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United States v. Molnar

United States District Court, D. Nebraska

April 20, 2018



          Robert F. Rossiter, Jr. United States District Judge.

         This matter is before the Court on the Findings and Recommendation (Filing No. 54) of the magistrate judge[1] recommending the Court deny defendant Christopher R. Molnar's (“Molnar”) Motion to Dismiss Pursuant to [Federal Rule of Criminal Procedure] 48(b) and the Due Process Clause of the 5th Amendment (Filing No. 43). Molnar has objected (Filing No. 55) to the Findings and Recommendation. For the reasons stated below, the Findings and Recommendation is accepted, and the Motion to Dismiss is denied.

         I. BACKGROUND

         A. The Investigation

         On October 22, 2012, Canadian law enforcement officers executed a search warrant on an e-commerce location in Toronto, looking for servers containing images of child pornography. The officers seized about thirty-two servers associated with a website known to host images of child pornography. The total data on the servers contained approximately 1.5 petabytes of data including account information, user information on 60, 000 users, and 1.4 million files constituting actual or suspected images of child pornography.

         After coordinating with Canadian authorities for several years, the Homeland Security Investigations (“HSI”) office in New York (“HSI New York”) began receiving the data and information from the search and seizure in 2015. On July 1, 2015, HSI New York took its first investigative step into the data by serving a summons on Google. HSI New York received the last of the data from Canada in December of 2015. On June 1, 2016, HSI New York sent information about the conduct at issue in this case to the HSI office in Nebraska (“HSI Nebraska”).

         On July 15, 2016, HSI Nebraska sent a preservation letter to Google for On August 22, 2016, HSI Nebraska served grand-jury subpoenas on Google for that email address and on Microsoft for HSI Nebraska then executed search warrants for those email addresses on August 30, 2016. HSI Nebraska received the requested grand-jury production from both Google and Microsoft on September 3, 2016. On September 29, 2016, HSI Nebraska served a grand-jury subpoena on T-Mobile. HSI Nebraska received information pursuant to the Google search warrant on October 18, 2016, the T-Mobile grand-jury subpoena on December 13, 2016, and the Microsoft search warrant on January 6, 2017. On March 1, 2017, HSI Nebraska submitted video file hashes to the National Center for Missing and Exploited Children.

         On April 19, 2017, a grand jury returned an indictment against Molnar covering conduct from August 27 to August 31, 2012, and an arrest warrant for Molnar was issued on April 20, 2017. On June 1, 2017, Molnar was interviewed and arrested, and officers performed a consent search of his residence. On June 2, 2017, officers searched Molnar's residence and seized an HP Pavilion desktop computer. On June 5, 2017, HSI Nebraska issued summons to Cox Communications (“Cox”) and AT&T for subscriber data. HSI Nebraska received the AT&T data on July 1, 2017, and the Cox data on July 6, 2017.

         On September 11, 2017, Molnar filed a Motion to Dismiss Criminal Case (Filing No. 23) for pre-indictment delay. After learning of an impending superseding indictment, Molnar moved (Filing No. 30) to withdraw his motion on September 25, 2017, and the motion was dismissed (Filing No. 31) on September 26, 2017. On September 27, 2017, the government seized a Samsung Galaxy cell phone and Samsung tablet related to the case. A grand jury returned a superseding indictment against Molnar on December 12, 2017, covering conduct from August 27, 2012, to June 1, 2017.

         B. Motion to Dismiss

         On January 8, 2018, Molnar moved to dismiss (Filing No. 43) any portion of the indictment and superseding indictment covering conduct pertaining to the time-period of August 27 through August 31, 2012 (the “time-period”), based on alleged pre-indictment delay in violation of the due process clause. See U.S. Const. amend. V.

         Molnar argues he has been prejudiced by the delay in two ways. First, Molnar claims he is unable to obtain records from Cox and Google relating to his internet protocol (“IP”) address during the time-period because Cox and Google regularly purge their records, a fact of which the government was aware. Second, he is now unable to access time logs from the time-period from his work at Offutt Air Force Base (“Offutt”). Molnar claims the time logs would show he was at work during the times the child pornography was allegedly downloaded to his home computer.

         After a hearing, the magistrate judge determined Molnar was not prejudiced by the deletion of the Cox and Google records because any delay was not properly attributable to the government. The magistrate judge reasoned Molnar was not prejudiced by the loss of the time logs because other evidence is available to show the times he was at work, such as testimony by Molnar, his wife and other family members, and his co-workers. The magistrate judge concluded that, even if Molnar was actually prejudiced, there was no evidence the government intentionally delayed his indictment to gain a tactical advantage or to harass him. Molnar has objected (Filing No. 55) to the magistrate judge's determinations that (1) he was not actually prejudiced by the delay and (2) the government did not intentionally delay his indictment.

         II. ...

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