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United States v. Russell

February 24, 2009

UNITED STATES OF AMERICA, RESPONDENT,
v.
RICHARD RUSSELL, JR., PETITIONER.



The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge

MEMORANDUM DECISION AND ORDER

I. INTRODUCTION

Defendant Richard Russell, Jr. is charged in a one-count indictment with violating 18 U.S.C. § 2251 (a). To wit, the government charged defendant with employing, using, persuading, inducing, enticing and coercing a male minor, age 14, to engage in sexually explicit conduct for the purpose of producing visual depictions of such conduct, where the visual depictions were produced using materials that were mailed, shipped or transported in interstate or foreign commerce. The indictment against defendant also contained a forfeiture allegation. Presently before the Court are two motions: 1) defendant's motion (Dkt. No. 13) to suppress all evidence seized from his residence pursuant to an alleged invalid warrant including the post-arrest statements that flowed therefrom and; 2) the government's cross-motion (Dkt. No. 15) for discovery from defendant. The issues presented in the above-referenced motions are questions of law that may be resolved without resort to a hearing.

II. FACTUAL BACKGROUND*fn1

On August 11, 2008, New York State Police Investigator Andrew Gayeskie ("Inv. Gayeskie") began investigating a complaint against defendant RICHARD RUSSELL, Jr. involving the possible production of child pornography and sexual abuse of two minor boys.Inv. Gayeskie spoke with a woman who claimed she found her 11-year old son in possession of a pornographic VHS video tape that had been provided by a person named Richard Russell, Jr. The woman claimed that Mr. Russell lived at 974 State Route 11C, Brasher Falls, New York with his girlfriend, Lisa Kelly.

Inv. Gayeskie interviewed the complainant's 11-year old son and obtained details of the abuse. The child stated that in January 2008, defendant gave the boy a guitar and promised him free guitar lessons. The 11-year old boy told Inv. Gayeskie that he began visiting defendant at defendant's apartment at 676 State Route 11C in Winthrop, New York. Instead of lessons, defendant showed the boy pornographic material/images involving 14-year old girls, bestiality and girl on girl movies. The boy visited defendant at that location once a week until May or June 2008 when defendant moved to 974 State Route 11C in Brasher Falls.

The boy visited defendant at the Brasher Falls residence at least four times. At each visit, the boy claims that defendant showed him pornographic material. This child reported that defendant placed his hand down his own pants while watching the material. The child also reported that defendant would forcibly grab the child's penis through the child's clothing and on one occasion, asked the child for oral sex. The child reported that defendant took pictures of him and his 10-year old friend with their clothes on. Defendant also instructed the 11-year old boy to go to the bathroom and take a picture of his penis with a digital camera. The child stated that defendant then downloaded the picture onto his computer and sent it "to a few people online". The child gave Inv. Gayeskie several magazines which contained pornographic images of females. The boy claimed that defendant gave him the magazines.

On August 12, 2008, Inv. Gayeskie interviewed a second minor, a 10-year old boy. The child disclosed that defendant asked him, on two occasions, to go to the bathroom to take pictures of his penis. The first time, the boy refused. The second time, the boy stated he went into the bathroom but did not take the picture. The boy stated that he gave defendant the camera and that defendant attempted to download the image onto his computer, but the picture was blank. The boy stated that he did not take the photograph because he was embarrassed. The 10-year old boy also stated that he saw his friend go to the bathroom to take pictures of his penis and that defendant then downloaded and sent those images from his computer.

In an attempt to identify defendant, Inv. Gayeskie sent NYSP Trooper Anderson to 974 State Route 11C to get a description of the location. Trooper Anderson reported that a 2004 Ford Explorer and a 1998 Dodge Stratus were parked in the driveway of the residence. The Explorer was registered to Richard F. Russell, Jr. (date of birth 01/19/1971), of Malone, New York and the Stratus was registered to Lisa Kelly of 974 State Hwy 11C, Brasher Falls.Inv. Gayeskie stated that in his experience, people do not always change the address on their vehicle registration when they move. Moreover, Inv. Gayeskie concluded that the complainant's description of Richard Russell as being in "his 30s" was consistent with the date of birth for the title owner of the vehicle. Therefore, Inv. Gayeskie concluded that the Richard Russell, Jr. living at 974 State Route 11C was the same Richard Russell, Jr. to whom the vehicle was registered.

As a result of the information gathered, Inv. Gayeskie applied for a search warrant for 974 State Route 11C (defendant's residence) and 11444 State Route 11, North Lawrence, New York (the residence of defendant's father). Using the date of birth for Richard F. Russell, Jr., the registered owner of the vehicle, Inv. Gayeskie conducted a criminal record check. Inv. Gayeskie included the results of that search in his application for a search warrant. On August 12, 2008, the warrant was signed by Hon. John Burns, Town Justice of the Town of Brasher. On August 12, 2008, the search was executed and evidence was seized from defendant's residence and from the residence of defendant's father. The items seized from defendant's residence at 974 State Route 11C included the following: 1-dimension 2350 tower; 1-loose cd-maxwell cdr; 2 cd Memorex and imitation bpxl; 1-kodak easy share cx4230; 3-spindle miscellaneous cdr's' 1-kodak easy share ls443; 1-id mega zip drive; 1-vivtar vivicam 3785; 1-alienware tower; 1-generic tower; 1-hp pavilion tower; 1-bm thinkpad; 1-nat tower.

On August 12, 2008, defendant was arrested for New York State criminal offenses. During his interview, defendant advised Inv. Gayeskie that his full name was Richard P. Russell, Jr. and his date of birth was 06/03/1972. Defendant stated he did not know Richard F. Russell, Jr. On August 13, 2008, Inv. Gayeskie interviewed Richard F. Russell, Jr. in Malone, New York and Mr. Russell advised that he did not know defendant. Mr. Russell further advised that no vehicles were registered in his name. On September 9, 2008, defendant was arrested on federal charges. At that time, defendant stated that the Explorer was his vehicle and that he purchased the vehicle three months before his arrest at Bailey Ford in Malone, New York and that the dealership completed the registration paperwork. Defendant claims he was never previously arrested and that he has no criminal history.

III. DISCUSSION

A. Suppression of Physical Evidence

Defendant seeks suppression of all physical evidence seized from his residence on the basis that: (1) the supporting affidavit contained false and misleading information; (2) the warrant application did not establish probable cause; and (3) the warrant fails the particularity requirement of the Fourth Amendment.*fn2

1. False or Misleading Information

Defendant claims that the application for the search warrant contained false and misleading information. Specifically, defendant contends that Inv. Gayeskie's affidavit referenced the wrong individual and that individual's criminal record. Defendant requests a Franks hearing to establish that the statements were false and misleading and thus, do not satisfy the probable cause standard. The government contends that Inv. Gayeskie's affidavit contains a ...


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