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United States v. Rosenchein

United States District Court, D. New Mexico

July 19, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
GUY ROSENSCHEIN, Defendant.

          MEMORANDUM OPINION AND ORDER

         This motion is before the Court on several discovery motions filed by the Defendant, Guy Rosenchein (“Rosenchein”).

         BACKGROUND

         The 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.”

         The 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 pornography.

         On 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.

         DISCUSSION

         I. Motion for the Production of Brady Materials [Doc. 56]

         A. Legal Standard

         On 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.

         In the 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 original).

         To 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).

         Brady's 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).

         Brady 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).

         B. ...


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