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United States v. Cardoso

United States District Court, E.D. California

August 9, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
TROY CARDOSO, Defendant.

          ORDER

          MORRISON C. ENGLAND JR., UNITED STATES DISTRICT JUDGE

         Defendant Troy Cardoso (“Defendant”) pled guilty in 2011 to Possession of One or More Matters Containing Depictions of Minors Engaged in Sexually Explicit Conduct in violation of 18 U.S.C. § 2252(a)(4)(B). He was subsequently sentenced to a term of 97 months imprisonment, and his 120-month term of supervised release began on March 12, 2014. On December 23, 2014, this Court’s Probation Office (“Probation”) filed a 12C Petition for Warrant or Summons for Offender Under Supervision alleging the unauthorized possession of pornography. Supervised release was revoked, and on March 12, 2015, Defendant was sentenced to 5 months BOP followed by a 108-month term of supervised release. Supervision recommenced on August 26, 2015, and on December 16, 2015, Probation filed a 12C Petition again charging Defendant with the unauthorized possession of pornography. On March 8, Probation filed a Superseding 12C Petition adding multiple additional charges.

         Defendant denied the charges and moved to dismiss Charges 1 and 2 and to modify Special Condition Number 6. ECF Nos. 181, 184. He also challenged Charges 4-7 on various grounds. ECF Nos. 184, 193. The Court held an evidentiary hearing on July 18, 2016, and the Government put on evidence in support of the charges. Upon consideration of the evidence before the Court and the arguments of counsel, the Court SUSTAINS in part and DISMISSES in part the charges in the Superseding Petition.

         THE PETITION

         According to the Petition, a third party submitted a tip to a Cyber Tipline, which is reviewed by the National Center for Missing and Exploited Children, advising that Defendant was seen frequenting a residence owned by Defendant’s parents on Curragh Downs Drive in Fair Oaks, California. The reporting party’s friend had observed a Comcast Cable truck parked in front of that residence, and the reporting party knew Defendant had been convicted of possessing child pornography, so he or she deduced that Defendant probably was not permitted to have access to the internet.

         The Probation Officer questioned Defendant about the foregoing and Defendant admitted that the residence belonged to his parents and that both he and his parents still kept belongings there even though his parents had since moved. Defendant also admitted that he frequented the residence to assist his father with projects, to relax and have lunch, and to take naps or breaks during the workday. Defendant denied having access to a computer or the internet.

         A search of the Curragh Downs property was conducted shortly thereafter, but not before officers observed Defendant’s mother, Mrs. Cardoso, carrying items from the residence to her vehicle. She then left, but Defendant’s father, Mr. Cardoso, gave permission for officers to search the premises. Agents uncovered indicia that Defendant had been in the home. They also found pornography and electronics, but no computer. Defendant’s residence was simultaneously searched, and agents found a new Apple keyboard, but again no computer.

         It also turned out that after Mrs. Cardoso left the Curragh Downs residence, she drove to another one of Defendant’s parents’ properties, a warehouse, where agents eventually uncovered, among other things, 4 DVDs with the offender’s name on them, a Netgear router, a Logitech keyboard, Seagate external hard disk drive (4tb), Seagate external hard disk drive (400gb), Apple Mac Mini computer, Apple Macbook Pro laptop computer, Iomega external hard disk drive, Logitech micro-USB receiver, and 60 CDs. Based on the above-described circumstances and the items recovered, the Petition sets forth seven charges:

Charge 1: Unauthorized Possession of Pornography On December 16, 2015, Defendant was found in possession of a West Coast Sex Directory, 29 Playboy Playmate posters, 1 All American Girl adult pornographic poster, 2 Hustler magazines, 2 Playboy magazines, and a Playboy calendar.
Charge 2: Unauthorized Possession of Pornography That same day, Defendant also possessed: (1) a 4 terabyte external hard drive with over 1 million images of partially or completely nude adult females; (2) a 400 gig external hard drive with over 200 similar pictures; (3) an iPad mini with 200 gig capacity and in excess of 500 additional images; and (4) 10 CDs with additional images and videos.
Charge 3: Unauthorized Possession of a Computer Defendant possessed the above mentioned iPad mini and also had a Macbook Pro.
Charge 4: Failure to Follow the Instructions of the Probation Officer On October 30, 2015, the Probation Officer instructed Defendant to be at his home the following afternoon for a visit. He agreed to do so, but purposefully left to avoid the officer.
Charge 5: Unauthorized Access of the Internet From August 26, 2015, through November 4, 2015, Defendant established a high speed Comcast account at his residence.
Charge 6: Unauthorized Access of the Internet From December 5, 2015, through December 18, 2015, Defendant again subscribed to high speed Comcast internet service, this time at a residence apparently owned by his parents. Defendant ...

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