United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Rossiter, Jr. United States District Judge.
matter is before the Court on the Findings and Recommendation
(Filing No. 54) of the magistrate judge 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.
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.
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”).
15, 2016, HSI Nebraska sent a preservation letter to Google
for email@example.com. On August 22, 2016, HSI
Nebraska served grand-jury subpoenas on Google for that email
address and on Microsoft for firstname.lastname@example.org. 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
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.
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.
Motion to Dismiss
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.
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.
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.