United States v. SELJAN - Opinion ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-50236
Plaintiff-Appellee,
v.  D.C. No.
CR-03-00232-AHS
JOHN W. SELJAN,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Alicemarie H. Stotler, District Judge, Presiding
Submitted October 18, 2006*
Pasadena, California
Filed August 14, 2007
Before: Harry Pregerson, Ronald M. Gould, and
Richard R. Clifton, Circuit Judges.
Per Curiam Opinion;
Partial Concurrence and Partial Dissent by Judge Pregerson
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
9837
9840 UNITED STATES v. SELJAN
COUNSEL
Jerald Brainin, Los Angeles, California, for defendant-
appellant John W. Seljan.
Richard Y. Lee, Assistant United States Attorney, Santa Ana,
California, for plaintiff-appellee United States.
UNITED STATES v. SELJAN 9841
OPINION
PER CURIAM:
Defendant-Appellant John Seljan appeals his conviction
and sentence for multiple counts of attempting to travel in
interstate commerce to engage in illicit sexual conduct, using
interstate facilities to entice a minor into engaging in criminal
sexual activity, and possessing and producing child pornogra-
phy. Federal agents arrested Seljan after customs inspectors,
conducting routine searches at a regional hub for FedEx, dis-
covered sexually suggestive letters in internationally bound
packages sent by Seljan. Seljan appeals the district court’s
denial of his motion to suppress all evidence resulting from
those searches.
We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
I. FACTS AND PROCEDURAL HISTORY
FedEx routes international packages sent from Southern
California through the company’s regional hub in Oakland,
California. The Oakland facility is one of four FedEx regional
sorting facilities in the United States. At the facility, FedEx
sorts packages by destination and places all document-sized
packages bound for a particular country into locked contain-
ers. United States v. Seljan, 328 F. Supp. 2d 1077, 1079 (C.D.
Cal. 2004) (order denying motion to suppress). Next, FedEx
loads some containers bound for the Philippines directly on a
plane that departs from Oakland International Airport and
then lands across the bay at San Francisco International Air-
port. Id. Due to weight restrictions, FedEx transports other
Philippines-bound containers by land to San Francisco Inter-
national Airport. Id. Employees then load those containers
onto the same plane that arrived from Oakland. Id. The plane
then departs for Narita International Airport in Japan, with a
possible refueling stop in Anchorage, Alaska. Id.9842 UNITED STATES v. SELJAN
Seljan sent at least three FedEx packages to the Philippines
between November 20, 2002, and September 26, 2003. Id. at
1078. Affixed to each package was an international air way-
bill completed and signed by Seljan. Id. at 1079. A portion of
the form labeled “Required Signature” stated, “Use of this Air
Waybill constitutes your agreement to the Conditions of Con-
tract on the back of this Air Waybill.” These conditions
included the following provision: “Right to Inspect. Your
shipment may, at our option or at the request of governmental
authorities, be opened and inspected by us or such authorities
at any time.” Id. Seljan understood that the packages had to
“clear customs” before leaving the United States. Id.On November 21, 2002, U.S. Customs Service1 inspectors
searched packages bound for the Philippines as part of a cur-
rency interdiction operation2 at the FedEx regional sorting
facility in Oakland, California. Id. at 1079-80. Customs
Inspector Phil Oliva opened a package sent by Seljan. Inside
were return address labels for Seljan’s post office box and two
envelopes, the first of which contained a $100 bill in U.S. cur-
rency and a pamphlet for a hotel in Bangkok, and the second
of which contained a one-page letter and a 500 peso note in
Philippine currency. See id.; Rep.’s Tr. of Trial Proceedings
23 (Nov. 16, 2004). The letter contained sexually suggestive
language and appeared to be addressed to an eight-year-old girl.3
1
The Customs Service was reorganized as the Bureau of Customs and
Border Protection in 2003. See Homeland Security Act of 2002, Pub. L.
No. 107-296, § 1502, 116 Stat. 2135, 2308 (codified at 6 U.S.C. § 542);
Department of Homeland Security Reorganization Plan, H.R. Doc. No.
108-32 (2003).
2
Customs inspectors have authority under 31 U.S.C. § 5317(b) to
inspect packages at the border for violations of 31 U.S.C. § 5316, which
prohibits cross-border transportation of undeclared currency or monetary
instruments worth more than $10,000.
3
The letter reads as follows (grammar and spelling errors in original):
My Dear [redacted]:
I received your letter, but you did not date your letter. Yes,
Honey, I like little girls like you, but you did not send me a pic-
ture of your-self.
UNITED STATES v. SELJAN 9843
See Seljan, 328 F. Supp. 2d at 1079-80. After Inspector Oliva
notified his superiors, customs officials photocopied the pack-
age’s contents and allowed FedEx to deliver it. Id. at 1080.
Customs inspectors at the Oakland facility intercepted a
second package from Seljan on August 3, 2003. Id. This pack-
age contained approximately $200 in U.S. currency, adult
pornography, and two letters. This time, the two letters were
more sexually explicit than the November 2002 letter. One
letter appeared to be addressed to the same eight-year-old girl
as the previous letter, while the other letter was addressed to
another girl’s mother. Id. After opening the package and see-
ing the pornography and letters, Customs Inspector Shawn
Mohr alerted his supervisor, Inspector Tom LeBlanc, who
recognized Seljan’s name from the November 2002 search.
Again, the inspectors copied the contents and allowed FedEx
to deliver the package. Id.Andrew Vincik, a Special Agent of the Bureau of Immigra-
tion and Customs Enforcement (“ICE”), then began to investi-
I wonder who helped you write that letter to me. For only 8 yrs
old, you do have a very nice handwritting.
To-day we are sending a large box of many things for the whole
family. In that box is some candy and a special [indiscernible] of
Chocalate for you and it has your name on the box, so please let
me know that you received this box.
I’m not coming to Manila in December and I’m not sure when
I’ll be coming, But I’ll let you know the date for sure, Coz I do
want to see you, so please send me a picture of your-self in your
next letter. I know at your age that your “PEANUT” smells like
“SWEET” Roses. That box cantens lots of clothes and some
might fit you.
Here’s P500.00 for some extra things that you need.
Now, I’ll wait for your answer real soon.
Lots of Love & more.
Johnnie.
All the girls I know call me “JOHNNIE” that keeps me young.
9844 UNITED STATES v. SELJAN
gate Seljan. Id. After interviewing the property manager for
Seljan’s former residence as well as one of Seljan’s former
neighbors, Agent Vincik learned that Seljan had spoken of
traveling to the Philippines to “have sex with kids.” Id. Agent
Vincik determined that Seljan had traveled to the Philippines
forty-three times between 1992 and 2003. Id.On September 27, 2003, customs inspectors at the Oakland
facility searched a third FedEx package sent by Seljan and
addressed to someone in the Philippines. Id. This package
contained nine photocopied letters, $100 in U.S. currency,
non-pornographic photos of Seljan with minors, and adult
pornography. Id. at 1080-81. The letters described Seljan’s
desire to engage in sex acts with the children to whom the let-
ters were addressed. Id. Seljan had addressed one letter to the
recipient of the November 2002 letter. Id. This time, inspec-
tors copied the contents but withheld the package from deliv-
ery. Id. at 1081.
On October 3, 2003, Seljan arrived at Los Angeles Interna-
tional Airport and checked baggage for Philippines Air Flight
103, traveling to Manila. Id. ICE agents stopped Seljan before
he boarded the plane. Id. The agents searched his luggage,
discovering adult pornographic magazines, a child porno-
graphic book, letters written by Seljan, and fifty-two photo-
graphs of Seljan engaged in sex acts with Filipino children.
Id.Seljan signed a Miranda waiver and made several incrimi-
nating statements. Id. According to the agents, he said he had
been “sexually educating” children for about twenty years. He
also said the children’s ages ranged from eight to thirteen, and
that he intended to “sexually educate” children on the present
trip as well. After his arrest, customs agents executed a search
warrant at his residence and discovered adult pornography, a
fiction book about pedophilia and incest, a typewriter, and
various business and travel documents. Id.UNITED STATES v. SELJAN 9845
On July 28, 2004, a federal grand jury in the Central Dis-
trict of California returned a third superseding indictment
charging Seljan with one count of attempted travel with intent
to engage in illicit sexual conduct, a violation of 18 U.S.C.
§§ 2423(b) and (e); two counts of use of an interstate facility
to entice a minor to engage in criminal sexual acts, a violation
of 18 U.S.C. § 2422(b); two counts of production of child por-
nography, a violation of 18 U.S.C. § 2251(a); and two counts
of possession of child pornography, a violation of 18 U.S.C.
§ 2252A(a)(5)(B).
On February 2, 2004, Seljan filed a motion to suppress all
evidence discovered as a result of the searches of his FedEx
packages. He argued that the warrantless search of these pack-
ages did not fall under any exception to the Fourth Amend-
ment warrant requirement. At a minimum, he asserted, these
were “extended border searches” that must be supported by
reasonable suspicion. Seljan also contended that the scope of
the package searches was unreasonable.
Following an evidentiary hearing, the district court denied
Seljan’s motion to suppress. The district court held that
inspections at the Oakland facility were “tantamount to an
inspection at the international border.” Seljan, 328 F. Supp.
2d at 1083. In the alternative, the district court held that Sel-
jan had consented to these searches by agreeing to the condi-
tions on the air waybills, and that the scope and conduct of the
searches were reasonable. Id. at 1085
At the conclusion of a three-day bench trial, the district
court found Seljan guilty of all counts except one child por-
nography production charge. On March 28, 2005, the district
court imposed sentence. Citing the defendant’s age, the dis-
trict court gave sentence of 240 months—22 months lower
than the bottom of the applicable Guidelines range. The dis-
trict court also sentenced Seljan to a life term of supervised
release and a $600 assessment. When the district court
imposed sentence, Seljan was eighty-seven years old.
9846 UNITED STATES v. SELJAN
This timely appeal followed.
II. MOTION TO SUPPRESS
Seljan challenges the district court’s denial of his motion to
suppress all evidence discovered as a result of customs
inspections of the Philippines-bound packages he sent through
FedEx. Seljan focuses on the first search, which occurred on
November 21, 2002. He contends that the customs inspectors
violated his Fourth Amendment rights when they opened the
package and read the enclosed letter without reasonable suspi-
cion that opening the package or reading the letter would
reveal contraband or uncover evidence of criminal activity.
Seljan challenges the later searches as tainted fruits of this ini-
tial allegedly unlawful inspection.
The government offers two justifications for the November
2002 search. First, it defends the search as one occurring at
the functional equivalent of the international border, contend-
ing that the search was reasonable in scope and manner.4 Sec-
ond, the government claims that Seljan consented to the
search by signing the FedEx air waybill.5
We follow our holding in United States v. Abbouchi, ___
F.3d ___, No. 05-50962, 2007 WL 2027358 (9th Cir. 2007),
that customs searches at hubs like the Oakland FedEx
regional sorting facility take place at the functional equivalent
of the border. Abbouchi, at *2-*4.
4
A district court’s ruling on the legality of a border search is reviewed
de novo. United States v. Ani, 138 F.3d 390, 391 (9th Cir. 1998). A district
court’s findings of fact are reviewed for clear error. United States v.
Mendoza-Ortiz, 262 F.3d 882, 885 (9th Cir. 2001).
5
Because we hold that the border searches of the FedEx packages were
constitutionally valid, we do not review the district court’s alternative
ground for denying the motion to suppress that Seljan consented to the
searches by signing the airway bill that contained the Right to Inspect pro-
vision.
UNITED STATES v. SELJAN 9847
“The border search doctrine is a narrow exception to the
Fourth Amendment prohibition against warrantless searches
without probable cause.” United States v. Sutter, 340 F.3d
1022, 1025 (9th Cir. 2003). Under this doctrine, customs offi-
cials routinely conduct searches at the international border to
identify the illegal transportation of contraband or undeclared
articles across the border. See United States v. Alfonso, 759
F.2d 728, 737 (9th Cir. 1985). Such border searches are
grounded in the government’s right to protect the United
States’ territorial integrity by examining persons and property
entering and leaving the country,6 and “ ‘are reasonable sim-
ply by virtue of the fact that they occur at the border.’ ”
United States v. Flores-Montano, 541 U.S. 149, 152-53
(2004) (quoting United States v. Ramsey, 431 U.S. 606, 616
(1977)); see also United States v. Cortez-Rocha, 394 F.3d
1115, 1118-19 (9th Cir.), cert. denied, 126 S. Ct. 206 (2005).
As a consequence, searches at the international border require
neither a warrant nor individualized suspicion. See Sutter, 340
F.3d at 1025.
Even at the border or its functional equivalent, however,
the Fourth Amendment imposes some limits on governmental
authority. Searches at the border must still be reasonable in
scope and manner. See United States v. Duncan, 693 F.2d
971, 977 (9th Cir. 1982). We evaluate reasonableness by
examining three factors: “[t]he scope of the intrusion, the
manner of its conduct, and the justification for its initiation.”
Id.6
The border search standard applies equally to searches of persons or
property leaving the United States as to those entering the country. United
States v. Cardona, 769 F.2d 625, 629 (9th Cir. 1985) (“The fact that this
case involves an exit search does not alter our analysis. Since the border
search exception applies to exit searches, there is no principled basis to
conclude that the extended border search doctrine does not apply with
equal force to exit searches as it does to entry searches.”)
9848 UNITED STATES v. SELJAN
A. Justification for the Search
Seljan contends, based on 19 U.S.C. § 1583, that Inspector
Oliva’s opening of the sealed envelope inside the FedEx
package and his examination of the letter’s contents were
improper because Inspector Oliva had no reasonable suspi-
cion that the sealed envelope contained contraband.
[1] We reject Seljan’s theory that the inspection was con-
ducted under the authority of 19 U.S.C. § 1583, which
requires that customs officials have reasonable suspicion to
open sealed envelopes in outbound mail carried by the U.S.
Postal Service.7 The district court found that on November 21,
2002, customs inspectors were conducting an outbound cur-
rency interdiction operation targeting packages bound for the
Philippines to determine if the sender was exporting currency
in violation of 31 U.S.C. § 5316. See Seljan, 328 F. Supp. 2d
at 1079. These interdiction efforts are authorized under 31
U.S.C. § 5317(b), which provides that “a customs officer may
stop and search, at the border and without a search warrant,
any vehicle, vessel, aircraft, or other conveyance, any enve-
lope or other container, and any person entering or departing
from the United States.” Id. (emphasis added). Notwithstand-
ing the standard under 19 U.S.C. § 1583, § 5317(b) granted
separate and independent authority to Inspector Oliva to open
both envelopes contained in the FedEx package.
7
Section 1583 provides that customs officials at the border may conduct
a warrantless search of “mail of domestic origin transmitted for export by
the United States Postal Service and foreign mail transiting the United
States that is being imported or exported by the United States Postal Ser-
vice.” 19 U.S.C. § 1583(a)(1). The statute likewise permits outgoing mail
to be searched where the sender “has consented in writing.” Id. § 1583(b).
Customs officials may search “mail weighing in excess of 16 ounces
sealed against inspection under the postal laws and regulations of the
United States . . . if there is reasonable cause to suspect that such mail con-
tains” contraband, see id. § 1583(c)(1), with the limitation that no inspec-
tor “shall read, or authorize any other person to read, any correspondence
contained in mail sealed against inspection[,]” absent a search warrant or
express written consent for the reading. Id. § 1583(c)(2).
UNITED STATES v. SELJAN 9849
[2] Based on the record, the district court did not err in
finding the search was authorized under 31 U.S.C. § 5317,
and not 19 U.S.C. § 1583. Despite an unattributed “customs
report” cited by Seljan that the random package inspection
was conducted in part under 19 U.S.C. § 1583, Inspector
LeBlanc testified that neither he nor any member of his team
was involved in preparing such a report. See Rep.’s Tr. of
Trial Proceedings 52-53 (May 10, 2004). Inspector LeBlanc
also testified that he did not instruct his team during the
November 21, 2002 operation that their currency interdiction
inspections were authorized under 19 U.S.C. § 1583. See id.
at 53-55. This testimony is supported by the legal premise that
the import of section 1583 is irrelevant because of the distinct
grant of suspicionless search authority under 31 U.S.C.
§ 5317. Cf. Sutter, 340 F.3d at 1025 (The border search
exception is “codified at 19 U.S.C. §§ 1581 and 1582, [autho-
rizing] ‘routine searches of persons and their effects entering
the country [to] be conducted without any suspicion whatso-
ever.’ ”) (quoting United States v. Molina-Tarazon, 279 F.3d
709, 712 (9th Cir. 2002)); United States v. Pringle, 576 F.2d
1114, 1115-18 (5th Cir. 1978) (rejecting defendant’s conten-
tion that search of inbound package from Thailand required
“reasonable cause to suspect” unlawfulness under 19 U.S.C.
§ 482 where 19 U.S.C. § 1582 codified suspicionless search
of all mail at the border) (citing Ramsey, 431 U.S. at 616-25).
[3] Moreover, even if Inspector Oliva mistakenly believed
he was operating under 19 U.S.C. § 1583, a government offi-
cial’s subjective belief is immaterial to our Fourth Amend-
ment inquiry where the border search was grounded in the
objective authority under 31 U.S.C. § 5317. See Whren v.
United States, 517 U.S. 806, 813 (1996); United States v.
Lopez-Soto, 205 F.3d 1101, 1105 (9th Cir. 2000); United
States v. Bowhay, 992 F.2d 229, 231 (9th Cir. 1993) (“When
the police conduct would have been the same regardless of the
officer’s subjective state of mind, no purpose is served by
attempting to tease out the officer’s ‘true’ motivation.”).
9850 UNITED STATES v. SELJAN
[4] In evaluating the justification for the search here, we
stress that the government’s interest in protecting its territorial
integrity is at its “zenith” at the border, Flores-Montano, 541
U.S. at 152, and every Congress since the first one “has
granted the Executive plenary authority to conduct routine
searches and seizures at the border, without probable cause or
a warrant, in order to regulate the collection of duties and to
prevent the introduction of contraband into this country.”
United States v. Montoya de Hernandez, 473 U.S. 531, 537
(1985). In other words, the government’s justification for
broad search authority is its interest in regulating the flow of
persons and property across the border. A judicious scrutiny
of the search of the November 2002 package must consider
the extent to which the suspicionless inspection of Seljan’s
correspondence furthered the government’s interest in regulat-
ing the flow of persons and property across the border.
Viewed in this light, the justification for the search of the
FedEx package at the functional equivalent of the border is
strong.
B. Manner and Scope of the Search
Seljan argues that the search, regardless of its authorization,
was unreasonably intrusive in manner and scope because,
upon opening the FedEx package and examining the size and
appearance of the letter contained within the package, it
should have been clear, without having to read the letter’s
content, that the FedEx package contained no contraband
relating to undeclared currency.
[5] Under our precedents, we have considered only a lim-
ited number of distinct scenarios where we might invalidate
a border search under the Fourth Amendment’s reasonable-
ness command because of the highly intrusive manner or
scope of the search. In United States v. Vance, despite the bor-
der search context, we held that customs officials must have
“real suspicion” that a traveler is carrying contraband before
they may proceed beyond a pat-down or luggage search and
UNITED STATES v. SELJAN 9851
subject the traveler to a strip-search. 62 F.3d 1152, 1156 (9th
Cir. 1995) (finding sufficient predicate to undertake a strip
search where a traveler was returning from an unusually short
trip, showed external signs of intoxication, was wearing cloth-
ing inappropriate for the climate, and had a suspicious bulge
beneath his clothes); see also United States v. Ramos-Saenz,
36 F.3d 59, 61 (9th Cir. 1994) (concluding that a border
search goes beyond the routine “only when it reaches the
degree of intrusiveness present in a strip search or body cavity
search”). In Alfonso, we held that “in the context of a border
search, the search of private living quarters on a ship should
require something more than naked suspicion.” 759 F.2d at
738 (concluding that other evidence of drug shipments aboard
vessel sufficed to justify search). In the context of vehicle
searches, we have accepted the possibility that a search could
conceivably be so destructive that it would exceed its reason-
able scope. See, e.g., United States v. Hernandez, 424 F.3d
1056, 1059 (9th Cir. 2005) (dismantling internal car door pan-
els not excessively destructive as to be unreasonable); United
States v. Chaudhry, 424 F.3d 1051, 1053 (9th Cir. 2005), cert.
denied, 126 S. Ct. (2006) (concluding that exploratory drilling
during suspicionless vehicle search at the border was done in
reasonable manner where a “single 5/16-inch hole [was]
drilled in the bed of a pickup truck”). Finally, we have also
considered the question of whether a prolonged detention pur-
suant to a suspicionless border search might be unreasonable.
See United States v. Gonzalez-Rincon, 36 F.3d 859, 861, 863-
64 (9th Cir. 1994) (holding that scope of border search was
reasonable where nervous defendant arriving from Colombia
was detained for several hours to monitor for bowel move-
ments before she expelled seventy-three balloons containing
cocaine).
[6] We do not conclude that the scope or manner of the cus-
toms inspection here falls into the limited category of overly
intrusive searches at the border. The customs official could
ascertain by a glance that evidence of pedophilia was present
in personal correspondence enclosed in a FedEx package that
9852 UNITED STATES v. SELJAN
could be lawfully inspected. In conducting the suspicionless
search under 31 U.S.C. § 5317(b), customs officials were
authorized to open “any envelope.” In addition, Inspector
LeBlanc, Supervisory Customs Inspector and team leader dur-
ing the operation, stated that “[i]n inspecting [outbound]
packages, Customs inspectors adopt a two-tier approach.
First, they scan, not read, any documents. If something during
their scan gives them reasonable suspicion to suspect a viola-
tion of the law, the inspectors give a closer inspection to the
contents of the package.” Decl. Tom LeBlanc, Ex. to Gov.
Opp. to Mot. to Suppress. This “scanning” protocol, not
required under § 5317(b), provided a second layer of protec-
tion against over-intrusive searches.
[7] During the course of this inspection, Inspector Oliva
testified that he adhered to the scanning protocol when
inspecting Seljan’s FedEx package and the second enclosed
envelope:
A: . . . I opened up the second letter, and I scanned
the letter that was in the second envelope.
Q: Did you notice anything during your scan?
A: I was reading as I was scanning. I caught a cou-
ple of sentences on there, something about an
eight-year-old girl, something about “I love
you,” and there was a final sentence at the bot-
tom stating that . . .
....
. . . “little girl’s peanuts smells like roses,” and
at that time I reread the letter thoroughly to
understand what the letter was saying.
Rep.’s Tr. of Trial Proceedings 23, 25 (Nov. 16, 2004).
Inspector Oliva’s method of “scanning,” even though it
UNITED STATES v. SELJAN 9853
included reading a few words by necessity, was reasonable
under the Fourth Amendment. In contrast to the limitation on
reading correspondence under 19 U.S.C. § 1583(c)(2), there is
no similar prohibition under 31 U.S.C. § 5317(b), which
authorized the search.
[8] More significantly, we cannot reasonably expect cus-
toms officials like Inspector Oliva wholly to abandon their
sensory faculties when conducting inspections under the ple-
nary authority of a border search. On the facts here, Inspector
Oliva did not act contrary to objective reasonableness.
Although he was checking for compliance with currency dec-
laration requirements under 31 U.S.C. § 5316, according to
his testimony, no more than a glance was necessary to detect
evidence of pedophilia. This testimony is not surprising
because the letter in the first paragraph unabashedly
announces its author’s illegal proclivities: “Yes, Honey, I like
little girls like you.” We refuse to impose an unworkable and
unreasonable constraint on the nation’s customs officials by
requiring that they avert their eyes from obvious unlawfulness.8
We find support for our conclusion from our precedents
involving the plain view doctrine. “An example of the appli-
cability of the ‘plain view’ doctrine is the situation in which
the police have a warrant to search a given area for specified
objects, and in the course of the search come across some
other article of incriminating character.” Coolidge v. New
8
In a different context, it is not difficult to imagine that such an impru-
dent constraint could have disastrous consequences: To avoid detection, a
terrorist could simply enclose in a separate sealed envelope within the
FedEx package plans for an explosive device, instructions for an attack,
the chemical formula for some form of poison, or any other type of docu-
ment that could, under Seljan’s proposed rule, qualify as unsearchable.
Not only is such a rule unsupported under the law, it is unwise. See
Cortez-Rocha, 394 F.3d at 1123-24 (underscoring “importance of our
policing borders . . . which at this juncture in our history is surely a press-
ing national special need” in view of the findings of the 9/11 Commission
on terrorist travel) (internal quotation marks omitted).
9854 UNITED STATES v. SELJAN
Hampshire, 403 U.S. 443, 465 (1971) (plurality opinion),
abrogated on other grounds as recognized by United States v.
Ewain, 88 F.3d 689, 693 (9th Cir. 1996). In United States v.
Bulacan, we observed that warrantless seizures are constitu-
tional under the plain view doctrine in situations where “the
incriminating nature of the object must be immediately appar-
ent and the officer must ‘have a lawful right of access to the
object itself.’ ” 156 F.3d 963, 968 (9th Cir. 1998) (quoting
Horton v. California, 496 U.S. 128, 137 (1990)). In that case
we noted that “[t]he initial intrusion can be justified by a war-
rant or by one of the recognized exceptions of the warrant
requirement.” Id. (emphasis added); see also Coolidge, 403
U.S. at 465 (“Where the initial intrusion that brings the police
within plain view of such an article is supported, not by a
warrant, but by one of the recognized exceptions to the war-
rant requirement, the seizure is also legitimate.”). In Bulacan,
we held a regulation authorizing administrative searches at the
entrance of a federal building, premised on protecting the
safety of its occupants, to be unconstitutional because it was
applied to not only weapons and explosives, but also narcot-
ics, alcohol and gambling devices. Id. at 967, 973-74. Because
narcotics, alcohol and gambling devices posed no immediate
threat to the building’s occupants, the officer’s initial search
of the defendant’s bag under the regulation that resulted in the
seizure of narcotics and drug paraphernalia was invalid. See
id. at 973-74. Because the search was not legitimately initi-
ated, the Bulacan court concluded that the plain view doctrine
was inapplicable. See id. at 968-69, 973-74.
Significantly, in Bulacan, we distinguished our invalidation
of a dual-purpose administrative search from United States v.
Soto-Camacho, 58 F.3d 408 (9th Cir. 1995), and United
States v. Watson, 678 F.2d 765 (9th Cir. 1982), both of which
involved constitutional suspicionless administrative searches
that featured a secondary rationale to monitor criminal activ-
ity. In Watson, marijuana was discovered when the U.S. Coast
Guard was conducting an administrative search of the Globe
Trotter, a vessel that fell within the parameters of an adminis-
UNITED STATES v. SELJAN 9855
trative plan that permitted Coast Guard personnel “to board
and inspect all United States vessels less than 200 feet in
length found in specific windows or corridors located at
established points in the Pacific.” See 678 F.2d at 766. The
sole purpose of the search in accordance with this administra-
tive plan was to inspect for compliance with document and
safety regulations; yet the government conceded that the
search was also conducted “to attempt to interdict the flow of
marijuana.” Id. at 766, 769 (internal quotation marks omitted).
The Watson court rejected defendants’ dual motive argument
—that the random search was also motivated by criminal law
enforcement concerns and thus the Coast Guard required a
search predicate—because “the stop and search had an inde-
pendent administrative justification, and did not exceed in
scope what was permissible under that administrative justifi-
cation.” Id. at 771.
In Soto-Camacho, the defendant challenged the admissibil-
ity of drugs seized pursuant to an administrative search con-
ducted at a border checkpoint whose primary purpose was to
prevent the flow of undocumented immigrants into the United
States, yet where the border patrol timed the activation of the
checkpoint based in part on intelligence regarding the move-
ment of drugs. Id. at 410-11. As in Watson, the search was
legitimate at the outset because it had independent justifica-
tion and “ ‘did not exceed in scope what was permissible
under that administrative justification.’ ” Id. at 412 (quoting
Watson, 678 F.2d at 771). Our decision in Bulacan was com-
pelled to distinguish these cases, see 156 F.3d at 971-73,
because they provided examples of suspicionless searches that
were validly initiated such that narcotics contraband discov-
ered incidental to the main purpose of the administrative
search could not be suppressed.9
9
Bulacan distinguished Watson and Soto-Camacho by focusing on the
fact that both of those cases dealt with the border context, while Bulacan
did not. Bulacan, 156 F.3d at 971-73. That distinction cannot, of course,
be drawn here.
9856 UNITED STATES v. SELJAN
In light of this authority, we hold that Inspector Oliva’s
search of the letter inside the second envelope was not unrea-
sonably intrusive in terms of its scope. Like the searches in
Watson and Soto-Camacho, Inspector Oliva was authorized to
open the FedEx package and “any” particular envelopes con-
tained within. See 31 U.S.C. § 5317(b). This statutory author-
ity provided the basis for Inspector Oliva to have a “lawful
right of access to the object” to be searched, i.e. the FedEx
package and all the enclosed contents. See Horton, 496 U.S.
at 137. In determining the subject matter of the letter, Inspec-
tor Oliva appropriately scanned the document and could not
have avoided noticing the “immediately apparent” evidence
of pedophilia. See Bulacan, 156 F.3d at 968. Thus the manner
of the search, too, was not unreasonable.
That the letter contained Seljan’s intimate and illicit
thoughts is of little significance since Seljan has only a very
limited expectation of privacy during a border search. See
Flores-Montano, 541 U.S. at 154 (noting that “the expectation
of privacy is less at the border than it is in the interior”); Ram-
sey, 431 U.S. at 623 n.17 (“Not only is there the longstanding,
constitutionally authorized right of customs officials to search
incoming persons and goods, . . . there is no statutorily cre-
ated expectation of privacy[.]”); Bulacan, 156 F.3d at 973(“The Government’s interests in preventing the entry of con-
traband at the border is substantial, and the protections of the
Fourth Amendment are weakened.”) (citing Watson, 678 F.2d
765, and Soto-Camacho, 58 F.3d 408). In the context of a bor-
der search, moreover, we do not draw an artificial line at the
sealed envelope within a package. See Montoya de Her-
nandez, 473 U.S. at 537 (recognizing that customs authorities
have “plenary authority” to execute searches to interdict con-
traband); Ramsey, 431 U.S. at 619-20 (rejecting lower court’s
theory that suspicionless search authority does not extend
from travelers’ luggage and sent packages to “mailed letter-
sized envelopes”) (internal quotation marks omitted).
The scope and manner of the search of the letter was con-
strained, as the letter had to be scanned when the package was
UNITED STATES v. SELJAN 9857
opened, and the evidence of pedophilia presented itself. The
review of the FedEx package’s contents is nothing like an
intrusive body search or the dismantling of a car. The search
of the FedEx package was reasonable in manner and scope.
[9] We conclude that the district court did not err in finding
that the initial search here was reasonable. The unmistakable
evidence of pedophilia, which fell within the plain view of
Inspector Oliva, permitted him to ascertain the full import of
the letter and, in a temporary seizure, to bring the package’s
contents to the attention of his superior, Inspector LeBlanc,
who in turn properly documented the contraband and the
identity of Seljan.
III. SENTENCING
We turn to the sentencing issues raised by Seljan.
Seljan appeals several aspects of his 240-month sentence.
He first challenges the Presentence Report’s recommendation
that several counts of the indictment be added up individually
rather than grouped for purposes of calculating the “Multiple
Count Adjustment.” Seljan also claims the district court did
not adequately consider his advanced age when imposing sen-
tence. Finally, Seljan contends that the district court gave
undue weight to his past sexual abuse conviction, thereby ele-
vating his criminal history category. We conclude that none
of these contentions warrants resentencing.10
10
Seljan’s ultimate sentence is reviewed for “reasonableness.” United
States v. Booker, 543 U.S. 220, 261 (2005). We review the district court’s
interpretation of the Sentencing Guidelines de novo, the district court’s
application of the Sentencing Guidelines to the facts of a case for an abuse
of discretion, and the district court’s factual findings for clear error. See
United States v. Kimbrew, 406 F.3d 1149, 1151 (2005).
9858 UNITED STATES v. SELJAN
A. Grouping of Counts
Seljan contends that the district court failed to group the
charges in Count One (attempted travel with intent to engage
in illicit sexual conduct with a minor) and Counts Two and
Three (using a facility of interstate and foreign commerce to
entice a minor to engage in sexual activity). The district court
declined to group these offenses because it concluded that the
counts involved different victims with different ages.11
Seljan’s claim that some grouping is appropriate may be
correct. United States Sentencing Guidelines Manual
(“U.S.S.G.”) section 3D1.2 provides that counts that “involve
the same victim and two or more acts or transactions con-
nected by a common criminal objective or constituting part of
a common scheme or plan” may be grouped. U.S.S.G.
§ 3D1.2(b) (2002). Count One alleges attempted travel with
intent to engage in criminal sexual activity with victims “Em
Em” and “Janel.” Count Two alleges use of facilities of inter-
state and foreign commerce to entice victim “Em Em” into
sexual activity, and Count Three alleges enticement of victim
“Janel.” Thus, Counts One and Two share a common victim,
and Counts One and Three share a different common victim.
Seljan’s attempted travel to the Philippines (alleged in
Count One) and the packages sent to the victims seeking to
entice them into illicit sexual activity (alleged in Counts Two
and Three) arguably involve the same composite harm to each
minor victim and are connected by a common criminal objec-
tive or plan. See U.S.S.G. § 3D1.2 cmt. n.4. Thus, it may be
appropriate to combine the three counts into two groups: one
for the conduct against the victim common to Counts One and
11
Sentencing Guidelines Manual section 3D1.4 accounts for multiple
offenses at sentencing by imposing an offense level enhancement, the size
of which depends on a weighted sum of grouped counts and individual
counts. See U.S.S.G. § 3D1.4.
UNITED STATES v. SELJAN 9859
Two, and the other for conduct against the victim common to
Counts One and Three.12
[10] Even if Seljan is correct, however, he is not entitled to
relief. Assuming the first three counts should be consolidated
into two groups for purposes of applying U.S.S.G. § 3D1.4,
this is only a net reduction of one unit. With one unit for
Counts Six and Seven (which were grouped below) and
another for Count Four, the total units for purposes of apply-
ing section 3D1.4 is four. This would still result in a four-
level increase in offense level, the same amount imposed by
the district court. See § 3D1.4 (prescribing a four-level
increase for three-and-a-half to five units). Any error by the
district court was harmless.
B. Advanced Age
[11] Seljan argues that the district court did not adequately
consider his advanced age. This argument is meritless. The
district court acknowledged that his age and health reduced
the likelihood of recidivism and addressed Seljan’s concern
that the sentence was tantamount to life imprisonment. The
district court even considered the sentence that a defendant
without a prior conviction would receive. Indeed, the district
court’s sentence was twenty-two months below the low end
of the Guidelines range. Seljan argues only that the reduction
should have been even greater. On this record, however, the
district court’s sentence was reasonable.
C. Effect of Seljan’s Prior Conviction
Finally, Seljan argues that the district court gave too much
12
It does not matter that the government failed to separate the allega-
tions in Count One, which names two victims, into two separate counts.
See United States v. Calozza, 125 F.3d 687, 689-90 (9th Cir. 1997) (hold-
ing that the purpose of the grouping provisions is to prevent prosecutors
from enhancing sentences by manipulating the counts charged).
9860 UNITED STATES v. SELJAN
weight to the Guidelines by applying a criminal history cate-
gory of V pursuant to Guidelines section 4B1.5(a)(2), which
provides for sentencing of “[r]epeat and [d]angerous [s]ex
[o]ffender[s] [a]gainst [m]inors.”
[12] No party seriously disputes that Seljan’s 1977 Wiscon-
sin conviction qualifies as a “sex offense conviction” under
section 4B1.5. Rather, Seljan argues that because criminal
history is primarily relevant as an indicator of future recidi-
vism, the district court should have disregarded the elevated
criminal history category in light of his age and low actual
likelihood of recidivism. If, however, the district court had
simply disregarded the prescription of section 4B1.5, it would
have violated our rule that the district court properly calculate
the Guidelines range before deciding whether such a sentence
is reasonable. See United States v. Cantrell, 433 F.3d 1269,
1280 (9th Cir. 2006). Moreover, the court did consider the
impact of Seljan’s age on his likelihood of recidivism, and
adjusted the sentence accordingly. Nothing in the record com-
pels us to tinker any further.
IV. CONCLUSION
[13] We hold that customs officials acting under authority
of 31 U.S.C. § 5317(b) may search the full contents of any
package, container or other object to be searched, even if that
package, container or other object serves to enclose smaller
envelopes or other wrapped or sealed objects. Where personal
correspondence or other documents indicate evidence of con-
traband or other criminal activity that is immediately apparent
to the inspecting official, those items too may be searched
even though said evidence may not relate to the interdiction
of undeclared currency. To unreasonably constrain customs
operations from searching and seizing obviously incriminat-
ing materials would be inconsistent with our jurisprudence
under the plain view doctrine.
For the reasons stated, we also hold that the district court’s
sentence was reasonable.
UNITED STATES v. SELJAN 9861
AFFIRMED.
PREGERSON, Circuit Judge, concurring in part and dissent-
ing in part:
I join Parts I and III of the per curiam opinion, and I agree
that the searches at issue took place at the functional equiva-
lent of the border. I disagree, however, with Part II of the
opinion, which upholds the suspicionless search of Seljan’s
FedEx packages. I do not believe that the Fourth Amendment
permits federal customs inspectors acting without reasonable
suspicion to read what is obviously a person’s letters or
papers merely because the inspector finds those items in a
package destined to cross the U.S. international border.
The Fourth Amendment protects “the right of the people to
be secure in their persons, houses, papers, and effects.” U.S.
Const. amend. IV (emphasis added). The border search doc-
trine is a narrow exception the Fourth Amendment prohibition
against warrantless searches without probable cause.” United
States v. Sutter, 340 F.3d 1022, 1025 (9th Cir. 2003). How-
ever, although “the expectation of privacy is less at the border
than it is in the interior,” United States v. Flores-Montano,
541 U.S. 149, 154 (2004), privacy is not extinguished
entirely.
Any rule allowing government officials to read private
papers without individualized suspicion risks serious intru-
sions on privacy. People send many types of documents
through FedEx and other express consignment services: dia-
ries, letters, materials protected by the attorney-client and
attorney work-product privileges, trade secrets, medical
records, and financial records. Cf. United States v. Arnold,
454 F. Supp. 2d 999, 1003-04 (C.D. Cal. 2006). The mere fact
that these items cross an international border does not give
customs officials absolute license to read their contents.
9862 UNITED STATES v. SELJAN
The majority’s position subjects letters enclosed in FedEx
packages with foreign destinations to examination even
though they would be shielded from government review if the
recipients lived in the United States. A woman in Los Angeles
could send without fear of government snooping a letter to a
friend in Boston, but not to her mother in Mexico City. Suspi-
cionless searches of documents sent to and from attorneys
also raise troubling issues. Many materials sent through
FedEx contain confidential client information or are protected
by the work-product and attorney-client privileges. By send-
ing a package containing client files to Canada, does an attor-
ney waive these privileges?
The majority would uphold the search of Seljan’s FedEx
packages because the letter was within the customs inspec-
tor’s plain view. Maj. Op. at 9853. But looking at a piece of
paper is not the same as reading its contents. Moreover, I dis-
agree with the majority’s assessment that the criminality of
the letter was “immediately apparent.” Maj. Op. at 9854,
9856. Only by reading individual lines carefully can a reader
find any hint of wrongdoing or base intentions.1
What was immediately apparent is that the paper was per-
sonal correspondence. It was formatted like an informal letter
and displayed a large cartoon character. Inspector Oliva, at a
glance, could determine that the paper before him was a letter
rather than contraband or a dutiable article. At that point, he
should have put the letter back in its envelope. Whether we
label what Oliva did next as “reading” or “scanning” — and
Oliva uses both labels (in the same sentence, no less) to
describe his actions — the conclusion is the same: Oliva’s
inspection impermissibly invaded Seljan’s privacy.
The majority invokes the specter of terrorism to support its
position. See Maj. Op. at 9853 n.8. This argument is under-
mined by the availability of another means by which terrorists
1
On this point the letter speaks for itself. See Appendix A.
UNITED STATES v. SELJAN 9863
might transport dangerous documents — the U.S. Postal Ser-
vice. For letters sent through the U.S. Postal Service, customs
regulations require either written consent or a search warrant
to open letters that appear to contain only correspondence. See
19 C.F.R. § 145.3(b). Even when sealed mail appears to con-
tain more than correspondence, customs inspectors must have
reasonable cause to open a package sent through the U.S.
Postal Service. See id. § 145.3(a). After customs inspectors
open a package under these regulations, they must always
have a search warrant or written authorization from the sender
to read any enclosed correspondence. See id. § 145.3(c). In
short, federal regulations for U.S. mail already impose a stan-
dard more stringent than what the majority today deems an
“unworkable and unreasonable constraint” on customs offi-
cials.
I do not suggest that the government may never search arti-
cles found in international packages. Rather, I would hold that
the government must have reasonable suspicion that papers in
a package constitute contraband or evidence of wrongdoing
before officers may read the contents of those papers. Nothing
prevents the government from seizing what immediately
appears on its face to be child pornography or terrorist bomb-
ing plans, for example. See United States v. Abbouchi, No.
05-50962, ___ F.3d ___, 2007 WL 2027358, at *1-*4 (9th
Cir. 2007) (upholding seizure of what customs inspectors
searching a UPS package could immediately determine to be
potentially fraudulent social security and resident alien cards).
For the foregoing reasons, I respectfully dissent.