United States v. Sherman
| Decision Date | 11 January 2023 |
| Docket Number | 22-cr-123 (KMM/LIB) |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. Eric Scott Sherman, Defendant. |
| Court | U.S. District Court — District of Minnesota |
ORDER AND REPORT AND RECOMMENDATION
This matter comes before the undersigned United States Magistrate Judge pursuant to a general assignment, made in accordance with the provisions of Title 28 U.S.C. § 636 and Local Rule 72.1, and upon the Government's Motion for Discovery, [Docket No. 15], and Defendant Eric Scott Sherman's (“Defendant”) Motion to Suppress Evidence. [Docket No. 29]. The Court held a Motions hearing on November 1, 2022, regarding the parties' pretrial motions.
For the reasons discussed herein, the Government's Motion for Discovery, [Docket No. 15], is GRANTED. Further, it is recommended that Defendant's Motion to Suppress Evidence, [Docket No. 29], be DENIED.
I. Government's Motion for Discovery. [Docket No 15].
The Government seeks discovery pursuant to Rules 16(b), 12.1, 12.2, 12.3, and 26.2 of the Federal Rules of Criminal Procedure, as well as, Rules 702, 703, and 705 of the Federal Rules of Evidence. (See Gov't's Mot. for Discovery, [Docket No. 15]).
The Government requests that the Court order Defendant to permit inspection and copying of all books, papers, documents, photographs, tangible objects, or copies or portions thereof, which are within the possession, custody, or control of Defendant and which Defendant intends to introduce as evidence in his case-in-chief at trial.
Defendant did not object to the request. The motion is granted, and Defendant shall disclose any such responsive materials no later than fourteen (14) days before trial.
The Government further requests all results and reports of physical or mental examinations and of scientific tests or experiments made in connection with the above captioned matter, or copies thereof, within the possession or control of Defendant, which Defendant intends to introduce as evidence in his case-in-chief at trial or which were prepared by a witness whom Defendant intends to call at trial.
Defendant did not object to the request. The motion is granted, and Defendant shall disclose any such responsive materials no later than fourteen (14) days before trial.
The Government also seeks a written summary of expert testimony Defendant intends to use under Rule 702, 703, and 705 of the Federal Rules of Evidence as evidence at trial. The Government asserts that the summary must describe the opinions of the expert witnesses, the basis and reasons therefore, and the witnesses' qualifications.
Defendant did not object to the request. The motion is granted. Defendant shall disclose any such responsive materials for experts he intends to call in his defense case-in-chief at trial no later than twenty-eight (28) days before trial. Defendant shall disclose any such responsive materials related to rebuttal expert reports no later than fourteen (14) days before trial.
Pursuant to Federal Rule of Criminal Procedure 12.1, the Government seeks an Order from the Court requiring Defendant, if he intends to claim alibi as a defense, to state the specific place or places at which Defendant claims to have been at the time of the alleged offenses in the above captioned matter and the names and addresses of the witnesses upon whom Defendant intends to rely to establish such alibi.
Defendant did not object to this request. The motion is granted. Defendant shall give notice of same pursuant to Rule 12.1 as soon as practicable and in no event later than twenty-one (21) days before trial.
In addition, pursuant to Federal Rule of Criminal Procedure 12.2, the Government requests the Court to order Defendant, if he intends to rely upon the defense of insanity or introduce expert testimony relating to a mental disease or defect or any other mental condition of Defendant relevant to the issue of guilt, to provide the Government notice of such defense.
Defendant did not object to this request. The motion is granted, and Defendant shall give notice of same pursuant to Rule 12.2 as soon as practicable and in no event later than twenty-one (21) days before trial.
Pursuant to Federal Rule of Criminal Procedure 12.3, the Government seeks an order from the Court requiring Defendant, if he intends to rely upon the defense of actual or believed exercise of public authority on behalf of a law enforcement agency or federal intelligence agency at the time of the offense, to notify the Government and the Court no later than the date of the first hearing on pretrial motions.
Defendant did not object to this request. The motion is granted, and Defendant shall give notice of same pursuant to Federal Rule of Criminal Procedure 12.3 as soon as practicable and in no event later than twenty-one (21) days before trial.
The Government seeks all statements within Defendant's possession or control of any witness that Defendant intends to call in connection with a suppression hearing, detention hearing, trial, or sentencing.
Defendant did not object to this request. The motion is granted. To the extent Defendant has statements in his possession or control of any witness that he intends to call to testify in connection with a suppression hearing, detention hearing, trial, or sentencing, Defendant shall disclose such statements to the Government no later than three (3) calendar days before such witness is called to testify.
II. Defendant's Motion to Suppress Evidence. [Docket No. 29].
Defendant moves the Court to suppress a cellular phone and all of the information on it seized from him on December 1, 2020, because the seizure and search of his cellular phone was conducted without a search warrant, without probable cause, and without an exception to the warrant requirement. (Def.'s Mot., [Docket No. 29]; Def.'s Mem., [Docket No. 43]). The Government contends that the cellular phone was seized pursuant to a valid search warrant, and in the alternative, under exigent circumstances, the independent source doctrine, and the inevitable discovery doctrine, and its content was searched pursuant to a valid subsequent search warrant. (Gov't's Mem., [Docket No. 44]).
The record presently before the Court indicates that, on March 3, 2020, the National Center for Missing and Exploited Children (“NCMEC”) received a cyber tip from MediaLab/Kik (“Kik”), which advised that, between February 23, 2020, and March 3, 2020, a resident in the Duluth, Minnesota area had uploaded twenty (20) separate images/videos of child pornography via private message or messaging group. (Affidavit, Gov't's Ex. 1, at p. 17).[2] The tip also provided specific times that child pornography was uploaded from IP address 75.128.245.100. (Id.). On April 30, 2020, Homeland Security Investigations (“HSI”) developed a lead from its Cyber Crimes Center's (“C3”) Child Exploitation Investigations Unit (“CEIU”) connecting child exploitation content to username “CHRIS23757,” which included twenty (20) videos depicting child exploitation. (Id.). Username “CHRIS23757,” along with a second username “JETHRO420,” were both associated with the email address “jethro420@gmail.com” and both shared the IP Address previously reported by Kik as having uploaded child pornography. (Id.).
These tips led to an investigation being opened into the usernames “CHRIS23757” and “JETHRO420,” as well as, IP address 75.128.245.100. (Affidavit, Gov't's Ex. 1, at pp. 18-19). On May 6, 2020, Special Agent Michael Sisto, the case agent assigned to the investigation, reviewed all twenty videos uploaded from IP address 75.128.245.100, fifteen of which were uploaded on February 24, 2020, and five of which were uploaded on February 26, 2020. (Id. at p. 18). SA Sisto also determined that IP address 75.128.245.100 (the “IP Address”) resolved to Duluth, Minnesota with Charter Communications as the Internet Service Provider (“ISP”). (Id. at p. 19). Consequentially, SA Sisto requested subscriber information from Charter Communications for the IP Address. (Id.). In response, SA Sisto learned that the IP Address belonged to Defendant with a Duluth, Minnesota service address of “[xxxx] ¶ 1st Street.” (Id. at pp. 19-20).
SA Sisto then performed a record check of Defendant and confirmed that Defendant's address was “[xxxx] ¶ 1st Street” and that a “gray 2015 Subaru Forester” (the “Subaru Forester”) was registered to his name. (Affidavit, Gov't's Ex. 1, at p. 20). SA Sisto learned that Defendant was on probation until June 8, 2026, for a conviction of second degree Criminal Sexual Conduct, which prohibited him from owning or operating any device that allows for Internet access. (Id. at p. 20). SA Sisto also confirmed with Defendant's probation officer that Defendant lived in the upper level of “[xxxx] ¶ 1st Street” and was currently driving the 2015 Subaru Forester. (Id. at pp. 20-21). SA Sisto also conducted surveillance of the home and learned that Defendant typically left around 5:00 a.m. to go to work at a location near the Duluth Airport. (Affidavit, Gov't's Ex. 3, at p. 4).[3]
On November 19, 2020, SA Sisto applied for two identical Federal Court warrants to search Defendant's home and Subaru Forester. (Application, Gov't's Ex. 1; Application Govt's' Ex. 2). SA Sisto also submitted two identical affidavits in support of his applications. (Affidavit, Gov't's Ex. 1; Affidavit, Govt's' Ex. 2). In these identical affidavits, SA Sisto provided all the details of the...
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