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United States v. Nagel

United States District Court, E.D. Wisconsin

June 5, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL E. NAGEL, Defendant.

          ORDER

          J.P. Stadtmueller U.S. District Judge.

         Defendant, Michael E. Nagel (“Nagel”), filed a motion seeking the return of certain property seized by the U.S. Probation Office in June 2017. (Docket #143). The Court referred the motion to Magistrate Judge William E. Duffin for a report and recommendation. On April 6, 2018, Magistrate Duffin filed an initial report and afforded Nagel an opportunity to request a hearing on the motion. (Docket #145). Nagel did not timely do so, and thus Magistrate Duffin issued his final report and recommendation on April 26, 2018. (Docket #148). Nagel filed objections to the report and recommendation. (Docket #148, #149). For the reasons stated below, the Court overrules those objections and adopts Magistrate Duffin's report and recommendation in full.

         Nagel was convicted in this district of using a computer to induce a child to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). (Docket #60). According to his plea agreement, in 2007 Nagel met a person in a Yahoo! chatroom who identified herself as a 14-year-old from Milwaukee. (Docket #41). Nagel engaged in sexually explicit chats with her and traveled from his home in Illinois to Milwaukee in July 2007 with the expectation of having a sexual encounter with her. Id. He was sentenced to 120 months' imprisonment to be followed by five years of supervised release. (Docket #60).

         The Court imposed several conditions of supervised release, including that Nagel participate in sex offender mental health treatment. Id. at 4. Additionally, the Court imposed the following conditions:

14. The defendant shall not possess any sexually explicit or nudist visual material involving minors, or persons who appear to be minors, or any test [sic] material describing sex with minors, nor shall he knowingly patronize any place where such material is available or use any electronic equipment, including a computer, where such material can be accessed, obtained or viewed.
15. The defendant shall not possess any materials depicting sexually explicit conduct nor enter any establishment or use any electronic equipment, including a computer, where materials depicting sexually explicit conduct can be obtained or viewed.

Id. at 4. The Court subsequently added as a further condition:

The defendant shall. . .submit at any time with or without a warrant, to a search of [his] person and any property, house, residence, vehicle, papers, computer, other electronic communication or data storage devices or media, and effect, by any law enforcement or probation officer having reasonable suspicion concerning a violation of a condition of supervised release or unlawful conduct by [him], and by any probation officer in the lawful discharge of the officer's supervision functions. . . .

(Docket #137 at 1).

         Based in part upon indications that Nagel was untruthful during polygraph examinations, officers from the United States Probation Office in the Northern District of Illinois, where Nagel now resides following his release from prison, searched his home on June 2, 2017.[1] According to receipts prepared by officers of the United States Probation Office, officers seized the following property (identified by the Office's item numbers):

C-1 Green spiral Mead 5-Star notebooks 1 w/ night school on front, one w/ nothing on front [illegible] containing websites, one w/ user names & phone numbers of females
C-2 Small green pocket notebook w/ names & ages of what appear to be females
C-3 Brown box containing VHS tapes, red folder w/ correspondence pics & handwritten notes, property receipt from FBI, rechargeable phone cards, Kodak camera disc, charger cord, USB cord, planner (blk) w/ handwritten notes, 1 disc in single case, 4L disc in case, box ...

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