The opinion of the court was delivered by: Hon. Hugh B. Scott
This matter is referred to the undersigned to hear and determine pretrial matters pursuant to 28 U.S.C. § 636 (b)(1)(A) and, pursuant to 28 U.S.C. § 636(b)(1)(B), to submit proposed findings of fact and recommendations for the disposition of any motion excepted by 28 U.S.C. § 636(b)(1)(A) (text referral Order, Apr. 15, 2010).
The instant matter before the court is the defendant's omnibus motion (Docket No. 19) which seeks the following relief: discovery; production of Brady materials; disclosure of Federal Rules of Evidence 404(b), 608, and 609 materials; disclosure of witness statements; and preservation of rough notes.
The Government has filed responding papers (Docket No. 21) and oral argument was heard on July 16, 2010. The Government also moves for reciprocal discovery (id. at 18-19). The Court reserved decision (Docket No. 24), later rendering a Report that recommended that a hearing be held to determine if the good faith exception under United States v. Leon, 468 U.S. 897 (1984), should sustain the search warrant at issue here (Docket No. 25). Familiarity with that Report is presumed. The Government moved for reconsideration of that Report (Docket No. 28), which was briefed (see Docket No. 30) and argued on October 7, 2010 (Docket No. 31).
Defendant's omnibus motion was deemed submitted on October 7, 2010. Separately, the Court will issue a Report & Recommendation on the Government's motion for reconsideration.
Defendant is charged with distribution of child pornography, receipt of child pornography, and three counts of possession of child pornography (one count for each of the hard drives or other memory device allegedly containing pornography) (Docket No. 12, Indict.).
On April 11, 2008, the Federal German Police (or abbreviated in German as "BKA") computer crime unit conducted a search for child pornography files in the file sharing network KaZaA when they found an IP address which contained a file of a video of a baby being raped (Docket No. 19, Def. Ex. A, Aff. of Adam Ouzer ¶ 24). A request was sent from the BKA to the United States Bureau of Immigration and Customs Enforcement (or "ICE") Cyber Crimes Center to identify the owner of that IP address (id. ¶ 25). Based upon publicly available records, the ICE Cyber Crimes Center identified the IP address as a computer owned by Tabitha Coon, residing at 422 21st Street, Niagara Falls, New York (id.). On March 29, 2009, special agent Adam Ouzer conducted a search of public records concerning 422 21st Street and learned that defendant Jeff Coon resided there and was named as the utility customer for that address (id. ¶ 26). According to the search warrant application of March 31, 2009 (see, e.g., Docket No. 19, Def. Ex. A, Ouzer Aff.), the Government sought to search the computer and hard drives at 422 21st Street, Niagara Falls, owned by defendant on the suspicion of their containing child pornography.
This Court issued the search warrant on March 31, 2009, and the warrant was executed on April 6, 2009 (Docket No. 28, Gov't Motion at 2). After a forensic examination of the seized computer and other storage material, on September 18, 2009, a criminal complaint and arrest warrant were authorized for defendant (id.; Docket No. 1). Later the grand jury indicted defendant, charging him with distribution of child pornography on or about April 11, 2008 (Docket No. 12, Indict., Count 1), when he received the rape video first detected by the BKA. Count 2 charges that defendant received a second video on March 26, 2009, purportedly depicting the rape of another underage child (id. Count 2). Counts 3, 4 and 5, charge the defendant with possession of child pornography on two different hard drives and a computer disk on or about April 6, 2009 (id. Counts 3-5).
Defendant first seeks various items of pretrial discovery. The Government contends that it has produced materials and met its discovery obligations (Docket No. 21, Gov't Response at 10).
Although there is no general constitutional right to pretrial discovery in a federal criminal case, a defendant does have a pretrial discovery right with respect to certain matters. For example, under the Fifth Amendment's due process clause, a defendant is entitled to specific exculpatory evidence which is material either to guilt or punishment. In addition, the Government has certain disclosure ...