                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                  January 24, 2012
                    UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                     Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 11-6059
          v.                                           W.D. Oklahoma
 DEAN LEROY FREERKSEN, III,                     (D.C. No. 5:10-CR-00188-R-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.



I. Introduction

      Dean Leroy Freerksen III was convicted after a jury trial of five counts of

Production of Child Pornography in violation of 18 U.S.C. § 2251(a). His

conviction arose out of a search of a digital camera and other computer equipment

found in a house he shared with his wife and co-defendant, Alicia Danielle

Freerksen, which uncovered digital images depicting, inter alia, the sexual abuse

of CL, an eleven-year-old child. Both Dean and Alicia Freerksen moved to


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
suppress evidence found as a result of the searches, arguing the search warrant

did not support a finding of probable cause when analyzed under the framework

set forth in Franks v. Delaware, 438 U.S. 154 (1978).

      Dean Freerksen raised several other challenges to the validity of the search,

arguing that the magistrate who issued the search warrant was not neutral and

detached, the search warrant was not supported by probable cause, and the

warrant did not meet the particularity requirement of the Fourth Amendment. The

district court denied the motion. On appeal, Freerksen challenges the denial of

his suppression motion on all grounds raised below. He also challenges the

constitutionality of his conviction under the Commerce Clause and the substantive

reasonableness of his fifty-year sentence. Exercising jurisdiction pursuant to 28

U.S.C. § 1291, this court affirms.

II. Background

      A. Search Warrants

      On July 13, 2009, a search warrant was issued authorizing a search of

Freerksen’s residence at 2718 Maple Street in Woodward, Oklahoma. Detective

Mike Morton of the Woodward Police Department prepared the probable cause

affidavit supporting the search warrant. On July 14, 2009, a second search

warrant was issued authorizing the search of a digital camera and computer seized

during the first search. The second search warrant authorized the collection of

“[e]vidence to include letters, digital media, photographs, email correspondence,

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digital images, files, folders all of which include but not be limited to active

and/or deleted media regarding Lewd Molestation and Child Pornography.”

Digital images seized as a result of the second search were admitted into evidence

against Freerksen at trial.

      Both search warrants were issued by Woodward Special District Judge Don

Work. Prior to his appointment as an Oklahoma Judge, Judge Work was

previously employed as an assistant district attorney for Woodward County. In

that capacity, Judge Work had prosecuted Freerksen for assault and battery in

2007 and for lewd molestation in 2008. Judge Work had also sought to accelerate

a deferred sentence Freerksen received in a 2005 case for child stealing.

Freerksen was also charged with rape at the state level for the conduct which gave

rise to the present case. In that state proceeding, the prior convictions in which

Judge Work had participated as an assistant district attorney were used as a basis

for an enhancement of any sentence imposed. Additionally, Judge Work

voluntarily recused himself from hearing the related state rape proceeding

following an in camera request by Freerksen pursuant to Rule 15(a) of the Rules

of the District Court of Oklahoma. 1 Although Freerksen postulated several

      1
          Rule 15(a) provides:

               Before filing any motion to disqualify a judge, an in
               camera request shall first be made to the judge to
               disqualify or to transfer the cause to another judge. If
               such request is not satisfactorily resolved, not less than
                                                                            (continued...)

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possible reasons for Judge Work’s recusal in his Motion to Suppress before the

District Court based “[o]n information and belief,” no record exists explaining the

precise reasons for Judge Work’s recusal.

      B. Sentencing

      After Freerksen’s conviction, the Pre Sentence Report prepared by the

Probation Office set his total offense level at 49 and placed him in a criminal

history category of IV. The Sentencing Guidelines recommended a sentence of

life in prison. The district court sentenced Freerksen to fifty years. The court

recognized that its sentence was “somewhat below the Sentencing Guidelines,”

but was satisfied the sentence would serve the purposes of incapacitation,

deterrence, and just punishment. The sentence imposed was designed to give

Freerksen “some hope at some time of getting out of prison.”

III. Discussion

      A. Search Warrant

               1. Franks Issue

      Freerksen first argues the evidence seized as a result of the search of his

residence should have been suppressed because the warrant affidavit was

defective under Franks. For the reasons set forth in United States v. Alicia


      1
          (...continued)
                ten (10) days before the case is set for trial a motion to
                disqualify a judge or to transfer a cause to another judge
                may be filed and a copy delivered to the judge.

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Freerksen, No. 11-6044, slip op. at 5–8 (10th Cir. 2012), the court rejects this

argument.

               2. Neutral and Detached Magistrate Requirement

      Freerksen next argues the warrant authorizing the search of his residence

was invalid because the issuing magistrate was not “neutral and detached” as

required by the Fourth Amendment. See United States v. Ramirez, 63 F.3d 937,

941 (10th Cir. 1995). The court reviews factual questions related to the neutral-

and-detached determination for clear error and views the evidence in the light

most favorable to the government, the prevailing party below. Id. at 940. The

ultimate neutral-and-detached determination is reviewed de novo. Id. A search

conducted based on a warrant authorized by a magistrate who lacks the requisite

neutrality and detachment “stands on no firmer ground than if there had been no

warrant at all.” Coolidge v. New Hampshire, 403 U.S. 443, 453 (1971).

“Whether a magistrate was neutral and detached in any particular case is

necessarily an individualized and contextual inquiry. Courts must focus on the

specific circumstances surrounding the issuance of the warrant . . . .” Ramirez, 63

F.3d at 941.

      Freerksen contends Judge Work was not neutral and detached because he

recused himself from a related state proceeding and because prior to becoming a

judge he prosecuted Mr. Freerksen for two sex offenses while working as an

assistant district attorney in Woodward County. These two facts are insufficient

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to show Judge Work was not “neutral and detached.” A warrant issued by a

magistrate who had previously prosecuted the defendant does not violate the

Fourth Amendment. United States v. Outler, 659 F.2d 1306, 1312 (5th Cir.

1981), overruled on other grounds by United States v. Steele, 147 F.3d 1316,

1317 (11th Cir. 1998). Nor under these circumstances does Judge Work’s recusal

show he lacked the requisite neutrality and detachment to issue the search warrant

in this case. Judge Work’s recusal came after an in camera request made by

Freerksen’s counsel pursuant to Rule 15(a) of the Rules of the District Court of

Oklahoma. There is therefore no record of the basis for the recusal. There is also

no evidence Judge Work acted improperly or considered matters outside the

warrant affidavit when making his probable cause determination. The court

therefore rejects this argument.

             3. Computer Equipment

      Freerksen next raises two challenges to the seizure and subsequent search

of computer equipment. First, he argues no probable cause existed to seize

computer equipment at his residence. Second, he argues the warrant authorizing

the search of the computer did not “particularly describ[e] the place to be

searched, and the persons or things to be seized.” U.S. Const. Amend. IV. The

government represented to the district court that the photographic evidence used

to convict Freerksen was discovered both on a memory card in the camera and on

the computer. The evidence seized from the computer was therefore cumulative.

                                         -6-
Freerksen acknowledges his challenges to the search and seizure of the computer

equipment are material only if he prevails on his Franks challenge to the search

of his residence and seizure of the camera. Because the court has rejected

Freerksen’s Franks argument supra at III.A.1, it need not consider his challenges

to the search and seizure of the computer equipment.

      B. Subject Matter Jurisdiction

      Freerksen next argues the district court lacked subject matter jurisdiction

over the activities charged in the indictment because of an insufficient nexus

between his charged conduct and interstate commerce to support federal

jurisdiction under the Commerce Clause. Freerksen acknowledges this argument

is foreclosed by United States v. Jeronimo-Bautista, 425 F.3d 1266 (10th Cir.

2005). He nonetheless raises this issue to preserve it in the event Jeronimo-

Bautista is abrogated by an en banc panel of this court or by the Supreme Court.

The court therefore affirms.

      C. Sentence

      Freerksen argues the district court’s sentence was substantively

unreasonable. This court disagrees. “We review sentences under an abuse of

discretion standard for procedural and substantive reasonableness.” United States

v. Washington, 634 F.3d 1180, 1184 (10th Cir. 2011). “A district court abuses its

discretion when it renders a judgment that is arbitrary, capricious, whimsical, or




                                         -7-
manifestly unreasonable.” United States v. Alvarez-Bernabe, 626 F.3d 1161,

1165 (10th Cir. 2010) (quotations omitted).

      Freerksen first argues his sentence is unreasonably disproportionate to that

of his wife, Alicia Freerksen, who pleaded guilty and was sentenced to ten years’

imprisonment on a single charge of possession of child pornography after she

testified against Freerksen at trial. This court has stated that “a disparity among

co-defendants is justified when sentences are dissimilar because of a plea

bargain.” United States v. Zapata, 546 F.3d 1179, 1194 (10th Cir. 2008)

(quotation omitted). The district court therefore did not abuse its discretion by

sentencing Freerksen more harshly than his wife.

      Freerksen next argues his sentence was unreasonable because it was based

in part on the child pornography Sentencing Guidelines, which, he argues, are

themselves unduly harsh. The cases and commentary Freerksen cites for this

proposition, however, concern U.S.S.G. § 2G2.2, which applies to cases involving

simple possession or transmission of child pornography. See, e.g., United States

v. Hanson, 561 F. Supp. 2d 1004, 1008 (E.D. Wis. 2008) (citing testimony from

therapist that “there was no evidence to suggest (and he did not believe) that

defendant ever actually abused a child, something that is always a concern in

these types of cases” as part of rationale for departing downward from

Guidelines-recommended sentence); Troy Stabenow, Deconstructing the Myth of

Careful Study: A Primer on the Flawed Progression of The Child Pornography

                                         -8-
Guidelines, 26–27 (Jan. 1, 2009), http://www.fd.org/pdf_lib/child%20

porn%20july%20revision.pdf (concerning sentencing of “typical defendant”

sentenced under § 2G2.2 with no prior criminal history). The Guideline

applicable to Freerksen’s offense, however, was U.S.S.G. § 2G2.1, which

concerns the sexual exploitation of children. Freerksen’s offenses involved, inter

alia, the rape of an eleven-year-old girl which was documented with digital

photographs. Moreover, he received a sentence which was lower than that

recommended by the Guidelines. The district court’s decision not to give

Freerksen an even lower sentence was not arbitrary, capricious, whimsical, or

manifestly unreasonable.

IV. Conclusion

      For the foregoing reasons, the judgment of the district court is

AFFIRMED.

                                              ENTERED FOR THE COURT


                                              Michael R. Murphy
                                              Circuit Judge




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