The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
MEMORANDUM DECISION and ORDER
Defendant is charged in a multi-count Second Superseding Indictment with violations of Title 18, United States Code, Sections 2251(a) [Production of Child Pornography], 2252A(a)(1) [Distribution of Child Pornography], 2252A(a)(2)[Receipt of Child Pornography], 2252A(a)(5)(B) [Possession of Child Pornography], and 2257 [Failure to Maintain Records]. Before the Court is Defendant's second omnibus motion*fn1 seeking (1) the dismissal of the Second Superceding Indictment based upon an alleged violation of the defendant's attorney-client privilege and destruction of exculpatory material, (2) the dismissal of counts 67-73 as multiplicitous, (3) the dismissal of counts 1-66 of the Second Superceding Indictment as legally insufficient under the Commerce Clause, (4) the suppression of physical evidence seized as a result of a search warrant executed on December 1, 2005, (5) the return of all property seized on December 1, 2005, (6) discovery, (7) the identification of all prior bad acts of Defendant, and (8) leave to make additional motions.
In addition, Defendant brings a separate motion seeking to quash a subpoena served upon him that requires him to produce at his trial "any and all passwords, keys, and/or log-ins used to encrypt any and all files" recovered on the computer drives and disks taken from his residence pursuant to a search warrant executed on December 1, 2005.
The Court will address these arguments seriatim.
On June 13, 2003, Jane Doe # 2, then a 15-year-old female, informed members of the Niskayuna Police Department (NPD) that Defendant was producing child pornography involving Jane Doe # 2 and Jane Doe #1, then a 17-year-old female. Fallon Aff. ¶ 3. In this regard, Jane Doe # 2 asserted that she and the other minor were paid to perform sexual acts with Defendant while he was filming them in his home at 2065 Orchard Park Drive, Niskayuna, New York. Id. The NPD obtained a New York State warrant to search Defendant's home and executed it on June 13, 2003. Id. Numerous items of evidence were seized, including computers, computer hard drives, and computer disks. Id. The computer disks allegedly contained hours of videos and still images of Defendant and Jane Does #1 and/or # 2 engaged in sexually explicit conduct. Id. Shortly after this discovery, the FBI became involved in the investigation. The investigation revealed that Defendant had labeled the disks in detailed fashion by date, volume, length, camera used, individuals appearing, and type of sexual activity. Id. ¶ 4. The FBI determined that on some disks or files, the individuals appearing in the videos and photographs were identified by code names. For instance, according to the Government the two Jane Does were, in some instances, both referred to as "SITGAL" ("Sitgal # 1" and "Sitgal #2") because both had been employed as babysitters for Defendant's children. Defendant referred to himself as "Ov" based upon his Hebrew name. Id.¶ ¶ 4, 10(A).
The FBI also learned that Defendant sent, via the Internet, numerous images and movie files of Jane Does # 1 & # 2 engaged in sexually explicit conduct to David Gilinsky, Defendant's long-time friend who lived in Cleveland, Ohio. Id. ¶ 5. Gilinsky was interviewed and voluntarily turned over his computer to the FBI for analysis. Id. Sexually explicit images of Jane Doe # 1 were recovered from his computer. Id. Gilinsky also stated to the FBI that Pearson sent him numerous computer files from NY to Ohio via the Internet, and that the files contained sexually explicit images of Jane Does # 1 & # 2. Id. Gilinsky asserted that Defendant told him that the girls were 17 years old. Id. Gilinsky later testified before a federal grand jury that returned a Superceding Indictment and a Second Superceding Indictment (discussed below). Id.
On February 16, 2004, Elijah Pearson, Defendant's father and an attorney admitted to practice law in the State of New York, wrote a letter to Glenn Suddaby, United States Attorney for the Northern District of New York. The letter appears to be a personal appeal to Suddaby regarding the prosecution of Defendant and includes the following passage: "I do not ask you for any favor. I do not participate or advise [Defendant]. He has a very good lawyer." Govt. Attach. G. At no time has Elijah Pearson entered an appearance in this case and, as early as the initial appearance on July 7, 2004, Defendant has indicated that he was represented by his current attorney-of- record, Terence L. Kindlon, Esq. See dkt. # 3.
On June 30, 2004, Defendant was indicted by a federal grand jury on one count of producing pornography based upon his alleged activities with Jane Doe #1. He was arrested on July 6, 2004, and released on bail. Upon his release, Defendant began residing at 4635 Slippery Rock Circle, Manlius, New York with his father, Elijah Pearson. Fallon Aff. ¶ ¶ 6-7. On February 11, 2005, Defendant was charged in a 71 Count Superseding Indictment with the production, transportation, possession, and receipt of child pornography, and with failing to keep individually identifiable records in violation of 18 U.S.C. §§ 2251(a), 2251(d), 2256(8), 2252A(a)(1), 2252A(a)(2), 2252(a)(5)(B), and 2257.
On November 29, 2005, the FBI received the results of a computer forensic examination conducted on the computer surrendered by Gilinsky. Fallon ¶ 8. The Government contends that this revealed that on multiple occasions between February 27, 2003 and May 27, 2003, Defendant sent Gilinsky numerous sexually explicit images of Jane Doe # 1, as well as numerous e-mail messages. Id. During these exchanges, Defendant purportedly used one of two America Online email addresses - "Peall2065" and "Elijah1926." Id. America Online records showed that the "Peall2065" address was registered to Defendant, and the "Elijah1926" address was registered to Defendant's father. Id. ¶ 9.
Review of the email messages sent between Defendant and Gilinsky led the Government to believe that Gilinsky provided Defendant with sexually explicit images of Jane Does # 1 & # 2 after Defendant's home was searched and after he was arrested in June 2003. Id. ¶ 10. In addition, in an e-mail dated March 11, 2004 from "Peall2065" to Gilinsky's e-mail account, Peall2065 wrote:
To finish this morning's conversation: Ov will havem [sic] notebook at Binghamton meeting. Audio clips for analysis & manipulation could be crucial to Ov's defense. Remember SitGal # 2 is not legal. Ov has a "safe" for securing data & will change his password then so that no computer or human can retrieve saved data. The thing encrypts immediately (live/realtime) and will have a password like: eolKleGH93*vfOY3Gw4kn&jd$h. Also a shredder delete program is included to properly delete files &/or "free space". . . .
The Government believed that this last e-mail indicated that Defendant was going to try to manufacture evidence that might exonerate him on the various charges, perhaps creating an audio or video file in which it appeared that the Jane Does represented that they were 18 years of age or older. Id. ¶ 18(b).
On November 20, 2005, the Government applied for a search warrant of Defendant's residence that he shared with his father, and of the computers in the residence, on the belief that Defendant had reacquired sexually explicit images of Jane Does # 1 & # 2. Id. ¶ 11. The warrant application was granted, authorizing the seizure of computers and computer related media that might divulge evidence of the production, possession, receipt and distribution of visual depictions of minors engaged in sexually explicit conduct, including evidence of communications between Defendant, a.k.a. "Ov", "Peall2065@aol.com", or "Elijah1926@aol.com , and Gilinsky (a.k.a. "dOv") at his America On Line account. Id.
The warrant was executed on December 1, 2005. Id. ¶ 12. At the time the warrant was executed, Defendant and his father were present. Id. ¶¶ 40-41. The Government contends that at no time did Elijah Pearson or Defendant represent that Elijah Pearson was representing Defendant, nor did government agents or attorneys have knowledge to that effect. Id. ¶¶ 36, 40-41; see Spina Aff. ¶ 29. Defendant has not presented any competent evidence to the contrary. The Government also contends that "at no time [on December 1, 2005] did Elijah Pearson or the defendant indicate that there were attorney-client materials or other privileged communications on either of the computers." Fallon Aff. ¶ 41. The Government concedes, however, that Defendant and his father represented to Government agents that Defendant used "his computer to research his case," and that "there would be research for other unrelated legal matters [of the father] on the computers." Id.
Pursuant to the search warrant, the Government seized, inter alia, (1) a 400 GB Sony Vaio Computer, Model PCV 1152, s/n 3000001; (2) a Sony Vaio Computer, model PCV-RX5500, s/n A8023273A 0204338; (3) a Western Digital external hard drive, s/n WCAEK1534T54; (4) a Sony thumb drive; (5) a Lexor thumb drive; and (6) over one hundred computer disks. Id. ¶ 12.
Other than the computer disks, this evidence was logged into evidence for analysis by a Computer Analysis Response Team (CART) agent, specifically trained in forensically analyzing computer media. Prior to analyzing any of the computer and computer media, mirror images were made.
On Friday, December 2, 2005, the CART agent searched the computer media using the victims and Gilinsky's names. He recovered and printed out a multi-page typed document that he believed contained admissions by Defendant, and placed the document on Case Agent Fallon's desk. Id. ¶ 14. Fallon reviewed the document on the following Monday, December 5, 2005. Id. The CART agent was not in the office during the week of December 5, 2005 so Fallon could not ask where or in what file the document was found. Id. However, based upon review of the document, Fallon concluded that the document consisted of notes by Defendant about his case and contained what appeared to be an admission that he still possessed a computer disk containing sexually explicit images of the minors. Id.
Fallon also conducted his own search of the computer disks during the week of December 5, 2005 and discovered the following which he believed were relevant to the instant case:
(a) Four recorded telephone conversations between Defendant and Gilinsky. Each file had a ".wmv" extension, which led Fallon to believe that they were files similar to the sexually explicit images found on Gilinsky's computer (that were purportedly sent by Defendant), and included the name "Gilinsky" in the file name. Id. ¶ 15(a);
(b) Sixteen video files, two of which depicted unknown women stating that they were "18" and "18 and 1/2 ", respectively. Id. ¶ 15(b). Each file contained the ".wmv" extension, and were recovered from a disk labeled "BU Drive Easy Pass (X:) Case & Vid Editing Parts." Id. These were contained in a folder named "PRIVATE- For my Attorney-imp case files" and in subfolders named "ImpCaseData.." Id. Fallon contends that he did not review the contents of any of the files in this folder except for the files that were identifiable as video folders by their size and ".wvm" extension. Id. Upon reviewing the two videos of the women stating their ages, Fallon formed the opinion that they "were evidence of the defendant attempting to obstruct justice by manipulating the audio portions of the sexually explicit video tapes he has reacquired [from Gilinsky]." Id.
(c) A one page document containing two emails from Elijah Pearson to Gilinsky. Id. ¶ 15(c). In one email, a copy of which had already been recovered from Gilinsky's computer, Elijah Pearson instructs Glinsky to erase evidence and discusses a possible interview with FBI agents. Id. The second e-mail also discusses a possible interview with FBI agents. The document was recovered from a disk labeled "Case B.U. 11-20-04", found in a file named "PRIVATE-For my Attorney-imp case files" and in a subfolder entitled "Dov Warning before FBI." Id. The file was named "emailfromEAPbeforedovFBIMeeting.jpg." Id. Special Agent Fallon "believed it was appropriate to view this file since it appeared to be a communication with Gilinsky, which was covered by the terms of the search warrant." Id.
The FBI also conducted a "limited forensic examination" of the 400 GB Sony Vaio Computer, Model PCV 1152, s/n 3000001. Id. ¶ 16. The "user" of the computer is identified in the computer's registry as "CaptainOv," leading the FBI to conclude that Defendant was the user since he had referred to himself as "the Captain" and "Ov." Three image files were recovered from the computer depicting what appeared to the FBI to be images of the minor victims albeit not sexually explicit. Id. The FBI also found a number of encrypted files within a file labeled "steganosencryptionsafes," but did not review any text files from this computer. Id. A "very limited forensic examination" of the Sony Vaio Computer, model PCV-RX5500, s/n A8023273A 0204338 divulged (1) a file named "C:/Documents and Settings/HutUsers/Desktop/Excellent-FakeIDs ([Jane Doe #2]).htm"; and (2) an email dated March 18, 2004, from "steganos.asknet.de" to "Peall20056@aol.com" in which "a password and serial number necessary for downloading software capable of encrypting files were provided." Id. ¶ 17. The content of text documents from the computer were not reviewed, and the items recovered were not in files indicating that they may be privileged information. Id.
A forensic examination of the Western Digital hard drive revealed a "2.3 gigabyte encrypted folder/container." Id. ¶ 18. Special Agent Fallon asserts "[a] file this size is large enough to contain a number of movie files and still images." Id. However, the FBI is unable, at this time, to access the file to determine whether it contains any sexually explicit images of the minor. Id. The Western Digital hard drive did contain "files whose names appear to indicate that they contain privileged material" so these files were not reviewed. Id.
The Court's file contains a letter written by Elijah A. Pearson to United States Magistrate Judge Randolph F. Treece. The letter is dated December 2, 2005 and was purportedly carbon copied to "Special Agent David Fallon; Judge Norman Mordue; Terrence Kindlon, Esq.; Thomas Spina, USA; and Rebecca Doyle, Pretrial Services." The letter, which is stamped "received" by Judge Mordue's Chambers on December 6, 2005, states in relevant part:
I was the subject of a search warrant on December 1, 2005. Both my computers were taken together with other materials.
I am an attorney working on my son's case upon the computers which contained work product in his case and other legal matters.
I strongly believe the search was illegal and improper. It was an improper use of search and seizure of my legal material. Original exculpatory evidence was seized making a fair trial impossible at this point for defendant Abraham Pearson. All of the defense case strategy and information, totaling over 10 gigabytes of computer space, was taken....
The FBI believed that encrypted folders and files found on the various computers and computer media might have contained sexually explicit images of the minor victims. Id. ¶ 19.
Therefore, on December 7, 2004 the FBI sent the following items to the FBI's Cryptological and Electronic Analysis Unit: (1) a mirror image of the 400 GB Sony Vaio; (2) a mirror image of the Western Digital Hard Drive; (3) the Sony thumb drive; and (4) a computer disk labeled "Archive & B.U. 8/04" and which purportedly indicated that "it contains a long Steganos password." Id. The Cryptological and Electronic Analysis Unit has been instructed to try to access any encrypted files to determine whether they contain sexually explicit images of the minor victims, but not to view any text documents or potentially privileged material. Id.
On December 12, 2005, Special Agent Fallon met with Assistant United States Attorney Thomas Spina. Id. ¶ 20; Spina Aff. ¶ 11. Fallon advised Spina of the various items that had been recovered from the computer thumb drive and the computer disks. Fallon Aff. ¶ 21; Spina Aff. ¶ 11. The first item presented to Spina was the multi-page typed document that Fallon believed contained an admission by Defendant that he still possessed computer disks containing sexually explicit images of one of the minor victims. Fallon Aff. ¶ 22; Spina Aff. ¶ 12; Govt. Ex. H. Spina noticed that the document "contained notes apparently written by the defendant about materials that could be used to impeach various witnesses and some legal research." Spina Aff. ¶ 12.*fn2 Upon reviewing the document, Spina inquired of Fallon regarding the source of the document. Fallon Aff. ¶ 22; Spina Aff. ¶ 12. Fallon purportedly responded that it was found on a thumb drive after a search for the name of the minor victims and the name "Gilinsky," but that he did not know the exact source and would check with the CART agent and advise by the end of the day. Fallon Aff. ¶ 22; Spina Aff. ¶ 12. Spina also was advised of or reviewed other potentially relevant information as follows:
(a) recorded telephone conversations between Defendant and Gilinsky, Spina Aff. ¶ 13; (b) the video files of the two unknown women stating that they are 18 and 18 1/2 , id. ¶ 14; (c) the two emails from Elijah Pearson to Gilinsky, id. ¶ 15; and (d) the file named "C:/Documents and Settings/ HutUsers/ Desktop/Excellent-FakeIDs ([Jane Doe #2]).htm"; and the email dated March 18, 2004, from "steganos.asknet.de" to "Peall20056@aol.com" in which a password and serial number necessary for downloading software capable of encrypting files were provided. Id. ¶ 16.
Later in the day on December 12, 2005, Special Agent Fallon advised AUSA Spina that the document containing what appears to be Defendant's notes and the document containing e-mails from Elijah Person were "in folders whose names indicated that they may be privileged documents." Id. ¶ 18. He indicated further, however, that the recorded telephone calls were from a separate computer disk which "was not labeled in the manner that would indicate that they were privileged." Id. AUSA Spina sealed the document containing Defendant's notes, instructed Fallon not to access any text documents on the computer media, and requested the FBI to create a "taint" team before conducting any further searches. Id. ¶ 20. Later that day, Spina advised Fallon "that the taint team should not view any materials seized on December 1, 2005, and that there should be no additional searches of the media." Id. FBI's Cryptological and Electronic Analysis Unit is still attempting to access encrypted files in order to determine whether they contain sexually explicit images of the victims, but have been instructed not to view "any text documents or potentially privileged material." Id. ¶ 21.
The Government contends that:
Other than any sexually explicit images of the minors possibly contained in encrypted files and the videos contained in the "Case18Clips" folder, the government does not intend to introduce any evidence recovered during the December 1, 2005, search at trial.
On December 14, 2005, the Government re-interviewed David Gilinsky prior to his grand jury testimony that day. Id. ¶ 23; Gilinsky Aff. ¶ 10. Gilinsky's attorney was present during the meeting. Gilinsky Aff. ¶ 10. Spina mentioned to Gilinsky that Defendant had been recording his telephone calls, and discussed the emails from Elijah Pearson. Spina Aff. ¶ 24. Gilinsky was already aware that the FBI had recovered emails from Defendant indicating that Defendant had reacquired images of the two victims in the spring of 2004, and that indicated that Defendant might attempt to manipulate the videos. Gilinsky Aff. ¶ 11. AUSA Spina does not recall disclosing the existence or contents of any of Defendant's notes or the "Case18Clips" during this meeting. Spina Aff. ¶ 24. Gilinsky confirmed that he had provided sexually explicit images of the minor victim to Defendant after the originals had been seized by law enforcement. Spina Aff. ¶ 23; Gilinsky Aff. ¶ 12. Gilinsky also advised that Defendant had expressed an intention, inter alia, to manipulate the audio portions of these video tapes to make it appear that the minor victims stated that they were 18 years of age or ...