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United States v. Welton

November 30, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
RICHARD MICHAEL WELTON, DEFENDANT.



The opinion of the court was delivered by: Margaret M. Morrow United States District Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Defendant was indicted on one count of receiving images of child pornography in violation of 18 U.S.C. § 2252A(a)(2), and one count of possessing images of child pornography in violation of 18 U.S.C. § 2252A(a)(5).*fn1 Defendant waived trial by jury with the consent of the government and the approval of the court pursuant to Rule 23(a) of the Federal Rules of Criminal Procedure. On August 4, 2009, both parties requested that the court make findings of fact pursuant to Rule 23(c).*fn2 Having carefully considered the testimony and exhibits in evidence, the briefs submitted by the parties, and the relevant law, the court makes the following findings of fact and conclusions of law:

I. FINDINGS OF FACT

Covina First Presbyterian Church

1. The Covina First Presbyterian Church ("Church") has five buildings, connected by a courtyard.*fn3

2. Exhibit 97 accurately depicts the front of the Church between 2005 and 2007.*fn4

3. Exhibit 98 accurately depicts the side entrance of the Church between 2005 and 2007.*fn5

4. During the last seven years, there have been transients on Church property. None of the transients, however, has entered the buildings on the property.*fn6

5. The Church has a nursery, used on Sundays, so that those attending church can leave their infants with babysitters during services; otherwise, the nursery is rarely used.*fn7

6. From 2005 to 2007, the nursery had a lock on its door.*fn8 7. The entrance to the nursery is located directly to the left of the side entrance to the Church depicted in Exhibit 98.*fn9

8. One can access the nursery without entering any other Church building.*fn10

9. Exhibit 100 accurately depicts the entrance to the nursery between 2005 and 2007.*fn11

10. From 2005 to 2007, parts of the church, including the office, the sanctuary, and the greeting hall, had an alarm system.*fn12 The building that houses the nursery, a chapel, and a storage room did not have an alarm, however.*fn13

11. In 2005 and 2006, there were at least two changing tables in the nursery.*fn14 Exhibits 101 and 102 accurately depict the two changing tables.*fn15 Exhibit 104 accurately depicts one of the two changing tables as it appeared in 2005 to 2007.*fn16

12. The changing tables are white cabinets whose top is surrounded on three sides by a small railing.*fn17 The changing tables are not affixed to the wall.*fn18

13. The bottom of each changing table has a small, hollow, concave area that is inaccessible when the changing table is sitting on the ground.*fn19 The sides of each changing table extend all the way to the ground such that the area under the changing table is accessible only by lifting the table.

14. In August 2007, the Church was engaged in repainting the nursery and replacing the nursery carpet.*fn20

David Robertson

15. At all times relevant to the indictment, David Robertson was a retiree who volunteered at the Church doing such things as painting, weeding, gardening, emptying waste baskets, moving tables, and organizing things.*fn21 Robertson has volunteered at the Church for seven years.*fn22

16. Robertson is familiar with the buildings and grounds at the Church, including the nursery.*fn23

17. In August 2007, while pulling a changing table away from the wall to paint behind it, Robertson found a stack of 10-15 printouts in the hollow area under the changing table. The printouts contained images of nude children.*fn24

18. After finding the printouts, Robertson gave them to the church's pastor, Andrea Messinger.*fn25

19. Messinger instructed Robertson to dispose of or destroy the printouts; Robertson destroyed the stack of images by shredding them.*fn26

20. A week and a half to two weeks later, on August 22, 2007, in the course of preparing the Church nursery for recarpeting, Robertson lifted the second changing table off the ground, and found another stack of printouts.*fn27

21. Exhibit 102 accurately depicts the two changing tables underneath which Robertson found the printouts in August 2007.*fn28

22. The changing table in the foreground of Exhibit 102 is the one underneath which Robertson found the first set of printouts. The changing table in the background is that under which he found the second group of printouts.*fn29

23. Robertson flipped through the second group of printouts, but did not stop to study any of the images.*fn30

24. Based on his review of the images on the printouts, Robertson knew that they depicted nude bodies and sexual contact; he saw at least one child on the floor involved in oral copulation of a man.*fn31

25. Robertson touched the printouts with his bare hands.*fn32 He subsequently handed the stack of images to Linda Breatore.*fn33

Linda Breatore

26. For the last seven years, Breatore has worked as a secretary and receptionist at the Church.*fn34

Breatore greets people, prints bulletins, addresses maintenance issues, looks up Bible passages, and otherwise contributes to the everyday running of the Church.*fn35

27. When Robertson gave Breatore the stack of printouts, she held them on her lap, flipped open to the middle of the stack, and realized they were pornography involving teenagers and children who were, in her estimation, three and four years old.*fn36

28. After looking at the images, Breatore went out to the courtyard to call Messinger and advise her of the situation. Breatore took the printouts with her.*fn37

29. Breatore then called individuals who had access to the nursery to ascertain whether anyone was aware of a break-in, and whether Church policy that at least two people be in the nursery at all times had been violated.*fn38

30. After making these calls, Breatore spoke with Messinger a second time. Messinger suggested that Breatore contact John King, a local politician and leader in the Church.*fn39

31. Breatore spoke with King, who said he would alert the police.*fn40

32. While Breatore made these telephone calls, she kept the stack of printouts on her lap.*fn41

33. On the day Robertson discovered the second stack of printouts and delivered them to her, Breatore looked at each photograph individually to make sure that no children who were members of the church congregation had been photographed.*fn42 Breatore spent approximately ten minutes looking at the printouts the day she received them.*fn43

34. Breatore handled the printouts with her bare hands.*fn44

35. Breatore kept the stack of printouts with her while she was at the church, even taking the, to the restroom when she went.*fn45 When she left that night, Breatore stored the printouts either in the receptionists' office, which has a lock, or in a safe. She distinctly remembers that she left them in the administration building, which has a lock and an alarm.*fn46 The next day, Breatore gave the printouts to Messinger.*fn47

36. At some point, Breatore placed the printouts in a bag.*fn48

37. Breatore never removed or disposed of any of the printouts in the stack.*fn49

38. When the police arrived the following day, Breatore joined Detective Robert Bobkowitcz, Messinger, and King in the conference room.*fn50 During the meeting, the printouts were given to Bobkowitcz.*fn51

39. At trial, Breatore looked at each page of the stack of printouts comprising Exhibit 125, and placed her initials in the corner of pages 1, 2, 4, 8, 9, 20, 22, 23, 29, 37, 40, 41, 54, 57, 58, 66, 71, 72, 74, 80, 85, 87, 88, 89, 90, 91, and 93 of the exhibit,*fn52 to indicate that she distinctly remembered viewing those pages on the day Robertson gave her the images.*fn53

40. Breatore specifically remembered the poses and some of the faces of the minors depicted in the printouts.*fn54

41. Breatore confirmed that Exhibit 125 was approximately the same size as the stack of images she received from Robertson.*fn55

Detective Robert Bobkowitcz

42. Bobkowitcz is a Covina Police Department detective, specializing in adult and juvenile sex crimes.*fn56 Bobkowitcz has been an detective in the Covina Police Department for four years. He has been a police officer for 19 years.*fn57

43. Bobkowitcz has viewed child pornography approximately five or six times.*fn58 He has seen hundreds, but not thousands, of images of child pornography.*fn59 He has also received training regarding child pornography, its origin, and how it is traded.*fn60

44. Bobkowitcz is familiar with the manner in which the Covina Police Department obtains fingerprints from suspects and applicants.*fn61

45. On August 23, 2007, King called Bobkowitcz to advise him that images possibly constituting child pornography had been found in the Church nursery. King asked Bobkowitcz to investigate.*fn62

46. That same day, Bobkowitcz went to the Church and met with Messinger, Breatore, and King in the conference room.*fn63 At the conclusion of the meeting, Bobkowitcz assumed custody of the images and took them to the police station.*fn64

47. Bobkowitcz was the officer in the Covina Police Department in charge of the case related to the printouts.*fn65 He looked at every image in the stack of printouts on August 23, 2007, the day he brought them to the police station.*fn66 When he was finished, Bobkowitcz locked the images in a drawer in his desk.*fn67

48. Bobkowitcz had previously worked on cases with FBI Special Agent Stephanie Benitez.*fn68 On August 30, 2007, Bobkowitcz gave the printouts to Benitez.*fn69 The printouts remained locked in Bobkowitcz's desk until he gave them to Benitez.*fn70

49. Bobkowitcz neither purposefully removed any pages from nor added any pages to from the stack of printouts.*fn71

50. At trial, Bobkowitcz reviewed each page of Exhibit 125, and placed his initials in the corner of pages 1, 2, 3, 4, 8, 9, 10, 12, 13, 19, 20, 22, 23, 24, 27, 28, 29, 32, 33, 34, 35, 37, 38, 39, 40, 41, 50, 51, 54, 55, 57, 58, 66, 67, 68, 69, 70, 71, 72, 74, 80, 83, 86, 87, 88, 89, 90, 91, and 95 of Exhibit 125-A, indicating that he recalled seeing those pages at the time he took custody of the stack.*fn72

51. Benitez asked Bobkowitcz to have Robertson and Breatore complete fingerprint cards; she also asked that Bobkowitcz himself complete one.*fn73

52. On September 12, 2007, Bobkowitcz was fingerprinted by Jailer Russell Amio, and gave his fingerprint card to Benitez.*fn74

53. When nonsuspects are fingerprinted they are asked to show identification.*fn75

54. Bobkowitcz requested that Breatore and Robertson complete fingerprint cards for Amio. He gave ...


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