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United States v. Simmons

November 9, 2009

UNITED STATES OF AMERICA,
v.
GEORGE L. SIMMONDS, DEFENDANT.



The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge

DECISION and ORDER

Defendant George Simmonds was indicted on three counts of making false statements to the United States Probation Office ("USPO") in violation of 18 U.S.C. § 1001(a)(3). Presently before the Court is Defendant's motion to dismiss the Indictment and to suppress certain statements.

I. FACTS

In January 1999, Defendant was convicted in the Eastern District of Missouri of violating 18 U.S.C. § 2423(b) (Traveling in Interstate Commerce for the Purpose of Engage in a Sexual Act with a Person Under the Age of Eighteen). He was sentenced to 18 months imprisonment and three years of supervised release. Defendant was released to supervision in Binghamton, New York. As part of his supervision, Defendant was to avoid direct contact with minors.

Upon being released from prison in August 2008, Defendant went to reside with his brother and sister-in-law at 827 Harvard Street, Endicott, New York. On or about September 5, 2008, the USPO notified Defendant that he would not be approved to reside at 827 Harvard Street because a minor child resided there and because there was unmonitored computer access. Shortly thereafter, on or about September 8, 2008, Defendant notified the USPO that he established residency at 106 Henry Street, Binghamton, New York. In October 2008, the terms and conditions of Defendant's supervised release were modified. Among other things, Defendant was required to submit monthly reports, he had restrictions on access to minors, and he also had restrictions on the use of computers.*fn1

Thereafter, Defendant was charged and convicted with violating the terms of his conditions of supervised release. Specifically, Defendant was charged with being at 827 Harvard Street and having contact with his minor niece in violation of the USPO's directives. Defendant also admitted to using a computer at 827 Harvard Street without the approval of the USPO. As a result, on November 26, 2008, this Court revoked Defendant's term of supervised release and sentenced Defendant to time served and thirty-five months supervised release. Following his incarceration, Defendant returned to reside at 106 Henry St.

The USPO learned that Defendant was accessing and using computers outside the scope of his terms of supervised release and without the prior approval of the USPO. On or about May 12, 2009, the probation officer contacted an FBI agent concerning Defendant. The USPO inquired of the FBI agent how to obtain records from Yahoo. The USPO also contacted and shared information with the United States Attorneys' Office ("USAO"). The USAO commenced a criminal investigation of Defendant, including issuing subpoenas to various internet service providers.

Information received from an internet service provider revealed that Defendant created an e-mail account; that he accessed the e-mail account from unauthorized computers and without approval of the USPO; that Defendant accessed the account from a library in Binghamton, New York; and that Defendant forwarded emails to a computer at 827 Harvard Street.

The USPO discussed obtaining a search warrant for the 827 Harvard Street residence with the USAO. The USAO requested that the USPO prepare an affidavit supporting the warrant application, which it did. The USAO then prepared and drafted the search warrant for the 827 Harvard Street residence and the computer located therein.

On August 4, 2009, an Assistant United States Attorney, together with a probation officer, appeared before this Court and applied for a search warrant. This Court observed the probation officer sign the affidavit in support of the warrant. Upon review of the supporting materials, the Court issued the warrant.

The warrant was executed on August 5, 2009 at 827 Harvard Street. The warrant was executed by members of the USPO and four detectives/investigators from the Broome County Sheriff's Office. The search was conducted and the computer seized. The USAO was briefed on the results of the search. The computer was delivered to the Broome County Security Division for forensic analysis.

On that same day, Defendant was located by members of the USPO. Defendant was handcuffed and transported to the USPO where he was interviewed by members of the USPO. Thereafter, Defendant was arrested on a petition for violating the terms of his supervised release. On August 6, 2009, the USAO prepared a felony complaint and filed criminal charges against Defendant. On August 18, 2009, Defendant was indicted on three counts of Making False Statements to an Agency of the United States.

Presently before the Court is Defendants' motion to dismiss the indictment ...


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