Daily Independent (Ashland, KY)

Local News

July 26, 2012

Child-porn ruling reaffirmed

ASHLAND — A search warrant used by police to obtain evidence in a case in which a Carter County man was sentenced to 20 years in prison for videotaping his sexual encounters with minors was valid, a federal appeals court has ruled.

In the ruling, handed down last month, the U.S. Sixth Circuit Court of Appeals in Cincinnati also affirmed U.S. District Judge David L. Bunning’s denial of a motion by David M. Gilliam’s attorney to suppress evidence seized in the 2009 search of Gilliam’s home on Biggs Branch Road in Olive Hill.

That evidence included a computer and peripherals upon which images of child pornography were discovered.

Gilliam, 65, pleaded guilty in January 2011 to two counts of production of child pornography. However, under the terms of his plea agreement, he retained the right to appeal Bunning’s ruling on the motion to suppress, and to withdraw his guilty plea if he prevailed on appeal. Had Gilliam won the appeal, the charges likely would have had to have been dismissed due to lack of evidence.

In his motion to suppress, Gilliam’s attorney, Michael R. Campbell of Morehead, maintained the search warrant for Gilliam’s home, issued by Carter Circuit Judge Rebecca Phillips, was unconstitutional on two grounds. He claimed there was insufficient probable cause because the supporting affidavit for the warrant contained no indication of the date of Gilliam’s alleged criminal activity, and that there could be no “good-faith reliance” in the warrant itself because the affidavit was so lacking in indication of probable cause.

The appeals court agreed with Bunning that the affidavit for the warrant, filed by Kentucky State Police Sgt. John Paul Turner, established probable cause because because it incorporated the testimony of one of the victims, who told the investigating trooper, Josh Brashears, that she’d witnessed illegal activity taking place on the premises.

The victim told Brashears Gilliam had photographed and videotaped himself having sex with four minors and that she had seen the images on a computer in his bedroom.

The affidavit “set forth a sufficient basis for concluding (the victim’s) allegations against Gilliam were reliable,” the appeals court’s ruling states.

Also, given the nature of the allegations against Gilliam and Brashear’s statement that he “was working on” an investigation involving Gilliam, the affidavit was not based on “stale information,” the ruling states,

Gilliam’s crime occurred in 2007 and 2008. The two girls he pleaded guilty to victimizing, who were between the ages of 13 and 15 at the time, are not related to Gilliam. According to court records, the girls were living with Gilliam and his wife because their mother and stepfather were unable to care for them because of drug and alcohol abuse. The girls’ stepfather is related to Gilliam’s wife.

Each count to which Gilliam pleaded carried a mandatory minimum sentence of 15 years. Under the terms of Gilliam’s plea agreement, prosecutors agreed to recommend the sentences run concurrently, or at the same time.

Gilliam will have to serve at least 85 percent of his sentence. He is being housed in the U.S. Penitentiary in Marion, Ill.

In January, Gilliam received an additional 25-year state prison sentence after pleading guilty in Carter Circuit Court to one count of first-degree rape, two counts of second-degree rape and one county of third-degree rape. The state and federal charges stemmed from the same KSP investigation.

 Under the terms of Gilliam’s plea agreement, his state sentence will run concurrently with his federal term.

KENNETH HART can be reached at khart@dailyindependent.com or (606) 326-2654.

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