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United States v. Himmelreich

June 16, 2006

UNITED STATES OF AMERICA
v.
WALTER HIMMELREICH, DEFENDANT



The opinion of the court was delivered by: Judge Kane

MEMORANDUM

I. Introduction

On June 1, 2005, a Grand Jury returned a three-count indictment charging Defendant Walter Himmelreich with: (i) knowingly permitting his minor child to engage in sexually explicit conduct for the purpose of producing visual depictions of such conduct using materials that were shipped and transported in interstate and foreign commerce, in violation of 18 U.S.C. § 2251(b); (ii) knowingly receiving and distributing child pornography in violation of 18 U.S.C. § 2252A(a)(2); and (iii) knowingly possessing child pornography that had been mailed, shipped, and transported in interstate and foreign commerce, in violation of 18 U.S.C. § 2252A(a)(5)(B). (Doc. No. 1.) On April 19, 2006, the Grand Jury returned a superseding indictment, charging Defendant with an additional count of knowingly using a facility and means of interstate commerce to attempt to persuade, induce, entice, and coerce a minor to engage in a sexual activity for which any person can be charged with a criminal offense, and aiding and abetting the same. (Doc. No. 63.)

On October 21, 2005, Defendant filed three pretrial motions seeking to dismiss the indictment for violation of the Speedy Trial Act pursuant to 18 U.S.C. § 3161(b); seeking to suppress statements given while in custody; and seeking to suppress evidence discovered during a search of his vehicle. (Doc. Nos. 29, 31, 33.) On March 29, 2006, the Court held an evidentiary hearing to consider each of the motions. The Government filed a consolidated brief in opposition to each of the motions on April 14, 2006. (Doc. No. 61.) Defendant filed a reply on April 19, 2006. (Doc. No. 62.)

II. Factual Background*fn1

Between January and November, 2004, Defendant engaged in numerous internet chatting sessions under the screen name "walthpa" with an interlocutor he believed to be a mother willing to make her two minor daughters available for sex acts with Defendant. (Tr. 53.) During these chats, Defendant provided graphic details regarding the sexual activities he sought to engage in with these minor girls, and also various sex acts he had engaged in with his six-year-old daughter. (Tr. 54.) Defendant described using anal lubricants, dildos, condoms, and bananas in the sex acts. (Tr. 54) During the course of these chat sessions, Defendant agreed to meet his chat correspondent and her daughters at a restaurant in Delaware County, Pennsylvania, on November 9, 2004, with a stated plan of engaging in sexual activity with the girls. (Tr. 53-54.) Defendant further agreed to bring to this meeting sex toys, wine, condoms, bananas, and lubricant. (Tr. 54.)

Unbeknownst to Defendant, the individual he believed was a mother willing to make her minor children available to Defendant for sexual activity was in fact undercover law enforcement officer Michelle Deery. At all times during these chats, Ms. Deery was an agent with the Pennsylvania Office of the Attorney General assigned to the Delaware County District Attorney's Office Internet Crimes Against Children ("ICAC") Task Force.*fn2 (Tr. 38-39.) Created in 1999, the Delaware County ICAC Task Force is one of 45 such task forces throughout the United States. (Tr. 7.) Lieutenant David C. Peifer of the Delaware County District Attorney's Office Criminal Investigation Division supervises the ICAC Task Force and testified regarding the ICAC Task Force's funding and criminal investigative functions. (Tr. 6-7.)

The ICAC Task Force receives Federal grant funding through the Office of Juvenile Justice and Delinquency Prevention in Washington, D.C., which provides funds to support state and local law enforcement efforts in the investigation of crimes against children committed through use of the Internet. (Tr. 9.) In certain cases, the ICAC Task Force will coordinate its investigative efforts with Federal agencies. (Tr. 11-12.) However, no Federal agency has involvement in the executive committees of ICAC task forces, and all investigations are coordinated and supervised by the local task force. (Tr. 13.) With respect to the investigation into Defendant's conduct through his eventual arrest on November 9, 2004, only the Delaware County ICAC Task Force and a local police department were involved. (Tr. 14.)

On November 9, 2004, Defendant drove from his home in York County, Pennsylvania, to an Applebee's Restaurant in Delaware County, Pennsylvania, where he planned to meet a mother and her two minor children.*fn3 (Tr. 42-43.) Defendant left his vehicle and began walking toward the restaurant, at which point he was placed under arrest by ICAC Task Force officers. (Tr. 42.) While Defendant was being secured, Detective Deery looked in the passenger-side window of Plaintiff's vehicle and observed wine bottles and bananas, two items Defendant referred to in his chat sessions. (Tr. 54.) Following his arrest, Defendant's vehicle was impounded and an inventory search conducted. (Tr. 56-57.) While in custody, Defendant was asked for consent to search his vehicle prior to the inventory search being conducted. Defendant signed a written consent. (Tr. 56.) A subsequent search of Defendant's vehicle yielded dildos, condoms, and lubricant, all items that Defendant stated that he would bring to his planned encounter with the mother and her two minor daughters. (Tr. 57-58.)

Following his arrest, Himmelreich was transported to the Delaware County District Attorney's Office Criminal Investigation Division at the county courthouse in Media, Pennsylvania. (Tr. 17.) While in custody, Defendant was given Miranda warnings. (Tr. 20.) After Defendant waived his rights, he was interviewed by Lieutenant Peiffer and Detective Deery. (Id.) After this interview was complete, investigating officers had Defendant make a recorded statement to memorialize the interview. (Id.) At the beginning of this taped statement, Defendant was once again advised of his constitutional right to remain silent and to have an attorney present, and he executed a form to indicate that he understood and waived these rights. (Id. 20, 107-09; Def. Ex. 2.) As indicated on the transcript of this recorded statement, Defendant acknowledged that he was proceeding without an attorney present and he proceeded to provide a statement.*fn4 (Tr. 20; Def. Ex. 2.)

During the recorded interview, Defendant admitted that he had engaged in Internet chats during which he discussed engaging in sex acts with persons he believed to be children. (Tr. 31.) Defendant also admitted that he had taken nude pictures of his six-year-old daughter, and that he had engaged in oral-genital contact with her, and that there had been instances in which she had oral-genital contact with him through his clothing while he had an erection. (Tr. 28.) Defendant discussed with officers possessing a "doctor's kit" that was used to play with his daughter during the sexual contacts.*fn5 (Tr. 29-30.) Although Defendant claimed that he stopped at the Applebee's Restaurant in Delaware County, Pennsylvania, on November 9, 2004 only to advise his internet chat partner that he was unwilling to go through with their plan, he acknowledged that he had in his possession all of the items that he described in his Internet chat sessions -- namely, lubricants, condoms, dildos, bananas, and wine.*fn6 (Tr. 30-31.) Defendant telephoned Detective Deery several times while he was en route to the Applebee's Restaurant.

Based on all of the foregoing information and statements, Detective Deery prepared an affidavit in support of criminal charges against Defendant in Delaware County. (Tr. 49.) Detective Deery forwarded her affidavit to York County Detective Jeffrey Martz, who used the information in support of an application for a warrant to search Defendant's York County residence. (Tr. 51-52.)

III. Discussion

A. Motion to Dismiss Indictment

Defendant has moved to dismiss the indictment pursuant to 18 U.S.C. ยง 3161(b), charging that the delay between his arrest by state law enforcement authorities and his eventual indictment by the United States should be considered a violation of the Speedy Trial Act. Specifically, Defendant argues that because he was arrested by law enforcement officers working for a State task force that receives Federal funding and training, and that frequently coordinates with Federal law enforcement in the investigation and prosecution of child pornography crimes, his initial arrest and detention should be considered a Federal matter ...


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