United States v. Dillow, Case No. 3:13 CR 133.
| Decision Date | 01 November 2013 |
| Docket Number | Case No. 3:13 CR 133. |
| Parties | UNITED STATES of America, Plaintiff, v. James DILLOW, Defendant. |
| Court | U.S. District Court — Northern District of Ohio |
OPINION TEXT STARTS HERE
Andrew P. Hart, Donna M. Grill, Office of the Federal Public Defender, Toledo, OH, for Defendant.
Pending before this Court is Defendant James Dillow's (“Dillow”) Motion to Compel Discovery and Request to Extend Pretrial Motion Deadline (Doc. 19) and the Government's Opposition (Doc. 20). For the reasons below, Defendant's Motion is denied.
Dillow faces a two-count Indictment, charging him with receipt, distribution, and possession of child pornography in violation of 18 U.S.C. §§ 2252(a)(2) and 2252A(a)(5)(B) (Doc. 2). In response to a discovery request, the Government provided Dillow a copy of the search warrant affidavit submitted for a search of Dillow's home. That affidavit noted that Perrysburg Police Detective Patrick Jones (“Jones”) had used computer software to identify Dillow's Internet Protocol (“IP”) address as one “offering to trade or share child pornography” (Doc. 19 at 2). Dillow now seeks to compel disclosure of the “the computer software used to establish the alleged possession or offer of distribution” in his case; such discovery, Dillow claims, will allow him to test the reliability of that software ( id.).
Specifically, Dillow seeks: (1) identification of the software; (2) “objective rates of reliability possessed by the developer of the software;” and (3) the opportunity to inspect the software used ( id. at 3). To conduct that inspection, Dillow seeks a thirty-day extension of the pretrial motion deadline, running from the date on which the Government discloses the requested information.
The Government opposes Dillow's Motion on two grounds. First, the Government avers Dillow has failed to establish materiality of the information he seeks, as required by Federal Criminal Rule 16(a)(1)(E)(i). Second, the Government argues one of the two software programs used to tie Dillow to child pornography enjoys a qualified privilege against disclosure.
The Government's Opposition describes the search method Jones used to link Dillow to child pornography. Jones began his investigation using an unnamed software program and a related database. The Government describes these tools (hereafter “the law enforcement search tool”) as follows:
The [law enforcement search tool] simply searches the Gnutella network[, a peer-to-peer file sharing community,] for IP addresses sharing files previously identified to be child pornography. The software works in conjunction with a database. This software and the database are licensed to, available to[,] and used exclusively by law enforcement. As law enforcement officers, licensed to use this software, their work is logged to the database. In this way, law enforcement officers around the world can pool their efforts and help identify targets who are operating on the global Internet.
(Doc. 20 at 3). Once the law enforcement search tool identifies a Gnutella user offering to share child pornography, Jones uses Phex, a publicly-available file-sharing program, to download child pornography from that user.
Jones used this two-step investigative process to download from Dillow's shared items folder two complete child pornography files. Jones partially downloaded two additional child pornography files from the same source. The Government represents that neither the law enforcement search tool nor Phex is able to place data on other users' computers; together, the two programs can only identify and then retrieve files a Gnutella user elects to share with others.
Federal Criminal Rule 16(a)(1)(E) provides for limited discovery in criminal prosecutions of “data ... [or] tangible objects ... within the government's possession, custody, or control.” Rule 16 additionally requires, in relevant part,1 that the “item [be] material to preparing the defense.” Id. To be discoverable under Rule 16, then, Dillow must make two showings with respect to each type of information he seeks. First, Dillow must show the information is “within the government's possession, custody, or control.” Second, Dillow must demonstrate the materiality of that information. See United States v. Phillip, 948 F.2d 241, 250 (6th Cir.1991) (). Both showings are essential, for “the discovery afforded by Rule 16 is limited to evidence referred to in its express provisions.” See United States v. Warshak, 631 F.3d 266, 327 (6th Cir.2010) (quoting United States v. Presser, 844 F.2d 1275, 1285 (6th Cir.1988)).
Dillow's requests for “objective rates of reliability” for either the law enforcement search tool or Phex fail at the outset. Dillow describes the reliability information as “possessed by the developer of the software” (Doc. 19 at 3). That “developer” is apparently a private entity—the Government explains the software is “licensed to” law enforcement officers ( see, e.g., Doc. 20 at 5). Nowhere does Dillow allege that the Government—or, indeed, any governmental entity—also has access to or otherwise controls the reliability information “possessed by the developer.” That aspect of Dillow's request falls outside of Federal Criminal Rule 16's custody-of-the-government requirement, however broadly construed, and is not discoverable.
Dillow's request for the identification of, and an opportunity to inspect, the two software programs used in Jones' investigation presents a closer question. The specific software Jones used to identify Dillow is, so far as the briefing reveals, in the sole possession of the Perrysburg Police Department—Dillow recites the language of Rule 16 in his Motion in a bid to place the software programs within its scope, but does not specifically allege that the United States Attorney has actual control over that software ( see Doc. 19 at 3). In such a situation, does the “government” have “custody” in the Rule 16 sense of items apparently possessed only by a local law enforcement agency?
Though this Court must answer that question without the aid of any on-point reported Sixth Circuit decisions, the weight of authority elsewhere indicates the answer to that question is “No.” See, e.g., United States v. Marshall, 132 F.3d 63, 68 (D.C.Cir.1998) (); United States v. Brazel, 102 F.3d 1120, 1150 (11th Cir.1997) (); United States v. Chavez–Vernaza, 844 F.2d 1368, 1375 (9th Cir.1987) ().
That conclusion seems best supported by Rule 16's text. Rule 16(a)'s various provisions are grouped under a heading that speaks to the “Government's Disclosure,” while Rule 16(b) lists the “Defendant's Disclosure.” In both sections, the “government” is alternatively tasked with producing materials (under Rule 16(a)), or given the authority to request that the defendant produce certain information (under Rule 16(b)). Using the presumption of consistent usage, “government” is most naturally read as bearing the same meaning in both sections of the same rule. See, e.g., Ratzlaf v. United States, 510 U.S. 135, 143, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994) ().
That a consistent usage of “government” excludes local law enforcement entities becomes apparent by reflecting on Dillow's reading of the Rule. As noted above, Rule 16 at once imposes on the “government” discovery obligations while also granting the “government” certain discovery rights. In some cases, these rights and obligations are reciprocal, triggered only when a defendant makes a prior disclosure request for particular items. See, e.g.,Federal Criminal Rule 16(b)(1)(A). Dillow would have this Court require the Perrysburg Police Department to disclose the law enforcement search tool because that Department is the “government” for purpose of the Rule. Would Dillow likewise permit the Perrysburg Police Department to exercise the Rule 16(b) governmental discovery prerogatives that exist in this case, in light of Dillow's prior disclosure request ( see Doc. 7–1)? For instance, Dillow requested a summary of possible expert government...
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