United States v. Hinkley , 803 F.3d 85 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14-1821
UNITED STATES OF AMERICA,
Appellee,
v.
DEREK HINKLEY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, U.S. District Judge]
Before
Torruella, Lynch, and Kayatta,
Circuit Judges.
James S. Hewes, for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.
September 30, 2015
LYNCH, Circuit Judge. In January 2014, Derek Hinkley
entered a conditional guilty plea to one count under federal law
of sexual exploitation of a minor. 18 U.S.C. § 2251(a). As
allowed by his plea agreement, he now appeals the district court's
denial of three motions to suppress. He also challenges his
sentence of 300 months of imprisonment. We affirm his conviction
and sentence.
I.
As to the motions to suppress, we recite the relevant facts
as found by the district court, consistent with record support.
United States v. Arnott, 758 F.3d 40, 41 (1st Cir. 2014). As to
the facts relevant to the sentencing appeal, we take the facts as
set forth in the plea colloquy, the unchallenged portions of the
presentence report, and the sentencing hearing. United States v.
Innarelli, 524 F.3d 286, 288 (1st Cir. 2008).
On July 17, 2012, Derek Hinkley invited two boys, ages 12 and
15 (Victim #1 and Victim #2 respectively), to spend the night at
his apartment, with their parents' permission. Both boys were
special education students who had known Hinkley for several
months. Hinkley had told them and their parents that he was
eighteen years old even though he was actually twenty-eight. On
the way to the apartment, Hinkley told the boys it was a "free
house" and that they could "walk around naked" if they wanted to.
At the apartment, Hinkley showed the boys his knife collection and
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threatened to cut off their penises if they did not watch
pornography and masturbate in front of him using an imitation-
vagina sex toy. The boys complied, and Hinkley used a webcam to
stream the image of Victim #2 masturbating on a social media site,
Omegle.
On July 19, 2012, police officers received a report from one
of the boys' parents. On the way to the victims' neighborhood to
investigate the matter, police detective Derrick St. Laurent
observed a man surrounded by a group of neighborhood children on
the sidewalk. St. Laurent approached the man "on a hunch," learned
that the man was Hinkley, and then asked him to come to the Lewiston
police station for an interview. The reason for asking Hinkley to
come to the station, St. Laurent testified, was that he prefers to
conduct interviews at the station so that the interviews can be
recorded. Hinkley transported himself to the police station for
the interview and waited in the lobby for St. Laurent to arrive.
Hinkley was then questioned by St. Laurent in an eight-by-twelve
foot, windowless room. At the outset of the interview, St. Laurent
told Hinkley that he was not in custody, asked him whether he would
mind if the door was closed, and reminded him of how to exit the
police station in the event of an emergency. Twenty-nine minutes
into the interview, St. Laurent told Hinkley that he was still
free to leave. Thirty-eight minutes into the interview, he told
Hinkley that he was no longer free to leave. At this point,
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Hinkley received Miranda warnings and signed a consent-to-search
form.
Relying on the consent-to-search form, the police then took
Hinkley to his apartment and in his presence seized, among other
things, a laptop computer and a sex toy. They found approximately
eighty images of child pornography in the laptop's internet cache
and also found browsing history showing the Omegle website being
accessed on July 18, 2012, at approximately 12:53 AM. The police
then transported Hinkley to Androscoggin Jail.
On July 20, 2012, Hinkley made further inculpatory admissions
during an interrogation at Androscoggin Jail. Before proceeding
with that interview, St. Laurent asked if Hinkley remembered the
Miranda warnings he was read the previous day. Hinkley answered
in the affirmative. St. Laurent nevertheless asked Hinkley whether
he wanted the warnings repeated. Hinkley answered in the negative.
As such, no new Miranda warnings were given.
On March 12, 2013, Hinkley was indicted on one count of sexual
exploitation of a child, in violation of 18 U.S.C. § 2251(a).
Hinkley filed motions to suppress three different pieces of
evidence: (1) statements he made to Detective St. Laurent at the
police station on July 19, 2012; (2) physical evidence seized
during a search of his apartment after the July 19, 2012,
interview; and (3) statements he made to St. Laurent at
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Androscoggin Jail on July 20, 2012. The district court denied all
three motions.
On January 30, 2014, Hinkley entered a conditional guilty
plea on one count of sexual exploitation of a minor. The plea
agreement reserved his right to appeal the denial of the three
motions to suppress.
The district court calculated Hinkley's guideline sentence
range as follows: The base offense level was 32, per U.S.S.G.
§ 2G2.1. His adjusted offense level was 42, after a two-level
enhancement due to the victims being between 12 and 16, a two-
level enhancement because the offense involved sexual contact, a
two-level enhancement for use of a laptop computer to disseminate
images of Victim #2 over the internet, a two-level enhancement
because the victims were in his care, and a two-level enhancement
for misrepresenting his age. He also received a five-level
enhancement for a pattern of activity involving prohibited sexual
contact and a three-level reduction for acceptance of
responsibility, yielding an offense level of 44. Because the
maximum offense level is 43, the total offense level was 43. While
the guideline sentence based on his offense level was life
imprisonment, the statutorily authorized maximum sentence is 360
months so the guideline range was considered to be 360 months.
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On July 28, 2014, Hinkley was sentenced to 300 months of
imprisonment, a life term of supervised release, and a $100 special
assessment. This appeal followed.
II.
In reviewing a denial of a motion to suppress, we review a
district court's legal conclusions de novo and findings of fact
for clear error. United States v. Fermin, 771 F.3d 71, 76–77 (1st
Cir. 2014). We uphold the denial of all three motions.
A. First Motion to Suppress
Hinkley argues that the statements he made during his July
19, 2012, interrogation at the Lewiston police station should be
suppressed, for two reasons: first, because he was in custody from
the beginning of the interview but did not receive Miranda warnings
until partway through, and second, because the Miranda warnings
that he was eventually given were inadequate. Neither argument
has merit.
Miranda warnings are required only when a person is being
interrogated while in custody. United States v. Crooker, 688 F.3d
1, 10-11 (1st Cir. 2012); see also Miranda v. Arizona, 384 U.S.
436, 444 (1966). A number of factors are relevant to determining
whether a person is in custody for Miranda purposes. These
include: where the questioning occurred, the number of law
enforcement officers present during questioning, the degree of
physical restraint, and the duration and character of the
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interrogation. Crooker, 688 F.3d at 11. The question is whether,
viewed objectively, those circumstances constitute the requisite
"restraint on freedom of movement of the degree associated with a
formal arrest." United States v. Hughes, 640 F.3d 428, 435 (1st
Cir. 2011) (quoting California v. Beheler, 463 U.S. 1121, 1125
(1983) (per curiam)).
Considering the circumstances, the district court did not err
in finding that Hinkley was not in custody at the outset of the
interview. Hinkley arrived at the police station voluntarily and
was never restrained. See United States v. Francois, 715 F.3d 21,
32 (1st Cir. 2013). He was interviewed by only one police officer.
He was told at the beginning of the interview and again twenty-
nine minutes into the interview that he was "free to leave." See
United States v. Infante, 701 F.3d 386, 396–97 (1st Cir. 2012).
The tone of the interviewing officer, as the district court noted,
was "generally one of frustration, not anger or aggression." See
Hughes, 640 F.3d at 437. The mere fact that the questioning took
place in a police station did not create a condition of custody.
See Oregon v. Mathiason, 429 U.S. 492, 493–95 (1977) (per curiam);
McCown v. Callahan, 726 F.2d 1, 5-6 (1st Cir. 1984). As such, the
fact that there were other police officers in the vicinity did not
create a condition of custody; that would be the case in any police
station interview. Nor was a condition of custody created by the
fact that St. Laurent persuaded Hinkley to talk by confronting him
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with inculpatory evidence. See Mathiason, 429 U.S. at 495–96.
Hinkley was not in custody at the outset of the interview and
Miranda warnings were not required until thirty-eight minutes into
the interview when the detective told Hinkley he was no longer
free to leave.
Hinkley argues that the Miranda warnings he was eventually
given were ineffective, for two reasons: first, because he never
waived his right to remain silent, and second, because he lacked
the capacity to make a valid waiver. As to the first argument,
Hinkley made a valid waiver by making uncoerced statements after
acknowledging that he understood his Miranda rights. See Berghuis
v. Thompkins, 560 U.S. 370, 384 (2010). In making the second
argument, Hinkley relies exclusively on expert testimony from his
defense psychologist, which he claims is evidence that his waiver
was involuntary. However, as the district court found, that expert
actually testified that Hinkley had average intelligence, and that
Hinkley had demonstrated average performance on a test
specifically designed to determine whether he could understand and
respond to Miranda warnings. Indeed, the transcript of the
interview attests to Hinkley's repeated attempts to resist St.
Laurent's increasingly aggressive questioning and his persistence
in avoiding a confession, even to the point of fashioning on-the-
fly exculpatory explanations for otherwise inculpatory facts. As
a result, the district court did not err in finding by a
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preponderance of the evidence that Hinkley knowingly and
intelligently waived his Miranda rights. See id.B. Second Motion to Suppress
Hinkley argues that physical evidence seized from his
apartment should be suppressed for two reasons: first, because it
was the fruit of an earlier Miranda violation, and second, because
the government failed to obtain valid consent to search. Neither
argument has merit.
There was no Miranda violation during the police station
interview, so the evidence was not "fruit of the poisonous tree."
Even if there had been a Miranda violation, failure to give
adequate Miranda warnings does not require suppression of the
physical fruits of those unwarned statements. United States v.
Patane, 542 U.S. 630, 634 (2004).
In arguing that the government failed to obtain valid consent
to search, Hinkley again points to his expert's report to argue
that he lacked the capacity to consent. To determine whether
consent was voluntary, we examine the totality of the
circumstances, which may include consideration of the defendant's
"age, education, experience, knowledge of the right to withhold
consent, and evidence of coercive tactics." United States v.
Chaney, 647 F.3d 401, 407 (1st Cir. 2011) (quoting United States
v. Marshall, 348 F.3d 281, 286 (1st Cir. 2003)). There was no
clear error in the district court's determination that,
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considering his age, demeanor, and intelligence, Hinkley was "not
so cowed that he was psychologically incapable of giving valid
consent." See United States v. Romain, 393 F.3d 63, 69 (1st Cir.
2004) ("[A] finding of voluntary consent (other than one based on
an erroneous legal standard) is reviewable only for clear
error . . . ."). Nor was Hinkley's voluntary consent negated by
the fact that it was secured by the detective's statement that the
apartment would be searched eventually, with or without his
consent. See United States v. Vázquez, 724 F.3d 15, 22-25 (1st
Cir. 2013) (holding that consent to search is not invalid where
procured by an officer's reasonable assessment that there would be
a legal search anyway).
C. Third Motion to Suppress
Hinkley argues that statements he made at Androscoggin Jail
on July 20, 2012, should be suppressed on the basis of inadequate
Miranda warnings. He argues that the detective was required to
readminister the full Miranda warnings rather than merely ask if
he recalled the previous day's warnings.
Miranda warnings need not be renewed every time there is a
break in questioning. Once an effective Miranda warning is
administered, those warnings remain effective until the passage of
time or an intervening event makes the defendant unable to fully
consider the effect of a waiver. See United States v. Pruden, 398
F.3d 241, 246–47 (3d Cir. 2005). We can presume that the defendant
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would remember the warnings even if some time has elapsed between
the warning and the questioning. See United States v. Edwards,
581 F.3d 604, 607–08 (7th Cir. 2009). Here, Hinkley acknowledged
less than twenty-four hours after the first set of warnings that
he remembered the warnings, remained familiar with them, and did
not need them repeated. There is no indication that the passage
of time was long enough to make Hinkley's second waiver
involuntary. See United States v. Nguyen, 608 F.3d 368, 375 (8th
Cir. 2010) (concluding that full-day break in questioning did not
make Miranda warnings ineffective); Pruden, 398 F.3d at 247(twenty-hour break in questioning); Guam v. Dela Pena, 72 F.3d
767, 770 (9th Cir. 1995) (fifteen-hour break in questioning).
III.
In reviewing the procedural soundness of sentencing, we
review questions of law de novo, factual findings for clear error,
and judgment calls for abuse of discretion. United States v.
Trinidad-Acosta, 773 F.3d 298, 308-09 (1st Cir. 2014). We review
substantive reasonableness for abuse of discretion. Id. at 309.
Hinkley challenges the application of three sentencing
enhancements and the substantive reasonableness of his sentence.
A. Five-Level Enhancement for Pattern of Activity
The district court applied a five-level enhancement pursuant
to U.S.S.G. § 4B1.5(b)(1) for a pattern of activity involving
prohibited sexual contact. In applying the enhancement, the
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district court relied on reports of inappropriate sexual contact
that allegedly occurred between Hinkley and Minor #11 from March
to June 2012. Hinkley argues that the anonymous allegations, which
were introduced through two written police reports and testimony
by the detective who investigated Minor #1's complaint, are
unreliable. He argues that the district court erred in considering
the allegations because the identity of Minor #1 was undisclosed,
Minor #1 could not be cross-examined, and Minor #1 was known to
have unspecified mental health issues.
Evidentiary requirements at the sentencing stage are
significantly less rigorous than they are at trial. As Hinkley
concedes, there is no Confrontation Clause right at sentencing.
United States v. Luciano, 414 F.3d 174, 179 (1st Cir. 2005). The
sentencing court has broad discretion to accept relevant
information without regard to its admissibility under the rules of
evidence applicable at trial, as long as it concludes that the
information has sufficient indicia of reliability. United States
v. Cintrón-Echautegui, 604 F.3d 1, 6 (1st Cir. 2010); see also
U.S.S.G. § 6A1.3(a). Even conduct that did not lead to a
conviction may be considered. U.S.S.G. § 4B1.5 cmt. 4(B)(ii).
1To avoid confusion, we note that the unnamed "Minor #1" is
an eleven-year-old who is a different person from either Victim #1
or Victim #2, who were the victims on July 17, 2012.
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Applying the deferential abuse of discretion standard to the
district court's determination of whether evidence was
sufficiently reliable for sentencing purposes, United States v.
Rodríguez, 731 F.3d 20, 31 (1st Cir. 2013), we find no error. The
district court found that it was reasonable to rely on the
experience of the detective who prepared the police reports. It
also found that certain details reported by Minor #1 made the
reports "almost self-authenticating": for example, Minor #1 knew
that Hinkley preferred to be called Ethan rather than Derek,
described Hinkley befriending him in much the same way that Hinkley
befriended Victims #1 and #2, and accurately recounted details of
Hinkley's apartment. See United States v. Mills, 710 F.3d 5, 16
(1st Cir. 2013) (finding that corroborated details in confidential
informants' statements supported district court's finding of
reliability).
B. Two-Level Enhancement for Misrepresentation of Identity
The district court applied a two-level enhancement pursuant
to U.S.S.G. § 2G2.1(b)(6)(A) for Hinkley's misrepresentation of
his identity for the purpose of producing and transmitting sexually
explicit material. While Hinkley admits that he misrepresented
his age, he argues that he should not have received the enhancement
because he did not misrepresent any other aspects of his identity.
As Hinkley's counsel conceded at oral argument, this argument
is foreclosed by the guideline application note, which explicitly
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includes misrepresentation of age as behavior that could trigger
this enhancement. U.S.S.G. § 2G2.1 cmt. 4(A). Record evidence
amply supports the district court's finding that Hinkley's
misrepresentation of his age as eighteen rather than twenty-eight
was instrumental to his gaining access to his victims, because it
made the minors and their parents put their guards down. See
United States v. Starr, 533 F.3d 985, 1002 (8th Cir. 2008).
C. Two-Level Enhancement for Sexual Contact
The district court applied a two-level enhancement under
U.S.S.G. § 2G2.1(b)(2)(A) for an offense involving the commission
of sexual contact. Hinkley argues that this enhancement does not
apply because he never touched the victim, and forced self-
masturbation by the victim does not fit the statutory definition
of sexual contact. See 18 U.S.C. § 2246(3); see also United States
v. Shafer, 573 F.3d 267, 272-78 (6th Cir. 2009).
We do not decide the merits of this issue because, as
Hinkley's counsel conceded at oral argument, any error in the
application of this enhancement was harmless. Even if this two-
level enhancement were removed, the guideline sentence would
remain unchanged.2 Therefore, "it is sure that the error did not
2
Hinkley's offense level was calculated at 44 and then
lowered to the maximum level of 43. Removing the two-level
enhancement would bring the offense level down to 42. The
guideline range for a first-time offender with an offense level of
43 is life imprisonment, as compared to 360 months to life for an
offense level of 42. Because both guideline ranges are higher
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affect the sentence imposed." United States v. Alphas, 785 F.3d
775, 780 (1st Cir. 2015) (citing Williams v. United States, 503
U.S. 193, 203 (1992)). Having affirmed the application of the
other challenged enhancements, we can say that any error in the
application of this two-level enhancement would have been
harmless.
D. Substantive Reasonableness
Hinkley argues that his sentence was unreasonable and that he
should have received a lower sentence in light of his lack of
criminal history, his own history of sexual abuse as a child, his
mental health diagnoses, and his vulnerability to being abused in
prison. We find no abuse of discretion by the district court,
which already took into account these considerations in imposing
a below-guidelines sentence.
IV.
For the reasons stated, we affirm.
than the statutory maximum penalty of 360 months, the guideline
range would be 360 months under either offense level.
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