235 months was trumped by 18

U.S.C. § 3559(e),4 which requires mandatory life imprison-

ment for repeated sex offenses against children. Mr.

4

18 U.S.C. § 3559(e) provides:

(e) Mandatory life imprisonment for repeated sex offenses

against children.—

(1) In general.—A person who is convicted of a Federal

sex offense in which a minor is the victim shall be

sentenced to life imprisonment if the person has a prior

sex conviction in which a minor was the victim, unless

the sentence of death is imposed.

No. 06-3968 9

Johnson qualified as a repeat sex offender against minors

on the basis of convictions in 1989 for second degree rape,

second degree sodomy and sexual abuse offenses for

victimizing two children under the age of twelve. Mr.

Johnson preserved Fifth, Sixth and Eighth Amendment

objections to the invocation of the recidivist statutes. The

district court sentenced Mr. Johnson to concurrent terms

of life imprisonment.

II

DISCUSSION

A.

Mr. Johnson submits on appeal that his consent to the

search of his bedroom area and computer was involuntary

and, therefore, that his motion to suppress evidence

should have been granted.5 We review a district court’s

ruling on a motion to suppress de novo. However, we

review the district court’s factual findings for clear error.

United States v. Lawshea, 461 F.3d 857, 859 (7th Cir. 2006).

Because the voluntariness of a defendant’s consent to

search is a factual determination, we review a district

court’s resolution of this question for clear error. United

States v. Raibley, 243 F.3d 1069, 1076 (7th Cir. 2001).

The Fourth Amendment’s prohibition against warrant-

less searches does not apply when the defendant consents

5

Mr. Johnson does not appeal the district court’s denial of his

motion to suppress statements to law enforcement officials. He

recognizes that he selectively waived his Miranda rights, see

United States v. Amaro, 816 F.2d 284, 286 (7th Cir. 1987), and that

suppression of his statements would have left the Government’s

case largely unchanged. See Appellant’s Br. at 11.

10 No. 06-3968

voluntarily to the search. United States v. Sandoval-Vasquez,

435 F.3d 739, 744 (7th Cir. 2006). The Government bears the

burden of proving that consent freely and voluntarily

was given. Id. Whether a defendant voluntarily consented

to a search is a factual assessment which turns on the

totality of the circumstances. Schneckloth v. Bustamonte, 412

U.S. 218, 227 (1973). We must keep in mind that “a deter-

mination of voluntariness does not ride on the presence or

absence of a single controlling factor.” United States v.

LaGrone, 43 F.3d 332, 334 (7th Cir. 1994) (internal citations

and quotation marks omitted). Rather, we must undertake

a “careful scrutiny of all the surrounding circumstances.”

Id. (citing Schneckloth, 412 U.S. at 226). Among the factors

we consider are: “(1) the person’s age, intelligence, and

education, (2) whether he was advised of his constitu-

tional rights, (3) how long he was detained before he gave

his consent, (4) whether his consent was immediate, or

was prompted by repeated requests by the authorities,

(5) whether any physical coercion was used, and (6)

whether the individual was in police custody when he gave

his consent.” Sandoval-Vasquez, 435 F.3d at 744.

Mr. Johnson contends that his consent was given invol-

untarily because of two occurrences in the course of the

police requests for consent: (1) Agent Rothrock requested

more than once that Mr. Johnson consent to a search;

(2) Agent Rothrock said that he would need to secure the

residence until the warrant issued, thereby causing his

free will to be overborne. Mr. Johnson was concerned that

the other residents of the home would be unable freely to

come and go. We shall examine each of these contentions.

With respect to Mr. Johnson’s first submission, our

opinion in United States v. LaGrone, 43 F.3d 332, 333 (7th

Cir. 1994), is helpful. In LaGrone, as in this case, the defen-

No. 06-3968 11

dant was asked more than once whether he would consent

to a search. We stated that “[w]hile it is true that the

officers asked LaGrone more than once whether he

would consent to the search, we do not believe this consti-

tutes the sort of repetitive psychological harassment that

should tip the balance in favor of LaGrone.” Id. at 334.

Here, Agent Rothrock asked Mr. Johnson to consent on

more than one occasion. However, Mr. Johnson himself

stated that at no time did he feel threatened or coerced.

With respect to the second submission, in United States v.

Santiago, 428 F.3d 699, 705 (7th Cir. 2005), we determined

that a defendant had consented freely and voluntarily to

a search despite his claim that officers had threatened to

arrest his fiancée and to have their children taken into

protective custody. The district court, however, con-

cluded that no actual threat had been issued. Rather, the

district court determined that, when his home address had

been discovered and he realized that a search of his home

was therefore likely, Santiago became “rightful[ly]

concern[ed]” for his family. Id. The district court further

found that this “rightful concern” did not amount to

“psychological pressure.” Id. In reaching this conclusion,

the district court found it important that the authorities

had behaved professionally, that the entire incident took

only twenty minutes and that the encounter was “devoid

of any badgering or harassment.” Id. Looking to the

totality of the circumstances considered by the district

court, we concluded, in Santiago, that the district court’s

voluntariness finding was not clearly erroneous. Id.

Similarly, we must conclude that Mr. Johnson’s concern

that he might inconvenience the other residents of the

home was a “rightful concern,” but not one that caused

“psychological pressure.”

12 No. 06-3968

Mr. Johnson is 48 years of age and of at least average

intelligence. He testified at the suppression hearing that

he understood the consent form, that he never felt coerced

or threatened and that he understood he was waiving his

Fourth Amendment rights. The interview was calm and

professional at all times. Considering the totality of the

factors surrounding Mr. Johnson’s consent, we certainly

cannot say the district court clearly erred in finding that

consent was voluntarily and freely given.

B.

Even if Mr. Johnson did not consent, the evidence

would have been otherwise admissible under the inevitable

discovery doctrine. See Nix v. Williams, 467 U.S. 431, 444

(1984). This doctrine provides that, when the Government

can establish by a preponderance of the evidence that the

information obtained would have been discovered ulti-

mately or inevitably by lawful means, the deterrence

rationale of the exclusionary rule no longer applies and the

evidence should be admitted. Id. “The prosecution must

establish that it had probable cause and prove the ex-

istence of a chain of events that would have led to a

warrant [] independent of the search.” United States v.

Brown, 328 F.3d 352, 357 (7th Cir. 2003) (internal citations

and quotation marks omitted).

The facts of this case clearly demonstrate that probable

cause existed for the search. See Illinois v. Gates, 462 U.S. 213

(1983) (establishing a totality of the circumstances test by

which to determine whether probable cause exists). The

officers had acquired detailed information from Jane Doe

that Mr. Johnson had taken the photos, that she was the

child depicted in the photos and that Mr. Johnson had used

No. 06-3968 13

a silver digital camera. She also mentioned that he pos-

sessed a black Dell computer. R.53 at 15-16. Indeed, based

on this information, Agent Rothrock obtained a warrant

for Mr. Johnson’s arrest before his encounter with Mr.

Johnson. Moreover, before Mr. Johnson consented to the

search, he had a conversation with the officers. During

the course of that conversation, he stated that he owned a

black Dell computer and a silver digital camera. He

confirmed that he previously had lived in Indianapolis.

This information would more than suffice to establish

probable cause upon which to issue a search warrant.

Therefore, the deterrence rationale of the exclusionary

rule would not apply, and the evidence would be ad-

missible under the inevitable discovery doctrine.

C.

Mr. Johnson also submits that the district court violated

his Fifth and Sixth Amendment rights by imposing the

mandatory minimum life sentence, required by 18 U.S.C.

§ 3559(e) and 18 U.S.C. § 2251(e), because the underlying

fact of a prior conviction had not been charged in the

indictment or proven beyond a reasonable doubt to a jury.

Mr. Johnson acknowledges that this court is without

power to decide this issue in his favor. The governing law

of the Supreme Court unequivocally states that the fact of

a prior conviction need not be found by a jury beyond a

reasonable doubt, nor must it be alleged in the indictment.

Almendarez-Torres v. United States, 523 U.S. 224, 246-47

(1998). Apprendi v. New Jersey, 530 U.S. 466 (2000), explicitly

preserved Almendarez-Torres, see 530 U.S. at 490 (“Other than

the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory

14 No. 06-3968

maximum must be submitted to a jury, and proved be-

yond a reasonable doubt) (emphasis added), although left

open the possibility that future cases might revisit its

holding, see id. at 489-90. Later cases, including Blakely v.

Washington, 542 U.S. 296 (2004), United States v. Booker,

543 U.S. 220 (2005), and Shepard v. United States, 544 U.S. 13

(2005), each have confirmed Almendarez-Torres’ continuing

vitality. See United States v. Sachsenmaier, ___ F.3d ___, 2007

WL 1839282, at *4 (7th Cir. June 28, 2007) (confirming that

Almendarez-Torres remains the governing law but noting

that the defendant had preserved the argument for con-

sideration by the Supreme Court). Therefore, we cannot

accept Mr. Johnson’s claim that the district court’s failure

to submit this issue to the jury constitutes reversible error.

Conclusion

For these reasons, the judgment of the district court is

affirmed.

AFFIRMED

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—7-30-07