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United States v. Zavesky

United States Court of Appeals, Eighth Circuit

October 5, 2016

United States of America, Plaintiff- Appellee
Thomas Zavesky, Defendant-Appellant

          Submitted: February 9, 2016

         Appeal from United States District Court for the Southern District of Iowa - Davenport

          Before SMITH and COLLOTON, Circuit Judges, and ERICKSON, [1] District Judge.

          ERICKSON, Chief District Judge.

         A jury convicted Thomas Zavesky on one count of receipt of child pornography in violation of 18 U.S.C. §§ 2252(a)(2), 2252(b)(1), and 2256 and one count of possession of child pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B), 2252(b)(2), and 2256. He appeals, claiming his due process rights were violated because he was not present or given notice when the district court ordered him to undergo a competency examination, his right to a speedy trial was violated, his convictions for receipt and possession of child pornography violate double jeopardy, and the district court erred in denying his motion to suppress. We affirm.

         I. Background

         Zavesky came to the attention of law enforcement officers when they noticed, as part of their investigations on Internet child pornography, what appeared to be a single computer sharing child pornography at different IP addresses. Through the use of subpoenas, the investigating officers learned that Zavesky was employed as a truck driver, that Zavesky's employer was a business using one of the IP addresses, and that Zavesky had been near the various IP locations that caught the officers' attention.

         Upon learning from Zavesky's employer when and where Zavesky was scheduled to be in Iowa, two special agents with the Iowa Division of Criminal Investigations located Zavesky sitting in his parked semi-truck. When approached, the agents noticed the smell of marijuana emanating from the truck and observed part of a marijuana pipe in the truck and a laptop computer that was open and appeared to be turned on sitting on the passenger's seat. One of the agents advised Zavesky that they were conducting an investigation, asked whether he would be willing to talk to them, and informed Zavesky that he was not under arrest. Zavesky exited his semi-truck and agreed to sit in the front passenger's seat of that agent's vehicle.

         Once inside the agents' vehicle, Zavesky was again advised that he was not under arrest and he did not have to talk to the agents. The agent made sure the door was unlocked so Zavesky could leave if he wanted. Zavesky began answering questions, cut off the interview after a short time, left the agents' vehicle, walked toward the semi-truck, returned a short time later, and reinitiated conversation with an agent who was now standing by the trunk of his vehicle. When Zavesky left the agents' vehicle, he was told he could not go back inside his semi-truck out of concern about the contents on the computer and whether Zavesky was under the influence given the strong odor of marijuana observed by the agents.

         After observing Zavesky, the agent determined that he did not appear to be under the influence. When Zavesky resumed talking to the agents by the trunk of their car, Zavesky learned that they wanted to talk about the files on his computer. Zavesky was willing to talk about that topic, and admitted to his knowledge about file-sharing programs and estimated he had 2, 800 images of child pornography. Zavesky refused to talk about a motel theft that he thought they could be investigating or the marijuana that was found underneath his semi-truck, and declined to give the password for his computer.

         One of the agents then left the scene to get a search warrant for the laptop computer. A search warrant was obtained. A forensic examination uncovered child pornography, which lead to the charges in this case. Zavesky appeared on the charges on December 30, 2013. Between February 2014 and September 11, 2014, Zavesky requested the trial be continued five times, which the court granted.

         On September 11, 2014, the district court held a telephonic scheduling conference. Zavesky did not participate but his lawyer appeared on his behalf and expressed concerns about Zavesky's mental condition and competency. Zavesky's lawyer indicated he was having difficulty communicating with Zavesky and Zavesky believed he was working for the Federal Bureau of Investigations to stop the Russian mafia from bringing child pornography into the United States. Zavesky's lawyer also reported that a family member indicated Zavesky had a history of mental illness. The district court ordered Zavesky transferred from pretrial confinement to the custody of Bureau of Prisons for a competency evaluation.

         Zavesky refused to cooperate with any mental health testing or interviews. The evaluator opined that Zavesky was competent to proceed and that Zavesky's statements about the Russian mafia were likely an attempt to make excuses and explain his criminal conduct. After completion of the evaluation, the district court reset the case back on the trial calendar.

         Zavesky then moved to suppress the statements he made to the agents on the grounds that there was a "de facto arrest" and Zavesky was illegally seized when he was told he could leave but could not get back in his semi-truck. Zavesky also argued that the evidence obtained from the semi-truck must be suppressed as it was "fruits" evidence obtained as a result of the unconstitutional seizure. The district court denied his motion to suppress, finding there was probable cause to search the semi-truck and Zavesky was not in custody when he provided the statements to the agents.

         Zavesky proceeded to trial on June 8, 2015. A jury convicted him on one count of receipt of child pornography and one count of possession of child pornography. He was sentenced to a term of 240 months' imprisonment for receipt of child pornography and a ...

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