                                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                   __________

                                        No. 16-3600
                                        __________

                            UNITED STATES OF AMERICA,

                                              v.

                                  ERIC VANDERBECK,
                                              Appellant

                                        __________

                     On Appeal from the United States District Court
                             for the District of New Jersey
                               (Crim. No. 3:15-cr-00165)
                         District Judge: Hon. Freda L. Wolfson
                                      __________

                        Submitted under Third Circuit LAR 34.1(a)
                                     July 11, 2017

                 Before: SMITH, Chief Judge, FUENTES, Circuit Judge,
                           and STARK,† Chief District Judge

                                   (Filed: July 21, 2017)

                                        __________

                                         OPINION*
                                        __________



†
  Honorable Leonard P. Stark, Chief Judge of the United States District Court for the
District of Delaware, sitting by designation.
*
  This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
sSTARK, Chief District Judge.

       Erik Vanderbeck (“Vanderbeck” or “Defendant”) appeals his conviction for child

pornography offenses. We will affirm.

                                               I

                                              A

       Vanderbeck is a 47-year-old male who resided in Bayonne, New Jersey, during all

relevant times. From 2011 to 2014, Vanderbeck used online messaging services to

communicate with underage females, asking them to send him sexually explicit

photographs and videos of themselves.

       Law enforcement first learned of Defendant’s activities in November 2013, when

the mother of one of his victims located in Missouri intercepted what she believed to be a

suspicious package addressed to her daughter. The intercepted package contained “a

vibrator, a black t-shirt, a Ziplock storage bag, and a return envelope” that was addressed

to Defendant’s address in New Jersey. (App. at 937-38) Law enforcement interviewed

the victim, who admitted that she had been engaging in sexually explicit email

communications with Defendant since around October 2013. After obtaining the victim’s

consent, law enforcement assumed the victim’s online identity for purposes of

communicating with Defendant.

       Thereafter, a Missouri state court judge signed a warrant to search Defendant’s

email account “for evidence of violations of . . . state sex offense statutes.” (Id. at 939)

The subsequent search executed pursuant to that warrant “revealed sexually explicit


                                              2
communications between [Defendant] and several other minor females as far back as in

or around 2011.” (Id. at 940) Of these minor female victims, three – referred to as Amy,

Casey, and Joanna – are most relevant to the issues here.

      Amy began communicating with Defendant when she was 13 years old. In his

communications with Amy, Defendant assumed the name “Bubba” and claimed to be in

his early twenties. At Defendant’s request, Amy sent pornographic images of herself,

and Defendant sent Amy other pornographic images. Amy further complied with

Defendant’s request to share images of her performing sex acts on herself. When Amy

attempted to end her contact with Defendant, Defendant refused, and threatened to “do

something physical” to her if she stopped. (Id. at 588) He further threatened to post

Amy’s images on different websites and send them to her father.

      Casey began communicating with Defendant in 2013 when she was 15 years old.

With her, Defendant again used the pseudonym “Bubba,” telling Casey he was 18 years

old. During the course of their online communications, Casey sent Defendant several

pornographic pictures of herself at Defendant’s request.

      Joanna began communicating with Defendant in 2014 when she was 15 years old.

Defendant identified himself to Joanna as a 16-year-old girl named “Megan.” When

Joanna requested a picture to confirm Megan’s identity, Defendant sent Joanna a picture

of Amy. Eventually, Defendant introduced Joanna to Megan’s 18-year-old brother,

“Andrew.” Andrew sent Joanna pornographic pictures, and – in response to Andrew’s

threats to post other pictures of her online – Joanna sent Andrew pornographic pictures.


                                            3
                                            B

      The federal investigation into Vanderbeck’s online activities began in April 2014.

On June 26, 2014, federal postal inspectors obtained a search warrant for Defendant’s

email accounts. Subsequently, on June 30, 2014, postal inspectors interviewed two

underage females who had engaged in sexually explicit online communications with

Defendant.

      Following these interviews and the search of Defendant’s email accounts, postal

inspectors obtained a warrant to search Defendant’s residence. Inspectors executed the

warrant on July 22, 2014. In the course of the search, inspectors seized an external hard

drive, two internal hard drives, and a cell phone. A forensic review of these devices

revealed 81 pornographic images of Amy, 29 pornographic videos of Amy, four

pornographic images of Casey, one pornographic image of Joanna, and pornographic

images of other minor victims. (See Presentence Investigation Report (“PSR”) ¶ 30)

      While the search of Defendant’s residence was ongoing, two postal inspectors –

Greg Kliemisch (“Kliemisch”) and Ann Kolczynski (“Kolczynski”) – along with

Bayonne Police Department Detective Brian Borow, interviewed Defendant. The

interview, which lasted approximately three hours, occurred in Kliemisch’s vehicle.

Kliemisch digitally recorded the interview. During the interview, Defendant admitted

that he used his email address in the conversations with his victims and acknowledged

that he assumed various identities during his online interactions with them. Defendant

further admitted that he knew that Amy and Casey were minors when they sent him


                                            4
pornographic images of themselves. Defendant also admitted that he distributed Amy’s

pictures when he was pretending to be Megan.

       Kliemisch’s recording did not capture anyone administering a Miranda warning to

Vanderbeck before the interview began. Nor did the recording reflect anyone telling

Defendant at any time that he was free to stop the interview and leave. However,

Kliemisch, Kolczynski, and Borow testified at a suppression hearing that Kliemisch did,

in fact, administer a Miranda warning, before the recorder was turned on at the start of

the interview. All three agents further testified that Vanderbeck had waived his Miranda

rights. This is also reflected in Kolczynski’s investigative report, dated July 30, 2014,

which states that Defendant was read and waived his Miranda rights prior to the start of

the interview.

       After the interview concluded, Defendant agreed to be taken for a polygraph test.

When the polygraph test concluded, Defendant was arrested.

                                             C

       The case against Vanderbeck ultimately proceeded on a five-count superseding

indictment charging him with three counts of production of child pornography, in

violation of 18 U.S.C. § 2251(a); one count of distribution of child pornography, in

violation of 18 U.S.C. § 2252A(a)(2)(A); and one count of possession of at least three

images of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).

       Among the pretrial motions Defendant filed, two are pertinent to his appeal.

Defendant moved to suppress the statements he made during the interview and also


                                             5
moved to dismiss the indictment for lack of probable cause to support the warrant to

search his residence. Following an evidentiary hearing, the District Court denied both

motions.

       Trial began on April 5, 2016. On April 7, the District Court granted the

government’s motion to dismiss Count One. On that same day, Vanderbeck moved for a

mistrial, based on Joanna’s testimony that Defendant’s communications had driven her to

contact a suicide hotline. The District Court denied Defendant’s motion. On April 8, the

jury found Defendant guilty of all remaining counts.

       On September 12, 2016, the District Court sentenced Vanderbeck to 22 years in

prison. He filed a notice of appeal on the same day.1

                                             II

       Vanderbeck moved to suppress the statements he gave in the interview with law

enforcement while the search of his residence was being conducted. He contends that the

interview, which took place in a postal inspector’s vehicle, was a custodial interrogation,

yet he was not administered Miranda warnings prior to questioning.2 At a hearing, the

District Court heard the testimony of the two postal inspectors and one Bayonne police

detective who had been involved in the interview. Finding the witnesses’ testimony

credible, the District Court determined that while Defendant had been in custody, he had


1
  The District Court had jurisdiction over this criminal case pursuant to 18 U.S.C. § 3231.
This Court has jurisdiction pursuant to 28 U.S.C. § 1291.
2
  Vanderbeck certified that he does not recall being read his rights, although he does not
expressly deny that it occurred.

                                             6
been given the required Miranda warnings and had waived his right to remain silent.3

The Court denied the motion to suppress.

       We review “the denial of a suppression motion for clear error as to the underlying

facts, but exercise plenary review as to its legality in light of the district court’s properly

found facts.” United States v. Coles, 437 F.3d 361, 365 (3d Cir. 2006). When the

District Court’s denial of a suppression motion is based on credibility determinations, the

“fact-finder’s determination of credibility is not subject to appellate review.” Gov’t of

Virgin Islands v. Gereau, 502 F.2d 914, 921 (3d Cir. 1974), abrogated on other grounds

by Corley v. United States, 556 U.S. 303 (2009); see also United States v. Bethancourt,

65 F.3d 1074, 1078, 1081 n.4 (3d Cir. 1995) (“Determining the credibility of witnesses is

uniquely within the province of the trial court and this court will not review this

determination.”).

       It is unnecessary for us to decide whether Vanderbeck was in custody because the

District Court’s finding that he was properly advised of his rights before questioning

began, and waived those rights, is not clearly erroneous and is dispositive.4 If he was not

in custody, the Miranda warnings were unnecessary; if he was in custody, then his rights

were protected by the administration of those warnings and his voluntary decision

3
  See App. at 142 (District Court stating “the testimony of Inspector Kliemisch [was]
credible,” “the Miranda warnings were indeed issued,” and “I certainly find by well more
than a preponderance of the evidence that [Defendant] was advised of his warnings”).
4
  Factual determinations are clearly erroneous only if they “[are] completely devoid of
minimum evidentiary support displaying some hue of credibility, [and] . . . bear[] no
rational relationship to the supportive evidentiary data.” Krasnov v. Dinan, 465 F.2d
1298, 1302 (3d Cir. 1972).
                                              7
thereafter to answer questions. See United States v. Willaman, 437 F.3d 354, 359 (3d Cir.

2006) (“Miranda, of course, requires warnings only when the person the police are

questioning is in custody.”); see also Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980)

(“We conclude that the Miranda safeguards come into play whenever a person in custody

is subjected to either express questioning or its functional equivalent.”). The District

Court found that all three officials involved in the interview testified credibly that

Defendant was read his Miranda rights by Inspector Kliemisch before the questioning

(and the recording) began, and that Defendant then waived his rights and agreed to

answer questions. We will not disturb these credibility findings on appeal. See Gereau,

502 F.2d at 921 (“It is the law of this Circuit, as well as many others, that a fact-finder’s

determination of credibility is not subject to appellate review.”).5

       Accordingly, the District Court properly denied Defendant’s motion to suppress.

                                              III

       Vanderbeck challenges the District Court’s denial of his motion to dismiss the

indictment based on the purported lack of probable cause to support the search warrant

for his residence. In Defendant’s view, probable cause was lacking because none of his

victims could “identify[] him with sufficient precision to satisfy the veracity and

reliability requirements for [g]overnment informants.” (Appellee Br. at 19)


5
  Other record evidence supports the testimony the District Court credited. For example,
Inspector Kolczynski documented that Defendant was read and waived his Miranda
rights prior to the interview. Inspector Kliemisch explained that the audio recording
failed to capture the Miranda warning because he had never before audio recorded an
interview.
                                             8
       “We apply a mixed standard of review to a district court’s decision on a motion to

dismiss an indictment, exercising plenary review over legal conclusions and clear error

review over factual findings.” United States v. Stock, 728 F.3d 287, 291 (3d Cir. 2013).

With respect to the probable cause analysis, this Court “conduct[s] . . . a deferential

review of the initial probable cause determination made by [a] magistrate [judge].”

United States v. Stearn, 597 F.3d 540, 554 (3d Cir. 2010). In reviewing the magistrate

judge’s probable cause determination, this Court’s role is “to determine whether ‘the

magistrate had a substantial basis for concluding that probable cause existed.’” Id.

(quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).

       The District Court properly denied Defendant’s motion. Although styled as a

motion to dismiss, Defendant’s arguments could only properly have been made in a

motion to suppress. See United States v. Rose, 538 F.3d 175, 182 (3d Cir. 2008)

(“[U]nder [Federal Rule of Criminal Procedure] 12, a suppression argument raised for the

first time on appeal is waived (i.e., completely barred) absent good cause. . . . [O]ur

holding applies . . . where the defendant failed to file a suppression motion at all in the

district court.”); see also United States v. Blue, 384 U.S. 251, 255 (1966) (“Our numerous

precedents ordering the exclusion of . . . illegally obtained evidence assume implicitly

that the remedy does not extend to barring the prosecution altogether.”).

       Defendant’s contentions likewise fail on the merits. Even assuming that his

victims could not sufficiently identify him, and ignoring their statements, the remainder

of the application for the search warrant amply supports a finding of probable cause to


                                              9
believe that Vanderbeck’s residence would contain evidence of child pornography

offenses. As just some examples, the application referred to: the package containing “a

vibrator, a black t-shirt, a Ziplock storage bag, and a return envelope” that was sent to a

Missouri 14-year-old, with a return address label and return envelope with Vanderbeck’s

name and address in New Jersey; the several searches of Defendant’s email

communications, which “revealed sexually explicit email communications” between

Defendant and his victims; and “[t]he results of grand jury subpoenas” to Defendant’s

email and internet providers, which “revealed that the email account [Defendant] used to

communicate with [his victims] was registered to an IP address registered to

[Defendant]” at the address that the application sought to search. (App. at 937-43)

       Accordingly, the District Court properly denied Defendant’s motion to dismiss.

                                             IV

       Vanderbeck’s application for a mistrial arose from the testimony of one of his

victims, Joanna. At the conclusion of her direct examination, Joanna stated that she had

spoken with a suicide hotline regarding “Megan or Bubba,” aliases that Defendant used

in his communications with her. (See App. at 459-60) To Defendant, Joanna’s testimony

warrants a mistrial because it was unfairly prejudicial, “sway[ing] the jury to react on

emotion.” (App. at 491)

       “We review the denial of a motion for a mistrial based on a witness’s allegedly

prejudicial comments for an abuse of discretion.” United States v. Lore, 430 F.3d 190,

207 (3d Cir. 2005). “Our inquiry focuses on whether any conduct at trial was so


                                             10
prejudicial that [the] defendant was deprived of a fundamental right.” United States v.

Xavier, 2 F.3d 1281, 1285 (3d Cir. 1993). In the present context, “[t]hree factors guide

this inquiry: (1) whether [the allegedly prejudicial] remarks were pronounced and

persistent, creating a likelihood they would mislead and prejudice the jury, (2) the

strength of the other evidence, and (3) curative action taken by the district court.” Id.; see

also United States v. Riley, 621 F.3d 312, 336 (3d Cir. 2010) (same).

       Applying these factors, it is clear that the District Court did not abuse its discretion

in denying the request for a mistrial. Joanna’s remarks were not pronounced and

persistent; instead, they were made once at the very end of her testimony. The totality of

the testimony is as follows:

              Q.     Did you ever communicate with any adults in your life regarding
                     Megan or Bubba?

              A.     Yes, ma’am.

              Q.     Who or when or what were the circumstances?

              A.     On a suicide hotline.

              [Q.]   I have no further questions for this witness, your Honor.


(App. at 459-60)

       These few moments of testimony in the course of a four-day trial cannot be

viewed as “pronounced and persistent,” nor “systematic” and “permeat[ing] the

proceedings with prejudice.” United States v. Morena, 547 F.3d 191, 196-97 (3d Cir.

2008); see also Riley, 621 F.3d at 336 (finding remarks made twice “in testimony that


                                              11
spanned three days over the course of a five week trial” were not pronounced and

persistent).6

       Turning to the strength of the other evidence, here, as in Riley, 621 F.3d at 337,

“there is no question that the jury did not solely rely” upon Joanna’s allegedly prejudicial

testimony in rendering its verdict. To the contrary, the jury heard Defendant’s own

interview admissions that he had “solicited pornographic images” from his victims,

known his victims were minors, and distributed his victims’ pornographic images to

others; heard from Defendant’s victims that they had sent pornographic images of

themselves to Defendant in response to his demands; and heard from investigators about

the nearly 100 images of child pornography they had seized from Defendant’s electronic

devices. (See App. at 440-61, 482-83, 554-64, 567-611, 852, 863, 877) Plainly, “the

strength of the other evidence is sufficient to outweigh any possible prejudice [that

Joanna’s] statement[] may have inflicted” on Vanderbeck. Riley, 621 F.3d at 337.

       As for the third factor, Defendant declined the District Court’s offer to provide a

limiting instruction to the jury. In the final instructions, the jury was instructed not to

decide the case based on sympathy and prejudice. See generally Lore, 430 F.3d at 207

(“[E]ven though Bohn declined the district court’s offer to issue a specific curative



6
  Vanderbeck points out that during an earlier portion of Joanna’s testimony, the District
Court excused the jury, to allow Joanna time to “compose herself” after she seemingly
burst into tears. (Reply Br. at 3) (internal quotation marks omitted) While the emotional
nature of much of this victim’s testimony may have been prejudicial to Vanderbeck, that
fact does not transform Joanna’s fleeting reference to a suicide hotline into “pronounced
and persistent” remarks.
                                              12
instruction at the time of [the allegedly prejudicial] statement, the court subsequently

instructed the jury regarding the defendants’ right to refrain from testifying.”)).

       Accordingly, the District Court did not abuse its discretion in denying Defendant’s

motion for a mistrial.

                                              V

       For the reasons given above, the District Court’s opinion is affirmed in all

respects.




                                             13
