NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________________

No. 19-3252 _______________________

UNITED STATES OF AMERICA

v.

GILROY D. ELCOCK, Appellant _______________________

On Appeal from the District Court of the Virgin Islands District Court No. 1-17-cr-00005-001 District Judge: The Honorable Wilma A. Lewis __________________________

Submitted under Third Circuit L.A.R. 34.1(a) December 7, 2020

Before: SMITH, Chief Judge, CHAGARES, and MATEY, Circuit Judges

(Filed April 1, 2021)

__________________________

OPINION * __________________________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. SMITH, Chief Judge.

A jury found Gilroy D. Elcock guilty of several federal child pornography charges

and two territorial counts of rape in the first degree. See

(a) and

2252(a)(4)(B); 14 V.I.C. § 1700(a). Elcock challenges the District Court’s denial of two

separate motions to suppress evidence obtained from his cellular telephone. 1 We will

affirm.

Elcock engaged in sexually explicit conduct with the two minor daughters, ages 12

and 16, of his significant other, with whom he lived. He recorded video of that activity

using a cellular telephone. The girls’ mother suspected Elcock of inappropriate behavior

and demanded that he move out of the home. After learning that Elcock had a sex video

of one of her daughters on his cellular telephone, she reported him to the Virgin Islands

Police Department (VIPD).

The VIPD asked Elcock to accompany them to the police station and to bring his

cellular telephone and iPad. He complied, and the VIPD recorded an interview with

Elcock. As captured by the recording, and after the VIPD advised Elcock of his

Constitutional rights, Elcock affirmed that he understood those rights. The “officers asked

for consent [to search his devices] only once, and it was immediately given.” SA49.

Indeed, the Court noted that Elcock “offer[ed] his assistance” as the officers tried to

manipulate his devices, informing the officers there was “no password on his phone” and

providing them with the “password to his iPad.” SA43 n.3. The officers then provided

1 The District Court had jurisdiction under

and

(a) and (c). We exercise jurisdiction under

. 2 Elcock with a consent form, which he signed, that authorized a search of Elcock’s cellular

telephone “by members of the [VIPD], Government of the Virgin Islands.” SA43.

The VIPD search of Elcock’s cellular telephone did not yield any unlawful videos.

Pursuant to their usual practice, the VIPD arranged for the Department of Homeland

Security (DHS) to search Elcock’s cellular telephone. The DHS also did not find anything

incriminating. But about 22 months later, the DHS again searched the device. This time,

using an updated encryption software, the DHS found seven videos showing Elcock

engaged in sexual conduct with the two minor daughters.

Elcock was charged with multiple counts of producing and possessing child

pornography in violation of federal law, and rape under territorial law. United States v.

Elcock, No. 1:16-cr-27, ECF No. 1 (D.V.I. Nov. 1, 2016). At the arraignment, the

Magistrate Judge set various deadlines, including the filing date of December 26, 2016, for

pretrial motions.

at ECF No. 26. After the deadline, but before trial, Elcock filed a

motion in limine, seeking to preclude the admission of the sex videos found on his cellular

telephone. Elcock asserted that his consent to search the cellular telephone was

involuntary. Alternatively, he submitted that the sex videos should be excluded because

his consent was limited to the VIPD as set forth on the consent form and that consent did

not extend to the DHS.

at ECF Nos. 37, 38. The District Court considered the motion

in limine as an untimely motion to suppress, which necessitated continuing the trial to allow

for briefing, a hearing and adjudication.

at ECF No. 41.

In the meantime, a grand jury returned a separate indictment against Elcock,

charging him with six federal counts of producing child pornography and one federal count 3 of possessing child pornography. The indictment included several territorial counts of

rape. See United States v. Elcock, No. 1:17-CR-5, ECF No. 1 (D.V.I. Feb. 1, 2017). In

light of that development, the District Court granted the prosecutor’s motion to dismiss the

information in the 2016 criminal proceeding. During Elcock’s initial appearance in the

2017 criminal proceeding, the Magistrate Judge set February 21, 2017, as the deadline for

pretrial motions. Elcock filed a timely pretrial motion to suppress. This pretrial motion

presented the very same arguments: that Elcock’s consent to the search was involuntary

and, even if voluntary, the consent given to the VIPD did not extend to the DHS.

After a hearing and after consideration of the VIPD video of Elcock’s interview,

Chief Judge Lewis concluded that nothing in the video suggested that Elcock’s consent

was involuntary. As to the scope of consent, Judge Lewis concluded that a “reasonable

person would not have understood his consent to be limited to members of the VIPD based

on the exchange between [Elcock] and the officers at the time [Elcock] gave his verbal

consent.” SA52. She further found that his consent was unaffected by “any language on

the consent form—which he apparently had yet to see.”

Finally, she declared that

Elcock’s “consent eliminated his expectation of privacy in his electronic devices,” thereby

rendering DHS’s actions a valid search.

Trial commenced on August 21, 2017. On the second day of trial, the prosecution

presented a witness, Dennis Carter, who worked for DHS and who had performed the

agency’s second search of Elcock’s cellular telephone. During Carter’s direct

examination, Elcock’s counsel objected to Carter’s testimony, arguing that, without a

warrant, the search was unreasonable under the Fourth Amendment because Elcock’s 4 initial consent did not authorize the second DHS search of his electronic devices 22

months later. 2 The Court noted that counsel had not raised this issue previously. In

response, defense counsel acknowledged that this was a new issue, and that she had

“[d]efinitely” been aware at the time of the filing of the initial pretrial motion to suppress

in February 2017 that there had been two searches conducted, one in 2014 and then one

in 2016. JA144.

Chief Judge Lewis expressed her concern that this new basis for suppression had

not been raised until “the middle of trial.” JA149. Defense counsel acknowledged that

this trial motion was “somewhat late.” JA155. After hearing additional argument and

citing the untimeliness of the trial motion, the District Court found “no good cause” for

the delay. She thereby denied the motion and the trial proceeded. JA166.

The following day, defense counsel sought reconsideration of the denial of Elcock’s

untimely trial motion to suppress. The Court denied reconsideration. The jury found

Elcock guilty of the federal child pornography offenses and the territorial charges of rape

in the first degree. This timely appeal followed.

Elcock raises three issues on appeal. He contends that the District Court erred by:

(1) denying his February 2017 pretrial motion to suppress seeking to limit the scope of his

consent to the VIPD; (2) denying as untimely the trial motion to suppress; and (3) failing

2 We refer to this oral motion to suppress as the “trial motion” to distinguish it from the pretrial suppression motion filed in February 2017 and denied by the District Court in May 2017. 5 to grant the trial motion to suppress because the second DHS search, conducted more than

20 months after consent had been given, was unreasonable under the Fourth Amendment.

In reviewing the denial of a motion to suppress, we apply clear error review to the

District Court’s factual findings and “exercise plenary review as to its legality in the light

of the court’s properly found facts.” United States v. Davis,

(3d Cir.

2013) (omitting internal quotation marks and citation). Elcock’s contention that the

District Court erred in denying his pretrial motion to suppress lacks merit. The District

Court identified the applicable law in evaluating the scope of Elcock’s consent to search.

See Florida v. Jimeno,

(1991). Given the District Judge’s findings of

fact, which were thorough, we see no error in her determination that “[a] reasonable person

would not have understood [Elcock’s verbal] consent to be limited to members of the

VIPD.” SA52.

As to the trial motion to suppress, Elcock argues that the motion was timely under

Federal Rule of Criminal Procedure 12(c)(1). Rule 12(c)(1) provides that the “court may,

at the arraignment or as soon afterward as practicable, set a deadline for the parties to make

pretrial motions . . . If the court does not set one, the deadline is the start of the trial.” Fed.

R. Crim. P. 12(c)(1). According to Elcock, because “[n]o written scheduling order was

issued in this case. . . the deadline for filing of pretrial motions was the start of the trial.”

Appellant’s Br. 16. In his view, “the August 22, 2017 [Trial] Motion to Suppress was

timely made at the start of the trial.” Appellant’s Br. 17.

There are several problems with Elcock’s arguments. First, a deadline was indeed

issued. The docket in the 2017 criminal proceeding memorializes that the Magistrate Judge 6 set February 21, 2017, as the deadline for pretrial motions. United States v. Elcock, No.

1:17-cr-5, ECF No. 5 (D.V.I. Feb. 2, 2017). Second, to the extent Elcock contends that the

schedule must appear in a written order, he is wrong. The text of Rule 12(c)(1) does not

mandate a written schedule. Rather, it simply contemplates that a “court may . . . set a

deadline.” Fed. R. Crim. P. 12(c)(1). As the Eleventh Circuit has succinctly stated: “Oral

orders are just as binding on litigants as written orders.” Malautea v. Suzuki Motor Co.,

, 1542 n.7 (11th Cir. 1993). Third, even if a scheduling order had not been

in place, Elcock did not make his trial motion at “the start of the trial.” Fed. R. Crim. P.

12(c)(1). The trial started on August 21 with the selection of a jury. On August 22, the

parties presented their opening statements and three witnesses testified before Dennis

Carter took the stand, prompting Elcock to raise his belated motion to suppress. Given this

chronology, there is no merit to Elcock’s assertion that his trial motion complied with Rule

12(c)(1)’s deadline for suppression motions at “the start of trial.” The District Court did

not err in denying, as untimely, Elcock’s trial motion to suppress. Indeed, we commend

the District Judge for her careful handling of the trial motion and her consideration under

Rule 12(c)(3) of whether Elcock had demonstrated “good cause” for the delay in presenting

the trial motion. And, notably, Elcock does not contend that the District Court erred by

finding “no good cause.” JA166.

In sum, we will affirm the judgment of the District Court.

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