The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
Presently before this Court are objections to the Report and Recommendation of June 22, 2011. (Docket No. 56.)Having reviewed the Report and Recommendation de novo, after considering the Objections and the parties' submissions, see 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59(b); Local Rule 58.2(a), this Court will set aside the Report and Recommendation as to Part A and accept, over objections, the Report and Recommendation as to Part B. Accordingly, Defendant's motions to dismiss the indictment on the basis of being either defective or duplicitous are denied.
This Court assumes the parties' familiarity with the facts and record of proceedings in this case. This case originated with the filing of a one-count indictment on September 14, 2010. (Docket No. 18.) A grand jury charged Defendant with knowingly possessing an IBM 10GB hard drive bearing serial number 42V42GY8845, that contained images of child pornography, as defined in 18 U.S.C. § 2256(8) in violation of 18 U.S.C. § 2252A(a)(5)(B).
On January 14, 2011, Defendant filed an omnibus motion seeking, in part, dismissal of the indictment because of defective grand jury proceedings and duplicity. (Docket No. 36.)*fn1 On June 22, 2011 the Honorable Jeremiah J. McCarthy, United States Magistrate Judge, issued a report and recommendation recommending that the indictment be dismissed. (Docket No. 56.) The Government and Defendant each filed objections. The Government objects to the recommendation in Part A of the Report that the indictment be dismissed for defects in the indictment and grand jury proceedings. (Docket No. 65.) Defendant objects to the recommendation in part B of the Report, which finds that the indictment is not duplicitous. (Docket No. 66.)
A. Defendant's Motion to Dismiss Due to Defective Grand Jury Proceedings
The Grand Jury Clause of the Fifth Amendment provides that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." U.S. Const. amend. V. The purpose of this clause is "to limit [a defendant's] jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge." United States v. McCourty, 562 F.3d 458, 469-70 (2d Cir. 2009).
Rule 7(c) of the Federal Rules of Criminal Procedure requires that an indictment contain a "plain, concise and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c). An indictment is constitutionally sufficient if it (1) contains the essential elements of the offense charged so as to inform the defendant of the nature and cause of the accusation; (2) contains enough detail to enable the defendant to plead double jeopardy in a future prosecution based on the same set of facts; and (3) prevents prosecution for crimes based on evidence not presented to the grand jury. United States v. Walsh, 194 F.3d 37, 44 (2d Cir. 1999) (citing United States v. Silverman, 430 F.2s 106, 110, modified, 439 F.2d 1198 (2d Cir. 1970)). "We have often stated that 'an indictment need do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime.'" United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir. 1992) (quoting United States v. Tramunti, 513 F.2d 1087, 1113 (2d Cir. 1975)).
The offense charged here falls under § 2252A(a)(5)(B). That statute makes it a crime to knowingly possess or access with intent to view:
[A]ny book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography that has been mailed, or shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in or affecting interstate or foreign commerce by any means, including by computer . . . . 18 U.S.C. § 2252A(a)(5)(B).
The one-count indictment in this case follows the language of the statute and charges that:
On or about October 3, 2008, in the Western District of New York, the defendant, Lawrence F. Brose, did knowingly possess material, to wit, an IBM 10GB hard drive bearing serial number 42V42GY8845, that contained images of child pornography, as defined in Title 18, United States Code, Section 2256(8), that had been shipped and transported using any means and facility of interstate and foreign commerce, had been shipped and transported in and affecting interstate and foreign commerce by any means, including by computer, and were produced using materials that ...