When former Joplin pediatric surgeon Guy Rosenschein's trial on child pornography charges begins in June in U. S. District Court for the District of New Mexico, prosecutors will not be allowed to use his confession against him.
A federal judge ruled recently that investigators elicted Rosenschein's potentially incriminating statements by continuing to question him after he invoked his right to counsel.
Rosenschein, who had his medical privileges revoked earlier this month in Missouri, was initially arrested in November 2016.
The case against Rosenschein will still include the information that led to his questioning in the first place, including the tracing of child pornography to his IP address and the subsequent discovery of more incriminating evidence during the execution of a search warrant at the doctor's home.
The facts surrounding law enforcement questioning of Rosenschein were detailed in the judge's opinion:
On November 8, 2016, law enforcement officers executed a state court search warrant for Rosenschein’s home. He was arrested and taken to the police station by a Bernalillo County detective. There, an FBI agent interviewed Rosenschein and gathered information about his background.
Rosenschein, a pediatric urologist who is originally from France but has lived and practiced medicine in the United States for decades, did not appear to have any problem understanding the agent, though he did speak English with an accent.
After the interview, Rosenschein was informed of his Miranda rights and he agreed to participate in a polygraph examination administered by the agent. After the polygraph, Rosenschein participated in a two and a half hour interview with the agent, which was videotaped. This interview is the subject of Rosenschein’s motion to suppress.
The agent began the interview by telling Rosenschein that after reviewing the results of the polygraph, he had no doubt that Rosenschein had sexually touched a minor.
Rosenschein was noncommittal, and the agent told him that he must decide what “path” he wanted to walk because “[i]t makes a difference for you. It makes a difference for what happens to you.”
After telling Rosenschein that he knows Rosenschein has achieved his professional goals by making some “hard choices,” the agent said, “Today is the most difficult choice you will ever have to make.” Then the agent told Rosenschein that he was the “last person in a long line of people who is going to talk to you and offer you an opportunity to be truthful but also get some help. I suspect that you are somebody who battles with urges and battles with things that give you pleasure but that you don’t feel good about.”
After mentioning “programs” and “counseling,” The agent told Rosenschein that “if you’re honest about those things, it makes a difference. It makes a difference in the consequences you’ll face. It makes a difference in the programs that are available to you. It makes a difference in your everyday personal life because you will feel better about it . . .”
Then Rosenschein asked, “Where do we go from here?”, and the agent told him that he should start by telling the truth “because those things make a difference for you.” Then Rosenschein said, “Maybe, maybe I should get a lawyer.”
The agent immediately told Rosenschein that he could not go any further now that Rosenschein had made that statement, to which Rosenschein replied, “I don’t say I, I don’t want to talk. I didn’t say that.”
The agent said that he had to be very careful at this point and added, “What I need to know is whether or not you wanna talk to me now or whether or not you wanna stop talking and get a lawyer. Because understand, if you wanna stop talking and get a lawyer, you won’t see me again. Okay?”
Rosenschein then asked the agent what he wanted him to do, and the agent said that he wanted Rosenschein to make up his mind. The agent then stated that he could not answer Rosenschein’s question, but he could offer Rosenschein “help”:
“I can offer you an opportunity to bear [sic] your soul and get things off your chest, but I can’t do that if you wanna get an attorney. You have to make up your mind.”
Rosenschein then asked what help the agent was offering, to which the agent replied, “cathartic help.” When Rosenschein did not understand the word “cathartic,” the agent explained that being truthful will help Rosenschein “from an emotional standpoint.”
The agent then continued, “if you’re truthful with me and you describe to me the circumstances under which those things happened, that makes a difference. It makes a difference in what the consequences are for you, in what charges you’ll face. It makes a difference in how people will view you.” The agent said that defendants who do not show cooperation and remorse “get put in a different box” when charges are filed and when consequences are discussed.
The agent then suggested that if Rosenschein revealed the problems he was struggling with, the agent could get Rosenschein help with “programs.” After acknowledging that this would not make Rosenschein’s problems go away, the agent told Rosenschein, “I legitimately and sincerely think that talking to me will make a difference for you, but you have to make up your own mind. I can’t give you any legal advice.”
The agent then told Rosenschein that he did not believe that Rosenschein was “one of those people” who does not want help, but rather someone who had made mistakes but wants to do the right thing. “I wanna help you, but it means that you gotta talk to me. And it means you have to make your mind up about what you want.... What I need to know is do you want to get an attorney, or do you wanna talk to me?”
At this juncture. Rosenschein asked for five minutes alone, and the agent agreed. The agent left the room and a few moments later, Rosenschein stood up from his chair and put on his jacket.
At this point, the agent returned and Rosenschein said, “I think I will take an attorney. It doesn’t really matter. My life is over so when it is over it is over.” The agent stated that he did not understand what Rosenschein said, and again Rosenschein announced (this time more audibly), “I will take a lawyer.” The agent asked, “You want an attorney?” Rosenschein responded, “Yes. It’s over anyway. Whatever. Even if I win, it’s over. It doesn’t mean I will not do something else.”
The agent pressed on, telling Rosenschein that he could not talk to him anymore, to which Rosenschein responded, “Well, I didn’t say I don’t want to talk to you. I didn’t say I want to remain silent. I just said I will take a lawyer.”
The agent did not end the conversation, but instead told Rosenschein, “Well, the—the point is is that at this point, given that you want an attorney, I have to stop talking to you. So, um—” Rosenschein responded to that with the statement, “I need some advice, and I need some legal advice.”
At this point the agent said, “Well, let me tell you what’s gonna happen from here forward.”
When Rosenschein agreed, the agent explained, “what will happen is you’re gonna go to jail today,” and stated that Rosenschein probably would be in state custody initially, but that Rosenschein’s case was “likely going to be picked up federally” due to Rosenschein’s alleged travel with a minor.
At this point, Rosenschein started to object, saying that “this kid has nothing to do—” but was cut off by the agent, who stated that he was not asking Rosenschein questions. The agent continued, telling Rosenschein that it was likely going to be a federal prosecution and there would likely be other charges.
Then Rosenschein queried, “What is the penalty?” and asked the agent what would happen if he continued to talk to the agent.
The agent responded that first they have to make sure that Rosenschein really wanted to talk to him because Rosenschein had stated that he wanted an attorney, but that the difference would be that Rosenschein got to tell his side of the story up front, and that it would make a difference not only in how Rosenschein would be “perceived in the legal system,” but also “in the consequences and the charges that are brought against you.”
But then the agent quickly noted that he was not asking a question and did not want a response from Rosenschein but was merely trying to answer his question.
Rosenschein said that he understood. Then the agent told Rosenschein, “If you decide not to talk to me and you still want an attorney today, chances are you’re not gonna get to tell your side of the story to anybody in law enforcement going forward. Maybe you will, maybe you won’t. But chances are probably not.”
At this point, Rosenschein informed the agent, “I’ll talk to you. And I know what I’m doing.”
The agent said that he needed to consult with other people to make sure that he “says the right words” to continue the interrogation, because “this is an unusual circumstance… I don’t usually have people say, ‘I want an attorney,’ and then say, ‘I don’t want an attorney.’” There was a discussion off the record.
When the agent returned to the conversation, Rosenschein said, “I will talk to you, but I will still take an attorney later on.”
Again, the agent responded that they needed to be careful and make sure that they understood exactly what Rosenschein did and did not want to do, and Rosenschein responded, “I want to talk to you, and I want to take a lawyer after.”
The agent told Rosenschein that he was going to go over his rights one more time, so that there was no misunderstanding. The agent then summarized their conversation, which Rosenschein agreed with.
Next, the agent read out the Miranda rights on a written waiver form.
Rosenschein said, “After I speak with you, I go to jail anyway,” and the agent responded, “That’s true.”
Again, the agent asked him if he understood his rights (“Yeah”) and if he wanted to answer questions without a lawyer present.
Rosenschein replied that he might answer only one question and change his mind. The agent said that Rosenschein could change his mind at any time he wanted. Then the agent asked, “So, this means that you are willing to answer questions now without a lawyer present?”
Rosenschein responded, “Exactly.”
The agent clarified, “Even though you said before you might wanna get an attorney or that you should get an attorney?”
Rosenschein answered with a question of his own: “If I get an attorney, so I get him right now?”
The agent explained that he would not get a lawyer immediately unless he had one on a retainer, but otherwise one could be appointed at a court hearing.
“That would take days,” replied Rosenschein.
When the agent confirmed this, Rosenschein asked, “Would I get out of jail in the meantime or not?” The agent said that he did not know a lot about how state court works, and that it was possible that he could have a bail hearing and that they could release Rosenschein on his own recognizance, and there was a possibility that he would remain in custody, but the decision would belong to a judge.
In response, Rosenschein said: “Okay. Let’s go to jail. Forget it. I mean, it doesn’t matter what I do. It’s over. You know what I mean?” Then, Rosenschein confirmed that he was willing to talk to the agent without a lawyer present, acknowledged that he signed the waiver form, and asserted that he knew what he signed.
What Rosenschein admitted during the interrogation was revealed in a news release from the U. S. Attorney for the District of New Mesico, which is printed below:
On July 21, 2016, and again on August 8, 2016, the National Center for Missing and Exploited Children (NCMEC) received a cybertip from “chatstep.com” indicating that a user identifying himself as “Carlo” had sent images of child pornography to another user. The IP address associated with the user “Carlo” originated from the Albuquerque area.
NCMEC forwarded this information to the New Mexico Attorney General’s Office Internet Crimes Against Children (ICAC) Task Force, and Bernalillo County Sherriff’s Office (BCSO) Detective Kyle Hartsock initiated a criminal investigation.
Detective Hartsock first reviewed the distributed files and confirmed that the images contained child pornography. Detective Hartsock observed that the image distributed on July 31, 2016, is a color image depicting a prepubescent boy laying on his stomach on a bed with a distinct patterned bedspread and pink/purple blanket. (The next two paragraphs describe photos of an adult and the boy engaged in anal sex.)
Detective Hartsock obtained a subpoena for the internet service provider associated with the IP address and learned that the account was registered to Defendant, a pediatric surgeon employed by Presbyterian Hospital.
On November 7, 2016, Detective Hartsock obtained a state search warrant for Defendant’s residence, which was executed the following day. During the execution of the search warrant, law enforcement located a 16-year-old boy (John Doe) inside Defendant’s bed wearing only underwear.
Defendant falsely identified John Doe as his nephew, but law enforcement later determined that John Doe was a former patient of Defendant’s.
The search of Defendant’s residence revealed numerous electronic devices that were seized for further analysis. The forensic analysis on most of the seized devices remains pending. Several of the devices are encrypted and will require further analysis in order to gain access. During the search law enforcement located a thumb drive attached to a keychain found in the ignition of Defendant’s vehicle, which was found to contain over one thousand images and videos of child pornography. This thumb drive is the subject of Count 3 of the indictment.
Defendant was first interviewed by Detective Kyle Hartsock during the execution of the search warrant and was later interviewed by FBI SA Marcus McCaskill. During his first interview, Defendant stated that John Doe was a former patient who stays with him from time to time. Defendant stated he owns two planes and a helicopter and has flown John Doe to several locations throughout the United States.
During his interview with SA McCaskill, Defendant admitted that he is sexually attracted to underage males “on occasion,” but has not had sexual contact with a minor since approximately 1994 in Paris.
When asked about chatstep.com, Defendant admitted that he has likely used the name “Carlo” in the past. Although he stated that he usually uses the name “Steve.” Defendant accepted responsibility for the thumb drive and stated that he obtained it in Europe several years ago. He stated that he had not looked at the thumb drive in approximately seven years, however the forensic data indicates that the files were accessed as recently as May 2016.
The complete forensic analysis of the seized thumb drive indicates that the device contained approximately 1,042 images and 78 videos of suspected child pornography. The initial file comparison from NCMEC indicates that Defendant possessed 41 files of previously identified children. Is it clear from the files contained on the thumb drive that the focus of the collection is prepubescent and pubescent minor males.
Following the execution of the first search warrant, federal law enforcement officers learned that Defendant’s home contained a “secret room” located inside the residence. This room was not discovered during the execution of the first search warrant.
Pursuant to a federal search warrant, agents re-entered Defendant’s residence and gained access to the room where they located two safes. Inside one of the safes, agents located five printed photographs depicting a dark-complected, possibly foreign-born, minor male child who was approximately 11 to 15 years of age based on body and pubic development.
Four of the photographs depicted the child nude in the shower. The time stamp on the back of the photo noted “Avril 94” (April 1994). Agents also located flight logs detailing an entry for travel to the Koh Kong province of Cambodia in March 1994.
An Apple iPhone3G was seized from Defendant’s office inside his residence. Defendant provided BCSO officials with the password to access this phone. The forensic analysis of the phone revealed a Yahoo Messenger account with the user name “cambodia1994.”
Hundreds of Yahoo chat messages were recovered from the phone, most of which focused on sexually explicit conversation. “Cambodia1994” primarily identified himself as “Steve” and claimed to be a teenage male living in the United States. “Steve” engaged in sexually explicit conversations with multiple users, often presenting himself as a minor working in a “club” and being forced to have sexual contact with adult males. “Steve” describes violent sexual experiences and how he is increasingly enjoying the contact.
(The next portions of the motion featured verbatim transcripts of the conversations.)
Law enforcement also seized an iPhone6 from Defendant’s residence. The forensic analysis of this phone revealed approximately one dozen photographs that appear to have been taken in a hospital or medical setting.
Investigators learned that it is against Presbyterian Hospital policy for physicians to take medical photographs on their personal phones. Several of the photographs depict close up views of genitalia.
In December 2017, the Arkansas FBI Office issued a news release asking for the public help's in finding information about Rosenschein's dealings with minors during the time he practiced in that state, a time that corresponds with the years he practiced in Joplin.
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