UNITED STATES of America, Appellee, v. Robert JOUBERT, Defendant, Appellant.
No. 14-1259.
United States Court of Appeals, First Circuit.
Feb. 11, 2015.
247
Before TORRUELLA, HOWARD, and KAYATTA, Circuit Judges.
On a hopeless quest, plaintiffs argue we should remand to allow them to amend the complaint. No proper request was made to the district court, only a mention in a footnote in their opposition to dismissal. See Joblove v. Barr Labs., Inc. (In re Tamoxifen Citrate Antitrust Litig.), 466 F.3d 187, 220 (2d Cir.2006) (“It is within the court‘s discretion to deny leave to amend implicitly by not addressing the request when leave is requested informally in a brief filed in opposition to a motion to dismiss.“), abrogated on other grounds by F.T.C. v. Actavis, Inc., — U.S. —, 133 S.Ct. 2223, 186 L.Ed.2d 343 (2013); Calderon v. Kan. Dep‘t of Soc. & Rehab. Servs., 181 F.3d 1180, 1185-87 (10th Cir. 1999) (noting with approval an earlier holding that a district court need not grant leave to amend if plaintiffs make a “bare request in their response to a motion to dismiss“).
In any event, it is far too late; plaintiffs were put on notice of the deficiencies in the complaint by the motion to dismiss. If they had something relevant to add, they should have moved to add it then. See ACA Fin., 512 F.3d at 57 (rejecting plaintiffs’ argument that the district court erred in denying them leave to amend because “[p]laintiffs took no action to add new allegations” in response to defendants’ motion to dismiss “even though they knew what they would add if they amended,” and noting that allowing such a practice would “lead to delays, inefficiencies, and wasted work“). And even now there is no suggestion that amendment would be anything other than futile. See, e.g., HSBC Realty Credit Corp. (USA) v. O‘Neill, 745 F.3d 564, 578 (1st Cir.2014); Braunstein v. McCabe, 571 F.3d 108, 127 (1st Cir.2009); Universal Commc‘n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 418 (1st Cir.2007). We wish to discourage this practice of seeking leave to amend after the case has been dismissed.
VI. Conclusion
We affirm the judgment of the district court. Costs are awarded to Abiomed.
Judith H. Mizner, Assistant Federal Public Defender, for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom John P. Kacavas, United States Attorney, was on brief, for appellee.
Robert Joubert was convicted of three counts of sexual exploitation of children, in violation of
I. Background
A. Investigation and Search1
In March 2012, a mother in Concord, New Hampshire, e-mailed York, Maine, police to complain about Joubert, a baseball coach working in the area. Joubert used to coach and mentor the woman‘s son, KC. She called Joubert a pedophile, and said that New Hampshire police previously investigated him multiple times for similar allegations.
Over the course of the next four months, an investigation by local police and the Federal Bureau of Investigation (“FBI“) turned up a series of reports and complaints that Joubert molested or harassed various children, including the complainant. Authorities proceeded to interview many of the alleged victims, as well as their parents. They learned that Joubert engaged in a pattern of abuse, usually gaining trust within a victim‘s family, and then proceeding to exploit that position of trust. Law enforcement officials also learned that Joubert often photographed and videotaped his young charges. During the investigation, Joubert himself contacted police. Police and FBI interviewed him in late March, asking questions about his background, baseball pedigree, and previous employment. According to the
Starting in June 2012, the FBI and York police worked with SJ, Joubert‘s 36-year-old non-biological son, who claimed that Joubert molested him on two occasions in the mid-1980‘s. SJ reported that Joubert lived at Joubert‘s parents’ home, in Manchester, New Hampshire. In late May or early June, SJ helped Joubert move to that address. SJ also reported that, upon learning of the investigation, Joubert became “anxious” and “very concerned” about destroying his computer‘s hard drive. Joubert told SJ that he was concerned about protecting “client” information. While in SJ‘s presence, “Joubert tore apart the computer tower.” He removed components, threw away the computer tower, and then stacked the removed components inside his parents’ home. SJ did not see Joubert discard the computer components.
In late June 2012, police applied for a warrant to search Joubert‘s parents’ home. The warrant application sought permission to search for several categories of evidence including: “[a]ny and all computers or related storage devices and media“; “[a]ny and all cameras ... including cassette tapes, VCR/VHS tapes“; and “[a]ny and all photographs, electronic images, and videos of minors/ juveniles/ youth/ youth groups that Robert Joubert has or may have had contact with.” Appended to the application was a 14-page affidavit, detailing the joint FBI-police investigation into Joubert.
The affidavit chronicled the numerous complaints against Joubert, the reports of his photographing and videotaping youths, and the information conveyed by SJ, described above. In the final paragraphs of the affidavit, the officer-affiant stated that, “[b]ased on [his] training and experience, and supported by the actions of the suspect in this investigation, [he knows] that persons engaged in the molestation and exploitation of ... minors often maintain possession and/or control of physical or electronic documents pertaining to their victims and other juveniles.” The officer-affiant went on to state:
I believe that evidence of the crime(s) of Felonious Sexual Assault exists. I believe the aforementioned evidence exists in the possession, control, care and/or custody of Robert Joubert. I believe that the evidence exists in the form of, but not limited to; physical and electronic documents and other property. The evidence may confirm or dispel Robert Joubert‘s background (employment, resume claims, sport/coaching qualification and credentials), the allegation made against him involving juveniles, his travels, his relationship(s) with minors/juveniles and the victims mentioned in this affidavit, confirm his relationship with already identified victims, and identify other potential (yet unknown) victims.
Based on the affidavit, a New Hampshire judge issued a warrant to search Joubert‘s parents’ home for “evidence of the crime(s) of Aggravated Felonious Sexual Assault ... and other Sexual crimes[.]” On June 28, 2012, police executed that search, seizing photographs, a laptop computer, computer drives, and VHS tapes, among other items. Of the items seized, most incriminating was a pornographic VHS recording of KC and Joubert.
B. Charged Conduct
Joubert coached KC‘s baseball team in Summer 2002, when KC was 9 or 10 years old. After the season ended Joubert sought to maintain a “big brother“-type relationship with KC. Joubert eventually moved into KC‘s home, where KC lived with his single mother. According to KC‘s
On the basis of Joubert‘s possessing and producing a VHS tape containing child pornography, a grand jury indicted Joubert on three counts of sexual exploitation of a child to produce a visual depiction, in violation of
C. Trial and Sentencing
During pre-trial, Joubert moved to suppress items seized pursuant to the search warrant—including the VHS tape—arguing that the affidavit did not supply a sufficient nexus between the alleged crimes and the location being searched. The district court denied his motion. At trial, and over objection, the court admitted uncharged sexual misconduct testimony from SJ and two other victims, MT and NT. KC also testified during trial, identifying himself and Joubert in the illicit VHS recording. After a three-day trial, Joubert was found guilty. The pre-sentence investigation report‘s Guidelines sentence was 960 months. The government recommended a 540-month sentence, but the district court varied further downward, sentencing Joubert to 480 months in prison.
II. Analysis
A. The Constitutionality of the Search Warrant
The
Joubert challenges the district court‘s finding that the affidavit established probable cause to search his parents’ house. When evaluating the nexus between the object and the location of the search, “a magistrate [judge] has to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” United States v. Rodrigue, 560 F.3d 29, 33 (1st Cir.2009) (citations and internal quotation marks omitted). “[T]he application
Joubert rests his nexus challenge on four contentions. We address each contention in turn.
First, Joubert argues that a nexus is lacking because the affidavit contains no allegations that he committed any offenses at the location being searched. But Joubert misidentifies the relevant inquiry. The question is whether evidence of the crime is likely to be found in the specific place being searched, not whether the crime occurred there. See Zurcher v. Stanford Daily, 436 U.S. 547, 556-57, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978); Feliz, 182 F.3d at 86-88; see also United States v. Kapordelis, 569 F.3d 1291, 1310 (11th Cir.2009) (“There need not be an allegation that the illegal activity occurred at the location to be searched, for example the home“). As we explain below in rejecting Joubert‘s third argument, there was indeed such a likelihood.
Second, Joubert argues that there is no reason to believe that he would have preserved the photos and videos discussed in the affidavit. But photos and videos, by their very nature, are items customarily created for preservation. See United States v. Beckett, 321 F.3d 26, 32 (1st Cir.2003) (noting that the fact that a notebook can “reasonably be viewed as [an] item[] created for preservation” supports the possibility that it would have been retained over the years). As such, allegations regarding photographic or video recordings do not suffer from the staleness problems that sometimes arise in other contexts. Cf. United States v. Brooks, 594 F.3d 488, 493 (6th Cir.2010) (“In the context of drug crimes, information goes stale very quickly because drugs are usually sold and consumed in a prompt fashion.“) (internal quotation marks omitted). The nature of the items sought here supports a common-sense inference that the items would endure among Joubert‘s belongings. See Beckett, 321 F.3d at 32.
Third, Joubert claims that there is no reason to think he would have kept the photos at his parents’ home. But the affidavit indicated that Joubert lived there, and as the Eleventh Circuit has explained:
The justification for allowing a search of a person‘s residence when that person is suspected of criminal activity is the commonsense realization that one tends to conceal fruits and instrumentalities of a crime in a place to which easy access may be had and in which privacy is nevertheless maintained. In normal situations, few places are more convenient than one‘s residence for use in planning
criminal activities and hiding fruits of a crime.
Kapordelis, 569 F.3d at 1310 (quoting United States v. Green, 634 F.2d 222, 226 (5th Cir. Unit B 1981)). In addition, the affidavit indicated that SJ recently helped Joubert move his belongings to that address and that Joubert, upon learning of the investigation, became very anxious and sought SJ‘s help in wiping or destroying his hard drive. While at Joubert‘s parents’ home, SJ saw Joubert “[tear] apart the computer tower,” removing components; SJ did not see Joubert dispose of the removed computer components. With this information, the magistrate judge had a substantial basis for “a practical, common-sense decision,” Rodrigue, 560 F.3d at 33, that evidence of child molestation would likely be found at that address.
Finally, Joubert argues that there is no reason to suspect he had any inappropriate photos because the affidavit lacked any allegations concerning child pornography or photographing sexual contacts. The affidavit‘s only photographing allegations are of photographing at athletic events, at the beach, or similar settings. This argument misses the mark completely. To start with, this argument is not a challenge to the nexus with the location, but rather a challenge to the specification of an object of the search.
Even allowed as such, the argument fails because photographs of any type of any of the suspected victims would provide evidence of the crimes specified. Even otherwise innocuous pictures of Joubert and his accusers would be relevant (albeit insufficient) evidence for building a case that the alleged abuse actually occurred because such pictures would preclude the possibility that Joubert never knew nor was in contact with the accusers. See
B. Uncharged Child Molestation Evidence
At trial, the district court admitted, over objection, testimony from three other victims, MT, NT, and SJ. Joubert argues that, notwithstanding
Ordinarily, the Federal Rules of Evidence prohibit using a person‘s prior acts “to prove a person‘s character in order to show that on a particular occasion the
Joubert argues that the uncharged child molestation testimony‘s prejudicial effect outweighed its probative value for three reasons: (1) the allegations are old,3 and thus not particularly probative; (2) the evidence was of limited probative value in light of the central contested issue at trial; and (3) the uncharged child molestation testimony overshadowed the evidence of charged conduct, overwhelming the jury and resulting in unfair prejudice to Joubert.
First, the age of MT, NT, and SJ‘s allegations does not necessarily mean that the district court abused its discretion in admitting the evidence. Other courts have admitted testimony from decades earlier where that testimony showed that the defendant sought a similar type of sexual gratification. See, e.g., Davis, 624 F.3d at 512 (admitting evidence of a child molestation that occurred 19 years prior). In the context of the evidence here, the age of the allegations alone is insufficient to prove the district court abused its discretion.
Second, because Joubert‘s defense was that he did not commit the crimes against KC, evidence bearing on KC‘s veracity was probative to determining whether Joubert indeed produced and possessed the illicit recording. The uncharged child molestation testimony was probative of KC‘s veracity because it corroborated aspects of KC‘s testimony, particularly the nature of the abuse and Joubert‘s modus operandi in approaching his victims. Given these corroborating aspects of the witnesses’ testimony, the district court did not abuse its discretion under
Third, although the district court‘s admission of testimony from three other victims strikes us as potentially cumulative, the district court is in much better position to make such judgments. “[T]he balancing act called for by
To be sure, the testimony was very prejudicial. But in light of
C. Jurisdiction
Joubert preserves for Supreme Court review an argument that the VHS tape made out-of-state—the sole connection to interstate commerce—is insufficient to support application to him of the federal criminal statutes under which he was indicted. The federal prohibition on child pornography applies broadly to any person who:
knowingly possesses, or knowingly accesses with intent to view, any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography that has been mailed, or shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including by computer or that was produced using materials that have been mailed, or shipped or transported or in or affecting interstate or foreign commerce by any means, including by computer....
This court recently held that the interstate commerce element is satisfied by the copying of child pornography onto a thumb drive that had traveled interstate. See United States v. Burdulis, 753 F.3d 255, 262 (1st Cir.2014), cert. denied, — U.S. —, 135 S.Ct. 467, 190 L.Ed.2d 350 (2014). Most circuits to consider the question have come to the same conclusion. See United States v. Dickson, 632 F.3d 186, 189-90 (5th Cir.2011); accord United States v. Caley, 355 Fed.Appx. 760, 761 (4th Cir.2009); United States v. Maxwell, 446 F.3d 1210, 1219 (11th Cir.2006); United States v. Angle, 234 F.3d 326, 341 (7th Cir.2000); United States v. Lacy, 119 F.3d 742, 750 (9th Cir.1997). Indeed, Joubert correctly conceded at oral argument that we would have to overturn our decision in Burdulis to rule in his favor on this issue. No relevant distinction suggests that a VHS tape as employed here provides less
D. 480-Month Sentence
Finally, Joubert challenges the substantive reasonableness of his 480-month sentence. We review the substantive reasonableness of a sentence for an abuse of discretion. United States v. King, 741 F.3d 305, 307-08 (1st Cir.2014). “[T]he linchpin of a reasonable sentence is a plausible sentencing rationale and a defensible result.” United States v. Martin, 520 F.3d 87, 96 (1st Cir.2008). “We remember that there is no single reasonable sentence in a particular case but, rather, a universe of reasonable outcomes.” United States v. Batchu, 724 F.3d 1, 13 (1st Cir.2013) (internal quotation marks omitted). “When, as in this case, a district court essays a substantial downward variance from a properly calculated guideline sentencing range, a defendant‘s claim of substantive unreasonableness will generally fail.” United States v. Floyd, 740 F.3d 22, 39-40 (1st Cir.2014).
In making this challenge, Joubert argues several points: (1) that the district court gave short shrift to mitigating factors; (2) that his sentence is statistically longer than the national average; and (3) that a 480-month sentence is an effective life term for 60-year-old Joubert, and thus is too harsh.
Joubert points to several mitigating factors that he thinks the district court underappreciated: his advanced age, his obligations to elderly parents, the non-violent nature of his recordings, and the fact that he never distributed the illicit recordings. But the district court did explicitly consider such factors. It weighed Joubert‘s mitigating factors against his aggravating factors, including that he repeatedly, over the course of decades, used his coaching positions to sexually abuse minors. “That the sentencing court chose not to attach to certain of the mitigating factors the significance that the appellant thinks they deserved does not make the sentence unreasonable.” United States v. Clogston, 662 F.3d 588, 593 (1st Cir.2011). The significance given to each relevant factor is for the district court, not an appellate court, to decide. United States v. Dixon, 449 F.3d 194, 205 (1st Cir.2006).
Even if sex offenders have, on average, shorter sentences than Joubert, that tells us little about the substantive reasonableness of Joubert‘s sentence. “A well-founded claim of disparity ... assumes that apples are being compared to apples.” United States v. Mateo-Espejo, 426 F.3d 508, 514 (1st Cir.2005). By pointing to national statistics, Joubert compares the sentence for his unique offense to the average sentence for others convicted under the same federal statute. A range of conduct is covered under criminal statutes like
III. Conclusion
For the aforementioned reasons, we affirm.
TORRUELLA, Circuit Judge (Concurring).
I join the court‘s opinion in full but write separately to note my disagreement with the state of our Commerce Clause jurisprudence.
It seems counterintuitive that interstate commerce is affected when Joubert purchases a VHS videotape in New Hampshire, records on the VHS videotape in New Hampshire, and neither sells nor attempts to sell the VHS videotape outside of New Hampshire. Indeed, the only argument in support of a connection to interstate commerce is that, in aggregate, this type of behavior has an effect on interstate commerce. This borders on the farcical, as the evidence suggests that the content of the videotape was made exclusively for Joubert‘s own personal use. Any commonsense understanding of “interstate commerce” excludes the conduct at issue here.
Yet, as the court correctly notes, and Joubert himself concedes, this court and most (if not all) of the other circuits have found this connection perfectly acceptable, and thus constitutional. See ante, at 255-56 (collecting cases from other circuits). This “link” to interstate commerce, which is tenuous at best, also effectively gives the federal government unlimited jurisdiction, since there is very little in today‘s society that, when aggregated, would have no impact on interstate commerce. We have put aside common sense in order to federalize conduct which we believe needs to be punished.
Let there be no doubt: I am in full agreement that the behavior Joubert was convicted of must be punished, and punished harshly. This punishment, however, should be meted out by the state under its plenary police power, and not by the federal government with its limited jurisdictional reach.5 See United States v. Lopez, 514 U.S. 549, 552, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” (quoting The Federalist No. 45, at 292-93 (James Madison) (Clinton Rossiter ed., 1961))).
JUAN R. TORRUELLA
UNITED STATES CIRCUIT JUDGE