U.S. v. Christie
| Decision Date | 13 August 2008 |
| Docket Number | Criminal No. 07-332 (HAA). |
| Parties | UNITED STATES of America v. Russell CHRISTIE, Defendant. |
| Court | U.S. District Court — District of New Jersey |
Christopher J. Christie, Esq., United States Attorney, Lee D. Vartan, Esq., Assistant United States Attorney, United States Attorney's Office, Newark, NY, for United States of America.
Richard Coughlin, Esq., Federal Public Defender, Lorraine Gauli-Rufo, Esq., Assistant Federal Public Defender, John Yauch, Esq., Assistant Federal Public Defender, Office of the Federal Public Defender, Newark, NJ, for Defendant.
This matter comes before the Court on the pretrial motions (Doc. Nos. 39 and 47) filed by Defendant Russell Christie, praying for various forms of relief. In the first motion (Doc. No. 39), filed by his counsel on his behalf, he makes four primary arguments. First, Christie seeks to dismiss several Counts of the Superseding Indictment. Second, Christie seeks to suppress both evidence seized during a search of his home, and statements allegedly made by him prior to his arrest. Third, Christie requests a hearing to determine whether there are additional bases for suppressing evidence or dismissing Counts. Fourth, and finally, Christie makes various discovery requests. In the second motion (Doc. No. 47), Mr. Christie, independent of his counsel, advances several arguments regarding the warrant, the warrant affidavit, and the Superseding Indictment.
The Court has carefully reviewed the excellent briefing submitted on behalf of Christie and the Government. In addition, the Court held oral argument on this matter on Thursday, July 24, 2008, and heard additional argumentation by counsel. Furthermore, Mr. Christie made his own oral motions at the July 24 hearing, submitted briefing that day and subsequently, and the Court has considered those additional arguments as well.
For the following reasons, Christie's motion to dismiss Counts of the Superseding Indictment will be denied. In addition, Christie's motion to suppress evidence will be denied, but the Court will reserve decision on the motion to suppress his statements. The Court declines to grant Christie's request for a Franks hearing, and each discovery request is addressed below in appropriate detail. Finally, Mr. Christie's independent oral motions will also be denied.
The following background information includes many facts that have been alleged, but not proven. Accordingly, the Court provides this background summary with the strenuous caveat that Christie is innocent until proven guilty beyond a reasonable doubt, and that most of the facts below are alleged, and not necessarily conceded or proven.
In November 2005, Special Agent ("SA") Douglas Macfarlane of the Federal Bureau of Investigation located in California learned that an individual named Jerrod Lochmiller wished to provide information to law enforcement through his attorney. At that time, Lochmiller was a fugitive in a federal fraud case in Los Angeles, and he also was the administrator of an Internet website designed to facilitate the exchange of videos, images, and stories, some or all of which concerned child pornography. The website, www.namgla.net (hereinafter "NAMGLA" or the "website"), was password-protected, which means that casual browsing on the Internet would not allow access to the website absent a password. NAMGLA is believed to be an acronym for "North American Man Girl Love Association."1
Despite the FBI's admission that Lochmiller wanted to provide information through his attorney, the FBI did not contact Lochmiller's attorney until April 2006. In the interim, starting in November 2005, SA Macfarlane logged into the NAMGLA website in an undercover capacity using a screen name and password provided by Lochmiller. At that time, SA Macfarlane learned that NAMGLA operated as a message board where users posted messages that other users could view. These messages often included links to other web-sites, which stored picture and video files depicting what appeared to be child pornography.
On one occasion in April 2006, SA Macfarlane observed a message posted by a user named "franklee,"2 whom the Government alleges is Russell Christie. In the message, Christie provided a link to a movie file that was nearly 19 minutes long, and included images of a prepubescent female lying nude on a bed. An adult male hand can be seen rubbing the child's buttocks, and the camera zooms in and out of the child's genitalia. There is also an adult female on the video, who is spreading open and posing the child's legs. At another point in the video, an adult male's erect penis is shown rubbing against the girl's vagina until the male ejaculates onto the girl's vagina. Later, the adult male can be seen inserting his penis into the girl's mouth before pulling out and ejaculating into her mouth.
Through its investigation, the FBI determined that the postings on NAMGLA by the user name "franklee" originated at 68A Phillips Road, Newton, New Jersey. A hardly insignificant fact is that at the time of his arrest, Christie, age 48, was employed as a school bus driver in the Andover district in Sussex County. The FBI learned that Russell Christie resides at both 68 and 68A Phillips Road. Green Valley Beach Campground is also located at 68 Phillips Road, and is owned by Janet Christie, Russell's mother. The importance of the distinction between 68 and 68A will become obvious later, but suffice to say at this point that the FBI acquired information that placed Russell Christie at both addresses, which were allegedly indistinguishable from the outside.
Ultimately, the FBI determined that Christie resided at 68 Phillips Road, not 68A, and thus the agents applied for a search warrant for that address. On July 24, 2006, Magistrate Judge Patty Shwartz signed the search warrant, and agents executed it the following morning at about 6:00 AM. Within twenty minutes, the agents determined that Christie resided at 68A, not 68, and so they immediately exited the dwelling, contacted the U.S. Attorney's Office in Newark, and ultimately decided to apply for a search warrant for 68A Phillips Road. An agent was dispatched back to Newark to draft and obtain the new affidavit, and thereafter it was presented to Magistrate Judge Shwartz for review and consideration.
While the one agent was away to acquire the new search warrant, other agents remained outside the 68 Phillips Road address, after having secured and cleared the dwelling. The agents informed Christie and his mother that neither of them could enter the 68A address unaccompanied by agents, but that they were not under arrest, and neither were they under any obligation to remain with the agents outside the apartment. As a result, Christie's mother went about her day, but Christie apparently stayed with the agents and made several statements.
At approximately 1:15 PM, Magistrate Judge Shwartz signed the new search warrant for 68A, the agent returned to the address at about 2:00 PM, and the search of the apartment began. The agents seized a computer containing approximately 567 postings to NAMGLA, hundreds of videos of alleged child pornography, and thousands of images of alleged child pornography. At about 6:00 PM, the agents arrested Christie. On July 26, 2006, the Government charged Christie in a criminal Complaint alleging that Christie possessed child pornography. On April 20, 2007, a Grand Jury returned a two-count Indictment charging Christie with one count of receiving and distributing child pornography, and one count of possessing child pornography.
Subsequently, on October 19, 2007, the Grand Jury returned this eight-count Superseding Indictment charging Christie with six counts of advertising and attempted advertising of child pornography, in violation of 18 U.S.C. § 2251(d)(1)(A), one count of receipt and attempted receipt of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2) and (b)(1), and one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).
The current motion by Christie involves multiple issues. First, Christie moves to dismiss Counts 2 through 6 (the advertising counts) as multiplicious of Count 1, which also charges advertising. Second, Christie moves to dismiss Counts 1 through 3 on the ground that they fail to allege "notice" as required by the statute. Third, Christie moves to suppress certain evidence seized at his home on the grounds that the affidavit used to acquire the search warrant was materially misleading, and also on the grounds that there was an unlawful execution of the search warrant. Fourth, Christie moves to suppress alleged statements made by him to law enforcement during the seven hours between the time when the one agent left to obtain a new warrant, and the return of that agent and execution of the new warrant. Fifth, Christie makes certain discovery requests for disclosure of: Brady material; Rule 404(b) evidence; tests, reports, and summaries by the Government's experts; and Jencks Act material. Sixth, and finally, Mr. Christie makes several motions regarding the warrant affidavit, namely that it was stale, overbroad, vague, and lacking in particularity. The Court will address these issues seriatim.
The Superseding Indictment sets forth, in its first nine paragraphs, the basic facts about NAMGLA and Christie's connection to the website through the user name "franklee." In the ninth paragraph, the Superseding Indictment charges that Christie
did knowingly make, print, and publish ... a notice and advertisement seeking and offering to receive ... visual depictions ... of a minor engaging in sexually explicit conduct, and the defendant knowing ... that such notice and advertisement would be transported across...
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