United States Court of Appeals

For the Eighth Circuit

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No. 15-3039

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Thomas Zavesky

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Southern District of Iowa - Davenport

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 Submitted: February 9, 2016

 Filed: October 5, 2016

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Before SMITH and COLLOTON, Circuit Judges, and ERICKSON, District 1

Judge.

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ERICKSON, Chief District Judge. 

A jury convicted ThomasZavesky on one count ofreceipt of child pornography

in violation of 18 U.S.C. §§ 2252(a)(2), 2252(b)(1), and 2256 and one count of

The Honorable Ralph R. Erickson, Chief Judge, United States District Court

1

for the District of North Dakota, sitting by designation.
possession of child pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B),

2252(b)(2), and 2256. He appeals, claiming his due process rights were violated

because he was not present or given notice when the district court ordered him to

undergo a competency examination, his right to a speedy trial was violated, his

convictions for receipt and possession of child pornography violate double jeopardy,

and the district court erred in denying his motion to suppress. We affirm.

I. Background

Zavesky came to the attention of law enforcement officers when they noticed,

as part of their investigations on Internet child pornography, what appeared to be a

single computer sharing child pornography at different IP addresses. Through the use

ofsubpoenas, the investigating officerslearned that Zavesky was employed as a truck

driver, that Zavesky’s employer was a business using one of the IP addresses, and that

Zavesky had been near the various IP locations that caught the officers’ attention. 

Upon learning from Zavesky’s employer when and where Zavesky was

scheduled to be in Iowa, two special agents with the Iowa Division of Criminal

Investigations located Zavesky sitting in his parked semi-truck. When approached,

the agents noticed the smell of marijuana emanating from the truck and observed part

of a marijuana pipe in the truck and a laptop computer that was open and appeared

to be turned on sitting on the passenger’s seat. One of the agents advised Zavesky

that they were conducting an investigation, asked whether he would be willing to talk

to them, and informed Zavesky that he was not under arrest. Zavesky exited his semitruck and agreed to sit in the front passenger’s seat of that agent’s vehicle. 

Once inside the agents’ vehicle, Zavesky was again advised that he was not

under arrest and he did not have to talk to the agents. The agent made sure the door

was unlocked so Zavesky could leave if he wanted. Zavesky began answering

questions, cut off the interview after a short time, left the agents’ vehicle, walked

toward the semi-truck, returned a short time later, and reinitiated conversation with

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an agent who was now standing by the trunk of his vehicle. When Zavesky left the

agents’ vehicle, he wastold he could not go back inside his semi-truck out of concern

about the contents on the computer and whether Zavesky was under the influence

given the strong odor of marijuana observed by the agents. 

After observing Zavesky, the agent determined that he did not appear to be

under the influence. When Zavesky resumed talking to the agents by the trunk of

their car, Zavesky learned that they wanted to talk about the files on his computer.

Zavesky was willing to talk about that topic, and admitted to his knowledge about

file-sharing programs and estimated he had 2,800 images of child pornography. 

Zavesky refused to talk about a motel theft that he thought they could be investigating

or the marijuana that was found underneath his semi-truck, and declined to give the

password for his computer. 

One of the agents then left the scene to get a search warrant for the laptop

computer. A search warrant was obtained. A forensic examination uncovered child

pornography, which lead to the chargesin this case. Zavesky appeared on the charges

on December 30, 2013. Between February 2014 and September 11, 2014, Zavesky

requested the trial be continued five times, which the court granted.

On September 11, 2014, the district court held a telephonic scheduling

conference. Zavesky did not participate but his lawyer appeared on his behalf and

expressed concerns about Zavesky’s mental condition and competency. Zavesky’s

lawyer indicated he was having difficulty communicating with Zavesky and Zavesky

believed he was working for the Federal Bureau of Investigationsto stop the Russian

mafia frombringing child pornography into the United States. Zavesky’s lawyer also

reported that a family member indicated Zavesky had a history of mental illness. The

district court ordered Zavesky transferred from pretrial confinement to the custody

of Bureau of Prisons for a competency evaluation.

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Zavesky refused to cooperate with anymental health testing orinterviews. The

evaluator opined that Zavesky was competent to proceed and that Zavesky’s

statements about the Russian mafia were likely an attempt to make excuses and

explain his criminal conduct. After completion of the evaluation, the district court

reset the case back on the trial calendar.

Zavesky then moved to suppress the statements he made to the agents on the

grounds that there was a “de facto arrest” and Zavesky was illegally seized when he

wastold he could leave but could not get back in his semi-truck. Zavesky also argued

that the evidence obtained from the semi-truck must be suppressed as it was “fruits”

evidence obtained as a result ofthe unconstitutionalseizure. The district court denied

his motion to suppress, finding there was probable cause to search the semi-truck and

Zavesky was not in custody when he provided the statements to the agents. 

Zavesky proceeded to trial on June 8, 2015. A jury convicted him on one count

of receipt of child pornography and one count of possession of child pornography. 

He was sentenced to a term of 240 months’ imprisonment for receipt of child

pornography and a concurrent term of 120 months’ imprisonment for possession of

child pornography.

II. Discussion

On appeal, Zavesky argues there was no reasonable cause to order a mental

competency evaluation, and the district court’s committal for such an evaluation

without notice to him violated due process and his right to a speedy trial. He also

argues his convictions for both receipt and possession of child pornography violate

double jeopardy because the jury used the same evidence to convict him on both

counts, and the district court erred in denying his motion to suppress because his

statementsto law enforcement officers were based on an impermissible seizure of his

person and the evidence obtained from his semi-truck was “fruit of the poisonous

tree.”

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A. Competency Evaluation

Zavesky assertsthat his statutory rights to notice and presence under 18 U.S.C. 

§ 4241(a) were violated when he was committed for an inpatient competency

evaluation during a scheduling conference in which he was not present and without

notice that his lawyer would be requesting an evaluation. Zavesky also asserts the

district court’s committal process violated his Fifth Amendment due process right and

the Sixth Amendment speedy trial right. 

When an issue surrounding a defendant’s competency to stand trial is raised,

the district court must follow the process set forth in 18 U.S.C. § 4241. A district

court has a duty to order a competency hearing as follows:

At any time after the commencement of a prosecution for an offense and

prior to the sentencing of the defendant, the defendant or the attorney for

the Government may file a motion for a hearing to determine the mental

competency of the defendant. The court shall grant the motion, or shall

order such a hearing on its own motion, if there is reasonable cause to

believe that the defendant may presently be suffering from a mental

disease or defect rendering him mentally incompetent to the extent that

he is unable to understand the nature and consequences of the

proceedings against him or to assist properly in his defense.

18 U.S.C. § 4241(a). The court may order a defendant to undergo a psychiatric or

psychological examination and require that a report be filed with the court before the

date of the hearing. 18 U.S.C. § 4241(b). Pursuant to 18 U.S.C. §4247(b), the court

may commit the defendant for an examination under § 4241 “for a reasonable period,

but not to exceed thirty days.” 

If the court holds a competency hearing, the hearing must be conducted

pursuant to 18 U.S.C. § 4247(d). 18 U.S.C. § 4241(c). Under § 4247(d): 

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The person whose mental condition isthe subject of the hearing shall be

represented by counsel. . . . The person shall be afforded the opportunity

to testify, to present evidence, to subpoena witnesses on his behalf, and

to confront and cross-examine witnesses who appear at the hearing.

A district court’s decision to order a competency evaluation is reviewed for

abuse of discretion. United States v. Turner, 644 F.3d 713, 723 (8th Cir. 2011). 

Defendant’s counsel’s opinion on competency should receive “significant weight

since ‘counsel, perhaps more than any other party or the court, is in a position to

evaluate a defendant’s ability to understand the proceedings.’” Id. (quoting United

States v. Denton, 434 F.3d 1104, 1112 (8th Cir. 2006)).

Whether to order a competency evaluation prior to a hearing under § 4241(b)

is discretionary. There is neither a statutory requirement of notice to a defendant, nor

is the defendant’s presence required when the evaluation is ordered. A court may

make a “reasonable cause” determination without a hearing. See Krupnick v. United

States, 264 F.2d 213, 216 (8th Cir. 1959); United States v. Jackson, 179 F. App’x

921, 932 (6th Cir. 2006); United States v. McEachern, 465 F.2d 833, 837 (5th Cir.

1972). The statutory right to notice and an opportunity to be heard arises when the

district court is tasked with making a determination on whether a defendant is

competent to proceed. 18 U.S.C. § 4241(c), (d), and § 4247(d). 

Defense counsel expressed concern to the district court that he was having

difficulty communicating with Zavesky, and that Zavesky was delusional based on

his claim that he was investigating child pornography activities for the FBI. 

Zavesky’s sister also reported to counsel that Zavesky suffered from some mental

health issues after his child died, which was about five years before the trial. On this

record, the information before the district court wassufficient to establish reasonable

cause to investigate further Zavesky’s mental competency. 

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Turning to Zavesky’s constitutional claims, a district court’s authority to

commit a person to the Bureau of Prisons for an inpatient competency evaluation is

subject to due process requirements. United States v. Neal, 679 F.3d 737, 740-41 (8th

Cir. 2012). At its heart, due process requires “the opportunity to be heard ‘at a

meaningful time and in a meaningful manner.’” Mathews v. Eldridge, 424 U.S. 319,

333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). Zavesky was

represented by counsel at the hearing when the district court ordered Zavesky

committed for a competency evaluation. While the preferred practice would include

the presence of the defendant when it appearslikely that the defendant and the lawyer

are at odds about the necessity of a competency evaluation, under the circumstances

of this case, the process and procedures undertaken by the district court were

sufficient to satisfy the minimum requirements of the Due Process Clause. 

Even assuming due process requires something more than what the district

court did in Zavesky’s case, “[i]t has long been clear that constitutional violations can

be subject to harmless error analysis.” Lufkins v. Leapley, 965 F.2d 1477, 1480 (8th

Cir. 1992) (citing Chapman v. California, 386 U.S. 18, 22 (1967)). Constitutional

violations occurring during a criminal proceeding are divided into two categories:

trial errors and structural defects. Arizona v. Fulminante, 499 U.S. 279, 307-10

(1991). A trial error is an error that can “be quantitatively assessed in the context of

other evidence presented,” and is subject to harmless-error analysis. Id. at 307-08. 

A structural defect “affect[s] the framework within which the trial proceeds, rather

than simply an error in the trial process itself” and thus “def[ies] analysis by

‘harmless-error’ standards.” Id. at 309-10. A structural defect is “the exception and

not the rule.” Rose v. Clark, 478 U.S. 570, 578-79 (1986). As recognized by the

Supreme Court, “most constitutional errors can be harmless.” Fulminante, 499 U.S.

at 306.

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Under these circumstances, Zavesky’s asserted lack of notice and opportunity

to be personally heard would constitute, at most, a trial error. Even assuming a

constitutional violation, Zavesky has not demonstrated prejudice that resulted from

the committal process. Following the evaluation, the district court found Zavesky

competent to proceed. To the extent there was any information gathered during the

competency evaluation, it was not used against Zavesky either at trial or at

sentencing. Finally, Zavesky proceeded to trial and he has not pointed to any

evidence that was unavailable because he was required to undergo a competency

evaluation. Any trial error under these particular circumstances was harmless. 

Zavesky contendsthat the committal process violated his right to a speedy trial. 

Assessment under the Sixth Amendment for a speedy trial violation includes

consideration of the length of the delay, the reasons for the delay, the defendant’s

assertion of his right to a speedy trial, and prejudice to the defendant. United States

v. Sprouts, 282 F.3d 1037, 1042 (8th Cir. 2002). In this case, there was an

approximate five-month delay between the date the competency evaluation was

ordered and when Zavesky was again available for trial. Before that, Zavesky

requested five continuances of the trial. After the competency evaluation, defense

counsel was granted permission to withdraw and new counsel was appointed,

resulting in another continuance. Trial proceeded approximately four months after

the district court found Zavesky competent to proceed. 

During the course of this case, Zavesky managed to work through three

different lawyers, each of whom were required to become familiar with Zavesky’s

case. The motionsto continue were at Zavesky’s request. Zavesky has not identified

any prejudice caused by any period of delay. Under all the circumstances, the

approximate 18-month delay between when Zavesky appeared on the charges and

trial commenced does not rise to the level of a Sixth Amendment violation.

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Finally, the Speedy Trial Act specifically excludes from consideration delay

resulting from an examination to determine mental competency. 18 U.S.C. §

3161(h)(1)(A); United States v. McGhee, 532 F.3d 733, 737 (8th Cir. 2008)

(proceedings to determine competency are excluded under the Speedy Trial Act,

whether reasonable or unreasonable). Thus, Zavesky has shown no statutory

violation of the Speedy Trial Act.

B. Double Jeopardy

Zavesky asserts that his convictions for receipt and possession of child

pornography violate the double jeopardy clause. The Indictment alleged in count one

that between September 13, 2010, and April 9, 2012, Zavesky knowingly received

one or more visual depictions of a minor engaging in sexually explicit conduct. 

Count two alleged that on or about April 11, 2012, Zavesky knowingly possessed at

least one matter containing a visual depiction of a minor engaging in sexually explicit

conduct.

To prove a double jeopardy violation, a defendant must demonstrate that he

was convicted of “two offenses that are in law and fact the same offense.” United

States v. Muhlenbruch, 634 F.3d 987, 1002 (8th Cir. 2011). Possession of child

pornography is a lesser-included offense to receipt of child pornography. Id. 

Convictions for both possession and receipt of the same image violate the double

jeopardy clause. Muhlenbruch, at 1004. 

Each count in the Indictment alleges conduct occurring on a different date. At

trial, the prosecutor presented evidence that child pornography was located in two

main folders on the computer. Images and videos containing child pornography were

downloaded between September 13, 2010, and April 10, 2012, to a folder named

“Incoming”. The jury was shown several images from the “Incoming” folder. In

addition, child pornography, specifically a copy of a video entitled “wowowowow”,

was also located in a folder entitled “Documents” that existed on April 11, 2012. 

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This video was played for the jury. The charging document and evidence before the

jury demonstrate that different dates and different visual depictions of minors were

at issue and thus there is no double jeopardy violation. 

Even if there should have been more precision in distinguishing the offenses,

at the jury instruction conference the prosecution had no objection to the district

court’s proposed special interrogatories regarding the image or images involved in

each offense. Zavesky’s counsel acknowledged that he likely had a right to the

interrogatories but that he did not believe that issue to be a “determinate factor” and

waived any right he might have had to present special interrogatories to the jury. T.

Tr.Vol. II, pp. 185-87. Zavesky’s counsel’s statements constitute a waiver and his

claimis not reviewable on appeal. See United States v. Wisecarver, 598 F.3d 982, 988

(8th Cir. 2010) (explaining that a defendant waives an argument by intentionally

relinquishing or abandoning a known right and that waived claims are not reviewable

on appeal).

C. Suppression Motion

Zavesky argues that the district court erred in denying his motion to suppress

because he was illegally seized and subjected to a “de facto arrest” when he provided

incriminating statements to law enforcement officers, and that the evidence obtained

from his semi-truck was “fruit of the poisonous tree.”

A district court’s legal determination about whether a defendant wasin custody

is reviewed de novo and the court’s factual findings are reviewed for clear error.

United States v. Vinton, 631 F.3d 476, 481 (8th Cir. 2011). Six nonexclusive factors

are considered when determining whether a suspect is in custody: 

(1) whether the suspect was informed at the time of questioning that the

questioning was voluntary, that the suspect was free to leave or request

the officersto do so, or that the suspect was not considered under arrest;

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(2) whether the suspect possessed unrestrained freedom of movement

during questioning; (3) whether the suspect initiated contact with

authorities or voluntarily acquiesced to official requests to respond to

questions; (4) whether strong arm tactics or deceptive stratagems were

employed during questioning; (5) whether the atmosphere of the

questioning was police dominated; or, (6) whether the suspect was

placed under arrest at the termination of the questioning.

United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990).

During his encounter with law enforcement officers, Zavesky was informed

multiple times, at least five times according to the interviewing agent’s testimony,

that he was not under arrest and that he did not have to talk to them. The vehicle’s

doors were unlocked, and at one point, Zavesky left the agents’ vehicle and started

walking away. When Zavesky returned, he voluntarily reinitiated the conversation

with the agents. Zavesky was selective in which questions or topics he would talk

about, declining to answer certain questions. Zavesky was not arrested at the scene,

but left in a cab. We agree with the district court that Zavesky was not in custody and

thus there was no Miranda violation.

Zavesky also argues the district court erred in denying his motion to suppress

the evidence seized from his semi-truck as “fruit of the poisonous tree.” In light of

the background investigation and Zavesky’s statements,lawenforcement officers had

probable cause to detain Zavesky’s semi-truck after observing the laptop in the

passenger’s seat. See United States v. Goodale, 738 F.3d 917, 922 (8th Cir. 2013)

(noting where officers have probable cause to believe laptop contains contraband and

there is a legitimate interest in preventing destruction of the potential contraband, the

Fourth Amendment permits seizure of the property, pending issuance of a warrant to

examine its contents). The semi-truck was detained for approximately one hour while

the officers obtained a search warrant. The warrantless seizure of the semi-truck and

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laptop did not violate Zavesky’s constitutional rights. The district court did not err

in denying Zavesky’s motion to suppress. 

III. Conclusion

We affirm the judgment of the district court. 

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