Federal prosecutors take novel tack in child porn case

By Tim McGlone, The Virginian-Pilot – January 31, 2008

NORFOLK
Federal prosecutors have come up with a novel approach to overcome an appeals court decision that threw out an alleged confession in a child pornography case.

Even though the prosecutors now cannot use the statements of the defendant, Willoughby W. Colonna IV, in a new trial on pornography charges, they have filed perjury charges and plan to use those statements to try to show that Colonna lied on the witness stand.

Legal experts say prosecutors might have difficulty persuading the courts to allow the alleged confession in the perjury case when they won’t be able to use it to retry Colonna on pornography charges.

One defense attorney called the prosecutors’ tactic “oppressive.”

Bill Colonna, as he is known, is an heir to Colonna’s Shipyard, a 132-year-old Norfolk company founded by his great-great-grandfather. He was arrested in June 2004 when two dozen FBI agents swarmed his Chesapeake home, kicked open his bedroom door and ordered him at gunpoint to come outside. Agents had a warrant to search his home based on what they said was evidence that a computer there was used to view child pornography.

A search of the computer files uncovered 400 videos depicting prepubescent children in sexually explicit scenes, including children younger than 5, according to an indictment against Colonna. The FBI said he downloaded files and advertised some on the Internet.

At his house that day in 2004, Colonna told agents the child pornography was his, according to a statement the FBI said he made. But at his trial in August 2006, he testified that the agents fabricated the confession.

“Did you ever admit to the agent that you were involved in the transmission of child pornography?” a federal prosecutor asked Colonna at the trial.

“There is no possible way I would have told a federal agent that I was transmitting child pornography,” Colonna replied.

“Did you ever tell the agent that you had advertised for 10-to 16-year-old girls?” Colonna was asked next.

“Absolutely not,” he replied.

The jury in the case believed the agents, and Colonna was convicted of 10 child pornography charges. U.S. District Judge Robert G. Doumar sentenced him to 17½ years in federal prison.

But on appeal, Colonna won a partial victory. The 4th U.S. Circuit Court of Appeals last month granted him a new trial after ruling that the FBI violated his constitutional rights that day in 2004 and that his statements should have been suppressed at trial. The court found that the FBI, before questioning Colonna, should have given him his Miranda warnings, which advise suspects of the right to counsel and the right against self-incrimination.

Suspects are supposed to be given their Miranda rights upon arrest or if they are detained long enough to believe their freedom to leave is curtailed. The FBI interrogated Colonna for more than three hours in the back of an agent’s car but never told him he was under arrest.

“A reasonable man in Colonna’s position would have felt that his freedom was curtailed to a degree associated with formal arrest,” the appeals court said.

On Friday, the U.S. attorney’s office obtained a new indictment against Colonna, charging him with obstruction of justice and four counts of perjury. He could face up to 10 years in prison on the obstruction charge and up to five years on each perjury count. Prosecutors say in court papers that they plan to use Colonna’s alleged confession against him in the perjury case to try to show that he lied at his child pornography trial.

Colonna appeared in U.S. District Court on Wednesday for a bond hearing. Doumar granted him a $250,000 bond pending trial on the perjury case, scheduled for April 29, and retrial on the child porn case, set for June 3.

The judge ordered Colonna to live with his grandfather, Willoughby Colonna Jr., the shipyard owner. He also ordered Colonna to wear an electronic monitoring device, not to go near any computers, and to travel only to and from work at the shipyard.

Three legal experts say they have not heard of a perjury case like this.

William Van Alstyne, a law professor at the College of William and Mary who specializes in constitutional issues, said the perjury indictment is “a step beyond what’s been accepted.” However, he added that “it’s possible they may be able to do this.”

Virginia Beach attorney L. Steven Emmert, who tracks appeals issues, said prosecutors “went way too far.”

“Can evidence taken illegally in one crime be used in the prosecution of a separate crime? My sense is the answer to that question is going to be no,” he said. “If it’s illegally taken in one purpose, it’s illegal to use in another.”

Like Van Alstyne and Emmert, Charlottesville civil-rights attorney Steven Rosenfield said he would expect the appeals court to again suppress Colonna’s statements, if the case gets that far.

Assistant U.S. Attorney Michael Moore, the prosecutor, declined to comment outside of court but told Doumar that the perjury case is based on “almost incontrovertible” case law. Colonna’s attorney, James Broccoletti, declined to comment.
 
Tim McGlone, (757) 446-2343, tim.mcglone@pilotonline.com