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United States v. Jenkins

United States District Court, N.D. Georgia, Atlanta Division

April 11, 2019

United States of America,
Benjamin Jenkins, Defendant.

          OPINION & ORDER

          Michael L. Brown United States District Judge

         A grand jury indicted Defendant Benjamin Jenkins with thirteen counts of producing child pornography in violation of 18 U.S.C. § 2251(a) and five counts of distributing child pornography in violation of 18 U.S.C. § 2252(a)(2). (Dkt. 1.) Defendant Jenkins filed pretrial motions to exclude (1) records the United States obtained from private companies during the investigation, (2) statements Defendant Jenkins made during the execution of a February 2017 search warrant, and (3) statements he made during the execution of search and arrest warrants in May 2018. (Dkts. 21, 28, 29.) The Magistrate Judge recommended denying each, and Defendant Jenkins filed objections. (Dkts. 44, 47.) The Court agrees with the Magistrate Judge and denies Defendant Jenkins's motions.

         I. Legal Standard

         A district judge has a duty to conduct a “careful and complete” review of a magistrate judge's report and recommendation (“R&R”). Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curium). When a party files objections to an R&R, the district court must review de novo any part of the disposition that is the subject of a proper objection. 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b). A court reviews all other portions of the R&R for clear error. See United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curium).

         In filing objections to an R&R, “parties . . . must specifically identify those findings objected to. Frivolous, conclusive, or general objections need not be considered by the district court.” United States v. Schultz, 565 F.3d 1353, 1361 (11th Cir. 2009). Without proper objections, the Court “may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).

         II. Factual Background

         In February 2016, a military servicemember in Ft. Sill, Oklahoma, told military police that an unknown 21-year-old male had exchanged pornographic pictures with his 13-year-old daughter and extorted her into sending more pornographic images. (Dkt. 47 at 2.) Military investigators transferred the case to Homeland Security Investigations (“HSI”). (Id.)

         Agent Browning, an investigator with HSI, requested records from Kik Interactive, Inc., a messaging application the suspect had used to communicate with the girl. (Id.) With a subpoena authorized by 18 U.S.C. § 1509, Browning sought “user/subscriber information, device related information, Kik account information, country setting and any user location information, as well as connection records and IP address records/logs from August 1, 2015 at 0001 hours to February 29, 2016 at 1700 hours” for various screennames used in the “sextortion.” (Id.) Kik provided internet protocol (“IP”) address information and the user's address, date of birth, and device. (Id. at 4.)

         Agent Browning then obtained records from Comcast Cable and Sprint Corporation, including the subscriber and billing information and IP logs for the relevant IP addresses. (Id. at 3.) Agent Browning next obtained a search warrant for the Apple iCloud account - - to which the young girl had sent nude images and videos of herself. (Id. at 5.) The search warrant sought information constituting contraband, fruits, evidence, and instrumentalities of violations of 18 U.S.C. §§ 2251(a), 2252, and 2252A. (Id.)

         While all this was going on, a woman in Illinois called police to report that someone was threatening to distribute nude photographs of her 15-year-old daughter. (Id. at 6.) The daughter provided law enforcement the same iCloud account that the Oklahoma investigator had identified. An Illinois judge also issued a search warrant for the account. (Id. at 7.)

         Special Agent (“SA”) Greene works for the Atlanta-based Child Exploitation Investigations Group at HSI. (Dkt. 44 at 7.) At some point before February 2017, he received investigative leads from law enforcement officers in both Oklahoma and Illinois about their investigations, specifically that Defendant Jenkins had been exchanging pornographic photographs with children through the internet, text messaging, and social media from his home at 5175 Silhouette Lane in Mableton, Georgia. (Id. at 7-8.) SA Greene obtained a search warrant for Defendant Jenkins's house.

         In February 2017, SA Greene and other officers executed the search warrant. They knocked on the door between 6:00 a.m. and 6:30 a.m. (Dkts. 34-15, 34-17.) Mrs. Jenkins, Defendant's mother, answered the door, and SA Greene explained they had a search warrant. (Dkt. 34 at 18-19.) Mr. Jenkins, Defendant's father, joined the officers and Mrs. Jenkins downstairs. SA Greene asked Mr. Jenkins to wake up his sons who were sleeping upstairs. (Dkt. 34-19.) When they did not respond to their father, SA Greene, two or three other agents, and Mr. Jenkins went upstairs. (Dkts. 34-19, 34-20.) Agents went into the sons' bedrooms, woke them up, searched for weapons, and escorted them downstairs. (Dkt. 34-20.) Back in the dining room, SA Greene told the family that no one was under arrest, that they had a search warrant for the house, and wanted to talk with them. (Dkt. 34-21.)

         He also explained that agents were going to make a safety sweep of the house to ensure there were no weapons present. (Id.) Other agents conducted the sweep, which lasted no more than ten minutes. (Dkts. 34-21, 34-23, 34-24.) Agents had their weapons drawn during the search but holstered them or placed them in their cars immediately afterwards. (Dkt. 47 at 8.)

         SA Greene told the family he wanted to interview Defendant Jenkins and suggested they go to the basement away from the family since the discussion would concern topics of a sexual nature. (Dkt. 34-26.) Defendant Jenkins sat at a desk near the bottom of the stairs, closest to the stairway. Since he did not intend to arrest Defendant Jenkins and had already told him that, SA Greene did not advise Defendant Jenkins of his Miranda rights. During the interview, SA Greene again said he was not going to arrest Defendant Jenkins that day. (Dkt. 44 at 13.) Neither SA Greene nor anyone else handcuffed Defendant Jenkins or restrained him in any way. (Dkt. 42 at 6.)

         The interview lasted about ninety minutes. (Dkt. 34-28.) SA Greene realized Defendant Jenkins has mental health issues - including a belief he is the “vessel” for several personalities - but also found Defendant Jenkins's answers appropriate to the questions asked. (Dkt. 42 at 6.) SA Greene sometimes changed his questions to ask which personality was answering. SA Greene also provided Defendant Jenkins with a Consent to Assume Online Identity Form, which Defendant Jenkins signed after Greene explained it to him.[1] After the interview, Defendant Jenkins returned to his family while agents continued searching the house.

         Sometime later, another agent told SA Greene that Defendant Jenkins wanted to speak with him again. When SA Greene and Defendant Jenkins returned to the basement, Defendant Jenkins explained that he was concerned for a friend and was worried she may become distraught if she lost contact with him. (Dkt. 47 at 11.) While in the basement, Defendant Jenkins wrote out an apology letter, ...

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