finding testimony reliable in part based on textbooks relied on by expert
How later courts described this case
- finding testimony reliable in part based on textbooks relied on by expert
Written by the judges who cited it.
The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 29, 2008
No. 07-13002 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00037-CR-1-SPM-AK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOAQUIN GOMES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(May 29, 2008)
Before BIRCH, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Joaquin Gomes, a registered sex-offender in Florida, was serving a state
probation term at the time he committed the federal crimes at issue in this case.
Gomes appeals his convictions and sentences imposed after a jury found him guilty
of possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B);
receiving child pornography, in violation of 18 U.S.C. § 2252(a)(2)(B); and
producing child pornography, in violation of 18 U.S.C. § 2251(a).
Gomes first argues that the district court erred in denying his motion to
suppress (1) statements he made during an interview outside of his house with
federal agents, after he requested an attorney and without having been given the
warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966),
and (2) evidence subsequently seized from his home pursuant to a warrantless
search. Second, Gomes contends that the district court erred in admitting the
expert testimony of Marilyn M. Barnes, because the court improperly limited voir
dire into the data supporting Barnes’s opinion, and because both Barnes and the
evidence she relied upon were unreliable. Third, Gomes maintains that the district
court erred by allowing Ophelia L. Jakobsen, Gomes’s former step-daughter, to
testify because her testimony was conditioned on another person also testifying,
and that person did not testify. Gomes also urges that her testimony should have
been excluded under Federal Rules of Evidence 402 and 403 because it was
2
irrelevant and its probative value was outweighed by unfair prejudice. Finally,
Gomes believes that the district court erred because it should have imposed his
sentences to run concurrently with his undischarged state sentence, pursuant to
U.S.S.G. § 5G1.3(b). Based on a review of the record and the parties’ briefs, we
discern no reversible errors and AFFIRM Gomes’s convictions and sentences.
I. BACKGROUND
In March 2006, the FBI received information suggesting that Gomes might
be involved with child pornography because his name appeared in a database of
persons who had used credit cards to access internet sites containing child
pornography. Stephen W. Amos and Wallace Adams, special agents with the FBI,
and Mark Morgan, a computer examiner from the Levy County, Florida, Sheriff’s
Office, went to Gomes’s residence and waited for him to arrive. The agents knew
that Gomes was serving a term of state probation for a conviction of lewd and
lascivious assault on a minor. When Gomes arrived, the agents approached him at
a locked fence enclosing two trailer homes on the property. The agents then
informed Gomes of their identities and told Gomes that they wanted to interview
him regarding their suspicions that he had images of child pornography on his
computer. Gomes denied he was involved in child pornography.
3
The agents asked Gomes for his consent to search his computer, which he
refused. Around this time during the interview, Gomes stated in substance that he
“might want to call an attorney.” R2 at 52. Agent Amos then said he was stopping
the interview and would not ask any more questions, but that he would be
contacting Gomes’s probation officer, Mike Hinson, to notify him that Gomes had
changed his job without notifying the probation office. Gomes became upset and
said, “Don’t call him. He’ll put me in jail.” Id. Agent Amos told Gomes that he
was obligated to contact Officer Hinson “for the purpose of explaining what had
transpired at the residence during the course of the interview.” Id. at 34-35.
Gomes again begged him not to contact Officer Hinson because he feared being
arrested. At that point, Gomes informed the agents that he had images of child
pornography on his computer. Id. at 44. During Agent Amos’s telephone
conversation with Officer Hinson, Gomes indicated that he had “a ton of it in
there.” Id. at 52. Agent Amos then told Gomes that he was not under arrest, but
that Gomes was not free to enter his home. Id. at 45.
While waiting for Officer Hinson to arrive, Gomes was kept outside of the
fence of his residence because the agents feared that he would destroy evidence if
he were allowed inside. Id. at 36. When Officer Hinson arrived, the agents
allowed Officer Hinton to interview Gomes alone. Officer Hinson knew Gomes
4
had requested an attorney, and, nevertheless, Officer Hinson asked Gomes if he
would find anything in the house if he searched it. Id. at 108-09. Gomes told
Officer Hinson that he would find some “kiddy porn” if the home were searched.
Id. at 106. Gomes took Officer Hinson and Officer Morgan into the residence, led
them to the bedroom, pulled out a bag containing compact discs from under the
bed, and gave them to Officer Hinson. Officer Morgan put one of the discs in his
computer and opened files that appeared to be child pornography. Gomes was then
arrested for violating the terms of his probation.
Through a subsequent search of Gomes’s computer, pursuant to a warrant,
Officer Morgan found images of child pornography, and discovered that some files
had been viewed on the internet and saved to the hard drive. 601 images in
Gomes’s possession matched those in the Department of Justice’s database of
known child pornography. In addition, Officer Morgan located thousands of
suspected files and over 500 videos believed to be child pornography on Gomes’s
discs and computer. Gomes’s digital camera contained three images and the data
from other deleted images. Officer Morgan tracked one image from the camera to
the compact discs that had come from under Gomes’s bed, and five other images
on the discs came from the same camera.
5
A federal grand jury indicted Gomes for (1) possessing child pornography,
in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2), (“Count One”);
(2) receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B) and
(b)(1), (“Count Two”); and (3) producing child pornography, in violation of 18
U.S.C. § 2251(a) and (e), (“Count Three”). R1-26 at 1-3. Before trial, Gomes
filed a motion to suppress statements and evidence, arguing that the statements and
evidence were obtained in violation of the Fourth, Fifth, and Sixth Amendments to
the U.S. Constitution and Federal Rule of Criminal Procedure 41. Gomes argued,
inter alia, that his confession to possessing child pornography was a result of
continued interrogation following his request for an attorney and that the evidence
resulting from the search of his home and computers was the fruit of those illegally
obtained statements. In the motion, Gomes set out that he had previously been
sentenced to two years of community control followed by 13 years of sex offender
probation, and his conditions of probation provided that Gomes, “will not own,
view or possess sexually explicit material or stimulating visual or auditory material
by means including telephone, electronic media, computer programs or computer
services” and that he “will submit to warrantless search by your officer of your
person, residence or vehicle . . . [.]”1 R1-17 at 3 n.4. The government responded
1
Gomes’s state probation conditions do not appear in the record, but this provision of his
state probation is not challenged, and Gomes references it in both his motion to suppress and his
6
that Gomes’s initial confession should not be analyzed under Miranda because the
setting was non-custodial. The government also argued that the search of Gomes’s
home was proper because it was based upon Officer Hinson’s reasonable suspicion
that Gomes possessed child pornography, such that the evidence seized was not
subject to suppression.
Without holding an evidentiary hearing, the court denied Gomes’s motion,
first concluding that Gomes’s statements were not the product of custodial
interrogation because the interview took place at Gomes’s home and ceased upon
his request for an attorney. R1-21 at 2 n.1. The court framed the issue relating to
the evidence resulting from the search of his home and computer as, “whether a
federal probation officer in the same circumstances would have had the right to
conduct the warrantless entry into and search of Defendant’s home.” Id. at 4. The
court considered that (1) the FBI agents were aware that Gomes was involved in
downloading child pornography because his name appeared in their database;
(2) his criminal history revealed that he was on state probation for a conviction of
lewd and lascivious assault on a child under 16; (3) he admitting touching his step-
daughter’s genitals; (4) he admitted observing pornographic “pop-ups” on his
computer; and (5) he volunteered to cooperate with the agents once they advised
appellate brief. See R1-17 at 3 n.4; Appellant’s Br. at 20 n.1.
7
him that his probation officer was to be contacted. Id. at 5. The court concluded
that these factors gave the agents and probation officer reasonable suspicion to
conduct the warrantless search of Gomes’s residence and computer. Id. at 4-6.
Gomes also filed a motion in limine, arguing that the expert testimony of
Marilyn M. Barnes should be excluded from evidence. R1-31. Barnes was to
testify that a female subject in five photographs seized from Gomes’s home was
between 11 and 16 years old, based upon her genitalia. Id. at 1. Gomes argued
that it was unlikely that a photograph of external female genitalia could support
Barnes’s opinion within a reasonable degree of medical certainty that the subject
was an adolescent minor. Id. The government opposed Gomes’s motion, arguing
that Barnes’s testimony was based on extensive medical training and clinical
experience, and it attached Barnes’s resume, which set out her experience and
qualifications. The court denied the motion, finding that Barnes’s testimony would
be admissible to assist the jury in making its decision. R1-34.
Gomes elected to proceed to a jury trial. On cross-examination by Gomes’s
counsel, Agent Amos testified as follows. While Agent Amos was questioning
Gomes, Gomes indicated that he should talk to an attorney, and Agent Amos
repeatedly instructed him that no more questions would be asked, the interview
was concluded, and any statements made could be used against him in court. R2 at
8
43-44. Agent Amos then indicated to Gomes that he was going to contact Gomes’s
probation officer, and Gomes “dropped to his knees,” “cried out for Jesus,”
pleaded for Agent Amos not to call, and indicated that he would cooperate. Id. at
44. At that point, Agent Amos told Gomes not to make any statements because
they could be used against him in court. Gomes then told Agent Amos that he had
images of child pornography on his computer.
The government then called Officer Morgan to testify. Officer Morgan
testified that he accompanied Agent Amos and Agent Taylor to Gomes’s residence,
and they waited outside of the gate because Gomes was not home when they
arrived. Id. at 50-51. After Gomes returned and got out of his truck, Morgan and
the agents approached him, and Agent Amos began to interview Gomes. Id. at 51.
Agent Amos asked Gomes for consent to look at his computers, and Gomes
indicated that he might want to call an attorney. Id. at 52. When Officer Hinson
arrived, Gomes’s probation officer, Officer Hinson asked Officer Morgan to assist
him in viewing computer material in Gomes’s residence. Id. at 53. After a brief
search of Gomes’s home and computer, Officer Hinson arrested Gomes. Id. at 55.
Certain items were seized from Gomes’s residence pursuant to Offier Hinson’s
request. Id. Subsequently, Officer Morgan was involved in obtaining a state
search warrant to search Gomes’s home. Id. The items seized pursuant to that
9
search included three desktop computers, 12 hard drives, a digital camera, a web
camera, a printer, and 46 compact discs. Id. at 58.
The government then called Officer Hinson, who testified that Agent Amos
contacted him and requested information about Gomes because Agent Amos
wanted to interview Gomes. Agent Amos contacted him again, indicating that
Gomes had made a statement, and Officer Hinson went to Gomes’s home to
conduct a probation search. Id. at 106. When Officer Hinson arrived, he talked
with Agent Amos, who gave him some background. Hinson was aware that a
subsequent search warrant was obtained to seize the evidence. Id. at 108. On
cross-examination, Officer Hinson testified that he knew Gomes had requested an
attorney, and, notwithstanding that, he asked Gomes if he would find anything in
the house if he searched it. Id. at 108-09.
Next, the government called Ophelia L. Jakobsen, who testified that her
mother, Sandra K. Nilsen, married Gomes in November 2005. Id. at 109-11.
Gomes objected to her testimony based on Rule 403. The government responded
that her testimony was for the purpose of establishing that Gomes had access to
young girls of whom to take the photographs. The court overruled the objection.
Jakobsen resumed her testimony and indicated that she had a sister, Brittany, who
would have been 13 years old in 2005, at the time the pictures were taken. Id. at
10
113. She stated that she and Brittany had stayed at Gomes’s house, and Brittany
had been there alone with Gomes. Id. She also testified that Brittany had other
friends who were approximately the same age and who had spent time at Gomes’s
residence. Id. at 113-14.
The government then called Nilsen, Gomes’s ex-wife, who testified that she
had known Gomes since July 2005, had married him in November 2005, and had
been to his trailer. She and Brittany had stayed at Gomes’s residence once, and
Brittany had friends around her own age. Id. at 116-17. Officers had shown her
pictures taken from Gomes’s camera, one of which was a picture of a “little girl,”
but Nilsen did not know the identity of the girl. Id. at 118-19. On cross-
examination, Nilsen testified that Brittany had only been alone with Gomes when
Nilsen had a heart attack and that Brittany’s friends had very seldom been at
Gomes’s residence. Id. at 119-20. After Nilsen’s testimony, the government
indicated that it would call Brittany to testify. Id. at 121.
Instead, the government called Marilyn M. Barnes, and Gomes requested
voir dire to establish her expertise, which the government granted. Outside the
presence of the jury, she testified that she had been an advanced registered nurse
practitioner with the University of Florida Child Protection Team for almost 12
years. She had a master’s degree in pediatric nursing and had worked the majority
11
of her career in pediatrics. She had been to multiple conferences relating to child
sexual abuse and child abuse and spoken at a conference on child sexual abuse.
She had three articles published on taking histories from abused or neglected
children. She had seen over 300 children a year, about one-half of whom were
seen for sexual abuse, and she had seen a total of approximately 3,600 children for
abuse or neglect. She had been qualified as an expert in child sexual and physical
abuse cases and had appeared as an expert in 105 cases. She had previously been
asked to use her expertise in adolescent growth and development to examine
photographs for law enforcement purposes, and she had rendered opinions
regarding the age of children in photographs.
Gomes continued his voir dire, and Barnes testified that she had never been
qualified as an adolescent growth and development expert to render an opinion as
to the age of a person based solely on their genitalia. She had been asked to render
an opinion as to the age of a child based on photographs in about four or five
investigations, and she rendered an opinion based on the genitalia alone in two or
three of those. Barnes testified regarding the methods used for determining age
based on genitalia. Barnes also testified that the pictures she was asked to view in
this case were “not the clearest photos I ever saw,” but showed the genital
structures. Id. at 128. She indicated that one of the photos in the present case
12
showed the distribution of pubic hair fairly clearly, and the others are “iffy.” Id. at
129. The district court sustained objections to Gomes’s continued questioning
regarding the clarity of the pictures Barnes examined for this case. The judge
stated, “Counsel, I think we have gotten beyond the admissibility and we are now
in the area of credibility,” and that “it’s not correct voir dire. You can do all this
on cross-examination.” Id. Barnes continued to testify that the principles and
methods she used were reliable and had been subjected to peer review. While she
had never published on the methods upon which she relied, she identified articles
and textbooks on the subject.
On direct-examination in front of the jury, Barnes repeated her qualifications
and described how she determines a child’s age from a photograph. The
government moved to admit Barnes as an expert in adolescent growth and
development, Gomes objected, and the court overruled the objection and admitted
her as an expert. Id. at 138. Barnes stated that the photographs provided her with
sufficient information to render her opinion and testified that “this child is certainly
under the age of 18, and very likely under the age of 16, and that’s even allowing
for some outliers. I believe that the child is probably 14 or younger.” Id. at 142.
Gomes objected to her testimony under Rule 403, and the court overruled the
objection.
13
On cross-examination, Barnes testified regarding the age of puberty onset
and developmental variations. She testified that there was “some blurriness” in the
photographs she analyzed. Id. at 144. On re-direct, she testified that her opinion
took into account the developmental variations about which the defense asked.
The government again indicated that it intended to call Brittany the next day, but
did not call any additional witnesses the next day. The jury found Gomes guilty on
all three counts of the indictment.
The probation office prepared a presentence investigation report (“PSI”) and
grouped all three counts together, pursuant to U.S.S.G. § 3D1.2 (2006). Gomes’s
base offense level was 18, pursuant to U.S.S.G. § 2G2.2. The probation officer
added 23 levels for various specific offense characteristics, under U.S.S.G.
§ 2G2.2(b)(2) through (b)(7). One of the specific offense characteristics, for which
Gomes received a five-level increase, was that he “engaged in a pattern of activity
involving the sexual abuse or exploitation of a minor,” pursuant to U.S.S.G.
§ 2G2.2(b)(5). The enhancements raised Gomes’s total offense level to 41. The
probation officer described Gomes’s criminal history and detailed a 2001 state
conviction on 1 count of lewd and lascivious assault on a child under the age of 16.
For that crime he was sentenced to 2 years of community control to be followed by
13 years of sex offender probation. In May 2006, he pled guilty to violating his
14
community control by possessing child pornography, his term of supervision was
revoked, and he was sentenced to 10 years of imprisonment with credit for 474
days served. Based on Gomes’s criminal history, his criminal history category was
III. His adjusted offense level of 41 and criminal history category of III yielded a
guideline range of 360 months to life imprisonment, but because the statutory
maximum for Count Three was 600 months of imprisonment, pursuant to
5G1.1(c)(1), his guideline range became 360 to 600 months of imprisonment.
At the sentencing hearing, Gomes argued that he had 61 to 91 months of
undischarged prison time and his present sentence should be imposed concurrently
with that undischarged time or reduced by that time, pursuant to U.S.S.G.
§ 5G1.3(b). The court disagreed, finding that it had discretion, under U.S.S.G.
§ 5G1.3(c), to order that Gomes’s sentence run consecutively with his
undischarged state sentence because he committed the instant offense while on
probation for his state conviction. R4 at 10. The court indicated that it had
considered the factors in 18 U.S.C. § 3553(a), the advisory guideline range, and the
policy statements issued by the Sentencing Commission. The court sentenced
Gomes to 240 months of imprisonment as to Count One, 480 months as to Count
Two, and 600 months as to Count Three, all to run concurrently, and ordered the
sentence to run consecutively to any existing state sentence. When Gomes was
15
asked if he had any objections to the court’s findings of fact or conclusions of law,
his counsel stated, “[n]one other than previously raised.” Id. at 13-14. This appeal
followed.
II. DISCUSSION
A. The District Court Properly Denied Gomes’s Motion to Suppress
“Review of a district court’s denial of a motion to suppress is a mixed
question of law and fact.” United States v. Delancy, 502 F.3d 1297, 1304 (11th
Cir. 2007). “[I]n reviewing a denial of a motion to suppress, we review the entire
record, including trial testimony.” United States v. Newsome, 475 F.3d 1221,
1224 (11th Cir.) (per curiam), cert. denied, 128 S. Ct. 218 (2007); see also United
States v. Pearson, 448 F.2d 1207, 1210 (5th Cir. 1971) (“Evidence adduced at trial
may be considered even though the evidence on the motion to suppress was
insufficient to justify the search.”). We consider the evidence brought forth at trial
in determining whether the denial of a motion to suppress constitutes reversible
error. Newsome, 475 F.3d at 1224; Pearson, 448 F.2d at 1210. “We review the
district court’s findings of fact for clear error[,]” construing the evidence in the
light most favorable to the party that prevailed in the district court, and “[w]e
review the district court’s interpretation and application of the law de novo.”
Delancy, 502 F.3d at 1304.
16
1. Gomes’s Pre-Arrest Statements Were Properly Admitted at Trial
The prosecution cannot introduce a defendant’s statements made in
response to custodial interrogation without first informing the defendant of his
rights under Miranda. Miranda, 384 U.S. at 444, 476, 86 S. Ct. at 1612, 1629. In
United States v. Castro, we held that before Miranda warnings are required, “it
must be established that the subject was both ‘in custody’ and under ‘interrogation’
by police officers.” United States v. Castro, 723 F.2d 1527, 1530 (11th Cir. 1984)
(per curiam). To determine whether a suspect is “in custody” the Supreme Court
has set out two distinct inquiries. “[F]irst, what were the circumstances
surrounding the interrogation; and second, given those circumstances, would a
reasonable person have felt he or she was not at liberty to terminate the
interrogation and leave.” Thompson v. Keohane, 516 U.S. 99, 112, 116 S. Ct. 457,
465 (1995) (footnote omitted). The court must then determine whether the suspect
was subjected to a “formal arrest or restraint on freedom of movement of the
degree associated with a formal arrest.” Id. (quotation omitted).
We have acknowledged that “courts are much less likely to find the
circumstances custodial when the interrogation occurs in familiar or at least neutral
surroundings, such as the suspect’s home.” United States v. Brown, 441 F.3d
1330, 1348 (11th Cir. 2006) (quotation and alteration omitted), cert. denied, 127 S.
17
Ct. 1149 (2007); see also United States v. Newton, 369 F.3d 659, 675 (2d Cir.
2004) (noting that “absent an arrest, interrogation in the familiar surroundings of
one’s own home is generally not deemed custodial”). Other relevant factors to
determine custody include whether the suspect was physically restrained or told he
was under arrest. See United States v. Phillips, 812 F.2d 1355, 1362 (11th Cir.
1987) (per curiam) (concluding that suspect, who was neither arrested nor told that
he was under arrest, was “not in custody for the purposes of Miranda”).
“Unambiguously advising a defendant that he is free to leave and is not in custody
. . . generally will lead to the conclusion that the defendant is not in custody . . . .”
Brown, 441 F.3d at 1347. The Supreme Court has stated that an officer’s
suspicions regarding a suspect “may bear upon the custody issue if they are
conveyed” to the suspect, however, “[e]ven a clear statement from an officer that
the person under interrogation is a prime suspect is not, in itself, dispositive of the
custody issue, for some suspects are free to come and go until the police decide to
make an arrest.” Stansbury v. California, 511 U.S. 318, 325, 114 S. Ct. 1526, 1530
(1994) (per curiam).
In this case, Gomes made self-incriminating statements to the agents
regarding his possession of child pornography without having been arrested and
not having been informed of his rights under Miranda. Therefore, we must
18
determine whether or not Gomes was in custody at the time he made the
statements. The evidence adduced at trial shows that Gomes was interviewed
outside of a locked fence at his residence – a familiar setting for Gomes – which
weighs against the finding that he was in custody. R2 at 34; Brown, 441 F.3d at
1348. Gomes was not physically restrained in any way and he was not told that he
was under arrest, which are two additional factors that weigh against a finding of
custody. See generally R2 at 30-55; Phillips, 812 F.2d at 1362. While the officers
did say that they suspected Gomes of having child pornography on his computer,
an officer’s articulated suspicions are not dispositive of the inquiry. Stansbury,
511 U.S. at 325, 114 S. Ct. at 1530. We conclude that the officers’ stated
suspicions did not render their interview with Gomes custodial because, after
Agent Amos said that he would be calling Hinson, Gomes’s probation officer, “for
the purpose of explaining what had transpired at the residence during the course of
the interview,” R2 at 34-35, Gomes begged Amos not to call because he feared
being arrested, indicating that Gomes did not think he was in custody at that point.
Id. at 35. Then, at some point during Amos’s call with Hinson, Gomes volunteered
that he possessed child pornography. Gomes had said nothing incriminating up
until this point, and there is no indication that he was not free to enter his home or
to leave the scene even if his probation officer were called. Therefore, Agent
19
Amos’s statement that he was going to call Gomes’s probation officer cannot be
deemed to have restricted Gomes’s freedom of movement such that Gomes was in
custody when he made self-incriminating statements.
The totality of the circumstances establishes that Gomes was not in custody
when he made self-incriminating statements. Recall, the agents prevented Gomes
from entering his house only after he had made self-incriminating statements
regarding his possession of child pornography. The facts that the district court
relied upon to deny Gomes’s motion to suppress were in conformity with the facts
established at trial. Accordingly, the district court did not err in denying Gomes’s
motion to suppress his statements.
2. The Evidence Seized from Gomes’s Home Was Properly Admitted
Federal law governs the admission in federal court of evidence obtained by
state officers. United States v. Malekzadeh, 855 F.2d 1492, 1496 (11th Cir. 1988).
“The question whether evidence obtained by state officers and used against a
defendant in a federal trial was obtained by unreasonable search and seizure is to
be judged as if the search and seizure had been made by federal officers.” Preston
v. United States, 376 U.S. 364, 366, 84 S. Ct. 881, 883 (1964). A probationer’s
house may be searched based upon reasonable suspicion. United States v. Knights,
534 U.S. 112, 121, 122 S. Ct. 587, 592 (2001). In Knights, the Supreme Court
20
stated that “[w]hen an officer has reasonable suspicion that a probationer subject to
a search condition is engaged in criminal activity, there is enough likelihood that
criminal conduct is occurring that an intrusion on the probationer’s significantly
diminished privacy interests is reasonable.” Id. at 121, 122 S. Ct. at 593. We
followed Knights in United States v. Yuknavich and concluded that reasonable
suspicion was all that was required to search a probationer’s computer, even where
the suspect’s probation agreement did not require him to submit to warrantless
searches. United States v. Yuknavich, 419 F.3d 1302, 1309-11 (11th Cir. 2005).2
We have explained that a court must look to the “totality of the circumstances of
each case to see whether the detaining officer has a particularized and objective
basis for suspecting legal wrongdoing.” Id. at 1311. To determine whether
officers had reasonable suspicion, we “must take stock of everything they knew
before searching.” Id.
2
Gomes argues that the decisions in Yuknavich and Knights are not controlling because
Florida courts have held that evidence obtained pursuant to a search by a probation officer is
admissible only in a probation revocation proceeding, not to prove a new criminal offense. Gomes
also argues that Florida law expressly limits the authority to conduct warrantless searches to
probation officers, but he cites no authority for this proposition. These arguments fail because
Knights establishes that the Fourth Amendment allows a search of a probationer’s home for either
investigatory or probationary purposes. See generally, Knights, 534 U.S. 112, 121, 122 S. Ct. 587.
Gomes’s argument is also foreclosed by Bamberg v. State, 953 So. 2d 649, 653-54 (Fla. Dist. Ct.
App. 2007), a Florida appellate court decision that adopted Knights to conclude that a warrantless
search of a probationer’s residence could be used for either probationary or investigatory purposes
and expressly abrogated earlier Florida state court decisions to the extent that they were superseded
by Knights.
21
In this case, Gomes confessed to possessing child pornography on his
computer to federal law enforcement officers. As we have explained, his
confession was admissible because it was a statement that was not the product of
custodial interrogation. Because the officers arrived at Gomes’s house with
information suggesting that Gomes might be involved in child pornography, and
Gomes subsequently confessed to possessing child pornography, the federal agents
had particular, objective evidence to support a reasonable suspicion that he was
engaged in criminal activity. See Yuknavich, 419 F.3d at 1311. Instead of
searching Gomes’s residence at that time Gomes confessed, the federal agents
contacted Gomes’s state probation officer, who, in conjunction with Morgan,
conducted the search after being informed of what had transpired. R2 at 106.
Because the federal agents informed Hinson of Gomes’s confession, Hinson also
had reasonable suspicion to search Gomes’s residence. Consequently, the evidence
obtained by the state officers could be admitted in federal court because the
officers had reasonable suspicion to search Gomes’s residence. See Preston, 376
U.S. at 366, 84 S. Ct. at 883; Knights, 534 U.S. at 121, 122 S. Ct. at 592.
Therefore, the district court did not err by denying Gomes’s motion to suppress the
evidence seized from the search of his home.
B. The District Court Properly Allowed Barnes’s Expert Testimony
22
We review a district court’s decision with respect to the admissibility and
reliability of expert testimony for an abuse of discretion and can only reverse a
district court’s ruling if it is manifestly erroneous. United States v. Frazier, 387
F.3d 1244, 1258 (11th Cir. 2004) (en banc). “A district court has wide discretion
in its determination to admit and exclude evidence, and this is particularly true in
the case of expert testimony.” United States v. Beasley, 72 F.3d 1518, 1528 (11th
Cir. 1996) (per curiam) (quotation omitted).
Federal Rule of Evidence 702 provides,
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or
otherwise, if (1) the testimony is based upon sufficient facts or data,
(2) the testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods reliably to
the facts of the case.
Fed. R. Evid. 702. To determine the admissibility of expert testimony, trial courts
must consider whether
(1) the expert is qualified to testify competently regarding the matters
he intends to address; (2) the methodology by which the expert
reaches his conclusions is sufficiently reliable as determined by the
sort of inquiry mandated in Daubert[ v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993)]; and (3) the testimony
assists the trier of fact, through the application of scientific, technical,
or specialized expertise, to understand the evidence or to determine a
fact in issue.
23
Frazier, 387 F.3d at 1260 (quotation omitted). The Supreme Court in Daubert set
out some considerations for analyzing the reliability of scientific expert opinion,
including (1) whether the theory or technique can be and has been tested;
(2) whether it has been subjected to peer review and publication; (3) the known or
potential rate of error; and (4) whether it is generally accepted. Daubert, 509 U.S.
at 593-94, 113 S. Ct. at 2796-97. “The inquiry envisioned by Rule 702 is . . . a
flexible one.” Id. at 594, 113 S. Ct. at 2797.
Voir dire questioning established that Barnes had been an advanced
registered nurse practitioner with the University of Florida Child Protection Team
for almost 12 years and she had a master’s degree in pediatric nursing. R2 at 123.
She had seen a total of approximately 3,600 children for abuse or neglect, had been
qualified as an expert in child sexual and physical abuse cases, and had appeared as
an expert in 105 cases. Id. at 125. She had been asked to use her expertise in
adolescent growth and development to examine photographs for law enforcement
purposes, and she had rendered opinions regarding the age of children in
photographs in four or five investigations, two or three of which were based on
genitalia alone. Id. at 125-26. Barnes also indicated that the principles and
methods she used were reliable and had been subjected to peer review, and she
identified articles and textbooks on the subject. R2 at 130-31; Daubert, 509 U.S. at
24
593-94, 113 S. Ct. at 2796-97. She also described in detail the reasons for her
opinion. See R2 at 136-38.
The district court allowed sufficient voir dire into Barnes’s qualifications,
methodology, and the data supporting her opinion. Even though the district court
sustained several of the government’s objections during Gomes’s cross-
examination of Barnes, we conclude that the district court allowed enough inquiry
to determine that Barnes was qualified to render an expert opinion regarding the
age of children in photographs which would assist the jury. See Fed. R. Evid. 702.
Given that the district court could find that Barnes was sufficiently qualified, her
methodology was reliable, and her testimony could help the jury determine an
element of the offense, the court did not abuse its discretion in allowing her to
testify. See Frazier, 387 F.3d at 1260.
C. The District Court Properly Allowed Jakobsen’s Testimony
“We review the district court’s admission of evidence over a defendant’s
objection pursuant to Fed. R. Evid. 403 for abuse of discretion.” United States v.
Bradberry, 466 F.3d 1249, 1253 (11th Cir. 2006) (per curiam). “[W]e view the
evidence in the light most favorable to admission, maximizing it’s probative value
and minimizing its undue prejudicial impact.” Id. We will find an abuse of
discretion “[o]nly if the decision to admit evidence over a Rule 403 challenge is
25
unsupportable when the evidence is viewed in the light most supportive of the
decision.” Id. (quotation omitted). Rule 403 provides that relevant evidence may
be excluded “if its probative value is substantially outweighed by the danger of
unfair prejudice . . . .” Fed. R. Evid. 403. It is a crime to produce pornography
involving a “minor.” 18 U.S.C. § 2251(a). A “minor” is defined as “any person
under the age of eighteen years.” 18 U.S.C. § 2256(1).
In this case, Jakobsen testified that she and her sister, Brittany, who was 13
years old in 2005, had stayed at Gomes’s house and that Brittany had been there
alone with Gomes. R2 at 113. Jakobsen also testified that Brittany had other
friends close to Brittany’s age who also spent time at Gomes’s residence. Id. at
113-14. This testimony was relevant and probative of whether Gomes had access
to girls under the age of 18, which was circumstantial evidence for the government
to establish that Gomes had violated 18 U.S.C. § 2251(a). Given that the testimony
was probative of a material element of Count Three, the district court did not abuse
its discretion in admitting Jakobsen’s testimony. See Bradberry, 466 F.3d at 1253.
Gomes argues that the district court erred in allowing Jakobsen to testify
because her testimony was contingent upon the government calling her sister,
Brittany, to testify, which did not happen. However, while the government did
indicate that it planned to call Brittany to testify, R2 at 147, 121, the record does
26
not show that Jakobsen’s testimony was in any way conditioned upon Brittany’s
testimony. Additionally, the government specifically stated that Jackobsen’s
testimony was for the purpose of establishing that Gomes had access to young girls
of whom he could take photographs. Id. at 111. Gomes’s argument is without
merit.
D. The District Court Properly Imposed Consecutive Sentences
We review a district court’s interpretation and application of the Sentencing
Guidelines de novo. United States v. Amedeo, 487 F.3d 823, 831 (11th Cir.), cert.
denied, 128 S. Ct. 671 (2007). Section 5G1.3(b) of the Sentencing Guidelines
provides that if
a term of imprisonment resulted from another offense that is relevant
conduct to the instant offense of conviction under the provisions of
subsections (a)(1), (a)(2), or (a)(3) of § 1B1.3 (Relevant Conduct) and
that was the basis for an increase in the offense level for the instant
offense under Chapter Two (Offense Conduct) or Chapter Three
(Adjustments), the sentence for the instant offense shall be imposed as
follows: . . . (2) the sentence for the instant offense shall be imposed
to run concurrently to the remainder of the undischarged term of
imprisonment.
U.S.S.G. 5G1.3(b). The application notes provide that subsection (b) “applies in
cases in which all of the prior offense (i) is relevant conduct to the instant offense
under the provision of subsection (a)(1), (a)(2), or (a)(3) of § 1B1.3 (Relevant
Conduct); and (ii) has resulted in an increase in the Chapter Two or Three offense
27
level for the instant offense.” U.S.S.G. § 5G1.3, comment. (n.2(A)). Subsection
(b) does not apply if the prior offense increased the offense level for the instant
offense, “but was not relevant conduct to the instant offense under § 1B1.3(a)(1),
(a)(2), or (a)(3).” U.S.S.G. § 5G1.3, comment. (n.2(B)).
Section 5G1.3(c) of the Sentencing Guidelines provides, “[i]n any other case
involving an undischarged term of imprisonment, the sentence for the instant
offense may be imposed to run concurrently, partially concurrently, or
consecutively to the prior undischarged term of imprisonment to achieve a
reasonable punishment for the instant offense.” U.S.S.G. § 5G1.3(c), p.s.
“Subsection (c) applies in cases in which the defendant was on . . . state probation
. . . at the time of the instant offense and has had such probation . . . revoked.”
U.S.S.G. § 5G1.3, comment. (n.3(C)).
“Relevant Conduct” includes (1) “all acts and omissions committed, aided,
abetted, counseled, commanded, induced, procured, or willfully caused by the
defendant . . . that occurred during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting to avoid detection or
responsibility for that offense,” U.S.S.G. § 1B1.3(a)(1); (2) “solely with respect to
offenses of a character for which § 3D1.2(d) would require grouping of multiple
counts, all acts and omissions described in subdivisions (1)(A) . . . that were part of
28
the same course of conduct or common scheme or plan as the offense of
conviction,” U.S.S.G. § 1B1.3(a)(2); and (3) “all harm that resulted from the acts
and omissions specified in subsections (a)(1) and (a)(2) above, and all harm that
was the object of such acts and omissions . . . .” U.S.S.G. § 1B1.3(a)(3).
Here, it is not disputed that Gomes’s prior state court conviction was the
basis for a five-level increase in his offense level for engaging in a pattern or
practice of sexual behavior which stemmed from his prior conviction, pursuant to
U.S.S.G. § 2G2.2(b)(5). The issue turns on whether his previous state conviction
constitutes “relevant conduct to the instant offense of conviction under the
provisions of subsections (a)(1), (a)(2), or (a)(3) of § 1B1.3.” U.S.S.G. § 5G1.3(b).
Gomes’s 2001 state conviction for lewd and lascivious assault on a child
under the age of 16 does not qualify as “relevant conduct” for his present crimes
because it did not involve (1) acts or omissions that occurred during, in preparation
for, or in avoiding detection for his offense of conviction, see U.S.S.G.
§ 1B1.3(a)(1); (2) acts or omissions that were part of the “same course of conduct
or common scheme or plan” as his present offense, see U.S.S.G. § 1B1.3(a)(2); nor
(3) harm resulting from or that was the object of such acts or omissions, see
U.S.S.G. § 1B1.3(a)(3). Consequently, though Gomes’s 2001 state conviction
increased his base offense level for his present offense, it did not constitute
29
“relevant conduct” for his present offense within the meaning of U.S.S.G.
§ 5G1.3(b). See U.S.S.G. § 2G2.2, comment. (n.1) (indicating that “pattern of
activity” in § 2G2.2(b)(5) encompasses two or more instances where the defendant
sexually abused or exploited a minor, whether or not it “(A) occurred during the
course of the offense; (B) involved the same minor; or (C) resulted in a conviction
for such conduct”); see also United States v. Anderton, 136 F.3d 747, 751 (11th
Cir. 1998) (per curiam) (holding that “pattern of activity” “clearly permits an
increased offense level for conduct unrelated to the offense of conviction”).
Gomes’s situation fits within the definition of § 5G1.3(c) because he was on
state probation when he committed the instant offenses, and that probation was
revoked. U.S.S.G. § 5G1.3, cmt. 3(C) (“Subsection (c) applies in cases in which
the defendant was on . . . state probation . . . at the time of the instant offense and
has had such probation . . . revoked”). Because Gomes’s 2001 state conviction did
not constitute “relevant conduct” for his present offense, the district court properly
ordered his sentence to run consecutively to his undischarged state sentence
pursuant to U.S.S.G. § 5G1.3(c).
III. CONCLUSION
Gomes challenges his convictions and sentences possessing child
pornography, receiving child pornography, and producing child pornography. The
30
district court properly admitted statements Gomes made to law enforcement agents
during non-custodial questioning and evidence seized pursuant to a lawful search
of Gomes’s residence which occurred after the agents had a reasonable suspicion
that Gomes possessed child pornography. During trial, the district court correctly
allowed Gomes’s step-daughter to testify regarding Gomes’s access to children and
Barnes to testify as an expert witness to identify the ages of persons depicted in
certain photographs. After Gomes was convicted, the district court properly
sentenced Gomes to serve consecutive terms because his actions resulting in a prior
conviction for lewd and lascivious assault on a minor did not involve “relevant
conduct” to his actions that led to the convictions in this case. Accordingly, we
affirm Gomes’s convictions and sentences.
AFFIRMED.
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