United States v. Thomas Zavesky
2016 U.S. App. LEXIS 18033
| 8th Cir. | 2016Background
- Investigators traced peer-to-peer sharing of child pornography to IP addresses tied to truck driver Thomas Zavesky. Agents located him in his parked semi-truck, smelled marijuana, saw a laptop on the passenger seat, and told him he was not under arrest. Zavesky voluntarily spoke with agents, admitted knowledge of file-sharing and estimated possession of thousands of images, but refused to give his laptop password.
- An agent obtained a search warrant; forensic exam of the laptop revealed child pornography. Zavesky was indicted on receipt and possession of child pornography, appeared December 30, 2013, and the trial began June 8, 2015.
- Between Feb–Sept 2014 Zavesky sought and received several continuances. At a Sept. 11, 2014 telephonic scheduling conference (Zavesky absent; counsel present), defense counsel reported concerns about Zavesky’s competence and a family member’s history of mental illness. The district court ordered an inpatient competency evaluation under 18 U.S.C. § 4241.
- Zavesky refused to cooperate with testing; the evaluator found him competent to proceed. After the evaluation, counsel withdrew, new counsel appointed, and trial proceeded. A jury convicted on one count of receipt and one count of possession; sentence was 240 months concurrent with 120 months.
- On appeal Zavesky challenged: (1) the committal for competency evaluation without his presence or notice (due process and Speedy Trial), (2) double jeopardy from convictions for both receipt and possession, and (3) denial of the motion to suppress (alleged de facto arrest and fruit of the poisonous tree).
Issues
| Issue | Zavesky's Argument | Government's Argument | Held |
|---|---|---|---|
| Competency evaluation ordered without defendant present/notice (§ 4241) | Ordering inpatient evaluation at a scheduling conference where he was absent and without notice violated § 4241 and due process | Court may order evaluation on reasonable cause without defendant present; counsel’s concerns justified committal | Affirmed: district court had reasonable cause; procedures satisfied due process (any error harmless) |
| Speedy Trial / delay from evaluation | Committal and resulting delay violated Sixth Amendment and Speedy Trial Act | Delay attributable to competency proceedings and defense-requested continuances; § 3161 excludes competency exam delay | Affirmed: no Sixth Amendment violation; Speedy Trial Act not violated (statutory exclusion applies) |
| Double jeopardy for convictions of receipt and possession | Convicting on both counts based on same evidence violates double jeopardy | Indictment and evidence implicated different dates/folders and different depictions; possession is lesser-included but different acts/dates here | Affirmed: convictions upheld—different dates/items were at issue; any waiver of interrogatories by defense bars further review |
| Suppression of statements and laptop evidence (custody/seizure) | Statements were elicited after a de facto arrest and seizure; laptop evidence is fruit of unconstitutional seizure | Agents repeatedly told Zavesky he was not under arrest; he left and reengaged voluntarily; probable cause supported brief seizure pending warrant | Affirmed: not in custody for Miranda; warrantless short seizure reasonable to prevent destruction and obtain warrant; suppression denied |
Key Cases Cited
- United States v. Turner, 644 F.3d 713 (8th Cir. 2011) (abuse-of-discretion review; weight to counsel’s competency concerns)
- United States v. Denton, 434 F.3d 1104 (8th Cir. 2006) (counsel’s view on competency carries significant weight)
- United States v. Neal, 679 F.3d 737 (8th Cir. 2012) (due process constraints on commitment for inpatient evaluation)
- Arizona v. Fulminante, 499 U.S. 279 (1991) (distinguishing trial errors from structural defects and harmless-error analysis)
- Chapman v. California, 386 U.S. 18 (1967) (constitutional errors can be subject to harmless-error review)
- United States v. Griffin, 922 F.2d 1343 (8th Cir. 1990) (factors for determining custody for Miranda purposes)
- United States v. Goodale, 738 F.3d 917 (8th Cir. 2013) (probable cause to believe laptop contains contraband permits seizure pending warrant)
- United States v. Muhlenbruch, 634 F.3d 987 (8th Cir. 2011) (possession is lesser-included offense to receipt; same-image convictions can violate double jeopardy)
- United States v. Wisecarver, 598 F.3d 982 (8th Cir. 2010) (waiver doctrine: intentional relinquishment of known right bars appellate review)