United States District Court, E.D. Virginia, Newport News Division
OPINION & ORDER
Coke Morgan, Jr. Senior United States District Judge.
matter is before the Court on Defendant Edward Matish,
III's ("Defendant" or "Matish")
Second Motion to Suppress ("Second Motion"). Doc.
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.
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.
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
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.
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.
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.
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
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
polygraph results were inconclusive as to whether Defendant
had ever had sexual conduct with a child.
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., id. ...