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United States v. McDonald

United States District Court, E.D. Missouri, Eastern Division

February 26, 2018

UNITED STAES OF AMERICA, Plaintiff,
v.
MICHAEL BRUCE McDONALD, Defendant,

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE

         This matter is before the Court on November 11, 2017 Report and Recommendation of Magistrate Judge Noelle C. Collins addressing Defendant's Motion to Dismiss Due to Unconstitutional Vagueness [Doc. No. 46], Motion to Suppress Physical Evidence and Statements [Doc. No. 47], Supplemental Motion to Suppress [Doc. No. 56], Supplemental Motion to Suppress Physical Evidence [Doc. No. 62], and the Government's responses. An evidentiary hearing was held July 27, 2017. Post hearing briefs were filed by both parties. Judge Collins recommends that the Motion to Dismiss Due to Unconstitutional Vagueness, the Motion to Suppress Physical Evidence and Statements, the Supplement to Motion to Suppress, and the Supplemental Motion to Suppress Physical Evidence be denied. Defendant filed a written objection to this recommendation, and the Government filed a written response to Defendant's objection to this recommendation.

         When a party objects to the magistrate judge's Report and Recommendation, the Court must conduct a de novo review of the portions of the report, findings, or recommendations to which the party objected. See United States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003) (citing 28 U.S.C. § 636(b)(1)). The Court has reviewed the entire record for this purpose, including the transcript of the hearing and all exhibits.

         Defendant's Motion to Dismiss Due to Unconstitutional Vagueness

         Defendant objects to the Recommendation's conclusion that Defendant's Motion to Dismiss Due to Unconstitutional Vagueness should be denied. Defendant is charged with transportation of child pornography in violation of 18 U.S.C. § 2252A(a)(1). He contends that the statute is void because the term “lascivious” in the statute's language is vague and not adequately defined. However, he fails to present any further authority for this position.

         Judge Collins set out the applicable Eighth Circuit and United States Supreme Court law with respect to the vagueness doctrine. She determined that, on its face, the term lascivious gives fair notice of the conduct prohibited to persons of average intelligence. There is no support for the argument that the statute authorized or encouraged discriminatory enforcement. Applying the law, lascivious conduct has been found to have definite legal meaning and is, thus, not a term vulnerable to unconstitutional wholly subjective judgement. Judge Collins thoroughly and correctly concluded that Defendant's Motion to Dismiss Due to Unconstitutional Vagueness should be denied. The objection is overruled.

         Defendant's Motion to Suppress Physical Evidence and Statements, Supplement to Motion to Suppress, and Supplemental Motion to Suppress Physical Evidence

         A. No. joint venture occurred between American and Filipino law enforcement

         Defendant objects to Judge Collins' finding that there was “no evidence to support Defendant's joint venture/agency claim.” In support of his agency claim, Defendant offered non-binding precedence from United States v. Barona, in. 56 F.3d 1087 (9th Cir. 1995). Defendant argues that a joint venture was carried out by both foreign and United States law enforcement and that the Fourth Amendment exclusionary rule applies to protect United States citizens from illegal search and seizures, even in foreign countries. If Defendant's assertion is valid, he can invoke Fourth Amendment protection in the extraterritorial search and the law of the foreign country must be consulted as part of the reasonableness determination of the search and seizure, a dispositive point in this analysis.

         Nothing presented by Defendant gives credence to his position that the law enforcement officers of the Philippines were agents of the United States. In Barona, the court clearly defined a Joint venture as a substantial investigation action between the United States and foreign officials. Further, in Barona a wiretap was conducted on foreign soil during a joint criminal investigation. See id at 1090-95; see also United States v. Stokes, 726 F.3d 880, 890-91 (7th Cir. 2013). These facts are distinguishable. Here, there was no “investigatory” aspect. The sovereign countries' agencies merely shared information to coordinate Defendant's deportation. The Philippine government was not involved in the FBI investigation of child pornography or the indictment by the federal grand jury in Saint Louis. Agent Atsatsang strictly adhered to the role of observer after supplying information to the Filipino police about Defendant's indictment and revocation of his passport. Moreover, the record is clear that the Philippine government involvement was voluntary, while the FBI had no law enforcement authority in the Philippines. Thus, consistent with the case law and because there was no joint venture/agency between the countries, “neither the Fourth Amendment nor the judicially created exclusionary rule applies to acts of foreign officials” in this case. United States v. LaChapelle, 869 F.2d 488, 489 (9th Cir. 1989). The objection is overruled.

         B. The Search and Seizure of Defendant's Suitcase Was Valid

         i. Warrantless Seizure of the Suitcase in the Philippines

         Defendant contests Judge Collins' conclusion that the Philippine government cannot be said to have seized his suitcase for evidence when officials facilitated his departure from Davao. He also contends that the suitcase was taken from his home without warrant, the FBI was aware what items were in the suitcase, and the FBI asked the Filipino law enforcement to remove those items specific to its investigation. Judge Collins thoroughly set out the applicable law; Defendant likewise acknowledges the Supreme Court has not addressed the issue of whether an extraterritorial search meets the warrant requirement or the more general reasonableness requirement of the Fourth Amendment. See In re Terrorist Bombings, 552 F.3d 157, 167, 171-74 (2d Cir. 2008).

         As discussed supra, the Fourth Amendment and its exclusionary rule generally do not apply to law enforcement activities of foreign authorities acting in their own country. United States v. Busic, 592 F.2d 13, 23 (2d Cir. 1978). An exception to the inapplicability of the exclusionary rule occurs if “the circumstance of the foreign search and seizure are so extreme that they ‘shock the judicial conscious, ' . . . requiring exclusion of the evidence.” LaChapelle at 489. This standard is meant to protect against conduct that violates fundamental, international norms of decency. United States v. Mitro, 880 ...


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