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United States v. Wright

United States Court of Appeals, Fifth Circuit

February 3, 2015

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
CHARLES WRIGHT, Defendant - Appellant

Page 770

Appeal from the United States District Court for the Southern District of Texas.

For United States of America, Plaintiff - Appellee: Eileen K. Wilson, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX.

For Charles Wright, Defendant - Appellant: Marjorie A. Meyers, Federal Public Defender, Timothy William Crooks, Assistant Federal Public Defender, H. Michael Sokolow, Assistant Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX.

Before STEWART, Chief Judge, and JONES and HIGGINSON, Circuit Judges.

OPINION

Page 771

HIGGINSON, Circuit Judge:

Defendant-Appellant Charles Wright was indicted, tried, and found guilty of distributing child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B) and (b)(1), and possessing child pornography, in violation of 18 U.S.C. § § 2252A(a)(5)(B) and (b)(2) and 2256(8)(A). He was subsequently sentenced to 240 months imprisonment and a lifetime of supervised release. He timely appealed both his conviction and sentence. For the reasons stated below, we AFFIRM Wright's conviction and sentence.

I.

On September 14, 2011, at around 7:00 a.m., state and federal law enforcement officers executed a search warrant of Wright's home. Officer John Barnes of the Houston Police Department, who had been assigned to the Houston Child Exploitation Task Force, obtained the search warrant after his investigation revealed that an IP address registered to Wright appeared to be sharing child pornography through a file sharing network. The officers who executed the search warrant were all wearing bulletproof vests and/or raid jackets and were all armed. Six officers were on the " entry team" and had their guns drawn as they entered the residence, while six officers were on the " perimeter team" and were tasked with ensuring that no one left the perimeter without permission from law enforcement. The officers knocked and announced and then entered and cleared the house, which had seven occupants in it. Some of the occupants, including Wright, were wearing nightgowns and pajamas when they were forced to exit the residence.

As the search of the residence was taking place, Officer Barnes approached Wright and told him that he wanted to talk to him. Officer Barnes escorted Wright to his bedroom so that he could change into more appropriate clothing. Wright testified that Officer Barnes grabbed him by the back of his arm to escort him, but Officer Barnes testified that he did not remember ever touching Wright. There were three officers in Wright's bedroom as he got dressed. After Wright got dressed, Officer Barnes escorted him to an unmarked Ford Taurus--Officer Barnes's patrol unit--which was parked next to the parking lot of a neighboring church, about thirty feet from the house. While walking to the car, Officer Barnes told Wright that he was not under arrest and that he was free to leave at any time. Officer Barnes led Wright to the front door of the car, and Wright sat in the front passenger seat and closed the door. Agent Guerra sat in the back seat of the car, and Officer Barnes sat in the driver's seat. Officer Barnes put a recorder on and started the interview.

The interview lasted one hour and two minutes. At the beginning of the interview, Officer Barnes showed Wright a copy of the search warrant, which Wright said that he could not see without his glasses. Office Barnes for a second time told Wright that he was not under arrest and that he was free to leave. Officer Barnes then read Wright his Miranda rights, explained to him the nature of the investigation, and proceeded to ask him

Page 772

questions. Three times during the course of the recorded interview, Wright mentioned the possibility of talking to a lawyer. Each of the three references was made in response to Officer Barnes's questions regarding Wright's use of ages as search terms when searching for pornography. The first reference was made shortly after the interview commenced when the following exchange took place:

JB [Officer Barnes]: [] what about ages, you ever put in ages in search terms?
CW [Wright]: Sometimes.
JB: What ages do you put in?
CW: Front, well.
JB: Do you ever put in 12 year old [].
CW: We're, we're getting into somethin'.
JB: Or 14 year old?
CW: [unintelligible] I probably should talk to that lawyer first yea.

Office Barnes did not address Wright's reference to a lawyer, but instead responded by slightly changing the subject. Shortly after this first exchange, Officer Barnes returned to the topic of ages, and the following exchange took place:

JB: What ages do you put in[]there?
CW: I, that's what I say again, we're getting into [simultaneous conversation] where I should talk to a lawyer.
JB: [] ok, we'll, oh, oh, only uh, only talk to me about stuff that you wanna talk about.
CW: Yea, that's what I'm sayin'.
JB: Ok, so I, I don't wanna, I don't want you to tell me anything you don't want to, but I wanna help you at the same time, being cooperative.
CW: I'll be, but I don't wanna say anything, again, that's gonna get me in trouble either.

Finally, on a third occasion when Officer Barnes returned to the subject of search terms, Wright responded: " There again, we're gettin' towards the lawyer."

During the course of the lengthy interview, Wright made numerous incriminating statements. Wright told Officer Barnes about his use of the program Frost Wire to download music, videos, and pictures. He stated that he used Frost Wire to search for adult pornography, but he freely admitted to using the search term " pedophilia" as well as " PTHC" --an acronym commonly used to search for child pornography.[1] Wright admitted that when he used those terms he would get 50% child pornography and 50% adult pornography as a result, but he claimed that he would delete the child pornography as soon as he got it. Wright told Officer Barnes about his use of an " internet washer" that was supposed to do an " FBI wipe" of his computer to delete files that he did not want. He explained that he would delete files containing child pornography because he knew they were illegal. Wright discussed his knowledge, or purported lack of knowledge, regarding the Frost Wire file-sharing feature. He also stated " you see the kid stuff and, and you know, it's, it's, like drugs."

The interview and, specifically, Wright's references to a lawyer are the subject of two of Wright's three issues on appeal. First, Wright argues that the district court erred when it denied his motion to suppress the statements that he made to Officer Barnes during the interview. Second, Wright contends that the government violated Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), when, during its closing ...


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