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United States v. Smith

United States District Court, D. Kansas

September 18, 2017

United States of America, Plaintiff,
v.
Random Shane Smith, Defendant.

          MEMORANDUM AND ORDER

          J. THOMAS MARTEN, JUDGE

         In October of 2015, S.P. and F.P., twin sisters who were then sixteen or seventeen years old, told their mother that her boyfriend, the defendant Random Shane Smith, had been sexually abusing them for some six years. The twins were born in 1998. The mother, a United States Army Sergeant stationed at McConnell Air Force Base in Wichita, Kansas, did not initially believe the information because she believed Smith was impotent and unable to have intercourse. Still, she drove her daughters to Mendota, Illinois to live with her parents. The mother did not report the alleged abuse to law enforcement.

         While the girls were in Mendota, according to information latter supplied to investigators, they received threatening or abusive emails from Smith, including an email from Smith that “I fucking hate you more than anything just fucking die.”

         The girls reported the abuse to their grandparents, who then informed the local police. The police informed armed forces investigators, and two AFOSI Agents, Pingaree and Inness interviewed the girls.[1]

         Summarizing the interview conducted by Pingaree and Inness, a Special Agent of the FBI prepared an affidavit which was submitted to United States Magistrate Judge Gwynne Birzer. The affidavit sought permission to search the mother’s residence at McConnell to investigate likely violations of 18 U.S.C. § 2241(a), 18 U.S.C. § 2251 (production of child pornography), and 18 U.S.C. § 1512(b)(3) and (d) (witness tampering). Based on this affidavit, Judge Birzer authorized a search of the base housing used by the mother and the defendant. The defendant has been charged with two counts of aggravated sexual abuse, in violation of 18 U.S.C. § 2241(a) (Counts 1 and 2, respectively, directed as to each of the two sisters); separate counts of production and possession of child pornography, in violation of 18 U.S.C. § 2251(a) (Count 3 and 4), and one count of tampering with a witness or victim, in violation of 18 U.S.C. § 1512(b)(3) (Count 5).

         The matter is now before the court on two motions by Smith. First, Smith seeks to suppress the results of the warrant. (Dkt. 39). Second, he has moved for a bill of particulars. (Dkt. 36). For the reasons provided herein, the court denies defendant’s motions.

         Much of the affidavit in support of the warrant contains background material as to the investigation and the affiant’s knowledge of the prior cases of abuse. The core of the affidavit, discussing the sexual abuse of S.P. and F.P., is contained in two paragraphs.

         Paragraph 18 provides:

Both MV1 (S.P.) and MV2 (F.P.) confirmed and provided additional details regarding SUBJECT's [Smith’s] sexual abuse of the minor victims, including (but not limited to):
a. Both girls were afraid of SUBJECT, because of his strength, physical size and military training. A few times SUBJECT pushed MV1 to the ground if she refused to comply with SUBJECT's demands for MV1 to perform sexual acts on him.
b. For MV1, the sexual abuse began in Maryland in 2009, where SUBJECT would kiss and lick MV1. The sexual abuse continued when MV1 moved to North Carolina, where SUBJECT forced MV1 to perform sex acts on him. In North Carolina, SUBJECT began subjecting MV1 to penetrative sexual acts.
c. When MV1 moved to [McConnell] in April of 2014, SUBJECT continued to force MV1 to perform sex acts upon, or with, SUBJECT. A few times SUBJECT forced MV1 and MV2 to perform sex acts on him at the same time. Further, SUBJECT used bath robe belt to bind MV1's arms to the bed and use[d] a sleeping mask to blind her face and perform penetrative sexual acts on her. SUBJECT also forced sexual acts to be performed by MV1 in the kitchen on a counter across from the refrigerator at [address redacted], in a dark brown recliner in the living room at [redacted], in the basement at [redacted] on a variety of blankets, on a bed in the bedroom of MV1's mother at [redacted], on Ninja Turtle sheets in MV1 's bedroom at [redacted], and on the bed in the spare bedroom at [redacted].
d. MV2 reported hearing SUBJECT trying to persuade MV1 to perform oral sex on him in Maryland, but did not confront SUBJECT.
e. For MV2, the sexual abuse began later, in North Carolina, where SUBJECT would use his fingers to touch MV2's genitals while she slept.
f. When MV2 moved to MCAFB in April of 2014, SUBJECT continued to sexually abuse MV2, forcing her to perform oral sex while holding and moving her head and subjecting MV2 to penetrative sexual acts. For MV2, SUBJECT would force MV2 to engage in sexual acts in a dark brown recliner in the living room at [redacted], on a bed in the bedroom of MV2's mother at [redacted], and on Disney Minion sheets in MV2's bedroom at [redacted].
g. The sex acts perpetrated by SUBJECT while in Kansas occurred on-base at [redacted], Wichita, Kansas 67210.

         Paragraph 19 is much shorter. It states that S.P. told Pingaree and Inness:

that [Smith] took nude pictures of her genitals, as well as pictures while he engaged in sexual acts with her. She reported he used his cell phone to do this, and that the pictures were taken at [address redacted], Wichita, Kansas, 67210.

         In his motion to suppress, Smith alleges that the affidavit was actively misleading because it failed to identify the following facts revealed in S.P’s interview:

(1) Smith’s photographing S.P during sex was a one-time event, occurring some two years before the affidavit for warrant (Dkt. 39, at 10-11);
(2) the sexual activity occurred without actual force (Id. at 12-13).
(3) Smith deleted the photos shortly after taking them;
(4) To the extent Smith had other sexual photos on his phone, these were all photos of adult women; and
(5) In addition to disbelieving the girls’ report because she believed Smith impotent, their mother also doubted their story because the girls recanted their story shortly afterwards.

         Smith argues the affidavit contained both material misstatements and material omissions. He argues that the affidavit was actively misleading in suggesting the photography was ongoing, when in reality S.P.’s statement indicates that he took five to eight photographs of her vagina or during sex, and that this occurred while they were living in temporary base housing, which would have occurred in February of 2014. In addition, he contends that the allegation of physical force of pushing in Paragraph 18 was actively misleading because S.P. never states in the interview that Smith pushed her during or prior to sexual intercourse.

         Smith argues that the affidavit was deliberately misleading in order obscure the staleness of the information about the sexual photography, and to supply the force element of the federal crime he is charged with. He contends that the affidavit’s allegation of the use of force was deliberately misleading so as to obscure the fact that S.P. had reported that “she had turned down Mr. Smith for sex and that the relationship was a boyfriend dynamic.” (Dkt. 39, at 13).

         Smith argues that the warrant should be suppressed because it is a general warrant which fails to describe with particularity the target of the search, citing decisions such as United States v. Riccardi, 405 F.3d 852, 861-63 (10th Cir. 2005). (Dkt. 39, at 14-17), and that the warrant lacked probable cause. (Id. at 17-23). Moreover, he contends, since the exclusion of the relevant information was intentional or reckless the court must ...


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