United States v. Perricone

In United States v. Perricone, No. 22-51127 (5th Cir. May 17, 2024) (unpublished), the Fifth Circuit affirmed the defendant’s convictions and sentence after denying his challenges under the Fourth and Fifth Amendments, as well as USSG § 2G2.2(b)(5).

Background: Perricone was charged with seven counts of distributing and receiving child pornography. Before trial, he filed a motion to suppress, arguing that agents had taken his statements without providing him with Miranda warnings. The district court disagreed, ruling that Perricone was not in custody at the time of the statements, so Miranda did not apply.

In the three days before trial, Perricone also argued that his statements were involuntary, that a search warrant lacked probable cause, and that any evidence discovered in violation of the Fourth Amendment should be suppressed. He did not identify what physical evidence should be suppressed.

At trial, the jury convicted Perricone of all charges. His PSR later recommended a five-level enhancement under USSG § 2G2.2(b)(5) because he engaged in a pattern of activity involving the sexual abuse of a minor. The court overruled his objection to that enhancement, and Perricone received a sentence of 360 months’ imprisonment.

Issue 1: Did agents rely on a “bare bones” search warrant affidavit that failed to establish probable cause? No.

When a defendant seeks to suppress evidence collected pursuant to a warrant, the court will first ask whether the “good faith exception” applies. If it does not, then the court will ask whether the warrant was supported by probable cause.

“The good faith exception to the exclusionary rule provides that evidence obtained by law enforcement officials acting in objectively reasonable good-faith reliance upon a search warrant is admissible even if the affidavit on which the warrant was grounded was insufficient to establish probable cause.” United States v. Robinson, 741 F.3d 588, 594 (5th Cir. 2014).

Here, Perricone argued that the good faith exception did not apply because the search warrant’s underlying affidavit was “bare bones,” which means it was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” United States v. Mays, 466 F.3d 335, 343 (5th Cir. 2006) (citation omitted).

An affidavit is only “bare bones,” if it “contains wholly conclusory statements, which lack the facts and circumstances from which a magistrate [judge] can independently determine probable cause.” Robinson, 741 F.3d at 594. Here, the search warrant affidavit described the case agent’s knowledge and training, information regarding how child pornography is typically stored, and significant amounts of information about this specific investigation.

Issue 2: Were Perricone’s statements obtained in violation of the Fifth Amendment because he was not provided Miranda warnings first? No.

The law only requires officers to provide a suspect with Miranda warnings if they are subject to “custodial interrogation,” which consists “of questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” United States v. Rafoi, 60 F.4th 982, 1002 (5th Cir. 2023) (citation omitted). The Fifth Circuit “employs a two-step inquiry to determine whether a custodial interrogation occurred. First, looking at the totality of the circumstances, the Court analyzes the defendant’s freedom of movement. Next, it analyzes whether the questioning took place in an environment resembling the station house questioning at issue in Miranda.” Id.

Here, Perricone was questioned for about an hour in a conference room at his workplace. The officers did not display firearms, left the door unlocked, and let Perricone sit in the chair next to the door. Finally, agents told Perricone he was free to leave at any time. Taken together, those circumstances suggest that “a reasonable person would have felt free to terminate the interview and leave.” Howes v. Fields, 565 U.S. 499, 515 (2012) (citation omitted). Additionally, this was not an “inherently coercive” environment like the “station house questioning at issue in Miranda.” Because Perricone was not in custody, Miranda warnings were not required.

Issue 3: Did the district court err by applying the five-level enhancement in USSG § 2G2.2(b)(5) based on acquitted conduct not supported by reliable evidence? No.

This enhancement was supported by the PSR’s factual summary and a 2009 polygraph report documenting that Perricone had admitted the necessary facts to support the enhancement. Although Perricone had been acquitted of those allegations in 2009, this court was entitled to rely on Perricone’s own statements after his 2009 polygraph.

The district court had refused to base its decision on testimony from Pericone’s earlier trial or from a civil deposition in another matter. On appeal, the Fifth Circuit held that the PSR and the polygraph statements were sufficiently reliable evidence to justify the enhancement.