United States v. Pena, CR 19-3611 JB

CourtU.S. District Court — District of New Mexico
PartiesUNITED STATES OF AMERICA, Plaintiff, v. BOBBY PENA, Defendant.
Decision Date12 November 2021
Docket NumberCR 19-3611 JB


BOBBY PENA, Defendant.

No. CR 19-3611 JB

United States District Court, D. New Mexico

November 12, 2021

Fred J. Federici Acting United States Attorney Sarah Jane Mease Stephen A. White Assistant United States Attorneys Attorneys for the Plaintiff

Vincent J. Ward Christopher A. Dodd Shammara H. Henderson Freedman Boyd Hollander Goldberg Urias & Ward, P.A.Attorneys for the Defendant


THIS MATTER comes before the Court on the Defendant's Motion to Suppress Evidence, filed August 6, 2021 (Doc. 29)(“Motion to Suppress”). The Court held an evidentiary hearing on October 7, 2021. See Clerk's Minutes at 1, filed October 7, 2021 (Doc. 53). The primary issues are: (i) whether the Second Search Warrant, Search and Seizure Warrant at 1 (dated January 5, 2018), filed August 6, 2021 (Doc. 29-1)(“Second Search Warrant”) lacked probable cause to believe that Federal Bureau of Investigation (“FBI”) Special Agent Matthew A. Kucenski would find evidence of child pornography on Defendant Bobby Pena's devices, because Kucenski stated that he believed pornography, rather than child pornography, would be found on the devices, and whether the Kucenski Aff., Affidavit, filed August 6, 2021 (Doc. 29-1)(“Kucenski Aff.”), in support of the Second Search Warrant is otherwise devoid of sufficient detail; (ii) if probable cause does not support the Second Search Warrant, whether Kucenski relied on the warrant in good faith; and (iii) if probable cause does not support the search warrant, whether Kucenski inevitably would have discovered the child pornography in the course of the fraud investigation that prompted the First Search Warrant, Application for a Search Warrant ¶ 11, at 3 (dated December 12, 2017), filed August 6, 2021 (Doc. 29-3)(“First Search Warrant”). The Court concludes that: (i) the Kucenski


Aff. provides sufficient factual detail in support of the search warrant, and, within the totality of the circumstances, the file folder names, Pena's use of peer-to-peer software, and the large number of devices indicating collector behavior, support sufficiently the probable cause determination of Magistrate Judge Jerry H. Ritter, United States Magistrate Judge for the United States District Court for the District of New Mexico; (ii) even if the search warrant lacks probable cause, Kucenski relied on Magistrate Judge Ritter's probable cause determination in good faith when he executed the search warrant and searched Pena's devices for child pornography evidence; and (iii) even if the search warrant lacks probable cause, Kucenski inevitably would have discovered more incriminating file folder names that would have supported the search warrant's issuance.


Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. See Fed. R. Crim. P. 12(d) (“When factual issues are involved in deciding a motion, the court must state its essential findings on the record.”). The findings of fact in this Memorandum Opinion and Order shall serve as the Court's essential findings for rule 12(d) purposes. The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure, and the voluntariness of an individual's confession or consent to a search. See United States v. Merritt, 695 F.2d 1263, 1269-70 (10th Cir. 1982). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed.R.Evid. 104(a) (“The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so doing, the court is not bound by evidence rules, except those on privilege.”). “[H]earsay testimony is admissible at


suppression hearings . . . and should be considered by a district court[.]” United States v. Miramonted, 365 F.3d 902, 904 (10th Cir. 2004)(citing United States v. Matlock, 415 U.S. 164, 173 (1974)).[1]


1. Fraud Investigation.

1. Pena worked as a subcontractor to Sandia National Laboratories (“Sandia Labs”) from May, 2008, to June, 2017. See United States' Response in Opposition to Defendant's Motion to Suppress Evidence (Doc. 29) at 1, filed August 20, 2021 (Doc. 32)(“Response”).

2. Doing business as De La Pena LLC, Pena provided specialized cleaning services, including air particle count monitoring, to Sandia Labs. See Response at 1; Motion to Suppress at 6.

3. In June, 2016, Sandia Labs contacted the Department of Energy's (“DOE”) Office of Inspector General (“IG”) to “report that [De La Pena, LLC] was submitting claims for work that was not performed.” First Search Warrant ¶ 11, at 3.

4. “Specifically, based on Sandia [Labs] badge swipe records and other inquiries conducted by Sandia, [De La Pena, LLC] was not performing the required cleaning duties listed in the contract to include air particle count monitoring.” First Search Warrant ¶ 11, at 3.

5. The DOE IG conducted surveillance on Pena and determined that he was not monitoring the air particle count but nonetheless was reporting air particle count data to Sandia Labs. See First Search Warrant ¶¶ 12-16, at 4.

6. On July 14, 2017, DOE IG Special Agents interviewed Pena. See First Search Warrant ¶ 18, at 5.

7. During the July 14, 2017, interview, Pena admitted that “he did not conduct required air particle count monitoring's [sic] and falsified the test results . . . for approximately two years.” First Search Warrant ¶ 18, at 5.

8. Pena admitted to using his personal laptop to falsify the air count particle data that he submitted to Sandia Labs. See First Search Warrant ¶¶ 18-19, at 5.


9. Based on their surveillance and interview of Pena, on December 12, 2017, DOE Special Agent Louis Gomez applied for a search warrant to search and seize Pena's electronic devices located “within the Extra Space Storage Office building, ” which is where Pena's office was located. First Search Warrant ¶¶ 2, 20, at 2, 5.

10. The First Search Warrant's purpose was to determine whether the equipment “was used to generate, store, and submit false, fictitious or fraudulent claims.” First Search Warrant ¶ 20(c), at 5.

11. Specifically, the First Search Warrant authorized law enforcement to search and seize:

1. All electronic records relating to violations of 18 U.S.C. § 287 involving DE LA PENA, LLC or BOBBY MARTIN PENA including:

a) Data related to Sandia National Laboratories (Sandia) contracted work
b) Data related to air particle monitoring data at Sandia
c) Invoices to Sandia
d) Time records
e) Sandia cleanroom floorplans
f) Dates and times of work performed at Sandia
g) Emails related to Sandia

3. For any computer hard drive or other [electronic] media that is called for by this warrant, or that might contain things otherwise called for by this warrant:

a) Evidence of user attribution showing who used or owned the media at the time the things described in this warrant were created, edited, or deleted, such as logs, registry entries, saved usernames and passwords, documents, and browsing history;
b) Passwords, encryption keys, and other access devices that may be necessary to access the media;
c) Documentation and manuals that may be necessary to access the media or to conduct a forensic examination of the media.

First Search Warrant ¶¶ 1, 3, at 11.

12. On December 12, 2017, the Honorable Steven C. Yarbrough, United States Magistrate Judge for the United States District Court for the District of New Mexico, issued the First Search Warrant with instructions to law enforcement to execute the search warrant before December 26, 2017. See First Search Warrant at 12.

2. Search of Pena's Electronic Devices.

13. On December 13, 2017, law enforcement officers executed the First Search Warrant at Pena's office. See Kucenski Aff ¶ 37, at 17.

14. During the First Search Warrant's execution, officers asked Pena about the electronic devices' contents. Kucenski Aff. ¶ 38, at 16.

15. Pena told officers that the devices contain “family photos” and “porn.” Kucenski Aff. ¶ 38, at 16.

16. Officers asked Pena if the devices contain any child pornography, and he responded, “No, ” and informed officers that he “rips”[2] pornography from “torrent” files. Kucenski Aff. ¶ 38, at 16.


17. “Torrent files” are files shared from Internet “peer-to-peer” (“P2P”) file sharing software. Kucenski Aff. ¶ 38, at 16.

P2P file sharing networks, including the BitTorrent network, are frequently used to trade digital files of child pornography. These files include both image and video files. Users of the BitTorrent network wishing to share new content will use a BitTorrent program to create a "torrent" file for the file or grout of files they wish to share. A torrent file is a small file that contains information about the file(s) and provides a method for a user to download the file(s) referenced in the torrent from other BitTorrent users. Torrent files are typically found as the result of keyword searches on Internet sites that host or link to them.

Kucenski Aff. ¶ 10, at 10-11.

18. On December 14, 2017, Kucenski observed files and folders on Pena's devices with titles such as “‘HotYoungDoll' (sic), ‘HotYoungThing' (sic), ‘hotyoungthing-nudexvid.avi' (sic), ‘Casting Couch Teens Site Rip', ‘Teens Do Porn SiteRip', ‘teensx' (sic), ‘DblTemedTens' (sic), ‘Teens Obedience Lesson Site Rip', and ‘Teen Sex Mania SiteRip' (sic).” Kucenski Aff., at 16-17 (alteration in Kucenski Aff.).

19. Kucenski attested that he “documented the findings, but did not open any of the files, nor...

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