United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
motion is before the Court on several discovery motions filed
by the Defendant, Guy Rosenchein (“Rosenchein”).
Government alleges that the investigation of Rosenschein
began when the Bernalillo County Sheriff's Office
(“BCSO”) received two CyberTipline Reports from
the National Center for Missing and Exploited Children
(“NCMEC”). The two CyberTipline Reports were
generated by Chatstep, an electronic service provider that
hosts internet-based conversation (also known as
“chats”) between users. On July 31, 2016, NCMEC
received CyberTipline Report 13456293 (“Jul. 31
Report”), in which Chatstep notified NCMEC that an
image of child pornography was uploaded through its service.
On August 8, 2016, NCMEC received CyberTipline Report
13596645 (“Aug. 8 Report”), wherein Chatstep
notified NCMEC that a second image of child pornography was
uploaded through its service. In both reports, Chatstep
indicated that the user responsible for uploading the images
was identified as “Carlo.”
Government further alleges that the CyberTipline Reports
submitted to NCMEC indicate that the contraband images were
submitted on behalf of Chatstep and PhotoDNA. PhotoDNA is a
cloud-based service developed by Microsoft and available for
organizations to use in order to help prevent the sharing of
harmful, child exploitation images. PhotoDNA works by
obtaining the hash value of a file and converting the file
into a numerical value that is matched against databases of
hash values of known child pornography. Through its use of
PhotoDNA, Chatstep identified the two images distributed by
“Carlo” as child pornography before the images
were submitted to NCMEC. Notably, Chatstep did not submit to
NCMEC the content of the chat session during which these
images were distributed-it only submitted the contraband
images. Without viewing the images, NCMEC forwarded the
material to the New Mexico Attorney General's Office
Internet Crimes Against Children (“ICAC”) Task
Force, and BCSO initiated a criminal investigation. Based on
his investigation and review of the images previously
identified as child pornography by Chatstep, BCSO obtained a
state search warrant for Defendant's residence. During
the execution of the state search warrant on November 8,
2016, law enforcement located a thumb drive attached to a
keychain found in the ignition of Defendant's vehicle,
which was found to contain images and videos of child
December 7, 2016, a federal grand jury returned a three-count
indictment against Defendant, charging violations of 18
U.S.C. § 2252A(a)(2), Distribution of Visual Depictions
of Minors Engaged in Sexually Explicit Conduct; and 18 U.S.C.
§ 2252A(a)(5)(B), Possession of Visual Depictions of
Minors Engaged in Sexually Explicit Conduct.
Motion for the Production of Brady Materials [Doc.
March 9, 2018, Rosenchein filed this motion, and the
Government filed its response [Doc. 64] on April 6, 2018.
Rosenchein did not file a reply.
capital case of Brady v. Maryland, the Supreme Court
held “that the suppression by the prosecution of
evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of
the prosecution.” 373 U.S. 83, 87 (1963).
Brady requires the prosecution to produce to the
defendant, in advance of trial, material exculpatory evidence
that is in its possession. 373 U.S. at 87; United States
v. Agurs, 427 U.S. 97, 110-111 (1976); United States
v. Huddleston, 194 F.3d 214, 222 (1st Cir. 1999). As the
law has developed, even where a defendant fails to request
Brady information, the prosecution is obligated to
volunteer exculpatory information. See Kyles v.
Whitley, 514 U.S. 419, 433 (1995). Brady
disclosure obligations are quite broad, encompassing a
government duty to “learn of any favorable evidence
known to others acting on the government's behalf in the
case, including the police.” United States v.
Combs, 267 F.3d 1167, 1174-75 (10th Cir. 2001) (quoting
Kyles v. Whitley, 514 U.S. at 433) (emphasis in
establish a Brady violation, an accused must show
that (1) the prosecution suppressed evidence; (2) the
evidence was favorable to the defendant; and (3) the evidence
was material to the defense. United States v.
Velarde, 485 F.3d 553, 558 (10th Cir. 2007);
Trammell v. McKune, 485 F.3d 546, 551 (10th Cir.
2007). There is no Brady violation where the
defendant knew or should have known of the material,
exculpatory information or where the information was
available to him from another source. United States v.
Graham, 484 F.3d 413, 417 (6th Cir. 2007). Nor does the
Constitution demand an open file policy. See id. at
437. See also Smith v. Secretary Dep't of
Corrections, 50 F.3d 801, 823 (10th Cir. 1995) (noting
that Brady does not require prosecution to divulge
every shred of evidence that could conceivably benefit
defendant). “[T]he government typically is the sole
judge of what evidence in its possession is subject to
disclosure” and it acts at its own peril by failing to
comply adequately with an order requiring disclosure of
Brady material. United States v. Presser,
844 F.2d 1275, 1281 (6th Cir. 1988).
disclosure requirements are limited to information in the
government's possession or knowledge, whether actual or
constructive. United States v. Beers, 189 F.3d 1297,
1304 (10th Cir. 1999); Smith, 50 F.3d at 825 n.36
(noting that where district attorney's office had actual
knowledge of a separate investigation by authorities in
separate county, it was reasonable to impute knowledge
possessed by separate county to prosecution). A prosecutor
may not avert Brady obligations by keeping himself
ignorant or compartmentalizing information, see Carey v.
Duckworth, 738 F.2d 875, 878 (7th Cir. 1984), though the
government has no affirmative duty under Brady to
seek out information that is not in its or its agents'
possession. See Graham, 484 F.3d at 415-18 (stating
there is no affirmative duty to discover information in
possession of independent, cooperating witness and not in
government's possession); United States v.
Moore, 25 F.3d 563, 569 (7th Cir. 1994) (concluding
Brady was not violated where both parties learned
after trial that government witness had previous conviction
for obstruction of justice and government did not possess
knowledge of this information until after trial); United
States v. Baker, 1 F.3d 596, 598 (7th Cir. 1995)
(“Certainly, Brady does not require the
government to conduct discovery on behalf of the
defendant.”); United States v. Flores, 540
F.2d 432, 437 (9th Cir. 1976) (noting that government has no
duty to fish through public records equally accessible to
defense to collate information).
is, nonetheless, read broadly to encourage prosecutors to
carry out their “duty to learn of any favorable
evidence known to the others acting on the government's
behalf in the case, including the police.” United
States v. Combs, 267 F.3d 1167, 1174-75 (10th Cir. 2001)
(quoting Kyles v. Whitley, 514 U.S. 419, 437-38
(1995)). “Information possessed by other branches of
the federal government, including investigating officers, is
typically imputed to the prosecutors of the case.”
United States v. Beers, 189 F.3d 1297, 1304 (10th
Cir. 1999). Yet the Tenth Circuit in Beers held that
the state's knowledge and possession of potential
impeachment evidence would not be imputed to a federal
prosecutor for purposes of Brady, at least absent a
“joint investigation” by federal and state
officials. See id. (emphasis added). See also
United States v. Romo, 914 F.2d 889, 899 (7th Cir. 1990)
(finding no error in denial of defendant's motion to
compel prosecutors to make various inquires of local police
in absence of showing by defendant that specific material,
exculpatory information existed of which government knew).