U.S. v. Woods

• Decision Date: 21 July 2010
• Docket Number: No. CR 109-127,CR 109-127
• Citation: 730 F.Supp.2d 1354
• Parties: UNITED STATES of America v. Morgan Chase WOODS.
• Court: U.S. District Court — Southern District of Georgia

730 F.Supp.2d 1354

UNITED STATES of America

v.Morgan Chase WOODS.

No. CR 109-127.

United States District Court,

S.D. Georgia,

Augusta Division.

July 21, 2010.

Nancy Colleen Greenwood, Carlton R. Bourne, Jr., Edmund A. Booth, Jr., U.S. Attorney's Office, Augusta, GA, James D. Durham, U.S. Attorney's Office, Savannah, GA, for United States of America.

Benjamin H. Brewton, Tucker, Everitt, Long, Brewton & Lanier, PC, Augusta, GA, for Morgan Chase Woods.

ORDER

J. RANDAL HALL, District Judge.

After a careful, de novo review of the file, the Court concurs with the Magistrate Judge's Report and Recommendation, to which objections have been filed. Accordingly, the Report and Recommendation of the Magistrate Judge is ADOPTED as the opinion of the Court.¹ Therefore, the prior motions to dismiss the indictment are NULLITIES (doc. nos. 44, 56), and Defendant'ssupplemental motion to dismiss is DENIED (doc. no. 82).

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

W. LEON BARFIELD, United States Magistrate Judge.

The government has charged Defendant, Morgan Chase Woods ("Defendant"), with one count of receipt of child pornography, in violation 18 U.S.C. § 2252A(a)(2) ("Count 1"), and two counts of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) ("Count 2" and "Count 3"). ( See doc. no. 1, pp. 1-2.) The indictment also includes, pursuant to 18 U.S.C. § 2253(a)(3), a forfeiture allegation for the return of the property used in committing the charged offenses. ( See id. at 3.) Defendant has now moved to dismiss the indictment on several grounds. (Doc. no. 82.) Specifically, Defendant alleges that (1) the statutes he is charged under are unconstitutionally vague and overbroad; (2) the penalty for receipt of child pornography constitutes cruel and unusual punishment; (3) the indictment is unconstitutionally vague; and (4) the indictment violates the Double Jeopardy Clause and is multiplicitous. ( See generally id.) The government contends that Defendant's arguments are without merit and provide no basis for dismissal of the indictment. ( See generally doc. no. 86.) The Court held a hearing on the matter on May 11, 2010, at which time it heard arguments from the parties and testimony from Special Agent Timothy R. Picard ("S.A. Picard") of the Naval Criminal Investigative Service ("NCIS"). ( See doc. nos. 90, 91.) For the reasons set forth below, the Court REPORTS and RECOMMENDS that the prior motions to dismiss the indictment be treated as NULLITIES (doc. nos. 44, 56) and that the instant motion to dismiss be DENIED (doc. no. 82).

I. BACKGROUND

A. Factual and Procedural History

In framing the issues presented by the instant motion, a brief factual and procedural history of this case will be helpful. As noted above, on August 5, 2009, a grand jury sitting in the Southern District of Georgia issued an indictment charging Defendant with one count of receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2) ("the receipt statute"), and two counts of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) ("the possession statute"). (Doc. no. 1.) The indictment also includes an allegation for forfeiture of the property used to commit the charged offenses, such property to include "Defendant's computers previously seized by law enforcement on or about May 12, 2009." ( Id. at 3.)

The receipt statute makes it a crime for a person to "knowingly receive [ ] or distribute [ ] any child pornography [or any material that contains child pornography] that has been mailed, or using any means or facility of interstate or foreign commerce[,] shipped or transported in or affecting interstate or foreign commerce by any means, including by computer." 18 U.S.C. § 2252A(a)(2). Furthermore, the possession statute makes it a crime for a person to

knowingly possess [ ] ... any 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 a computer ....

Id. § 2252A(a)(5)(B). Finally, 18 U.S.C. § 2253(a) provides that any person who isconvicted of an offense described in § 2252A (among other statutes) "shall forfeit to the United States ... any property, real or personal, used or intended to be used to commit or to promote the commission of such offense and any property traceable to such property."

While Mr. Benjamin H. Brewton was originally appointed to represent Defendant in this case, Defendant later retained new counsel, Mr. Richard H. Goolsby. ( See doc. no. 38.) Several of Defendant's pre-trial motions detailed, inter alia, the difficulties Defendant had encountered in obtaining certain discovery materials from the government, specifically those images on which the government would rely to prove each count of the indictment. ( See doc. nos. 48, 49.) The government later filed a notice with the Court stating that it had provided to Defendant two lists, albeit incomplete ones, of the files it might rely on to prove the charges in this case. ( See doc. no. 61.) When Defendant notified the Court approximately two weeks later that the government had yet to identify the specific images it intended to rely on at trial (doc. no. 67, pp. 1-2), the Court specifically directed the government to identify "the specific images that it intends to prove at trial constitute contraband" by February 1, 2010 (doc. no. 68, p, 2).

Defendant acknowledges that he has received this list ( see doc. no. 82, p. 14), and in light of these developments, the Court directed Defendant to, if still appropriate, re-file, inter alia, his previous motions to dismiss (which had requested dismissal of the indictment based on several of the same grounds presented in the instant motion to dismiss) to make "his arguments based on the current state of this case" (doc. no. 79, p. 5). The Court informed Defendant that upon the filing of his renewed motion(s), the prior motions would be treated as nullities and that the Court would only address the issues raised in the renewed motion(s). ( Id.) Defendant timely filed the instant motion to dismiss, to which the government has responded. Accordingly, the prior motions to dismiss should be treated as NULLITIES (doc. nos. 44, 56), and the Court will address only those arguments raised in the instant motion to dismiss.

B. May 11, 2010 Hearing

Before doing so, however, the Court notes that as part of his argument that the indictment in this case is unconstitutionally vague, Defendant contends that the specific images he is charged with receiving and possessing have changed since the indictment was issued. (Doc. no. 82, p. 16.) While Defendant cites no evidence or other discovery material in his motion to dismiss in support of this contention, given the serious nature of this allegation, the Court scheduled oral arguments on the motion to dismiss on May 11, 2010. ( See doc. no. 91.) During the course of the May 11th hearing, it became apparent that in contending that the list of images had changed, Defendant was relying on an Examiner's Note written during the course of the forensic examination of one of the subject computers that had referred to certain "original agent selections" as "not acceptable." Thus, it became apparent that additional testimony from S.A. Picard of the NCIS would be helpful in explaining Defendant's allegation that the images had changed since the issuance of the indictment.

S.A. Picard testified that he has been with the NCIS for over 20 years and is currently the supervisor of the General Crime Squad, as he was in August 2009, when the above-referenced note was written.¹ S.A. Picard testified that as part of his duties, he supervises other NCISagents, including Special Agent Mary Beth Eversman ("S.A. Eversman"), the original case agent, with respect to her work on this case. S A. Picard further testified that he continued to supervise the case when it was re-assigned to Special Agent Noah Williams ("S A. Williams"), following S A. Eversman's transfer to Naples, Italy.

With respect to the procedure followed by NCIS and the Defense Computer Forensic Laboratory ("DCFL") in child pornography cases involving suspect images located on a computer, S.A. Picard testified that once the computer is seized, it is sent to DCFL, where a forensic examiner makes a "mirror image" of the hard drive. The DCFL examiner then extracts all suspect movie and picture files from the computer and downloads them onto an external hard drive, which is then sent back to the case agent. A review of the external hard drive will tell the case agent whether any of the images contained on the external hard drive have been identified by the National Center for Missing and Exploited Children ("NCMEC") as images depicting a known victim of child pornography. As explained by S.A. Picard, case agents are able to determine that an image found on a particular computer depicts a known child pornography victim because the hash value, or "fingerprint," of the image will match the hash value of an image contained in the NCMEC database. Upon review of the images on the external hard drive, the case agent selects some of those images for further in-depth analysis by DCFL to determine how the images arrived on the computer. Notably, according to S A. Picard, DCFL has specific guidelines about the number and types of images that are appropriate for this more extensive analysis. Specifically, S.A. Picard testified that DCFL limits the number of images that agents may submit for further analysis to twenty images (due to the length of time it takes to conduct such an analysis) and that the preference is for NCMEC images. Furthermore, DCFL prefers that images located on physical files (as opposed to logical files) be submitted for the more in-depth analysis because more information...