United States Court of Appeals For the First Circuit No. 18-1109 UNITED STATES OF AMERICA, Appellee, v. BRAD SMITH, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Joseph Laplante, U.S. District Judge] Before Lynch, Stahl, and Barron, Circuit Judges. Richard Guerriero, with whom Lothstein Guerriero, PLLC was on brief, for appellant. Seth R. Aframe, Assistant United States Attorney, with whom Scott W. Murray, United States Attorney, was on brief for appellee. March 15, 2019 STAHL, Circuit Judge. This appeal arises out of Defendant-Appellant Brad Smith's conviction for producing six videos depicting him sexually assaulting a three-year-old child. Smith challenges the district court's denial of his motion to suppress evidence recovered from his residence on a Louisiana pecan farm, including a laptop computer and two hard drives that contained the videos in question, as well as statements he made to law enforcement at the farm and during a later interrogation. He argued that law enforcement agents had violated his Fourth Amendment rights, and that he was coerced into consenting to the search of the residence. The district court disagreed, holding that there was no Fourth Amendment violation and that Smith knowingly and voluntarily consented to the search. After a short jury trial, Smith was convicted of six counts of violating 18 U.S.C. ยง 2251(a), the federal child pornography production statute. At sentencing, Smith argued that because the videos were taken during one continuous sexual assault, the charges were multiplicitous. The district court disagreed and ultimately sentenced Smith to a term of imprisonment of fifty years. On appeal, Smith challenges both the district court's denial of his motion to suppress and his sentence. However, even assuming arguendo that the agents committed a Fourth Amendment violation at some point before encountering Smith on the pecan - 2 - farm, we find that any prior illegality did not significantly influence or even play an important role in his subsequent consent to the search of his computer and hard drives. He voluntarily consented to the seizure of his computer and hard drives and his consent was not obtained by exploitation of any Fourth Amendment violation. In addition, we hold on the facts here that the proper unit of prosecution under Section 2251(a) is each video depicting the victim. Accordingly, and for the following reasons, we affirm. I. Factual Background We recount the facts in two parts. First, we describe events occurring before the law enforcement agents' entry onto the pecan farm, which for purposes of this appeal are uncontested. Second, we recount the facts relevant to the motion to suppress, including the agents' entry onto the farm and subsequent seizure of Smith's computer and hard drives, "as the trial court found them, consistent with record support." United States v. Andrade, 551 F.3d 103, 106 (1st Cir. 2008) (internal quotation marks and citation omitted). We describe further facts relevant to sentencing issues in that section. A. Events Leading Up to the Agents' Entry Beginning in 2010, Smith was ...
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