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United States v. Matish

United States District Court, E.D. Virginia, Newport News Division

May 2, 2016


          OPINION & ORDER

          HENRY COKE MORGAN, Jr., Senior District Judge.

         This matter is before the Court on Defendant Edward Matish, Ill's ("Defendant" or "Matish") Second Motion to Suppress ("Second Motion"). Doc. 19.

         On February 8, 2016, Defendant was named in a four (4) count criminal indictment charging him with access with intent to view child pornography, in violation of 18 U.S.C. § 2252A(a)(5) and (b)(2). Doc. 1. The Government filed an eight (8) count superseding indictment on April 6, 2016, charging Defendant with access with intent to view child pornography, in violation of 18 U.S.C. § 2252A(a)(5) and (b)(2) (Counts One through Four), and receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2) and (b)(1) (Counts Five through Eight). Doc. 26. Defendant filed the instant Motion on March 17, 2016, Doc. 19, and he adopted it after the Government filed the superseding indictment on April 8, 2016, Doc. 30. The Court held a hearing to address this Motion on May 26, 2016.

         Defendant seeks the suppression of "involuntary statements made by Mr. Matish during an FBI interrogation on August 14, 2015." Doc. 19. For the reasons stated herein, the Court DENIES Defendant's Second Motion, Doc. 19.


         At the hearing on May 26, 2016, the Court heard testimony from two witnesses for the Government, Special Agent ("SA") Jack Moughan and SA Kim Wright. The Court also admitted several Government exhibits. See Gov't Ex. 1, 2, 3, 4, 5. Doc. 66. Defendant offered no additional evidence. The Court FOUND the testimony of the Government's witnesses credible.

         On July 29, 2015, the FBI conducted a residential search of Defendant's home, pursuant to a search warrant. While other law enforcement officers conducted the search, SA Moughan and FBI Task Force Agent ("TFA") Heather Call interviewed Defendant on his back deck. During this interview, the agents discussed the Tor network with Defendant. According to SA Moughan, Defendant appeared familiar with Tor. Defendant also claimed that he had visited Playpen but denied making an account or viewing child pornography. Defendant also noted, however, that he had difficulties remembering chunks of time. Defendant told the agents that he and his online girlfriend had broken up in the fall of 2014. Additionally, Defendant told SA Moughan and TFA Call that a female babysitter had touched him when he was seven or eight years old. Defendant informed the agents that he had not told anyone about his encounter with his babysitter, including his parents. At the end of the interview, which lasted about forty-five minutes, Defendant agreed to take a polygraph examination.

         On August 14, 2015, at or around 8:30 a.m., Defendant reported to the FBI office in Newport News, Virginia, to take a scheduled polygraph examination. SA Wright administered the polygraph examination. To prepare for the examination, she discussed Defendant and his case with TFA Call. The main purpose of the polygraph examination was to determine whether Defendant had committed any hands-on sexual offenses with children. Prior to taking the polygraph examination, Defendant signed an advice of rights form, Gov't Ex. 1, and a consent to interview with polygraph form, Gov't Ex. 2. Defendant did not ask any questions about these forms.

         After reviewing the forms, SA Wright conducted a pretest interview with Defendant to ensure that Defendant was suitable for the exam. During the pretest interview, Defendant mentioned his breakup with his online girlfriend in the fall of 2014. He stated that for three months after the breakup, he felt upset and fuzzy. Defendant also discussed his contact with his babysitter when he was seven or eight years old. Defendant told SA Wright that they were playing doctor and that he considered the touching consensual. Defendant was not on any medications at the time of the interview, and he appeared conversational and polite. Reviewing the forms and conducting the pretest interview lasted approximately an hour.

         The polygraph examination concluded at or around 10:00 a.m. During the polygraph examination, the door to the room was closed but not locked. After the polygraph examination, Defendant stated that he wished to cooperate and was trying to remember. At this point, SA Wright offered to allow Defendant to make a statement, which Defendant asked to type. Defendant typed one paragraph. Then, SA Wright left the room and received from TFA Call two pieces of paper, which she showed to Defendant upon re-entering the room. One of the papers retrieved by SA Wright recited a posting on Playpen by the user "Broden." See Gov't Ex. 4. The other represented a thread on Playpen. Gov't Ex. 5. After reviewing the posting and the Playpen thread, Defendant stated that he was starting to recall, and he then added a second paragraph. SA Wright testified that she left the room because she did not have the information she retrieved at the start of the interview due to a technical issue with the printer. Defendant acknowledged that he typed the posting, and he signed a statement to that effect written by SA Wright. Gov't Ex. 4. After typing his full statement Defendant reread it, including the pre-prepared first sentence and last paragraph. See Gov't Ex. 3. After Defendant finished his statement, TFA Call entered the room, as is standard practice. She asked Defendant if he felt he would harm himself and provided him with the location of social services.

         SA Wright testified that Defendant neither asked to leave nor physically indicated that he wished to leave during the interview. She testified that had Defendant asked or expressed a desire to leave, she would have let him. SA Wright additionally testified that she never discussed any potential criminal prosecution with Defendant. SA Wright knew that Defendant was twenty-three years old, that he had no prior criminal record, and that he had undergone a recent breakup.

         The polygraph results were inconclusive as to whether Defendant had ever had sexual conduct with a child.


         The Fifth Amendment to the United States Constitution provides that "[n]o person... shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law..." U.S. Const, amend. V. The admissibility of a defendant's statement "turns on whether the statement was voluntary under the Fifth Amendment." United States v. Braxton, 112 F.3d 777, 780 (4th Cir. 1997). Therefore, an involuntary statement made in violation of the Fifth Amendment will be suppressed, whereas any "statement given freely and voluntarily without any compelling influences is admissible in evidence." E.g., ...

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