U.S. Second Circuit - The FindLaw 2nd Circuit Court of Appeals Opinion Summaries Blog

Court Affirms Child Porn Conviction Against Former Bank Executive

Charles Familetti, Jr. had serious problems before federal officers walked into his apartment.

Familetti was waiting for an 11-year-old boy to arrive and have sex with him. When an FBI task force showed up instead, Familetti had a panic attack.

They settled him down, said he could leave, but asked for his help finding people "who are raping children." Familetti agreed, and that's when his legal problems started in United States of America v. Familetti.

Custodial Interrogation

Familetti, former financial executive at HSBC Holdings, was the target of an undercover investigation into child pornography and sex crimes on the internet in 2013. In an online chat session, he told an undercover agent he wanted to have sex with a minor.

Another undercover agent met with Familetti in person and negotiated the arrangement. Familetti gave the agent $100 as a down payment, and the agent would have an 11-year-old delivered to his apartment.

When nine officers showed up instead, Familetti had an "extreme" panic attack. They subdued him, handcuffed him, then released him after he settled down and he agreed to cooperate with their investigation.

They advised him of his rights, and Familetti admitted that he had child pornography and paid to have sex with a minor. He was convicted on various charges, but appealed on grounds that he was interrogated in violation of his Miranda rights.

Non-Custodial Interrogation

The U.S. Second Circuit Court of Appeals said the interrogation began when the agents solicited Familetti's "help." However, the appeals court said he was no longer in custody once they released him from handcuffs, told him he was free to go, and advised him of his rights.

"Familetti responds that nine agents swarming his apartment was so inherently intimidating that no one would reasonably believe he was free to leave," the panel reasoned. "However, the presence of the agents in Familetti's dwelling to execute the search warrant does not render Thompson's questioning custodial."

The judges said it was "a close call" and that the government had strained the court's decision in United States v. Guido to "the breaking point." In that case, the Second Circuit said a "discussion of cooperation is inherently a form of questioning."

Still, the appellate panel affirmed Familetti's conviction because he was not in custody "at the moment he was asked about cooperation."

Related Resources: