United States v. Schwarte
2011 U.S. App. LEXIS 14534
| 8th Cir. | 2011Background
- Schwarte is convicted by jury of attempted sexual exploitation of a child, receipt of child pornography, and possession of child pornography.
- Undercover NCIS agent Abigail Smith communicated with Schwarte online as a 15-year-old, prompting requests for explicit images.
- A controlled delivery of a package containing a child-pornography videotape and underwear was used to execute an anticipatory search warrant at Schwarte's Dunlap, Iowa residence.
- Delivery of the package was accepted by Schwarte’s niece Misty Frazier, at the Dunlap address, triggering the warrant’s condition.
- Schwarte challenges the anticipatory warrant, suppression of evidence, and later argues insufficiency of evidence and ineffective assistance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the anticipatory warrant validly executed? | Schwarte argues triggering condition never occurred. | Gov't argues credibility findings support the triggering condition. | Anticipatory warrant valid; triggering condition occurred. |
| Is there sufficient evidence for attempted sexual exploitation of a child? | Schwarte contends no substantial step toward crime. | Gov't shows repeated solicitations and offers; substantial step shown. | Evidence supports substantial step and conviction. |
| Is there sufficient evidence for receipt and possession of child pornography? | Schwarte asleep; cannot knowingly receive/possess. | Knowledge can be inferred; constructive possession and awareness of results. | Yes; knowing receipt and constructive possession supported. |
Key Cases Cited
- United States v. Grubbs, 547 U.S. 90 (U.S. 2006) (upholding anticipatory warrants)
- United States v. Pierson, 544 F.3d 933 (8th Cir. 2008) (substantial step and attempted sexual exploitation framework)
- United States v. Bailey, 444 U.S. 394 (U.S. 1980) (concurrence and knowledge standards for possession/receipt)
- United States v. Frencher, 503 F.3d 701 (8th Cir. 2007) (credibility determinations in suppression rulings are hard to overturn)
- United States v. Castellanos, 518 F.3d 965 (8th Cir. 2008) (review standard for suppression rulings)