                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-15-2008

USA v. Himmelreich
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-5186




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"USA v. Himmelreich" (2008). 2008 Decisions. Paper 1587.
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                                                               NOT PRECEDENTIAL


        UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                                     No. 06-5186



                           UNITED STATES OF AMERICA

                                            v.

                             WALTER HIMMELREICH,
                                             Appellant



                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                (D.C. No. 05-cr-00214)
                        District Judge: Honorable Yvette Kane



                      Submitted Under Third Circuit LAR 34.1(a)
                                 February 11, 2008

            Before: SLOVITER, SMITH, and STAPLETON, Circuit Judges.

                               (Filed February 15, 2008)
                                         ____

                                      OPINION


SLOVITER, Circuit Judge.

      Walter Himmelreich appeals his conviction and sentence for producing child

pornography in violation of 18 U.S.C. § 2251(b). Himmelreich argues that the search
warrant used to seize evidence from his house violated the particularity clause of the

Fourth Amendment, that he was indicted in violation of the Speedy Trial Act, and that his

sentence was unreasonable because the District Court failed to adequately explain its

rationale for an upward variance. We will affirm.

                                              I.

       Himmelreich was arrested on November 9, 2004, by the Delaware County District

Attorney’s Office Internet Crimes Against Children (“ICAC”) Task Force when he

arrived at the rendezvous he had arranged in Internet chats with an undercover agent

posing as the mother of two prepubescent daughters. After waiving his Miranda rights,

Himmelreich told the police that he had engaged in sexual contact with his six-year-old

daughter, had taken nude pictures of her, and had sent such pictures to a third party. A

consequent search of his house revealed images and videos of child pornography on his

computer, a disk with nude pictures of his daughter, and chat conversations indicating

that he had sent such pictures to a third party.

       Himmelreich was charged on several counts in state court; he was thereafter

indicted on June 1, 2005 in federal court, and eventually pled guilty to a single count of

producing child pornography. The District Court sentenced Himmelreich to 240 months

imprisonment, a term that fell between the statutory mandatory minimum of 180 months

and the statutory maximum of 360 months. See 18 U.S.C. § 2251(e). Himmelreich




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timely appealed.1

                                            II.

       We exercise plenary review over a district court’s denial of a motion to suppress

evidence, see United States v. Zimmerman, 277 F.3d 426, 432 (3d Cir. 2002), and its

application of the Speedy Trial Act, see United States v. Willaman, 437 F.3d 354, 357 (3d

Cir. 2006). Because Himmelreich failed to object to the District Court’s sentencing

procedure, we will review that procedure for plain error. See United States v. King, 454

F.3d 187, 193-94 (3d Cir. 2006). We review the reasonableness of the sentence by

considering the application of the 18 U.S.C. § 3553(a) factors to the circumstances of the

case; Himmelreich retains the burden to demonstrate unreasonableness. See id. at 194

(citing United States v. Cooper, 437 F.3d 324, 329-32 (3d Cir. 2006)).

                                           III.

       Himmelreich first challenges the particularity of the search warrant. A search

warrant must “particularly describ[e] the place to be searched, and the persons or things

to be seized.” U.S. Const. amend. IV. “General warrants violate the Fourth Amendment

because they essentially authorize ‘a general exploratory rummaging in a person’s

belongings.’” United States v. Yusuf, 461 F.3d 374, 393 (3d Cir. 2006) (quoting

Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971)). “When a warrant is

accompanied by an affidavit that is incorporated by reference, the affidavit may be used


   1
    The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                             3
in construing the scope of the warrant.” United States v. Johnson, 690 F.2d 60, 64 (3d

Cir. 1982) (citations omitted); accord Groh v. Ramirez, 540 U.S. 551, 557-58 (2004).

       Here, the search warrant allowed law enforcement to search and seize any

computers, computer peripherals, cameras, photos, e-mails, and chat messages at

Himmelreich’s residence. On the basis of that warrant, the police seized thirteen items,

including three computers, three cameras, disks, and photographs. Himmelreich argues

that the breadth of the warrant violated the Fourth Amendment. He also urges the court

to adopt a procedure requiring law enforcement authorities to provide clear techniques

and limitations for searches involving computers.

       Because the search warrant focused almost exclusively on storage media and it

incorporated by reference the probable cause affidavit, which recounted Himmelreich’s

admissions that he had conducted Internet chats regarding child pornography and taken

nude pictures of his daughter, the search warrant, taken as a whole, was sufficiently

particularized. Accordingly, we decline to adopt any particular procedures governing the

search of computers. The warrant, which includes both the application and authorization

in the same document, clearly requires the attachment of the probable cause affidavit.

Himmelreich did not argue in the District Court that it was not so attached, nor does he

provide such evidence now. Therefore, we decline to remand on the basis of

Himmelreich’s unsupported suggestion, raised for the first time in his reply brief on

appeal, that the government may have failed to attach the probable cause affidavit to its

search warrant.

                                             4
       Next, Himmelreich challenges his indictment under the Speedy Trial Act, which

provides that “[a]ny information or indictment charging an individual with the

commission of an offense shall be filed within thirty days from the date on which such

individual was arrested or served with a summons in connection with such charges.” 18

U.S.C. § 3161(b). A violation of that provision requires dismissal of the indictment. Id. §

3162(a)(1). Himmelreich contends that his June 1, 2005 federal indictment was untimely,

arguing that the federal funding, technical assistance, advice, and coordination associated

with ICAC task forces render his November 9, 2004 arrest and subsequent detention a

federal matter for purposes of the Speedy Trial Act. Neither the facts of this case nor the

precedents cited by Himmelreich support his position.

       We have previously recognized that Congress rejected a transactional test under

which the state-court complaints against Himmelreich would have triggered the thirty-day

time period in a later federal case. See United States v. Watkins, 339 F.3d 167, 174-75 &

nn.5-6 (3d Cir. 2003). In United States v. Thomas, 55 F.3d 144, 148 (4th Cir. 1995), the

Fourth Circuit explained that a “joint state-federal investigation” leading to a defendant’s

arrest and detention by state officers does not implicate the Speedy Trial Act until the

defendant is taken into federal custody. Thus, even if the ICAC Task Force were

considered a “joint state-federal investigation,” a contention which is explicitly denied in

the arresting officer’s testimony, Himmelreich’s initial arrest and detention did not start

the clock for Speedy Trial Purposes under the reasoning of Thomas.

       Finally, Himmelreich challenges the reasonableness of his sentence, which

                                              5
represented a five-year upward variance from the advisory range under the 2003 version

of the United States Sentencing Guidelines applicable here. “[W]hen the district court

imposes a sentence that varies significantly from the advisory Guidelines range and a

party has made objections with legal merit that the variance is unjustified by the record,

the district court has an obligation to explain why the variance is justified,” with

explanations that “go beyond mere formalism.” United States v. Kononchuk, 485 F.3d

199, 204 (3d Cir. 2007). However, as Himmelreich failed to object to his sentence at the

time it was imposed, we need only engage in plain error review of whether the District

Court imposed a reasonable sentence after meaningfully considering and rationally

applying the § 3553(a) factors to the circumstances of this case. See King, 454 F.3d at

195 (citing Cooper, 437 F.3d at 330).

       Himmelreich contends merely that the District Court gave an inadequate

explanation for the variance. However, the District Court plainly explained the rationale

for the sentence imposed, focusing on the seriousness of the offense, in which

Himmelreich exploited his six-year-old daughter by sending nude pictures of her over the

Internet, and the danger he posed to the community, as “he was a contact offender with

his own child” and was attempting to engage in similar behavior at the time of his arrest.

App. at 557. The District Court expressly referred to the gravity of Himmelreich’s

offense in light of the government’s request for a statutory maximum sentence. It

concluded that the mandatory minimum “goes a long way to addressing the threat that

[Himmelreich] poses,” but “that a sentence beyond the [statutory] minimum but

                                              6
somewhat less than the [statutory] maximum penalty is appropriate in this case.” App. at

558. Thus, the District Court not only gave meaningful consideration to the § 3553(a)

factors, but it also explicitly considered the appropriate extent of the variance ultimately

imposed. Under these circumstances, we are satisfied that the District Court did not act

unreasonably in imposing a 240-month sentence of imprisonment.

                                             IV.

       For the above-stated reasons, we will affirm the judgment of conviction and

sentence.




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