United States v. Pecoraro

568 F.Supp.3d 169

The UNITED STATES of America,

v.Kaleb PECORARO, Defendant.

8:21-CR-85

United States District Court, N.D. New York.

Signed October 21, 2021

HON. ANTOINETTE T. BACON, Acting United States Attorney for The Northern District of New York, OF COUNSEL: SHIRA HOFFMAN, ESQ., 14 Durkee Street Room 340, Plattsburgh, New York 12901.

HON. ANTOINETTE T. BACON, Acting United States Attorney for The Northern District of New York, OF COUNSEL: CARINA HYATT, SCHOENBERGER, ESQ., 100 South Clinton Street, Room 900, Syracuse, New York 13261.

HON. ANTOINETTE T. BACON, Acting United States Attorney for The Northern District of New York, OF COUNSEL: EMILY C. POWERS, ESQ., 445 Broadway Room 218, Albany, New York 12207.

OF COUNSEL: THOMAS A. CAPEZZA, ESQ., CAPEZZA, HILL LLP, Attorneys for Defendant, 30 South Pearl Street Suite P-110, Albany, New York 12207.

LORI A. CANTWELL, OF COUNSEL: LORI A. CANTWELL, ESQ., Attorneys for Defendant, 334 Cornelia Street #288, Plattsburgh, New York 12901.

MEMORANDUM-DECISION and ORDER

DAVID N. HURD, United States District Judge

I. INTRODUCTION

On March 17, 2021, a grand jury in the Northern District of New York returned a one-count indictment against defendant Kaleb Pecoraro ("Pecoraro" or "defendant") for receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). The indictment principally relied on three sources of evidence: (1) an interview with defendant and his mother in defendant's home on June 5, 2019; (2) a search of defendant's two computers and digital camera allegedly based on his consent; and (3) a second interview at the Plattsburgh Police Station on June 9, 2019.

On July 22, 2021, Pecoraro filed an omnibus motion launching a five-pronged attack on the United States of America (the "Government")’s investigative efforts. Defendant's motion, having been fully briefed, will now be decided on the parties’ submissions and without oral argument.

II. BACKGROUND

On April 23, 2020, the National Center for Missing and Exploited Children received a message from Interpol pointing it to photographs on IMGSRC.RU, a file sharing website out of Russia. Dkt. 30-1 ("Marciniak Aff."), ¶ 4. Apparently, that website has a reputation in law enforcement circles as a popular space for viewing and trading child pornography. Id.

The material on IMGSRC.RU that concerned Interpol involved several non-pornographic pictures of children playing in their front yard, including some in which they were bent over. Marciniak Aff. ¶ 4. The photographs were uploaded between August of 2019 and March of 2020 by an IMGSRC.RU user going by the screenname "Gudman5." Id.

The pictures were not devoid of context clues. An embroidered golf bag and a visible New York license plate both steered investigators toward Plattsburgh, New York. Marciniak Aff. ¶ 5.

Ultimately, investigators found the house featured in the photographs, which was home to four children. Marciniak Aff. ¶ 5. The oldest was a girl aged somewhere between thirteen and fifteen. Id. ¶ 6. She also had twin sisters, of an estimated age of eleven to thirteen. Id. The youngest was a five-year-old boy. Id.

Pecoraro was eighteen years old in the spring of 2020 and lived across the street from the subjects of the photographs. Marciniak Aff. ¶¶ 9, 11. From the beginning, three clues pointed investigators in defendant's direction. First, some of the names of the uploaded files referred to "[t]he twins across the street." Id. ¶ 6. Second, the camera angles and the window frames visible in the photographs both matched defendant's house. Id. ¶ 7. Third, defendant's Facebook profile contained a picture of an unknown twelve-to-fourteen-year-old girl wearing a tube top and shorts, which was also Gudman5's profile picture, albeit briefly. Id. ¶ 8.

Armed with that information, New York State Police Investigator Robert Marciniak ("Marciniak") and Homeland Security Investigations Special Agent Jason Young ("Young" together the "investigators") went to Pecoraro's home on June 5, 2020, to talk to him. Marciniak Aff. ¶¶ 1, 10; Dkt. 34-2 ("Mother Aff."), ¶ 36. Apparently, defendant was not home, but plaintiff's mother, Diane Pecoraro ("defendant's mother"), greeted them all the same. Marciniak Aff. ¶ 11; Mother Aff. ¶ 36. Defendant's mother denied any knowledge about the photographs of the children across the street, but nevertheless promised to let the investigators know when defendant returned so that they could speak to him. Marciniak Aff. ¶ 11.

According to defendant's mother, she promptly told Pecoraro to come home. Mother Aff. ¶ 36. Defendant returned shortly, and Marciniak and Young came back not long after. Id. ¶¶ 36-37; Marciniak Aff. ¶ 12. Both investigators wore plainclothes, and though both were armed, according to the Government only Marciniak's weapon was visible. Marciniak Aff. ¶¶ 10, 12. By contrast, defendant claims simply that "the police had firearms displayed." Mother Aff. ¶ 45.

In any event, Pecoraro, his mother, Marciniak, and Young sat down in defendant's living room. Marciniak Aff. ¶ 13. Apparently, the conversation began with defendant's mother recounting that she had asked for advice from a retired computer crime investigator, who had advised her to cooperate. Id. Defendant's mother also told the investigators that she had asked defendant if he had taken the pictures of his neighbors, and he had admitted to her that he had. Id.

Marciniak and Young then pivoted to asking Pecoraro questions directly. Marciniak Aff. ¶ 14. But before they did, defendant's mother alerted them that defendant is not entirely neurotypical, although the Government and defendant disagree as to what, precisely, she said. See id. According to the Government, defendant's mother told the investigators that defendant "got very nervous," and the Government also acknowledges the possibility that she mentioned to them that defendant is "on the spectrum." Id. ¶¶ 14, 28. In defendant's version, his mother told the investigators that defendant "has a language processing disorder and high anxiety." Mother Aff. ¶ 38.

Apparently, Marciniak and Young noticed that Pecoraro was anxious during the interview. Marciniak Aff. ¶ 14. As a consequence, the investigators spoke "in a low passive tone," allowed defendant's mother to be present for the entire interview, and gave defendant time to explain. Id. Defendant does not dispute that the investigators took this approach.

Despite Marciniak and Young's attempted precautions, defendant's mother claims Pecoraro was terrified during the questioning, and turned to her when he was uncertain of how to proceed. Mother Aff. ¶ 37. Defendant's mother further claims that she asked Marciniak and Young whether defendant needed an attorney right at the start, but that the investigators said no. Id. However, Marciniak denies ever telling defendant or his mother that they did not need a lawyer. Marciniak Aff. ¶ 15. But he acknowledges that he told them that the investigators were only there to ask questions and that defendant was not under arrest. Id.

From there, Marciniak and Young began to ask Pecoraro about the pictures of the children across the street. Marciniak Aff. ¶ 14. Defendant's mother, apparently believing that defendant's silence would lead to a bad outcome, told him to answer truthfully. Mother Aff. ¶ 40. Defendant then admitted to uploading the pictures of his neighbors. Marciniak Aff. ¶ 14.

Marciniak and Young asked to see Pecoraro's electronic devices to confirm that he had not taken any naked pictures of his neighbors. Marciniak Aff. ¶ 16; Mother Aff. ¶ 41. To memorialize their request for his consent to search defendant's devices, the investigators gave defendant a consent form, and explained that he could sign if he wanted to, but did not need to. Marciniak Aff. ¶ 16. However, defendant's mother took the form instead and read it herself. Mother Aff. ¶ 42. She then told defendant to sign it, which he did. Id. ¶ 43; Dkt. 30-2, pp. 2-3.

After getting Pecoraro's signature, Marciniak and Young went with defendant and his mother to defendant's room. Marciniak Aff. ¶ 18. In the room were three devices: (1) a laptop; (2) a digital camera; and (3) a custom computer tower. Dkt. 30-2, pp. 2-3. Defendant gave the investigators the passcode to the laptop and confirmed that no one else had access to any of the three devices. Marciniak Aff. ¶¶ 17-18.

Once Young had access to Pecoraro's devices, he did a "forensic preview." Marciniak Aff. ¶ 19. That preview turned up child pornography on defendant's laptop and desktop. Id. The investigators did not arrest defendant, but they did seize the computers. Id. ¶ 20. After a more complete examination, the investigators found thirty-two pornographic pictures involving underaged subjects on the laptop and twenty-two pictures and thirty videos of children below the age of consent on defendant's desktop. Id. ¶ 21. Many of the videos were deleted from defendant's devices, and many involved pubescent girls. See id. ¶ 22. At least two videos, however, depict graphic sexual contact with—and between—younger children. Id. ¶¶ 22-23.

Armed with this evidence, Marciniak and Young got a search warrant for Pecoraro's home for other electronic devices on June 9, 2020. See Marciniak Aff. ¶ 24; Dkt. 30-3, pp. 11-12. The investigators executed that warrant the same day. Marciniak Aff. ¶ 26; see Mother Aff. ¶ 51. They found no new devices containing child pornography. Marciniak Aff. ¶ 25. But they also wanted to question defendant. See id. ¶ 26.

At this point, defendant's mother claims that she reiterated that Pecoraro has "a language processing disorder and high anxiety," but Marciniak and Young apparently tried to placate her by claiming that they knew "how to handle" people like that. Mother Aff. ¶¶ 52-53. Defendant's mother also claims that she asked if defendant needed a lawyer, but the investigators responded that he did not because he was not being arrested. Id. ¶ 54.

Defendant's mother elaborates that when Pecoraro came downstairs, he "co...