United States v. Stewart, No. 12--1427 (6th Cir. Sept. 3, 2013) (for publication).
Panel of Judges Gilman, Griffin, and White.
D convicted of violating 18 U.S.C. 2252A(a)(1).
Facts:
* D flew into Detroit from Japan. Randomly approached by customs officer at int'l bag claim. Sent to secondary inspection area.
* Customs officer attempted to search one laptop, but couldn't b/c battery dead and power cord required int'l converter. While searching a second laptop, the officer found thumbnails of nude children. Officer held laptops for further examination, but released the D. ICE agent took computers to ICE office in Detroit.
* Forensic analyst previewed one laptop and found suspected CP. Officers got warrant. Did forensic exam. Found CP.
* In '09, grand jury charged D with transporting CP.
* D moved ct to dismiss case after passage of time based on speedy-trial grounds. (An error in the CM/ECF calendaring program put the trial date beyond the seventy-day period.) Ct dismissed case w/o prejudice.
* Grand jury brought a second indictment a month later.
Issues and Conclusions:
* Looking to U.S. v. Tinklenberg, 131 S. Ct. 2007 (2011), the COA concluded "the speedy-trial clock automatically stops when a defendant files any type of pretrial motion, including a motion to dismiss for a Speedy Trial Act violation." B/c one day remained on the speedy-trial clock when the D filed the original speedy-trial motion, that motion tolled the clock and there was no violation.
* The speedy-trial issue was reviewable here even though it was from the earlier case (otherwise, there could be no review). Footnote 1 addresses.
* D was not entitled to dismissal with prejudice. So subsequent indictment proper.
* The search of the computers in Detroit was not an "extended border search." The computers never cleared the border. This search was just a routine border search. No 4th Am violation.
* Cropping and brightening of pics could make the pics CP, even if original pics were not necessarily CP.
