United States v. Akeem Gumbs

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 12-3630
__________
UNITED STATES OF AMERICA
v.
AKEEM R. GUMBS,
Appellant
__________
On Appeal from the District Court of the Virgin Islands
(D.C. No. 3-11-cr-00021-001)
District Judge: Honorable Curtis V. Gomez
ARGUED DECEMBER 10, 2013
BEFORE: FISHER, COWEN, and NYGAARD, Circuit Judges
(Filed: March 28, 2014)
Gabriel J. Villegas, Esq. [Argued]
Office of Federal Public Defender
P.O. Box 1327, 51B Kongens Gade
St. Thomas, VI 00804
Counsel for Appellant
Everard E. Potter, I, Esq. [Argued]
Office of United States Attorney
5500 Veterans Building, Suite 260
United States Courthouse
St. Thomas, VI 00802-6924
Counsel for Appellee
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OPINION OF THE COURT
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PER CURIAM.
Appellant Akeem R. Gumbs was indicted on 31 counts related to the production
and possession of child pornography and the aggravated rape of his eight-year-old niece.
At a suppression hearing, Gumbs challenged the propriety of the search warrant, seeking
to exclude the fruits of the search (laptop computer, camera, etc.) from evidence. The
District Court denied his motion. The case went to trial in February of 2012 and Gumbs
was found guilty on all 31 counts.1 Gumbs was sentenced to 300 months’ imprisonment
and a lifetime term of supervised release. He has timely appealed, raising three issues, all
of which are meritless.2
I.
In March of 2011, Virgin Islands Police Officer Steven Payne was contacted by a
computer technician, “A.A.” A.A. reported that he found child pornography on a client’s
computer, which appeared to depict an adult male having sexual intercourse and
engaging in other sexual acts with a minor female. A.A. made a DVD copy of those
depictions and provided the DVD to Officer Payne.
1
Due to some irregularities with the verdict form, the District Court later granted Gumbs
a judgment of acquittal on Counts 7, 29 and 30. The Government did not object.
2
The District Court had jurisdiction pursuant to 48 U.S.C. § 1612 and 18 U.S.C.
§ 3231. We have jurisdiction pursuant to 28 U.S.C. 1291.
2
Through subsequent investigation, Officer Payne learned the identity of the minor
female, a fourth-grade student at a local elementary school. He interviewed her and,
later, her brother, who identified the adult appearing in the depictions as Gumbs.
Law enforcement officials thereafter obtained a copy of Gumbs’s driver’s license,
and used the picture appearing on that license to corroborate the brother’s identification
of Gumbs. Thus, on March 19, 2011, law enforcement officials applied for and received
an arrest warrant for Gumbs and a search warrant for his home. An attachment to the
search warrant provided that the items to be seized from Gumbs’s residence included:
1. Images of child pornography and files containing images of child
pornography in any form wherever it may be stored or found including, but
not limited to:
a. any computer, computer system and related peripherals;
tapes, cassettes, cartridges, streaming tape, commercial
software and hardware, computer disks, disk drives, monitors,
computer printers, modems, tape drives, disk application
programs, data disks, system disk operating systems,
magnetic media floppy disks, hardware and software
operating manuals, tape systems and hard drive and other
computer related operation equipment, digital cameras and
memory cards, scanners, computer photographs, Graphic
Interchange formats and/or photographs, undeveloped
photographic film, slides, and other visual depictions of such
Graphic Interchange formats (including, but not limited to,
JPG, GIF, TIF, AVI, and MPEG), and any electronic data
storage devices including, but not limited to hardware,
software, diskettes, backup tapes, CD-ROMS, DVD, Flash
memory devices, and other storage mediums; any
input/output peripheral devices, including but not limited to
passwords, data security devices and related documentation,
and any hardware/software manuals related to or used to:
visually depict child pornography; contain information
3
pertaining to the interest in child pornography; and/or possess
child pornography, or information pertaining to an interest in
child pornography . . .
(App. 57.)
Pursuant to those warrants, law enforcement officials arrested Gumbs and seized
several items, including an empty camera box and jump drive, from his home.3 They
later found that the jump drive contained the same images that A.A. provided to Officer
Payne. Subsequently, the Government charged Gumbs with five counts of production of
child pornography, one count of possession of child pornography, and twenty-five counts
of aggravated rape in the first degree. He was tried and convicted on twenty-eight of the
thirty-one counts in the District Court of the Virgin Islands.4
II.
Before trial, Gumbs moved to suppress the physical evidence obtained from
his home, arguing, in pertinent part, that the search warrant was an impermissible general
warrant. He has renewed the argument on appeal.
“On appeal from the denial of a motion to suppress, we review a district court’s
factual findings for clear error, and we exercise de novo review over its application of the
3
“Jump drives, also known as thumb drives or flash drives, are portable computer
data storage devices.” United States v. Miles, No. 10-279-2, 2010 WL 2991737, at *1
(E.D. Pa. July 29, 2010); see also Stokes v. State, No. A-11382, 2013 WL 2295424, at *1
(Alaska Ct. App. May 22, 2013) (noting that “a portable electronic storage device” is
“popularly known as a computer thumb drive, flash drive, or jump drive”).
4
The District Court had jurisdiction pursuant to 48 U.S.C. § 1612 and 18 U.S.C.
§ 3231. We have jurisdiction pursuant to 28 U.S.C. 1291.
4
law to those factual findings.” United States v. Pavulak, 700 F.3d 651, 660 (3d Cir.
2012), cert. denied, 133 S. Ct. 2047 (2013). The Fourth Amendment of the United States
Constitution prohibits the issuance of general warrants. See United States v. Zimmerman,
277 F.3d 426, 432 (3d Cir. 2002). Thus, a warrant “must describe the things to be seized
with sufficient particularity and be no broader than the probable cause on which it is
based.” Id. (citation omitted) (internal quotation marks omitted).
Upon review of the search warrant at issue, we too reject Gumbs’s argument. A
general warrant lacks the particularity required by law; it “authorizes ‘a general,
exploratory rummaging in a person’s belongings,’” United States v. Ninety-Two
Thousand Four Hundred Twenty-Two Dollars and Fifty-Seven Cents, 307 F.3d 137, 149
(3d Cir. 2002) [hereinafter $92,422.57] (citation omitted), and “vest[s] the executing
officers with unbridled discretion to conduct an exploratory rummaging through” a
defendant’s belongings “in search of criminal evidence,” United States v. Tracey, 597
F.3d 140, 153-54 (3d Cir. 2010) (citation omitted) (internal quotation marks omitted).
“Examples of general warrants are those authorizing searches for and seizures of such
vague categories of items as ‘“smuggled goods,”’ ‘“obscene materials,”’ ‘“books,
records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings, and other
instruments concerning the Communist Party of Texas,”’ ‘“illegally obtained films,”’ and
‘“stolen property.”’” Id. at 154 (quoting $92,422.57, 307 F.3d at 149 (citations omitted)).
In $92,422.57, a case involving illegal money laundering, we considered whether
a warrant was general that authorized a search for:
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1. Receipts, invoices, lists of business associates, delivery schedules,
ledgers, financial statements, cash receipt, disbursement, and sales journals,
and correspondence.
2. Computers, computer peripherals, related instruction manuals and notes,
and software in order to conduct an off-site search for electronic copies of
the items listed above.
307 F.3d at 149. “Although the scope of the warrant was certainly extensive,”
then-Judge Alito wrote for the majority that “the warrant was not general.” See id. He
explained that the warrant, which “described in . . . inclusive generic terms what [wa]s to
be seized . . . did not vest the executing officers with unbridled discretion to search for
and seize whatever they wished. It was indubitably broad, but it was not general.” Id.
(citations omitted) (internal quotation marks omitted).
Similarly, in Tracey, a case involving the distribution and possession of child
pornography, we considered whether a warrant was general that authorized a search for:
Any items, images, or visual depictions representing the possible
exploitation of children including video tapes or photographs.
COMPUTERS: Computer input and output devices to include but not
limited to keyboards, mice, scanners, printers, monitors, network
communication devices, modems and external or connected devices used
for accessing computer storage media.
597 F.3d at 143. There, too, we concluded that the warrant was “did not authorize an
exploratory rummaging” and therefore “was not a general warrant.” Id.
Here, the warrant directs officers to seize “[i]mages of child pornography and files
containing images of child pornography in any form[,] wherever it may be stored or
found.” (App. 57.) It then, as in both $92,422.57 and Tracey, sets forth a broad list of
6
computer-related devices that might store such images or files. We thus conclude, for the
reasons expressed in $92,422.57 and Tracey, that the search warrant, though broad, was
not general.
Gumbs also argues that the search warrant was deficient because law enforcement
officials, when applying for the search warrant, assumed without verifying that the
address appearing on his driver’s license was his residence. We find his argument to be
unpersuasive. The address appearing on Gumbs’s license was provided by Gumbs and
maintained by the Virgin Islands Bureau of Motor Vehicles, a government agency. It
was a reliable indicator of his residence, see Frett-Smith v. Vanterpool, No. 2000-89,
2006 WL 2403333, at *3 n.3 (D.V.I. Aug. 16, 2006), aff’d, 511 F.3d 396 (3d Cir. 2008),
and law enforcement officials could rely on it without further corroboration. See Wilson
v. Russo, 212 F.3d 781, 785 (3d Cir. 2000); see also United States v. Campbell, 603 F.3d
1218, 1232 (10th Cir. 2010) (suggesting that good faith exception to probable cause
requirement would apply where police officers verified suspect’s address by reference to
driver’s license).5
III.
Gumbs also argues that the evidence adduced at trial was insufficient to sustain his
conviction on Counts 1-6. He first raised this argument in a motion for acquittal pursuant
5
The District Court suggested that police should, in the exercise of best practices,
corroborate the address appearing on a suspect’s driver’s license. We agree. See, e.g.,
United States v. Johnson, 86 F. App’x 533, 535 (3d Cir. 2004) (police officers obtained
suspect’s address from driver’s license, and then confirmed with neighbors that suspect
lived at that address). But law enforcement officials’ failure to do so here does not render
the search warrant constitutionally infirm.
7
to Federal Rule of Criminal Procedure 29, which was denied. “Our review of a district
court’s denial of a motion for acquittal based on sufficiency of the evidence is plenary.”
United States v. Benoit, 730 F.3d 280, 288 n.12 (3d Cir. 2013). But we nonetheless apply
“a particularly deferential standard of review, viewing the record in the light most
favorable to the prosecution to determine whether any rational trier of fact could have
found proof of guilt beyond a reasonable doubt based on the available evidence.” Id.
(citation omitted) (internal quotation marks omitted).
Gumbs argues that the prosecution failed to meet its burden of proof with respect
to Counts 1-6. Specifically, he faults the prosecution for failing to: (1) prove that either
the depictions of child pornography produced at trial or the materials used to produce
those depictions were transported in interstate commerce; or (2) produce the digital
camera associated with the camera box seized from his home, which was allegedly used
to create those depictions.
We have thoroughly reviewed the trial transcripts and conclude that the evidence
produced at trial was sufficient to support the jury’s verdict on Counts 1-6. Two items of
note were seized from Gumbs’s home: a camera box and a jump drive. At trial, a
photograph of the camera box was introduced as Exhibit 8. Witness Elvin Evans testified
that he recognized Exhibit 8 as a photograph of a gift that he had purchased for Gumbs at
a local retail establishment. Later, the director of trademark and licensing for General
Electric (“GE”), Kymberli Wilner, identified Exhibit 8 as packaging for a GE digital
camera produced under model number GE A1250. Wilner further testified that the GE
A1250 was and had always been exclusively manufactured in China. Finally, Homeland
8
Security Investigations Special Agent Dennis Carter, a computer forensic agent, testified
that the images found on the seized jump drive were produced by a GE A1250.
Admittedly, this evidence was circumstantial. As Gumbs notes, the prosecution
did not produce the GE A1250 that was actually used to create the depictions of child
pornography produced at trial, the proverbial “smoking gun.” Nonetheless, the sum of
the evidence produced at trial, viewed in the light most favorable to the prosecution, was
sufficient to establish that: (1) Gumbs owned a GE A1250, which was (2) manufactured
overseas, (3) transported in interstate commerce before being sold in the United States
Virgin Islands, and (4) ultimately used to produce the depictions of child pornography
found on the seized jump drive. Accordingly, Gumbs’s arguments lack merit.
IV.
Lastly, Gumbs argues that the District Court abused its discretion when it chose
not to remove a juror who cried while viewing video of Gumbs engaged in sexual activity
with the eight year-old victim. He contends that the District Court should have but failed
to voir dire that juror, to ensure that she remained able to perform her duties. Because
Gumbs did not request such voir dire during trial, we review the District Court’s actions
and inaction only for plain error. See United States v. Bansal, 663 F.3d 634, 645 (3d Cir.
2011), cert. denied, 132 S. Ct. 2700 (2012), and cert. denied, 133 S. Ct. 225 (2012).
“A criminal defendant is entitled to a determination of his or her guilt by an
unbiased jury based solely upon the evidence properly admitted against him or her in
court.” Gov’t of the V.I. v. Dowling, 814 F.2d 134, 137 (3d Cir. 1987). The District
Court is best positioned to preserve such entitlements, as it can observe and interact with
9
the jury, and determine what, if any, investigation the circumstances demand. See
generally United States v. Kemp, 500 F.3d 257, 301-02 (3d Cir. 2007) (discussing, in
another context, the District Court’s role in ensuring that the jury remains impartial).
Before the jury retired to deliberate, the District Court met with counsel to discuss
the possibility of discharging the juror who had cried during trial. The District Court
commented to counsel that “the images”—that is, video of Gumbs engaging in sexual
activity with the eight year-old victim—“certainly might provoke some reaction,” and
that such emotion would not necessarily render the juror “unfair or impartial.” (App. 64.)
We agree. Cf. State v. Lacey, No. 99-2625-CR, 2001 WL 477411, at *4 (Wis. Ct. App.
May 8, 2001) (per curiam) (“[J]urors sometimes cry in difficult cases and the simple fact
that this particular juror cried during the victim testimony did not mean that she could not
be impartial.”)
The District Court considered the totality of the juror’s conduct during trial, and
concluded, based on that conduct, that further investigation was unnecessary. We will
not now second guess the District Court’s determination that the juror at issue was
capable of performing her duties, or its implicit conclusion that voir dire was
unnecessary.
V.
For the foregoing reasons, we will affirm Gumbs’s conviction.
10