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United States v. Bartunek

United States District Court, D. Nebraska

October 11, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
GREGORY BARTUNEK, Defendant.

          ORDER

          Robert F. Rossiter, Jr. United States District Judge

         Defendant Gregory Bartunek (“Bartunek”) is charged with knowingly possessing and distributing child pornography in violation of federal law. See 18 U.S.C. §§ 2252(a)(4)(B), 2252A(a)(2). This matter is now before the Court on Bartunek's Objections[1] (Filing Nos. 202, 203) to the magistrate judge's[2] Findings and Recommendation (Filing No. 184) recommending that the Court deny two of defendant Gregory Bartunek's (“Bartunek”) eight Motions to Suppress (Filing Nos. 47 and 69), as well as his Motion to Amend (Filing No. 48); Motion to Dismiss (Filing No. 74); Motion to Compel (Filing No. 100); Motion for Reconsideration and Motion to Compel (Filing No. 158); and Motion for a Franks[3] Hearing (Filing No. 178) in their entirety. The magistrate judge further recommends the Court deny two more of Bartunek's Motions to Suppress (Filing Nos. 80 and 82) in “all respects except for the issue of the probative value of the photographs versus” any prejudice to Bartunek. The magistrate judge likewise refers Bartunek's last four Motions to Suppress (Filing Nos. 70, 71, 72, and 85), which the magistrate judge construes as motions in limine, and his related Motion to Schedule (Filing No. 181) to this Court for disposition.

         The Court has received Bartunek's Objections and the government's response (Filing No. 206), and this matter is now fully submitted and ready for decision. See NECrimR 59.2(a).

         I. DISCUSSION

         A. Standards of Review

         Under 28 U.S.C. § 636(b)(1)(A), the Court “may designate a magistrate judge to hear and determine” most pretrial matters, subject to review by this Court. For other matters, including motions to dismiss and motions to suppress evidence, the Court may designate a magistrate judge to conduct an evidentiary hearing and submit “proposed findings of fact and recommendations for the disposition” of such motions. Id. at 636(b)(1)(B). When, as here, a party objects, the Court must “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id. The Court “may accept, reject, or modify the recommendation, receive further evidence, or resubmit the matter to the magistrate judge with instructions.” Fed. R. Crim. P. 59(b)(3).

         B. Bartunek's Objections

         Bartunek has-in effect-objected to every finding, recommendation, and decision the magistrate judge made. In support of his objections, Bartunek asks the Court to consider additional evidence he did not present at the evidentiary hearing before the magistrate judge, including pictures of a second mailbox in front of his home, pictures of an open underwear drawer, a copy of the manual from witness Paul Bartunek's phone, and an article about Internet Protocol (“IP”) addresses. See NECrimR 59.2(b)(2).

         Bartunek has not-despite specific notice from this Court-shown “good cause why” his additional photographic and background “evidence was not presented to the magistrate judge” as required by that rule. Moreover, as the government points out, Bartunek's additional evidence does not materially impact the central questions presented by his motions. Even if the Court were to accept all of the additional evidence, Bartunek still fails to present a persuasive argument that the affidavit was intentionally or recklessly false or materially misleading or that the search was unconstitutional under the totality of the circumstances in this case. See, e.g., United States v. Davis, 557 F.2d 1239, 1248 (8th Cir. 1977) (“[S]earch warrants for a street address which later turns out to include separate residences or apartments have been upheld when the officers have reason to believe it is only a single family dwelling under the control of one person.”).

         After careful review of the record and the parties' submissions, the Court finds Bartunek's objections are unavailing, with just one exception-the objection to the recommendation that his Motion to Amend (Filing No. 48) be denied. On April 19, 2017, Bartunek moved to suppress evidence seized during the execution of a search warrant at his home (Filing No. 47). Shortly thereafter, Bartunek filed a Motion to Amend (Filing No. 48) that suppression motion, stating “that a clerical error was made on the original motion, omitting the [g]rounds required by [Federal Rule of Criminal Procedure] 47.” Bartunek asked the Court to replace the first page of the motion with a replacement page that contained the required grounds “and treat the Amended motion as if the replacement page were the original in the motion.” The Court finds this Motion to Amend (Filing No. 48) a “clerical error” should be granted.

         In all other respects, the Findings and Recommendation of the magistrate judge will be accepted and affirmed. The Court will, nonetheless, address a few issues for clarity.

         1. Reliability

         As noted by the magistrate judge, Bartunek contends Omegle.com (“Omegle”), the social networking website that provided information of suspected child pornography to the CyberTipline of the National Center for Missing and Exploited Children (“NCMEC”) pursuant to 18 U.S.C. § 2258A(a)(1)(A), acted as a confidential informant when it sent a CyberTip to NCMEC. As Bartunek sees it, the search warrant affidavit was materially misleading because it did not include sufficient information to establish Omegle's reliability under Nebraska law by showing that the company had given reliable information in the past or was acting as a citizen informant, or that the investigating officers' independent investigation established that Omegle (or its information) was reliable. Bartunek similarly claims the affidavit misled the issuing judge about the reliability of the information from Cox Communications (“Cox”), the internet service provider that provided the information linking Bartunek to the Internet Protocol address associated with the suspected child pornography. Bartunek's arguments are unpersuasive.

         Bartunek has not cited, and the Court has not found, any case where a search warrant affidavit like the one in this case was found to be insufficient or materially misleading because it failed to provide the detailed information Bartunek would require. To the contrary, courts routinely uphold searches based in part on information from service providers like Omegle and Cox without an exhaustive reliability review. See, e.g., United States v. Lapsins, 570 F.3d 758, 765 (6th Cir. 2009); United States v. Terry, 522 F.3d 645, 648 (6th Cir. 2008); United States v. Edge, No. CRIM. 14-201 MJD/TNL, 2014 WL 7685530, at *3 (D. Minn. Nov. 3, 2014), report and recommendation adopted, No. CRIM. 14-201 (1) MJD, 2015 WL 317366 (D. Minn. Jan. 25, 2015); United States v. Kling, No. CR06-3007 MWB, 2006 WL 1980179, at *6 (N.D. Iowa July 12, 2006), report and recommendation adopted, No. ...


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