United States District Court, D. Nebraska
FINDINGS AND RECOMMENDATION
Susan
M. Bazis United States Magistrate Judge.
This
matter is before the Court on Defendant's Motion to
Dismiss.[1] (Filing No. 43.) An evidentiary
hearing was held in this matter on February 1, 2018. A
transcript of the hearing was filed on February 9,
2018.[2] (Filing No. 53.)
Having
considered all the evidence presented and arguments made, the
undersigned concludes that the motion should be denied.
FACTS
On
October 22, 2012, Canadian law enforcement executed a search
warrant on an E-Commerce location in Toronto which they
believed held servers that contained images of child
exploitation. (TR. 9.) Canadian officials seized
approximately 32 servers belonging to a website known to host
images of child exploitation. (TR. 9.) The servers contained
approximately 1.5 million gigabytes of data, which included
account information, user information and the suspected
images of child exploitation material. (TR. 10.) This
translated to about 1.4 million files and 60, 000 users. (TR.
10.) The files determined to be child exploitation material
appeared to have been shared across approximately 2.5 million
different websites. (TR. 10.)
In
2015, the New York office of the United States Immigration
and Customs Enforcement's Homeland Security
Investigations (“HSI New York”) began receiving
pieces of information from the Canadian authorities regarding
the material found on the servers they had
seized.[3] (TR. 12.) On July 1, 2015, HSI New York
sent a summons to Google requesting records regarding the
identity of customers associated with the website. This was
the first investigative step taken by law enforcement within
the United States regarding the data found on the Canadian
servers. (TR. 13.) At the time the summons was served, there
had been no communication with law enforcement in Nebraska
and, as of that date, Defendant was not on law
enforcement's radar relative to the investigation. (TR.
13.)
In June
of 2016, HSI New York provided a lead packet, which is a
report of investigation, to Homeland Security Investigations
in Omaha, Nebraska (“HSI Nebraska”). (TR. 26-27.)
The lead packet was on several Blu-ray DVDs. (TR. 15.) Once
HSI Nebraska received the lead packet, and could access the
DVDs, it conducted an investigation to determine the identity
of the individual who accessed the website and images of
child exploitation.[4] (TR. 15; Ex. 1.) A number of subpoenas
were served and search warrants were executed to determine
this information. (Ex. 1.) One of the summons was to Google,
which only yielded documents dated after March, 2016. (TR.
31; Ex. 102.) On June 5, 2017, HSI Nebraska served a summons
upon Cox Communications, requesting subscriber information
and Internet Protocol addresses (“IP addresses”)
relative to Defendant. (TR. 19-20; Ex. 1.) Cox was only able
to provide IP address information dating back to
2015.[5] (TR. 20.)
Defendant
was indicted on April 19, 2017, and charged with three counts
of receiving and possession of child pornography. (Filing
No. 1.) The alleged criminal conduct that formed the
basis of the original indictment took place between August
27, 2012 and August 31, 2012.
DISCUSSION
Defendant
claims that the indictment should be dismissed based on
pre-indictment delay. A defendant claiming a due process
violation for pre-indictment delay must establish: (1) the
delay resulted in actual and substantial prejudice to the
presentation of his defense; and (2) the government
intentionally delayed the indictment either to gain a
tactical advantage or to harass him. United States v.
Jackson, 446 F.3d 847 (8th Cir. 2006);
United States v. Grap, 368 F.3d 824, 829
(8th Cir. 2004); United States v.
Sprouts, 282 F.3d 1037, 1041 (8th Cir. 2002).
A court will only inquire into the reasons for delay where
actual prejudice has been established. United States v.
Gladney, 474 F.3d 1027, 1030-31 (8th Cir.
2007). “To establish actual prejudice, a defendant must
identify witnesses or documents lost during the delay
period.” Id. at 1031. “[A]ctual
prejudice cannot be established by defendant's
speculative or conclusory claims of possible prejudice as a
result of the passage of time.” Id. The
defendant bears the burden of showing that the lost testimony
or information is not available through other means.
Id.
Defendant
contends that he was substantially prejudiced because, due to
the government's delay, he was unable to obtain records
from Cox Communications. Defendant maintains that these
records could have shown what Defendant's particular IP
address was for his home in 2012. This IP address could have
been compared to the IP address that was used to access the
website to see if they were the same.[6] It is true that the records
from Cox Communications regarding Defendant's IP address
being utilized in his home in 2012 no longer exist because
Cox Communications, seemingly consistent with its normal
company policy, purged its records. Still, Defendant must
show that the documents were lost due to a delay properly
attributable to the government. He cannot make this showing.
A
tremendous amount of information was recovered from the
servers. Consequently, it took a large amount of time for
investigators to review the materials. Also, the
investigation involved foreign investigative bodies, as well
as several agencies within the United States. Authorities in
the United States did not even begin receiving information
from Canada until 2015. Additionally, it appears from the
evidence that Cox Communications only maintains records of IP
addresses for approximately two years, and Google only
retains this information for six months. (Ex. 101, 43-44.)
Therefore, even if subpoenas were issued to Cox
Communications and Google at the time that HSI New York first
received the information from Canada in 2015, Cox
Communications and Google would not have had Defendant's
information from 2012. It is apparent that the length of the
investigation was not caused by the government. Rather, it
was attributable to the volume of information collected
through the search of the servers and the number and type of
investigative bodies involved.
Defendant
also ostensibly argues that he was prejudiced because his
employment records, which purportedly could have shown that
he was at work and unable to download and/or possess the
images of child pornography at the times alleged, are now
unavailable due to the delay. It is true that Defendant's
computer login records from his employer from this time
period are no longer available, as the employer's records
only date back to December 16, 2013. (TR. 47-49; Ex. 104).
However, although the logs would have shown the dates and
times Defendant was at work, there was no testimony from
Defendant that other evidence, such as attendance records or
logs, is not available to show the dates he was at work.
Moreover, Defendant, his wife, family members, or co-workers
could testify as to dates Defendant was at work. In other
words, there appears to be other ways for Defendant to
demonstrate whether he was at work at a certain time. Simply
put, Defendant has not met his burden of showing that the
lost testimony or information is not available through other
means.
Even if
the Court could find that Defendant has been prejudiced by
the delay, he would still have to show that the government
intentionally delayed his indictment either to gain a
tactical advantage or to harass him. Defendant cannot make
such a showing. The evidence shows that Canadian authorities
recovered an enormous amount of information through the
search of the servers. Due to the volume of information,
Canadian investigators did not begin forwarding materials to
HSI New York until July, 2015, and the entirety of the
information was not received by U.S. investigators until
December, 2015. On July 5, 2015, HSI New York served a
summons upon Google to obtain records regarding the identity
of customers associated with the website. HSI Nebraska did
not become involved until June, 2016, when it received a lead
packet from HSI New York. Thereafter, HSI Nebraska began
conducting its own investigation. Less than a year after
receiving the lead packet from HIS New York, Defendant was
indicted. The time between the beginning of the investigation
and Defendant's indictment is understandable under the
circumstances. The investigation into the website required
the review of a tremendous amount of ...