As Amended February 25, 2015.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE. Hon. Joseph N. Laplante, U.S. District Judge.
Judith H. Mizner, Assistant Federal Public Defender, for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom John P. Kacavas, United States Attorney, was on brief, for appellee.
Before Torruella, Howard, and Kayatta, Circuit Judges. TORRUELLA, Circuit Judge (Concurring).
KAYATTA, Circuit Judge.
Robert Joubert was convicted of three counts of sexual exploitation of children, in violation of 18 U.S.C. § 2251(a), and one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). On appeal, Joubert raises four issues: (1) the search warrant failed to supply a nexus to the place being searched; (2) the district court abused its discretion in admitting testimony of uncharged child molestation; (3) the Commerce Clause cannot support application to him of the federal criminal statutes under which he was indicted; and (4) his 480-month sentence was substantively unreasonable. We affirm his conviction and sentence in all respects.
A. Investigation and Search
In March 2012, a mother in Concord, New Hampshire, e-mailed York, Maine, police to complain about Joubert, a baseball coach working in the area. Joubert used to coach and mentor the woman's son, KC. She called Joubert a pedophile, and said that New Hampshire police previously investigated him multiple times for similar allegations.
Over the course of the next four months, an investigation by local police and the Federal Bureau of Investigation (" FBI" ) turned up a series of reports and complaints that Joubert molested or harassed various children, including the complainant. Authorities proceeded to interview many of the alleged victims, as well as their parents. They learned that Joubert engaged in a pattern of abuse, usually gaining trust within a victim's family, and then proceeding to exploit that position of trust. Law enforcement officials also learned that Joubert often photographed and videotaped his young charges. During the investigation, Joubert himself contacted police. Police and FBI interviewed him in late March, asking questions about his background, baseball pedigree, and previous employment. According to the
affidavit, Joubert was " evasive" and " at times confrontational."
Starting in June 2012, the FBI and York police worked with SJ, Joubert's 36-year-old non-biological son, who claimed that Joubert molested him on two occasions in the mid-1980's. SJ reported that Joubert lived at Joubert's parents' home, in Manchester, New Hampshire. In late May or early June, SJ helped Joubert move to that address. SJ also reported that, upon learning of the investigation, Joubert became " anxious" and " very concerned" about destroying his computer's hard drive. Joubert told SJ that he was concerned about protecting " client" information. While in SJ's presence, " Joubert tore apart the computer tower." He removed components, threw away the computer tower, and then stacked the removed components inside his parents' home. SJ did not see Joubert discard the computer components.
In late June 2012, police applied for a warrant to search Joubert's parents' home. The warrant application sought permission to search for several categories of evidence including: " [a]ny and all computers or related storage devices and media" ; " [a]ny and all cameras . . . including cassette tapes, VCR/VHS tapes" ; and " [a]ny and all photographs, electronic images, and videos of minors/ juveniles/ youth/ youth groups that Robert Joubert has or may have had contact with." Appended to the application was a 14-page affidavit, detailing the joint FBI-police investigation into Joubert.
The affidavit chronicled the numerous complaints against Joubert, the reports of his photographing and videotaping youths, and the information conveyed by SJ, described above. In the final paragraphs of the affidavit, the officer-affiant stated that, " [b]ased on [his] training and experience, and supported by the actions of the suspect in this investigation, [he knows] that persons engaged in the molestation and exploitation of . . . minors often maintain possession and/or control of physical or electronic documents pertaining to their victims and other juveniles." The officer-affiant went on to state:
I believe that evidence of the crime(s) of Felonious Sexual Assault exists. I believe the aforementioned evidence exists in the possession, control, care and/or custody of Robert Joubert. I believe that the evidence exists in the form of, but not limited to; physical and electronic documents and other property. The evidence may confirm or dispel Robert Joubert's background (employment, resume claims, sport/coaching qualification and credentials), the allegation made against him involving juveniles, his travels, his relationship(s) with minors/juveniles and the victims mentioned in this affidavit, confirm his relationship with already identified victims, and identify other potential (yet unknown) victims.
Based on the affidavit, a New Hampshire judge issued a warrant to search Joubert's parents' home for " evidence of the crime(s) of Aggravated Felonious Sexual Assault . . . and other Sexual crimes[.]" On June 28, 2012, police executed that search, seizing photographs, a laptop computer, computer drives, and VHS tapes, among other items. Of the items seized, most incriminating was a pornographic VHS recording of KC and Joubert.
B. Charged Conduct
Joubert coached KC's baseball team in Summer 2002, when KC was 9 or 10 years old. After the season ended Joubert sought to maintain a " big brother" -type relationship with KC. Joubert eventually moved into KC's home, where KC lived with his single mother. According to KC's
mother, Joubert frequently videotaped her kids. After some time, Joubert started coercing KC into performing sexual favors in exchange for food or new sports equipment. Joubert became " obsessive with [KC]" and KC's mother ultimately kicked Joubert out in the summer of 2004. The seized VHS tape ...