United States District Court, D. New Hampshire
For Robert Joubert, Defendant: Bjorn R. Lange, LEAD ATTORNEY, Federal Defender's Office, Concord, NH.
For USA, Plaintiff: Helen W. Fitzgibbon, LEAD ATTORNEY, U.S. Attorney's Office (NH), Concord, NH.
Joseph N. Laplante, United States District Judge.
A jury in this court convicted defendant Robert Joubert of three counts of sexual exploitation of children, in violation of 18 U.S.C. § 2251(a), and one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5). Prior to the jury trial, Joubert moved to suppress evidence seized during the execution of a search warrant at his residence, including VHS
recordings that figured prominently in the counts of conviction. The motion argued that the affidavit that Sean Ford, a detective with the Concord Police Department, submitted in support of the warrant application failed to establish probable cause to believe that evidence of a crime would be found at Joubert's residence or on the VHS recordings. Citing Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the motion also argued that Detective Ford deliberately or recklessly omitted several material facts from his affidavit that would have negated probable cause had they been included.
The court held a hearing on the motion, at which Detective Ford testified and was cross-examined by Joubert's counsel. The court then issued, on the record at the hearing, an oral order concluding that the warrant affidavit established probable cause and that Detective Ford's purported " omissions" from the affidavit were immaterial, and thus denying Joubert's motion. As Joubert has appealed his conviction, the court now issues this written order memorializing its findings and conclusions for the benefit of the Court of Appeals.
On June 27, 2012, Detective Ford submitted a search warrant application to the 6th Circuit Court, District Division, in Concord, seeking issuance of a warrant to search Joubert's residence at 144 Fairmont Avenue in Manchester. The application sought authority to search for, seize, and analyze fifteen categories of evidence, including (as is pertinent here) " [a]ny and all computers or related electronic storage devices and media" ; " [a]ny and all cameras . . . including cassette tapes, VCR/VHS tapes, CD's, memory cards, and developed or undeveloped film" ; and " [a]ny and all photographs, electronic images, and video of minors/juveniles/youth/youth groups that Robert Joubert has or may have had contact with."
Detective Ford's application included a 14-page affidavit detailing the investigation up to that point. The affidavit explained that earlier that year, the police department in York, Maine, had received an e-mail warning of Joubert, who at that time was operating the Seacoast Baseball Academy in York. The email, the affidavit related, had been sent by a woman in Concord who claimed that her then-juvenile son " KC" had formerly had a relationship with Joubert, and identified Joubert as a " pedophile" with a history of " police investigations and restraining orders in relation to young boys." The affidavit then listed several of those " police investigations," including:
o Joubert's 1994 arrest for sexual assault, arising out of a 12-year-old boy's accusation that, while sleeping over at Joubert's house, he awoke to find Joubert placing the child's hand on his (Joubert's) penis;
o Joubert's 1999 arrest for sexual assault, arising out of a 17-year-old girl's accusation that Joubert had forcible intercourse with her while she was sleeping over at his apartment; and
o Joubert's 2004 arrests for, respectively, violation of a civil protective order and contempt of a civil protective order, both arising out of " Joubert's reportedly harassing behavior" toward KC.
Although none of these charges resulted in a conviction, the affidavit did not expressly mention that fact.
After receiving the e-mail, the affidavit explained, the York police and the FBI then proceeded to interview various individuals associated with Joubert. The affidavit reported that the owner/operator of a baseball training facility in Newington, New Hampshire confirmed that Joubert was employed there as a youth baseball instructor from late 2006 through mid-2009, but had been terminated due to complaints from parents that he had photographed players at a swimming pool during a trip to Florida and had showed up at a juvenile player's home while the child's parents were not there. That same person, according to the affidavit, reported that Joubert had " questionable contacts" with one boy in particular, " EZ," while working at the facility. The affidavit also claimed that two later interviewees--whose juvenile son had, like EZ, been coached by Joubert in Newington--made similar allegations (of inappropriate videotaping, visiting a child's home while the child's parents were not present, and close contact with EZ) against Joubert.
Based upon these allegations, the affidavit explained, the investigators spoke to both KC and EZ, the latter of whom stated that he was involved with Joubert from the ages of 9 to 11, during which time he had " numerous unsupervised contacts" with Joubert. According to the affidavit, EZ claimed that he had " questionable physical contact" with Joubert, which EZ characterized as Joubert " making a pass at him." The affidavit related claims by EZ that Joubert had performed upper-body massages on him while EZ was shirtless, and that on one occasion, Joubert had taken EZ into a back room at the Newington facility and " repeatedly tried to touch [his] crotch area." The affidavit further stated that KC, for his part, " disclosed several instances of sexual abuse against him by Joubert" in 2004, when Joubert was coaching him in youth baseball.
The affidavit also recounted the interviews of several other individuals who claimed that Joubert had sexually abused them, or otherwise had inappropriate physical contact with them, while they were minors:
o " NT" claimed that Joubert had sexually abused him in 1994, when NT was 12 years old (an incident that was the basis for Joubert's 1994 arrest for sexual assault, mentioned above).
o " KH" claimed that one night sometime in the time period of 1998-2000, when he was between the ages of 7 to 9, he slept at Joubert's apartment in Concord after Joubert had brought him to a baseball game, and awoke to find Joubert sucking on his big toe.
o " MT" claimed that during a three- to four-year period from 1994-1998, when he was between the ages of 8 and 12, Joubert sexually abused him
two to five times a week, and " hundreds of times" in total. These incidents, which occurred while MT was living with or near Joubert in Concord, and on one occasion when Joubert transported MT to Cooperstown, New York, primarily involved MT masturbating Joubert. According to MT, Joubert " took pictures of him playing sports, fishing, and at the beach and other locations." 
o Joubert's adult son, " SJ," claimed that Joubert had sexually abused him twice, around 1984 and 1986, when SJ was 9 and 11 years old. According to the affidavit, these incidents were " masterbatory [ sic ] in nature."
Much of the information conveyed in the affidavit dealt with SJ. The affidavit related that SJ had delivered a computer tower to the Concord police, asserting that the tower belonged to Joubert and that " he suspected that the hard drive contained incriminating information." According to the affidavit, SJ claimed that he had recently assisted Joubert in moving to the Fairmont Avenue property and that Joubert, who " was anxious because he was being investigated by the FBI," " tore apart the computer tower, trying to remove the hard drive" and asked SJ how to destroy the hard drive. SJ also claimed, according to the affidavit, that Joubert sad he had " client and financial information" on the hard drive " that he did not want getting out," and that he had recently had the hard drive " cleaned" but believed this may not have erased everything.
The police recorded and transcribed their interview with SJ when he delivered the computer tower to them. The transcript of this interview reveals that SJ professed to believe " that there is probably child pornography on that computer," but admitted that he " never saw any" child pornography on the computer or in magazines at Joubert's house, and that the likelihood that there was child pornography on the computer was " purely an assumption on my part." In recounting this interview, the affidavit stated that " SJ strongly suspected, based on [Joubert's] actions, demeanor, and past history with NT and himself, that there was child pornography or some other incriminating information in the computer." The affidavit did not expressly recount SJ's admission that his opinion about the presence of child pornography on the computer was " purely an assumption," nor did it state that SJ said that he had never seen any magazines depicting underage sexual images at Joubert's house.
The affidavit also mentioned that SJ had agreed to record a meeting with Joubert about a week after delivering the computer to the Concord police. The transcript of the recording, which was not submitted with the warrant application, reveals that Joubert vehemently denied the allegations of sexual abuse made by NT and KC. The transcript further reveals that SJ segued from discussing NT's allegations against Joubert into SJ's own allegations of sexual abuse against Joubert:
S  [What NT claimed is] awfully similar to what happened to me.
R No. No.
R No. No.
S Well, see, that's what's going to -- that's what going to be the deciding factor.
. . .
R [I] know I've done some things -- [SJ interjects] -- and I know I've done some wrong things. And I do apologize. I do.
. . .
R And I've apologized. I just told you, you know, I've done some things wrong, I'm not perfect, but I ...