The opinion of the court was delivered by: Ronald M. Whyte United States District Judge
ORDER ON PENDING MOTIONS BY DEFENDANT
[Docket Nos. 38, 39, 40 and 52)
Pending before the court are four motions by defendant Gary James Roller: (1) for a Bill of Particulars; (2) to Strike One Count of the Indictment as Multiplicitous; (3) to Suppress Evidence Seized Pursuant to a Search Warrant Including Supplement Thereto; and (4) a Supplemental Motion to Suppress on Grounds of Lack of Jurisdiction. The court has reviewed the papers filed and heard the arguments of counsel. The court hereby: (1) denies the Motion for a Bill of Particulars with the understanding that the government will update the list of images it intends to offer in its case in chief, if necessary; (2) denies to the Motion to Strike One Count as Multiplicitous; (3) denies the Motion to Suppress Evidence Seized; and (4) denies the Motion to Suppress Based Upon Lack of Jurisdiction.
I. Motion for Bill of Particulars
Defendant Roller moves for a bill of particulars under Rule 7 of the Fed. R. Crim. P. He requests that the government be ordered to "specifically identify the 'visual depictions' it intends to offer into evidence to prove Count 1 and the specific 'certain matter' referred to in Count 2." This identification, Roller contends, "is essential to remove any ambiguity with regard to the exact nature and extent of the images the government contends fall within the ambit of 'child pornography.'"
The government responds by stating that a bill of particulars is unnecessary if the indictment is otherwise adequate and the defendant has been provided with full discovery. See United States v. Mitchell, 744 F.2d 701, 705 (9th Cir. 1985) (purpose of bill of particulars served if indictment and discovery provide sufficient details of charges); see also United States v. Long, 706 F.2d 1044, 1054 (9th Cir. 1983) ("Full disclosure will obviate the need for a bill of particulars."). In this case there appears to have been full discovery and the indictment sets forth the particular dates on which the offenses allegedly occurred. Finally, in its opposition the government states:
However, out of an abundance of caution, if this case were to proceed to trial, the following list of images represent some of the images that the government anticipates that it would present to the jury on the receipt charge: (1) 4.jpg (appears 4 times); (2) tn41.jpg (appears 6 times); (3) tn62.jpg; (4) tn71.jpg (appears 5 times); (5)111.jpg (appears 5 times); (6) tn131.jpg (appears 5 times); (7) tn8.jpg (appears 5 times); and (8) tn1.jpg (appears 4 times).
Similarly, out of an abundance of caution, if this case were to proceed to trial, the following list of images represent some of the images that the government anticipates that it would present to the jury on the possession charge: (1) 2.jpg; (2) 13.jpg; (3) 15a.jpg; (4) 24.jpg; (5) A24.jpg; (6) bc000-085.jpg; (7) bc000-130.jpg; (8) d2.jpg; (9) d7.jpg; and (10) s17.jpg. The government also anticipates that it would present the following two films: (1) arina-s1-8.mpg; and (2) lsm08-3-02.mpg. Govt.'s Opp. at 3:19-4:2.
The court finds that a bill of particulars is not required in light of the discovery and information provided to defendant. The government is expected, however, to advise defendant Roller if it intends to add to the list of images to be offered in its case-in-chief.
At oral argument on the motion, defendant indicated satisfaction with the court's initial proposed ruling which is the same ruling as is now made. The motion for a bill of particulars is, therefore, denied on the condition indicated.
II. Motion to Strike One Count as Multiplicitous
Defendant moves the court to find that the Superseding Indictment is Multiplicitous and order the government to elect on which count it intends to proceed. The two-count superseding indictment, in essential part, charges in Count 1 that on or about November 17, 2007, defendant "receive[d], by means of computer, certain visual depictions [of child pornography]. . . ." Count 2 alleges that (several weeks later) on or about December 5, 2007, defendant "possesse[d] certain matter, to wit, images [of child pornography]. . . ." Defendant argues that the indictment subjects him to being convicted twice for the same offense.
The government responds that the receipt of child pornography count concerns the images of child pornography found on defendant's computer and that the possession of child pornography count involves the images and film of child pornography found on the zip disks in defendant's possession. The Ninth Circuit has held that: "[W]here a defendant has stored sexually explicit images in separate mediums, the government may constitutionally charge that defendant with separate counts for each type of material or media possessed." United States v. Schales, 546 F.3d 965, 979 (9th Cir. 2008). Here, however, although the government claims in opposition to the motion that separate conduct is involved in the counts, that separate conduct is not distinctly charged. See id. at 980. Nevertheless, even if the underlying conduct is the same, the government can charge both offenses with possession being a lesser included offense of receipt. It, however, can only seek to enter judgment on one. "Thus, while the government can indict a defendant for both receipt and possession of sexually explicit material, entering judgment against him is multiplicitous and a double jeopardy violation when it is based on the same conduct." Id. at 978. Here, although the counts may be multiplicitous, the remedy is to enter only one judgment if defendant is convicted of both offenses.
At oral argument on the motion, defendant agreed that the two counts could be lawfully charged, but, upon conviction, judgment can only be entered on one of the counts. The motion to strike is denied without prejudice to being renewed if defendant is convicted of both counts.
III. Motion to Suppress Evidence Seized in Search
Defendant Roller asserts that the affidavit for the warrant lacks the required probable cause. He argues: (1) the information in the affidavit was "stale" as that term is used in Fourth Amendment analysis; (2) conclusory assertions by the Immigration and Customs Enforcement ("ICE") agents should be stricken; (3) the affidavit, in its totality, lacks probable cause; (4)the warrant is overbroad in contravention of the Fourth Amendment; and (5) no "good faith" exception applies. Defendant also seeks a hearing pursuant to Franks v. Delaware, 438 U.S. ...