Manda M. Sertich, Assistant United States Attorney, UNITED STATES ATTORNEY'S OFFICE, 300 South Fourth Street, Suite 600, Minneapolis, MN 55415, for the Government.
Alan D. Margoles, MARGOLES & MARGOLES, 790 Cleveland Avenue South, Suite 223, St. Paul, MN 55116, for Defendant.
REPORT & RECOMMENDATION
TONY N. LEUNG, Magistrate Judge.
This matter is before the Court, Magistrate Judge Tony N. Leung, on Defendant Guy Edward Wheelock's Motion to Dismiss for Lack of Jurisdiction (ECF No. 19) and Wheelock's Motions to Suppress Evidence (ECF Nos. 23, 28, 31). Defendant is charged with possession, receipt and attempted distribution of child pornography in violation of 18 U.S.C. §§ 2552(a)(2), (a)(4)(B), (b)(1) and (b)(2).
The Court heard oral argument on Defendant's motions. Alan D. Margoles represented Defendant, and Manda M. Sertich represented the United States of America. The Court heard testimony from Officer Dale Hanson of the Minneapolis Police Department. The Court received the following exhibits: Government Exhibit 1A is a Request for Administrate Subpoena dated September 3, 2011 and signed by Officer Hanson; Government Exhibit 1B is an Administrative Subpoena issued from the Hennepin County Attorney's office and dated September 7, 2011; Government Exhibit 1C is Comcast's written response to the September 7, 2011 Administrative Subpoena; Government Exhibit 2A is a Request for Administrate Subpoena dated September 25, 2011 and signed by Officer Hanson; Government Exhibit 2B is an Administrative Subpoena issued from the Hennepin County Attorney's office and dated September 26, 2011; Government Exhibit 2C is Comcast's written response to the September 26, 2011 Administrative Subpoena; Government Exhibit 3A is a Request for Administrate Subpoena dated October 24, 2011, signed by Officer Hanson; Government Exhibit 3B is an Administrative Subpoena issued from the Hennepin County Attorney's office dated October 24, 2011; Government Exhibit 3C is Comcast's written response to the October 24, 2011 Administrative Subpoena; Government Exhibit 4A is a Request for Administrate Subpoena dated January 10, 2012, signed by Officer Hanson; Government Exhibit 4B is an Administrative Subpoena issued from the Hennepin County Attorney's office dated January 10, 2012; Government Exhibit 4C is Comcast's written response to the January 10, 2012 Administrative Subpoena; and Government Exhibit 5 is a search warrant and supporting affidavit dated February 1, 2012, signed by Officer Hanson and Anoka County District Judge John P. Dehen.
Officer Hanson is employed by the Minneapolis Police Department and a member of the Minnesota Internet Crimes Against Children Task Force and the FBI's Child Exploitation Task Force. (Tr. 13.) In 2011, Officer Hanson was informed while using investigative software that child pornography files were available from the Internet Protocol ("IP") address 184.108.40.206 assigned on August 26, 2011, at 8:34 a.m. (Tr. 15; Gov't Ex. 1-A.) On September 3, 2011, Officer Hanson submitted a request to the Hennepin County Attorney's Office for an administrative subpoena pursuant to Minn. Stat. § 388.23. (Gov't Ex. 1-A.) This request sought all subscriber information, IP address history, email addresses and billing information associated with IP address 220.127.116.11 assigned on August 26, 2011, at 8:34 a.m. from Comcast Communications ("Comcast"), the relevant Internet service provider ("ISP"). ( Id. ) In the request, Officer Hanson certified "that the requested records are relevant to an ongoing, legitimate law enforcement investigation of Distribution of Child Pornography." ( Id. )
On September 7, 2011, the Hennepin County Attorney's Office faxed Comcast an administrative subpoena for the requested information. (Gov't Ex. 1-B.) Comcast responded to the administrative subpoena on September 8, 2011. (Gov't Ex. 1-C.) The response indicated that the Comcast subscriber associated with the specified IP address on August 26, 2011, at 8:34 a.m. was Defendant. ( Id. ) Comcast's response also provided Officer Hanson with Defendant's name and physical address. (Tr. 38-39.) Officer Hanson checked the Minnesota sex offender registry and discovered that Defendant was a Level 1 sex offender with a previous conviction for possession of child pornography. (Tr. 39.) The sex offender registry also listed Defendant's address. (Tr. 39.)
Officer Hanson submitted three more administrative subpoena requests to the Hennepin County Attorney's Office concerning IP address 18.104.22.168. (Gov't Exs. 2-A, 3-A, 4-A.) The Hennepin County Attorney's Office issued administrative subpoenas to Comcast pursuant to Officer Hanson's requests (Gov't Exs. 2-B, 3-B, 4-B), and Comcast's responses to the subpoenas indicated that the Comcast subscriber associated with the specified IP address was Defendant. (Gov't Exs. 2-C, 3-C, 4-C.) Using the information obtained from the administrative subpoenas, Officer Hanson obtained a search warrant for Defendant's house. (Gov't Ex. 5.)
On February 2, 2012, Officer Hanson and several other officers executed the search warrant at Defendant's residence. (Tr. 22-23.) During the search, officers discovered a computer downloading child pornography video files using Shareaza, a peer-to-peer file-sharing program. (Tr. 23-24.) Officers seized the computer, as well as several hard drives, CDs and DVDs. (Tr. 25.) A subsequent forensic examination of the items seized during the search revealed the presence of a number of child pornography files. (Tr. 25.) Officer Hanson testified that, according to information he received from the National Center for Missing and Exploited Children ("NCMEC"), none of the files for which Defendant has been indicted were produced inside Minnesota. (Tr. 26-27.) Officer Hanson also testified that, although he had not specifically investigated the manufacturer of each digital media item seized from Defendant's home, it is "very possible" that the CDs and DVDs were manufactured outside of Minnesota. (Tr. 27-28.)
A. Motion to Dismiss for Lack of Jurisdiction
Defendant has moved to dismiss the indictment for lack of jurisdiction, arguing that (a) the Government has not provided sufficient evidence that Defendant distributed illegal child pornography in interstate commerce and across state lines, and (2) the Government has not provided sufficient evidence that the individual items of child pornography for which Defendant was indicted were obtained through interstate commerce and traveled across state lines. (ECF No. 19.)
When considering a pretrial motion to dismiss an indictment, the allegations contained in the indictment should be accepted as true. See United States v. Najarian, 915 F.Supp. 1460, 1463 n.3 (D. Minn. 1996) (citing inter alia, United States v. Sampson, 371 U.S. 75, 78-79 (1962)). "[F]ederal criminal procedure does not provide for a pre-trial determination of sufficiency of the evidence.'" United States v. Ferro, 252 F.3d 964, 968 (8th Cir. 2001) (quoting United States v. Critzer, 951 F.2d 306, 307-08 (11th Cir. 1992)). "Indictments are normally sufficient unless no reasonable construction can be said to charge the offense." United States v. Nabors, 45 F.3d 238, 240 (8th Cir. 1995) (citation omitted).
Defendant challenges the interstate nexus underlying the counts in the indictment. The Court finds this challenge unpersuasive. "[T]he government may satisfy the interstate commerce element by proving that child pornography images [or video] w[as] transmitted over the Internet." United States v. Lewis, 554 F.3d 208, 215 (1st Cir. 2009) (citation omitted); see also United States v. MacEwan, 445 F.3d 237, 244 (3d Cir. 2006) ("because of the very interstate nature of the Internet, once a user submits a connection request to a website server or an image is transmitted from the website server back to the user, the data has traveled in interstate commerce."); United States v. Runyan, 290 F.3d 223, 239 (5th Cir.) ("[T]ransmission of photographs by means of the Internet is tantamount to moving photographs across state lines and thus constitutes transportation in interstate commerce."), cert. denied, 537 U.S. 888 (2002); United States v. Whiting, 165 F.3d 631, 634 (8th Cir. 1999) (noting that the defendant had "downloaded images from the Internet through interstate commerce using a computer"); Manual of Model Criminal Jury Instructions for the Eighth Circuit § 6.16.2252A(2) at 384 (2007) ("Images transmitted or received over the Internet have moved in interstate or foreign commerce.") (citations omitted); see generally, United States v. Trotter, 478 F.3d 918, 921 (8th Cir. 2007) (per curiam) (quoting MacEwan, 445 F.3d at 245) ("As both the ...