Saturday December 15, 2012

BRATTLEBORO -- Statements made by a man suspected of possessing child pornography were given voluntarily to federal investigators, according to documents filed in court Friday.

"Throughout (Samuel) Sergi’s interview, (agents) repeatedly inform(ed) him that his cooperation was voluntary, that he was not under arrest, and that he was free to leave," wrote Assistant U.S. Attorney Christina Nolan in a document filed in opposition to a motion to suppress statements made by Sergi.

Earlier this month, Sergi’s federal public defender filed the motion to suppress with the District Court for the District of Vermont, contending "A reasonable person in Mr. Sergi’s position would have felt he was in custody and effectively under arrest."

Therefore, wrote David McColgin, Sergi should have been read his Miranda rights prior to being questioned by federal investigators.

"He was confronted by six to seven investigators who demanded entry into his home, entered with guns drawn saying ‘Nobody move,’ denied the opportunity to review the search warrant, and then took him into a separate room for an hour-long interrogation."

According to court documents filed following his arrest, Sergi downloaded and distributed child pornography using file-sharing software. Special agents from the FBI, conducting on several different occasions undercover peer-to-peer operations, downloaded videos of child pornography from a computer located in Sergi’s Brattleboro home.

At least two of the videos found on his computer during a search on Aug. 7 depicted torturous acts on prepubescent children, stated the documents. During the search of his home, Sergi, 59, admitted to investigators that he had been downloading child pornography for about five or six years.

"He stated he knew that it was illegal to view child pornography, and that detection by law enforcement was one of his worst fears," stated the documents filed following his arrest.

In the motion to suppress, McColgin wrote that though Sergi was not verbally placed under arrest, he was subjected to custodial interrogation.

But in her opposition, Nolan disputed many of the statements made in McColgin’s motion to suppress, including the contention that agents entered the home with guns drawn.

"Agents entered the home with their guns holstered and they remained holstered," she wrote.

In addition, Sergi was told twice that he was free to leave, wrote Nolan.

When told the agents had a search warrant related to a child pornography investigation, Sergi "immediately made a series of incriminating statements about his involvement ..." she wrote.

There were also at least two breaks taken during the nearly three-hour interrogation, wrote Nolan, after which Sergi was again reminded his participation was voluntary.

"Sergi made incriminating statements throughout the interview. The agents firearms remained holstered. They did not handcuff or restrain Sergi, nor did they use any kind of physical force or contact."

McColgin also wrote in the motion to suppress that though Sergi was told he was free to move about the house, he was not free to leave the building. However, Nolan wrote that statement is "inaccurate."

When told he was free to leave, wrote Nolan, Sergi told agents he doubted that. He was told a second time he was free to leave, but "Sergi opted to continue talking ..."

It’s up to the court to determine whether Sergi’s questioning was a custodial interrogation, wrote Nolan, but according to precedent, whether a suspect is in custody hinges on whether "a reasonable person (might feel) he or she was at liberty to terminate the interrogation and leave."

According to United States v. Mitchell, she wrote, "an interrogation is not ‘custodial’ unless the authorities affirmatively convey the message that the defendant is not free to leave."

In addition, wrote Nolan, courts generally hold that questioning of an individual in the familiar setting of his home is not custodial because individuals in a familiar environment are less likely to be intimidated by law enforcement officers.

"Under these circumstances, a reasonable person in Sergi’s position would not have felt restrained to the degree associated with formal arrest," wrote Nolan.

Therefore, she added, his motion to suppress should be denied.

Arguments are scheduled to be presented in district court in Burlington on Jan. 22.

Bob Audette can be reached at raudette@reformer.com, or at 802-254-2311, ext. 160. Follow Bob on Twitter @audette.reformer.